Kimberley - Attempts by Emmanuel Smous, who killed his girlfriend, to appeal the life sentence handed down in the Northern Cape High Court on Wednesday have been denied.
Smous, 27, applied for leave to appeal both his conviction and sentence after Judge Bulelwa Pakati sentenced him to life imprisonment on Wednesday for the murder of the mother of his child and girlfriend, Nelie Moleko.
Moleko was killed after Smous assaulted and stabbed her at his shanty during the early hours of New Year’s morning in 2014. Previous testimony by witnesses described the relationship between the couple as abusive and loveless.
Smous’ legal representative, Japie Shreuder, submitted the appeal application shortly after sentencing on Wednesday on the grounds that Smous and his girlfriend were the only people at the shanty at the time of the incident.
“The grounds for the appeal are that no one witnessed the murder and the evidence was circumstantial in nature.”
He also submitted that there was a possibility that the applicant was not the one who killed the deceased.
“Alternatively it could be argued that Smous did not have the intention to kill the deceased because the assault was preceded by an argument resulting from the strained relationship between the two.”
He further stated that the sentence of life imprisonment had also induced a sense of shock.
Pakati, however, dismissed the appeal application stating that Smous had never taken the court into his confidence about what had occurred on the morning of the incident.
“Smous cannot at this stage raise negligence as a defence. He had the opportunity to do so while the trial was in progress, but failed to do so,” she said. She added that the defence’s request to the court to the find compelling and substantial circumstances during mitigation were groundless.
“The defence requested that I find substantial and compelling circumstances in the personal circumstances of Smous. They requested that I should consider that he stays with his unemployed girlfriend and their 10-month-old baby, and that I should give him a suspended sentence, which is an absolute joke,” she said.
She said Smous’ current girlfriend knew of the consequences when she got involved with him.
“The testimony of his girlfriend was clear that when she started a relationship and decided to stay with him and have a child, she knew that his case was still pending and that there was a possibility that he could be sentenced to a long term in jail,” she said.
Pakati also said that Smous had shown no remorse for his action. “Smous showed no remorse from the beginning to the end of the trial. He maintained his innocence throughout. Although he knew he was the only person in the shanty with Moleko, he did not want to enlighten the court as to what exactly happened on the night of her death.
“Instead he wanted the court to believe that he tried to commit suicide because he loved her so much that he wanted to die with her. However, no one knows what happened in the shanty or why he tried to take his own life. It could be possible that, after he realised that he had killed her, he did not want to face prosecution.
“He requested the court to grant him his freedom to continue his life. He had no insight into the loss and pain he caused Moleko’s family.”
Pakati said that evidence and the previous convictions of the accused showed that he did not think twice about violating a woman.
“The doctor testified that the person who inflicted the injuries to the body of the deceased had a very high level of anger. Smous led no evidence that Moleko was armed on the day, therefore she must have been defenceless.
“Smous also did not allege that he was injured in any way. He has total disregard for the rights to dignity and life. The deceased was a defenceless woman, who posed no danger to him, and in the end she was viciously assaulted and stabbed by Smous.”
The judge added that the supposed “love” Smous had for the deceased had not been portrayed by his actions.
“The fact that he did not call an ambulance or the police but remained in the shanty with Moleko, trying to commit suicide, showed that he did not want her to be helped.
“The following morning he was aware he had killed her, which was why he and his older brother locked Moleko inside the shanty and left for their parents home,” she said.
She said that the sentence fitted the crime and that the aggravating circumstances far outweighed the personal circumstances of Smous and other mitigating factors.
Overcome by emotion and relief, the sister of the deceased, Keitumetse Magolegeng, said that her relatives were pleased with the sentence.
“This trial opened the wounds of my sister’s death again, but we are happy that justice was served. We are pleased with the verdict and the sentence that was handed down by the court,” she said while hugging state prosecutor, Advocate Keageletse Ilanga.
Magolegeng, however, said that the incident has had a traumatic impact on the child the deceased and Smous shared.
“The child is six years old and in Grade 1, however, she is now wearing nappies again following the murder. She was already potty-trained prior the her mother’s death, but is now wearing nappies again because of the impact of her death.
“We are confident that she will also find closure and work through the trauma,” she said.
She added that she was aware of the abuse and always advised the deceased to get out of the relationship.
“The last time I saw my sister alive was when she came to visit me in Johannesburg. That was just a few weeks before her death,” she said.
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