IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A12/2010
In the appeal of:

vs

JUDGMENT: 14 MAY 2010

[2] The charge incorporated the provisions of Section 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) which provide that:-
"51(1) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

(iii) a third or subsequent offender of any such offence, to imprisonment for a period of not less that 25 years.
• • •
Provided that the maximum term in imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more thatfive years.

Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years."

[3] The trial magistrate found there to be no substantial and compelling circumstances warranting deviation from the prescribed minimum sentence and imposed the prescribed minimum period of 15 years imprisonment.

[4]    The facts which led to the appellant's conviction can be briefly
summarized as follows:-
Appellant and the deceased were live-in partners and had three minor children. They did not have a good relationship and the deceased would always have blue eyes from being assaulted by appellant. She also had a lot of scars on her face. On the day in question they were chatting, braaing and drinking at their home with one Joseph Phillips, a family friend, who had been with them for the better part of the day. The appellant asked him if he wanted to see magic. He then took a bottle of thinners, which he had bought earlier in the day, and lit it with his cigarette lighter. He then ran and sprayed it over the deceased's head, face and clothing.
She was on her way to the loo when the incident happened. She ran into the toilet screaming for help. The appellant did not assist the deceased nor the two minor children who were present, the eldest of whom witnessed the incident. Joseph and the neighbours rendered the necessary assistance to the deceased and the minor children. They called an ambulance. Joseph, the appellant and the deceased were not drunk. Appellant knew what he was doing.

[5] The Court rejected the appellant's version which amounted to a bare denial of all the allegations against him.

[6]    The grounds of appeal raised boil down to the following:-

(a) Appellant had been shot previously and had a serious medical condition requiring further medical intervention and treatment. This had an adverse influence on the quality of his life in prison.

(c) Appellant and deceased had a dysfunctional and unstable relationship which most likely contributed to the appellant's actions.
(d) Liquor consumption and excessive drinking played a role in the commission of the offence.
(e) Removal of the appellant for a substantial period from society deprived the minor children of a father and someone who contributed to their material needs.
(f) Society not only demands that serious crimes be punished, but also that the mitigating and personal circumstances of the appellant be properly considered when a sentence is imposed.
The cumulative consideration of the above constitutes substantial and compelling circumstances warranting a lesser sentence.

'determinative test' for when the prescribed sentence may be departed from:

"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".

"Court's are required to approach the imposition of sentence conscious that the Legislature has ordained the particular prescribed period of imprisonment as the sentence that should ordinarily be imposed, for listed crimes in specific circumstances, in the absence of weighty justification. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypothesis favourable to the offender, undue sympathy, aversion to imprisonment of first offenders, personal doubts as to efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

[13] The accepted facts of the present case revealed the following aggravating factors:-
a)	The deceased had not provoked the assault.
b)	She was assaulted in the comfort of her own home by her live-in partner.
c)	She did not expect that she would be set alight and was going to the loo unsuspecting at the time of the incident.
d)	Her child witnessed the incident. She was affected and severely traumatized by the incident and had to undergo counseling at the state's expense.
e)	The deceased had endured abuse at the instance of the appellant.
f)	Appellant was fully aware of what he was doing and was not drunk.
The offence was premeditated and planned as appellant had promised to show John Phillips magic even at the time he set the deceased alight.

(j) Despite the serious condition of the deceased, appellant sought to be attended to first by the paramedics. He showed no remorse for his conduct.

[ 14]  The following were mitigating factors: -
(a) The appellant is a first offender for murder.

(c) The appellant was shot after the incident and still had a bullet lodged in his body.
(d) He tore his knee ligaments.

[15] It is clear that the aggravating factors far outweigh the mitigating factors.

[17] Save that the appellant was a breadwinner, there was no evidence established or suggested that the appellant was a primary care-giver for these children. He deprived them of the special parental care, love and comfort that they enjoyed from their mother. He further violated their right to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma. The gravity of the offence clearly calls for a custodial sentence that would isolate the appellant from the children to enable them to recover from the trauma and lead happy and productive lives. It would be unjust to permit the appellant to avoid appropriate punishment by sheltering behind children and escape the consequences of his conduct.

[18] That the appellant had been shot after the incident had little or no bearing on the case at hand. The majority of South African prisons offer medical assistance to prisoners free of charge. The allegations that the state's version, painting a darker picture of the appellant, was based on hearsay evidence, does not advance the appellant's case either. Equally non-meritorious are the grounds that liquor consumption played a role in the commission of the offence, and that the parties' dysfunctional and unstable relationship contributed to the appellant's actions. Such is not borne out by the evidence and need no further address herein.

[19] With all the above being borne in mind, I am of the firm view that there is no merit in all the grounds of appeal raised. The cumulative impact of all circumstances relevant to sentencing does not justify a departure from the standardized option ordained by the legislature. The court was duty bound to take into consideration the fact that the offence of murder has been singled out for a severe punishment. The appellant was fortunate enough to be convicted of murder under Part II of Schedule 2 despite the evidence establishing premeditated or planned murder. The sentence imposed on the appellant was the minimum and not the maximum prescribed, a fact beneficial to the appellant.

[20] In the circumstances, I find that there was no material misdirection by the trial court. The sentence imposed is not disproportionate at all. I would dismiss the appeal and confirm the sentence.

I agree, and it is so ordered.