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[2020] ZAGPPHC 29
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S v Slender (CC59/2019) [2020] ZAGPPHC 29 (11 February 2020)
(Inlexso
Innovative Legal Services) / mr
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPORTABLE:
NO.
OF
INTEREST TO OTHER JUDGES: NO
REVISED
CASE
NO
: CC59/2019
DATE
:
2020.01.31
In the matter between
THE STATE
and
JOHN SLENDER
Accused
SENTENCE
JOHNSON,
AJ
:
Mr
Slender, the sentencing stage is the most difficult part of a trial.
One must not lose sight of the fact that you are also
a human being
and that the court must treat you with humanity. You have
however destroyed a person’s life. Every
person has a
constitutional right to life. You have taken that away from a
fellow human being, and you have attempted to
do the same to the
complainant mentioned in count 2.
The aim of the court in sentencing
you is not to destroy you. The court must blend its sentence
with a measure of mercy.
I must also keep in mind that a
minimum sentence is prescribed by the provisions of
section 51
(2) of
the
Criminal Law Amendment Act 105 of 1997
as far as the murder charge is
concerned. According to it, the court is obliged to impose a
minimum sentence of 15 years imprisonment
for the charge of murder
under the circumstances you committed it, unless substantial and
compelling circumstances
exist
.
When the court considers a sentence
and in a search for such circumstances, there are three factors which
must be taken into account,
namely your personal circumstances, the
interest of society and the offences of which you have been
convicted. The court
must also take the impact that the offence
has had on the family of the deceased into consideration.
Your two previous convictions are not
relevant to the offences of which you have been convicted. The
court will therefore
treat you as a first offender. You are 41
years of age and you are not married. You however have three
minor children
of which two are at school. The mother of the
children is not employed. You stay in Soshanguve in a house
that is bonded,
and you repay R4200.00 per month. You were in
the police services for 9 years and then subsequently dismissed as a
result
of these offences. You now generate an income by using
your car as a taxi.
As for the offences of which you have
been convicted are concerned, you say that you are sorry for the
death of the deceased and
the injury to the other student. The
fact that a person is sorry for what he did does not establish
remorse in the legal
sense. Remorse is far more than just being
sorry for what you did and the consequences thereof. In S v
Matyityi
2011 (1) SACR 40
(SCA)
at page 47 b - c, the court explained it as follows:
“
Thus genuine contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender
is sincerely remorseful,
B
and not
simply feeling sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding actions
of the accused,
rather than what he says in court, that one should rather look.
In order for the remorse to be a
valid consideration, the penitence must be sincere and the accused
must take the court fully into
his or her confidence.
C
Until and
unless that happens, the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court
can find that
an accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia:
what
motivated the accused to commit the deed;
what
has since provoked his or her change of heart; and
whether
D
he
does indeed have a true appreciation of the consequences of those
actions.”
We all appreciate the fact that the
police do dangerous work. They are also provoked on occasions.
In this instance
you were called to quell violence at the University
campus and to protect yourselves, you had to fire warning shots.
You
did exactly what your captain asked you to do and you dispersed
the crowd and made it safe for you to exit the gate. There
was
no reason for you to thereafter fire at them, after they had already
left the entrance to the campus.
Police officers are trained in the
use of firearms. In your case you were an experienced policeman
- you had nearly 10 years’
service. The court has no
doubt that you knew what your responsibilities were, and that you
could not fire at defenceless
persons. Police are there to
safeguard the community, and not attack them. In performing
their duties, the police should
not act reckless and endanger the
lives of the public.
The court accepts that you were
fearful and that you feared for your life, but the danger that you
feared ended the moment the students
dispersed. When a
policeman uses his firearm, a high degree of caution is expected of
him or her. Courts have a duty
to send out the message to law
enforcement officers that the reckless handling of firearms which
cause death or injury to defenceless
members of the public will not
be tolerated. It is sometimes necessary to use a firearm, but
the situation that you were
in when you fired the two shots in the
direction of the deceased and the complainant, did not warrant such
shooting. They did not
pose any danger at that stage.
The result of you killing the
deceased, has led to the fact that what you did, cannot be undone.
The deceased has lost his
life and that is the end for him. He
can never come to life again. The court thinks that that fact
would most probably
haunt you for the rest of your life.
The court takes into account that you
have lost your job as well as half of your pension, but that is as a
result of your own doing.
From the evidence of Mr Monareng, it
seems that the death of the deceased had a devastating effect on his
family life. The
deceased was his only son and he studied law.
He was a mere 26 years of age. He said that the deceased was a
dedicated
student and that he is devastated by his death.
The community expects of courts to
impose appropriate sentences upon conviction for these types of
offences. Police officers
are in the services of the community
who pay for their salaries through taxes. They expect a high degree
of caution and respect
when police interact with them. Law
enforcement officers should never be allowed to act as if they were a
law unto themselves.
The court is also obliged to impose a minimum
sentence of 15 years imprisonment for murder which was not
premeditated, as I have
already mentioned. The court has no
discretion to deviate from that, unless there are substantial and
compelling circumstances.
I have considered the situation that
you were in when you shot at the deceased and the complainant, but it
was not a shooting on
the spur of the moment. You had time to reflect
after the students left. On the contrary, you merely went ahead and
shot in the
direction of the deceased and the complainant for no
apparent reason. You did not take the court into your confidence as
to why
you did it. One does not expect that type of conduct
from a policeman. You should have known better.
In view of all these factors which
are considered accumulatively, the court is of the opinion that there
are no compelling and substantial
circumstances as far as count 1 is
concerned, that warrants me to deviate from the prescribed minimum
sentence. It is unknown
what the effect of the shooting of the
second state witness had on him. The court has not doubt that
the injury that he had
sustained was serious, and that it caused harm
that would haunt him for the rest of his life.
In view of all these factors the
court is of the opinion that the following would be an appropriate
sentence. On count 1 you
are sentence to 15 years
imprisonment. On count 2 you are sentenced to 5 years
imprisonment. In the interest of mercy
I order that the
sentence of 5 years imprisonment runs concurrently with the sentence
of 15 years imprisonment.
Your counsel did not address the
court as to the provisions of
sections 103(1)
of act 60/2000.
He conceded that the court should order that you are unfit to possess
a firearm. I agree with him that
a person who uses a firearm in
the way that you did to kill the deceased, is a risk and do not
deserve to possess a firearm.
The court therefore makes no
finding in terms of
section 103(1)
of act 60/2000 which entails that
you are now automatically unfit to possess a firearm.
…………………………
..
JOHNSON,
AJ
ACTING
JUDGE OF THE HIGH COURT
DATE
:
2020 02 11