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[2010] ZAGPPHC 218
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Botes v S (A195/10) [2010] ZAGPPHC 218 (3 December 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Delivered
on 03 December 2010
CASE
NO: A195/10
in
the matter between:
ERNEST
JOHANNES
BOTES
.....................................................................
APPELLANT
And
THE
STATE
.....................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
The appellant, who was 17 years old at the time of commission of the
murder, was on 11 December 2003 convicted together with
his
co-accused and sentenced by Monare AJ to 15 years imprisonment on 17
May 2004. Leave to appeal was refused.
[2]
The Supreme Court of Appeal on 13 June 2008 granted leave to appeal
to the Full Bench of this Court against the sentence imposed
and
ordered that:
The
issue on which leave to appeal is granted include the following:
2
.1.
W
ere
the principle set forth in S v Pietersen
[2000] ZACC 24
;
2001 (1) SACR 16
(SCA) and S
v Ntaka (2008) ZASCA applied
properly
or
at all?
2.2.
In
the light of the decision in S v Salzwedel
1
was the sentence excessive?
2.3.
Did
the trial court err in imposing the same sentence on the appellant as
on accused No 2 given the extent of the difference in
their
participation in the crime?
2
.4
.
Accused
3 who had absconded before sentence proceedings in 2004 had been
apprehended and also sentenced to 15 years imprisonment
in 2010.
[3]
in dealing with this appeal this Court must be guided by the
recognition firstly that sentencing is a matter of the discretion
of
the trial court; secondly that the court of appeal has limited
discretion to interfere with the discretionary sentencing judgment.
I
deem it appropriate to cite in full the relevant judgments dealing
with the two principles. In S
v
Toms:
S
v
Bruce
2
the
Appellate Court stated that: 'The first principle is that the
infliction of punishment is pre-eminently a matter for the discretion
of the trial court (cf
R
v Mapumulo and Others
1920
AD 56
at 57). That courts should, as far as possible, have an
unfettered discretion in relation to sentence is a cherished
principle
which calls for constant recognition. Such a discretion
permits of balanced and fair sentencing, which is a halimark of
enlightened
criminal justice. The second, and somewhat related
principle, is that of the individualisation of punishment, which
requires proper
consideration of the individual circumstances of each
accused person. This principle too is firmly entrenched in our Law (S
v
Rabie
1975
(4) SA. 855
(A) at 861D; S
v
Scheepers
1977
(2) SA 154
(A) at 158F-G)."
[4]
The Appeal Court can only interfere with the sentence if the
discretion of the court imposing sentence was not judiciaiiy
exercised
and was vitiated by an irregularity or misdirection or is
so severe that no reasonable court could have imposed such sentence.
The Appeal Court will interfere if the sentence induces a sense of
shock and is grossly excessive to what sentence the Appeal Court
would have imposed;
vide
S v De Jager and Another
3
;
The
court of appeal cannot substitute its own sentence for that of the
trial court for that would be usurping the functions of the
trial
court;
vide
S
v
Blignaut
2008
(1) SACR 78
(SCA) at 81i-82b para [4].
[5]
The appellant and his co-accused were duly represented during the
trial. They pleaded not guilty and exercised their right of
silence.
The Court rejected the denial version of the appellant and his
co-accused of their guilt. The Trial Court accepted the
State's
version and convicted them as charged.
[6]
The backdrop to the conviction and sentencing of the appellant was
that on the 15 February 2001 then 17 years old he together
with
accused 2 (then 15 years old) and accused
3
(then
19 years old) came across Daniel Pitso Lenokwane (the deceased) who
was inebriated. Accused 2 in racist's terms, including
the abhorrent,
demeaning, offensive and hurtful
"K"
word
suggested that the deceased be assaulted. They all assaulted the
deceased by kicking and punching him with fists simply because
of the
colour of his skin and was in their so called white territory. The
deceased was left lying on the pavement where he perished
as the
result of the injuries emanating from the assault. The trial Court
considered the evidence before it and concluded that
the appellant
and his
socio
in crime
committed
the crime in pursuit of a common purpose and found them guilty of the
murder on
dolus
eventuafis.
[7]
The
cause of death is recorded in the post mortem report prepared by Dr.
HS Wentzel. The injuries sustained by the deceased were
bruises,
lever rapture, cranial fracture and bleeding. The cause of death is
head injuries and brain haemorrhage.
[8]
In sentencing the appellant the trial court had regard,
inter
alia,
to
the following factors:
(a)
The
youthfulness of the appellant and his co-accused. The appellant was
17 years at the time of the commission of the offence. Accused
2
was15 years old and accused 3 was 19 years old.
(b)
The
trial Court was conscious and mindful of the Constitutional
provisions dealing with the sentencing of a youth who committed
offences before they reached the age of 18 years. It reminded itself
that where possible the convicted youth must be kept out of
prison.
(c)
The
trial Court took into account and in favour of the appellant that
they had taken liquor, drugs and dagga at the time of the
commission
of the offence.
(d)
The
trial court had also caused a probation report to be prepared and
same was prepared by Ms Bruwer.
[9]
In
casu
the
Correctional Supervision probation officer recommended that the
appellant should be sentenced to correctional supervision in
terms of
section 276. This report also recommended that the appellant should
be placed under correctional supervision for 16 months.
However
Bruwer's report stated that the appellant was presently employed as
a
welder
at Provido in Lichtenberg and earns an amount of R400.00 since
January 2004. The appellant stays at a caravan park at his
work
place. After they have completed the contract they are working on,
they move to another site and set up their caravan park
there. Bruwer
held the view that because of the fact that the appellant did not
have a fixed address and the gravity of the offence
the appellant is
not a suitable candidate for correctional supervision in terms of
s276.
[10]
It was pointed out to Bruwer that the appellant had informed the
other probation officer that he pleaded guilty and tried to
stop the
assault on the deceased. It was however pointed out to her that the
accepted evidence contradicts the appellant's allegations
in that
regard. Bruwer held the view the appellant's false allegation of his
alleged role and his persistent denial of his is not
reflective of
the presence of remorse as he does not own up.
[11]
Bruwer conceded that alcohol; drug substance and dagga abuse coupled
with the fact that they were a group played a roll in
the commission
of the offence. She further opined that a ten months imprisonment may
be considered in stead of the maximum five
years sentence in terms of
s276(1 )(i).
[12]
Bruwer also pointed out that the appellant came from a battered
family where alcohol, arguments and assaults were the order
of the
day since his childhood.
[13]
As stated earlier the trial Court sentenced the appellant and accused
2 each to fifteen years imprisonment. Accused 3 at that
stage was at
large and a warrant for his arrest had already been issued. He was
however later sentenced to 15 years imprisonment
as well.
[14]
It was submitted on behalf of the appellant that the Trial Court did
not properly follow the principles stated in S v Pietersen
(supra),
although
the report was obtained. In the probation officer's report
non-custodial sentence was recommended, it has also been further
submitted that the Trial Court erred in not tempering with the
sentence of the appellant as he was a youth, as advocated in S
v
N
4
the
Supreme Court of Appeal said: "So if there is a legitimate
option other than prison, we must choose it; but if prison is
unavoidable its form and duration should also be tempered."
[15]
It was further submitted that the sentence imposed by the Trial Court
is excessive. In this regard it is submitted that in
S
v
Salzwedel
(supra),
also
a racially motivated murder case committed by white youths who had
decidedly gone out with the singular purpose of assaulting
their
victims on the basis of the colour of their skin, were sentenced to
12 years imprisonment 2 years of which were suspended.
The
appellants in that case
armed
with weapons had decidedly gone out with the singular purpose of
assaulting their victims on the basis of the colour of their
skin. It
was further submitted that
in
casu
the
appellants had not premeditated the assault and did not have weapons,
unlike in the
Salzwedel
case,
but was instantaneous and therefore
a
lighter
sentence should have been imposed. It is further submitted that there
should have been differentiation of the sentence because
the
appellant played an insignificant role in the assault of the deceased
as that of accused 2.
[16]
in S
v
Pietersen(supra)
it
was emphasised that where dealing with the sentencing of youth
offenders, a probation report regarding the background of the
youth
must be obtained.
In
casu,
the
Trial Court caused the probation officer's report to be obtained and
considered it.
[17]
It is trite that sentencing is a matter of the discretion of the
court. The recommendation by the probation officer regarding
sentence
do not bind the court. The court need not follow such recommendation.
The court must evaluate such recommendation and
exercise its
discretion as to what is an appropriate sentence.
[18]
In
Salzwedel
matter
(supra)
it
was found that the young white accused were motivated by racial
bigotry when they killed the deceased. The psychologist who
interviewed them recommended non-custodial sentence. The Supreme
Court of Appeal held that:
(a)
the
app a psychologist:
(b)
focusing
on the well-being of the accused would result in warped sentences;
(c)
racism
conditioned by racist environment is not necessarily mitigating
factor (my view is that it should be regarded as an aggravating
factor);
(d)
sentence
is to give expression to legitimate feelings of outrage experienced
by reasonable men and women upon commission of serious
racist crime.
[19]
In my view, the Trial Court carefully considered the gravity of the
crime committed by the appellant and his socio in crime.
The fact
that the Trial Court did not heed the recommendation of the probation
officer and imposed in the exercise of his discretion
a custodial
sentence does not vitiate the sentence. In Salzwedel
5
matter
(the
late
Mahomed CJ said: "An Appeal court is entitled to interfere with
a sentence imposed by a trial court in a case where the
sentence is
'disturbingly inappropriate', or totally out of proportion to the
gravity or magnitude of the offence, or sufficiently
disparate, or
vitiated by misdirections of a nature which shows that the trial
court did not exercise its discretion reasonably".
[20]
The severity and brutality of the assault on the deceased is
reflected on photos 7and 8 which were handed in as exhibit C.
Photo 7
shows the blooded face of the deceased with hugely swollen upper lip,
almost reaching his blooded nose, closed swollen
and blue left eye.
His right hand seems to have cut injuries and is visibly swollen.
Photo 8 shows the bruised and
blooded
face of the deceased from the right side. This brutality of the
killing cannot be looked at in isolation.
[21]
It
was contended on behalf of the appellant that because the appellant
and his
socio
in crime
had
abused liquor and drugs and dagga the Trial Court failed to
sufficiently take this into consideration. Assuming that the use
of
these substances is proffered as tempering with the blameworthiness
of the appellant, and therefore amounts to mitigating circumstances,
it needs be pointed out that the appellant bears the
onus
of
proving the extent these substances afflicted his sobriety. In this
regard
vide
S v Qeqe and Another
6
.
There
was no evidence proffered by the appellant to prove what influence
the substances had on him. It is within the Trial Court
to decide
what weight to attach to presence or otherwise of liquor and the
other substance, i am of the view that the Trial Court
did take this
factor into consideration.
[22]
The gravity of the offence committed by the appellant and his
socio
in crime
does
not lie only in the killing of an innocent person, and or the
severity and the brutality of the commission thereof but more
in the
motive which propelled them to commit it, racism! Racially motivated
offences committed by whoever offend against the ethos
and
aspirations of the peoples of this nascent democracy. The evil in
racism is that it has the potential of plunging this country
into the
abysses of pre1994 and opens the healing wounds of the past and
further divides the citizenry on racial lines.
7
[23]
It is apposite to once more cite in full the late Mahomed AJA (as he
then was) in S v Van Wyk
8
:
"Mr.
Botes repeatedly contended that because the appellant was
'socialized' or conditioned by a racist environment for
many years,
the fact
that
murder of the deceased was racially motivated should in the
circumstances be treated as a mitigating factor and not as an
aggravating
factor.
He accordingly contended that the Court a
quo
had
erred in 'finding that... the racial undertone must be seen as an
aggravating factor".
This
submission raises an important issue pertaining to sentencing policy
in post-independence Namibia. Crucial to the identification
of that
policy is the spirit and the tenor of the Namibian Constitution.
As
I have previously said:
'The
Constitution of a nation is not simply a statute which mechanically
defines the structures of government and the relations
between the
government and the governed. It is a "mirror reflecting the
national soul", the identification of the ideals
and aspirations
of a nation; the articulation of the values bonding its people and
disciplining its government. The spirit and
the tenor of the
Constitution must therefore preside and permeate the processes of
judicial interpretation and judicial discretion."
(S
vAcheson
1991
(2)
SA
805
(Nm) at 813A-B.)
Throughout
the preamble and substantive structures of the Namibian Constitution
there is one golden and unbroken thread - an abiding
'revulsion' of
racism and apartheid. It articulates a vigorous consciousness of the
suffering and the wounds which racism has inflicted
on the Namibian
people 'for so long' and a commitment to build a new nation 'to
cherish and to protect the gains of our long struggle'
against the
pathology of apartheid. I know of no other Constitution in the world
which seeks to identify a legal ethos against
apartheid with greater
vigour and intensity. (See the Preamble of the Constitution and arts
10 and 23.)
That
ethos must 'preside and permeate the processes of judicial
interpretation and discretion' as much in the area of criminal
sentencing as in other areas of law.
To
state that the appellant's racism was conditioned by a racist
environment is to explain but not necessarily to mitigate. At
different times in history, societies have sought to condition
citizens to legitimise discrimination against retribution, and to
permit monstrous invasions of human dignity and freedom through the
institution of slavery. But there comes a time in the life
of a
nation, when it must and is able to identify such practices as
pathologies and when it seeks consciously, visibly and irreversibly
to reject its shameful past. That time for the Namibian nation
arrived with its independence. The commitment to build a new nation
was then articulated for everybody inside and outside Namibia to
understand, to cherish, to share and to further
(sic).
The
appellant must, like other citizens, have been exposed to the force
and the significance of this message.
To
allow the 'racist socialisation' of pre-independence Namibia to
continue to operate as a mitigating circumstance, after the new
Constitution has been publicly adopted, widely disseminated and
vigorously debated both in Namibia and the international community,
would substantially be to subvert the objectives of the Constitution,
to impair the process of national reconciliation and nation
building
and to retard the speed with which Namibian society has to recover
from the legacy of its colonial past.
Having
regard to the foregoing, I can find no fault with the finding of the
Court a
quo
that
the racial motive which influenced the appellant to commit a serious
crime must in the circumstances of the case be considered
as an
aggravating factor. The sentence imposed should and did, in my view,
correctly reflect the determination of the Courts to
give effect to
the constitutional values of the nation and to project a strong
message that such criminal manifestations of racism
will not be
tolerated by the Courts of the new Namibia."
[24]
I find the views expressed in the aforesaid passage to be apposite in
the circumstances of this case. I am further of the view
that racist
bigotry should not be tolerated regardless of the age of the
perpetrator. With regard to the youth, because they are
the future of
this country, the Courts must not hesitate to impose long sentences
to ensure that this evil is not carried into
the future.
[25]
In S
v
N
9
the
Supreme Court of Appeal with regard to sentencing of a youthful
offender said: "So if there is a
legitimate
option other than prison, we must choose it; but if prison is
unavoidable its form and duration should also be tempered”.
It
is contended on behalf of the appellant that the Trial Court erred in
not tempering with the duration of the custodial sentence
it decided
to impose.
[26]
In casu, the Trial Court had regard to the fact that there was no
remorse evinced by the appellant. The Trial Court in the
circumstances held the view that an appropriate sentence was
custodial sentence. I am of the view that the Trial Court cannot be
faulted in that regard.
[27]
Sentencing requires the balancing of all the circumstances and
interest not only of the offender but also the collective populace.
I
n
casu
the
Trial Court had regard to the fact that there was no remorse evinced
on the part of the appellant, and expressed itself that
otherwise
would have mitigated the duration of the sentence. I am of the
considered view that in the circumstances of this case
the
youthfulness of the appellant does not per se qualify him to a lesser
sentence than the one imposed, particularly if such sentence
has been
arrived at through sound reasoning. I am of the view that the Trial
Court did not close its eye to the youthfulness of
the appellant.
[28]
It has further been submitted that the sentence is shockingly
inappropriate when compared to sentences imposed in similar cases
by
the Supreme Court of Appeal in S
v
Salzwedel
(supra).
In
the case of
Salzwedel
the
murder was committed on 12 March 1994. During that period there was
tension in the country, with some of the sectors of the
citizenry
uncertain of their future in the new democracy. There were those who
wanted to destabilize the process of transformation
through racist
attacks with the hope that the country would be plunged into a full
scale civil war. After 27 April 1996, the path
charted was one of
reconciliation. It is understandable that for those few years post
1996 there would be some pockets of hangover
to the past. The
sentences imposed by the Supreme Court of Appeal in the matters cited
herein must be understood in the
context
of the hangover syndrome, I am of the view that the further away we
move from 1996, there is a need to deepen and strengthen
the ethos of
the Constitution. There is equally a duty on the courts to impose
harsher sentences in racially motivated crimes because
there is no
room for racist bigotry in this democracy. There is no need to be
sympathetic to those who are fixed in the past when
the majority of
the peoples of this country are forging ahead with reconciliation,
in
casu
the
crime was committed 7 (seven) years into the democracy. There was no
need for the commission of this offence and it warrants
that sever
sentences should be imposed. I find the sentence imposed in the
circumstances not shockingly inappropriate.
[29]
It has further been contended that the appellant only fell the
deceased with one blow and his role was minimal there should
be
differentiation of his sentence from the other co-accused. The Trial
Court found that the appellant was furthering a common
purpose when
he assaulted the deceased. The death of the deceased, in my view, was
as the result of the cumulative effects of the
collective assault by
the appellant and his mates. It would be nay impossible to quantify
the blows rendered by each of the three
assailants and then apportion
such individual's blows into compartments to determine and
differentiate their respective contribution
to the death of the
deceased for purposes appropriating commensurate sentences on
different degrees. The purpose of the sentence
in the circumstances
of this case is to deal with and eradicate the evil that dwells in
each and every one of them
10
.
Towards that end there is no need to mete different sentences.
[30]
In conclusion, I find that the sentence imposed is not shockingly
inappropriate and serves the desert of the appellant. I
also find
that the Trial Court properly met the principles flowing from
Petersen
matter
(supra)
and
did not err in assessing and reaching in the exercise of his
discretion the sentence imposed.
[31]
in the result the appeal against sentence is dismissed and the
sentence of 15 years imprisonment imposed by the Trial Court
on 17
May 2004 is confirmed.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree.
P.
C.VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
T.A
MAUMELA
ACTING
JUDGE OF THE HIGH COURT
Applicant’s
Attorneys
............. ..
State’s
Attorneys
Applicant’s
Adv
....................... .
Adv C
Joubert
Respondent
…..........................
DPP
Respondent’s
Adv
.....................
Adv P Vorster
1
1999
2 SACR 586
(SCA).
2
[1990] ZASCA 38
;
1990
(2) SA 802
(AD) at 806H.
3
1965
(2) SA 6161
(A) at 628FIN-629B.
4
[2008] ZASCA 30
;
2008
(2) SACR 135
(SCA) at 147h-I.
5
supra)
at
591 g.
6
M990
(2) SACR 654 (CkA).
7
Vide
Preamble of the Constitution of the Republic of South Africa, Act
108 of 1996.
8
1992
(1) SACR ) 47 CNm) at 172f-173g.
9
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) at 147h-I.
10
In
Salzwedei (supra) at 595h-l Mahomed CJ said: "Although the
different respondents had different duties to discharge in
the
events which led to the murder of the deceased, and although only
two of the respondents were directly involved in his assault,
the
trial Court was correct in treating them all equally for the
purposes of sentence. All the respondents acted together and
in
concert, and the acts of each, in the circumstances of this case,
must be attributed to the others. Nor is there any reason
to treat
the fourth respondent differently because he did not participate in
the previous raids of the group when they attacked
black persons. He
took part in the events on the night in question with the knowledge
and appreciation of what had gone before."