S v Balfour (109/06) [2008] ZASCA 116; 2009 (1) SACR 399 (SCA) ; [2009] 1 All SA 285 (SCA) (25 September 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 116
|

|

S v Balfour (109/06) [2008] ZASCA 116; 2009 (1) SACR 399 (SCA) ; [2009] 1 All SA 285 (SCA) (25 September 2008)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 109/06
In the matter between:
THE STATE
APPELLANT
v
THOMAS BALFOUR
RESPONDENT
Neutral citation
: S v
Balfour
(109/2006)
[2008] ZASCA 116
(25
September 2008).
Coram: BRAND, PONNAN JJA
et
LEACH AJA
Heard: 16 September 2008
Delivered: 25 September 2008
Summary: Respondent convicted of murder and sentenced
to 14 years’ imprisonment, wholly suspended on certain conditions
for
five years. Sentence altered on appeal to 12 years’ direct
imprisonment.
______________________________________________________________
ORDER
_______________________________________________________________
On appeal from:
High Court,
Mthatha (Dukada AJ sitting as court of first instance).
The appeal succeeds. The sentence imposed by the trial
court is set aside and is replaced with a sentence of twelve years’
imprisonment.
___________________________________________________________
JUDGMENT
______________________________________________________________
LEACH AJA (BRAND, PONNAN JJA concurring):
[1] This is an appeal brought by
the State under
s 316B
of the
Criminal Procedure Act 51 of 1977
against the sentence imposed on the respondent after he had been
convicted of murder.
It
arises from an incident which occurred on 3 December 1996 when the
respondent, an off-duty policeman, shot and killed one Maxim
Mboneli
(“the deceased”) during an altercation that took place at the
rural home of his father, Mzwandile Balfour, in the former
Transkei.
The respondent was charged with the deceased’s murder but the
subsequent proceedings against him moved at a snail's
pace and it
took four years before the matter came to trial before Dukada AJ in
December 2000. The trial thereafter proceeded
in fits and starts
until it concluded on 17 July 2001 with the respondent being
convicted of murder and sentenced to 14 years imprisonment,
wholly
suspended on certain conditions for five years.
[
2]
Disenchanted by the leniency of this sentence, the State sought
leave to appeal from the court a quo. Unfortunately, although
its
application for leave was lodged without delay on 26 July 2001, it
was not speedily dealt with but, for a variety of reasons,
was
postponed time and again. Eventually it was heard, and dismissed,
some three and a half years later on 13 January 2005. However,
on 2
March 2005, leave to appeal was granted by this court.
[
3]
But once again, there followed an undue delay. There is a
suggestion that problems were experienced in preparing a record and

it appears to have taken about a year for the trial judge to revise
and correct a transcript of his judgment. Further delays were
caused
by the respondent’s attorney withdrawing as attorney of record and
the respondent failing to appoint a replacement. Consequently,
it is
now almost 12 years since the fatal incident occurred, seven years
since the respondent was convicted and sentenced, and
three and a
half years since leave to appeal was granted. This is unacceptable.
It must be remembered that justice delayed is
justice denied, and
this court has previously stressed the need of the State to bring
appeals of this nature without delay.
1
Even though the respondent has himself significantly contributed
towards the delays that have taken place since sentence was imposed,

the State was the driving force behind these proceedings and should
not have adopted the relatively supine attitude it did. It
ought
instead to have exerted ongoing pressure upon those responsible for
delaying the speedy resolution of the appeal. It failed
to do so and
I trust that the National Director of Public Prosecutions will ensure
that similar delays do not occur in matters
of this nature in the
future.
[4] The appeal was initially set
down for hearing in this court on 7 May 2008, but there was no
appearance on behalf of the respondent
at that stage. As it was
desirable for him to be represented, the matter was postponed and the
Bloemfontein Justice Centre approached
to provide the respondent with
representation. This was done, and when the matter was called on 2
September 2008 Ms Kruger of
that office appeared on behalf of the
respondent. Unfortunately, the Justice Centre had not been able to
obtain a mandate to act
for the respondent. This led to the appeal
being postponed once more. When called again on 16 September 2008,
thanks in no small
part to the assistance rendered by the Deputy
Director of Public Prosecutions, Grahamstown, to whom I wish to
express this court’s
gratitude, the respondent was present in
court. I also wish to further express our gratitude to Ms Kruger for
her efforts in tracing
the respondent and for appearing on his
behalf.
[5] I turn to the facts. The State’s
principal witness, Melissa Balfour, a traditional healer and the
sister of the respondent’s
father, Mzwandile, lived in her own hut
at the homestead where the fatal shooting took place. The deceased,
an apprentice traditional
healer who was being trained by Melissa in
the skills of her craft, also resided there at the time. About a
week before the fatal
incident, the deceased and Melissa became
embroiled in an argument with an artisan who was doing some
plastering work at the homestead.
As a result, the artisan downed
tools and abandoned the work. A few days later, the respondent
arrived at the homestead to visit
his father. While he was there, he
and Melissa ended up arguing when he accused her of having interfered
unnecessarily with the
artisan.
[6] The following day, Melissa
confronted Mzwandile for not having supported her during the course
of her argument with the respondent.
This led to a heated debate
between them. The deceased then arrived on the scene and interceded
by striking Mzwandile on the
forehead with a stick, causing an open
wound. News of this incident spread, and came to the ears of the
respondent later that day.
He immediately returned to his father’s
homestead. On his arrival, he entered Mzwandile’s hut, spoke to
him and ascertained
that he had indeed suffered an open wound on the
forehead. He promptly left the hut and confronted Melissa and the
deceased who
were seated nearby, asking if they had assaulted his
father. The deceased answered in the affirmative. In response the
respondent,
without more ado, took out his service pistol and fired a
shot at the deceased who was kneeling with his hands on the ground in

front of him. The deceased collapsed and died soon afterwards.
[7] At his trial, the respondent
admitted having had a confrontation with the deceased as a result of
the earlier assault upon
his father. However, he testified that the
deceased had charged at him with a knife and that he had been obliged
to shoot at him
in self-defence. This version was correctly rejected
by the trial court. The question of sentence thus falls to be
determined
in the light of the evidence adduced by the State as set
out above.
[8] The respondent was some 28
years of age at the time of the shooting. He was married and had
three children. He had joined
the police force in 1988 and was
therefore a policeman of some experience at the time. In imposing
sentence, the acting judge
in the court
a
quo
correctly
stressed the severity of the crime and stated that a very heavy
sentence was justified. However, while he also took into
account the
possibility that the conviction might lead to the respondent losing
his employment, he went on to state that he felt
that he should give
the respondent the opportunity to live the ‘. . . life of a
policeman who is appointed by the State to protect
people, not to
kill them’.
He therefore imposed a wholly suspended period of 14 years
imprisonment on the respondent which, he said, would allow the
respondent
to pay for his crime by making a contribution to the
community.
[9] Of course, the imposition of
sentence is a matter falling pre-eminently within the judicial
discretion of a trial court and
this court, on appeal, cannot
interfere merely because it would have imposed a different sentence.
It can only do so if the sentence
is shockingly inappropriate or if
the trial court substantially misdirected itself either on the facts
or by placing undue emphasis
on certain issues and underplaying
others.
2
It was submitted by the State that the trial judge had erred in both
these respects.
[10] In considering the
appropriateness of the sentence imposed on the respondent, it is
hardly necessary to state that the length
of a period of imprisonment
imposed on an offender reflects the gravity of the offence committed.
A sentence of 14 years imprisonment
is only appropriate in a matter
of considerable severity. In the light of the obvious gravity of the
respondent's offence, I have
no difficulty with the imposition of a
lengthy period of imprisonment upon him. But I cannot say the same
about the decision to
suspend the sentence in its entirety.
[11] Wholly suspended sentences are
designed to keep offenders out of prison in the hope that the
suspended sentences hanging over
their heads will deter them from
future criminal conduct. A sentence may also only be suspended for
no more than five years
3
and its beneficial influence will be restricted to that extent. It is
accordingly understandable that, as a general rule, wholly
suspended
sentences are imposed for crimes of lesser severity for which a
sentence of direct imprisonment is not warranted.
[12] It is therefore self evident
that the longer the sentence of imprisonment, the less appropriate it
will be for it to be suspended
in its entirety. Bearing that in mind,
a sentence of 14 years imprisonment (which is suggestive of a serious
offence deserving
severe punishment) being wholly suspended (which in
turn reflects an offence of lesser severity) is in itself a
contradiction in
terms. It is hardly surprising that in
S
v Roberts,
Marais
JA described a similar sentence imposed for murder as ‘highly
unusual’
4
and went on to state that ‘. . . it is plainly undesirable to
impose a sentence of so great a length and then to wholly suspend
it.
. . .’
5
Those comments are equally apposite to the present case.
[13] The respondent’s crime was
brutal and merciless. I accept that he may have been angered by the
deceased having earlier struck
his father over the head with a stick
and that the deceased’s actions amounted to a serious insult to the
head of a household
who provided him with accommodation. But there
was no reason to resort to the extreme violence he used. Taking out
his firearm
and shooting the deceased, who constituted no threat to
him, was a shocking response to what had occurred. As a trained
policeman,
the respondent knew what steps he could take to deal with
an assault upon his father. Instead, he took the law into his own
hands
and imposed the death penalty as it were, for the deceased’s
relatively minor transgression. In these circumstances, a wholly

suspended sentence of imprisonment is clearly inappropriate.
[14] There seems to me to be no
doubt that in his desire to impose a sentence which would hopefully
reform the respondent, the
trial judge lost sight of the very serious
nature of the crime committed and the expectation of society that
persons who take the
lives of others should feel the full weight of
the law. While the attempt to ensure that the respondent played a
meaningful role
in the community in the future was laudable,
punishment, rather than rehabilitation tends to come to the fore in
this case. While
the trial judge correctly purported to stress the
severity of the crime and the necessity to impose a heavy sentence,
he appears
in fact to merely have paid lip service to those
considerations. Instead, the sentence he imposed, aimed as it was
primarily at
the well-being of the respondent at the expense of the
other aims of sentencing, was the product of distorted judicial
reasoning.
6
[15] In my view, the trial judge
therefore misdirected himself by not taking proper account of all
relevant considerations. But
in any event, imposed a sentence so
startlingly inappropriate that, for that reason alone, this court is
at large to interfere
and impose an appropriate sentence.
[16
] As
the offence took place in 1996, the minimum sentencing provisions
contained in the
Criminal Law Amendment Act 105 of 1997
are of no
application in the present case. I must therefore deal with the
matter without reference to those provisions. Had I sat
as a court of
first instance I may well have imposed a sentence of direct
imprisonment in excess of 15 years. But as seven years
has passed
since sentence was imposed, it would be unjust to consider sentence
at this stage solely upon the information that was
available to the
trial judge. The appellant’s personal circumstances have
substantially changed. We were told from the bar, and
this was
accepted by the State, that his wife has since died, leaving him to
care for three teenage children aged between 10 and
15 years. He has
also been promoted and has now risen to the rank of detective
inspector in the police force. These facts must
be taken into account
in considering what would be an appropriate sentence to now impose
upon him.
[17] It is also relevant to take into
account the uncertainty as to his future with which the respondent
has had to live for the
past seven years pending the outcome of this
appeal. In
Roberts
,
7
Marais JA felt that a delay of less than two and a half years from
the date of sentence until the finalisation of the appeal and
the
associated ‘mental anguish which respondent must have endured’
warranted ‘a significant reduction of the notional period
of
imprisonment that would have been appropriate’ at the date of
sentence. The anguish in the present case has endured far longer.
[18] Then there is the fact that the
respondent, although not incarcerated, has essentially served the
sentence imposed on him.
As already pointed out, a suspended sentence
is designed to attempt to keep an offender from straying during a
period of no more
than five years. That period has passed, and the
respondent has not strayed. Effectively, he has served the penance
imposed upon
him by the trial court. That should be recognised by
this court in determining an appropriate sentence. In addition it is
important
to take into account the apparent beneficial effect the
suspended sentence appears to have had upon him as shown by his
advancement
in rank since sentence was imposed and his failure to
make himself guilty of similar conduct since then. It would be wrong
not
to recognise these as mitigatory factors in determining an
appropriate sentence.
[19] Of course a sentence of direct
imprisonment will have disastrous consequences for the respondent’s
career in the police force.
But that and the devastation his
incarceration will have upon his family life flows from his callous
disregard of the sanctity
of his victim’s life. It would be wrong
to allow one’s sympathy for his present plight to deflect the
imposition of an appropriate
sentence, regard being had to the nature
and the severity of his crime.
[20] In my view, given the
circumstances of this case and taking all the above considerations
into account, there is no alternative
but to impose a fairly lengthy
period of imprisonment. At the same time, the sentence must allow the
respondent to return from
life behind bars with the prospect of
playing a meaningful role in the community in the future. This will
hopefully be achieved
by the order that follows. As the respondent
has not been incarcerated pending this appeal, there is no reason to
ante-date the
sentence now imposed.
[21] The appeal succeeds. The
sentence imposed by the trial court is set aside and is replaced with
a sentence of twelve years’
imprisonment.
___________________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant : M W Siyo
A N Nkume
Instructed by
Director of Public Prosecutions, Mthatha
For Respondent : S Kruger
Instructed by
Bloemfontein Justice Centre, Bloemfontein
1
S v Roberts
2000
(2) SACR 522
(SCA) para 24.
2
See e.g.
S v
Salzwedel & Others
2000
(1) SA 786
(SCA) para 10,
S v Sadler
2000 (1) SACR 331
(SCA) para 6-10 and
Director of Public
Prosecutions:Transvaal v Venter
(430/2007)[2008] ZASCA 76 para16.
3
Section 297(1)(b)
of the
Criminal Procedure Act
51 of
1
977.
4
2000 (2) SA 522
(SCA)
para
1.
5
Para 19.
6
Compare
S v Botha
1998 (2) SACR 206
(A) at 211.
7
S
upra at para 22.