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[2011] ZASCA 116
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Combrink v S (471/2010) [2011] ZASCA 116; 2012 (1) SACR 93 (SCA) (23 June 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 471/2010
In the matter between
RUDOLPH JACOBUS
COMBRINK
............................................................................................
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
Neutral citation:
Combrink v The State (471/10)
[2011] ZASCA 116
(23 June 2011)
Corum: BRAND, PONNAN and SHONGWE JJA
Heard:
25 May 2011
Delivered: 23 June 2011
Summary:
Criminal law – whether the
appellant’s guilt proved beyond reasonable doubt –
appellant’s defence not put
to state’s eye witness –
effect thereof – Sentence – appeal court’s power to
increase sentence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from
: North Gauteng High Court
(Pretoria) (Preller, Poswa and Ledwaba JJ sitting as court of
appeal):
In the result the following order is made:
The appeal against both conviction and sentence is
dismissed.
The sentence imposed by the court below is set aside
and substituted with the following:
‘
The appellant is sentenced to
15 years’ imprisonment.’
______________________________________________________________
JUDGMENT
______________________________________________________________
SHONGWE JA (BRAND and PONNAN JJA concurring)
[1] The appellant (Combrink) appeared before Coetzee J,
sitting in the circuit court of the North Gauteng High Court
(Pretoria)
in Middelburg. He was charged with murder, attempting to
defeat or obstruct the cause of justice and the contravention of
section
3 of the Arms and Ammunition Act 75 of 1969 (unlawful
possession of a firearm).
[2] At the close of the state’s case he was
acquitted on the second and third charges in terms of
section 174
of
the
Criminal Procedure Act 51 of 1977
. At the end of the trial he
was, however, convicted of murder and sentenced to 15 years’
imprisonment, five years of which
was suspended for five years on the
usual conditions. He was granted leave to appeal to the full court of
the North Gauteng High
Court against both conviction and sentence.
[3] The majority of the full court (Poswa & Ledwaba
JJ) dismissed the appeal against conviction and upheld the appeal
against
sentence. The sentence imposed by the trial court was set
aside and substituted with a sentence of ten years’
imprisonment.
Preller J disagreed and concluded that the appeal
against both conviction and sentence should succeed to the extent
that both conviction
and sentence must be set aside. The appeal
against the majority judgment of the full court is with leave of this
court
[4] Both the trial court and the majority of the court a
quo found that Combrink intentionally shot and killed Mr Benjamin
Ngwenya
(the deceased). On the other hand Preller J found that the
cause of the ‘tragic death of the deceased was nothing more
than
a freak accident’. He further found that Combrink was not
negligent and could not even be convicted of culpable homicide.
[5] Combrink contends that the interpretation of the
state’s evidence by the trial court and the majority of the
court a quo
was unfair and incorrect. He contends further that the
evidence of Mr Du Plessis (a ballistics expert for the defence) was
considered
in isolation.
[6] The facts are that on 17 October 2000, and at about
17h30, Combrink fatally shot and killed the deceased. It is common
cause
that a shot fired from Combrink’s rifle struck the
deceased on his back just below the left shoulder. It is not disputed
that his death was caused by the tamponade effect of blood
accumulating in the heart sac after the bullet had ruptured the
aorta.
[7] It is also common cause that the deceased was
walking on the mealie land, on the said afternoon, which is on a farm
where he
was employed and where Combrink farmed with his father.
Combrink was driving his vehicle (a bakkie) on one of the farm roads
on
his way to fetch some of his workers. He saw a person, whom,
according to his evidence, he could not identify at that time. He
called him to draw his attention. The person did not respond. He just
continued walking. Combrink called him repeatedly but in vain.
He
then fired a shot from his .308 calibre Parker Hale hunting rifle,
apparently with the purpose to warn or intimidate the person.
He
thereafter called him again and when the person did not respond he
fired the second shot. The person turned slightly towards
Combrink
and fell face down. According to Combrink he noticed when the person
turned and fell down that it was the deceased, one
of his employees.
[8] The state led the evidence of Mr Masilela who was an
eyewitness and one of the employees on the farm. He testified that he
was
in the vicinity when he saw Combrink driving his vehicle. He
passed him. Combrink saw a person, whom Masilela was able to identify
as the deceased. Combrink stopped the vehicle and called him. He
confirmed that Combrink called repeatedly but that the deceased
did
not stop. Masilela was unable to estimate the distance between
Combrink and himself when the shots were fired. But he pointed
out a
distance in court which was estimated by the trial court as 120
metres. He must have been within a hearing distance because
he heard
Combrink say:
‘
Hey kom hier’.
Combrink’s evidence was also that: ‘Ja ek is seker hy kon
my hoor’.
[9] He testified further that he then saw Combrink
crouching in the bakkie and that he came up with a rifle.
‘
Hy het
toe een skoot geskiet teen die grond en toe was daar stof … Hy
het geskiet na die rigting van die persoon …
die werker …
die stof was langs die persoon, die werknemer’.
Thereafter Combrink called him again. He testified
further that:
‘
Hy het
toe die tweede keer geskiet. Die tweede een het toe hierdie persoon
getref en hierdie persoon het toe geval. Hy is raak geskiet
na die
tweede skoot’.
Thereafter Combrink drove away. When asked how far from
the deceased he saw the dust rise after the first short, Masilela
said:
‘
Naby
aan hom, naby aan hom, dit was naby aan hom.’
[10] It is significant to note at this stage that
Masilela’s version was not challenged or disputed. The only
pertinent and
material question in cross-examination was that, the
appellant would testify that:
‘…
nadat
hy die tweede skoot geskiet het, het die man omgedraai, … en
hy het toe gesien dat dit die man is, die oorledene.’
[11] The state also led the evidence of Madigage, also
an employee of Combrink. His evidence is basically that he was on the
back
of the vehicle driven by Combrink at the time when the shooting
took place. His version under cross – examination appeared
to
differ drastically and materially from the statement he made to the
police. His evidence was also contradicted by the evidence
of
Masilela and Combrink that he was never on the vehicle when the
shooting took place. In light of this his whole version was
rejected,
rightly, in my view, by the trial court. Inspector Van der Berg
arrived on the scene and he showed Superintendent Neethling
where the
deceased was found and Inspector Wolmarans took the photos of the
area and the deceased. Their evidence did not take the
case any further.
[12] It is common cause that after Combrink shot the
deceased he proceeded to fetch some of the farm workers who were
working some
distance from where the incident occurred. It was only
on his way back that he went to investigate, in the company of one
Majola,
what happened to the deceased. He discovered that he was
already dead. Combrink’s evidence is that he saw a shotgun
under
the body of the deceased as he lay face down on the ground. At
the trial there was no proper enquiry into how it came about that
the
shotgun was found under the deceased. Hence, Combrink was acquitted
on counts 2 and 3 which related to the shotgun. The state
tendered
the evidence of Mr Frederik Nel who was the commanding officer of the
local commando at the time. According to his testimony,
Combrink
telephoned him at about 18h00 on the afternoon in question to inform
him that there was a shooting incident on his farm
involving a
suspicious person. This I find irreconcilable with Combrink’s
version. On his version one would have expected
him to tell Nel that
there was a terrible accident which led to the death of one of his
workers. Combrink’s version continued
that he proceeded to his
home where he informed his father about the accident. He could not
say who called the police, but he was
certain that it was not him.
[13] According to Combrink he fired the first shot into
the ground about 80 metres away from the deceased. This important
piece
of evidence is contrary to what Masilela said, which was that
the first shot landed near the deceased’s feet. What is
significant
is that Combrink’s version was not put to Masilela
for his comment. Instead, Combrink introduced the evidence of Du
Plessis,
who attended to the body of the deceased and the scene of
the shooting on the farm some six days after the event. Du Plessis
was
briefed to reconstruct the scene of the shooting in the presence
of Combrink only. He came up with a theory that when Combrink fired
the second shot, the bullet first struck a wire fence surrounding the
mealie land which caused the bullet to ricochet towards the
deceased.
Had it not been deflected, so the theory goes, it would have caused a
round entry wound. But because it was deflected
and unstable the
projectile caused an oval entry wound. The trial court as well as the
court a quo rejected this theory and found
it unconvincing, tenuous
and not reasonably possibly true.
[14] Counsel for Combrink submitted that the fact that
he repeatedly called the deceased is indicative of lack of intention
to shoot
and kill. However, he was bound to concede that using a .308
hunting rifle under the circumstances was entirely inappropriate. The
situation did not call for the use of any firearm, let alone one as
powerful as a hunting rifle. The deceased was walking innocently
and
relaxed on the property of his employer, he did not pose any danger
to Combrink or to anyone else. The state argued that Combrink
could
have driven towards him to stop him, or could have used the hooter of
the vehicle. If he wanted to draw his attention, there
were numerous
other ways of doing so.
[15] It is trite that the state must prove its case
beyond reasonable doubt and that no onus rests on an accused person
to prove
his innocence. The standard of proof on the state and the
approach of a trier of fact to the explanation proffered by an
accused
person has been discussed in various decisions of this court
and of the high courts (see
R v Difford
1937 AD 370
at 373;
S
v Van der Meyden
1999 (1) SACR 447
(W) at 448f-i). It suffices
for present purposes to state that it is well settled that the
evidence must be looked at holistically.
[16] Masilela’s evidence was accepted by the court
a quo. Counsel for Combrink conceded, as much, that Masilela was an
honest
witness. In my view, not only was Masilela an honest witness,
his evidence is reliable, and sufficient to sustain a conviction.
This I say having considered all the evidence and the necessary
caution required when dealing with the evidence of a single witness
(see
R v Mokoena
1932 OPD 79
at 80;
S v
Webber
1971
(3) SA 754
(A);
S v Sauls
1981 (3) SA 172
(A) at 180E-G). It
is significant to note that Du Plessis’s theory is
irreconcilable with Masilela’s evidence. On his
own version
Combrink is an experienced hunter and a very good marksman. He said
he aimed the second shot at the same place as the
first. It is my
view that when doing so, he foresaw the possibility that a bullet
might strike the deceased. His version is that
he did not see the
wire in front of him. That matters not. For, on the undisputed
evidence he plainly shot at the deceased. And
in resorting to his
firearm in those circumstances and in the manner that he did he must
subjectively have foreseen the possibility
(a real one I must add)
that the bullet could ricochet after striking a stone or some other
object and in the process strike the
deceased. Regardless of that
foreseeable possibility he went on to shoot.
[17] Holmes JA in
S v De Bruyn
1968 (4) SA 498
(A) at 506H-507A referred with approval to
S v Sigwahla
1967
(4) SA 566
(A) at 570B-E where the following was said:
‘
1. The
expression ‘‘intention to kill’’ does not, in
law, necessarily require that the accused should have
applied his
will to compassing the death of the deceased. It is sufficient if the
accused subjectively foresaw the possibility
of his act causing death
and was reckless of such result. This form of intention is known as
dolus
eventualis,
as distinct from
dolus
directus.
2. The fact that objectively the
accused ought reasonably to have foreseen such possibility is not
sufficient. The distinction must
be observed between what actually
went on in the mind of the accused and what would have gone on in the
mind of a
bonus paterfamilias
in the position of the accused.
In other words, the distinctive between subjective foresight and
objective foreseeability must
not become blurred. The
factum
probandum
is
dolus,
not
culpa.
These two different
concepts never coincide.
3. Subjective foresight, like
any other factual issue, may be proved by inference. To constitute
proof beyond reasonable doubt the
inference must be the only one
which can reasonably be drawn. It cannot be so drawn if there is a
reasonable possibility that subjectively
the accused did not foresee,
even if he ought reasonably to have done so, and even if he probably
did do so.’
As already stated, in the present case Combrink fired
the second shot knowing that the bullet might fatally strike the
deceased.
In my view he is guilty of murder, the intention being
dolus eventualis.
[18] What remains unexplained on Combrink’s
version is that, after shooting for the second time, he simply drove
off without
establishing what happened to the deceased. He was bent
on stopping him because he thought he posed a danger. Now that he had
stopped
him, he simply left him, after having realised that he was
one of his employees. He fetched his other employees and only later
did he return to the scene of the shooting and discovered that the
deceased was dead. Strange enough, Combrink telephoned Nel to
inform
him of the shooting incident. What he then told Nel was not that
there was a terrible accident. He said he shot a ‘suspicious’
person. Which, as I said, I find irreconcilable with his version.
[19] The trial court made certain credibility findings.
This court is not at liberty to interfere with such findings. (See
R
v Dhlumayo
1948 (2) SA 677
(AD) at 705-706;
President of the
Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) paras 78 and 79.) In this case we do not have a
single reason to do so. Combrink’s conviction must stand.
[20] I now turn to the question of sentence. It is
common cause that the provisions of
section 51
of the
Criminal Law
Amendment Act 105 of 1997
are applicable in this case. The trial
court found substantial and compelling circumstances. However, it did
not place those circumstances
on the record as required by the Act.
It is trite that sentencing or punishment is
pre-eminently a matter of discretion of the trial court. (
S v
Rabie
1975 (4) SA 855
(A) at 857D-E.) Therefore an appeal court
should be slow to interfere with the trial court’s discretion.
An appeal court
may interfere provided the discretion has not been
judicially and properly exercised and the sentence is vitiated by
irregularity,
misdirection or is disturbingly inappropriate.
[21] The court a quo found that the trial court
misdirected itself, and I agree. The minimum sentence in the
circumstances is 15
years’ imprisonment. But for the finding of
substantial and compelling circumstances, that is the sentence the
trial court
was bound to impose. As to what this yardstick means,
Marais JA said the following in
S v Malgas
2001 (2) SA 1222
(SCA) para 25:
‘
A.
Section 51 has limited but not eliminated the courts’
discretion in imposing sentence in respect of offences referred to
in
Part 1 of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
B. Courts are required to
approach the imposition of sentence conscious that the Legislature
has ordained life imprisonment (or
the particular prescribed period
of imprisonment) as the sentence that should
ordinarily
and in the absence of weighty
justification be imposed for the listed crimes in the specified
circumstances.
C. Unless there are, and can be
seen to be, truly convincing reasons for a different response, the
crimes in question are therefore
required to elicit a severe,
standardised and consistent response from the courts.
D. The specified sentences are
not to be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the
offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying
the legislation and marginal differences in
personal circumstances or degrees of participation between
co-offenders are to be excluded.
E. …
F. All factors (other than those
set out in D above) traditionally taken into account in sentencing
(whether or not they diminish
moral guilt) thus continue to play a
role; none is excluded at the outset from consideration in the
sentencing process.
G. The ultimate impact of all
the circumstances relevant to sentencing must be measured against the
composite yardstick (‘‘substantial
and compelling’’)
and must be such as cumulatively justify a departure from the
standardised response that the legislature
has ordained.’
[22] In light of this I am of the view that the trial
court focused exclusively on the mitigating factors instead of
balancing them
with the aggravating factors. Firstly Combrink’s
personal circumstances were overstated while the personal
circumstances
of the deceased and the gravity of the offence were
virtually ignored. The court required direct evidence as to the
effect of the
deceased’s death on his family. I do not think it
is necessary to lead such evidence. It stands to reason that the loss
of
life will self-evidently have a negative impact. (See
S v
Matyityi
2011 (1) SACR 40
(SCA.) Moreover, life was the most
valuable asset of the deceased which had been taken away from him.
The fact that Combrink had a military background does
not in itself, in my view, impact on mitigating factors.
The trial court appreciated the fact that murder is a
very serious offence, and that the resort by Combrink to his firearm
and the
killing of the deceased was gratuitous. One would have
thought that the minimum sentence was being contemplated.
[23] The only aggravating circumstance mentioned by the
trial court was that Combrink failed to, immediately, assist the
deceased,
after realizing that he had shot him. The court also
concluded that Combrink failed to show remorse, that he steadfastly
denied
that he committed the offence. In my view, it was the most
callous behaviour of Combrink to have used a .308 hunting rifle just
to deal with a ‘suspicious’ person who was just walking
on the mealie land without posing any danger to anybody. The
late
Mahomed CJ said in
S v Salzwedel
2000 (1) SA 786
(SCA) para 12:
‘
[12]
My main difficulty with the approach of the trial Judge is that he
over-emphasised the personal circumstances of the respondents
without
balancing these considerations properly against the very serious
nature of the crime committed, the many very aggravating
circumstances which accompanied its commission, its actual
and
potentially serious consequences for others, and the interests and
legitimate expectations of the South African community at
a very
crucial time in its transition from a manifestly and sadly racist
past to a constitutional democracy premised on a commitment
to a
constitutionally protected and expressly articulated culture of human
rights.’
In that case the respondents had been charged with
murder; assault with intent to do grievous bodily harm and malicious
damage to
property. They were all convicted of murder and malicious
damage to property. On the murder charge they were each sentenced to
ten years’ imprisonment but the whole sentence was suspended
for five years on certain conditions which included three years’
correctional supervision. The respondents, who were young white men
and women, had assaulted the complainants who were all black
men and
damaged the vehicle belonging to one of them. They had been part of a
group of young persons who were bent on attacking
black persons
indiscriminately. The state took the view that the sentence imposed
in respect of the murder charge was glaringly
inadequate and obtained
leave to appeal. The sentence for the murder charge was set aside and
then substituted with 12 years’
imprisonment, two years of
which was suspended on certain conditions.
[24] A sentence of ten years’ for murder is very
light and inadequate, so argued counsel for the state before us. I am
not
suggesting by any means that the murder committed in this case
was racially motivated; however, I am saying that courts must be
conscious and sensitive to cases which on the facts appear to have a
racial or discriminatory connotation, especially when dealing
with
the question of sentence. We all know that the public is incensed
with sentences that appear to favour a particular group
in society.
The public interest is one of the essential considerations in
determining an appropriate sentence. That the trial court
appeared to
ignore.
[25] Courts have in the past dealt with cases with a
racial connotation. (See
S v Van Wyk
1992 (1) SACR 147
(Nm);
S v De
Kock
1997 (2) SACR 171
(T);
S
v Matela
1994 (1) SACR 236
(A). I therefore
agree with Poswa J when he said in para 88 of his judgment that:
‘
What
the court a quo did not mention, which, in my view, merits
mentioning, is the fact that the appellant’s conduct was adding
to a series of disturbing events in which a number of African people,
some of them employees of the accused persons, are shot by
a number
of ‘‘white farmers’’ which episode definitely
has a negative impact on race relations in a country
with a painful
history of relations between ‘‘white’’ and
‘‘black’’ citizens
.’
Counsel for Combrink argued that Poswa J was
politicizing the case. I don’t think so. The public interest
and discrimination
is not necessarily between black and white but
rather between people in general who perceive others, with prejudice,
to be different
or inferior to them. It is this perception that the
judiciary
should
address. As a result of avoiding the issue of racial tension some
people think that:
‘
Judges and magistrates will
not necessarily be aware that the effect of hate crimes goes far
beyond the victims and serve to traumatise
whole communities and
damage South African society. Without the decision makers in the
criminal justice system being attuned to
these issues it will not be
possible to properly combat hate crimes’ (see Kerry Williams,
Legalbrief on Hate Crimes in South
Africa (assisted by Tshego Phala
and Benjamin Cronin) (27 May 2010) para 7.3.4).
[26] In short, when weighing up all the mitigating
circumstances against the aggravating factors, I believe that the
trial court
had erred in finding that the yardstick of substantial
and compelling circumstances had been met. Because of this view I
held on
a prima facie basis, Combrink’s legal representatives
were notified of the possibility of the sentence being increased in
the event the conviction is confirmed. Despite the arguments to the
contrary presented by Combrink’s counsel I have not been
persuaded to the contrary. In terms of
section 322
(6) of the
Criminal Procedure Act 51 of 1977
this court is empowered to increase
the sentence imposed by the court a quo. On the authority of
Malgas
(supra) the legislature decreed that in the absence of substantial
and compelling circumstances, the prescribed minimum sentence
must be
imposed.
Section 51
(2) (a) (i) of the
Criminal Law Amendment Act
stipulates
that in the case of a first offender convicted of an
offence referred to in
Part II
of Schedule 2 the court must impose a
sentence of not less than 15 years’ imprisonment.
[27] In the result the following order is made,
The appeal against both conviction and sentence is
dismissed.
The sentence imposed by the court below is set aside
and substituted with the following:
‘
The appellant is sentenced to
15 years’ imprisonment.’
_________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: B C Bredenkamp SC
Instructed by: Coert Jordaan Inc Attorneys, Nelspruit;
Giorgi & Gerber Attorneys, Bloemfontein.
FOR RESPONDENT: J J Kotzé
Instructed by: Director of Public Prosecutions,
Pretoria;
Director of Public Prosecutions, Bloemfontein.