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[2013] ZASCA 44
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Nevhutalu v S (692/12) [2013] ZASCA 44 (28 March 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No: 692/12
In the matter between
JUSTICE KHAKHATHI NEVHUTALU
.......................................................
APPELLANT
and
THE STATE
.............................................................................................
RESPONDENT
Neutral citation:
Nevhutalu v S
(692/12)
[2013] ZASCA 44
(28 March 2013)
Coram
: PONNAN, TSHIQI, MAJIEDT, PILLAY and PETSE
JJA
Heard: 15 MARCH 2013
Delivered: 28 MARCH 2013
Summary: Sentence – pointing of firearm –
contravention of s 39(1)(i) read with ss 1 and 12 of Act 75 of 1969
as amended
– sentence of 6 months imprisonment, warranting
interference on appeal.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (van der Merwe J and Vilakazi J sitting as court of appeal):
The appeal against sentence is upheld.
The order of the court below is set aside and is
substituted by the following:
‘
(a) The appeal against
conviction is dismissed.
(b) The appeal against sentence succeeds.
(c) The sentence of 6 months’ imprisonment imposed
on the appellant is set aside and substituted with the following:
‘
The accused is sentenced to 6
months’ imprisonment, wholly suspended for a period of 5 years,
on condition that the accused
is not convicted of a contravention of
sections 120(3)
, (4), (5), (6), (7) or (8) of the
Firearms Control
Act 60 of 2000
, committed during the period of suspension.’
The order declaring the appellant unfit to possess a
firearm pursuant to the provisions of s (12)(1) of the Arms and
Ammunition
Act, 75 of 1969 is set aside.
________________________________________________________________
JUDGMENT
________________________________________________________________
MAJIEDT JA:
[1] This is an appeal against a sentence of 6 months’
imprisonment, imposed by the Regional Court for Limpopo, sitting at
Polokwane, confirmed on appeal by the North Gauteng High Court,
Pretoria (van der Merwe J, Vilakazi AJ concurring) imposed in
consequence
of a contravention of the provisions of s 39 (1) (i) of
the Arms and Ammunition Act, 75 of 1969 (the Act). The appeal is with
the
leave of the court below. The appellant was charged under the
Act, since the offence was committed when that Act was still in
operation.
[2] The factual matrix underlying the appellant’s
conviction and sentence is briefly as follows:
(a) The appellant, a member of the Military Police at
the time of the incident, was a passenger in a motor vehicle (‘the
appellant’s
vehicle’) when an altercation ensued between
him and the complainant, Mr Thomas Rilefe who, in turn, was a
passenger in another
motor vehicle, driven by his brother, Mr Alfeus
Rilefe (‘the complainant’s vehicle’). The quarrel
emanated from
what appears to have been the inconsiderate driving of
one or both of the motor vehicles.
(b) The trial court accepted the State’s version
of events and rejected that of the appellant. On the proven facts the
appellant’s
vehicle overtook the complainant’s vehicle
twice on the N1 national road between Louis Trichardt and Polokwane.
On the second
occasion the appellant uttered an obscenity at the
Rilefe brothers relating to their mode of driving and pointed a small
black
object at them that, according to them, resembled a firearm.
The appellant’s vehicle drove in a haphazard fashion in front
of the complainant’s vehicle, after having overtaken it for the
second time.
(c) Their vehicles stopped at road works. The appellant
alighted from his vehicle to urinate some distance away. Upon his
return
he approached the complainant’s vehicle and again swore
and pointed a firearm at them. Both vehicles drove off, with the
appellant’s vehicle continuing to zigzag across the road. The
Rilefe brothers’ employer, Mr Nico Venter, who had been
driving
ahead of them and behind the appellant’s vehicle, called the
police to report the driving and the appellant’s
pointing of a
firearm. The appellant was arrested shortly thereafter. The police
recovered the magazine from the appellant’s
pistol and
confiscated both the magazine and the pistol. The appellant was off
duty at the time and dressed in civilian clothing.
[3] The appellant’s personal circumstances can be
succinctly summarized as follows: he was 30 years’ old at the
time
of sentencing, a first offender, with 4 minor children. As
stated, he was employed at the South African National Defence Force
(SANDF) as a military policeman.
[4] In its judgment on sentence, the trial court alluded
to the following aggravating circumstances: the appellant’s
lack
of remorse and the fact that the appellant had intimidated the
Rilefe brothers by ‘wielding’ his firearm and thereafter
by pointing it at them, causing them to be petrified. In addition to
the sentence of 6 months’ imprisonment, the appellant’s
firearm was declared forfeited to the State in terms of s 39(3)
(a)
of the Act and he was declared unfit to possess a firearm in terms of
s 12(1) thereof.
[5] On appeal, the court below rejected the contentions
advanced on behalf of the appellant, namely that the appellant’s
aforementioned
mitigating personal circumstances were largely
underemphasized, resulting in a shockingly inappropriate sentence.
Appellant argued
further that the trial court had erred in not
suspending a portion of the period of imprisonment or, alternatively,
by not imposing
a fine. The court below concluded that the trial
court had properly exercised its sentencing discretion and that the
sentence did
not warrant interference on any of the well-established
grounds.
[6] The maximum competent sentence for this particular
offence, in terms of s 39(1)
(i)
, read with s 39(2)
(d)
of the Act, at that time was a fine not exceeding R4 000.00 or 1
year imprisonment or both such fine and imprisonment.
[7] The magistrate misdirected himself on sentence in
the following material respects:
(a) Firstly, made reference to the Criminal Law
Amendment Act, 105 of 1997 (the
Criminal Law Amendment Act). Whilst
he did not specifically invoke its provisions he appears to have been
influenced by it in his approach during the sentencing process.
This
is manifested by his consideration of a custodial sentence as the
only suitable sentence, without considering alternative
sentencing
options.
(b) Secondly, the magistrate took the appellant’s
lack of remorse into account as an aggravating circumstance. But the
record
does not bear this out. It is trite that the fact that an
accused person pleads not guilty and contests his or her guilt at a
trial
is not, without more, indicative of a lack of remorse.
(c) Lastly, the magistrate also took into account the
fact that the appellant had ‘intimidated the witnesses by
driving next
to them and wielding this firearm as an aggravating
feature.’ As indicated in para 3
(a)
above, the appellant
was in fact not the driver, but a passenger in his vehicle.
[8] In view of these material misdirections, this court
is at large to consider the sentence afresh. Mention must be made at
the
outset of an important consideration, namely that the penal
provisions in the present Firearms Control Act, 60 of 2000 (the
Firearms Control Act) have
been increased substantially in respect of
this particular offence, compared to those in the Act. Section 121 of
the present Act,
read with s 120 and Schedule 4 thereof, provides for
a maximum sentence of 10 years’ imprisonment.
[9] The appellant’s personal circumstances, set
out above, are strongly mitigating. He is a first offender, gainfully
employed
and a useful member of society. He also had to care for his
4 minor children. The aggravating factors are the fact that he is a
member of the SANDF, which is tasked with the protection of the
people of this country. His conduct on the day in question does
not
behove his occupation as a military policeman. Furthermore, the
Rilefe brothers were justifiably petrified by the appellant’s
conduct, to the extent that they locked their vehicle’s doors.
[10] In a relatively brief judgment of some two pages
the magistrate, as stated, appears to have started from the premise
that a
custodial sentence is the only suitable sentence. He gave no
consideration whatsoever to alternative non-custodial sentencing
options.
I fail to understand what useful purpose a short term of
imprisonment will serve in this case. On the contrary, it will only
cause
the appellant grave jeopardy in his work and family situation.
Imprisonment should generally be imposed in instances where there
is
a need to remove the offender from society. Nienaber JA pointed out
in
S v Lister
1993 (2) SACR 228(A)
at 232g that ‘a
prison is primarily an institution of punishment, not cure’.
And it is trite that punishment must fit
the crime, the criminal and
the needs of society.
[11] The question which arises next is what the
benchmark sentences have been for similar offences in the past. An
analysis of sentences
passed under the Act shows that non-custodial
sentences are usually imposed for this particular offence, although
each case must
of course be decided on its own merits. Thus in
S v
van Heerden
,
1990 (2) SACR 579
(E) at 585c-d, a sentence of a
fine of R800.00 or 200 days’ imprisonment was imposed on
appeal. In that matter a taxi driver
was charged in the magistrates’
court with pointing a firearm in contravention of s 39(1)
(i)
of the Act. He had forced the complainant, a rival taxi driver, to
bring his taxi to a halt and had gone to the complainant’s
vehicle and had pointed an object, which to the state witnesses
appeared to be a firearm, at the passengers. The magistrate was
not
satisfied that the state had proved that what had been pointed was
indeed a firearm, and accordingly convicted the accused
of common
assault and imposed a fine of R800.00 or 400 days’
imprisonment. On appeal the court found that the magistrate
had erred
and that the appellant should have been convicted as originally
charged. The court, per Kannemeyer J P (Kroon J concurring)
made the
following observation:
‘
In all
the circumstances. . . whether the appellant is to be punished in
this case for pointing a firearm or for common assault,
his moral
blameworthiness is of a similar degree. The sentence that the
magistrate considers appropriate for assault is, in my
view, also one
which would be appropriate for the offence originally charged’.
The court altered the sentence to a fine of R800.00 or
200 days’ imprisonment, since the magistrate had exceeded his
sentencing
jurisdiction in imposing 400 days as an alternative.
[12] In
S v
Sam
1980 (4) SA 289
(T), a 67 year old café owner was convicted of
a similar offence and sentenced to a fine of R100.00 or 25 days’
imprisonment.
The appeal unsurprisingly did not concern the sentence,
but the conviction, more particularly the question of
dolus
in the context of
error iuris
and
error facti
.
In
S v Hodgkinson
2010
(2) SACR 511
(GNP), the appellant was convicted in the Magistrates’
Court of the unlawful pointing of a firearm in terms of s 120 (6)(
b
)
of the
Firearms Control Act and
he was sentenced to payment of a fine
of R2000.00 or 90 days’ imprisonment, wholly suspended on
certain conditions. I must
point out that the incident concerned a
toy water pistol, hence the nature of the sentence imposed.
In
Van Heerden
the
incident emanated from taxi rivalry and not road rage as is the case
in the instant matter, but the facts and circumstances
as set out in
para 12 above are fairly analogous to that in the present matter.
[13] There is to my knowledge only one reported judgment
where a custodial sentence had been imposed for an offence such as
the
present one. In
Modungwe v S,
[2003] 1 All SA 235(T)
, the appellant had been convicted
of the unlawful possession of a firearm and ammunition, as well as
the unlawful pointing of a
firearm. He was sentenced to 5 years’
imprisonment on each of counts 1 and 3, and 3 years’
imprisonment on count 2.
The appeal concerned the Magistrate’s
imposition of the minimum sentences prescribed in the
Criminal Law
Amendment Act. The
court held that these offences do not fall within
the ambit of the section of that Act which attracts the prescribed
minimum sentence.
In respect of count 3, the unlawful pointing of a
firearm, the court imposed a sentence of one year imprisonment. The
problem is
that no facts concerning the commission of the offence can
be gleaned from the judgment and no reasons are furnished for the
imposition
of the maximum permissible sentence in terms of s
39(2)
(d)
. The case is
therefore of no assistance in the present matter and it does not
detract at all from my views, enunciated above, that
a custodial
sentence is not justified in the present matter.
[14] In my view a custodial sentence is grossly
disproportionate to the facts and circumstances relating to the
offence. But a severe
non-custodial sentence should nonetheless be
imposed to convey clearly the message that conduct such as this,
particularly from
a member of the armed forces, will not be
tolerated. A sentence of 6 months, wholly suspended on appropriate
conditions, would
in my view meet the well-established sentencing
objectives.
That, as I see it, will better achieve the traditional
aims of sentencing such as retribution and deterrence - and also be
blended
with a measure of mercy. It seems to me that, with a
suspended sentence hanging over his head the appellant is hardly
likely to
resort to his firearm as readily as he did in this
instance. Had the magistrate properly applied his mind to the task
which confronted
him I have little doubt that he ought to have
concluded – as I have done – that on the facts here
present a custodial
sentence was unjustified.
[15] As stated in para 5 above, an order was also issued
to the effect that the appellant be declared unfit to possess a
firearm
in terms of s 12(1) of the Act. No enquiry whatsoever was,
however, held prior to the issuing of that order. On the contrary,
immediately
following upon the prosecutor’s argument on
sentence (the appellant’s legal representative having by then
concluded
his address), the magistrate made the startling remark that
‘(t)he defence also did not convince me in terms of s 12 (of
the Act) why if not I declared him unfit to possess a firearm’.
The appellant’s legal representative was thereupon asked
to
make submissions on this aspect, to which the magistrate replied
‘(r)ather late’, but nonetheless permitted further
submissions to be advanced. Those submissions related primarily to
the fact that the appellant was employed as a military policeman
and
to the adverse effect such an order would have on his employment. The
magistrate then simply made the declaratory order of
unfitness,
without furnishing any reasons. This is a further misdirection. I can
think of no good reason why such an order should
have been made,
which would be gravely prejudicial to the appellant in the discharge
of his work related duties. It therefore ought
to be set aside.
[16] The following order is made:
The appeal against the sentence is upheld.
The order of the court below is set aside and is
substituted by the following:
‘
(a) The appeal against
conviction is dismissed.
(b) The appeal against sentence succeeds.
(c) The sentence of 6 months’ imprisonment imposed
on the appellant is set aside and substituted with the following:
‘
The accused is sentenced to 6
months’ imprisonment, wholly suspended for a period of 5 years,
on condition that the accused
is not convicted of a contravention of
sections 120(3)
, (4), (5), (6), (7) or (8) of the
Firearms Control
Act, 60 of 2000
, committed during the period of suspension.’
The order declaring the appellant unfit to possess a
firearm pursuant to the provisions of s (12)(1) of the Arms and
Ammunition
Act, 75 of 1969 is set aside.
________________________
S A MAJIEDT
JUDGE OF APPEAL
PONNAN JA (TSHIQI, PILLAY and PETSE JJA CONCURRING):
[17] I have read the judgment of Majiedt JA and, whilst
I concur in the order, I deem it necessary to pass certain
observations
with respect to the matter.
[18] The ready resort to a firearm that one encounters
in this case, which has become all too pervasive in our country, is
to be
deprecated. What is worse is that here we are dealing with a
member of this country’s armed forces whose conduct was the
very antithesis of that to be expected of someone who is sworn to
protect. No doubt public outrage would be warranted at conduct
of
this kind and it follows that the public interest would have to be
properly served in the determination of an appropriate sentence.
But
we need to remind ourselves that:
‘
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
the court. It is trite that the determination of an
appropriate
sentence requires that proper regard be had to the well-known triad
of the crime, the offender and the interests of
society. After all,
any sentence must be individualised and each matter must be dealt
with on its own peculiar facts. It must also
in fitting cases be
tempered with mercy. Circumstances vary and punishment must
ultimately fit the true seriousness of the crime.
The interests of
society are never well served by too harsh or too lenient a sentence.
A balance has to be struck.'
(
State
v
Samuels
2011 (1) SACR 9
(SCA) para 9.)
[19] It is not clear to me why it was thought that
direct imprisonment was the only appropriate punishment in this case.
Sentencing
courts would be well advised to differentiate between
those offenders who ought to be removed from society and those who,
although
deserving of punishment, should not be removed. In my view
the appellant falls into the latter of the two categories. I cannot
imagine that he is ever likely to repeat what he did. Personal
deterrence thus hardly comes into the reckoning. In any event to
the
extent that it may be thought necessary that personal deterrence be
addressed, the sword of a suspended sentence hanging over
his head
for a period of five years adequately does so. To uphold the sentence
imposed on the appellant would, in my view, be to
overemphasise the
interests of society and conversely under-emphasise the interests of
the appellant. After all he was a useful
member of society with an
unblemished record and his first foray into criminal conduct of any
kind was at the relatively advanced
age of 30. In those circumstances
it can hardly be concluded that direct imprisonment was imperatively
called for.
[20] Where I part company with my
colleague Majiedt is the invocation by him of various authorities to
identify what he describes
as the benchmark for an offence of this
kind. To trawl through the cases as an aid to the determination of an
appropriate sentence
may well be ‘an idle exercise’ (
S
v Fraser
1987 (2) SA 859
(A) at 863)
.
For as
Centlivres JA
put it in
R v Wells
1949
(3) SA 83 (A)
at
87 – 88
:
'Decided cases are... of value
not for the facts but for the principles of law which they lay down.
In this connection I cannot
do better than quote the remarks of Lord
Finlay in
Thomson v
Inland Revenue
(1919
SC (HL) 10): "No enquiry is more idle than one which is
devoted to seeing how nearly the facts of two cases
come
together: the use of cases is for the propositions of law they
contain, and it is no use to compare the special facts of one
case
with the special facts of another for the purpose of endeavouring to
ascertain what conclusion you ought to arrive at in the
second
case."'
That is not to suggest that courts should not strive for
consistency (
S v Xaba
2005
(1) SACR 435
(SCA))
.
But as it was put by this court in
Jimenez
v S
[2003] 1 All SA 535
(SCA) para 6:
‘
. . . [W]hile it may be useful
to have regard to sentences imposed in other similar cases, each
offender is different, and the circumstances
of each crime vary.
Other sentences imposed can never be regarded as anything more than
guides taken into account together with
other factors in the exercise
of the judicial discretion in sentencing.’
However, the desire to achieve uniformity cannot be
allowed to interfere with the free exercise of a judicial officer’s
discretion
in determining an appropriate sentence in a particular
case in the light of the relevant facts in that case and the
circumstances
of the person charged (
S v Moloi
[1986] ZASCA 101
;
[1987] 1 All SA 249
(A)).
[21] Both
S
v van Heerden
and
S
v Sam
were decided
over two decades ago. Those two cases thus hardly prove fertile
ground as a comparator for the present.
Hodgkinson
,
although of more recent vintage, involved a toy water pistol and is
therefore clearly distinguishable from the present. That leaves
Modungwe
- which my learned colleague asserts
is of no assistance. It follows, in my view, that no discernible
trend can be said to emerge
- certainly not one that can culminate in
the conclusion that ‘non-custodial sentences are usually
imposed for this particular
offence’. For, as
R
v Karg
1961 (1) SA 231
(A) at 236H made plain: ‘. . . no countenance should be given
to any suggestion that a rule
may be built up out of a series of
sentences which it would be irregular for a Court to depart from’.
________________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES
For Appellant: H L Alberts
Instructed by:
Pretoria Justice Centre
Bloemfontein Justice Centre
For Respondent: A G van Rensburg
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein