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[2017] ZAWCHC 2
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Smith v S (A273/16) [2017] ZAWCHC 2; 2017 (1) SACR 520 (WCC) (26 January 2017)
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THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Case No: A273/16
Lower
Court Case No: CTRC
31/140/09
GRANT
MATTHEW SMITH
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
ROGERS J & PARKER AJ
Heard:
18 NOVEMBER 2016
Delivered:
26 JANUARY 2017
JUDGMENT
ROGERS J (PARKER AJ
concurring):
Introduction
[1]
The appellant was convicted in the court a quo of
conspiring with Jo-Ann Neethling to murder Alan Kusevitsky and
sentenced to nine
years’ imprisonment of which two years were
suspended. He appeals against conviction and sentence.
[2]
It is doubtful whether conspiracy to commit murder (or
other crimes) was by our common law an offence (De Wet &
Swanepoel
Strafreg
3
rd
Uitg 193; Burchell
Principles of
Criminal Law
4
th
Ed 529). If the murder was committed or sufficient acts
performed to constitute attempted murder, the conspirators could be
convicted
of murder or attempted murder as the case might be. But
conspiracy simpliciter was not, it seems, a crime. A statutory
offence
of conspiracy was introduced by s 15(2)(a) of Act 27 of
1914 and is now to be found in s 18(2)(a) of the Riotous
Assemblies
Act 17 of 1956 which provides in relevant part that any
person who conspires with any other person to aid or procure the
commission
of or to commit any offence, whether at common law or
against a statute, shall be guilty of an offence and liable on
conviction
to the punishment to which a person convicted of actually
committing that offence would be liable. This is the statutory
offence
which the appellant was alleged to have committed.
[3]
If the State proved its case, the appellant could
perhaps have been charged with and convicted of attempted murder,
since the alleged
conspiracy had been implemented to the point of
handing over cash to the two persons who were believed to be the
hitmen (though
they were in fact undercover policemen). See Snyman
Criminal Law
6
th
Ed at 278 and Burchell supra 535-536; but cf
R
v Nlhovo
1921 AD 485.
Nothing turns on this.
[4]
The alleged conspiracy was said to have come into
existence in late 2008. Neethling was arrested on 4 December 2008 and
the appellant
on 9 December 2008. Neethling entered into a plea
bargain and was the State’s main witness against the appellant.
The trial
only got underway in September 2011. Evidence was completed
in March 2015. The magistrate’s judgment, delivered in
September
2015, is somewhat disjointed, perhaps reflecting the
disjointed way in which the trial was conducted. The magistrate, who
had the
opportunity of observing the witnesses, disbelieved the
appellant’s denial of involvement and accepted the essential
elements
of Neethling’s evidence. The magistrate did so while
recognising the considerable imperfections in her testimony and the
need for caution arising from the fact that she was an accomplice and
a single witness. We can only interfere with the magistrate’s
factual findings if they are vitiated by material misdirection or
shown by the record to be wrong (
R v Dhlumayo
& Another
1948 (2) SA 677
(A) at 705-706;
S v Naidoo
2003 (1) SA
347
(SCA) para 26). This approach applies equally to credibility
findings and the application of cautionary rules (
S
v Prinsloo
2016 (2) SACR 25
(SCA) para 187).
Less deference is required where the question is one of drawing
inferences from proved facts (
Director Of
Public Prosecutions, Gauteng v Pistorius
2016
(1) SACR 431
(SCA) para 46).
[5]
Pre-sentencing reports were obtained. Evidence in
mitigation and aggravation was adduced. On 11 March 2016 the
magistrate imposed
the sentence previously mentioned. On the same day
she granted the appellant leave to appeal against conviction and
sentence. His
bail was extended pending the outcome of the appeal.
Background
facts
[6]
In 1998 the appellant established a security business
called City Bowl Armed Response (‘CBAR’). The business
was conducted
through a close corporation. In 2001 Kusevitsky, who
had worked with the appellant in the mid-1990s, joined CBAR and took
charge
of sales and marketing while the appellant focused on the
operational side. The arrangement was that Kusevitsky would obtain a
15% interest in the corporation, increasing to 30% if and when
certain targets were met. The business grew and Kusevitsky became
a
30% member though not without some delay.
[7]
Over the period 2006-2008 Kusevitsky expressed
increasing frustration at what he perceived to be the appellant’s
failure to
give him full financial disclosure. He wrote several
letters to the appellant in that regard, the most recent of which was
in May
2008.
[8]
Neethling, a paramedic, started employment with CBAR in
September 2006. A second paramedic, Lianne Bedwell, joined in May
2008.
Together they constituted what was referred to in the evidence,
somewhat grandly, as the medical division. They would accompany
armed
response officers on their rounds.
[9]
It is common cause that the appellant and Neethling were
at some stage involved in an intimate relationship. Neethling said
the
relationship was still in existence when she and the appellant
were arrested in December 2008. The appellant testified that the
relationship began in August or September 2007 and that he broke it
off in December 2007.
[10]
Kusevitsky testified, and it was not disputed, that on
18 October 2008 he met with the appellant and asked certain questions
about
the bank statements which the appellant had made available to
him. Most of these questions the appellant deflected by saying he
would need to look into the matter or speak to the bank.
[11]
A few days later Kusevitsky established that the
corporation was substantially in arrears to SARS. He also got
original bank statements
which reflected many unexplained payments
and which differed from the copies the appellant had given to him. He
told the appellant
that he insisted on a forensic audit. The
appellant procrastinated. In the meanwhile Kusevitsky spoke to the
Commercial Fraud Unit
about a possible fraud charge.
[12]
On 27 October 2008 Kusevitsky and the appellant met in
CBAR’s boardroom. At the start of the meeting two other
gentlemen were
present, one of them a potential buyer of CBAR’s
business. After they left Kusevitsky confronted the appellant about
the
bank statements. There is a factual dispute as to what happened
next. Kusevitsky testified that the appellant became very angry.
It
appeared to Kusevitsky that the appellant was reaching for his
firearm. Kusevitsky took a split-second decision. He shoved the
appellant backwards. The latter fell on the floor. Kusevitsky fled
the boardroom.
[13]
According to the appellant, however, Kusevitsky became
angry, walked around the table and punched him in the face. The
appellant
then ran from the boardroom. Although Kusevitsky denied
this account, he conceded that the appellant may have run from the
boardroom
before he did. Each went to the police to lay a charge
against the other though Kusevitsky testified that in the event he
elected
not to open a case because it might negatively affect CBAR’s
reputation.
[14]
A few days later the appellant acceded to Kusevitsky’s
demand for a forensic audit which got underway in November 2008. The
audit firm called for a lot of information, mainly from the
appellant. The audit firm provided Kusevitsky and the appellant with
weekly reports. These indicated that CBAR’s finances were in
bad shape.
[15]
On 7 November 2008 Kusevitsky and the appellant met with
the managing director of ADT, Mr Good, to explore the possibility of
a
sale of CBAR’s business. Good was interested but said it
would take several months to get approval from the parent company
abroad. In the light of the information emerging from the forensic
audit, Kusevitsky told the appellant that he did not want his
30%
share of the potential sale proceeds to be used to settle the
corporation’s creditors, given what Kusevitsky regarded
as the
appellant’s misappropriation of funds. In mid-November 2008
Kusevitsky presented the appellant with a letter, drafted
by his
attorney, in which the appellant was to acknowledge liability for
misappropriated money. The appellant said he wanted his
own attorney
to vet the letter.
[16]
On Friday 21 November 2008 Kusevitsky went to the
appellant’s office and said he had had long enough to consider
the draft
letter. If the appellant did not sign it, Kusevitsky would
refuse to agree to a sale if his share of the proceeds had to be used
to settle creditors. The appellant buckled and signed the letter.
(The letter was not adduced as an exhibit.)
[17]
In the meanwhile, and unbeknown to Kusevitsky, Neethling
was involved in discussions directed at doing Kusevitsky harm. It is
not
in dispute that Neethling spoke on these matters with her medical
partner, Bedwell, and with an armed response officer, Etienne
Lochner, both of whom testified for the State. After a while Lochner
and Bedwell formed the view that Neethling was earnest in
her
expressed intention to have Kusevitsky killed. On Sunday 23 November
2008 Lochner sent a cryptic SMS to Kusevitsky alerting
him to the
threat. Kusevitsky spoke with Lochner who told him that Neethling had
been soliciting him to arrange a hitman. According
to Kusevitsky,
Lochner told him that Neethling had said something about an
acknowledgment of liability letter though it seems Lochner
did not
say that the appellant was part of the plan. Lochner agreed to
accompany Kusevitsky to the police the following morning.
On Monday
24 November 2008 Kusevitsky and Lochner met with Col Barkhuizen who,
after interviewing them, told Kusevitsky that he
would be seeking
authority from the Director of Public Prosecutions to run an
undercover sting operation.
[18]
Kusevitsky testified that he became increasingly anxious
during the week of 24-28 November 2008 since he believed that there
was
a plot afoot to kill him but had to behave as if nothing was
wrong. On Friday 28 November 2008 Kusevitsky phoned Barkhuizen and
insisted on seeing him, which he did on Saturday 29 November 2008. He
complained about the delay in the sting operation. Barkhuizen
obtained the necessary authority there and then. Two undercover
policeman, Capt Teladia and D/I Swan, were to pose as the hitmen.
On
Tuesday 2 December 2008 Barkhuizen met with Lochner to instruct him
on what he was to say to Neethling about the hitman who
would make
contact with her. (Lochner had already indicated to Neethling that he
could help her find a hitman.) Lochner passed
on the information to
Neethling. It seems that she may have been getting cold feet: she
testified that she told Lochner that she
would prefer not to take the
hitman’s call but he said that it was too late to pull out and
threatened that she might come
to harm.
[19]
At 11h08 on Wednesday 3 December 2008 Swan phoned
Neethling. They arranged to meet at the Engen garage in Orange
Street, quite close
to CBAR’s offices in Buitenkant Street.
(This and the other conversations between the undercover policemen
and Neethling
were recorded. Transcripts were handed in during the
trial.) The meeting took place at about 12h55, inside the policemen’s
car. Swan says he understands she needs something done and asks her
what exactly she has in mind. She replies, ‘ All the
way…
no joking … gone’. Swan says they will need a photograph
of the target and details about his car and address.
He asks
Neethling how soon she wants the job done. She replies as soon as
possible, within the next five days. Swan says the price
is R15 000
upfront, R15 000 on completion. Neethling agrees. Swan asks by
when she can arrange the money. She replies
by the end of the
following day. Swan says he will phone her to set up the next
meeting.
[20]
Neethling’s evidence is that when she got back to
CBAR’s offices, she and the appellant went for a walk. She told
him
about the hitmen’s requirements. Later that day she went to
his office. The appellant handed her a black-and-white photograph
of
Kusevitsky on an A4 sheet of paper and an A4 envelope containing
cash. He also gave her Kusevitsky’s home address and
car
details which she noted on her mobile phone.
[21]
At 15h10 on Thursday 4 December 2008 Swan phoned
Neethling. They arranged to meet in Bree Street. On arrival, which
was between16h00-16h30,
Neethling got into the policemen’s car.
She handed over the photograph and envelope containing the cash. Swan
noted down,
on the sheet containing the photograph, various
particulars about Kusevitsky as Neethling read them off her phone. At
one point
Swan says, ‘Just for clarity’s sake… You
don’t want this guy picked up?… Beaten?…
Kidnapped?…
Whatever?’. She replies, ‘ Listen you
can get excited… Whatever you want to do… I just don’t
want
it… I want it to go away… I want him not to be
found. I want him to…’. Swan says, ‘Disappear?’
To which she responds, ‘You can get excited, I don’t
mind.’ At a later stage Swan and Teladia suggest it will
look
like an accident or a hijacking or robbery. They ask her how quickly
she can come up with the other R15 000. She responds
by asking
how fast they can do the job. Swan said two days. The meeting ends
with Swan confirming that he will let her know (ie
once the job has
been done).
[22]
Immediately after getting out of the car Neethling was
arrested. The police seized the photograph and the envelope with the
cash.
When Neethling was cross-examined she said she was aware her
fingerprints had been found on the money, the photograph and the
envelope
(she would not have had personal knowledge of this).
Barkhuizen testified that the envelope contained R15 000 in
crisp new
banknotes. According to him, Neethling’s fingerprints
were found on three of the banknotes. His recollection was that the
only prints found on the envelope and the photograph were those of
the two undercover policemen. This discrepancy was not taken
up in
cross-examination. Be that as it may, it is common cause that the
appellant’s fingerprints were not found on the photograph,
banknotes or envelope.
[23]
The police notified Kusevitsky of Neethling’s
arrest.
[24]
At around 17h00 – 18h00 one Davids, a CBAR shift
adviser, was informed that Neethling had been arrested. He phoned the
appellant,
who was not at office, to advise him of the arrest.
According to Davids, the appellant received the news calmly. Later in
the evening
the appellant phoned Davids asking for more information
which Davids was seemingly unable to provide, since according to the
appellant
he did not know at that stage why Neethling had been
arrested or where she was being detained.
[25]
Kusevitsky testified that he was at office on Friday 5
December 2008 and that the appellant was not present though he was
told by
staff that the appellant had come in earlier and left. The
appellant’s evidence was that he was at office on the Friday as
usual.
[26]
Barkhuizen interviewed Neethling on the Friday morning
(a statement was formally taken by a female officer in the
afternoon). Based
on that interview, he wished to put her accusations
to the appellant though did not think there was as yet a sufficient
basis to
arrest him. He went to the appellant’s home but the
appellant was not there. On the Friday and over the weekend
Barkhuizen
left a number of messages on the appellant’s
voicemail. He also gave Neethling permission to phone the appellant
because
she wanted the appellant to help her appoint an attorney to
defend her. Her call, too, went to voicemail.
[27]
On the morning of Sunday 7 December 2008 the appellant
booked himself into Kenilworth Clinic. He testified that the stress
of recent
of weeks had become too much for him – his wife had
been in hospital, his child had been sick and there had been the
forensic
audit and the deteriorating relationship with Kusevitsky. He
claims to have been unaware at that stage that the police were
looking
for him.
[28]
In the early hours of Monday 8 December 2008 Barkhuizen
took a further statement from Neethling. In this interview Neethling
referred
to her discussions with Bedwell. On Tuesday 9 December 2008
Barkhuizen interviewed Bedwell. Based on her statement he concluded
that there were grounds to arrest the appellant.
[29]
On the Tuesday afternoon the appellant finally phoned
Barkhuizen who told him that he was in the process of applying for a
warrant
for his arrest on a murder conspiracy charge. He advised the
appellant to hand himself over. The appellant replied, ‘You
must be joking’, and put down the phone. A short while later
the appellant’s attorney, Mr De Sousa, having received
a call
from the appellant, phoned Barkhuizen pursuant to which the appellant
was arrested at Kenilworth Clinic. He was later released
on bail.
[30]
The police obtained a warrant to search CBAR’s
offices, in particular the appellant’s office. It is not
entirely clear
when this search was conducted though it seems to have
been on the morning of Monday 8 December 2008. Computers were seized.
A
police computer specialist examined the computers in an attempt to
find the photograph of Kusevitsky handed to the undercover policemen.
No matching image could be found.
[31]
Kusevitsky, assisted by CBAR’s IT consultant,
Cornelius van Rensburg, accessed CBAR’s call logging system.
This was
probably also on 8 December 2008. The call logging system
tracks and records all conversations on CBAR’s landlines,
cellphones
and two-way radio system. There were eight landline
channels, three cellphone channels and one radio channel. The
hardware (three
units with four channels each) was in the server
room. The hardware was linked to a computer in the appellant’s
office. This
was a dedicated computer for the filing of voice
recordings. There were the usual recordings on these channels on the
days preceding
3 December 2008 and the days following 4 December
2008. There were no recordings for 3 December 2008. In respect of 4
December
2008, there were the usual recordings on the radio channel
for a full 24-hour period but no recordings on the other 11 channels
before 17h00. The earliest voice recording still on the system for 4
December 2008 was Davids’ call to the appellant to tell
him of
Neethling’s arrest. Van Rensburg testified that because there
were no recordings at all for 3 December 2008 there
could perhaps
have been a system failure. However this could not explain the
absence of telephone recordings for 4 December 2008
since the system
would either work for all channels or for none. His conclusion was
that the telephone recordings of 4 December
2008 must have been
deleted.
[32]
Pursuant to subsequent civil litigation between
Kusevitsky and the appellant, the former acquired sole control of
CBAR. The appellant
was also sequestrated. In February 2011, and on
the basis of the forensic report into CBAR’s affairs, the
appellant was convicted
of theft and sentenced to three years’
correctional supervision.
Neethling
[33]
The magistrate approached Neethling’s evidence
with caution for good reason. Most of the direct evidence (as
distinct from
inferential reasoning) concerning the appellant’s
involvement came from her though it would not be wholly accurate to
describe
her as a single witness, given that Lochner and Bedwell
overheard certain conversations of an incriminating kind (see later
in
this judgment). She was a co-perpetrator. She had no defence but
might have hoped for lenient treatment if she implicated the
appellant.
This in fact occurred by way of the plea bargain
agreement, a term of which was that she should testify truthfully at
Appellant’s
trial.
[34]
On her own version she was a person willing to
participate in murder. There was also evidence that she had a
prescription-drug habit
and was sometimes under the influence of
drugs and alcohol while on duty. During February 2008 she spent time
at a drug rehabilitation
clinic. She testified that she had a history
of depression. In general she seems to have been a volatile
character. Bedwell regarded
her as forceful.
[35]
There were some inconsistencies between her evidence and
that of Lochner and Bedwell. In fairness to her, one must bear in
mind
that she was testifying about events which had occurred more
than three years previously (she gave her evidence in March 2012).
She was centrally involved in all relevant events while Lochner and
Bedwell were testifying about a few specific occasions. Things
which
made an impression on them and which they were able to recall may
have been more hazy in Neethling’s mind.
[36]
Neethling’s evidence of the genesis of the
conspiracy was that the appellant told her that Kusevitsky wanted to
close the
medical division. The only way the problem would disappear
was if Kusevitsky were to ‘go away’ because he (the
appellant)
did not have the financial means to buy him out. He asked
her on several occasions to arrange for someone to kill Kusevitsky.
These
discussions sometimes took place in his office, sometimes in
the car and sometimes telephonically. Neethling eventually sounded
Lochner out about finding a hitman. This led to the further events I
have summarised. When she told the appellant of her assignation
with
the putative hitmen, he was pleased and said that soon all their
problems would be gone. She claimed, however, that he also
insinuated
that her son might come to harm if things did not go according to
plan. She understood him to be threatening her. She
was frightened
for her son and scared of losing her job.
[37]
The magistrate thought that Neethling downplayed her own
role. That may be a natural human tendency. Although the magistrate’s
assessment may be right, this does not materially detract from her
evidence regarding the appellant’s involvement. She may
have
been a more willing and proactive participant than she wanted the
court to believe but her evidence is nevertheless clear
that the
appellant shared at least an equal role.
[38]
It will often be the case on a charge of conspiracy that
the State is driven to rely on the evidence of a co-conspirator. The
fact
that the co-conspirator’s evidence is poor is not on its
own a reason to acquit. The court must carefully consider whether
other evidence establishes beyond reasonable doubt that the essential
elements of the co-conspirator’s evidence are true,
even if
other parts of such evidence are unreliable.
[39]
I thus turn to a consideration of the other evidence
tending to support the essential burden of Neethling’s claim
that the
appellant was part of the conspiracy. I shall consider them
under separate headings. What is important, though, is not the force
which each consideration has independently but their cumulative
weight.
Motive
to murder
[40]
The facts I have already summarised show that the
appellant had reason to harbour strong resentment against Kusevitsky.
Their relationship
had been tense for some time. This boiled over
into a physical confrontation on 27 October 2008. Kusevitsky
subsequently insisted
on a forensic audit which revealed CBAR’s
financial condition to be precarious, something which Kusevitsky
openly attributed
to the appellant’s alleged misappropriation
of money. Matters culminated in the acknowledgment letter. This
letter would
have resulted in the appellant getting relatively little
from a sale of the business to ADT.
[41]
The appellant not only had reason to be bitter towards
Kusevitsky over recent events. There would also be a financial
advantage
to him if Kusevitsky were killed. He and Kusevitsky had
key-man insurance on each other’s lives. If Kusevitsky died,
the
policy would pay R3 million to Kusevitsky’s estate and
Kusevitsky’s 30% interest in CBAR would pass to the appellant.
The acknowledgment letter which the appellant had signed would cease
to be a millstone round his neck. Kusevitsky believed that
a further
motive may have been that the appellant feared facing jail time for
theft and fraud.
[42]
As to Neethling’s motive, she testified that the
appellant told her that Kusevitsky had plans to close the medical
division
with the result that she and Bedwell would lose their jobs.
Kusevitsky denied that he was involved in any such plan. A decision
to close the medical division would have been an operational matter
within the appellant’s domain and would in any event
have
required the appellant’s approval as the majority member. The
State’s thesis was that the appellant made up the
story about
the closure of the medical division in order to co-opt Neethling’s
support for Kusevitsky’s murder.
[43]
The appellant denied that he and Kusevitsky discussed
the closure of the medical division. He also denied having told
Neethling
that Kusevitsky wanted to close the medical division.
[44]
Lochner testified that everyone in the office knew of
the rumour about the closure of the medical division. Neethling was
the source
of the rumour.
[45]
Since both the appellant and Kusevitsky denied having
ever discussed the closure of the medical division, I think it can be
taken
as certain that there was in fact no such proposal. If the
appellant falsely planted the closure story in Neethling’s
head,
the State must be right that this was part of a plan to pit
Neethling against Kusevitsky.
[46]
If Neethling made up the story herself, her reason may
have been to make Lochner and Bedwell more sympathetic to her
requests for
assistance to do Kusevitsky harm. But since she herself,
on this hypothesis, knew that there was in fact no plan to close the
medical
division, the ‘plan’ and the saving of her job
could not have been a motive for her to kill Kusevitsky.
[47]
If Neethling genuinely feared the loss of her job (as a
result of a false story from the appellant), it is still difficult to
believe
that this would on its own have been a sufficient motive for
her to kill Kusevitsky. The appellant’s enmity and financial
motive far exceeded hers. It is far more probable that, as she
claimed, she and the appellant were still involved in an intimate
relationship. At any rate, and even on the appellant’s version,
Neethling wanted the relationship to continue. If she had
some
inkling from the appellant of the precarious state of the business
and the corner into which the appellant had been forced
by Kusevitsky
(she displayed some knowledge of the acknowledgment letter), her
personal relationship with the appellant together
with her indirect
interest in the business as an employee and as a recipient of the
appellant’s financial aid (inter alia
he had lent her a car)
would be the probable explanation for her conduct. At any rate, no
plausible motive existed for her, on
her own, to have Kusevitsky
killed.
The
money
[48]
Neethling handed R15 000 in cash to the undercover
policemen. She genuinely believed they were hitmen and thus must have
been
confident that she would be able to pay them a further R15 000
after the job was done. They were not people to be trifled with.
She
testified that she did not have the means to pay anyone R15 000,
let alone R30 000.
[49]
Neethling’s evidence in this respect is very
likely to be true. She testified that her net salary was R5500. This
figure was
not challenged in cross-examination. Barkhuizen testified
that he had investigated Neethling’s financial position. He
visited
her residence in Table View. Neethling’s elderly mother
told him that Neethling was paying rent of R2600 p/m and showed him
a
rental receipt. She was supporting her mother and a child. He checked
her bank accounts and could find no evidence that she had
access to
this type of money.
[50]
As at March 2006 the appellant was drawing a net salary
was R39 000. (In a letter of 6 March 2006 Kusevitsky complained
about
the discrepancy between the appellant’s salary and what
Kusevitsky was receiving.) He was presumably receiving a larger
salary
by November 2008. He also received other (illicit) financial
benefits from CBAR, something which he effectively admitted when
signing
the acknowledgment letter.
[51]
Kusevitsky testified that cash from customers who
preferred to make cash payments was handled by the appellant because
he did the
banking. Kusevitsky’s evidence was that after the
appellant’s arrest the forensic auditors in his presence went
through
the cash receipt book. There was an amount just shy of
R40 000 reflected as cash receipts for the period
August-November 2008
which had not been banked. The appellant
confirmed the modus operandi. He said cash went to the administrative
manager first (presumably
that is how the money came to be reflected
in the cash receipt book) and then came to him.
[52]
The appellant did not claim in his evidence that
Neethling would in the ordinary course have had access to R30 000
(something
he might have been expected to know, given their intimate
relationship). When asked where he thought she had got the money
from,
he said he did not know. He suggested that she might have
borrowed it from a bank. He also said that her grandfather had passed
away several months previously and suggested that she might have
inherited money from him. Given Neethling’s very modest
circumstances, it is most unlikely that she would have been able to
borrow the money from a bank. Barkhuizen found no evidence
of this in
his investigation. And such motive as Neethling may have had to do
Kusevitsky harm would not have been so great as to
move her to borrow
R30 000 from a bank. As to the inheritance thesis, it was not
raised with Neethling in cross-examination.
If Neethling had told the
appellant about the death of her grandfather, it is unlikely that she
would not then also have told him
that she would be inheriting money
from him yet the appellant did not claim that she told him anything
of the sort.
[53]
Although the appellant denied being the source of the
money, he did not deny that he would have had access to R30 000.
Kusevitsky’s
photograph and personal information
[54]
Much time was devoted in the court a quo to the source
of the photograph and personal information provided to the purported
hitmen.
The receptionist, Michelle de Villiers, testified that staff
photographs (for ID tags) were downloaded from a digital camera onto
her computer. The photograph which Neethling handed to the putative
hitmen was Kusevitsky’s staff photograph.
[55]
De Villiers testified that only she and the appellant
had the password to her computer. The appellant was able to access
her computer
from his office. She initially testified that Neethling
did not have access to her computer or know her password but in
cross-examination
was willing to concede that Neethling and others
might have had access to her computer when she was absent from work.
[56]
Kusevitsky testified that his photograph was taken by
the appellant personally on the appellant’s own digital camera
which
was smaller than the CBAR camera usually used for staff
photographs. (The appellant denied this.)
[57]
As previously mentioned, no image of Kusevitsky was
found on CBAR’s computer records. The forensic analyst only
examined image
files. If Kusevitsky’s photograph had been
stored as an image file, someone must have deleted it. The analyst
could not exclude
the possibility, however, that the image was stored
in some other way (eg as part of a document).
[58]
Since De Villiers did not supply Neethling with
Kusevitsky’s photograph, the most probable source was the
appellant though
the evidence is probably not strong enough to
exclude as a reasonable possibility that Neethling could have
obtained it without
his assistance. As to the description and
registration number of Kusevitsky’s vehicle and the fact that
he wore a firearm
on his left leg, this information, while definitely
known to the appellant, could have been ascertained by Neethling
independently
from her own observations. And she admitted knowing
that Kusevitsky was married and had two children.
[59]
There is a stronger case that the appellant was the
source of Kusevitsky’s residential address ([...]) and of the
information
that Kusevitsky possibly had a dog. Kusevitsky testified,
and it was not disputed, that for security reasons his residential
address
as at December 2008 was not on record as part of CBAR’s
personnel records. The appellant conceded that he had visited
Kusevitsky’s
home. At that stage Kusevitsky had a Ridgeback
puppy. The appellant thought Kusevitsky’s address may have been
available
in CBAR’s administrative records because CBAR had
attended to the installation of the security system at the house. The
appellant
also knew that Kusevitsky liked dogs and would have seen
the dog at his house.
[60]
As mentioned previously, Bedwell overheard a telephonic
conversation in which the appellant gave Neethling Kusevitsky’s
[...]
address. It is possible, though, that the plan at that stage
was an assault, not a murder.
The
missing telephone records
[61]
It appears highly probable, from Van Rensburg’s
evidence, that telephone call records for 4 December 2008 must have
been deliberately
deleted. If records for that day were deleted, it
greatly increases the likelihood that the missing records for 3
December 2008
were part of a deliberate deletion rather than a
malfunction.
[62]
There is no direct evidence that there were
incriminating telephone calls on 3 or 4 December 2008 between the
appellant and Neethling
or between the appellant and others. Some of
the communication between the appellant and Neethling on those days
took place face-to-face.
Unfortunately some of Neethling’s
answers in the transcript are noted as ‘inaudible’. At
one stage she was asked
how the appellant called her back to the
office. Her answer is ‘inaudible’ but in response to the
next question she
says she went up to his office – this was the
occasion on which he handed her the money. It is likely that there
would have
been some telephonic contact between them.
[63]
There appears to be no other reason than the existence
of incriminating telephone calls for anyone to have deliberately
deleted
logs for 3 and 4 December 2008.
[64]
The appellant was technologically astute. He could, via
the computer in his office, access the call logging system. He did
not dispute
that it would have been possible for him from his office
to have deleted call records though he denied having done so.
[65]
It was not suggested to Neethling in cross-examination
that she had the technological know-how to access the call logging
system
and delete calls. The appellant conceded, furthermore, that
his office was kept locked except when he was there. He said only he
and the IT consultant, Van Rensburg, had access to his computer.
[66]
A further factor militating against Neethling’s
involvement in the deletion of logs is that when she left the office
shortly
before 16h00 on 4 December 2008 she did not know that she was
walking into a trap. She was arrested immediately after her
interaction
with the undercover policemen and so had no further
opportunity to return to the office to delete logs.
[67]
The appellant, on the other hand, found out from Davids
shortly after 17h00 that Neethling had been arrested. If he was part
of
the conspiracy and knew of Neethling’s assignation with the
putative hitmen, he must have known why she had been arrested.
He
would have had the opportunity to return to his office that evening
or early the next morning in order to delete calls from
the logging
system.
Appellant’s
reaction and disappearance
[68]
As just mentioned, the appellant knew shortly after
17h00 on Thursday 4 December 2008 that Neethling had been arrested.
When asked
whether he had tried to contact Neethling, he claimed not
to be able to remember. He confirmed Neethling’s evidence that
her mother had phoned him during the evening to find out where her
daughter was. He had said he did not know. He testified that
he
phoned a police contact to find out where Neethling was being held
but his friend was not available.
[69]
It is common cause that the appellant did not phone
Kusevitsky to tell him of Neethling’s arrest. Indeed he had no
communication
at all with Kusevitsky prior to his arrest.
[70]
There is a factual dispute as to whether the appellant
was at the office on Friday 5 December 2008. Kusevitsky said that he
himself
was there as usual and that the appellant was not present.
Kusevitsky was informed by a staff member that the appellant had come
to the office early and left again.
[71]
The appellant claimed to have been at the office as
usual and that Kusevitsky was absent. This claim is not only at odds
with Kusevitsky’s
testimony but with Barkhuizen’s
evidence. Barkhuizen testified that after interviewing Neethling
during the course of the
Friday morning he wanted to interview the
appellant. Barkhuizen was in frequent contact with Kusevitsky, who
was at the office
and knew that Barkhuizen was looking for the
appellant. Barkhuizen left messages on the appellant’s phone
and even went to
his residence, something he would not have done if
the appellant were at the office. The appellant was not at home.
Although Barkhuizen
spoke with the appellant’s wife, he
described the latter as being delusional and under the influence of
alcohol or drugs.
When it was put to him that the appellant would
testify that he had been at the office on the Friday, Barkhuizen
expressed surprise.
[72]
If the appellant had been at the office and Kusevitsky
had been absent, one would have expected the appellant – if he
were
innocent – to make contact with Kusevitsky. (The converse
is not true because Kusevitsky was firmly of the view that the
appellant had conspired with Neethling to have him killed.) When this
was put to him in cross-examination, he gave the feeble explanation
that he had been busy attending to the payment of salaries. He also
alluded to his strained relationship with Kusevitsky.
[73]
Barkhuizen was not the only person who left messages for
the appellant. Neethling also tried to phone him on the Friday but
his
phone was on voicemail. Barkhuizen continued to phone the
appellant over the weekend without success. Although the appellant
claimed
not to have received these messages, that version is simply
not plausible. Since Davids and Neethling’s mother had
successfully
reached him on his phone, there is no reason why
Neethling and Barkhuizen’s calls would not have reached his
phone.
[74]
Kusevitsky testified that in the ordinary course the
appellant would contact him frequently about relatively minor
business issues.
Kusevitsky regarded the complete absence of
communication from the appellant following Neethling’s arrest
as very unusual.
[75]
On the Sunday morning, having not returned messages from
Barkhuizen and having not yet spoken with his business partner
Kusevitsky,
the appellant booked himself into Kenilworth Clinic. He
remained there incommunicado until, eventually on the afternoon of
Tuesday
9 December 2008, he made contact with Barkhuizen. His
explanation for admitting himself into Kenilworth Clinic is too
coincidental
to be credible. He was the 70% member of CBAR and its
operational manager. He usually worked on weekends. His disappearance
from
the scene, and his failure to apprise Kusevitsky of his
whereabouts and of the fact that he would not be at work for a few
days
(something which could have been done by SMS or email), is
simply not compatible with the behaviour of an innocent man.
[76]
The appellant would have known that he could not evade
Barkhuizen indefinitely. But if he had conspired with Neethling to
murder
Kusevitsky, Neethling’s arrest would have been a great
shock to him. His reaction to the news and his disappearance point
to
the conclusion that he was buying himself time to work out how best
to respond to the crisis.
The
evidence of Lochner and Bedwell
[77]
The matters discussed thus far are largely inferences
based on objective facts. There was, however, some direct evidence
from Lochner
and Bedwell implicating the appellant in a conspiracy.
[78]
Bedwell and Lochner were not precise about the dates on
which certain events occurred. This is not altogether surprising.
They were
testifying more than three and a half years after the
event.
[79]
Bedwell testified about an occasion where Lochner and
she were present with Neethling. The latter asked Lochner (with whom
Neethling
was at times flirtatious) whether he could find someone to
assault Kusevitsky. This seems to have been because of Kusevitsky’s
supposed plan to close the medical division. Neethling also wanted to
make contact with one of Bedwell’s tow-trucking acquaintances
for the same purpose. Neethling did not at this stage refer to the
appellant as part of the plan. On another occasion when Bedwell
and
Neethling were on the road together, Neethling told her that the
appellant wanted Kusevitsky beaten up.
[80]
Not long afterwards – Bedwell thought in early
November 2008 – she and Neethling were in the staff eating area
when
Neethling got a call. Neethling testified that there were days
when the appellant would phone her constantly. On this occasion she
put her phone on speaker and said to Bedwell ‘just listen to
this’. After the call, so Neethling testified, Bedwell
commented that the appellant had ‘gone psycho’.
[81]
Bedwell’s evidence about this incident was that
when Neethling put her phone on speaker, she (Bedwell) could hear
that the
other party was the appellant. She recognised him from a
slight speech impediment. She heard the appellant saying that he
would
‘put the money up’ but that ‘the conversation
never took place and that they never spoke to each other about it’.
Neethling asked the appellant for an address which he gave. This was
in [...]. The name [...] stuck in her memory because when
the
appellant said it the name [...] came into her head. I have already
mentioned that Kusevitsky’s residential address was
not part of
CBAR’s personnel records and would not have been known to
Neethling.
[82]
At this stage, as I understand their evidence, Bedwell
and Lochner thought that the plan was to have Kusevitsky assaulted,
not killed.
[83]
Lochner testified about an occasion when he and
Neethling were on duty together in a vehicle. She asked him to stop
the car and
asked if he knew anyone who could beat someone up. Her
enquiry then escalated to a possible killing. He told her that he
knew of
several such people and mentioned a going price of between
R12 000 and R25 000. She replied that money was not a
problem.
Lochner said it would take about 24 hours to fix a price and
get confirmation. Lochner testified that because Neethling was in a
relationship with the appellant he initially assumed that Neethling’s
plan was aimed at the appellant’s wife. She had
said on several
occasions that she would ‘kill the bitch’. When asked why
he was seemingly willing to help Neethling
in a criminal enterprise,
he said Neethling was a ‘nutcase’ who often spoke
nonsense if she arrived at work under the
influence of alcohol or
drugs. He had in mind to go to the police but wanted to elicit more
information from her so that he could
be sure she was serious. He had
several discussions with her, warning her of what might happen if
things went awry. He said his
last conversation with her, before he
went to the police, was to ask if she was sure she wanted to go ahead
with the job and whether
she understood the consequences.
[84]
Lochner’s evidence was inconsistent as to whether
Neethling mentioned the appellant as being part of the plan. He was
not
an impressive witness. He had a previous conviction for theft and
perjury for which he was sentenced to four years’ imprisonment.
It is clear, however, that by 23 November 2008 he and Bedwell had
concluded that Neethling was in earnest in wanting to arrange
for
someone to kill Kusevitsky. This is the day on which Lochner sent his
warning SMS to Kusevitsky.
[85]
Lochner gave evidence of a further occasion when he was
in the car with Neethling and she spoke with someone on her cell
phone.
Lochner was confident that the other party to the call was the
appellant because Neethling addressed him as ‘Grant’
on
several occasions and used the sort of affectionate language which
was typical of her frequent telephonic conversations with
the
appellant. During the call she told the appellant that she had ‘got
this guy, I need the money, it’s planned’.
She mentioned
a price of R25 000 to the appellant. Lochner testified that
immediately after the call Neethling told him that
she had just been
talking to the appellant. If Lochner was telling the truth and his
recollection is accurate, this probably took
place over the period
25-28 November 2008. By this stage he and Kusevitsky had met with
Barkhuizen but the sting operation had
not yet been authorised. The
figure of R25 000 was the upper range which Lochner had
previously mentioned to Neethling. Since
Neethling seems not yet to
have met with any supposed hitman, she may have been overstating the
position to the appellant in order
to move their plan along.
[86]
Bedwell testified that on a date which was probably
Friday 28 November 2008 she, Lochner and Neethling were working
together. After
finishing at an accident scene, Neethling got a call
to come back to the office. Bedwell dropped Neethling there. The
appellant
was outside to meet her. He put his arm around her to kiss
her but she pulled away. The appellant and Neethling then walked off
together in the direction of the Gardens Centre.
[87]
If Neethling, Lochner and Bedwell are representative of
the private security business, it is none too salubrious. They do not
seem
to have been people with high moral scruples. Lochner, like
Neethling, was not a good witness and Bedwell’s evidence is not
without criticism. Generally, though, the magistrate did not find
anything inherently improbable about their versions. Confusing
though
their evidence may have been, each of them testified to at least one
incident in which the appellant was involved in a plan
with Neethling
to do Kusevitsky harm. The conversation on the speaker phone which
Bedwell overheard was not necessarily, at that
stage, a plan to
commit murder but did involve the appellant as the provider of funds.
The conversation which Lochner overheard
was probably at a time when
matters had progressed to a killing. The evidence of Lochner and
Bedwell also supports Neethling’s
version that her intimate
relationship with the appellant was still in existence.
[88]
If Lochner and Bedwell were intent on falsely
implicating the appellant, they could have fabricated far stronger
evidence of his
involvement in conversations with Neethling.
[89]
The conversations which they respectively overheard did
not constitute hearsay evidence by Neethling concerning the
appellant’s
involvement. If X overhears Y and Z conspiring to
commit a crime, X’s evidence about the discussion is plainly
direct evidence
of the conspiracy. There is no reason to doubt that
Bedwell was able to recognise the appellant’s voice. In
Lochner’s
case, he did not hear the other speaker but gave
credible reasons for his deduction that it was the appellant. On the
other hand,
Neethling’s statement to Lochner, after the call,
that she had just been talking to the appellant is hearsay. It
appears
to have been a narrative statement rather than an executive
statement in furtherance of the conspiracy and is thus probably
inadmissible
despite the hearsay exception recognised in cases such
as
R v Mayet
1957 (1)
SA 492
(A) at 494A-H. I would not attach any independent weight to
Neethling’s narrative statement nor is it necessary to do so
because she testified and gave direct evidence of the appellant’s
involvement (even if not concerning this specific telephonic
discussion, which she may not have recalled).
Kusevitsky’s
evidence
[90]
Kusevitsky testified that Neethling spent a lot of time
in the appellant’s office on 3 December 2008 and on the morning
of
4 December 2008. Because Kusevitsky was aware by this stage of
Neethling’s involvement in a plot to kill him, he kept a close
eye on them. Since she was a paramedic, she should have spent most of
her time on the road. She was still in the appellant’s
office
on the Wednesday when Kusevitsky left the office at sometime after
16h00.
[91]
He went to the appellant’s office around lunchtime
on the Thursday. Neethling was sitting there. He said to the
appellant
that Neethling had been at the office the whole day and
queried why she was not out working. Neethling gave Kusevitsky an
angry
look and stormed out of the office. Kusevitsky testified that
he spoke with the appellant like this because, although he was
anxious,
he was trying to act as normally as possible. He left the
office at around lunchtime. (The appellant confirmed that Neethling
had
been in his office at around lunchtime. He said Kusevitsky had
been very aggressive when complaining about Neethling’s
presence,
something which Kusevitsky denied when it was put to him.)
Factors
in appellant’s favour
[92]
Apart from the evidence he gave in his own defence,
there are two factors which should be mentioned as potentially
counting in the
appellant’s favour.
[93]
The first is that his fingerprints were not found on the
envelope, the photograph or the money whereas Neethling’s
prints
were found on three of the banknotes. Whether her prints were
found on the envelope and photograph is unclear. It is not surprising
that Neethling’s prints should have been found on one or more
of these items since it is the State’s case that she
handed
them to the putative hitmen. If the money was in an envelope, she
would not necessarily have had reason to touch it but
it would not
cause surprise if she did.
[94]
If the appellant was the source of the money, one does
not know how it came into his possession. He may not have touched the
banknotes
directly. If he did, he may not have held them with enough
force to leave fingerprints. The same is true of the envelope and
photograph.
Barkhuizen, for what it is worth, was not particularly
surprised at the absence of prints.
[95]
The other factor I should mention is that Neethling did
not mention the appellant or the involvement of anyone to the
putative hitmen.
The conversations would be consistent with her being
the sole client. However Neethling did not have any particular reason
to tell
the hitmen that the appellant was involved. It was not
something they needed to know. If the appellant was the mastermind,
he would
probably have impressed upon Neethling that she should not
mention his name. (This would be consistent with the discussion
Bedwell
overheard.)
Conclusion
on conviction
[96]
In my view, the circumstantial evidence, coupled with
the direct testimony of Neethling, Lochner and Bedwell despite all
their imperfections
as witnesses, was a formidable case for the
appellant to answer. He did not impress the magistrate as a witness.
In some respects
his evidence was palpably unsatisfactory. He feigned
an absence of recollection about the acknowledgment letter and its
implications
for him financially. He was evasive about the financial
benefit he would derive from the key-man insurance if Kusevitsky
died.
He provided no credible explanation for his failure to
communicate with Kusevitsky about Neethling’s arrest and his
own absence
from work or for his failure to return Barkhuizen’s
messages.
[97]
Although he had no onus to provide an alternative theory
of the case, the fact remains that he could not explain why Neethling
on
her own would have wanted to have Kusevitsky killed or how she
could have raised the money. In the end there was only one version
that was reasonably possibly true, namely that the appellant
conspired with Neethling to have Kusevitsky killed and provided her
with the money, the photograph and the personal information. I am
satisfied that the court a quo reached the correct conclusion.
At any
rate, it has not been demonstrated that the magistrate’s
conclusion was vitiated by material misdirection or that
on the
record it was wrong.
[98]
The appeal against conviction must thus be dismissed.
Sentence
[99]
On conviction for conspiracy to murder, the accused may
be sentenced to the same imprisonment as for murder, save that the
minimum
sentencing regime does not apply. As to the gravity of the
offence, it was undoubtedly serious. The appellant conspired to have
Kusevitsky killed in order to benefit himself financially and
probably to shield himself from prosecution for theft and fraud.
He
gave Neethling the money, photograph and information, knowing that
she was leaving his office to meet the putative hitmen. He
had by
then completed his role. Once Neethling left his office, the matter
was out of his hands. If the men with whom Neethling
met had been
real killers, Kusevitsky would almost certainly have died. If
exposed, the appellant would have been a party to premeditated
murder
carrying a prescribed life sentence.
[100]
However, in judging the seriousness of the crime, one
must not only take into account the accused’s moral
blameworthiness
but the objective gravity of the offence. The moral
blameworthiness of a person who tries to murder another but fails is
no different
from the person who succeeds, but attempted murder is
nevertheless not punished as severely as murder. In the present case,
the
plan to kill Kusevitsky only took distinct shape after Lochner
reported the matter to the police and the sting operation was set
in
motion. Although the appellant and Neethling did not know it, their
plan was doomed to fail. Kusevitsky was not at actual risk
of being
murdered.
[101]
In my view, the magistrate failed properly to bear the
aforesaid distinction in mind. She said that conspiracy to murder
could not
be described as anything ‘but very, very serious’.
Later she said that the prescribed sentence for murder was ‘most
certainly a starting point’ in assessing an appropriate
sentence. The latter observation is incorrect. The fact that the
permissible sentencing range for conspiracy to commit a crime is
determined by the permissible sentencing range for the crime itself
does not mean that the starting point, in a case of conspiracy, is
the sentence which would have been imposed if the crime had
been
successfully committed.
[102]
In regard to the appellant’s personal
circumstances, his only previous convictions were in October 1985
when he was convicted
on one count of theft and four counts of fraud.
These were taken together for purposes of sentence. He was sentenced
to a fine
of R300 or one month’s imprisonment and four months’
further imprisonment suspended for four years. He was only 19 at
the
time. Apart from the fact that these convictions did not involve
violence, they were more than ten years old and should have
been
expunged in terms of s 276B(1) of the Criminal Procedure Act.
Unfortunately the prosecutor made reference to them during
the
cross-examination of Ms Cawood, a social worker called for the
defence, when challenging her view that the appellant has not
displayed anti-social behaviour. Although I do not think the
magistrate attached much weight to the previous convictions, she did
refer to them as undermining Ms Cawood’s opinion. This was a
misdirection.
[103]
Subsequent to his release on bail the appellant
relocated to Durban where he has found employment as a technician
installing television
and audio systems. He is in a committed
relationship with the lady who has a 12-year-old son (the appellant’s
wife and his
children have returned to England). He has complied
scrupulously with his bail conditions. The magistrate found that if
correctional
supervision were otherwise an appropriate sentence, the
appellant was a suitable candidate. The magistrate considered,
however,
that the case was too serious for correctional supervision.
[104]
Mr Scholzel submitted that the magistrate failed
adequately to take into account that the trial dragged on for four
and a half years.
This was a matter to which the magistrate devoted
some attention since Ms Cawood mentioned it as a mitigating
circumstance. Some
of the delay was attributable to the medical
indisposition of the prosecutor (on two occasions) and the magistrate
(on the third
day of a session). The delay from April 2011 (when the
trial was scheduled to start) to September 2011 was because the
appellant
was unwell. A delay of a further year was attributable to
the unavailability of his attorney (in July 2013 he was overseas, in
October 2013 he was unavailable due to a knee operation and in April
2014 he was double-booked in a high court trial). Throughout
the four
and half years the appellant was out on bail (and his bail was
extended pending this appeal).
[105]
Nevertheless, the trial spanned an unacceptably long
period. The magistrate said that it was the longest case she had ever
tried.
The appellant had to travel from Durban for each appearance.
The trial would have occasioned personal and financial stress.
Unfortunately
my impression is that the magistrate was irritated at
Ms Cawood’s suggestion during oral evidence that systemic
problems
in the justice system contributed to this delay. The
magistrate appears to have been intent on minimising the delay as a
factor
in the appellant’s favour. And she overstated the
position, I think, when she said that ‘up to a certain extent,
and
a big extent’ the delay was attributable to the defence.
[106]
Mr Scholzel submitted that the magistrate attached
insufficient weight to the fact that the appellant had already
suffered by losing
his business and reputation in the security
industry. Whether the appellant lost his business due to the criminal
trial and conviction
may be doubted. His financial misdoings had
already been exposed and he had signed the acknowledgment letter. I
accept that the
damage to his reputation might make him unemployable
again in the security industry but like the magistrate I do not
regard this
as a significant mitigating factor.
[107]
As the magistrate observed, the appellant did not
express remorse. But she added that remorse was the ‘flipside
of the coin
of mercy’ and that she could not really give
consideration to the element of mercy in the absence of remorse. Here
the magistrate
fell into error. Mercy is not a reward for remorse. In
S v Rabie
1975 (4) SA
855
(A) Holmes JA said that mercy or compassion or plain humanity had
nothing in common with ‘maudlin sympathy for the accused’.
It is a ‘balanced and humane quality of thought’ which
tempers one’s approach when considering the
Zinn
triad. One does not first determine an
appropriate sentence and then reduce it for the sake of mercy
(861D-E). Mercy, or a balanced
and humane way of thinking, infuses
the assessment of the three
Zinn
considerations; it is not an independent
fourth element (
S v Roux
1975
(3) SA 190
(A) at 197E-198C).
[108]
It will be recalled that Neethling was given a wholly
suspended sentence of two years’ imprisonment. The magistrate,
in sentencing
the appellant, said that she had to consider the
sentence imposed on Neethling. How she did so, regrettably, does not
appear from
her judgment. Earlier in her reasons, in dealing with the
gravity of the offence, she said that Neethling may have been a ‘foot
soldier’ but that the appellant was ‘pulling the
strings’. The magistrate considered, when it came to
blameworthiness,
that he had played a bigger role than Neethling. As
against this, there is the fact that in the judgment on conviction
the magistrate
found that Neethling downplayed her involvement. It is
true that the appellant’s blameworthiness is greater than hers,
given
that he was in a position of authority over her and that she
was vulnerable to his influence emotionally and financially. On the
other hand, she too may have stoked the fires of resentment in him.
There was not a large gulf between their respective levels
of
culpability.
[109]
Generally one should strive to punish co-perpetrators
equally unless there are circumstances justifying differential
treatment.
Justice must not only be done but be seen to be done. The
imposition of unequal sentences on equally guilty perpetrators
violates
one’s sense of justice. This principle applies even
where co-perpetrators have been tried separately. Where there is a
disturbing
disparity in sentences, and the degrees of participation
are more or less equal, and there are not personal circumstances
warranting
the disparity, appellate interference may be warranted on
the ground that the harsher sentence is disturbingly inappropriate.
This
is subject to the important qualification that the milder
sentence should not have been unreasonably lenient. If the milder
sentence
was clearly inappropriate, an appeal against the harsher
sentence would have to be assessed on its own merits and subject to
the
usual restraints on appellate interference (see
S
v Marx
1989 (1) SA 222
(A) at 225B-226B).
[110]
There is an enormous difference between the sentence
imposed on Neethling and the sentence imposed by the court a quo on
the appellant.
If Neethling’s sentence was within a reasonable
range of permissible sentences, one would have to conclude that the
appellant’s
sentence was disturbingly inappropriate.
Unfortunately Neethling’s plea and sentence agreement was not
placed before the
court a quo and we thus do not know the factual
basis on which she was sentenced. We also do not know the personal
circumstances
which were placed before the sentencing court (which
may have involved her role as a caregiver for her son). If the
appellant wished
to rely on Neethling’s sentence as a factor
relevant to his own, he should have placed the relevant facts before
the court
a quo.
[111]
I must say, though, that however favourable a gloss
Neethling may have put on the case when she was sentenced, a wholly
suspended
sentence of two years’ imprisonment seems to me to be
inappropriately lenient. I would thus not regard it as a basis for
branding the appellant’s sentence as disturbingly
inappropriate.
[112]
Nevertheless, and assessing the appellant’s
sentence along conventional lines, I do regard the sentence of nine
years’
imprisonment (two of which were suspended) as
disturbingly inappropriate. I have already indicated that the
magistrate misdirected
herself in assessing the seriousness of the
offence, the element of delay and the appropriate role for mercy. The
magistrate directed
strong criticism at Ms Cawood. I have mentioned
this in regard to the issue of delay. The magistrate also took
umbrage at Ms Cawood’s
statement in her report that there was
‘no concrete evidence’ of the appellant’s guilt and
that she ‘found
the logic of the judgment hard to follow’.
The magistrate criticised the appellant’s attorney for allowing
these statements
to appear in the report. Although the magistrate was
entitled to regard the inclusion of this matter as inappropriate, I
cannot
resist the conclusion that the appellant suffered because the
magistrate’s assessment was clouded by her annoyance with Ms
Cawood and her irritability with the appellant’s attorney.
[113]
I thus think we are entitled to interfere with the
sentence. I agree with the magistrate that a sentence of correctional
supervision
would be too lenient. Having regard to the appellant’s
clean record, his personal circumstances and the lengthy delay in the
completion of the trial, I think an appropriate sentence would be
seven year’s imprisonment of which three years should be
suspended on appropriate conditions.
Order
[114]
The following order is made: (i) The appeal against
conviction is dismissed. (ii) The appeal against sentence
succeeds.
The sentence imposed by the court a quo is set aside and
replaced with the following: “The accused is sentenced to a
period
of seven year’s imprisonment of which three years is
suspended for five years on condition that the accused is not found
guilty of murder or attempted murder or conspiracy to commit murder
or assault with intent to cause grievous bodily harm committed
during
the period of suspension.”
______________________
ROGERS
J
______________________
PARKER
AJ
APPEARANCES
For
Appellant
Mr
H Scholzel
For
Respondent
Mr
ADR Stephen SC
Office
of the Director of Public Prosecutions
Western
Cape