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[2010] ZAWCHC 549
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Langeveldt v S (A339/2010) [2010] ZAWCHC 549 (12 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: A339/2010
DATE:
12 NOVEMBER 2010
In
the matter between:
EDWARD
LANGEVELDT
…............................................................................
Appellant
and
THE
STATE
….............................................................................................
Respondent
JUDGMENT
DAVIS.
J:
The
appellant was charged in the Regional Court on two counts of
attempted murder, alternatively the reckless endangerment of persons
and/or property, and a further count of discharging a firearm while
under the influence of being intoxicated. To all these counts,
the
appellant pleaded not guilty. He was found guilty on the main count
of attempted murder and was sentenced to seven years direct
imprisonment in respect of the two main charges running concurrently,
therefore, in effect of seven years. He has appealed against
both
conviction and sentence with the leave of the court.
The
facts are in effect relatively simple but obviously tragic. Briefly,
it appears that the following occurred, little of which
was placed in
dispute. The appellant is married to one Petronella Langeveldt. They
lived in Ceres. They had two children born of
the marriage, Reginald,
the younger and Patrick the older son. Neither of them lived with the
family in Ceres at the time of the
accident. On the weekend of 24
March 2006, Patrick arrived at the common home. He found his mother
alone in the house and although
he searched for his father, was
unable to find him.
It
appears that he moved to the dwelling of a third party, Ms April,
with whom the appellant was having an affair. It is clear that
a
physical confrontation ensured between Patrick and his father. It is
clear that Patrick was extremely upset by his father's infidelity
to
his mother. Whoever started the particular confrontation, is not
necessarily critical to the resolution of the dispute. What
did
happen, was that Patrick assaulted his father with his bare hands and
his father, the appellant, fell on the floor. Patrick
left the house
of Ms April whom, I should add, was a witness to the confrontation,
and returned to the common home.
There
he found his mother in the kitchen and she had to tender to his
swollen hand, that is the hand which was injured as a result
of the
assault which he had inflicted upon his father. It appears that she
was placing ice on the injured hand, when the appellant
arrived. A
further confrontation took place in the kitchen. The appellant was
armed. A verbal encounter then took place. Shots
were fired by the
appellant in the direction of both Patrick and Ms Langeveldt, who
were both wounded. Patrick fell on the dwelling's
stoep. Ms
Langeveldt fled to the neighbours.
The
appellant was then confronted by a friend, who found the appellant
with an empty firearm and as was later reported, by policeman
Ntshanga, he was by then in a hysterical state and threatening to
kill himself. There is evidence as well of an alcohol test which
was
taken of the appellant on 25 March, indicating a .2 alcohol blood
content. Appellant testified that at the time of the incident,
he was
under the influence of alcohol, particularly having consumed a number
of whiskeys.
As
a result of his wounds, Patrick was taken to the Tygerberg Hospital
where he required an operation. He spent three days in hospital.
The
wounds that were inflicted were of such a nature that he could count
himself fortunate to still be alive. If the bullet had
entered at a
slightly different projectory, he would not have been alive to tell
his story. Ms Langeveldt, also suffered injuries
to her left
shoulder, her left cheek and to her right hand and she required
attention in hospital for some 10 days. There can be
no doubt from
the evidence that both the injured parties had been placed in a
potentially life threatening situation as a result
of the shots.
The
essence of the case, which was brought in defence of the charges by
the appellant, was that he could not have formed the intention
to
have killed or threatened to kill either of the two injured parties.
Mr
Moller
,
who appeared on behalf of the appellant (and to whom this Court is
truly indebted for his assistance in that it appears he was
not given
instructions to proceed, but on the request of this Court, continued
most ably to represent he appellant, with the permission
of the
latter), contested the argument that there was the presence of
dolus,
in
the form of
dolus
eventualis,
that
is that it could not, on the evidence, be concluded that the
appellant foresaw the consequences of his action and acted reckless
as to the possible actual consequences which ensued.
Mr
Moller
correctly
pointed to the fact that an accused person must subjectively foresee
the consequence and cognitively reconcile himself
or herself with the
reality that the consequence may actually ensure. As he noted, citing
S
v Minnie
1963
(3) SA 188
(A) at 190:
"The
proposition is well established in our law that a person has the
necessary intention to kill if he appreciates that the
injury which
he intends to inflict on another, may cause death, and nevertheless
inflicts that injury reckless whether the death
will ensue or not.
Thus the prosecution is required to prove beyond a reasonable doubt
that the appellant subjectively understood
that his act may very well
cause death or injury, not that he should or ought to have understood
it at the time. That question
of fact requires adjudication in the
same manner as in the case where the Court seeks to draw a conclusion
in respect of whether
the accused had the requisite intent."
All
of this is accepted law. In this case Mr Moller contended that the
appellant was under influence of alcohol. Secondly, whatever
intent
he had, it could not have been to cause the death of either of the
two complainants. As to the question of alcohol, the
medical evidence
is highly unsatisfactory in that the test was taken at a time which
does not provide this Court with any definitive
guidance as to the
state of alcohol which was in the body at the time.
That
difficulty is compounded, however, by the critical second problem
which confronts the appellant. In the appellant's own evidence,
he
admitted that he had intended to cause harm to both his son and to
the mother. To the extent that it is relevant, the evidence
to which
I shall return of Professor Bezuidenhout, in mitigation of sentence,
is helpful. The appellant was angry, he had been
humiliated by his
son pursuant to the earlier incident to which I had already made
reference. He proceeded, via his motorcar, to
the common home, armed
with a weapon. One might ask rhetorically what possible inference can
be drawn from such actions other than
that he proceeded from the home
of Ms April to the common home with intent to cause harm.
But
the court does not have to go so far as to engage in rhetorical
devices. The appellant stated his intention. A couple of passages
from the evidence will suffice. Under cross-examination he is asked
the following"
"U
gaan vir u vuurwapen en wat wou u met die vuurwapen maak? —
Edelagbare, vuurwapen kan mense seer maak, kan skiet.
Dit kan wees
dat ek probeer het om ook om horn te dwing om te luister wat ek
probeer se. Hier kom hy en hy kom weer om te slaan.
En
wat ek van u verstaan, mnr Langeveldt, toe op daardie stadium weet u
alles wat gebeur het en u het voile beheer oor die situasie.
U het
uit u eie gegaan vir die vuurwapen en die vuurwapen gehaal. U se die
vuurwapen kan skiet en die vuurwapen kan seer maak,
wat wou u met die
vuurwapen maak? Wat (sic) u nou vir horn keer, die vuurwapen op horn
rig dat hy kan teruggaan, wou u vir horn
afskrik om Yi
waarskuwingskoot te skiet, wat wou u doen? — Edelagbare, dit
was nie om my seun dood te maak of sy ma dood
te maak nie. Is dat ek
miskien die ding verkeerd hanteer het. Dit kan wees ook, Edelagbare,
want ook in die getuienis wat ook sal
gebeur, is dit ook dat ek sou -
ek wou myself skiet nadat, meneer, as ek die huis - ek meen die huis
-uit my huis uitgesit het
ja, Edelagbare."
In
short, if one examines the evidence of the appellant under
cross-examination, he denies that he sought to kill either of the
complainants. But he goes on to say:
"Edelagbare
soos wat ek ook vir die Hof alreeds gese het, ek het my vuurwapen -
ek was woedend, Edelagbare. Ons kan die ding
nog uitsorteer,
Edelagbare, met alle respek teenoor die Hof, toe ek by die deur
inkom, die seun kom na my toe, die hand word gemasseer
of iets aan my
aangesmeer."
In
short, as Mr
Moller
correctly
conceded, the appellant was forced to accept that he had an intention
to cause harm, albeit that he denied that he had
the intention to
kill. But the passages that I have already indicated, are a dextrous
attempt to circumvent this obvious problem
in that the appellant's
attempts to reconstruct the events and to place himself in the best
possible light.
The
magistrate rejected this version of the appellant that Patrick,
having had his hand injured and confronted with an angry father
who
was armed with a weapon, would then have sought to assault him yet
again. Secondly, the magistrate concentrated on the evidence
that the
appellant himself recognised he had intent, albeit to injure. It is
extremely difficult to draw a distinction between
an appellant who
foresees the possibility that the use of his firearm might well
injure, (and indeed more than that) has a direct
intention to injure,
yet cannot be held to the standard of
dolus
eventualis
to
the effect that he foresaw the possibility that his actions which
might have been directly to injure, could have caused the death
and
acted reckless thereto.
In
short, the magistrate defined the key question as:
"Of
die beskuldigde se verhandelinge willekeurig was al dan nie, of sy
handeling vrywillig was en/of hy meganies opgetree het
en sy
handeling dus uitgesluit is."
The
answer is clear, once the appellant, on his own version, had conceded
that he had acted with the intention to at least injure,
the entire
defence of some form of autonomism, howsoever defined, had to be
rejected and the doctrine of
dolus
eventualis
came
decidedly into play.
In
my view, therefore, there can be no doubt, even though all that has
to be determined is beyond a reasonable doubt that the appellant
came
to the house of his wife, armed with a weapon, with the intent to
cause harm. Harm was caused. The version that he put up
was tailored
to suggest that he was under attack and, therefore, acted in
self-defence, or alternatively that he was so intoxicated
that he did
not know what he was doing. Both versions were correctly rejected by
the magistrate for the reasons that I have already
articulated and in
my view, there is no justification with interfering with the
conviction.
Mr
Moller
,
sensing, in my view, the difficulties with a jurisprudential attack
on the findings in respect of conviction, concentrated most
of his
submissions on the issue of sentence. To recapitulate, the appellant
was sentenced to a direct term of imprisonment of seven
years.
Critical to Mr
Moller
's
submissions that the Court should have considered an alternative form
of punishment, perhaps one should not have the carceral
component
attached thereto, was a detailed report made available to the Court
by Professor Bezuidenhout, a professor in criminology
in the
Department of Social Work and Criminology at the University of
Pretoria. Professor Bezuidenhout provided the Court with
a detailed
document and furthermore, gave oral testimony to substantiate that
which was contained in his report. In essence, the
conclusion to
which he comes, is well captured in the following passage:
"Dat
"n opgeskorte vonnis aan mnr Langeveldt opgele word. Dat mnr
Langeveldt drie maande onder korrektiewe toesig geplaas
word,
byvoorbeeld hy mag slegs kantoorure van die huis af weg wees. Hy moet
elke aand, vir drie maande, tuis deurbring en in die
tydperk mag hy
ook nie naweke sy huis verlaat nie. Hy moet elke Vrydag met die
betrokke probasiebeampte ontmoet en 'n gesprek voer
oor sy doen en
late. Sodoende kan hy steeds sy plig deur die week as balju vervul en
sy oulike plig teenoor
Faith, sy babadogter nakom. Dat mnr
Langeveldt Vi
boete ten opsigte van die verweerde klagtes aan
die
Staat betaal.
Dat
mnr Langeveldt se
vuurwapenlisensie
permanent teruggeneem word. Dat mnr Langeveldt op sy eie onkoste 'n
sielkundige, wat deur die Staat ge'identifiseer
word vir terapie,
besoek vir 'n periode van drie maande. Dat mnr Langeveldt na hierdie
drie maande 'n terapie periode gemeenskapsdiens,
wat deur die Hof
voorgeskryf word, vir "n periode van drie maande verrig."
In
substantiation of this particular set of recommendations, Professor
Bezuidenhout refers to the psychological trauma that he contends
occurred as a result of the assault by Patrick, that there were a
series of psychological baggage which the appellant carried through
his background and that further, there was what he called
"die
waarskynlikheid van psigogene outomatisme"
which
had to be taken into account.
Professor
Bezuidenhout also emphasised the trauma which the appellant himself
encountered subsequent to the incident in 2006, that
he had had
various physical illnesses, including an epileptic incident and that
he lived with the shame and the regret for some
considerable while
thereafter. Furthermore
Professor
Bezuidenhout emphasised the very limited rehabilitative advantages of
a term of imprisonment, and then said:
"Ek
is van oordeel dat Eddie, vanwee sy sosialisering en
persoonlikheidstipe, wel
Yi
skuldgevoel
het teenwoordig baie sleg voel oor die insident."
It
is perhaps arguable that the magistrate, faced with the unusual
advantage of having so detailed and considered a report, might
have
spent longer in analysing the report in his reasons given for the
sentence imposed. That itself, is not a sufficient ground
to alter
the sentence. It is thus correct that, as Mr
Moller
urged
upon us, the magistrate could have engaged more thoroughly with the
issues raised by Professor Bezuidenhout. Again the lack
of detailed
engagement with those issues, is not a justification for interfering
with sentence. Courts on appeal do not change
a sentence because they
may consider that they would have imposed a different sentence if
they had acted as a court of first instance;
that is not the test,
and were it to be the test, great uncertainty would result insofar as
appeals against sentence are concerned.
The
magistrate took account of all the factors which traditionally are
raised insofar as sentence is concerned, and indeed towards
his
sentence said this:
"Soos
die Hof reeds gese het, mnr Langeveldt, the Hof het groot deernis vir
u persoonlike omstandighede, maar hierdie optrede
van u die betrokke
nag, kan nie in 'n beskaafde samelewing met geweld wat absoluut
hoogty vier in die Hof se bediensgebied, kan
nie geduld word nie. Die
Hof gaan soveel genade vandag aan u betoon, mnr Langeveldt, maar die
Hof kan nie sy weg oopsien om aan
u 'n ander vonnis op te le as 'n
termyn direkte gevangenisstraf nie."
In
assessing sentence, courts need to take account of four separate sets
of circumstances, the offender, his background or her background,
the
nature of the crime, the interests of the community and the concerns
and the affect that the crime has on the victim. Victims
are the
silent parties in all too many criminal cases and their interests
also need to be considered in the overall conspectus
insofar as
sentence is concerned. These two victims were fortunate to survive.
They had an extraordinary fortunate escape and were
clearly
traumatised by the events of the night.
It
is correct that there are factors in favour of the appellant insofar
as his own background is concerned and those were taken
into account
by the magistrate. They were certainly emphasised by Professor
Bezuidenhout. But this was a violent crime. These are
two convictions
for attempted murder in a society in which violent crime represents a
foundational attack on the very constitutional
enterprise which this
country engaged upon in 1994. It cannot be over emphasised, that
courts need to deal with violent crime in
the most serious possible
way. To the argument that imprisonment never really has a
rehabilitative effect, the answer must be well
then nobody will ever
be sentenced to a term of imprisonment, because the argument will
always be raised, and inevitably so, that
imprisonment does not work.
I
accept readily that there are huge difficulties with regard direct
terms of imprisonment, but, in my view, when violence is the
core of
the offence, one has to look very carefully for compelling
justification before an alternative sentence is imposed. In
this
case, the magistrate took account of these factors and there is no
compelling justification to conclude that there was a misdirection
of
a kind which would justify this Court in interfering in the sentence.
I
have set out these reasons in some detail, because we have been
advantaged by very careful argument insofar as sentence is concerned,
and this argument which deserves an adequate response.
In
the result, therefore, I would dismiss the appeal and confirm both
the conviction and the sentence.
LE
GRANGE, J
:
I agree.
LE
GRANGE, J
DAVIS.
J
:
It is so ordered.
DAVIS.
J