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Steyn v S (A176/2005) [2005] ZAWCHC 102 (5 August 2005)

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IN THE HIGH COURT OF SOUTH AFRICA


(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: A176/2005


DATE: 5 AUGUST 2005


In the matter between:

MOGAMAT NOOR STEIN [STEYN] Appellant

and

THE STATE Respondent


JUDGMENT




MOTALA, J:



[1] The appelfant was charged in the Regional Court with murder. He pleaded not guilty. He was found guilty and sentenced to 15 years' imprisonment. He appeals against the sentence only.


[2] Act 105 of 1997 prescribes a minimum sentence of 15 years' imprisonment for murder unless there are substantial and compelling circumstances justifying the imposition of a lesser sentence. The magistrate found that there were no such circumstances and accordingly, imposed the prescribed minimum sentence.


[3] In the charge sheet the State alleged that the appellant killed the deceased by setting her on fire. The deceased was the appellant's wife. They had been married for about 25 years. There are four children born of the relationship, three of whom still need parental care and support.

[4] Evidence of what happened was given by N, one of the children of the accused and the deceased. He was 10 years old when he testified, which was about nine months after the death of the deceased. He testified that the deceased was not at home when the appellant arrived. The appellant sent him three times that day to call the deceased. When she eventually came, an argument ensued between the appellant and the deceased. The appellant took out a bottle of methylated spirits from a cupboard, lit a match and set the deceased alight. The appellant, the witness and a neighbour tried to help the deceased by pouring water on her, but in vain. She died a few days later after what must have been great suffering.



[5] The first issue before us is whether the trial magistrate erred in finding the absence of substantial and compelling circumstances. It is now well established that in deciding that issue, the Court takes all the well known circumstances into account. It has been submitted by counsel that there are a number of factors which, taken together, constitute substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum.



[6] Firstly, that, as the magistrate found, the appellant did not have the direct intention to kill the deceased, but had the intention in the form of dolus eventuafis. Secondly, that there was an element of provocation in that the deceased was drunk, was absent from the home on the eve of a religious holiday and had sworn at him. Thirdly, that the appellant attempted to extinguish the flames and fourthly, that he has shown remorse for what he has done.



[7] Although the magistrate was correct in finding that the appellant did not have the direct intention to kill the deceased, one must remember that there are degrees of dolus eventuafis ranging from a realisation of the possibility of death ensuing from one's actions to a realisation that death is probable. The latter is the position in this matter. No one who sets someone on fire can be heard to say that he did not realise, not the possibility, but the high probability of death resulting. In this case, in my view, there is a minimum degree of difference between dolus directus and dolus eventuaft's

[8] As regards the issue of provocation, N, the child of the deceased and the appellant, denied that the deceased had slept out of the house the previous night or had sworn at the appetlant during the argument. He was uncertain as to whether she was drunk or not. The evidence that she had to be called home three times can hardly be called provocation of a serious degree.



[9] The appellant did not testify. Had the deceased been guilty of a serious degree of provocation, one would have expected him to do so and to counter Nairn's evidence. It is true that appellant attempted to extinguish the flames. Whether he is remorseful for what has done is debatable. The fact that he attempted to extinguish the flames is a strong indication of remorse. Furthermore, he apologised to the deceased's mother. However, at his trial he pleaded not guilty and compelled the State to call his young child to re-live a most traumatic incident. It was even put to the child that the deceased had first attempted to set the appellant alight.



[10] Even if one accepts that there was a degree of provocation, which I repeat was not established, and a possibility of remorse, those mitigating factors and the evidence of his mother-in-law that he is caring for his three minor children are, in my view, outweighed by the aggravating factors, by the horrific nature of the crime. One can hardly think of anything worse than being set on fire. The medical report indicates that 50% of the deceased's body was burnt.



[11] A further factor which has to be taken into account is the interests of the community. According to various surveys, a woman is killed every few minutes in this country by her husband or boyfriend. The interests of the community cannot, as submitted by counsel, be over­emphasised in a matter such of this at the present time. In my view, the interests of the community, the seriousness of the crime and its horrific nature outweigh the personal circumstances of the appellant and the other mitigating factors referred to in counsel's heads.



[12] I cannot find that the trial magistrate erred in finding that he was obliged to impose the minimum sentence. But even if he did err in that respect and was not obliged to impose the minimum sentence but had a discretion to impose whatever sentence he deemed appropriate, I do not think a sentence of 15 years was an inappropriate sentence. It is certainly not a sentence which induces a sense of shock or is substantially longer than the sentence I would have imposed.





[13] Accordingly, I woufd dismiss the appeal and confirm the conviction and sentence.






LE ROUX. AJ: I agree.











LE ROUX. AJ



MOTALA, J; The appeal is dismissed. The conviction and sentence are confirmed.

MOTALA, J