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[2016] ZAGPJHC 136
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Khabeer v S (A300/2013) [2016] ZAGPJHC 136 (2 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A300/2013
DATE:
2 JUNE 2016
In
the matter between:
KHABEER,
MOOSA
ABDUL
.................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
MUDAU
J:
[1]
The
appellant, Mr Moosa Khabeer Abdul, was charged in the Johannesburg
Regional Court, with one count of attempted murder of his
former wife
(the complainant). Pursuant to his conviction on the attempted murder
charge, he was sentenced to 10 years’ direct
imprisonment. In
terms of
s 103
(1) of the
Firearms Control Act 60 of 2000
, there was
no order made by the court regarding his fitness or otherwise to
possess a firearm. The appeal is against sentence only
with leave of
the court (the petition to appeal against conviction having been
unsuccessful before this court and on further petition
to the Supreme
Court of Appeal).
[2]
Concurrently with the prosecution of his appeal the appellant seeks
an order on notice of motion that an ‘updated’
pre-sentence report, contained in an affidavit deposed to by a
certain criminologist, compiled on 20 May 2016 at the request of
his
instructing attorney, be received by this court as further evidence
in the determination of the appeal. The application
was bought
on the eve of the appeal hearing and is predictably opposed by the
State.
[3]
It is trite that the power to receive further evidence on appeal will
be sparingly exercised by the court. Further evidence
will only be
allowed in exceptional circumstances for the reason that there has to
be finality in cases. The requirements to receive
further evidence on
appeal are: (a) there should be some reasonably sufficient
explanation, based on allegations which may be true,
why the evidence
which it is sought to lead was not led at the trial; (b) there should
be a
prima
facie
likelihood of the truth of the evidence; and (c) the evidence should
be materially relevant to the outcome of the trial.
See:
S
v de Jager
[1]
and
S
v Ndweni & others
[2]
.
[4]
In this matter, if the evidence was to be allowed, it does nothing
more than show that the appellant and his children have added
more
years to their respective ages. Of the dependent children all have
since reached the age of majority, but one (now 17 years
old).
Counsel for the appellant was constrained to concede however, that
the current ages of all concerned could easily be determined
from the
evidence already before court without burdening the court record with
the extra evidential material. Furthermore, that
the proposed
pre-sentence report by a criminologist on the main, is nothing more
than a repetition of what was already before court.
The major
development in the appellant’s life being that, the appellant
has since remarried, which the State was clearly
willing to accept.
In my respectful view,
t
he
evidence sought to be adduced is not materially relevant to the
outcome of this appeal. Its addition would therefore, not serve
any
real purpose other than to burden the court record unduly by making
it prolix.
[5]
As the appeal is against sentence only certain facts which are
germane to the determination of an appropriate sentence for the
appellant deserve to be briefly recounted. The charge of attempted
murder arose from an incident at the gate of the matrimonial
home the
appellant and the complainant were still sharing on the night of 14
December 2006. The complainant lived in the matrimonial
home whereas
the appellant lived in a flat with another son from a previous
relationship at the back of the house. When the incident
of attempted
murder occurred they had been divorced for almost a year, with the
divorce decree having been granted on 25 September
2005
.
The
parties had been married since 1996. It was common cause that the
complainant had obtained a protection order interdict in terms
of the
relevant provisions of the
Domestic
Violence Act 116 of 1998
against
the appellant in March 2006.
[6]
The appellant belonged to a number of shooting clubs. He also had the
garage of their house converted into an indoor shooting
range
.Consequently, an assortment of various firearms that included an
AK-47 assault rifles, machine guns, shotguns and handguns
that the
appellant had lawfully in his possession, were confiscated by the
police.
[7]
After the divorce a lengthy court battle regarding the division of
the estate continued. Eventually, an order was made that
the
complainant was entitled to 20% of the estate. In November 2006, an
application by the appellant to have the complainant evicted
from the
common home was dismissed by this Court.
[8]
On that fateful night, the complainant left the home of one Leonard
and drove home followed by the latter in a separate car.
She had
asked Leonard to escort her as she was scared of driving alone by
reason of the conduct of the appellant since their divorce.
Upon
arriving home at about 10:30 PM, Leonard drove past the house and
made a U-turn a block away after she had turned into her
driveway.
The lights at her gate which are usually on during the night were to
her surprise off. She pressed the remote control
button for the gates
to open to no avail although the gate motor was running. She had no
choice but to alight from her car and
opened the one gate manually.
She was about to open the second gate when she saw the
appellant who stood about 4 meters away
in the driveway with a gun in
hand. Without a word the appellant fired four shots at her. She was
as a result struck by a bullet
or bullets on her left arm and left
breast.
[9]
After being shot she tried to crossover the street but fell on the
road. The appellant went over where she was and told her
that he did
it because she had taken him to court. She requested the appellant to
take her to the hospital. The appellant did so
but was in no hurry to
get her to the hospital as he drove slowly and even stopped when the
robots were green for him to proceed.
At the hospital, the appellant
informed the nursing staff that the complainant was shot during a
robbery in her driveway which
he also noted on her hospital file. The
complainant vehemently denied this and told them instead that it was
the appellant who
shot her. The police were called and the appellant
was subsequently arrested.
[10]
The appellant’s version of denial of any wrongdoing and that
the complainant was shot in what he thought was a botched
hijacking
as he woke up to the sound of a gunshot was rejected by the trial
court for a number of reasons. The trial court found
it unlikely that
the gate would not open as a result of any electrical fault, for the
appellant’s adult son was shortly after
the shooting incident,
able to open and close the gate with a remote control.
[11]
The trial court also found it highly unlikely that ‘a hijacker’
who would have had to climb a 1.8 m high wall or
gate with an
electric fence on top in order to disconnect the gate motor, was
involved, for it required prior knowledge that the
complainant was
out that evening and the time she was most likely to return home. The
fact that the complainant was unarmed and
a ‘soft target’
coupled with the fact that the car was not taken once she was outside
during her attempt to open the
gate made the appellant’s
version highly improbable.
[12]
The appellant’s conduct after the hijacking reflected an
inexplicable lack of interest in contacting the police. In my
view,
the trial court’s rejection of the appellant’s version is
unassailable. I am satisfied that the court below was
correct in
accepting the evidence of the complainant in her identification of
the appellant as the person who attempted to kill
her and in its
rejection of his version that it was a hijacking gone wrong. It
follows, accordingly, that the appellant was justly
convicted.
[13]
This brings me to the question of an appropriate sentence in this
appeal. It is a well-established principle of our law that
sentencing
remains pre-eminently within the discretion of the court that dealt
with the aspect of sentencing. The effect thereof
means that a court,
on appeal, does not enjoy unfettered powers to interfere with a
sentence which has been properly imposed by
a sentencing court. This
court, on appeal, is only at liberty to interfere with the sentence
imposed by the trial court where it
is vitiated by a material
misdirection or where there is an immense disparity between the
sentence of the trial court and the sentence
that the appellate court
would have imposed, had it been the trial court. Put differently, if
the sentence is so marked that it
can be described as ‘shocking’,
‘startling’, or ‘disturbingly inappropriate’
(See S v
Pieters
[3]
;
S v
Malgas
[4]
;
Director of Public Prosecutions v
Mngoma
[5]
;
and S v
Le
Roux & others
[6]
.)
[14]
The court below accepted at the time of sentencing that the appellant
was 54 years old and a divorcee with seven children three
of whom
were still minors. Four of the children lived with him. The appellant
is a businessman involved in property development
as well as a
qualified gemmologist who dealt in precious stones with a licence in
dealing in diamonds. He owns a number of properties
and businesses
with about 39 employees under his wing. There were over hundred
tenants staying at that time in the flats that he
owned. From his
version, appellant earned R25 000-00 per month. At the time of
sentencing, he was a first time offender. However,
the appellant was
subsequently convicted on 17 April 2009 of assault committed on 30
September 2008 but a subject of an appeal.
He was as a result,
sentenced to a term of imprisonment coupled with an option of a fine
of which half thereof was suspended on
customary terms.
[15]
The court below found that the appellant was not a candidate for the
correctional supervision sentence as suggested on his
behalf. It was
noted that the complainant on two occasions applied for a protection
order against him as he physically and emotionally
abused her. The
court instead found that the appellant showed no remorse for the
crime committed and further that the circumstances
of this particular
case called for a direct term of imprisonment.
[16]
The court below also found that the minimum sentence provisions of
the Criminal Law Amendment Act 105 of 1997 (the CLAA) are
inapplicable as there was no reference to the relevant provisions in
the charge sheet. In terms of the provisions of s 51 (2) (c)
(i) of
the CLAA, a first time offender convicted of an offence involving the
use of a firearm is liable to a minimum sentence of
five years,
provided that a regional court may only impose imprisonment that does
not exceed by five years more than the minimum
sentence imposed .
[17]
It was contended on behalf of the appellant that the imposition of
the maximum period of 10 years imprisonment, which the court
below
would by law have been empowered to impose had the minimum sentence
legislation been applicable, is indicative of the inappropriateness
of the sentence. The ground on which the appellant relied in this
regard is fallacious. The maximum penal jurisdiction of a regional
court is 15 years in terms of the Magistrates’ Courts Act
[7]
.
The natures of punishment that may be imposed by a court are set out
in s 276(1) of the Criminal Procedure Act 51 of 1977 (the
CPA), which
includes imprisonment.
[18]
The appellant sought to persuade this Court that the complainant
played a part in precipitating the offence committed. The
evidence by
the forensic criminologist called on behalf of the appellant being
that the appellant had low levels of self-control
brought about by
extensive relocations in the family earlier in his youth. This
resulted in a degree of instability and ‘erraticness’
on
his part
.
A
combination of other factors such as the frustrations he had with his
two ex-wives, the incident where he was defrauded of money
by his
bookkeeper in 2002 as well as the complainant returning late to the
residence at the time of the night. It is highly unlikely
that a
combination of these incidents played a part as a trigger or
otherwise in the appellant’s shooting of the complainant
in the
manner he did. There is in my view, no rational connection between
the 2002 fraud incident involving the bookkeeper and
the attempted
murder years later.
[19]
On the contrary, the appellant’s actions on the night in
question were that of someone acting rationally, purposefully
and
above all, goal-oriented. It is contrary to when someone acts with
their temper and commits regrettable acts when they should
have known
better
.
In
the instant case the appellant had powers of discernment and
restraint, when his conduct is objectively viewed. The appellant
was
without doubt subjected to stressing conditions in his personal life
but faced no more than millions of couples who do not
resort to this
kind of extreme violent behaviour.
The objective
evidence supports the State's contention that the appellant was not
only fully aware of his actions but that there
was premeditation in
the commission of the offence.
[20]
The trial court’s sentence is also assailed on the basis that
the guidelines laid down by the Constitutional Court in
S
v M
(
Centre
for Child Law as Amicus Curiae
[8]
)
regarding the rights of children when imprisonment is considered for
primary caregivers were ignored. Briefly in
S
v M
,
M was the sole caregiver of her three children, and was financially
responsible for them as well. She had been convicted
previously
of fraud and was a compulsive gambler which was the reason for her
fraudulent conduct. She was convicted on 38 counts
of fraud involving
a total of R29 000-00 and as a result sentenced to four years’
imprisonment. On appeal to the High
Court (Western Cape) one of the
counts of fraud involving R10 000-00 was set aside. The high
court also reduced her sentence
to five
years’
imprisonment
as
intended in s 276(1) (i) of the CPA. She had already served several
months in prison when her appeal to the Constitutional Court
was
considered. The Constitutional Court upheld her appeal in part and
sentenced her to four years’ imprisonment, wholly
suspended on
customary conditions, and placed her under correctional supervision
in terms of s 276(1)(h) of the CPA.
[21]
Reliance on
S
v M
given
the nature and facts in this case is misplaced. To start with, the
offences committed are worlds apart. The mother in
S
v M
was a
single parent and was almost exclusively burdened with the care of
her children. There was no other parent who could, without
disruption, step in during her absence to nurture the children, and
provide the care they need, and to which they were constitutionally
entitled. In this case, the distinguishing feature is that according
to the evidence before the trial court, the appellant is not
a single
parent as their mothers of his children were in Roodepoort.
Furthermore, he has since remarried.
[22]
It is also trite that when considering the best interests of children
a court must consider evidence as to their current position
to
determine what their best interests require (see in this regard De
Villiers v S
[9]
). Favourably in
this case, the remaining minor has in any event, a mother figure in
the person of the appellant’s current
wife. Significantly
however, the Constitutional Court recognized in M’s case that a
custodial sentence of a primary caregiver
may be appropriate under
certain circumstances (see para 36). One is inclined to add that this
largely depends on the nature and
seriousness of the crime committed.
[23]
It is a notorious fact that instances of crime perpetrated against
women in particular in this country are unacceptably high.
These
attitudes towards women inherently undermine the right to human
dignity, the right to freedom and security of their persons,
the
right to privacy and the right to freedom of association as enshrined
in the Bill of Rights.
Also
apposite in this regard is what
was
pointed out in
Mudau
v S
[10]
where the SCA held as follows:
‘
Domestic
violence has become a scourge in our society and should not be
treated lightly, but deplored and also severely punished.
Hardly a
day passes without a report in the media of a woman or child being
beaten, raped or even killed in this country. Many
women and children
live in constant fear. 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 Chapman
[11]
when
this Court said the following:
“
Women
in this country have a legitimate claim 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 diminishes the quality and enjoyment of their lives.’
[23]
The nature of the offence committed
and the interests of society call for a sentence in this matter as
the court below found, that
would constitute punishment, in my view,
commensurate with the seriousness of the crime and must serve as a
deterrent for other
would be offenders. This should of course be
balanced with the appellants’ personal circumstances and
blended with a measure
of mercy. From a proper reading of the
pre-sentence reports,
the
appellant is a self-confessed millionaire. However, in dealing with
the question of sentence an impression must therefore not
be created
that there are two streams of justice, one for the rich and one for
the poor. Everyone is after all, equal before
the law. It is
clear that the nature of some of the appellant’s businesses can
still be run successfully, and the children
can get material support,
without his personal involvement.
[24]
The aggravating features of the crime of which the appellant has been
convicted, the need for deterrence and retribution, and
the interests
of society that a woman should be able to make free and unfettered
choices without fear of reprisal from a former
spouse regarding the
gender of people she socialises with at whatever time, must be
weighed with the appellant’s mitigating
factors as well as his
relevant personal circumstances. It is clear that the appellant
showed no genuine remorse but is in all
probabilities feeling sorry
for the predicament he finds himself in. It is furthermore,
aggravating that the appellant committed
the offence in issue whilst
he already had a protection order issued against him by a court of
law.
[25]
In my view, the sentence imposed by the sentencing court in this case
can hardly be described as ‘shocking’, ‘startling’,
or ‘disturbingly inappropriate’.
A
non-custodial sentence would be outrageously unsuitable given the
aggravating features alluded to in this matter.
The
delay in the prosecution of this appeal can only be placed at the
appellant’s door as chronicled in the record of this
matter and
cannot be used to justify a sentence manifestly unjust (i.e. the
matter was at one stage enrolled whereas he was waiting
for the
outcome of his petition to the SCA and lastly, where no heads had
been filed). I am by no means persuaded that the court
below
misdirected itself in its sentencing approach. Justice shall best be
served if the appellant serve his due as the appeal
is without merit.
Acting out of extreme caution, I however direct that a copy of this
judgment be brought to the attention of the
relevant welfare
authorities in Gauteng in the interest of the appellant’s 17
year old child to monitor developments.
[25]
Accordingly
the following order is issued:
1.
The application to lead
further evidence is dismissed.
2.
The appeal against sentence is dismissed.
MUDAU
J
JUDGE
OF THE HIGH COURT
I
agree.
SWARTZ
AJ
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 30 May 2016
Judgment
Delivered: 2 June 2016
APPEARANCES
On
Behalf of the Appellant: Adv M Kolbe
Instructed
By: Nardus Grove Attorneys
Johannesburg
On
Behalf of the Respondent: Adv I Bayat
Instructed
By: Director Public Prosecutions
Johannesburg
[1]
S
v de Jager
1965
(2) SA 612
(A)
at
613C-D.
[2]
S
v Ndweni & others
1999
(4) SA 877
(SCA)
at 880D.
[3]
S
v
Pieters
1987
(3) SA 717
(A)
at 727F-H
[4]
S
v
Malgas
2001
(1) SACR 469
(SCA)
para 12
[5]
Director
of Public Prosecutions v
Mngoma
2010
(1) SACR 427
(SCA)
para 11.
[6]
S
v
Le
Roux & others
2010
(2) SACR 11
(SCA)
at 26b-d.
[7]
Magistrates’
Courts Act 32 of 1944 (s 92 (1) (b)).
[8]
S
v M
2007
(2) SACR 539
(CC).
[9]
De
Villiers v S
(2016 (1) SACR 148
(SCA) );
[2015] 4 All SA 268
(SCA)
(11 September 2015).
[10]
Mudau
v S
[547/13)
[2014] ZASCA 43
(31
March 2014) para 6]
.
[11]
S
v Chapman
(345/96)
[1997]
ZASCA 45
;
1997
(3) SA 341
(SCA)
at 345A-B.