THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE
Case No: 629/13

In the matter between:

DAVID KEKANA

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Kekana v The State (629/2013) [2014] ZASCA 158 (1
October 2014)

Coram:

Lewis JA and Mathopo and Gorven AJJA

Heard:

11 September 2014
Delivered:
1 October 2014

Summary: Murder ─ premeditation. Accused pleading guilty ─ admitting to
locking wife in the bedroom, and setting bed on fire ─ wife died few days later
in hospital ─ whether acted on the spur of the moment or premeditated.
Sentence ─ life imprisonment ─ no substantial and compelling circumstances
found to exist.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: South Gauteng High Court, Johannesburg (Boruchowitz J,
Nicholls J and Tshabalala J sitting as a court of appeal):

The appeal against sentence is dismissed.

JUDGMENT
________________________________________________________________

Mathopo AJA (Lewis JA and Gorven AJA concurring)

[1] Mr Kekana, the appellant, was charged with arson and murder in the
South Gauteng High Court, Johannesburg. He was duly convicted on his plea of
guilty to both charges. Having found that there were no substantial and
compelling circumstances justifying a departure from the minimum sentence
prescribed under section 51(1) of the Criminal Law Amendment Act 105 of
1997 (the Act) in respect of the murder count, the trial court sentenced him to
life imprisonment and five years’ imprisonment for the arson count. The
sentences were ordered to run concurrently.

[2] The appellant appealed to the full bench of the South Gauteng High
Court, Johannesburg (Boruchowitz J, Nicholls J and Tshabalala J) which
dismissed the appeal. This appeal is with the special leave of this court against
the sentence of life imprisonment.

[3] The appeal is based on two grounds. First, that the appellant was
incorrectly sentenced as if he had been convicted of murder that was planned or

premeditated. Second, that the trial court erred in finding that no substantial and
compelling circumstances existed to justify a departure from a sentence of life
imprisonment.

[4] The trial court dealt with the case on the basis that the murder was
planned or premeditated and applied the provisions of s 51(1) read with Part 1
of Schedule 2 of the Act. At the commencement of the trial the appellant, who
was legally represented, was warned by the court that he faced the prospect of
life imprisonment in the absence of substantial and compelling circumstances.
The record reveals that before he pleaded the trial judge pertinently drew his
attention to the provisions in question.

[5] The only argument advanced on behalf of the appellant is that the trial
court and high court erred in their findings that the murder of the deceased was
premeditated. The case advanced for the appellant is that he killed the deceased
in the heat of the moment and that he had not conceived any plan to burn the
house with the deceased inside. To fully appreciate the appellant’s contention it
is necessary to canvas the circumstances leading to the murder as described in
the statement setting out his plea of guilty.

[6] The statement contained a detailed explanation of how and why the
offences were committed. The appellant had a tempestuous relationship with the
deceased. He accused her of conducting extramarital affairs, the parties
quarrelled incessantly and threatened to kill each other and the deceased told
him several times to pack his belongings and leave the common home. On 13
April 2006, he set alight the house having locked the deceased inside the
bedroom.

[7] The appellant stated that, after an argument, the deceased had initially
locked herself in the bedroom. As a result he slept on the carpet in the dining
room. After midnight he tried to get into the bedroom but it was still locked.
The deceased told him that their relationship was over and that he must leave
the house. He then decided to leave but because there was no petrol in his car
(as he had used all of his petrol to test the deceased’s motor vehicle, which he
was repairing) he went to the filling station in her car to buy petrol to put in his
car so that he could collect his clothes and leave.

[8] On his return, he found some of his clothes in the dining room packed in
a bag. This incensed him and he confronted the deceased who was in the
bedroom lying on the bed. At that stage he decided to kill her by setting fire to
the house and lock her in the bedroom. To achieve his purpose he walked
outside, fetched the petrol which he had just bought, went to the deceased’s
bedroom and poured it onto the bed on which she was lying. When she asked
him what he was doing, he told her that was the night she would die. He then set
the petrol alight and ran out of the bedroom and locked the door. He continued
to spill the petrol in the passage, kitchen and dining room and set that alight.
When he saw the flames he drove to Booysens Police Station and reported his
conduct. The State accepted the facts in his statement and the trial court duly
convicted the appellant.

[9] In S v Jansen1 it was held that where an accused pleads guilty and hands
in a written statement in terms of section 112(2) of the Criminal Procedure Act
51 of 1977 (CPA) detailing the facts on which his plea is premised and the
prosecution accepts the plea, the plea constitutes the essential factual matrix and
cannot be extended or varied in any manner which adversely impacts on the
measure of punishment as regards the offence. The plea defines the lis between

1 S v Jansen 1999 (2) SACR 368 (C).

the prosecution and the defence. See also S v Ngubane.2 The State contended
that the facts set out in the s 112(2) statement showed that the murder was
premeditated.

[10] In argument before us, counsel for the appellant submitted that the trial
court and the full bench wrongly relied on certain parts of the s 112(2) statement
and incorrectly inferred that the appellant’s conduct amounted to premeditation.
The submission was that the appellant acted on the spur of the moment and was
incandescent with rage when he killed the deceased by setting fire to the house.
It was only when he saw his clothes packed in a bag in the dining room that he
decided to kill her. The act was thus not premeditated, it was argued.

[11] However, the relationship with the deceased was a turbulent one
characterised by accusations of infidelity on the part of the appellant. It was not
the first time that the deceased had packed his clothes into a bag and left them at
the door. The appellant dealt with such incidents before without any fatal
consequences. It is difficult to understand how the fact that he found his clothes
packed in a bag and placed near the dining room could have triggered anger
such as to lead to the death of the deceased.

[12] Another argument advanced on behalf of the appellant was based on S v
Raath,3 where it was held that to prove premeditation, the State must lead
evidence to establish the period of time between the accused forming the intent
to murder and the carrying out of his intention. In the present matter there is no
evidence as to how much time passed between the appellant’s admitted decision
to kill the deceased and when he doused the bed with petrol and set it alight. But

2 S v Ngubane 1985 (3) 677 (A) at 683 E-F.
3 S v Raath 2009 (2) SACR 46 (CPD).

a consideration of the appellant’s evidence suggests that it was a matter of a few
minutes, at the least.

[13] In my view it is not necessary that the appellant should have thought or
planned his action a long period of time in advance before carrying out his plan.
Time is not the only consideration because even a few minutes are enough to
carry out a premeditated action.

[14] The appellant pertinently admitted that after he saw his clothes, he
formed an intention and in his own words he decided to end it all and kill the
deceased. He then gave effect to this decision. He went outside to fetch petrol.
He re-entered the house and poured it on the bed of the deceased while at the
same time telling her of his intention. He set it alight with the petrol. He locked
the deceased in the room. He spilled the petrol in the passage, kitchen and
dining room. The locking of the door and further pouring of petrol show that he
was carefully implementing a plan to prevent her escape and to ensure that she
died in the blaze. To my mind, this is proof of premeditation on his part. It
follows that the appellant was correctly convicted of premeditated murder.

[15] I now turn to consider the second leg of the appellant’s ground of appeal.
The appellant’s attack against the imposition of life imprisonment is that the
trial court erred in finding that no substantial and compelling circumstances
existed which allowed for a departure from the prescribed sentence. In argument
before us counsel for the appellant referred to the following considerations
which he submitted qualified as such substantial and compelling circumstances.
Firstly, that the appellant pleaded guilty and showed remorse for his actions and
verbalised such remorse to Dr Labuschagne, who interviewed him for the pre-
sentencing report. Secondly, that he was a first offender and therefore that there
were prospects that he could be rehabilitated. Also that he was in a turbulent

relationship with the deceased where lack of trust played a major role as he
suspected his wife of infidelity. That he felt abused and belittled by the
deceased. That when he found his clothes packed in a bag in the dining room he
felt provoked and snapped. Counsel for the appellant argued that life
imprisonment was inappropriate and that it would effectively deny the appellant
the opportunity for rehabilitation.

[16] On the other hand, counsel for the State submitted that the facts placed
before the court by the appellant did not qualify as substantial and compelling
circumstances which justified a lesser sentence than life imprisonment. He
argued that the mere fact that the appellant pleaded guilty did not necessarily
support the conclusion that he was remorseful as the plea of guilty could have
been motivated by various factors, for example the appellant realising that his
son had seen him pouring petrol in the passage and setting it alight and/or that
the evidence against him was overwhelming and that it would have been futile
to plead not guilty. Concerning the prospects of rehabilitation, counsel for the
State contended that the appellant placed no facts before the court to
demonstrate any probability of rehabilitation. In support of his submission, he
referred us to the report of Dr Labuschagne in which the latter confirmed that
she had not been informed of the appellant’s violent behaviour towards the
deceased.

[17] In responding to the argument that life imprisonment was inappropriate,
counsel for the respondent submitted that on the undisputed facts, the appellant
killed the deceased in a callous and brutal manner by pouring petrol on the
deceased, a defenceless woman who was in bed at the time. The fact that he
locked her inside the bedroom shows brutality. In addition, it was submitted, the
appellant poured petrol in the passage leading to the dining room and the
kitchen to ensure that the deceased could not escape the inferno.

[18] Counsel further contended that what is even more aggravating about the
conduct of the appellant, is that when the son cried for help, the appellant
ignored his pleas until a neighbour came to assist the son and they managed to
break the window and free the deceased. It was submitted that after the incident
the deceased spent a week in hospital and must have been in excruciating pain
before she died. According to counsel, all these factors negate any basis for
finding the existence of substantial and compelling circumstances.

[19] This case has more aggravating than mitigating factors. It can hardly be
disputed that the deceased died a cruel and painful death at the hands of her
husband.  She was killed in the one place that she ought to have been safe, the
sanctity of her own home. The appellant clearly exploited her vulnerability and
abused the trust she had in him as a husband. What is worse is that after burning
the house the appellant failed to rescue her and secure medical assistance for
her. This callous and heartless attitude in not checking the condition of the
deceased is clear proof of his lack of remorse. I agree with the trial judge that
this conduct does not manifest genuine remorse. Genuine remorse was correctly
described by Ponnan JA in S v Matyityi4 where he said the following:
‘There is, moreover, a chasm between regret and remorse. Many accused persons might well
regret their conduct, but that does not without more translate to genuine remorse. Remorse is
a gnawing pain of conscience for the plight of another. Thus genuine contrition can only
come from an appreciation and acknowledgement of the extent of one’s error. Whether the
offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having
been caught, is a factual question. It is to the surrounding actions of the accused, rather than
what he says in court, that one should rather look. In order for the remorse to be a valid
consideration, the penitence must be sincere and the accused must take the court fully into
his or her confidence. Until and unless that happens, the genuineness of the contrition
alleged to exist cannot be determined. After all, before a court can find that an accused
person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what

4 S v Matyity 2011 (1) SACR 40 (SCA) para 13.

motivated the accused to commit the deed; what has since provoked his or her change of
heart; whether he or she does indeed have a true appreciation of the consequences of those
actions.’

[20] Domestic violence has become a scourge in our society and should not be
treated lightly. It has to be deplored and also severely punished. Hardly a day
passes without a report in the media of a woman or a child being beaten, raped
or even killed in this country. Many women and children live in constant fear
for their lives. This is in some respects a negation of many of their fundamental
rights such as equality, human dignity and bodily integrity.  This was well
articulated in S v Chapman5 when this court said the following:
‘Women in this country have a legitimate right to walk peacefully on the streets to enjoy their
shopping and their entertainment to go and come from work and to enjoy the peace and
tranquillity of their homes without the fear the apprehension and the insecurity which
constantly diminish the quality and the enjoyment of their lives.’

[21] The uncontested evidence suggests that the appellant killed the deceased
on a mere suspicion that she was unfaithful towards him.  He torched the house
in the presence of their son. Prior to that, he had told his friend and neighbour
that he was going to kill the deceased. This makes his conduct all the more
morally reprehensible.

[22] The correct legal approach to an appeal on sentence imposed in terms of
the Act is set out as follows in S v Malgas6:
‘A court exercising appellant jurisdiction cannot, in the absence of material misdirection by
the trial court, approach the question of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp
the sentencing discretion of the trial court. Where material misdirection by the trial court
vitiates its exercise of that discretion an appellate Court is of court entitled to consider the

5 S v Chapman 1997 (3) SA 341 (SCA) at 345A-B.
6 S v Malgas 2001 (1) SACR 469 (SCA) para 12.

question of sentence afresh. In doing so, it assesses sentence as if it were a court of first
instance and the sentence imposed by the trial court has no relevance. As it is said, an
appellate Court is at large. However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering with the sentence imposed by the trial court.
It may do so when the disparity between the sentence of the trial court and the sentence
which the appellate Court would have imposed had it been the trial court is so marked that it
can properly be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’. It must be
emphasised that in the latter situation the appellate court is not at large in the sense in which
it is at large in the former. In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned. No such limitation exits in
the former situation.’

[23] I have already indicated that the aggravating features in this matter far
outweigh the mitigating factors. I am unable to find that the court below erred in
finding that there were no substantial and compelling circumstances to justify
any sentence other than the one statutorily prescribed by the legislature namely
life imprisonment. It follows that this court is not at large to interfere with the
sentence and the appeal must fail.

[24] In the result the appeal against sentence is dismissed.

R S Mathopo

Acting Judge of Appeal

Appearances:

For Appellant:

E Guarneri with him W Karam

Instructed by:

Johannesburg Justice Centre, Johannesburg

Bloemfontein Justice Centre, Bloemfontein

For Respondent:

M L Gcaba

Instructed by:

Director of Public Prosecutions, Johannesburg

Director of Public Prosecutions, Bloemfontein