About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 20
|
|
Humphreys v S (424/2012) [2013] ZASCA 20; 2013 (2) SACR 1 (SCA); 2015 (1) SA 491 (SCA) (22 March 2013)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 424/2012
In
the matter between:
JACOB HUMPHREYS
...............................................................................
APPELLANT
v
THE
STATE
..............................................................................................
RESPONDENT
Neutral citation:
Humphreys
v The State
(424/12)[2013] ZASCA 20 (22 March 2013).
Coram:
Brand, Cachalia, Leach
JJA and Erasmus and Van der Merwe AJJA
Heard:
11 March 2013
Delivered: 22 March 2013
Summary: Collision between train
and minibus – 10 passengers in minibus died and 4 seriously
injured – driver of minibus
convicted in High Court of murder
and attempted murder – on appeal defence of automatism
considered but not upheld –
held further that negligence had
been established but not
dolus eventualis
– convictions
of murder consequently replaced with culpable homicide and
convictions of attempted murder set aside –
effective sentence
of 20 years’ imprisonment reduced to 8 years.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court, Cape Town (Henney J sitting as court of first instance):
1. The appeals against the fourteen
convictions and the sentences imposed by the trial court are upheld.
2. The ten convictions of murder are
set aside and replaced with ten convictions of culpable homicide.
3. The four convictions of attempted
murder are set aside.
4. The sentences imposed by the trial
court are set aside and replaced with the following:
‘
Eight years’
imprisonment which is ante-dated to 28 February 2012.’
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA (CACHALIA, LEACH JJA and
ERASMUS and VAN DER MERWE AJJA
):
[1] The appellant, then in his late
fifties, was charged in the Western Cape High Court, Cape Town before
Henney J with ten counts
of murder and four counts of attempted
murder. All these charges arose from a single incident which occurred
on 25 August 2010
when a minibus, driven by the appellant, was hit by
a train on a railway crossing near Blackheath on the outskirts of
Cape Town.
There were fourteen children in the minibus, ranging in
ages between seven and sixteen years. Ten of the children were
fatally
injured in the collision, which gave rise to the ten charges
of murder. Four of them fortunately survived, but were seriously
injured.
They were cited as the complainants in the four charges of
attempted murder. At the end of the trial the appellant was convicted
as charged on all fourteen counts and sentenced to an effective
period of 20 years’ imprisonment. The appeal against both
the
convictions and the sentences imposed is with the leave of this
court.
[2] At the trial five witnesses were
called on behalf of the State. Of these, four were eyewitnesses while
the fifth was an engineer
in the employ of Metrorail who gave
evidence about the technical aspects regarding traffic control at the
railway crossing where
the accident occurred. Two of the four
eyewitnesses were passengers in the minibus driven by the appellant.
They were respectively
seventeen and sixteen years old and in grades
9 and 10 at school. The third eyewitness was the driver of the train
that collided
with the appellant’s minibus, while the fourth
was waiting in his stationary car at the railway crossing immediately
before
the collision occurred. There were differences in detail
between the state witnesses. The court a quo found these differences
unsurprising
in the circumstances and not so serious as to affect the
credibility of any of them. I find no reason to interfere with that
finding.
The appellant gave evidence in his defence. The differences
between his version, on the one hand, and the one presented by the
state witnesses, on the other, are on peripheral matters only. This
resulted mainly from the appellant’s version that he had
no
recollection of what happened at the crucial time shortly before and
at the time of the collision. In consequence, the background
facts
can mostly be recounted without reference to their evidential source.
[3] At the time of the most tragic
incident that gave rise to this case, the appellant was 55 years of
age. For most of his adult
life he worked as a shunter for Transnet.
After his retirement he was requested by parents in Eerste River,
where he lived, to
start a shuttle service for their children to
schools in the Bellville area. He did so from about 2001. At the time
of the collision
he had therefore used the same route that traverses
the railway crossing, where the accident occurred, for nearly ten
years. His
approach to the crossing took him along Frederick Street
which runs parallel to the railway line, that is, roughly from north
to
south. It also took him along Buttskop Road, which runs from east
to west and crosses the railway line. Frederick Street joins Buttskop
Road on its northern side to form a T-junction, not far from the
railway crossing. So it happened that shortly before 7 am on 25
August 2010 the appellant was driving his minibus carrying fourteen
school children on Frederick Street. As he approached the T-junction
there was a line of stationary vehicles waiting to enter Buttskop
Road. The two passengers who gave evidence testified that the
appellant overtook these vehicles. The appellant, however, denied
that he did so. The court a quo accepted the version of the two
passengers and I can see no reason to interfere with that credibility
finding on an issue which, in any event, appears to be of
peripheral
relevance only.
[4] When the appellant reached
Buttskop Road, vehicles were again queuing to cross the railway line.
Although the railway line was
on the appellant’s right side
when he reached the T-junction, he therefore had to turn left and
make a U-turn in Buttskop
Road to join the queue. By all accounts,
that is what the appellant did. According to the appellant’s
version he can remember
stopping behind the last vehicle in the
queue, but not what he did after that. What then happened, according
to the eyewitnesses
was that the appellant overtook the line of
vehicles on their right-hand side and approached the crossing in the
lane destined
for oncoming traffic. The crossing is controlled by two
booms in Buttskop Road, one for traffic from the east – as the
appellant
was approaching – and the other for traffic from the
west. Because the booms are positioned on different sides of the
railway
line, they can be avoided, even when they are down, by going
onto the lane intended for oncoming traffic and by then returning to
the correct lane to pass the boom on the other side. On both sides of
the railway line there are also large stop signs as well
as other
traffic signs indicating a railway crossing. In addition there are
large red warning lights directed at traffic in Buttskop
Road that
start flashing when a train approaches the crossing and just before
the booms come down.
[5] At the time when the appellant
overtook the line of vehicles in Buttskop Road, Mr Stewart Pekeur was
the driver of the car waiting
in front of that queue. He testified
that he had stopped because the red lights were flashing. At that
stage, Pekeur said, the
booms had not yet come down. According to
Pekeur they did, however, come down before the minibus came past him.
Because the appellant
was already in the lane intended for oncoming
traffic, he could enter the crossing without any hindrance from the
boom on the eastern
side, which is what he then did. In sum, Pekeur’s
version that the minibus entered the crossing in the face of flashing
warning
lights and by dodging the barrier created by the boom, was
confirmed by the two passengers and the train driver. It is common
cause
that, upon entering the crossing the minibus was hit on its
left side by the train which, according to the train driver, had no
chance to avoid the collision. From an inspection in loco the court a
quo determined that, from the time that the red warning lights
start
flashing, it takes a few seconds for the boom to come down.
Thereafter, it takes about one minute for the train to reach
the
crossing.
[6] According to the appellant he was
also seriously injured in the accident and was admitted to hospital
for five days. He further
maintained that he remembered absolutely
nothing, from the time that he stopped behind the last vehicle in the
queue in Buttskop
Road, until he regained consciousness after the
accident. Both passengers testified that the appellant had
successfully executed
the same manoeuvre that led to the accident on
the fateful day on two previous occasions. According to the one
witness, he had
entered the railway crossing on those occasions after
the booms had already come down while the other witness recalled that
on
those occasions the red lights were already flashing, but the
booms had not yet come down. The appellant emphatically denied that
this ever had happened. The court a quo, however, preferred the
version of the state witnesses and, in my view, rightly so.
[7] On these facts the appellant’s
contention, in the main, was that the State had failed to prove the
element of murder described
as
dolus
or intent. His
submissions in support of this contention were encapsulated in his
heads of argument:
‘
When
the appellant made the U-turn [in Buttskop Road] he must have
realised that the level crossing danger lights were activated
and
that the booms were closing. If the actions of the appellant were
conscious and deliberate he would have realised the dangers
involved,
as he was a railway worker. Therefore it is submitted that it is
highly improbable that his actions were conscious and
deliberate. It
was a suicidal movement which, it is submitted, no reasonable person
would have made if he was conscious of his
actions.’
[8] This submission, I think,
demonstrates confused reasoning. If the appellant was indeed not
conscious of his actions, the defence
available to him would be that
he did not act voluntarily. Since it is a trite principle of our law
that a voluntary act is an
essential element of criminal
responsibility, the appellant would indeed be entitled to an
acquittal if his actions were attributable
to mechanical behaviour or
muscular movements of which he was unaware and over which he had no
control. Since this type of involuntary
behaviour is more reminiscent
of the activities of an automaton rather than a human being, the
defence has become known as one
of ‘automatism’ (see eg C
R Snyman
Criminal Law
5 ed (2008) at 55 and the cases there
cited).
[9] When the defence of automatism is
raised, the onus is on the State to establish the element of
voluntariness beyond reasonable
doubt (see eg
S v Potgieter
1994
(1) SACR 61
(A) at 72j-73g;
S v Cunningham
1996 (1) SACR 631
(A) at 635i). However, as was pointed out in
Cunningham
, the
State is assisted (in discharging this onus) by the inference
dictated by common experience that a sane person who becomes
involved
in conduct which attracts the attention of the criminal law
ordinarily does so consciously and voluntarily. In order to
disturb
this natural inference, an accused person who seeks to rely on the
defence of automatism is thus required to establish
a factual
foundation, sufficient at least to raise reasonable doubt as to the
voluntary nature of the alleged criminal conduct.
[10] By its very nature, only the
accused person can give direct evidence as to his or her level of
consciousness at the relevant
time. However, if the mere say-so of
the accused person that the act was unconsciously committed were to
be accepted without circumspection,
it would tend to bring the
criminal justice system into disrepute. After all, an accused person
who has no other defence is likely
to resort to this one in a last
attempt to escape the consequences of his or her criminal behaviour.
Hence it has been emphasized
in earlier cases that the defence of
automatism must be carefully scrutinised (see eg
S v Potgieter
supra
at 73c). Generally speaking, expert medical evidence will
be required (see eg
S v Cunningham supra
at 636A-B). But
absent such evidence, the court will require some indication of an
emotional stimulus that could serve as a trigger
mechanism for the
unusual condition of sudden absence of cognitive control. Such
trigger has been found in circumstances giving
rise to stress,
provocation, frustration, fatigue and so forth (see eg
S v
Potgieter supra
at 74a;
S v Henry
1999 (1) SACR 13
(SCA)
at 21b-g;
S v Eadie
2002 (1) SACR 663
(SCA) para 16). Another
consideration that comes into play is that subconscious repression of
an unacceptable memory, described
as amnesia, does not mean that the
accused person acted involuntarily and the defence of automatism is
thus not available in these
circumstances (see eg
S v Henry supra
at 20g-i).
[11] Appraised against these criteria,
I think the court a quo was right in finding that the appellant did
not even come close to
establishing a factual basis for any doubt
about the voluntariness of his conduct. No expert medical evidence
was tendered on his
behalf. On the appellant’s own evidence
there is a glaring absence of any suggestion as to what could have
triggered the
rare condition of sudden unconsciousness. On the
contrary, the appellant disavowed any intimation that he was under
stress, or
that he was fatigued, angry or emotionally upset in any
way. Moreover, there is evidence that the appellant had executed the
same
movement of entering the railway crossing despite clear warning
of an approaching train in the past. In view of this evidence, I
believe it can be inferred safely that the appellant knew exactly
what he was doing when he tried to perform the same exercise
on the
fateful occasion. The only difference is that on this occasion he was
unsuccessful in doing so. At best for the appellant
it could be
inferred that he was suffering from retrograde amnesia, which is no
defence in itself. Consequently, it is not necessary
to decide
whether or not the appellant was truthful in pleading total inability
to recall the most crucial details of the tragic
event. Suffice it to
say that his defence of automatism cannot be sustained.
[12] Nonetheless and despite the
confused reasoning demonstrated by the appellant’s argument,
the fact remains that a voluntary
act and
dolus
are two
discreet requirements for a conviction of murder. It follows that the
presence of the one does not presuppose the existence
of the other.
Despite the establishment of voluntary conduct, the question
therefore remains: did the court a quo correctly find
that the
appellant had the requisite intent to cause the death of ten of his
passengers and attempt to take away the life of four
others? In
arriving at the conclusion that he did, the court accepted, rightly
in my view, that the appellant had no desire to
bring about the death
of his passengers. Consequently it found that the appellant did not
have
dolus directus
or direct intent. What the court did find
was that he had intent in the form of
dolus eventualis
or
legal intent. In accordance with trite principles, the test for
dolus
eventualis
form is twofold: (a) did the appellant subjectively
foresee the possibility of the death of his passengers ensuing from
his conduct;
and (b) did he reconcile himself with that possibility
(see eg
S v De Oliveira
1993 (2) SACR 59
(A) at 65i-j).
Sometimes the element in (b) is described as ‘recklessness’
as to whether or not the subjectively foreseen
possibility ensues
(see eg
S v Sigwahla
1967 (4) SA 566
(A) at 570). I shall
return to this alternative terminology, which sometimes gives rise to
confusion.
[13] For the first component of
dolus
eventualis
it is not enough that the appellant should
(objectively) have foreseen the possibility of fatal injuries to his
passengers as a
consequence of his conduct, because the fictitious
reasonable person in his position would have foreseen those
consequences. That
would constitute negligence and not
dolus
in any form. One should also avoid the flawed process of deductive
reasoning that, because the appellant should have foreseen the
consequences, it can be concluded that he did. That would conflate
the different tests for
dolus
and negligence. On the other
hand, like any other fact, subjective foresight can be proved by
inference. Moreover, common sense
dictates that the process of
inferential reasoning may start out from the premise that, in
accordance with common human experience,
the possibility of the
consequences that ensued would have been obvious to any person of
normal intelligence. The next logical
step would then be to ask
whether, in the light of all the facts and circumstances of this
case, there is any reason to think that
the appellant would not have
shared this foresight, derived from common human experience, with
other members of the general population.
[14] Adopting what essentially
amounted to this line of inferential reasoning, the court a quo
concluded that in the prevailing
circumstances, the appellant
subjectively foresaw the death of his passengers as a possible
consequence of his conduct. I do not
believe this conclusion can be
faulted. I think it can confidently be accepted that no person in
their right mind can avoid recognition
of the possibility that a
collision between a motor vehicle and an oncoming train may have
fatal consequences for the passenger
of the vehicle. Equally obvious,
I think, would be the recognition on the part of every person that
the heedless disregard of clear
warning signals of an approaching
train, together with the deliberate avoidance of a boom specifically
aimed at preventing traffic
to enter a railway crossing by reason of
the approaching train, may result in a collision with that train.
After all, every such
person would appreciate that the very purpose
of all these preventative measures was aimed at avoiding the
possibility of a collision
between a motor vehicle and a train,
precisely because the consequences of the collision may be so
horrific. What follows as a
matter of course, I think, is the
foresight on the part of every right minded person that disregarding
these preventative measures
creates the possibility that the
foreseeable consequences may actually occur. To deny this foresight
would in my view be comparable
to a denial of foreseeing the
possibility that a stab wound in the chest may be fatal. Since there
is nothing on the evidence to
suggest a subjective foresight on the
part of the appellant so radically different from the norm, I agree
with the conclusion by
the court a quo that the element of subjective
foresight had been established.
[15] This brings me to the second
element of
dolus eventualis
, namely that of reconciliation
with the foreseen possibility. The import of this element was
explained by Jansen JA in
S v Ngubane
1985 (3) SA 677
(A) at
685A-H in the following way:
‘
A
man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing, eg by unreasonably underestimating
the
degree of possibility or unreasonably failing to take steps to avoid
that possibility . . . The concept of conscious (advertent)
negligence (
luxuria
)
is well known on the Continent and has in recent times often been
discussed by our writers. . . .
Conscious
negligence is not to be equated with
dolus
eventualis
.
The distinguishing feature of
dolus
eventualis
is
the volitional component: the agent (the perpetrator) "consents"
to the consequence foreseen as a possibility, he "reconciles
himself" to it, he "takes it into the bargain". . . .
Our cases often speak of the agent being "reckless"
of that
consequence, but in this context it means consenting, reconciling or
taking into the bargain . . . and not the "recklessness"
of
the Anglo American systems nor an aggravated degree of negligence. It
is the particular, subjective, volitional mental state
in regard to
the foreseen possibility which characterises
dolus
eventualis
and
which is
absent
in
luxuria
.’
[16] The question is, therefore,
whether it had been established that the appellant reconciled himself
with the consequences of
his conduct which he subjectively foresaw.
The court a quo held that he did. But I have difficulty with this
finding. It seems
to me that the court a quo had been influenced by
the confusion in terminology against which Jansen JA sounded a note
of caution
in
Ngubane
. That much appears from the way in which
the court formulated its finding on this aspect, namely –
freely translated from
Afrikaans – that the appellant,
‘appreciating the possibility of the consequences nonetheless
proceeded with his conduct,
reckless as to these consequences’.
[17] Once the second element of
dolus
eventualis
is misunderstood as the equivalent of recklessness in
the sense of aggravated negligence, a finding that this element had
been established
on the facts of this case, seems inevitable. By all
accounts the appellant was clearly reckless in the extreme. But, as
Jansen
JA explained, this is not what the second element entails. The
true enquiry under this rubric is whether the appellant took the
consequences that he foresaw into the bargain; whether it can be
inferred that it was immaterial to him whether these consequences
would flow from his actions. Conversely stated, the principle is that
if it can reasonably be inferred that the appellant may have
thought
that the possible collision he subjectively foresaw would not
actually occur, the second element of
dolus eventualis
would
not have been established.
[18] On the facts of this case I
believe that the latter inference is not only a reasonable one, but
indeed the most probable one.
I say this for two reasons: First, I
believe common sense dictates that if the appellant foresaw the
possibility of fatal injury
to one or more of his passengers –
as I found he did – he must by the same token have foreseen
fatal injury to himself.
An inference that the appellant took the
death of his passengers into the bargain when he proceeded with his
action would unavoidably
require the further necessary inference that
the appellant also took his own death into the bargain. Put
differently, the appellant
must have been indifferent as to whether
he would live or die. But there is no indication on the evidence that
the appellant valued
his own life any less than the average person or
that it was immaterial to him whether or not he would lose his life.
In consequence
I do not think it can be said that the appellant had
reconciled himself with the possibility of his own death. What must
follow
from this is that he had not reconciled himself with the
occurrence of the collision or the death of his passengers either. In
short, he foresaw the possibility of the collision, but he thought it
would not happen; he took a risk which he thought would not
materialise.
[19] My second reason for concluding
that the appellant did not reconcile himself with the consequences
rests on the evidence that
the appellant had successfully performed
the same manoeuvre in virtually the same circumstances previously.
Moreover, as a matter
of pure mathematical calculation, a collision
with the train could plainly be avoided even if the crossing was
entered after the
boom came down. It will be remembered that from the
inspection
in loco
the court a quo established that the boom
came down about one minute before the arrival of the train. It would
therefore obviously
take substantially less than a minute to cross
the railway lines. So, the fact that the manoeuvre which the
appellant tried to
execute was practically possible and that it had
in fact been successfully executed by him previously, leads me to the
inference
that, as a matter of probability, the appellant thought he
could do so again. Differently stated, the fact that the appellant
had
previously been successful in performing this manoeuvre probably
led him to the misplaced sense of confidence that he could safely
repeat the same exercise. Self-evidently the fact that his confidence
was misplaced does not detract from the absence of reconciliation
with the consequences he subjectively foresaw. It follows that in my
view the court a quo’s finding of
dolus eventualis
was
not justified.
[20] I think it goes without saying
that the appellant was negligent. It simply cannot be suggested that
any reasonable driver would
behave as the appellant did on that
fateful day. In short, the appellant was negligent and flagrantly so.
This means, however,
that absent a finding of intent in any form, the
convictions of murder must be set aside and replaced with convictions
on the alternative
charges of culpable homicide that were brought
against the appellant. What is more, because (a) intent or
dolus
is required for conviction on a charge of an attempt to commit a
crime and (b) as a matter of logic no-one can intend to be negligent,
our law knows no such crime as attempted culpable homicide (see eg
S
v Ntanzi
1981 (4) SA 477
(N) at 481G-482F; Snyman op cit 453).
The four convictions of attempted murder therefore also fall to be
set aside.
[21] The appellant’s final
argument in support of his appeal against the convictions was that,
because the deaths of the ten
deceased persons resulted from one act
or sequence of actions, he cannot be convicted on ten counts of
culpable homicide, but on
one count only. The proposition thus raised
had been considered and found wanting by this court in
S v Naidoo
2003 (1) SACR 347
(SCA). As I see it, the crux of that decision is
encapsulated by the following statement (para 36):
‘
Just
as in the case of murder it is immaterial whether multiple killings
were the result of one act (such as throwing a grenade)
and as many
counts of murder as the number of people who have been killed may be
preferred, so too in the case of culpable homicide
where multiple
deaths have been caused is it immaterial that they were caused by a
single negligent act or omission, provided only
that multiple deaths
were a reasonably foreseeable consequence.’
[22] This brings me to the question of
an appropriate sentence, which I must confess I find the most
difficult. Since we have set
aside the convictions of murder and
attempted murder by the trial court and substituted convictions of
culpable homicide in their
place we are bound to consider the
sentence anew. The general approach to sentence in matters of this
kind was formulated with
admirable clarity by Corbett JA in
S v
Nxumalo
1982 (3) SA 856
(A) at 861G when he said:
‘
It
seems to me that in determining an appropriate sentence in such cases
[ie cases of culpable homicide arising from traffic accidents]
the
basic criterion to which the Court must have regard is the degree of
culpability or blameworthiness exhibited by the accused
in committing
the negligent act. Relevant to such culpability or blameworthiness
would be the extent of the accused's deviation
from the norms of
reasonable conduct in the circumstances and the foreseeability of the
consequences of the accused's negligence.
At the same time the actual
consequences of the accused's negligence cannot be disregarded. . .
.’.
[23] Adopting this approach, it
appears to me that the appellant’s behaviour represented the
most reprehensible degree of
negligence. It amounted to a blatant
deviation from what could be expected from the reasonable driver and
a flagrant disregard
for the safety of others. To overtake a queue of
other vehicles waiting at large flashing red warning lights and then
to ignore
the final safety measures by entering a railway crossing
after the boom came down, as the appellant did, constituted
irresponsible
conduct of the worst kind. I believe this description
of the appellant’s conduct would be fair even if there had been
no
passengers in his vehicle.
[24] But the position is made
infinitely worse by the fact that there were fourteen children in his
vehicle. The parents of these
children entrusted their safety and
their very lives to the appellant. The court a quo inferred that
these parents were obviously
not in a financial position to take
their children to school every day. I have no reason to doubt the
correctness of this inference.
They were therefore compelled to place
the safety and the lives of their children in the hands of the
appellant, without the ability
to retain any residual control over
his conduct. The sentence we impose must reflect this Court’s
condemnation of the appellant’s
abuse of that trust. Moreover,
the sentence should reflect our recognition of the acute loss of
these invaluable young lives and
our identification with the mental
anguish and pain endured by their parents and loved ones as a result
of that loss.
[25] At the same time, a balanced
sentence requires insight into the personal circumstances of the
appellant. What emerges when
the focus of the spotlight shifts in
that direction is that the appellant grew up as one of nine children
in a very poor community.
After he finished standard six (now grade
eight) his parents did not have the financial means to send him to
secondary school.
Through adult education and by attending night
school he managed to complete standard eight (grade ten). He then
started working
on the railways where he spent nearly 26 years of his
life and eventually retired as a shunter foreman. After retirement he
supplemented
his pension by transporting school children and by
conducting a tuck-shop from his home. The appellant has no previous
convictions.
He and his wife have been married for more than 30
years. During their marriage they have raised six children –
five of their
own and one adopted. The members of his community show
him a great deal of respect and he is described by members of that
community
as a person supportive of others, both morally and
spiritually. The appellant appears to have spent most of his life
savings on
legal fees arising from this case, and to have sacrificed
the well-earned rewards of a responsible lifetime through one moment
of extreme irresponsibility.
[26] When it comes to the interest of
society it appears that there has been an understandable public
outcry about the appellant’s
highly irresponsible conduct and
its horrific consequences. With regard to this, I do not disagree
with the view that the determination
of an appropriate sentence
should be guided by the public interest and not by public poll. Yet,
a court that entirely ignores the
public outrage that occurred in
this case, does so at the peril of losing public confidence in the
whole judicial system, which
confidence ultimately constitutes the
basis of the rule of law.
[27] Since the ten counts of culpable
homicide all flow from the same sequence of actions I regard it as
appropriate that they should
be taken together for purpose of
sentencing. Having considered all relevant factors, I believe that a
proper sentence would be
eight years’ imprisonment. Moreover,
it appears that the appellant has been in custody since the trial
court imposed sentence
on him on 28 February 2012. Hence I propose to
order, in terms of
s 282
of the
Criminal Procedure Act 51 of
1977
, that the sentence of eight years’ imprisonment be
ante-dated to that date.
[28] In the result it is ordered:
1. The appeals against the fourteen
convictions and the sentences imposed by the trial court are upheld.
2. The ten convictions of murder are
set aside and replaced with ten convictions of culpable homicide.
3. The four convictions of attempted
murder are set aside.
4. The sentences imposed by the trial
court are set aside and replaced with the following:
‘
Eight years’
imprisonment which is ante-dated to 28 February 2012.’
_________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: J Engelbrecht SC
Instructed
by: A Titus Attorneys
CAPE
TOWN
Correspondents:
Symington & De Kock
BLOEMFONTEIN
For
Respondent: S M Galloway
Instructed
by: Director of Public Prosecutions
CAPE
TOWN
Correspondents:
Director of Public Prosecutions
BLOEMFONTEIN