Le Roux and Others v S (444/08) [2010] ZASCA 7; 2010 (2) SACR 11 (SCA) ; [2010] 3 All SA 288 (SCA) (5 March 2010)

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[2010] ZASCA 7
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Le Roux and Others v S (444/08) [2010] ZASCA 7; 2010 (2) SACR 11 (SCA) ; [2010] 3 All SA 288 (SCA) (5 March 2010)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 444/08
In the
matter between:
JOHANNES
CHRISTIAAN LE ROUX FIRST APPELLANT
TIMMY
NANKERVIS
SECOND APPELLANT
ANTON
PAUL LE ROUX
THIRD
APPELLANT
WILLEM
LE ROUX
FOURTH APPELLANT
GERHARDUS
ROSSOUW FIFTH
APPELLANT
LOUIS ROSSOUW
SIXTH APPELLANT
DANNY
SCHONE
SEVENTH APPELLANT
v
THE
STATE
RESPONDENT
Neutral citation:
Le
Roux v The State
(444/2008)
[2010] ZASCA 7
(5 March 2010).
Coram:
Mpati
P, Nugent, Mlambo JJA
Heard: 9
September 2009
Delivered: 5
March 2010
Summary: Criminal law – Public
violence – what constitutes – group of perpetrators assaulting
restaurant patrons at random and
damaging restaurant utensils.
Public violence – no prior
plan – common purpose developing at the scene – association with.
Fair trial rights – appeal
delay – effect on sentence.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Seriti and Ledwaba JJ sitting as court of
appeal).
1. The appeals against conviction succeed in respect of
appellants 2, 3, 4 and 7. Their convictions and sentences are set
aside.
2. The appeals of appellants 1, 5 and 6 are dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO
JA
(Mpati P and Nugent JA concurring):
[1] The seven appellants were arraigned with seven
others in the Brits Regional Court on a number of charges, but were
convicted only
on a charge of public violence. The first and second
appellants were sentenced to six years’ imprisonment, two years of
which were
suspended for five years on certain conditions. The other
appellants were also sentenced to six years’ imprisonment but in
their
case three years were suspended for five years on similar
conditions. The appellants were unsuccessful in an appeal against
their
convictions and sentences to the North Gauteng High Court,
Pretoria (Seriti and Ledwaba JJ). That court, however, granted them
leave
to appeal to this court against their convictions and
sentences.
[2] As to the other seven persons originally charged
with the appellants, one of them, Sydney Douglas Keyser, pleaded
guilty to a
charge of public violence at the commencement of the
trial, and was consequently convicted on that charge and sentenced to
six years’
imprisonment, four of which were suspended also on
certain conditions. He then turned state witness. Two others had
charges withdrawn
against them and two more were discharged at the
close of the state’s case.
1
Of the remaining two one was acquitted on all charges at the
conclusion of the trial and the other was successful in the appeal to
the North Gauteng High Court.
[3] The incident giving rise to the matter took place
some 13 years ago, on 17 June 1996 to be exact, at
Hartebeespoort
in Gauteng at a restaurant known as Tant Malie’s. On
that day, a public holiday, the restaurant was packed to the brim
with patrons,
including children, enjoying themselves and having a
good time when a fight erupted. In the ensuing fight, which escalated
into several
other fights engulfing the whole restaurant, a number of
patrons were assaulted and restaurant furniture and utensils were
damaged.
The appellants who were present at the scene and others,
alleged to have been with them, were implicated as the perpetrators
of these
acts. The charges brought against them included attempted
murder, assault with intent to do grievous bodily harm, malicious
damage
to property and theft.
[4] In this appeal the appellants have raised
essentially two issues against their convictions. The first is that
the incident on
which their convictions are based was not of such a
magnitude as to amount to public violence. The second is that the
state had failed
to adduce evidence linking them to any act of
association in the commission of any transgression alleged to have
been committed on
the day in question. In relation to sentence it was
contended that the trial court had misdirected itself when it turned
down the
appellants’ application for a postponement which, they
assert, was aimed at obtaining pre-sentence reports for purposes of
bringing
certain facts to the attention of that court for its
consideration before imposing sentence.
[5] At the outset, and in view of the appellants’
argument that the incident we are concerned with was not so serious
as to amount
to public violence, it is apposite to consider what
constitutes that offence. Public violence is described by Snyman
2
as follows:
‘
Public violence consists in
the unlawful and intentional commission, together with a number of
people, of an act or acts which assume
serious dimensions and which
are intended forcibly to disturb public peace and tranquillity or to
invade the rights of others.’
This description of the offence is no different in
substance to that also proffered by Milton.
3
It is apparent from this definition that the salient features of the
offence are that a group of persons, acting in concert must
be shown
to have committed an act or acts of sufficiently serious dimensions
which invaded the rights of others and disturbed public
peace.
4
[6] The most recent case heard in this court featuring
public violence is
S v Whitehead
.
5
In that matter a group of men assembled at a pre-arranged spot, and
finalised a plan to attack workers and members of a union who
were on
strike. From their meeting these men then ran towards the strikers
who had by that time assembled at a nearby park. What
followed was an
indiscriminate attack on the unsuspecting workers accompanied by the
damage and destruction of property, notably
motor vehicle
windscreens. The conviction of public violence on these facts was not
challenged on appeal.
[7] With this exposition of what constitutes the offence
of public violence I turn to consider what happened in the case
before us.
The restaurant at which the incident took place is made up
in the first instance of a bar, a conventional shop as well as a gift
shop where typically South African wares are on offer. Then there is
an upper level catering for conventional restaurant services
where
meals are served. There is also an area in the outdoors of the
premises divided into what is called the Bosveld, Luiperd and
Laeveld
lapas. These lapas are arranged into 41 specially constructed braai
areas which cater for anything from five to 30 patrons
at a time.
There are also stables on the premises where horses were apparently
kept. The restaurant appears, on the record before
us, to be a
favourite venue for family occasions such as birthday celebrations
and is popular with locals and tourists alike.
[8] In what follows I set out an undisputed version of
what transpired. According to this version a group of big and well
built men,
mostly with clean shaven heads, set upon and attacked
restaurant patrons and committed a variety of other transgressions at
the restaurant.
This group is also said to have been identifiable by
the dark windbreakers that they wore. There is no dispute that the
spark that
ignited the mayhem occurred at the horse stables. This was
when appellant no 7 (Danny Schone) mounted or attempted to mount a
horse
backwards and was seen in the process fooling around with its
tail. This conduct prompted a patron occupying one of the braai areas
in that vicinity to make a remark about his antics. The nature of the
remark was undisputedly innocuous and is alleged to have been
along
the following lines: ‘How can he do that’. The patron who made
this remark was part of the Jamieson family which came to
be known in
the trial as the Jamiesons, who had come to the restaurant to
celebrate Mr Shaun Jamieson’s birthday. The remark apparently
emanated from Shaun Jamieson’s brother-in-law, Mr Hannes van Wyk,
and it was apparently heard by Schone and some of his friends
who
then as a group proceeded to surround the Jamiesons. Some of the
appellants were in that surrounding group and one of them uttered
words to the effect of ‘come boys lets box’ where after one of
them proceeded to assault Hannes van Wyk with fists despite the
latter’s placatory efforts. Shaun
Jamieson
tried to come to his brother-in-law’s rescue but was himself pulled
from behind by his shirt and was then punched in his
face which
caused him to fall whereafter he was kicked several times.
[9] When the assault on Hannes van Wyk and Shaun
Jamieson ceased, the group of attackers moved on and some of them
were observed assaulting
patrons they encountered along the way.
Shaun Jamieson saw this group upending tables, breaking glasses and
throwing chairs around.
The group was then seen breaking up into
smaller groups which continued assaulting any patron they
encountered. This escalated into
full scale chaos engulfing the whole
restaurant with accompanying screaming, shouting and confusion. In
the ensuing mayhem patrons,
petrified of being assaulted, tried to
keep away from the marauding attackers whilst others, who
unfortunately found themselves in
the vicinity of the conflict, were
beaten up. The whole place by all accounts was virtually turned
upside down. In the aftermath
of the chaos there were patrons who
were bleeding from the beating they had received, some of whom
required medical attention.
[10] From the evidence presented by the state certain
incidents which played themselves out amidst the chaos, stand out and
it is
necessary to refer to them. The first one is the Jamieson
incident I have alluded to during which Hannes van Wyk and Shaun
Jamieson
were assaulted. Another incident is an incident where a big
man was observed assaulting a much smaller man. This prompted one of
the patrons, Mrs Diana McClelland, to throw a can at the big man, in
an effort to stop the assault. It is common cause that the can
hit
someone who thereafter swore at McClelland. I will return to this
incident later in this judgment when dealing with the issue
whether
the can hit the attacker or not.
[11] Another incident is the so-called Serfontein and
Schutte incident. The evidence is that Dr Serfontein and Mr Schutte
and their
wives were also at the restaurant to celebrate a birthday.
They heard some noises and Dr Serfontein and Mr Schutte then
left
to investigate what was happening after telling their families
to hide in a small room. They then found themselves surrounded by
a
group of men and one of them assaulted Dr Serfontein with a sjambok.
They managed to leave the area and proceeded to their vehicles
where
Dr Serfontein took a jacket. On their way back Dr Serfontein was
again attacked by approximately four men. When Schutte
tried to
assist Dr Serfontein he was also assaulted and lost consciousness. He
regained consciousness when order had returned and
required surgery
for his wounds.
[12] There was also the incident that occurred outdoors
where a man was assaulted by a group of men. It appears that every
time this
man was assaulted he fell backwards against a tree which
threw him back towards the attackers and this unleashed continuous
beatings.
Then there was an encounter between Mrs Alberts, the owner
of the restaurant, and one of the men who shouted at her that his men
would close down the place. Another encounter occured between the
same man and Mr van der Watt, Mrs Albert’s friend who was assisting
her to run the restaurant on that day, where the same threats were
made. Perhaps the most graphic, yet conclusive, evidence of the
situation came from Van der Watt. I can do no better than quote his
testimony to the effect that:
‘
Ons het gevoel soos
gyselaars. Ons kon nêrens heen beweeg nie. Ons was te bang. Ons
vryheid van beweging was ontneem want jy was
te bang loop jy nie jou
weer vas in een van die mense nie.’
And further:
‘
Nee, dit was vir my meer as
aanranding. Dit was soos ‘n aanval. Dit was nie vir my asof daar ‘n
bakleiery van weerskante was nie.
Ek het dit nou genoem die term,
bakleiery maar die aggressie, die aanval het definitief van hierdie
groep gekom want die ander, die
vrou het nog gepleit: “Moenie my
man slaan nie”.’
This evidence was uncontradicted. It is clear, in my
view, that the drama that unfolded at the restaurant on that day was
a rowdy,
violent and bloody confrontation in addition to which
windows, shop wares and furniture were either upended and/or broken
and that
the public peace was seriously disturbed.
[13] The mayhem was so pronounced that the first law
enforcement officers on the scene, Sergeant Olson and Inspector
Madia, followed
by Corporal du Bruyn, were unable to bring the
situation under control and restore order until sometime later with
the arrival of
reinforcements. Perhaps one must also refer to an
incident that occurred on the arrival of Olson. He was confronted by
a big man
who was part of the mayhem perpetrators. This man
approached Olson menacingly with one of his hands behind his back.
The significance
of this confrontation is that the man’s demeanour
towards Olson was perceived to be one of aggression and was thought
to have a
weapon in his concealed hand. Needless to say but Olson
became apprehensive when he was confronted in this fashion. Olson and
Madia
also observed small groups of men, from which the one who
confronted Olson emerged, attacking individual patrons. They observed
that
a majority of patrons were barricaded inside the restaurant and
that any patron who stumbled outside the restaurant was set upon
by a
group comprising anything from two to five men. With the arrival of
reinforcements they were able to move in between the groups
and
rescue the patrons caught up in the fracas. Eventually the group of
attackers left the scene and this resulted in a cessation
of the
chaos.
[14] All this evidence demonstrates conclusively, in my
view, that the incident we are dealing with reached public violence
dimensions
and that the finding by the trial court that this offence
was committed on that day is fully justified. A further useful
indicator
that public violence was committed is the number of
incidents described by the witnesses.
[15] This leads me to the next and primary issue in the
appeal and that is whether the appellants were correctly convicted of
having
committed any acts of public violence or associated themselves
with the transgressions committed on that day. The appellants do not
dispute that at some stage there was trouble at the restaurant but
they deny planning and/or being complicit in any criminal conduct
committed there on that day. Their version which was accepted by the
trial court was that they had planned beforehand to spend the
afternoon at some other place in Buffelspoort to celebrate Sydney
Keyser’s birthday. This plan changed, however, when those
travelling
ahead in their motorbike convoy decided, as they went past
Tant Malie’s, that they would rather celebrate Keyser’s birthday
there.
They then proceeded to redirect others in their convoy to the
restaurant as well as recall those who had already gone past.
[16] In convicting the appellants the trial court
accepted the appellants’ version that they had no prior plan to be
at the restaurant
but reasoned that as they were
present at the restaurant, they had
acted in consent and their actions assumed serious dimensions which
disturbed the public peace
and order. On this basis the trial court
concluded that they had committed the offence of public violence and
convicted them accordingly.
This conclusion was upheld by the North
Gauteng High Court.
[17] In
S v Mgedezi
1989 (1) SA 687
(A) this court dealt with a situation where there was
no prior plan to commit the offence of public violence. It was stated
there
that a general and all embracing approach regarding all those
charged is not permissible. It was stated further that the conduct
of
the individual accused should be individually considered with a view
to determining whether there is a sufficient basis for holding
that a
particular accused person is liable on the ground of active
participation in the achievement of a common purpose that developed
at the scene. In that case the following was stated:
6
‘
A view of the totality of the
defence cases cannot legitimately be used as a brush with which to
tar each accused individually, nor
as a means of rejecting the
defence versions
en
masse
.’
And further:
7
‘
The trial Court was obliged
to consider, in relation to each individual accused whose evidence
could properly be rejected as false,
the facts found proved by the
State evidence against that accused, in order to assess whether there
was a sufficient basis for holding
that accused liable on the ground
of active participation in the achievement of a common purpose. The
trial Court’s failure to
undertake this task again constituted a
serious misdirection.’
[18] In argument before us it was
submitted on behalf of all the appellants that the state had failed
to prove any act of association
by them with any transgression
committed at the restaurant. The submission was that on this basis
the appeals against the appellants’
convictions had to succeed. It
was further submitted that there was no reliable evidence linking the
appellants to any of the transgressions
perpetrated at the
restaurant. In this regard it was submitted that in respect of J C le
Roux in particular, he was uncontradicted
in his assertion that he
actively tried to stop the fracas and that he also tried to get his
group out of the restaurant.
[19] It is clear in this matter that in convicting the
appellants the trial court’s premise was simply that as they were
shown to
have been present at the scene they were therefore complicit
in the commission of transgressions by other members of the group.
This,
on
Mgedezi’s
authority was a misdirection. In the absence of a prior agreement or
plan to commit the transgressions mentioned the trial court
was
required to conduct an investigation of each appellant’s conduct at
the scene so as to determine whether that appellant associated
himself with the acts of pubic violence. The trial court was also
primarily reliant on Keyser’s evidence in convicting the
appellants.
In this regard, the trial court reasoned that as Keyser
had already been convicted and sentenced he stood to benefit nothing
by falsely
implicating the appellants.
Keyser
was an accomplice and his evidence against the appellants had to be
treated with caution. That caution was called for in this
instance is
also due to Keyser’s admitted animosity towards J C le
Roux in particular. For this reason his evidence also
required some
corroboration before being accepted. Clearly therefore the trial
court committed a misdirection in failing to treat
Keyser’s
evidence with the necessary caution and in accepting it without the
necessary corroboration.
It
is necessary therefore to consider all the evidence to determine the
complicity, if any, of the appellants in the commission of
any
transgression committed at the restaurant.
[20] In so far as appellant no 1
(J C le Roux) is concerned, almost all the state witnesses testified
and stated that he was visible
as he appeared to play some leadership
role regarding the group that was terrorising other patrons. This
observation cannot be discounted
in view of its corroboration by J C
le Roux himself that some of the men in his group worked for him in
his security business. He
testified in this regard that seven of the
men charged with him were in his employ at the time of the incident
including appellants
3 (Anton Paul le Roux) and 4 (Willem le Roux)
who were also his younger brothers. Keyser also attested to this.
That J C le Roux
also recognised his leadership role is found in his
version that he was the one issuing instructions to his group to
either desist
from assaulting other patrons or to leave the
restaurant. Clearly J C le Roux was a prominent and unmistakeable
figure in the midst
of the chaos.
[21] J C le Roux was implicated by
Keyser to have been involved in the Jamieson incident I alluded to
earlier. Keyser testified that
when the fracas started around the
Jamiesons J C le Roux was the one who said to them, ‘come boys lets
box’ or words to that
effect. Shaun Jamieson identified him and
appellant 2 (Timmy Nankervis) as being present in the group that
surrounded his family.
He could, however, not say that he saw J C le
Roux do anything or assault anyone. He testified that it was this
appellant who was
issuing instructions to the others. He could,
however, in stark contrast to Keyser’s evidence, not say if it was
J C le Roux who
uttered the words ‘let’s box’. In so far as his
wife, Juliana Jamieson is concerned, she identified the fourth
accused
8
in the trial as the person who assaulted Van Wyk. It appears that in
identifying that accused (Lawrence Pike) she was under the impression
that she was identifying J C le Roux who had swopped positions with
Pike just before she came in to testify. She conceded that she
was
mistaken in her identification when it was put to her in cross
examination that it was suspect. Her evidence must, for this reason,
be disregarded as being unreliable against J C le Roux. Clearly
therefore we have no evidence of this appellant’s complicity in
the
transgressions committed during the Jamieson incident.
[22] J C le Roux was also
implicated by Van der Watt and Alberts. Van der Watt testified that
when he encountered this appellant,
he screamed abuse at him. He
became very scared and requested this appellant and his group to
leave but the latter demanded a refund
of their money and threatened
to burn the restaurant down. Van der Watt expressed the issued threat
thus:
‘
Daardie groot persoon wat die
bierblik gehad het. Wat ek as die leier aangesien het. Hulle het vir
my geskree dat:
“
Ons
gaan julle toemaak. Ons gaan hierdie plek afbrand. Vannag gaan ons
hierdie plek kool. Ons gaan hierdie plek afbreek tot die grond
toe”.’
He also testified that J C le Roux
grabbed him by his throat and pinned him against the wall. J C le
Roux did not deny the encounter
with Van der Watt, though he denied
assaulting him. He also did not deny the threat attributed to him
stating that this was his attempt
to obtain a refund of the money
they had already paid and for which they had yet to be served. It is
not disputed that his screams
at Van der Watt were heard by other
patrons and added to the general pandemonium taking place there. The
other incident where J C
le Roux was implicated was his confrontation
with Mrs Alberts and where he again admittedly threatened to burn the
place down unless
they were refunded their monies. Alberts was
unshaken in her identification of J C le Roux, saying that his face
remained etched
in her memory in view of her experience on the day of
the incident. Van der Watt and Alberts were unshaken in their
implication of
J C le Roux and I have no reason to doubt their
evidence. Clearly this appellant was identified by these witnesses
committing transgressions
that formed part and parcel of the
criminality taking place at the restaurant.
[23] I now consider the can
throwing incident. McClelland is the witness who threw a can at a big
man she saw assaulting a smaller
man. She testified that she had
heard a commotion and as the noise grew and when she looked for the
source of the noise she witnessed
this assault. She also saw a child
and a woman screaming next to the scene of the assault. She testified
that she threw the can at
the big man who was assaulting the smaller
one basically to stop the assault. She could not, however, identify
the big man involved
in the assault and she further conceded that she
was not sure if the can hit him. J C le Roux admitted that the can
hit him but denied
that he was involved in any assault at the time.
[24] Mr
Carl
Victor Jeppe also testified about the same incident and he gave the
same evidence of a big man who was assaulting a smaller one
and that
his sister-in-law, McClelland threw a can at the attacker. He saw the
can hit the attacker who then looked up and swore
at McClelland. He
also testified that this big man had a beer mug in his hand which he
threw at McClelland but missed her. He further
mentioned a child
screaming next to the scene of the assault. He mentioned that a woman
had tried to stop the assault by jumping
on the back of the big man
but was simply bundled away. Carl Jeppe identified J C le Roux as the
man who was assaulting the smaller
one and further testified that
this appellant appeared to be the ring leader of the attackers.
Whilst he maintained his identification
of J C le Roux as the
attacker, he conceded, however, that he could be mistaken between J C
le Roux and appellant no 6 (Louis Rossouw)
as to the man who
perpetrated the assault. What is key however is that he (Carl Jeppe)
was unshaken in stating that the can hit the
man who was assaulting
another.
[25] It is necessary to place the
can-throwing incident in proper context. This is in view of the
suggestion in argument that it occurred
during the Jamieson incident.
Shaun Jamieson and his wife said nothing about the man who was
assaulting Hannes van Wyk being hit
with a can. Neither did they
mention the presence of a screaming child or a woman who had jumped
on the back of that man.
[26] We know that in the Jamieson
incident it was not only Hannes van Wyk who was assaulted, but Shaun
Jamieson too. From their vantage
point, McClelland and Carl Jeppe
would never have missed the assault on Shaun Jamieson. This analysis
demonstrates, beyond any doubt,
that when J C le Roux was hit with
the can it was not during the Jamieson incident. In the final
analysis J C le Roux’s version
does not, even remotely, suggest
that the can hit him during the Jamieson incident. It could also not
have been during J C le Roux’s
encounter with Van der Watt. Van der
Watt did not observe what was observed by McClelland and Carl Jeppe,
for instance, the woman
who had jumped on the attacker’s back. This
incident must therefore be one of those that played out during the
chaos at the restaurant.
In my view, we cannot overlook McClelland’s
evidence that she was moved to throwing the can to stop an attack on
another man. There
was therefore a clearly identifiable aggressor at
whom the can was aimed. That was J C le Roux.
[27] Then there is the incident
involving Olson who testified that J C le Roux confronted him
aggressively with his hand behind his
back. He testified that as this
appellant approached him in this manner he also challenged him
(Olson) to shoot him. This, according
to Olson, prompted him to hold
his firearm in such a way that he was ready for anything as he
thought this appellant had a firearm.
He testified that when he asked
the appellant what the problem was the latter insulted him in return.
He described this appellant’s
demeanour as very aggressive.
Inspector Madia, who had arrived with Olson, corroborated Olson’s
account of the encounter with J
C le Roux. In my view, if one takes
account of the fact that Olson and Madia were the first law
enforcement officers on the scene,
followed by Du Bruyn and Traffic
Inspector Niemandt, and that they were unable to bring normality to
the situation mainly due to
the conduct of J C le Roux’s group, his
conduct towards Olson was in line with what other members of his
group were doing.
[28] What is significant about his
behaviour is that it was in the open and in full view of members of
his group and patrons alike.
Both Olson and Madia testified that
members of J C le Roux’s group brazenly continued to assault other
patrons despite being aware
of their presence as law enforcement
officers. The continuation of assaults in full view of the police
deals, in my view, a decisive
blow to J C le Roux’s version that he
tried to diffuse the situation. Surely, one wonders why, if this is
true, that the assaults
continued unabated from the inside and
spilled out into the open. In my view, J C le Roux’s version should
be rejected as false.
I accept as correct the evidence that he was
prominent during the whole incident due to the leadership role he
played in his group
of attackers. In this regard Schutte, amongst
others, testified that this appellant was the apparent leader of the
group of attackers
and that he (Schutte) also witnessed him shouting
at the police. It is important to take into account that it was his
group that
was assaulting the other patrons and for him to behave as
described is in my view clear evidence of association with the
transgressions
committed by members of his group. He was as complicit
as his other members in disturbing the peace and invading the rights
of others.
On this basis I conclude that his complicity in the
criminality of that day was proven beyond reasonable doubt and that
his conviction
for public violence must stand.
[29]
In
so far as Nankervis is concerned, Shaun Jamieson testified that he
was the one who had abused the horse and thereafter confronted
his
brother-in-law. As we know it was not Nankervis but Schone who was
involved in the incident with the horse. Furthermore, it is
clear
that Shaun Jamieson was mistaken that Nankervis was the one who
assaulted his brother-in-law, as I will show when dealing with
Louis
Rossouw who it was shown is the person who perpetrated that assault
during that incident. Shaun Jamieson did not implicate
Nankervis in
any other transgression. Furthermore, no other witness implicated him
save for some oblique reference to him by Serfontein
allegedly
engaged in an argument with a patron. Nankervis’
version regarding his clothing on the day (short pants) and his
denial of complicity in any of the transgressions was not
contradicted.
After
considering all the
evidence it has not been shown beyond reasonable doubt that he
associated himself with the transgressions committed
on the day. For
this reason the appeal against his conviction should succeed.
[30] Anton Paul le Roux was implicated by Keyser
regarding an assault on a patron but no witness corroborated Keyser
in this regard.
This appellant was also identified by Dr Serfontein
as the person who assaulted him with a sjambok. In this regard,
however, I must
also consider the evidence of Mr Schutte who was
involved in the same incident and who identified Schone as the person
who had assaulted
Dr Serfontein with the sjambok. It is correct that
the assault of Dr Serfontein with a sjambok is undisputed but
two perpetrators
were identified whilst we know that only one person
committed the offence. Clearly, there is doubt as to the identity of
the sjambok
assailant between Anton Paul le Roux and Schone and for
that reason both must be given the benefit of the doubt. Schone is
the person
who fooled around with the horse. That is the incident
that led to the mayhem on the day in question. His conduct on the
horse, whilst
probably morally reprehensible, does not make him
guilty of public violence. He was not implicated in any other
transgression save
for the Serfontein sjambok incident, for which, as
already found, he profits from the benefit of the doubt. The appeal
against his
conviction must also be upheld.
[31] Appellant no 4 (Willem le
Roux) was convicted on evidence that he took biltong from the shop
when the mayhem started, without
paying for it. He was not identified
by any witnesses as having taken part in or associated himself with
the criminal conduct that
followed. Other mention of his
participation in the criminal conduct of that day came from Keyser,
which he disputed, but we have
no corroboration of Keyser’s
testimony in this regard. His appeal against his conviction must also
succeed.
[32] Appellant no 5 (Gerhardus
Rossouw) was identified first by Keyser and then by Shaun Jamieson as
one of the attackers that surrounded
his family. Shaun Jamieson
testified that this appellant was not involved in the assaults on him
and Van Wyk but stated that he saw
him throw some punches at a patron
as the group moved away. Furthermore, J C le Roux also mentioned in
his evidence that Gerhardus
Rossouw assaulted a patron at the door of
the restaurant. This corroborated Keyser’s evidence that he and
this appellant assaulted
a patron at that door. Carl Jeppe also
identified Gerhardus and Louis Rossouw assaulting patrons
respectively. It is clear from the
evidence regarding the Jamieson
incident that Louis Rossouw is the person who assaulted Shaun
Jamieson’s brother-in-law which is
also apparent from J C le Roux’s
evidence.
[33] In view of the fact that
Gerhardus and Louis Rossouw elected not to testify during the trial,
the evidence against them was not
contradicted. The evidence against
these appellants shows direct association by both in the
transgressions committed there. In
S
v De Kock
(244/2004)
[2005] ZASCA 9
(18 March 2005)
this court
was concerned with an accused’s failure to give evidence and the
inferences that may legitimately be drawn from such
failure and said:
‘
[17] The
essential question before this court is whether the state had
established a prima facie case against the appellant that
necessitated
an explanation. While an accused has the right to remain
silent, a right now also entrenched in the Constitution, where the
evidence
for the state is such that it calls for an answer, and none
is forthcoming, the state’s case will be found proved beyond a
reasonable
doubt. The classic statement of this principle is to be
found in
S
v Mthetwa
1972 (3) SA 766
(A) at 769D-F, per Holmes JA:
“
Where .
. . there is direct
prima
facie
evidence implicating the accused in the commission of the offence,
his failure to give evidence,
whatever
his reason may be
for such failure, in general
ipso
facto
tends to strengthen the State’s case, because there is then nothing
to gainsay it, and therefore less reason for doubting its credibility
or reliability; . . ..”’
9
To sum up therefore my view is that the guilt of
Gerhardus and Louis Rossouw was proved beyond reasonable doubt and
the appeals against
their convictions must also fail.
[34] The argument advanced in support of the appeals
against sentence is that the trial court committed a misdirection
when it refused
a postponement application by the appellants. The
basis advanced for the application was to provide the appellants with
an opportunity
to source pre-sentence reports more particularly
correctional supervision reports before the imposition of sentence.
It was argued
that the reason pre-sentence reports were necessary was
due to the fact that six years had elapsed since the commission of
the offence
with the consequence that the appellants’
predispositions had changed in that period and that they had become
more mature individuals.
The criticism levelled at the trial court is
that it refused the postponement application simply because it had
formed the view that
only direct imprisonment was appropriate in this
case. It was further submitted that the issue of sentence should be
remitted back
to the trial court for reconsideration in view of the
delay of five years from the time when the appellants were sentenced
to when
their appeals were heard by the court a quo. It was submitted
in this regard that a period of some 13 years had elapsed since the
commission of the offence to the hearing of the appeal before us and
that a lot has happened in the lives of the appellants in the
intervening period. This, it was submitted, called for the sentences
to be considered afresh taking account of the appellants’
current
circumstances.
[35] It is correct that pre-sentence reports and other
reports of that nature do in the normal course assist trial courts
with regards
to sentence. In the main pre-sentence reports are used
to bring the personal circumstances of accused persons to the fore.
The role
of pre-sentence reports must, however, not be confused with
the obligation of a trial court to impose an appropriate sentence in
the first place. As stated in many cases which it is not necessary to
cite, sentence is a matter for the discretion of the trial
court and
a court of appeal must focus on whether that discretion was exercised
judicially. As an appeal court we should be slow
to interfere in
sentences imposed by trial courts where the exercise of their
discretion is beyond reproach. See
S v Pieters
1987 (3) SA 717
(A) at 727F-H where the following is stated:
‘
Met betrekking tot appèlle
teen vonnis in die algemeen is daar herhaaldelik in talle uitsprake
van hierdie Hof beklemtoon dat vonnis-oplegging
berus by die
diskresie van die Verhoorregter. Juis omdat dit so is, kan en sal
hierdie Hof nie ingryp en die vonnis van ‘n Verhoorregter
verander
nie, tensy dit blyk dat hy die diskresie wat aan hom toevertrou is
nie op ‘n behoorlike of redelike wyse uitgeoefen het
nie. Om dit
andersom te stel: daar is ruimte vir hierdie Hof om ‘n
Verhoorregter se vonnis te verander alleenlik as dit blyk dat
hy sy
diskresie op ‘n onbehoorlike of onredelike wyse uitgeoefen het. Dit
is die grondbeginsel wat alle appèlle teen vonnis beheers.’
The issue, in my view, is whether the sentence imposed
by the trial court in this case is appropriate. In itself the refusal
to allow
a postponement for purposes of a pre- sentence report is not
a misdirection. It is clear, in this case, that all the appellants’
personal circumstances were considered by the trial court before it
imposed sentence. The trial court was also clearly conscious
of the
six year time lapse from when the offence was committed up to the
conclusion of the trial. We were not informed during argument
what
facts were left out of account by the trial court before it imposed
sentence. The facts in casu are clearly distinguishable
to those in
S
v Van Rooyen
2002 (1) SACR 608
(C) where a
pre-sentence report was found to be essential more so as a juvenile
was involved.
[36] There is clearly no basis in this matter to find
that the trial court committed a misdirection when it refused the
postponement
application. I am further of the view that the evidence
we have in this matter shows that an incident of magnified
proportions occurred
at Tant Malie’s restaurant on that fateful day
in June 1996. The most recent exposition of the approach to the
sentencing of people
convicted of public violence is found in the
matter of
S v
Whitehead & others
(supra)
where a sentence of five years’ imprisonment, two of which were
suspended, was upheld by this court. In that matter the
offence was
committed in August 1995 and the appeal in this court was heard in
November 2008 ie a period of 13 years as we have in
this case. In
dismissing the appeal against sentence this court expressed itself
thus:
‘
The
sentences were not startlingly inappropriate, nor do they induce a
sense of shock. The appellants and their cohorts brazenly,
in broad
daylight, in the face of a substantial police presence, set upon a
group of peaceful workers and severely assaulted them
with lethal
weapons. They indiscriminately smashed cars of innocent bystanders
and pursued and assaulted other black persons who
had nothing to do
with the striking workers. Amongst those assaulted were women and
elderly persons. It was demeaning and humiliating
to them in the
extreme. A substantial jail sentence was, in my view, warranted,
particularly where as a consequence of their actions
a life was
lost.’
10
In this case, which is not dissimilar to
Whitehead
,
families were out on an afternoon to have fun and minding their own
business when they were wantonly and violently subjected to
senseless
assaults. All the factors, especially this one, show that the conduct
to which the appellants were parties on that day
was sufficiently
serious as to warrant severe punishment. Based on all the above I
have no hesitation in finding that the trial court’s
sentence was
fully justified.
[37] With regard to the submission concerning the delay
in the appeal, generally an appeal court is not at liberty, when
dealing with
an appeal against sentence, to take into account facts
that were not before the trial court when it imposed sentence.
11
Where however there are exceptional facts and circumstances that come
to light after sentence but before an appeal is finalised an
appeal
court can have regard to these facts.
12
This is done in most instances where the appeal court has found some
misdirection on the part of the sentencing court. In this regard
the
appeal court could either remit the matter to the trial court for a
fresh consideration of sentence taking account of the new
facts or it
could itself deal with the matter in the process of arriving at an
appropriate sentence.
13
[38] It is so that in the case before us a total of 13
years has elapsed since the commission of the offence. The appellants
endured
six years during which they attended the trial until they
were convicted and sentenced. I have already stated that the refusal
of
a postponement for purposes of sourcing pre-sentence reports did
not prejudice the appellants as all relevant facts were placed before
the trial court. Another period of seven years has now elapsed from
the time the appellants applied for leave to appeal from the
trial
court to the court a quo and eventually to this court. The appeal
from the trial court to the court a quo took five years to
be heard
but remarkably there is nothing in the record before us to account
for this delay. This was also not dealt with in argument
before us. I
mention this because we have no idea if there are any new facts,
exceptional or otherwise, that could require consideration
in
deciding whether the matter should be referred back for a fresh
consideration of sentence. It is not the appellants’ case that
the
six year duration of the trial infringed their right to a fair trial.
As regards the period of the delay in finalising the appeal
that
also, in my view, cannot found a basis to refer the matter back
unless we can conclude that the right to a fair trial was infringed.

In
S v Pennington
1992
(2) SACR 329
(CC) the issue of appeal delays was considered by the
Constitutional Court in the context whether this infringed the fair
trial rights
of the applicants in that matter. There the
Constitutional Court expressed itself as follows:
‘
[39] Both the interim
Constitution and the 1996 Constitution deal with the rights of
accused persons to a fair trial. Section 25(3)
(a)
of the interim
Constitution includes within this right the right to a trial “within
a reasonable time after having been charged”,
and s 35(3)
(d)
of the 1996
Constitution to the right “to have their trial begin and conclude
without unreasonable delay”. Although delays in
the hearing of an
appeal might extend the period of anxiety which the appellants
undergo before finality is reached, appellate delays
are materially
different to trial delays. To begin with there can be no question of
prejudice, for the appeal is decided on the trial
record, and the
outcome of the appeal cannot be affected in any way by the delay.
Moreover, where the appeal fails, as it did in
the present case, the
appellant's guilt, established at the trial, has been confirmed.’
And further
‘[41] Undue
delay in the hearing of criminal appeals is obviously undesirable,
particularly when the appellants are in custody.
It does not follow,
however, that such delay constitutes an infringement of the
constitutional right to a fair trial. That question
can be left open,
for even if it were to be regarded as an infringement of that or some
other constitutional right, I am satisfied
that it would not entitle
the appellants to have their convictions set aside or their sentences
reduced on appeal.’
[39] On the authority of
S v
Pennington
the delay in finalising the appeal
by itself did not infringe the appellants’ fair trial rights. In
the absence of any exceptional
circumstances impacting on the
sentences that were imposed we are not at large to set aside the
sentences. There is also no basis
to refer the matter back. I
conclude therefore that there is no basis upon which we can set aside
the sentences imposed in this matter
and to refer the matter back to
the trial court for the reconsideration of the sentence. The appeals
against the sentences must also
consequently fail.
[40] In the circumstances the following order is
granted:
1. The appeals against conviction succeed in respect of
appellants 2, 3, 4 and 7. Their convictions and sentences are set
aside.
2. The appeals of appellants 1, 5 and 6 are dismissed.
_________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: 1
st
& 2
nd
– B
Roux; 3
rd
–
M M W van Zyl ;
5
th
– C Kriel
7
th
&
11
th
– F Van der
Westhuizen;
13
th
– H H Cowley
INSTRUCTED BY: (1
st
,
2
nd
& 5
th
appellants) David H Botha, Du Plessis & Kruger Inc; Johannesburg
(3
rd
& 13
th
appellants) Juan Kotze Attorneys; Boksburg
(7
th
& 11
th
)
Pretoria Justice Centre; Pretoria
CORRESPONDENT: (1
st
,
2
nd
, 3
rd
,
5
th
, 13
th
)
Symington & De Kok; Bloemfontein
(7
th
& 11
th
)
Bloemfontein Justice Centre; Bloemfontein
COUNSEL FOR RESPONDENT: J J Kotzé
INSTRUCTED BY: The Director of Public Prosecutions,
Pretoria
CORRESPONDENT: The Director of Public Prosecutions,
Bloemfontein
1
In terms of
s 174
of the
Criminal Procedure Act
51 of 1977
as amended.
2
C R Snyman
Criminal Law
5 ed
p 321.
3
J R L
Milton
South
African Criminal Law and Procedure
Vol
II p 74:
‘
Public
violence consists in the unlawful and intentional commission, by a
number of people acting in concert, of acts of sufficiently
serious
dimensions which are intended violently to disturb the public peace
or security or to invade the rights of others.’
4
R v Salie
1938
TPD 136
at 138-139;
R v Cele
1958
(1) SA 144
(N) at 152E-153C;
S v
Mlotshwa
1989 (4) SA 787
(W) at 795.
5
2008 (1) SACR 431 (SCA).
6
At p 703B.
7
At 703I.
8
This is the person whose appeal was upheld by the
North Gauteng High Court.
9
See also
Osman v Attorney-General, Transvaal
[1998] ZACC 14
;
1998 (2) SACR 493
(CC) at para 22 where Madala J stated: ‘Our
legal system is an adversarial one. Once the prosecution has
produced evidence
sufficient to establish a
prima
facie
case, an accused who fails to produce
evidence to rebut that case is at risk. The failure to testify does
not relieve the prosecution
of its duty to prove guilt beyond
reasonable doubt. An accused, however, always runs the risk that
absent any rebuttal, the prosecution’s
case may be sufficient to
prove the elements of the offence.’
10
At para [12].
11
S v Verster
1952 (2) SA 231
(A) at 235;
R v Hobson
1953 (4) SA 464
(A) at 466.
12
S v Karolia
2006 (2) SACR 75
(SCA).
13
S v Barnard
2004 (1) SACR 191
(SCA).