HIGH COURT CASE NO.

CC 113/2013

IN THE HIGH COURT OF SOUTH AFRICA

(Gauteng Division, Pretoria)

In the matter between:

THE DIRECTOR OF PUBLIC

PROSECUTIONS, GAUTENG

Applicant

and

OSCAR LEONARD CARL PISTORIUS

Respondent

NOTICE OF APPLICATION FOR LEAVE TO APPEAL IN TERMS OF

SECTION 3168(1) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

TO

The Registrar of the High Court

Gauteng Division, Pretoria
Private Bag X 67
PRETORIA

0001

AND TO

Brian Webber
Ramsay Webber Inc.
269 Oxford Road
ILLOVO

2
1.

PLEASE TAKE NOTICE that the Director of Public Prosecutions, Gauteng:

Pretoria (applicant); intend bringing an application in the Gauteng High Court,

Pretoria, for leave to appeal in terms of section 3168(1) of the Criminal
Procedure Act 51 of 1977 against the sentence imposed by The Honourable
Judge Masipa in the Gauteng High Court, Pretoria, in case number CC 113/13
on 6 July 2016.

2.

PLEASE TAKE FURTHER NOTICE that the grounds of appeal are as follows:

2.1

The Court misdirected itself in finding that the aggravating factors in casu
are outweighed by the mitigating factors.

2.2

The following mitigating and aggravating factors were identified by the

court:

2.2.1 Aggravating factors:

i.

The accused used a lethal weapon, ie. a high calibre firearm, and
ammunition.

ii. The accused fired not one but four shots into the toilet door.
iii. The accused fired the four shots knowing full well that there was
someone behind the door.
iv. The toilet was a small cubicle and there was no room for escape.
v. The accused was trained in the use and handling of firearms.
vi. The accused never fired a warning shot.

3
2.2.2 Mitigating factors:

i.

The accused approached the bathroom in the belief that an intruder

had entered his house.

ii. The accused was without his prosthesis and felt vulnerable.
iii. The accused immediately took steps to save the deceased's life.
iv. The accused was distraught and kept on asking God to save the
deceased's life.
v. At the commencement of the trial the accused apologised to the family
of the deceased.
vi. The accused is genuinely remorseful.

2.3

The court, with respect, failed to take into account three major aggravating
factors, namely:

i.

It was in the bedroom that the accused had formed the intention to
shoot and when he realised that there was someone behind the toilet
door he fired four shots.

ii. The Supreme Court of Appeal as well as this Court rejected the
defence that the accused acted in private defence or even putative
private defence. Thus, there existed no justification for the accused's
actions.
iii. And perhaps the most important factor that the court failed to take into
account is that the accused "fired four shots through the door. And he

never offered an acceptable explanation for having done so. "1

2.4

Whereas the Court found that murder is "always a very serious crime" and
that "[t]he fact that the accused thought that [the deceased] was [an]

intruder does not make [the crime] less serious", the Court nevertheless,
with respect, misdirected itself in holding that the accused's belief that an

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at para [49].

intruder had entered the house was a mitigating factor, especially when
regard is had to the objective gravity of the crime and the fact that this
Court and the Supreme Court of Appeal rejected the accused's version
that he acted in putative private defence. 2

2.5

This Court, with reference to the accused's version during the trial,
remarked that when the accused "discovered his mistake" he put on his
prosthetic legs and used the cricket bat to bash open the door.

We

respectfully submit that the Court misdirected itself in not focusing on the
fact that the accused's actions in firing four shots at a human being behind
a closed toilet door was no mistake.

2.6

The Court, with respect, misdirected itself in underemphasising the trite

principle enunciated in S v Malgas 3 and subsequent Supreme Court of
Appeal dicta, 4 that when sentencing in terms of the minimum sentence
legislation (the Criminal Law Amendment Act 105 of 1997 ("Act 105 of
1997")), "it was no longer to be 'business as usual"' and indeed, "the
emphasis was to be shifted to the objective gravity of the type of crime
[committed] and the public's need for effective sanctions against it."

2.7

The Court, with respect, misdirected itself in underemphasising the trite

principle that when sentencing in terms of the minimum sentence
legislation, a court must assess whether in all the circumstances the
sentence is "proportionate to the crime committed'' and . whether the
sentence "is a just one." 5

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at paras
[53]-[54].
3
2001 (1) SACR 469 (SCA) at paras [7]-[8].
4
See, for example, S v Roslee 2006 (1) SACR 537 (SCA) at para [32]; S v Matyityi 2011 (1)
SACR 40 (SCA) at para [23]; S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) at para [9];
S v Brown 2015 (1) SACR 211 (SCA) at para [119].
5
See, for example, S v Radebe and Another 2013 (2) SACR 165 (SCA) at para [14].

5
2.8

The Court, with respect, misdirected itself in underemphasising the trite

principle that when sentencing in terms of the minimum sentence
legislation, a court is not given a "clean slate" on which to inscribe
whatever sentence it thinks fit or appropriate, but the "starting point in a

matter such as this is the prescribed minimum sentences ordained by the

legislature." 6

2.9

While each case must be assessed on its own merits, 7 we respectfully

submit that the Court nevertheless misdirected itself in underemphasising
the trite principle that when sentencing in terms of the minimum sentence
legislation, "a severe, standardised, and consistent response from the

courts" is required in imposing an appropriate sentence, paying due

regard to the sentence that ought "ordinarily" to be imposed for the
commission of the listed crime in the specified circumstances. 8

2.10

The Court, with respect, misdirected itself in underemphasising the trite

principle

that

"[i]f 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", thereby entitling the court to impose a
lesser sentence, "account must [nevertheless] be taken of the fact that

crime of that particular kind has been singled out for severe punishment
and that the sentence to be imposed in lieu of the prescribed sentence
should be assessed paying due regard to the bench mark which the
Legislature has provided. "9

See, for example, S v Malgas 2001 (1) SACR 469 (SCA) at para [8]; 5 v Matyityi 2011 (1)
SACR 40 (SCA) at para [18]; S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) at para [1 0];
S v Brown 2015 (1) SACR 211 (SCA) at para [119].
7
Compare, for example, S v Vilakazi 2009 (1) SACR 552 (SCA) at para [15].
8
5 v Malgas 2001 (1) SACR 469 (SCA) at para [8].
9
5 v Malgas 2001 (1) SACR 469 (SCA) at para [251-J].

6
2.11

The Court, with respect, misdirected itself in underemphasising the trite

principle that even where substantial and compelling circumstances are
found to exist which justify the imposition of a lesser sentence than the
minimum prescribed sentence, "the sentences the Act [Act 105 of 1997]

prescribes create a legislative standard that weighs upon the exercise of

the sentencing court's discretion. This entails sentences for the scheduled
crimes that are consistently heavier than before." 10

2.12

We respectfully submit that the Court materially misdirected itself in

seemingly regarding itself as having a free and unfettered discretion to
impose any sentence it considered appropriate upon finding that
substantial and compelling circumstances were present, and in so doing
overlooking the benchmark indicating the seriousness with which the
Legislature views the crime of murder. 11

2.13

The Court thus, with respect, misdirected itself in finding that long-term
imprisonment would not serve justice in this case, also having regard to
the following factors:

i.

In summary, the Supreme Court of Appeal's findings, which are

based on this Court's findings of fact, can only be described as that
the accused fired four shots at the toilet door because he thought
there was an intruder in the toilet.

ii. There was, however, no indication of a real and/or imminent or

immediate threat.
iii. We respectfully submit that our courts are enjoined to severely
punish accused persons who shoot and kill without reason. 12

10
11
12

S v Abrahams 2002 (1) SACR 116 (SCA) at para [25], per Cameron JA (as he then was).
Compare, S v Mvamvu 2005 (1) SACR 54 (SCA) at para [17].
Compare, for example, S v Martin 1996 (1) SACR 172 (W) at 176j-177c.

7
iv. The accused exhibited some regret when it turned out to be the
deceased, but has as yet not given a credible explanation of why
he fired the four shots.

2.14

We respectfully submit that the Court misdirected itself in

overemphasising the misperception in the public domain as to what
preceded the commission of the crime, and underemphasised the trite
principle that Act 105 of 1997, as an "expression of policy in a statute",
"shows the disquiet experienced by the public, represented through the
Legislature, at the prevalence of certain offences and their effect.

The

imposition of minimum sentences is a clear indication of what is perceived

to be in the public interest. It is trite that the public interest, or the interest
of the community

a~

it is often put, is a factor that should be considered

when the sentencing discretion is exercised ... The provisions of the Act
inform courts of the attitude of society to crimes of a particular nature,
specified in a schedule to the Acf'. 13

The State neither before this court nor before the SCA argued that any
"misperceptions" should be taken into account. We, respectfully agree with
the court that our courts will deal only with facts placed before them and
not with assumptions and not with suspicions. The court then, with
respect, proceeded and took the 'misperception' into account as a factor
that cannot be ignored and that to do so, may not serve the ends of
justice. We reiterate, respectfully that the court overemphasised this
"misperception" as a factor to take into account for purposes of sentence.

2.15

We respectfully submit that the Court overemphasised the personal

circumstances of the accused, particularly the disability of the accused
and the fact that the accused was on his stumps when committing the
murder and "felt vulnerable" at the time, treating such, with respect,

13

5 v Jimenez 2003 (1) SACR 507 (SCA) at para [9].

8
erroneously as mitigating factors, when regard is had to all the
circumstances of the case.

2.16

We respectfully submit that the high-water mark for the accused is that he
felt vulnerable - if that is the only reason why he fired the shots it should
rather be aggravating than mitigating.

He formed that intention in the

bedroom and then proceeded to the bathroom.

2.17

The Court, as to the question of the "vulnerability'' of the accused and how
such affected the accused's conduct when murdering the deceased, with
respect,

misdirected itself in overlooking or underemphasising the

following finding it made in its judgment on sentence pertaining to the

culpable homicide charge: 14
"There was, however, a feeling of unease on my part as /listened
to one witness after another, placing what I thought was an overemphasis on the accused's vulnerability.

Yes, the accused is

vulnerable, but he also has excellent coping skills.

Thanks to his

mother, he rarely saw himself as disabled and, against odds,

excelled as a top athlete, became respected worldwide and even
went on to compete against able bodied persons.

For some

reason, that picture remains obscured in the background.

In my

judgment to get to the real picture, the correct approach would be

to balance the two."
2.18

The Court, with respect, misdirected itself in overlooking or

underemphasising the Supreme Court of Appeal's observations as to how
the accused excelled in life, especially in relation to his athletics
achievements, despite his "severe physical handicap", 15 which effectively

14

At p. 12-13 of the Judgment on Sentence.

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at para
[11].
15

9
affirmed the Court a quo's "unease" as to the overemphasis of the
accused's "vulnerability''.

2.19

The Court, with respect, misdirected itself in overlooking or

underemphasising the Supreme Court of Appeal's finding that the
accused's subjective intention was unaffected by "the accused's physical

disabilities, the fact that he had not been wearing his prostheses at the
time and that he had thus been particularly vulnerable to any aggression
directed at him by an intruder', as well as on account of his general
anxiety disorder, by reason that: 16

"On his own version, when he thought there was an intruder in the
toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence,
screamed at the intruder to get out of his house, and proceeded
forward to the bathroom in order to confront whoever might be
there. He is a person well-trained in the use of firearms and was
holding his weapon at the ready in order to shoot. He paused at
the entrance to the bathroom and when he became aware that
there was a person in the toilet cubicle, he fired four shots
through the door.

And he never offered an acceptable

explanation for having done so."

2.20

The Court, with respect, underemphasised the trite principle that "in

determining whether there are substantial and compelling circumstances,

a court must be conscious that the Legislature has ordained a sentence

that should ordinarily be imposed for the crime specified, and that there
should be truly convincing reasons for a different response. It is for the
court imposing sentence to decide whether the particular circumstances
call for the imposition of a lesser sentence. Such circumstances include
those factors traditionally taken into account in sentencing - mitigating
16

Ibid at paras [48]-[49] (emphasis added).

10
factors.
factors."

2.21

Of course these must be weighed together with aggravating

17

We respectfully submit that it was a procedural irregularity not to formally

record what the substantial and compelling circumstances are which
justified the imposition of a lesser sentence than the minimum prescribed
sentence of 15 years' imprisonment. 18 It is unclear to the Applicant what
precisely those circumstances are.

2.22

We respectfully submit that error in objecto or an accused acting with

dolus indeterminatus cannot merely be a mitigating factor.

The factors

have to be related, or relevant, to the accused's actions. The accused

intended (dolus eventualis) to shoot and kill a human being and he "never
offered an acceptable reason for having done so".

2.23

We respectfully submit that the Court misdirected itself in having maudlin

sympathy for the accused, whereas it is well-settled in our law that the
element of mercy "has nothing in common with maudlin sympathy for the
accused' 19 and "undue sympathy'' for an accused is not to be construed
as a substantial and compelling circumstance justifying a departure from
the minimum prescribed sentence. 20

2.24

The Court, with respect, misdirected itself in underemphasising the

principle enunciated in S v Matyityi, that sentences also need to be
"victim-centred' and that the victim or the victim's family must be "afforded

a more prominent role in the sentencing process". 21

17

5 v 5ikhipha 2006 (2) SACR 439 (SCA) at para [16].

5 v Karolia 2006 (2) SACR 75 (SCA) at para [32].
19
5 v Rabie 1975 (4) SA 855 (A) at 861C-D.
20
5 v Malgas 2001 (1) SACR 469 (SCA) at paras [9], [250].
21
2011 (1) SACR 40 (SCA) at para [16].
18

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2.24.1 The Court, with respect, misdirected itself in underemphasising the
interests of the victim and the victim's relatives. We respectfully submit
that the court failed to take into account the horrific experience that
preceded the deceased's death. The court with respect underemphasised
the pain and desperation that the deceased had to endure, albeit
fleetingly, especially when it is taken into account that the first shot was
the one to the hip of the deceased.

2.25.1 Moreover, the court with respect overlooked the fact that the accused
intentionally loaded his firearm with Black Talon ammunition, knowing full
well what it was capable of doing.

2.25.2 The Court, with respect, materially misdirected itself in finding that "healing
has already started as both Mr Steenkamp and Mrs Steenkamp have
stated that they have forgiven the accused."

2.25.3 We respectfully submit that the Court misinterpreted the "forgiveness" by

the Steenkamp family.

2.26 The Court materially misdirected itself in not grading the degree of dolus
eventualis in determining the seriousness of the murder perpetrated, for

purposes of sentence. 22

We respectfully submit that the

Court

misinterpreted and/or overlooked the Supreme Court of Appeal's findings

as to the degree of foreseeability. We respectfully argue that the Court
was bound by the inferences drawn by the Supreme Court of Appeal
based on the factual findings of this Court.
2.26.1 The Court, with respect, materially misdirected itself in finding that there is
"no suggestion in the judgment of the Supreme Court of Appeal' that the

22

Compare, S v Dladla en Andere 1980 (1) SA 1 (A) at 3E-G; S v Mienies 1978 (4) SA 560 (A)
at 562A-G.

12
dolus eventualis of the accused bordered on dolus directus, whereas the
Supreme Court of Appeal held thus on the aspect: 23
"As a matter of common sense, at the time the fatal shots were
fired, the possibility of the death of the person behind the door was
clearly an obvious result. And in firing not one, but four shots,

such a result became even more likely. But that is exactly what
the accused did ... A person is far more likely to foresee the
possibility of death occurring where the weapon used is a lethal
firearm (as in 'tiie present case) than, say, a pellet gun unlikely to
do serious harm.

Indeed, in this court,. counsel for the accused,

while not conceding that the trial court had erred when it concluded
that the accused had not subjectively foreseen the possibility of the
death of the person in the toilet, was unable to actively support that
finding. In the light of the nature of the firearm and the ammunition
used and the extremely limited space into which the shots were
fired, his diffidence is understandable."
2.27 We submit with respect that the Court's material misdirection in not grading
the accused's dolus eventualis as bordering on dolus directus, is also
borne out by the following facts accepted by the Supreme Court of Appeal:

"[T]he deceased must have been standing behind the door when
she was first shot and then collapsed down towards the toilet bowl.
Although the precise dimensions of the toilet cubicle do not appear
from the record, it is clear from the photographs that it is extremely
small ... And it is also apparent ... that all the shots fired through the
door would almost inevitably have struck a person behind it. There
had effectively been nowhere for the deceased to hide." 24

23

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at para [50]
(emphasis added).
24
Ibid at para [38].

13
"Capt Mangena testified that the Black Talon ammunition the
accused had used was specifically designed for the purpose of selfdefence. It would penetrate a wooden door without disintegrating
but would mushroom on striking a soft, moist target such as human
flesh, causing devastating wounds to any person who might be hit.
The veracity of this is borne out by the photographs depicting the
injuries the deceased sustained, correctly described by the trial
court as being 'horrendous'." 25
"On his own version, when he thought there was an intruder in the
toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence,
screamed at the intruder to get out of his house, and proceeded
forward to the bathroom in order to confront whoever might be
there. He is a person well-trained in the use of firearms and was
holding his weapon at the ready in order to shoot. He paused at
the entrance to the bathroom and when he became aware that
there was a person in the toilet cubicle, he fired four shots through
the door.

And he never offered an acceptable explanation for

having done sq_." 26

2.28 We respectfully submit that a proper grading of the accused's culpability

would lead to a much more severe sentence. We furthermore respectfully
submit that this misdirection in itself will entitle a Court of Appeal to
interfere with the sentence.

2.29 The Court, with respect, misdirected itself in not having a material
appreciation for the evidence of Captain Mangena as to the reconstruction
of the crime scene, particularly in relation to the size of the toilet cubicle,
the fact that the deceased was standing and facing the toilet door when the

25

26

Ibid at para [39].

Ibid at para [49].

14
accused fired the first shot, and the use by the accused of very lethal
ammunition and the severe effect it had when striking the flesh of the
deceased.

2.30 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas the Supreme Court of Appeal made it patently
and repeatedly clear that "one really does not know what his explanation is
for having fired the fatal shots", 27 which the accused again in sentencing

afresh proceedings failed to explain to the Court, thereby failing to take the
Court into his confidence.

2.31 Although the Court took into account and indicated that it weighed heavily
with the Court that the accused tried to approach the Steenkamp family
after his release, the Court, with respect, failed to take into consideration
that such happened only two months before re-sentencing. The accused
did not approach the Steenkamp family prior to that.

2.32 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas Prof. Scholtz mentioned in his report that the
accused took the life of the deceased "without intending to do so". 28 The
fact remains, with respect, that the accused had intention to kill a human
being.

2.33 We respectfully repeat our argument that the accused has failed to show
remorse for his actions and that he intended (dolus eventualis) to kill a
human being. It remains our respectful submission that this is the type of
remorse that courts would recognise - not, with respect, the regret of
having killed one's girlfriend by "mistake".

27

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) at paras
[17], [49], [53].
28
See the Report by Dr. Scholtz at p. 28 I. 761 (Exhibit "Sa").

15
2.34 The Court, with respect, misdirected itself in finding that the accused has
genuine remorse, whereas the report of Ms. T L Bayi, a counselling
psychologist of the Department of Correctional Services, dated 15 June
2015 (which report formed part of the evidence of Prof. Scholtz), indicates
that the accused "explains that he fails to identify himself as having

committed a crime as his intentions were to protect the victim."

2.35 The Court correctly, with respect, rejected the evidence of Prof. Scholtz
that the accused's position has deteriorated to such an extent that he
requires hospitalization and correctly found that the accused must have
lied with regard to the incident of the hanging by a fellow inmate.
Therefore, the Court should have rejected the view expressed by the
witness that the accused would not be able to testify. This in fact confirms
the accused's unwillingness to be truthful, and indeed, to take the court
into his confidence.
2.36 The accused's failure to testify ought to have been a major factor that
should have been taken into account on the question of whether the
accused has genuine remorse. We respectfully submit that the conviction
on murder required that the accused evince true remorse before court.

2.37 The Court, with respect, misdirected itself in underemphasising the trite
principles that "before a court can find that an accused person is genuinely

remorseful, it needs to have a proper appreciation of, inter alia: what

motivated the accused to commit the deed; what has since provoked his or
her change of heart; and whether he or she does indeed have a true
appreciation of the consequences of those actions", and that there is "a
chasm between regret and remorse.

Many accused persons might well

regret their conduct, but that does not without more translate to genuine
remorse." 29

29

S v Matyityi 2011 (1) SACR 40 (SCA) at para [13].

16
2.38 Our ineluctable submission, with respect, is that the Court materially
misdirected itself in underemphasising the trite principle that with no known
answer to the question why the accused committed the crime, "the
accused is at risk of appearing to have acted without reason and to
deserve the harshness which accompanies wanton criminality which is
executed without anything which reduces moral reprehensibility.

An

accused assumes some risk by failing to testify in that there is then often a
preclusion of opportunity to give an answer to that crucial question." 30

2.39 The Court, with respect, misdirected itself and/or overemphasised the
possibility of rehabilitation of the accused in finding that "the accused is a
good candidate for rehabilitation", whereas "seeds of rehabilitation can, in

a manner of speaking, germinate only if the convicted person him/herself

has,

first

and foremost,

expressed

contrition

for his/her criminal

wrongdoing, thereby accepting the gravity of the criminal act of which

he/she has been convicted'. 31 We, in any event, respectfully argue that

rehabilitation is possible during a substantial period of imprisonment.

2.40 We

respectfully

submit

that

the

Court

misdirected

itself

in

underemphasising the trite principle that to focus on the well-being of the

accused at the expense of the other aims of sentencing, namely
retribution, deterrence and the interests of the community and that of the
victim, is to distort the process and to produce a warped sentence. 32

2.41 We furthermore respectfully submit that the Court misdirected itself in

underemphasising the

trite

principle that to elevate the

personal

circumstances of the accused above that of society in general and the

30

5 v Martin 1996 (1) SACR 172 (W) at 176j-177c.

5 v Dyantyi 2011 (1) SACR 540 (ECG) at para [26]. See also, 5 v Van Rensburg 2015 (1)
SACR 114 (NCK) at para [7].
32
5 v Lister 1993 (2) SACR 228 (A) at 232h; 5 v 50 2015 (2) SACR 363 (SCA) at para [18].
31

17
victim or the victim's family in particular "would not serve the wellestablished aims of sentencing, including deterrence and retribution. 1133

2.42 The Court, with respect, misdirected itself in underemphasising the trite
principle enunciated by the Supreme Court of Appeal in S v Vilakazi,
namely: "In cases of serious crime the personal circumstances of the
offender, by themselves, will necessarily recede into the background.

1134

2.43 We respectfully submit that the Court misdirected itself in overstating the
personal circumstances of the accused whilst underemphasising the
personal circumstances of the deceased and the seriousness of the
offence of murder, as well as in underemphasising the fact that life was the
most valuable asset of the deceased, which was taken away from her, and
the fact that the resort by the accused to the use of his firearm and the
killing of the deceased was gratuitous and too readily done. 35

2.44 The Court misdirected itself in giving too little or no weight to the fact that
the deceased was an innocent victim of a needless serious crime, and
indeed, that the deceased's right to life was needlessly taken from her. We
reiterate the Court's view that murder is always a very serious crime and
the fact that the accused thought that it was an intruder does not make the
crime less serious. We submit, with respect, that insufficient weight was
given to the fact that the accused's immediate and unnecessary resort to
gun violence to kill the person behind the toilet door, was, without more,
indicative thereof that the accused flagrantly disregarded the sanctity of the
life of a human being, and indeed, that the accused regarded such life as
cheap or of little or no value; a fortiori where the accused "gambled' with
the life of such person, reckless to the consequences.

33
34

35

5 v Ro and Another 2010 (2) SACR 248 (SCA) at para [20].

2009 (1) SACR 552 (SCA) at para [58].
Compare, 5 v Combrink 2012 (1) SACR 93 (SCA) at para [22].

18
2.45 We respectfully submit that the sentence imposed demonstrates that the
Court gave too little or no weight to the fact that the deceased had
nowhere to hide in the small toilet cubicle when the shots fired by the
accused ripped through her flesh.

2.46 The Court, with respect, underemphasised the trite principle, as reaffirmed
by the Supreme Court of Appeal in Hewitt v The State, that "[s]crupulous

care must be taken not to over-emphasise the appellant's personal

circumstances without balancing those considerations properly against the
very

serious

nature

of

the

crimes

committed;

the

aggravating

circumstances and the consequences for the victims and the interests of
society. "36

2.4 7 We respectfully argue that the sentence is shockingly inappropriate and

that the Court misdirected itself in underemphasising the principle
expressed by Bosielo JA in Director of Public Prosecutions, North

Gauteng v Thabethe, namely: "It is trite that one of the essential

ingredients of a balanced sentence is that it must reflect the seriousness of
the offence and the natural indignation and outrage of the public. "37

2.48 The Court, with respect, misdirected itself in finding that "the accused is a

good candidate for rehabilitation

and that the other purposes of

punishment, although important, ought not to play a dominant role in the

sentencing process", whereas the trite principle is that "[s]erious crimes will
usually require that retribution and deterrence should come to the fore and
that the rehabilitation of the offender will consequently play a relatively
smaller role." 38

36
37

38

(637/2015) [2016] ZASCA 100 (9 June 2016) at para [11].

2011 (2) SACR 567 (SCA) at para [20].
S v Swart 2004 (2) SACR 370 (SCA) at para [12].

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2.49 The Court misdirected itself in underemphasising the trite principle that "[i]t
is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that
Courts impose, and it is not irrelevant to bear in mind that if sentences for
serious crimes are too lenient, the administration of justice may fall into
disrepute and injured persons may incline to take the law into their own
hands." 39

2.50 It is our respectful submission that the Court misdirected itself in

underemphasising the trite principle that "the element of deterrence in the
sentencing process is a material factor in the community's perception of
justice and legal convictions."40

The emphasis, in this regard, must

necessarily be on the killing of a human being who was behind a toilet door
and who presented no danger to the accused, as well as on the fact that
the accused formed an intention to shoot in the bedroom and when he
reached the bathroom he immediately did so.

2.51 We respectfully submit that the court underemphasised the trite principle
that "[t]aking the life of a fellow human being is always a serious offence
which leads to outrage and demands heavy punishment."41

2.52 We furthermore respectfully submit that the Court's material misdirection in

failing to grade the degree of dolus eventualis would warrant interference
with the sentence on appeal.

3.
The sentence of six years' imprisonment on the murder charge, with respect,
attracts the epithets "shocking", "startling" and "disturbingly inappropriate", having
39
40

41

R v Karg 1961 (1) SA 231 (A) at 236A-B.

S v Mnisi 2009 (2) SACR 227 (SCA) at para [19].
S v Thathana 2008 (1) SACR 494 (W) at 495g.

20
regard to the objective gravity of the crime and the interests of society and those
of the victim and the victim's family, which outweigh the personal circumstances
of the accused in a case of this nature where the elements of retribution and
deterrence predominate, and when the benchmark which the legislature has
ordained in Act 105 of 1997 is taken into account.

4.
We respectfully submit that the sentence of six years' imprisonment does not
adequately reflect the seriousness of the crime of murder and the natural
indignation and outrage of the public.

5.

In

conclusion,

we respectfully submit that the sentence

of six years'

imprisonment, in all the circumstances, is disproportionate to the crime of murder

committed in casu, that is to say, shockingly too lenient, and has accordingly
resulted in an injustice and has the potential to bring the administration of justice
into disrepute.

6.

PLEASE TAKE NOTE that this application was drafted without having had the
benefit of a signed judgment by this Honourable Court.

SIGNED and DATED at PRETORIA on this the 21st day of JULY 2016.

GC NEL (with him A Johnson and D Broughton) on behalf of applicant.