IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT. CAPE TOWN)

En the matter between:
SIBUSISO NDANDANI 
versus 
THE STATE

JUDGMENT

LA GRANGE, A J:

[3] The factual basis upon which the conviction was brought out can be summarised as follows: the deceased and the appellant were in a relationship which at the time of her death had lasted some six years. On the day in question, 26 July 2007, and whilst they were drinking beers at a local shebeen, the deceased starting accusing the appellant of "being a playboy with no respect." An argument ensued and the appellant and the deceased left for home. The appellant's initial version (as contained in his statement in terms of Section 115 of the CPA) of what subsequently transpired reads as foliows:-

“On the way she continued to insult me until we arrived at home. Even at home she continued with the insults and that is when f became angry and assaulted her with a water pipe - twice on the head and a few times on her body. When I saw that she was bleeding, I stopped assaulting her and we both went to sieep. The following morning I found out that she was dead. I did not have any intention to kiM her and 1 never foresaw the possibility of her dying as a result of my actions."

[3] On a subsequent date, when the matter was due to proceed to trial, the appellant caused the following further admissions (contained in the document referred to above) to be placed on record:-

"I wish to declare that although I did not have the direct intention to murder the deceased, I foresaw the possibility of her dying as a result of my assault on her; however, I reconciled myself with that possibility and continued to assault her."

[4] As explained above, the post-mortem report was admitted in the trial. The main post-mortem findings were that the deceased had suffered extensive contusions, abrasions and lacerations of the body (extending also over the head and neck area) and including numerous tram track bruising and abrasions of the body. Although subarachnoid haemorrhage of the brain was found to be present, there were no fractures of the skull. (No fractures of any kind were noted). The cause of death was found to be 'Multiple contusions and lacerations of the body and haemorrhage and aspiration of bJood." I shall not repeat all the post-mortem findings. It is quite clear that the deceased, who was 22 years old, of small build (being about 1,55 metres tall and weighing about 50 kilograms) was subjected to a brutal assault in which she received many blows or applications of force. Although blood was sampled for purposes of establishing the deceased's blood alcohol content, the results were not communicated to the trial Court.

[5] Although it is not altogether clear whether or not the appellant was employed at the time of the incident (fn his judgment on sentence the regional magistrate indicated that the appellant was employed and earning an income of R1 200,00 per month, but that he gave up the employment when he moved to George - whether this was before or after the incident is not clear), the appellant had favourable personal circumstances: he assisted his family by looking after his father, is an active member of his church, was not a violent person and had no previous convictions. A probation officer was of the opinion that the accused was a candidate to be sentenced to imprisonment from which he could be released into correctional supervision.

[6] It is apparent from the record that the appellant and the deceased had consumed an indeterminate volume of alcohol prior to the murder. It is also common cause that there was an element of continued provocation in the form of a continuing argument.

"If the sentencing Court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence."

[10] It is therefore made clear by the authorities referred to above that it is Incumbent upon a Court in every case, before it imposes   a   prescribed   sentence,   to   assess,   upon   a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence. If the Court is indeed satisfied that a lesser sentence is called for in a particular case, thus justifying a departure from the prescribed sentence, then that Court is bound to impose that lesser sentence.

"All that is typical of cases that fall within a specified category is that they have the characteristics of that category. But for that, no case can be said to be typical'."

[13] in the instant matter, in my view, it ought to be taken into account that the actions of the appellant was to a certain extent influenced by the consumption of alcohol and was probably fuelled by the quarrel that arose between him and the deceased. Although the assault on the deceased was brutal and completely unjustified, it is clear from the post-mortem report that the assault did not cause any fractures of the skull of the deceased or, for that matter, any bony structure of her body. Judged on the contents of the report, her death was probably caused by the aspiration of blood. Viewed as such, the   appellant's   crime,   although   still   very   serious   and reprehensible, does in my view not fall within the upper end of the spectrum of murders of the kind envisaged by Section

51(2)(a)(i).

LOUW, J