IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CA NO. 129/05
In the matter between:
SAMSON TAUNYANE Appellant
and
THE STATE Respondent
FULL BENCH APPEAL
HENDRICK J, GURA J & TLHAPI AJ
MAFIKENG
DATE OF HEARING : 09 September 2005
DATE OF JUDGMENT : 24 November 2005
COUNSEL FOR THE APPELLANT : Adv. C. Zwiegelaar
COUNSEL FOR THE STATE : Adv. G.S. Maema
JUDGMENT
GURA J:
Introduction
[1] I am looking forward to a day, on this planet, when all parties
to a marriage or love relationship, will remain faithful to each
other. When that day does dawn, then cases such as the
present one will be rare in courts of law. This matter
revolves around the rails of a love triangle.
[2] On 14 March 2000, before my brother Khumalo J, the
appellant, hereinafter referred to as the accused, was
convicted of murder, on his plea of guilty and sentenced to
thirty five (35) years imprisonment of which fifteen (15) years
imprisonment were suspended on appropriate conditions.
The present appeal is directed against sentence.
Factual Background
[3] During 1980 the accused fell in love with Josephine Mothupi
(“Mrs Taunyane”) and in 1983 they got married to each
other. The marriage was blessed with two children, a girl
and a boy, born 1984 and 1987 respectively. The accused
was a member of the defence force whilst his wife was a
member of the police force. Their common home was at
Motlhabeng where they lived harmoniously.
[4] Mrs Taunyane was a captain by rank and a station
commissioner of Mafikeng Police Station. Although she
worked primarily day shifts, but time and again she visited
the police station at night. On these visits during the night,
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the accused would accompany his dear wife as a token of
love and moral support.
[5] Every morning the children left first for school. Then followed
the defence force bus which ferried the accused to work.
Mrs Taunyane was always the last to leave. The deceased
in this case was Mrs Taunyane’s colleague and he would
often fetch her from her house with his car to go to work. He
was a captain .
[6] A Wednesday towards the end of 1996 is a day the
Taunyane family will not like to remember. Normally, on
Wednesdays, it was a sports day at the defence force. As
he was waiting for his bus at the bus stop, the accused
realised that he had forgotten his tracksuit at home. He
walked back to fetch it, unbeknown to him that he was in a
for a big surprise.
[7] The deceased’s car was parked inside his (accused’s) yard.
This was nothing new because he normally parked there
when he came to fetch Mrs Taunyane. The sitting room door
was not locked. He entered to find his wife and the
deceased in the main bedroom, on the bed, both naked,
making love. The accused was angry as a result of this
discovery but he managed to control himself. He just left
without a word and without taking the tracksuit. He hitch
hiked to work.
[8] When he arrived at the military base, he complained to the
Chaplain who then advised him to report to his parents. He
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could not work that day because of grief and shock. He was
consequently released from work. He reported to his
mother. In the evening, he discussed the incident with his
wife. She apologised and he forgave her. Peace prevailed
once more in their family.
[9] In 1997, whilst he was waiting at the bus stop, he saw the
deceased’s car passing. He became suspicious and walked
back to his house where he found the deceased’s car, this
time parked outside the yard. Fortunately, the kitchen door
was not locked. He found the deceased seated on his bed in
the main bedroom. His wife was just from the bathroom and
she was busy smearing her body with cream. The deceased
then told Mrs Taunyane that it was late and they should go.
The accused wanted to fight him but he was sure that he
was going to loose the fight as he was afraid of the
deceased. Again the accused left without a word.
[10] This last event dealt a fatal blow to the love and harmony
which prevailed between the accused and his wife.
However, they continued to stay together. She started to do
more of special duties after working hours. This included
weekends. Subsequently, he realised that the alleged police
special duties after working hours and over weekends, were
no police special duties at all but rather special duties in kind
at the deceased’s house, in the deceased’s bedroom.
[11] He confronted his wife about her movements and he got
what he did not bargain for when she told him that she could
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not breakup her love affair with the deceased who was the
father of her children. Up to that stage, the accused knew
that his wife’s two children were his natural children. Mrs
Taunyane, however, brought one child into the marriage who
is not the accused’s natural child.
[12] Subsequent to that, he was arrested about twice, on false
allegations of assault by his wife. In August 1998 they
divorced. He left his former wife and children in their
common home and went to stay somewhere. On Christmas
day that very same year he went to his former house to find
the accused busy drinking liquor. He asked him what he
wanted there whereupon the deceased told him that Mrs
Taunyane was no longer his wife. A fight ensued between
the two but the accused ran away.
[13] In January 1999 Mrs Taunyane applied for a domestic
violence order to restrain the accused from troubling her.
This application was however refused by the prosecutor. In
February 1999 she and her children had moved to stay at
Montshiwa. He went there in order to get his post. The
deceased found him there and hit him with a clap. He left.
[14] On 15 March 1999 the accused underwent surgery on his
knee where a patella was removed. On 20 March 1999, at
Game Shopping Centre, he saw one of his children in a car.
He went to that car and asked the child whose car it was. He
was told that it belonged to the deceased. The deceased
subsequently emerged, drove off suddenly, causing the
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accused to fall down on his ailing knee. This hurt him very
much because he said he still “loved my wife as well as my
children and I did not want to be separated from them”. This
incident occurred around 12h00. He became so furious with
the deceased that he decided that the time had come to deal
with him.
[15] In the evening of that very same day at about 23h00, he took his loaded firearm and proceeded to the deceased’s house at Riviera Park. He found him in the bathroom busy bathing with his former wife. Through an ajar window, he fired several shots to the deceased, fatally wounding him.
The Submissions
[16] On appeal, counsel for the accused criticised the trial judge
for paying lipservice to the factual background of the case,
especially the emotional condition of the accused at the time
of the killing. It was argued that the accused was subjected,
not only to severe provocation but also to a feeling of
“suspicion, anxiety, frustration, distress, pain, humiliation and
resentment”. Apart from the aforesaid, (so runs the
argument) the accused had to endure the “humiliation and
pain of being belittled, insulted, threatened, intimidated,
assaulted and detained” by the deceased on false
allegations by Mrs Taunyane.
The Law
[17] This court, as a court of appeal will not lightly interfere with
the discretion of the trial court in regard to sentence. There
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are two grounds upon which this court may interfere:
(a) Where there is a misdirection on the part of the trial
court and/or,
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(b) Where there is a glaring disparity between the
sentence imposed and the one which this court would
have imposed (S v Anderson 1964 (3) SA 494 (A) at
495; S v Malgas 2001 (1) SACR 469 (SCA) at 478 D
H)
[18] Our courts have consistently held that where death occurs
because of jealousy or anger as between lovers, this is a
crime of passion due to the emotional condition in which the
guilty party finds himself (herself). Depending on the facts of
each case, such conflict situation gives rise to a mitigating
factor. See S v Meyer 1981 (3) SA 11 (A) at 16 G where it
was said that:
“ń Mens het in die onderhawige geval te doen met ń verhoudingprobleem van twee persone, ʼn verhouding wat aanleiding kon gee tot emosionele konflikte en uiteindelik tot ń gewelddadige reaksie. In hierdie soort van saak ……. is die motief vir die dood te vinde …….. in ń geestelike konfliksituasie”.
A death sentence was substituted with eight years
imprisonment on appeal.
[19] The decision in S v Meyer, supra, was applied in S v Shoba
1982 (1) SA 36 (AA). At page 41A of the judgment Botha
AJA posed a question:
“Waarom vermoor ń minnaar sy minnares? Volgens
algemene menslike ervaring gebeur dit meestal as gevolg van
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ń emosionele konfliksituasie van die aard wat deur die
HOOFREGTER bespreek is in S v Meyer 1981 (3) SA 11
(A) te 16G – 17B. Dit is natuurlik nie noodwendig altyd
so nie, maar die blote bestaan van ʼn liefdeverhouding
bevat al klaar ń inherente waarskynlikheid wat in
daardie rigting dui, en dit moes die verhoorhof op sy
hoede geplaas het om die omstandighede van die
aanranding van naderby te beskou”.
The Appeal Court set aside the death sentence and
substituted it with a term of imprisonment of twelve years.
This decision was quoted with approval in S v Rammutla
1992 (1) SACR 564 (BA). In the latter case, the accused
stayed with his lover for more than a year. A week before
the murder, she packed her things, left the accused to go
and stay with her aunts. The accused arrived where she
was staying and the new boyfriend of the deceased hit him
with an iron rod on the mouth as a result of which he bled.
The accused instead hit his lover to death with an iron rod.
The death sentence was substituted with twelve years
imprisonment on appeal.
[20] The present case differs from S v Meyer, S v Shoba and S
v Rammutla, supra, in that the deceased was not the
accused’s spouse or lover or his former spouse or lover.
However, such a situation was considered in S v Khwela
2001 (1) SACR 546 (NPD) where it was held that the
emotional conflict situation and consequently the emotional
disturbance that may result from a broken love relationship,
may well have a bearing upon the state of mind of the injured
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party who kills his exlover’s new lover. It is important to
note, however, that in Khwela’s case, the deceased never
contributed to the break down of the love relationship
between the accused and his wife. The deceased fell in love
with that lady after her marriage with the accused had hit the
rocks. He was sentenced to twenty two years imprisonment.
The present case
[21] The deceased was the cause of the irretrievable break down
of the marriage between the accused and his wife. He was
cheeky and spiteful. Despite the fact that he knew that Mrs
Taunyane was married, he insisted on visiting her at her
house in defiance of her husband (the accused). He must
have realised that the accused was afraid of him. After
causing the collapse of this marriage, he moved in to stay
with Mrs Taunyane at her house; the former house of the
accused. The conduct of the deceased, clearly, is that of a
man who authored his own misfortune.
[22] In his judgment on sentence, Khumalo J, considered the
incidence of crime in this country and the proliferation of
firearms, the circumstances surrounding the commission of
the crime, including the fact that the deceased was the
source of all evil in the accused’s house, the fact that the
accused pleaded guilty as well as the anger suffered at the
Game Centre on the day of the killing. The trial Judge was
convinced that under the circumstances, imprisonment for
life would be unjust (Section 51 (3) (a) of Act 105 of 1997).
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The trial court decided, in its own wisdom, that a lengthy type
of custodial sentence was called for.
[23] I have great sympathy for the accused. Firstly, because his
marriage of fifteen years broke up because of the deceased;
secondly, because he has to serve a jail term for this crime.
However, it appears that the accused never accepted that
Mrs Taunyane was no longer his wife. He knew that he
would not be welcomed at her residence because of the bad
blood between them. The divorce action was finalised in
August 1998. On Christmas day of that year he went to his
former house. Subsequent to that he went to Montshiwa to
a house where his former wife, her children and the
deceased were staying. Then at Game Centre he went to a
car in which his child was. He knew or foresaw that
whenever he went to the deceased, there would be no
peace. It is rather with an air of disbelief to hear the
accused, seven months after his divorce, saying that he still “loved my wife as well as my children and I did not want to be
separated with them”. The costly mistake he made, was to
regard Mrs Taunyane as his wife even months after the
divorce.
[24] The killing of the deceased was very carefully planned and
clinically executed with military precision. In my view, in
crimes of passion such as the present, we must guard
against an OpenSesame approach, that where the killing is
between lovers or spouses then the accused must always be
treated leniently. In this regard I endorse the remarks of
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Niles – Dunér J in S v Khwela, supra, at 548 I to 549 C:
“Whilst the facts of a particular case may be such as
to result in a diminution of his blameworthiness, I am
of the view that the Court should be careful to guard
against the perpetuation of the oftheld
misperception that in every case where there is a
killing, consequent upon a breakup of a love
relationship, of an exlover or the exlover’s new
lover, the very existence of such a relationship alone
is sufficient for the perpetrator to be regarded in so
sympathetic a light as to justify the imposition of a
sentence upon him markedly more lenient than that
which would be imposed had the love relationship
not existed and had there been some other motive
for the killing than one connected with such love
relationship. The facts of each case should be
considered carefully, in order to determine whether
such mitigating circumstances are indeed present,
and if so, the extent to which such mitigating
circumstances should influence the severity of the
sentence to be imposed”.
[25] The accused had sufficient time to cool down from August
1998 up to March 1999. He had enough time to cool down
from 12h00 to 23h00 on the day of this incident. His moral
blameworthiness was therefore not tainted as at the time
when he pumped several bullets into the deceased’s upper
body. He had direct intent to kill. His act at that time seems
to have been directed towards revenge; revenge over a sin
which was committed more than six months ago.
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[26] For the above mentioned reasons, I am of the view that the
appeal must be dismissed. Consequently, I make the
following order:
“The appeal is dismissed”.
SAMKELO GURA
JUDGE OF THE HIGH COURT
I agree
R.D. HENDRICKS
JUDGE OF THE HIGH COURT
I agree
V.V. TLHAPI
ACTING JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE APPELLANT: Groenewald Attorneys
C/O Herman Scholtz4 Shasons Centre
Shippard StreetMAFIKENG
13
FOR THE STATE : Director of Public ProsecutionsOld Standard Bank BuildingCnr Robinson and Main Street
MAFIKENG
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