Sibanyoni v S (CAF01/2022) [2022] ZANWHC 63 (8 December 2022)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAFIKENG

CASE NO: CAF01/2022

Reportable:

YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional: YES / NO

In the matter between:

TIMOTHY

ZULU SIBANYONI APPELLANT

and

THE

STATE RESPONDENT

Coram: Petersen

J, Reddy AJ & Mfenyana AJ

Date of Hearing: 04 November 2022

Date of Judgment: 08 December 2022

ORDER

Condonation for the late noting and prosecution of the appeal is granted.

(ii) The appeal against the sentence is dismissed.

(iii) The sentence of life imprisonment is confirmed.

JUDGMENT

REDDY AJ

Introduction

[1] The appellant duly represented by Mr Kekana, a legal practitioner from Legal Aid South Africa, was indicted before Mahlangu AJ on 20 August 2020, on the following counts: murder read with section 51(1) and Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended ("the CLAA") (count 1), kidnapping (count 2) and defeating or obstructing the course of justice (count 3). He pleaded guilty to all three counts and submitted a written statement couched in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 ("the CPA"), which the state accepted. The appellant was duly convicted on his plea of guilty as charged.

[2] The appellant was sentenced on 20 August 2020, as follows:

Count 1: Life imprisonment

Count 2: 5 years imprisonment

Count 3: 5 years imprisonment

[3] In terms of section 280 of the CPA which should have read section 280(2) of the CPA, it was ordered that the sentences imposed in counts 2 and 3 are to run concurrently with the sentence imposed in count 1. The appellant was further declared unfit to possess a firearm in terms of the provisions of the Firearms Control Act (presumably section 103(1) of the Firearms Control Act 60 of 2000).

[4] An application for leave to appeal against the sentences imposed was dismissed on 20 August 2020. On 16 March 2021, the Supreme Court of Appeal granted leave to appeal to the Full Court of this Division in terms of section 17(2)(b) of the Superior Court Act 2013.

Common cause facts

[5] It is necessary to set out the admissions made by the appellant in some detail, as the admissions form the basis of the factual matrix extracted from his statement in terms of section 112(2) of the CPA. The deceased and the appellant lived together as husband and wife. The family unit was completed with the deceased's two children from a previous relationship. The appellant suspected that the deceased was being unfaithful to him with an individual known to him. The appellant had cautioned the deceased against such infidelity.

[6] On 23 February 2019, the cell phone of the deceased rang, whilst the deceased was some distance away from it. The appellant recognized the reflecting number and answered the call but the caller dropped the call. This angered the appellant and he enquired from the deceased if she was still pursuing this relationship with the third party. There is no indication in the admissions as to how the deceased retorted if, at all.

[7] On 24 February 2019, as there was insufficient petrol money to transport the deceased to her place of employment, the appellant intended to drop the deceased off at a convenient location where public transport could be secured to ferry her to work. On route, the deceased was asked about the cell phone call of the previous day. The deceased was dismissive about it and indicated that the appellant should not concern himself with who chooses to call her.

[8] What transpired next is best stated by extracting directly from paragraph [9] of the statement in terms of section 112(2) of the CPA:

"l stopped talking to her because / was overcome with emotion and I took a detour and not the usual route to the taxis and when she asked me where we are going I told her I want to see someone. Our vehicle got stuck in the sand and she walked away on foot saying she will be late for work. I was then overcome with anger and jealousy and took a knife from the vehicle and caught up with her. I then asked her again why she was cheating on me and / stabbed her until she died."

[9] The appellant moved the corpse of the deceased from where he had killed her to a different location. Branches and trees were used to conceal the deceased. The appellant by his explicit actions wanted to circumvent the discovery of the deceased. In furtherance of his intention to conceal any link to the death of the deceased, the appellant burned the shoes that he was wearing during the stabbing of the deceased and the trouser that he was wearing was washed. The appellant's son was further ordered to clean the bakkie in which the appellant had travelled with the deceased.

[10] The medico legal post mortem report completed by Dr Modise on 26 February 2019 revealed the following chief post mortem findings:

(a) The deceased was allegedly assaulted.

(b) Surface injuries.

(c) Multiple stab wounds of the front chest and back.

(d) Penetrating injuries of the chest.

(e) Amputated left thumb and little right finger.

(f) Decomposition.

[11] Based on these observations Dr Modise found that the cause of death was: multiple stab wounds of the chest and back.

[12] The court a quo found that there were no substantial and compelling circumstances justifying a deviation from the imposition of the predicated sentence of life imprisonment.

The grounds of appeal

[13] The appellant assails the sentence of life imprisonment on the following grounds:

“(i) The honourable court materially misdirected itself in imposing the ultimate punishment under our law and that life imprisonment is disturbingly inappropriate based on the circumstances of the appellant.

(ii) The Honourable court erred in finding that there are no substantial and compelling circumstances allowing it to deviate from the prescribed minimum sentence.

(iii) The Honourable court erred in that ex facie the record it is not apparent that the court made a determination one way or another whether life imprisonment was proportionate in the sense of fitting the crime, the criminal and fair to society.

(iv) The Honourable trial court furthermore, overemphasized the seriousness of the offence and public opinion on sentence at the expense of the appellant who was a 59 year-old first offender who was a primary care giver to a minor child.

(v) The Honourable court not having exercised its sentencing discretion properly and reasonably in that despite being aware of appellant being the primary care giver of a minor child, the court did not cause all relevant information to be placed before it prior to meting out punishment.

(vi) It was a material misdirection by the honourable trial court to find that appellant was justifying his actions when he testified that he believed that the deceased was cheating on him. That he believed deceased cheated on him was in his section 112(2) Criminal Procedure Act 51 of 1977, which was accepted by the state.

(vii) The Honourable trial court erred in failing to take into account that appellant has been in custody for one year and six months at the time of sentence.

(vii) Despite pleading guilty and testifying in mitigation of sentence, the trial court erred in not considering the prospects of rehabilitation of appellant before imposing a sentence which may result in him spending the remainder of his natural life prison."

The role of a Court of Appeal on sentence

[14] Sentencing is pre-eminently a matter for the discretion of the trial court. An appeal court should be careful not to erode such a discretion unless it has not been judicially exercised, or the trial court misdirected itself to such an extent that its sentencing discretion is vitiated, or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. (S v Rabie 1975 (4) SA 855 (A) at 857E-F. See also Bogaards v S 2013 (1) SACR (CC) paragraph [41] and S v Anderson 1964 (3) 494 (AD) at 495D).

[15] In Hewitt v S [2016] ZASCA 100 at paragraph [8] the following was stated:

"It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court. An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. In order words, it is not enough to conclude that its own choice of penalty would have been an appropriate penalty. Something more is required; it must conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is not. Thus, the appellant court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that shows that it did not exercise its sentencing discretion at al/ or exercised it improperly or unreasonably when imposing it. So, interference is justified only where there exists a "striking "or "startling or "disturbing" disparity between the court's sentence and that which the appellant court would have imposed and in such instances the trial court's discretion is regarded as having being unreasonably exercised." (See S v Pieters 1987 (3) SA 717(A) 717 at 727F-H, S v Sadler 2000 (1) SACR 331(SCA) at paragraph S v Swan 2000 (2) SACR 566 (SCA) paragraph [21]). "

Discussion

[16] The grounds of appeal against sentence in the main assail the court a quo's finding that no substantial and compelling circumstances existed or otherwise stated that the sentence was disproportionate to the criminal, the crime of murder and the needs of society.

[17] In submissions before us Mr Kekana had a further arrow in his bow when he relied heavily on what the court a quo said in the judgment on sentence, which purports to contradict the ultimate sentence of life imprisonment. The court a quo before proceeding to consider the triad of factors ordinarily considered in sentence remarked as follows:

"There is nothing to suggest that this was not a crime of passion. The accused told this court that he was very much in love with the deceased and they often displayed their love in public. Thus that being so should not distract the court from the seriousness of the offence, but helps to appreciate the accused behaviour. In such instances the circumstances of such murder are considered substantial and compelling circumstances. I am therefore of the view that based on the facts of this matter substantial and compelling circumstances exist warranting the deviation from the prescribed minimum sentence... "

(my emphasis)

The court a quo could not have made the finding on substantial and compelling circumstances before considering the traditional triad and the salutary approach advanced by Marais JA at paragraph [25] F, G and H in Ma/gas supra, which reads as follows:

"F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ("substantial and compelling") and must be such as cumulatively justify a departure from the standardised response that the legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion. "

[19] The court a quo in remarking on the issue of crimes of passion, which in those circumstances, are considered substantial and compelling, could only have been led by "concepts developed in dealing with appeals against The wording employed by the court a quo in this regard is curiously analogous to the wording employed by Binns-Ward J in Tafeni v S (A282/15) [2015] ZAWCHC 150; 2016 (2) SACR 720 (WCC) (16 October 2015), where the appellant was similarly convicted on his plea of guilty of stabbing the deceased with whom he was in an extra marital affair multiple times with an Okapi knife. The following was said at paragraph [1 1] of the Tafeni judgment:

"[11] The crime was committed in the heat of the moment at a time when the appellant was emotionally charged and evidently deeply hurt by a callous rebuff from the person to whom he had been looking for sympathy. While this in no way excuses his conduct or renders the needless death of Ms Mdekwana any less tragic and horrific, it does afford a basis for understanding the appellant's behaviour in a wav that lessens the blameworthiness attached to it. It was a crime of passion, not one of gratuitous violence. (In S v Mvamvu 2005 (1) SACR 54 (SCA), at para 13, Mthivane JA noted that an essential characteristic of a 'crime of passion' is that it is committed 'without rational reflection whilst the perpetrator (is influenced by barely controllable emotion'.) Courts have found the commission of murder in such circumstances to found substantial and compelling circumstances even when the accused has subsequently failed to show repentance or remorse, see S v Dumba 2011 (2) SACR 5 (NCK), although 1 would, with respect, regard the finding in that case as exceptional. There are other examples in circumstances generally more comparable to the current case: S v Mngoma 2009 (1) SACR 435 (E), in which the sentence imposed by the trial court was found to be inappropriately lenient and increased on appeal, but its finding in the context of a crime of passion that substantial and compelling circumstances existed to justify a departure from the minimum sentence was confirmed; S v Makatu 2006 (2) SACR 582 (SCA) at para 15-17 and S v Engelbrecht 2005 (2) SACR 163 (V" are amongst them.

[20] In Dyala v S (CA&R269/2017) [2018] ZAECGHC 17 (7 March 2018) at paragraph [10], Reveals J found favour with the sentiments expressed, inter alia, in Tafeni v S and endorsed same as follows:

"[10] During the argument presented to the magistrate by the appellant's legal representative, the magistrate was referred to several judgments where courts imposed lesser sentences than the minimum sentence in cases with similar facts, and where murders committed by persons acting under severe emotional distress, sometimes referred to as "crimes of passion". In S v Mvamvu 2005 (1) SCA 54 (SCA) Mthiyani JA observed in paragraph 13 of his judgment that one of the characteristics of a crime of passion is that it is committed "without rational reflection whilst the perpetrator was influenced by barely uncontrollable emotions". There are several such cases where courts did not impose the prescribed minimum sentence. In S v Tafeni 2016 (2) SACR 720 UCC), a case with similar facts, the accused's sentence of fifteen years' imprisonment was substituted on appeal with a sentence of twelve years' imprisonment. (See also: S v Engelbrecht 2005 (2) SACR 163 S v Makatu 2006 (2) SACR 582 (SCA)Sv Dumba 2011 (2) SACR 5 (NCK),• S v Mngoma 2009 (1) SACR 435 (E))."

[21] The remarks by the court a quo in relation to crimes of passion must be considered in context of all the factors ultimately considered in sentence and the sentiments expressed in S v Mvamvu 2005 (1) SCA 54 (SCA) "..that one of the characteristics of a crime of passion is that it is committed 'without rational reflection whilst the perpetrator was influenced by barely uncontrollable emotions.

Substantial and compelling circumstances

[22] It is against the aforementioned background that I now turn to consider whether the court a quo was correct in the factual finding that there were no substantial and compelling circumstances warranting a deviation from the mandated sentence of life imprisonment. Notwithstanding, the absence of a clear definition of the term "substantial and compelling"; there is a plethora of authorities providing guidance as to the imposition of mandatory sentences within the sentencing prism and the application of "substantial and compelling circumstances". The apt homely legal metaphor finds application in that, in each sentencing

scenario; the uniqueness of the triad would vary on a case to case basis.

[23] The existence of substantial and compelling circumstances will generally be present when the case is one which the sentencing court should feel a sense of unease amounting to a conviction that "the prescribed sentence [would be] unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and as such to justify the imposition of a lesser sentence. " (S v Malgas 2001 (1) SACR 469 (SCA), 2001 (2) SA 1222 [2001] 3 All SA 220, at para 22. see also S v Vilikazi [2008] ZASCA 87; 2009 (1) SACR 552 (SCA), 2012 (6) SA 353; [2008] 4 A/ SA 396); especially at para 13-20)

[24] In S v Matytyi 2011 (1) SACR 40 (SCA) at paragraph [231 Ponnan JA stated as follows:

"[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Ma/gas, it still is "no longer business as usual". And yet one notices all to frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for flimsiest of reasons-reasons, as here, that do not survive scrutiny. As Ma/gas makes plain courts have a duty, despite any persona/ doubts about the efficacy of the policy or persona/ aversion to it, to implement those sentences. Our courts derive their power from the Constitution and the like other arms of state owe fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol boundaries of their own power by showing due deference to the legitimate domains of the power of the other arms of the state. Here parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Coutts are not free to subvert the will of the legislature by resort to vague, ill-defined concerts such as "relative youthfulness" or

other vague and ill-founded hypotheses that appear to fit the particular sentencing officer's persona/ notion of fairness. Predictable outcomes not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.

[25] In the determination of an appropriate sentence the benchmark is the triad, with due regard to the mandated sentence of life imprisonment. (S v Zinn 1969 (2) SA 537 (A) at 540 G.) An effective consideration of the crime, the personal circumstances of the offender and the interests of society is paramount to the assessment of an appropriate sentence. The various aims and purposes of punishment are relevant considerations (See v Rabie 1975 (4) SA 855 (A) 862 A-B). These factors must be considered against the backdrop of the mandated sentence of life imprisonment. The court a quo was clearly alive to this.

The approach of the count a quo to sentence

[26] I now turn to consider whether the court a quo misdirected itself in respect of sentence as assailed in the grounds of appeal. The court a quo considered the appellant's personal circumstances. The mitigating factors include that the appellant was 58 years old at the time of the commission of the crimes and 59 years old at the time of sentencing; a first offender at his age; that he was a driver at Blue Ribbon Bakeries but had resigned at the request of his employer; that he was on chronic medication for an incurable disease and that he had been in custody since his arrest on 24 February 2019. The fact that the appellant had a sixteen (16) year old son and that the deceased had two (2) children, all of whom lived with the appellant and deceased was considered. The understandably brutal and heinous nature of the murder and callous concealment of the murder by the appellant was carefully considered and rightfully found to be aggravating. The impact of the crimes and in particular the murder of the deceased on her family was given due weight in the sentencing process. The high incidence of crimes against women was correctly factored into the

sentence. The aggravating factors were correctly found to outweigh the appellant's personal circumstances.

Conclusion

[27] I hasten to add that it is clear that the appellant put paid to the ultimate right of the deceased: the right to life. (Section 11 of the Constitution). The appellant murdered the deceased in a brutal and callous manner. The chief post mortem findings echo this. The findings of Dr Modise that the left thumb and right finger had been amputated coupled with multiple stab wounds on the back and chest leads to the inescapable conclusion that the deceased endured a painful death. The deceased was robbed of her dignity and respect. Her corpse was covered with branches and trees and allowed to decompose. This entire ordeal must undoubtedly have had devastating effects on her children.

[28] In S v Di Biasi 1996 (1) SACR (A) at 10 F-G the following was stated:

"The requirements of society demand that a premeditated, callous murder, such as the present should not be punished too leniently lest the administration of justice be brought into disrepute should only reflect the shock and indignation of interested persons and of the community at large and so serve as just retribution for the crime but should also deter others from similar conduct. "

[29] There is no understating that violence against women and children is on the steady incline and that gender based violence has reached alarming proportions. The sentences that courts mete out must indicate that society abhors this kind of offence and the circumstances in which it was committed.

[30] Save for the misplaced statement by the court a quo that the murder constituted a crime of passion and therefore fell within the ambit of substantial and compelling circumstances, before considering all the factors ordinarily considered, the court a quo cannot be faulted for the ultimate sentence imposed.

[31] In the premises the appeal against the sentence should fail.

Order

[32] Consequently the following orders are made:

(i) Condonation for the late noting and prosecution of the appeal is granted.

(ii) The appeal against the sentence is dismissed.

A

REDDY

ACTING

JUDGE OF THE HIGH COURT

NORTH WEST DIVISON, MAHIKENG

I agree

A

H PETERSEN

JUDGE

OF THE HIGH COURT

S

MFENYANA

NORTH WEST DIVISION, MAHIKENG

Appearances:

For the Appellant: Mr

M.V Kekana

Instructed by: Legal

Aid South Africa

Borekelong House

742 Dr James Moroka Drive

Southwing

Mmabatho

For the Respondent: Adv

Muneri

Instructed by: Director

of Public Prosecutions

2nd Floor, Mega city

Shopping Complex

Sekame Road