Reginah Gwendoline Kgafela v The State

The appellant was convicted of murdering her husband and sentenced to life imprisonment by Friedman JP in the Bophuthatswana Provincial Division. The murder was planned and premeditated. In August 1999, the appellant first approached a relative, Ronald Sentsho, asking him to 'remove the deceased from her eyes', but he refused. In mid-October 1999, she engaged another person, Tsholo, to arrange the murder. The assassination was carried out on 5 December 1999 when a hired killer shot her husband outside his home for an agreed fee of R10,000. The deceased died on 3 January 2000 after a month in hospital. The appellant claimed her marriage had deteriorated, with her husband drinking excessively, abusing and assaulting her (including using a sjambok and pointing a firearm at her), and being unfaithful. The marriage was also childless, which caused her stigma in Tswana culture. A divorce summons had been served on her in August 1999, though she claimed she only learned of the divorce days before her husband's death. The trial court rejected this evidence. She was 37 years old and a first offender, intelligent and well-educated with an MA degree. She initially claimed innocence through the bail stage but eventually pleaded guilty. After her husband's death, she engaged in a burial dispute with his 79-year-old mother and attempted to have the divorce decree set aside to become his intestate heir.

• Whether there were 'substantial and compelling circumstances' within the meaning of section 51(3)(a) of the Criminal Law Amendment Act 105 of 1997 that would justify a sentence other than life imprisonment
• Whether the trial court was correct in granting leave to appeal for the purpose of having the Supreme Court of Appeal reconsider its earlier decision in S v Malgas
• Whether the threshold requirement of planned or premeditated murder in terms of section 51(1) and Part 1 of Schedule 2 was satisfied

The appeal was dismissed and the life imprisonment sentence was confirmed.

A trial court may not grant leave to appeal for the purpose of inviting an appellate court to reconsider or reverse its earlier binding decisions. Lower courts within the hierarchical court system must loyally accept the decisions of higher courts. In the context of section 51(3)(a) of the Criminal Law Amendment Act 105 of 1997, it is impossible to exhaustively catalogue what circumstances will constitute 'substantial and compelling circumstances' justifying departure from prescribed minimum sentences - this must be determined on the totality of circumstances in each case. Where murder is planned and premeditated over an extended period with use of a hired killer, and the accused had ample opportunity to desist and had alternatives available (such as divorce), the aggravating factors will generally outweigh mitigating factors such as first offender status and a history of domestic abuse, resulting in no substantial and compelling circumstances being found.

The court observed that marrying together Marais JA's statement in Malgas that it would be impossible to catalogue exhaustively the circumstances that would rank as substantial and compelling, with which Schutz JA expressly agreed. The court made observations about the appellant's lack of genuine remorse, noting that her hospital attendance and financial support of the deceased during his final illness were 'of dubious worth' as demonstrations of remorse since she needed to behave this way to avoid suspicion. The court also commented that the appellant's stated reason for the murder - 'if I couldn't have him, nobody could have him' - should 'speak for itself', suggesting this motive was particularly condemnable. The court suggested there might be an unrevealed explanation, possibly revenge for the divorce.

This case reinforces the principles established in S v Malgas 2001 (2) SA 1222 (SCA) and S v Dodo 2001 (3) SA 382 (CC) regarding minimum sentences under the Criminal Law Amendment Act 105 of 1997. It establishes important procedural principles about the proper basis for granting leave to appeal within the court hierarchy. The case demonstrates the stringent approach courts take to finding 'substantial and compelling circumstances' in premeditated murder cases involving hired killers, and confirms that it is impossible to exhaustively catalogue what circumstances will qualify. It also illustrates that a history of domestic abuse and marital difficulties, while relevant, will not necessarily constitute substantial and compelling circumstances where the accused had alternatives available and engaged in extended, calculated planning with opportunities to desist.