REPORTABLE
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 305/99
In the matter between
THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
TRANSVAAL
and
DEXTER ALLAN ROBERTS
Respondent
CORAM:
GROSSKOPF, MARAIS, PLEWMAN JJA
DATE HEARD:
18 September 2000
DATE DELIVERED:
29 September 2000
Sentence - murder of ex-wife by strangulation - appeal by Director of Public
Prosecutions against leniency of wholly suspended sentence of 15 years
imprisonment - mitigating circumstances present - sentence altered to 7 years
imprisonment.
JUDGMENT
MARAIS JA

MARAIS JA: [1]          A wholly suspended sentence of imprisonment of 15
years for murdering an ex-wife by strangling her is, to say the least, a highly
unusual sentence.  Disturbingly inappropriate, the product of misdirection by the
trial judge, and therefore warranting interference upon appeal says the State.
Whether that is so, is the question before us. It arises in this way.
[2]          On 23 April 1998 respondent was convicted by Grobbelaar J in the
Delmas Circuit Division of the murder of his ex wife.  On 14 May 1998 he was
sentenced to imprisonment for 15 years the whole of which was suspended for
5 years on condition, first, that he was not again convicted of any offence
involving violence committed during the period of suspension and, secondly, that
he commenced with therapy on a regular basis as directed by a particular
psychiatrist, the cost thereof to be met by respondent himself.  The  Director of
Public Prosecutions of the Transvaal considered the sentence to be unduly
lenient but the relevant member of the staff failed to make application for leave

to appeal against the sentence within the period prescribed by s 316 B of Act 51
of 1977.  On 3 August 1998 an application in which condonation of the failure
to timeously apply for leave to appeal against the sentence was sought was
signed by the Director of Public Prosecutions.  For reasons which are not
apparent from the record the application was heard on 9 November 1998 and
refused by the trial judge.
[3]          An application was made to the Chief Justice for leave to appeal against
that order and the sentence.  On 18 May 1999 it was ordered by this Court that
if the appeal against the refusal of condonation of the late filing of the application
for leave to appeal against the sentence should succeed, leave was granted to
appeal against the sentence and both appeals were ordered to be heard
conjointly.  An explanatory note accompanied the order.  It was pointed out that
no leave to appeal was required in order to appeal against the refusal by the trial
judge of condonation and that an appeal lay to this Court as of right.

[4]          The appeal against the refusal of condonation was opposed by counsel
for respondent on the ground that the appeal against the sentence had no or little
prospect of success.  It was not argued that the remissness of the relevant
member of the staff of the Director of Public Prosecutions in failing to check
what the applicable period was within which an application for leave to appeal
had to be made was of itself fatal to the success of the appeal against the refusal
of condonation.  So it was that the hearing was devoted principally to the
question of the propriety of the sentence.
[5]          Viewed objectively and in isolation the crime is an horrific one.  The
medical evidence led at the trial and respondent’s own extra-curial statements
show quite clearly that respondent seized the deceased by the throat with both
hands and then exerted very considerable sustained pressure until her eyes and
tongue protruded, blood welled from her nose, and she dropped dead from his
grasp.  Attempts made by respondent at the trial to minimise the period for which

he applied pressure to her throat and to suggest that cardiac arrest caused by
pressure unwittingly applied to the vagus nerve came to naught.  Respondent,
when faced with the consequences of what he had done, placed the deceased’s
body temporarily in a bath to enable blood which was still emanating from her
mouth to drain away and to avoid staining the carpet.  He then hid the body for
a few days in a manhole on the premises.  In the end, he dug a shallow grave
within the borders of the property and buried her there.  For nearly six months
he feigned ignorance of her whereabouts notwithstanding the distress which her
unexplained absence was causing members of her family and their own twelve
year old daughter.
[6]          When it became apparent, quite coincidentally, that some excavation
would take place which would inevitably result in the discovery of the body, he
wrote a note to his brother in which he revealed where the deceased’s body was
buried and left it to his brother to decide whether to disclose what he had told

him or whether to pave the area over so that the body would not be discovered.
Indeed, he offered to contribute R1 000 towards the paving of the area.  His
brother’s decision to disclose what he had been told led to respondent making
a confession to a magistrate.
[7]          So seen, the crime is an abhorrent one which calls for severe
punishment.  It is yet another manifestation of the scourge of domestic violence
which has become endemic in South Africa.  Yet that is not the full picture.  The
crime and the subsequent reprehensible conduct of respondent must be seen in
the context of his personal history and the tempestuous emotional relationship
which existed between him and the deceased.  To relate the history of that
relationship in all its distressing detail will serve no useful purpose.  It will suffice
to paint the picture in the broadest of brush strokes.  Respondent was 36 years
of age at the time of his trial.  He was unusually short of stature and suffered
slights and humiliation throughout his life as a consequence.  His emotional

entanglement with the deceased was intense.  She was 18 years of age when he
met her.  An intimate relationship ensued and she became pregnant.  A daughter
was born to them.  They married in 1986 after she had attained the age of 21, her
parents having been unwilling to give their consent to their marriage before then.
During 1987 the deceased became involved with one Fourie.  It culminated in
respondent divorcing her.  The deceased and their daughter commenced living
with Fourie.
[8]          Respondent established a new relationship with another woman but it
ended when the deceased left Fourie and returned to respondent.  The
reconciliation was short lived.  The deceased left respondent after only a week.
Respondent commenced yet another relationship with a woman but the deceased
returned to him yet again and put an end to the relationship.  Respondent and the
deceased married one another for the second time.
[9]          In September 1991 the deceased left the respondent again and went to

live with one Payne in Cape Town.  She took the child with her.  In December
1991 the child spent some time with respondent.  He simply refused to return her
to the deceased and in due course divorced her for the second time, obtaining
custody of their daughter at the same time.  On 15 October 1992 respondent
married another woman.  The deceased in her turn married Payne.  [10]          In
December 1992 the deceased arrived unexpectedly at respondent’s office.
Sexual intercourse took place between them.  The resumption of a relationship
with her bedevilled his relationship with his wife and culminated in him leaving her
in February 1995.  He moved to Cape Town.  The deceased succeeded in
tracking him down and again their relationship was re-established.  In April 1995
respondent returned to Gauteng and rejoined the deceased in Benoni.  In January
1996 his wife divorced him.
[11]          Not long thereafter the deceased commenced another affair.  On
Friday 16 February 1996 he told her to leave.  On Saturday 17 February the

deceased telephoned respondent’s mother to say that she would not be returning.
On Wednesday 21 February 1996 respondent arranged to meet the deceased in
order for her to hand over the keys of the cottage in which they had been living
and to make arrangements for her to collect her clothes and other belongings.
They met at the hotel at which she was accommodated that evening.
Respondent consumed two “rum and cokes” while at the hotel.  The deceased
suggested that they dine at a Chinese restaurant in Bedfordview.  Respondent
needed to change his clothes and to borrow a car from his parents so they
repaired to the cottage where he then lived.
[12]          I take up the narrative in his own words as conveyed to the forensic
criminologist who testified in mitigation of sentence on his behalf at the trial.
“While I was getting dressed at the cottage I wanted to know from Marion (the
deceased) what was going on and why she was doing this to her family.  We
started to argue.  She said that I was oversexed and I retaliated by calling her a

whore due to the extra-marital relationships that she had had over the years.  I
asked her why she destroyed my relationship with Joyce after she had promised
me that she loved me and that she really wanted me back.  She told me that she
couldn’t live with me but that she didn’t want anybody else to have me either.”
[13]          In another passage which appears in the report of the forensic
criminologist he is reported as having said:
“I strangled, out of rage, my ex-wife Marion and buried her body and tried to get
away with it.  I left my wife for Marion.  Marion wanted me to come back and
I came back and moved in with her so my wife divorced me.  In early 1996
Marion found a job.  We were having strainful (sic) times and her boss became
her lover.  She was a whore to her boss who gave her clothes and money and on
the 16th February I kicked Marion out of our common home.  She moved into
a hotel and on the 21st  February I killed her.  I loved her.  With every bit of me
I loved her.  I enjoyed making love to her but she would rather have sex outside

the marriage than with me.  Marion and I started our relationship built on good
sex but as the years wore on she used sex as a prize, a reward and at an even
later stage I had to agree to have sex every four days because she did not want
it all the time.”
[14]          When he testified at the trial he described what happened after the
deceased told him that she could not live with him, but could not allow anybody
else to live with him.
“Yes?  — As an instinctive response I called her a whore, she slapped me
in the face, I slapped her back, she slapped me again and then I grabbed
her, I started shaking her.  She was beating me with her arms on my
shoulders.  I was shaking her and shouting at her.  I accused her of not
having any, she didn’t care about her daughter, that I did love her.  I asked
her why she was doing this and the next thing I recall is a popping noise
......(intervenes)
Is a ‘popping noise’?  — Like somebody clearing their nose and she just
(makes sound).
A popping noise?  — Yes, and blood gushed out of her nose.  She went
limp and very, very heavy and I dropped her, I realized that I was actually
strangling her, I could not hold her up, and that (inaudible).
MR SMIT:     Just before she went limp, was she still reaching you.  —

It was all simultaneously, she stopped, she just went limp.  She stopped
hitting, and I could not hold her up.  It all happened together, (inaudible).
Okay she fell?  — She fell on the ground.  There was a lot of blood
coming out of her nose and her mouth.  Her extremities shook a bit, her
legs and her arms for a couple of seconds maybe.
COURT:     For a couple of minutes or second?  — A couple of seconds.
I knew I had done something terrible here, because she looked dead to
me.  I felt her pulse, there was no pulse.  There was still a lot of blood
coming from her nose and mouth.  I fetched a plastic bag from the kitchen
and I put it over her head to stop the blood.  It was pouring out onto the
carpet.  When that did not stop the blood I put her into the bath.
Yes?  — I didn’t know what else to do.  I closed the bathroom door and
I went and I, I went and I lay on my bed and I fell asleep.”
[15]          Yet another description of what occurred was given by respondent to
a magistrate on 30 September 1996.  (It was common cause that the dates which
appear in brackets in the description are the correct dates.)
“On the 13th of March 1996 (21 February 1996) it was a Wednesday.  I
phoned my ex-wife during the day to arrange to collect my keys from the
cottage.
I met her at 08:00 in the evening at the Van Riebeeck Hotel.  We had a
drink and went up to a room and she gave me the keys.  She then asked
me if we could go and have supper and I agreed to do so.
We left at about 8:15 and went to my brother’s cottage where we are

staying.  We started arguing about our relationship.  We said nasty things
to each other and started hitting each other.  I strangled her.  I just grabbed
her by the neck, I stopped strangling her when the blood came from her
nose.
It lasted about 3 to 4 minutes.  She stopped hitting and kicking.  She was
dead.  I killed her.
I put her body into the bath.
The following day at lunch time I moved her into a manhole outside the
house.  On Saturday the 16th March (24 February 1996) I buried her in a
flower bed in the garden. That’s it.”
[16]        The view of the forensic criminologist who testified in mitigation of
sentence, Dr Labuschagne, was that long-term imprisonment of respondent
would be counter-productive in his case and that non-custodial options coupled
with psychological therapy would best serve the interests of respondent and the
community.   In her written report her conclusion was expressed thus:
“It is, with respect, my opinion that this crime was caused by human
weakness.  Although there are always choices, there are, however, both
conscious and subconscious influences on those choices.  There are
many factors present that made Dexter vulnerable at the specific time of
the offences.  His motive - his reason for offending - is, when taking all his
specific circumstances into account, understandable.
He has no deep-seated desire to intentionally injure others.  Constructive
punishment - such as a medium term of imprisonment coupled with

therapeutic assistance, will enable him to, upon release, live a conventional
and law-abiding life.  A harsh sentence now will finally crush Dexter.  It
will lead to a total personality breakdown and disintegration of an already
fragile human being.  While his act cannot be excused or condoned, his
personal context, psychological circumstances and the context in which
the crime was committed need to be seriously considered.  These
problems explain and, with respect, mitigate his conduct.
Whilst offenders should be punished, there should also be mercy for
those in our society who do need help and who committed their offence
because of human frailty.  Dexter’s acts, in my opinion, stemmed from
deep-seated emotional factors which have been unresolved over time.  It
is vital that he undergoes therapy to gain more understanding into ways of
dealing and coping with his emotional life and gains skills in order to deal
effectively with life’s demands.  He requires more insight and
understanding in order to gain confidence in who he is as a person.
Society will, in the long run, not gain by a long imprisonment in this case.
It is my opinion, with the deepest respect, that constructive intervention
now will prevent Dexter from becoming a very troubled person - a liability
to his community.”
Her report, as is to be expected, centred predominantly upon the interests of
respondent which are suggested to be co-extensive with those of society in this
particular instance.  With much of what Dr Labuschagne said in her report there
can be no quarrel.  Where it falls short, in my opinion, is in its failure to accord
sufficient weight to the gravity of the crime and the need for the sentence
imposed to serve as a deterrent to other members of society who may be minded

to give vent to their frustrations by resorting to domestic violence.
[17]         Respondent was convicted of murder on the basis of dolus eventualis.
It is implicit in that finding that he did not desire the death of the deceased but
that he appreciated at the time that his throttling of her could result in her death
and that he persisted in doing so, not caring whether or not that consequence
ensued.
[18]          The desirability of therapeutic psychological treatment for respondent
and the unlikelihood that it will be available in prison was allowed to play a
significant role in the consideration of sentence.  Assigning a high priority to that
factor in the circumstances of this case was, in my opinion, uncalled for.  That
the trial judge was beset by doubts as to whether or not the sentence he intended
imposing was appropriate, is evidenced by his concluding statements.  He said:
“After careful consideration of all the facts in this case and I am coming to this
conclusion with extreme reluctance, I have decided to give you one final chance

in life.  I just hope that I am correct in coming to this conclusion.”  Later, after
imposing the suspended sentence, he said: “Now you have a few tasks ahead of
you.  You will have to show to the community that the trust which I possibly
wrongly placed in you is warranted.  Secondly you have a daughter to which you
have got to make up and thirdly I accept that the deceased also has relatives.
You will have to prove through your actions and behaviour in future, that I was
not wrong in giving you this chance.”  The trial judge’s subsequent refusal to
condone the late application for leave to appeal against the sentence cannot alter
the fact that he entertained those misgivings  at the time when sentence was
imposed.
[19]          The circumstances in which an appellate court will interfere with a
sentence imposed by a court of first instance are so well-known that they do not
merit repetition.  I had occasion to restate them earlier this year in S v Sadler
2000 (1) SACR 331 (SCA) at 334d - 335g.  In my view, the sentence imposed

by the trial court was entirely inappropriate and disturbingly so.  Quite apart from
the fact that it is plainly undesirable to impose a sentence of so great a length and
then to wholly suspend it, the breadth of the condition of suspension is equally
unacceptable.  A conviction of common assault involving no more than a slap
with a flat hand could potentially trigger the coming into operation of a 15 year
prison term.  However, there is a more fundamental reason than those why that
sentence cannot be allowed to stand.
[20]          It fails utterly to reflect the gravity of the crime and to take account of
the prevalence of domestic violence in South Africa.  It ignores the need for the
courts to be seen to be ready to impose direct imprisonment for crimes of this
kind, lest others be misled into believing that they run no real risk of
imprisonment if they inflict physical violence upon those with whom they may
have intimate personal relationships.
[21]          On his own admission, this was not the first occasion upon which

respondent had assaulted the deceased.  He had struck her with his fist on the
side of the head on a previous occasion.  His physical stature had obviously
proved to be no handicap in cementing intimate relationships with a number of
women and, hurtful and wounding though the deceased’s conduct towards him
may have been, his brutal response to it, and his self-centred and cruel
withholding of her  fate from her family and their child for nearly six months calls
for nothing less than direct imprisonment.  The only question that remains is what
length of imprisonment is appropriate.
[22]           In answering that question it would be callous to leave out of account
the mental anguish which respondent must have endured pending the hearing of
this appeal.  For some three months after the sentence had been imposed by the
trial court he was lulled into the belief that the law had taken its course and,
fortunate though he may have considered himself to be, he was free to pick up
the scattered threads of his life.  That belief was shattered when the Director of

Public Prosecutions set in motion an appeal against the sentence.  He has had to
live in suspense since then.  I consider that a significant reduction of the notional
period of imprisonment that would have been appropriate at the date when he
was sentenced in May 1998 is warranted.   In my view, a sentence of
imprisonment for seven years should now be imposed.
[23]          That conclusion necessitates the granting of the appeal against the
refusal to condone the late application for leave to appeal against the sentence
and of course the upholding of the appeal against the sentence.  The sentence
imposed by the trial court is set aside and there is substituted for it a sentence of
seven years imprisonment.
[24]          This case has highlighted the need for appeals of this kind to be
disposed of as quickly as circumstances will permit.  The need is particularly
pressing where non-custodial sentences have been imposed and a Director of
Public Prosecutions seeks to have a custodial sentence imposed on appeal.

Applications for such leave should be brought with the minimum of delay and
priority should be given on the relevant appeal court’s roll to such cases.

R M MARAIS
JUDGE OF APPEAL
GROSSKOPF )
CONCUR
PLEWMAN    )