THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE
CASE NO 598/2006

In the matter between

OSWALD DISSEL

Appellant

And

THE STATE

Respondent

Coram:
Farlam, Van Heerden JJA and

Kgomo AJA

Date of Hearing:
17 AUGUST 2007

Date of Delivery:
28 September 2007

Summary: Criminal law – Conviction and sentence – murder – 15 years’
imprisonment – whether appellant acted in self-defence – substantial and compelling
circumstances justifying imposition of lesser sentence than prescribed minimum –
sentence imposed by High Court set aside and appeal and sentence imposed by
regional magistrate reinstated.

Neutral citation: This Judgment may be referred to as Dissel v
The State [2007] SCA 125 (RSA)

KGOMO AJA:
[1] In May 2004 the appellant, then aged 39 years, was charged in the
Graaff-Reinett Regional Court on a charge of murder, read in conjunction with
the provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of
1997 (the Act).  He pleaded not guilty, but was ultimately convicted as
charged on 22 July 2005.  He was sentenced to 15 years’ imprisonment, five
of which were conditionally suspended.  He appealed against the conviction
only to the Eastern Cape High Court.

[2] Before the High Court the State sought, by way of a point in limine, to
have the sentence declared a nullity and set aside and to have the appellant
committed to the High Court for sentencing as contemplated in s 52(1)(b)(i) of
the Act.  The State contended that the regional magistrate should have found
the appellant guilty of planned or premeditated murder.  Thus, according to
the State, the matter fell within the ambit of s 51(1), read with part 1 of
schedule 2, of the Act and was beyond the Regional Court’s sentencing
jurisdiction.

[3] The High Court refused the State’s request mainly on the ground that it
was impermissible for the State to seek, by way of a point in limine, to appeal
on a question of law or against sentence without complying with the
requirements of ss 310 and 310A of the Criminal Procedure Act 51 of 1977.
The High Court dismissed the appeal against conviction.  However, exercising
its inherent powers, and after giving due notice to the parties, the High Court
increased the appellant’s sentence to 15 years’ direct imprisonment  (see eg,
S v Kirsten 1988 (1) SA 415 (A) at 421F).  In effect, the 5 years’ suspended
portion of the sentence imposed by the regional magistrate was deleted.  With
the leave of the High Court, the appellant now appeals against the conviction
and sentence.

[4] In argument before us regarding the conviction, counsel for the
appellant argued that he was guilty only of assault with the intent to do
grievous bodily harm because he had exceeded the bounds of self-defence.
However, counsel was constrained to concede that the appellant was guilty of
murder on his own version.  He urged upon us to accept the appellant’s
version, and interfere with the sentence imposed by the High Court.  Counsel
for the State submitted that the appellant’s version was contrived and fell to
be rejected as false.  It is therefore necessary to deal in some detail with the
merits of the case because the version which the court accepts will have a
bearing on the appropriate sentence.

[5] The deceased, Dick Swartz, a teacher, had been married to his former
wife, Phyllis Swartz (born Koeberg), for about nine years when they divorced
in August 2002.  During about April 2003 the appellant became involved in a
relationship with the deceased’s ex-wife.  It was common cause that the
appellant played no part in the breakdown of the deceased’s marriage to Mrs
Swartz.

[6] On the fateful day, Monday 23 June 2003, the deceased was walking
along Breë Street, Graaff-Reinet, in the company of his cousin Anthony
Swartz, on the way to ‘Aunt Mollie’s’ house at 11 Breë Street.  The house
situated at 25 Breë Street used to be the matrimonial home of the deceased
and Mrs Swartz.  Anthony Swartz testified that he and the deceased were
outside house No 25 when they encountered the appellant in his vehicle.  The
appellant stopped the vehicle of his own accord when he reached them.
There was a conversation between the appellant, who remained seated in his
vehicle, and the deceased.  Nothing untoward happened at that stage; the
deceased was not armed with a knife and no fight or stabbing incident
occurred between the appellant and the deceased.  After the appellant had
driven off, he (Anthony Swartz) and the deceased went to Aunt Mollie’s house
where they sat on the steps leading up to the verandah or on the verandah
and drank beer.

[7] On the other hand the appellant testified that the first encounter
between himself and the deceased that day took place in Breë Street about
100 metres from the gate of house No 25.  The deceased, who was with
Anthony Swartz, stopped him.  There was a brief but non-confrontational
conversation which terminated with the deceased telling him that he had an
axe to grind with him.  (‘Hy het `n appeltjie met my te skil’.)  They parted on
that note.  The appellant was on his way to Mrs Swartz’s house at that time
because she had asked him to collect her and the deceased’s eleven year old
daughter for some extra-mural school activity.

[8] According to the appellant, as he was reversing his vehicle out of the
yard of house No 25, the deceased approached the car and, without saying
anything, began stabbing at the appellant through the driver’s window.  Mrs
Swartz had apparently warned him of the deceased’s approach.  The
appellant later pointed to a hole low down in the back-rest of the seat of his
vehicle as having been caused by the deceased.  The magistrate found it
highly improbable that the appellant could have leaned out of the way of the
knife, as he demonstrated.  Mabel Japhta, a State witness, denied that this
initial stabbing incident had ever occurred.  The magistrate and the High Court
found that the stabbing incident described never happened and was a
fabrication by the appellant to somehow try to justify the next encounter which
proved fatal.  I cannot fault this conclusion.

[9] According to another State witness, the deceased’s brother Johnny
Swartz,  he had co-incidentally met Mrs Swartz at Clicks on the afternoon in
question (after the appellant had dropped her off in the town) and she had
warned him, that ‘ek moet my broer Dick keer want Ossie [the appellant] gaan
hom seermaak’.  Mrs Swartz, who testified in the appellant’s defence,
admitted the encounter at Clicks and her cordial relationship with Johnny
Swartz, but denied that she uttered the words ascribed to her by him.  The
latter’s evidence was simple, brief and straight to the point.  He was not
discredited under cross-examination.

[10] As regards the encounter between the appellant and the deceased
which led to the latter’s death, the state witnesses Anthony Swartz, Johnny
Tromp, Bertus Marlow and Grace Somana between them testified that the
appellant was armed with a long knife.  Having entered Aunt Mollie’s yard, he
ran towards the deceased who, on seeing him, fled with the appellant in
pursuit.  The deceased slipped and fell on the flight of steps leading up to
Aunt Mollie’s house.  The appellant then stabbed him repeatedly.  The
deceased remained sprawled on the steps and later bled to death.  The post–
mortem examination report, compiled by Dr Willem Pieterse,  revealed nine
stab wounds.

[11] Three of the witnesses mentioned in para 10 denied, as suggested to
them by the defence, that the deceased exited Aunt Mollie’s premises to
accost the appellant.  They all testified that the appellant returned to Breë
Street, stopped his vehicle at Aunt Mollie’s gate (on the wrong side of the
road), alighted from the vehicle, entered the yard through the gate and ran up
to the deceased.  Grace Somana and Johnny Tromp also testified that, after
getting out of his car, the appellant swore at the deceased and shouted that
he should repeat what he had said earlier on, or words to that effect.  Each
one of them observed the events from a different vantage point.

[12] The appellant’s version on how and why he arrived on the scene of the
fatal stabbing is that, when he dropped Mrs Swartz in town that afternoon, she
had asked him to drive past her house (No 25 Breë Street) to check whether
the deceased had not damaged it in some way.  On his way back to Breë
Street, he picked up his friend, Mr Koeberg.  They drove back to Mrs Swartz’s
house.  As they were passing Aunt Mollie’s gate, the deceased unexpectedly
emerged from the gate and darted in front of the appellant’s car with a knife in
hand.  The appellant slammed on his brakes to avoid running the deceased
over.  In the process the car’s engine stalled.  The deceased then wordlessly
started stabbing at him again, but did not succeed in stabbing him.

[13] According to the appellant, after stopping his vehicle he opened the
driver’s door and rammed it into the deceased.  He grabbed a pocket knife

which he used to cut biltong and which was in his vehicle, and got out of the
vehicle.  The deceased again ran at the vehicle and stabbed at him
repeatedly, but managed to miss him altogether.  The deceased then turned
and ran back through the gate, with the appellant in pursuit.  He stumbled and
fell on the stairs leading to the verandah.  The appellant then stabbed the
deceased repeatedly, including while the latter was lying on his back.  He then
walked off the property and threw his pocket knife away when he saw it had
blood on it.  He drove to the local police station to lay a charge of attempted
murder against the deceased.  It was while doing so that he heard of the
deceased’s death.

[14] It should be noted that the appellant changed the details of his version
several times.  Both the magistrate and the High Court rejected the
appellant’s version on the aforegoing aspects as not being reasonably
possibly true, pointing out that it was not supported either by the objective
evidence or by the evidence of the other eye-witnesses.  Thus, for example,
no knife was found on the deceased or anywhere near him.  Moreover, the
appellant’s knife was also not found, although the police searched for it.  The
deceased suffered grievous knife wounds, losing more than 50% of his blood,
while the appellant was totally unharmed.  The deceased was also heavily
under the influence of alcohol, as revealed by his blood alcohol count, and as
a result in all probability not in a physical state to fend off a knife attack.

[15] Both courts dealt with some discrepancies in the state witnesses’
evidence but regarded them as immaterial or even understandable.  Because
of the overwhelming weight of evidence against the appellant and his
fabricated evidence, I find it unnecessary to deal with these inconsistencies.
In any event the magistrate accepted the eye witnesses’ evidence that the
deceased was unarmed; was accosted and attacked by the appellant on Aunt
Mollie’s premises; that the appellant was the aggressor and at no stage acted
or was called upon to act in self-defence.

[16] From what had gone before the regional magistrate and the High Court
concluded that the appellant had not gone to check on the state of Mrs
Swartz’s house, but that he was in fact looking for the deceased to harm him.
This conclusion is, in my view, correct.

[17] The High Court found that the magistrate had misdirected himself by
finding that there were substantial and compelling circumstances warranting a
sentence of less than the prescribed minimum of 15 years.  According to the
High Court the magistrate, having rejected the appellant’s version as not
reasonably possibly true at the conviction stage, erred in finding that
provocation by the deceased was a substantial and compelling circumstance.
It was for this reason that the High Court interfered with the Regional Court’s
sentence and imposed a sentence of 15 years’ direct imprisonment.  I am
satisfied that the appeal against the appellant’s conviction has no merit and
must accordingly fail.  The appeal against sentence is, however, a different
matter.

[18] Counsel for the State submitted that no substantial and compelling
circumstances existed and that the regional magistrate was not justified in
imposing a lesser sentence than the prescribed minimum period of 15 years.
On the other hand, counsel for the appellant contended that the High Court
was not justified in interfering with the trial court’s sentence because no
misdirection on the part of the latter court was shown to have been
committed.

[19] In State v Kibido 1998 (2) SACR 213 (SCA) at 216g-j this Court stated:
‘Now, it is trite law that the determination of a sentence in a criminal matter is pre-eminently a
matter for the discretion of the trial court.  In the exercise of this function the trial court has a
wide discretion in (a) deciding which factors should be allowed to influence the court in
determining the measure of punishment and (b) in determining the value to attach to each
factor taken into account (See S v Fazzie and others 1964 (4) SA 673 (A) at 684A-B, S v
Pillay 1977 (4) SA 531 (A) at 535A-B).  A failure to take certain factors into account or an
improper determination of the value of such factors amounts to a misdirection, but only when
the dictates of justice carry clear conviction that an error has been committed in this regard (S
v Fazzie and others (supra) at 684B-C; S v Pillay (supra) at 535E).

Furthermore, a mere misdirection is not by itself sufficient to entitle a court of appeal to
interfere with the sentence; it must be of such a nature, degree, or seriousness that it shows,
directly or inferentially, that the court did not exercise its discretion at all or exercised it
improperly or unreasonably (see Trollip JA in S v Pillay (supra) at 535E G)’.

[20] The evidence reveals that there had been longstanding rivalry and
animosity between the appellant and the Swartz family.  First, some members
of the Swartz family had attempted to acquire the tavern now owned by the
appellant from its previous owner but appellant had apparently outsmarted
them.  This did not go down well.  Secondly, the Swartz family disapproved
very strongly of a relationship between the appellant and one of the younger
women in the Swartz family.  Thirdly, the appellant commenced a  relationship
with the deceased’s wife after they had gone through what appears to have
been a fairly acrimonious divorce following a stormy marriage.  This did not
help the already strained relationship.  Fourthly, there was an altercation
between the deceased and the appellant (testified to by Mabel Japhta) when
the appellant collected Mrs Swartz and the deceased’s daughter from their
home in Breë Street that afternoon.

[21] The regional magistrate further found that something offensive must
have been said or done by the deceased to the appellant on the fateful day to
have put the latter into a rage.  This must be so having regard to: (a) Mabel
Japhta’s aforesaid evidence of a heated exchange between the two of them
earlier that afternoon; (b) the evidence of the appellant that the deceased had
said to him that he had an axe to grind with him; (c) Mrs Swartz’s warning to
Johnny Swartz that very afternoon to control the deceased because otherwise
the appellant would harm him; and, (d) the evidence of Johnny Tromp and
Grace Somana that the appellant challenged the deceased to repeat what he
had said earlier. The appellant was certainly not an angel.  He had assaulted
and molested Mrs Swartz on several occasions during their marriage as a
result of which she obtained several interdicts against him.  This could not
have helped to allay an already tense situation and would have merely served
to worsen tensions and emotions.

[22] Whilst the appellant has several previous convictions, none of them
involved violence.  In addition his last previous conviction was already some
seven years old when the murder was committed.

[23] I am not persuaded that the magistrate misdirected himself in any way
in imposing sentence.  To my mind, the High Court erred in so finding.  There
is no evidence that the murder weapon, irrespective of its size, was
specifically fetched elsewhere by the appellant to commit the crime and had
not been in the vehicle all along.  The possibility cannot be excluded that the
appellant merely wanted to harm (‘seermaak’) the deceased.  As the
magistrate puts it:  ‘dat die gebeure die dag die laaste strooi was, dat iets
uitgehaak het, dat beskuldigde totaal beheer verloor het’.

[24] A careful reading of the magistrate’s reasons for imposing sentence
reveals that he took all relevant factors alluded to and others not pertinently
mentioned here properly into account.  I am not convinced that there were no
substantial and compelling circumstances, nor am I persuaded that the
sentence imposed by the magistrate was so lenient as to call for its increment.

[25] The following order is made:

1.
The appeal against conviction is dismissed.

2.
The appeal against sentence succeeds.  The sentence imposed by the
High Court is set aside and substituted with the following:

‘The accused is sentenced to 15 (fifteen) years’ imprisonment, of which
5 (five) years is suspended for a period of 5 (five) years on condition
that he is not convicted of murder, attempted murder or culpable
homicide (involving violence) committed during the period of
suspension.’

3.
In terms of s 282 of the Criminal Procedure Act 51 of 1977 the
sentence is antedated to 23 August 2005.

_____________________
F D KGOMO
ACTING JUDGE OF APPEAL

CONCUR:
)
FARLAM JA

)
VAN HEERDEN JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
September 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal.

OSWALD DISSEL v THE STATE

The Supreme Court of Appeal today dismissed the application for
leave to appeal against conviction brought by the appellant, Mr
Oswald Diessel, but upheld his appeal against sentence.  The
appellant had been convicted in the Graaff–Reinett Regional Court
of the murderer of his girlfriend’s ex-husband and was sentenced
to 15 years imprisonment, five of which were conditionally
suspended.  The Eastern Cape High Court had, on appeal to it,
confirmed the conviction but increased the sentence to an effective
15 years imprisonment, after due notice to the appellant.

In dismissing the application for leave to appeal to the SCA against
the conviction, the SCA pointed out that the conclusions reached
by the regional magistrate, with which the High Court agreed, were

based largely on factual findings depending on the credibility of
various witnesses who testified during the trial, including the
appellant.

In upholding the appellant’s appeal against sentence the SCA
pointed out that a careful scrutiny of the regional magistrate’s
reasons for imposing the sentence that it did reveal that he took all
relevant factors pertaining to sentence into account and that the
High Court erred in having found that no substantial and
compelling circumstances existed.  The SCA accordingly re-
instated the regional magistrate’s sentence (Suspending five of the
15 years imprisonment).