IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and

JUDGMENT

[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.

[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.

[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.

[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