THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Case No 429/2002
REPORTABLE

In the matter between

Reginah Gwendoline Kgafela                                                           Appellant

and

The State                                                                                         Respondent

Before:
Schutz, Mthiyane JJA and Shongwe AJA

Heard:
21 May 2003

Delivered: 28 May 2003

Life sentence – substantial and compelling circumstances – not for a trial court to grant
leave in order that SCA may reconsider its earlier decision – in this instance S v Malgas –
such circumstances absent – life imprisonment confirmed.

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JUDGMENT
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SCHUTZ JA

[1] The appellant was sentenced to life imprisonment for the murder of her
husband. Sitting in the Bophuthatswana Provincial Division, Friedman JP held
that there were no ‘substantial and compelling circumstances’ present, that is
in the sense of s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997.
That being so, Friedman JP held, in the light of the decision in S v Malgas
2001 (2) SA 1222 (SCA) as later approved in S v Dodo 2001 (3) SA 382 (CC)
at 404I-405E para [40], that he was obliged to impose a life sentence.
[2] But when he granted leave to appeal to this court, after setting out a full
review of the general sentencing rules (see S v Kgafela 2001 (2) SACR 207
(B) at 210(g)-213F para [13]), he felt ‘impelled to venture’ that this court
might welcome the opportunity to revisit the decision in Malgas in order to
give more definition or formulation to the phrase ‘substantial and compelling
circumstances’ and to reverse the order of the enquiry.  By this last he
intended that the court should commence with the conventional enquiry as to
what is the appropriate sentence and only thereafter proceed to the prescribed
minimum sentence. Whatever one might think of the desirability of the law
being as it is suggested it should be, the suggestion is contrary to the terms of
the statute and the interpretative decisions in Malgas and Dodo. Marais JA
expressly said in Malgas (at 1234C-D para [20]) that:

‘It would be an impossible task to attempt to catalogue exhaustively either those
circumstances or combinations of circumstances which would rank as substantial and
compelling or those which could not.’

I agree entirely.
[3] Notwithstanding, Friedman JP said in his judgment granting leave:

‘In my view, although I think with modesty that my judgment is correct,
nevertheless there is a dispute on it. I have stated in the judgment that although I am bound
by the decision of the Appellate Division I still believe that the terms substantial and
compelling circumstances should be defined and in the circumstances and in the interests of
law I will grant leave to appeal.’
This is an approach to granting leave that cannot be accepted. Whilst being of
the view that his judgment was correct, Friedman JP considered that this court
should be given the opportunity of mending its earlier judgment. In Cassell
and Co Ltd v Broome and Another [1972] AC 1027 the House of Lords
observed that in granting leave to appeal the Court of Appeal (headed by Lord
Denning MR) had expressed the opinion that a previous decision of the House
had been made per incuriam, or was in any event wrong, or was ‘unworkable’.
The suggestion was that the House might wish to set matters aright. This
suggestion earned the following rebuke – per Lord Hailsham at 1054E:

‘The fact is, and I hope it will never be necessary to say so again, that, in the
hierarchical system of courts which exists in this country, it is necessary for each lower tier,
including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where
decisions manifestly conflict, the decision in Young v Bristol Aeroplane Co Ltd [1944] KB
718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it
to question considered decisions in the upper tiers with the same freedom.’

[4] But, leave having been granted, there is an appeal before us. The facts
are set out in the reported decision a quo referred to above. Was Friedman JP
correct in finding that substantial and compelling circumstances were not
present? In deciding this question one must have regard to the totality of the
circumstances.
[5] First, the threshold requirement set out in s 51(1) and Part 1 of
Schedule 2, that the murder was ‘planned or premeditated’, was clearly
satisfied. On her own version the instruction to kill was given some seven
weeks before the shooting which took place on the evening of 5 December
1999. According to the appellant she did not know quite when her husband
was to be killed, but she knew that the assassin that she had engaged would
observe his habits and kill him outside his home. That is what happened.
Throughout it was open to the appellant to call off the assassin. She did not do
so and there is no real attempt to explain why she did not.
[6] But the matter is even worse than that. The person ultimately engaged
to arrange the murder was one Tsholo. He was engaged in mid-October 1999.
However, there had been an earlier approach in August 1999 – to one Ronald
Sentsho – a relative of hers if not ‘that close’. The court a quo accepted his
evidence, and although she denies it, she could advance no reason why he
should have fabricated so damaging a story against her. On his version she
emerges as a Lady Macbeth. She asked him whether he could ‘remove the
deceased from her eyes’. He was frightened and said he could think it over.

After discussing the matter with his girlfriend he refused her request. At this
she was angry and said that he had wasted her time.

A serious aggravating factor, often recognised as such by our courts, is
that the appellant made use of a hired killer – on her evidence the agreed fee
was R10 000.
[7] Dr. Labuschagne, a criminologist, gave evidence on her behalf. She
painted a picture of a woman rejected throughout her life. Her mother had died
three days after her birth and her biological father thereafter paid her scant
attention. She was brought up in the home of her uncle, Victor Setshele. It was
a strict, religious home. She fared well at school and later at university, where
she gained a MA degree and was well on her way to a doctorate. It is evident,
overall, that she is an intelligent woman, but, as she said ‘… unfortunately
feelings do not go with intelligence’. She felt privileged to have married a man
who rose to become a senior magistrate. But gradually she felt that he was
withdrawing from her life. Increasingly he drank to excess over the weekends.
When under the influence of liquor he would on occasion abuse her and even
assault her, to the extent of at least once using a sjambok, and on another, of
pointing a firearm at her. On this latter occasion she went to the police station.
Two policemen attended at her home, where they spoke to her husband. He
denied her allegations. She was asked if she wished to lay a charge but she
declined to do so. At times he would boast to her that because of his position
he was immune from arrest and prosecution. Increasingly he would absent

himself over weekends and she suspected him of infidelity (of which he once
accused her also).
[8] Another thing that troubled her was the barrenness of the marriage. As
is so common, the finger was pointed at her, as the woman. In her Tswana
custom this was a serious thing. She consulted three gynaecologists who could
find nothing wrong with her, but when she took the matter up with her
husband he did not respond. So the perceived stigma remained attached to her.
[9] The State sought to counter this picture, painting the deceased as a
gentle creature who would not harm a fly. But I am ready to accept the broad
picture of alienation and rejection described by the appellant, as the court a
quo did. However, hers is not a case of a wife driven to desperation and seeing
no other solution such as divorce. She was intelligent and well educated and
capable of fending for herself. Nor was the murder a reaction to a recent
assault. It was planned over a long period when there was ample time to
repent. But the brutal plan went remorselessly forward.
[10] When one tries to ascertain why she chose murder one gropes through
her evidence largely in vain. The nearest one comes to a reason is in the
following passage:

‘You said you were terrified of losing him. Is that right? --- That is right.
But if he’s killed you lose him for good. Isn’t that so? --- In fact that was what came to me
– I didn’t want to lose him for anybody. I loved him.

I see. So in other words, if you couldn’t have him, nobody could have him. --- That was
what was in my mind.
That was in your mind. --- Yes Your Worship.
So the best way out of it was to kill him. --- That is the decision I took.’
Let this evidence speak for itself.
[11] One asks whether there is not some other, unrevealed, explanation. One
possibility is that she decided to take revenge on the deceased for his
divorcing her. The divorce and her alleged ignorance of it is an extraordinary
episode. A divorce summons was served on her (although she denies it) during
August 1999, which is the month in which she approached Ronald Sentsho
with the request that he kill her husband. The latter was in hospital from 5
December 1999, when he was shot, to 3 January 2000, when he died. Yet,
according to the appellant she learned of the fact of her divorce for the first
time only a few days before his death. The court a quo rejected her evidence
on this score and in my opinion correctly so.
[12] There is one clear mitigating factor – that she was a first offender at the
age of 37. That is about all. She professes remorse and Dr Labuschagne claims
that she shows it. But it took a criminal trial to extract it. She claimed to be
innocent up to and including the stage when she applied for bail. Eventually
she did plead guilty, but there is no evidence that she did so in order to make a
clean breast of it, rather than because she knew that the State had an
unanswerable case against her. There is another factor relevant to remorse. By

now knowing that she had been divorced (even on her own version), she
became engaged in a burial dispute with the deceased’s 79 year old, grieving
mother. The appellant insisted that she was entitled to take an active part in
the funeral arrangements causing the mother to go to court. The appellant’s
answering affidavit in that matter reveals her thinking. Her plan was to have
the decree of divorce set aside so that she might become the deceased’s
intestate heir as his reinstated wife.
[13] Two other matters are raised as reflecting remorse. She attended the
deceased closely in hospital during the last month of his life. She also
borrowed a large sum of money in order to ensure that he remained in a good
hospital. In order to avoid suspicion she had to behave in this way, so that the
submission that these actions demonstrate remorse becomes of dubious worth.
[14] Taking together the many aggravating feature that there are and such
little mitigation as there is, I am not able to conclude that there are substantial
and compelling circumstances which justify life imprisonment not being
imposed.
[15] The appeal is dismissed.

_____________
W P SCHUTZ
JUDGE OF APPEAL

CONCUR

MTHIYANE JA
SHONGWE AJA