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[2017] ZAFSHC 38
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S v Abubaker (A197/2016) [2017] ZAFSHC 38 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A197/2016
In
the matter between:
THE
STATE
Appellant
and
FATIMAH
ABUBAKER
Respondent
CORAM:
VAN ZYL, J et NICHOLSON, AJ
HEARD
ON:
27 FEBRUARY 2017
JUDGMENT
BY:
C.M.A NICHOLSON, AJ
DELIVERED
ON:
16 MARCH
2017
[1]
This is an application by the State, for condonation of the late
filing of the Notice of Appeal and an appeal against the sentence
imposed by a Magistrate of the Regional Court, Bloemfontein on 11
February 2015.
[2]
The application for condonation of the late filing of the notice of
appeal and the record in the matter must be dispensed with
before the
appeal may be considered. The application for condonation is thus
dealt with below.
The Background
[3]
The Respondent’s conviction for attempted murder in this matter
on 18 August 2014, flowed from events that transpired
on 27 August
2008 in or near Ficksburg, Free State. The Respondent was arrested on
1 September 2008 and entered a plea of not guilty
before the court
a
quo
on 29 March 2010. Judgement was handed down on 18
August 2014 and sentencing took place on 11 February 2015.
[4]
The Appellant applied for condonation of the late application for
leave to appeal and for leave to appeal. Both condonation
and leave
to appeal were granted by Kruger J on 25 June 2015.
[5]
It is relevant to the current proceedings that the reasons proffered
to the court in June 2015 in support of the application
for
condonation of the late filing of the application for leave to appeal
appear from the supporting affidavit of Adv. CA Van Der
Merwe, Deputy
Director of the Department of Public Prosecutions (DPP) and were,
inter
alia
:
(a)
The late receipt of the court record in the matter. (See pars
7 to 8 of the supporting affidavit);
(b)
That no injustice would be done to the Respondent should the
application for condonation succeed (par 10 of the supporting
affidavit);
(c)
That steps had been taken to properly consider a possible
appeal immediately the matter was brought to the attention
of the DPP
(par 10 of the supporting affidavit), by the complainant (par 4 of
the supporting affidavit);
(d)
That the granting of condonation would be in the interests of
justice; (Par 12 of the supporting affidavit); and
(e)
That there was a reasonable prospect that the application for
leave to appeal would succeed.
[6]
Despite Kruger J’s granting of leave to appeal, the Appellant
did not immediately serve the Notice of Appeal, in fact,
the Notice
of Appeal was only filed in April 2016, almost a full year after
leave to appeal was granted. The application
for condonation of
the late filing of the Notice of Appeal is again supported by an
affidavit sworn to by Adv. Van Der Merwe of
the DPP. (Affidavit 2)
Current application
for condonation:
[7]
In the current application for condonation, it is again argued that
condonation should be granted for the late filing of the
notice
,
inter alia
, for the following reasons, as appear from affidavit
2:
(a)
Adv. Van
Der Merwe assumed that immediately the leave to appeal was granted,
the appeal process had started and the Appellant would
request a
transcript of the record of proceedings in the court a quo; (Par 5)
Adv. Van Der Merwe only became aware that the transcript
had not been
requested in August 2015, (par 6) and there was confusion regarding
which State department would assume responsibility
for the costs
associated with the transcription of the record. (par 7) The record
was only received by the Clerk of the Court on
8 April 2016 and said
transcription was incomplete. The Clerk of the court then
addressed the problems associated with the
record; (par 9)
(b)
It is in
the interests of justice to grant the condonation; (par 10)
(c)
The
Respondent will suffer no injustice should the condonation be
granted; (par 11) and
(d)
The
Applicant has a reasonable prospect of success on appeal. (par
12)
[8] These reasons will
now be dealt with individually.
8.1
The
Record:
It
appears from the paragraphs of Adv. Van Der Merwe’s affidavit
in support of the application for condonation of the late
application
for leave to appeal referred to above, the record of the proceedings
in the Court
a quo
was available to the Appellant when
application for leave to appeal was granted by Kruger J in June
2015. The Appellant offered
no satisfactory explanation why
there would be such a
prima facie
contradiction on the papers
submitted to the Court. The explanation presented during
argument that only sections of the record
had been transcribed for
purposes of applying for leave to appeal did not gain traction with
the court. A Judge granting
leave to appeal would only have
done so had he been convinced that there was a reasonable prospect of
success. In order to
have made this assessment, he would have
required access to the complete record of proceedings.
8.2
Condonation
will serve the interests of justice:
The Appellant has
asserted that to grant the condonation would serve the interests of
justice. It is Appellant’s assertion
that the complainant
and the community are outraged at the leniency of the non-custodial
sentence imposed in this matter. They
opine that failure to
grant the condonation and thus the prevention of the appeal from
proceeding, would overlook the interests
of the community and send
out the wrong message to the community. This would, in turn,
create the impression that women who
are primary caregivers to minor
children will not be subject to incarceration should they commit a
serious offence. These
assertions will be dealt with when
prospects of success are addressed below.
8.3
Absence
of prejudice to the Respondent:
The
Appellant has stated that the Respondent will not suffer any
injustice should the condonation be granted. This assertion is
difficult to reconcile with the circumstances in this matter. The
matter has been ongoing over a protracted period. Eight years
have
elapsed since the events took place that have led us to this day.
The Respondent was first arrested on 1 September 2008,
entered a plea
in 2010, was convicted in 2014 and sentenced in 2015. The sentence
that was imposed was 5 years imprisonment, wholly
suspended for 5
years on condition that:
(i)
Respondent is not
convicted of murder, attempted murder, culpable homicide or assault
with intent to do grievous bodily harm during
the period of
suspension;
(ii)
Respondent undergo
36 months of correctional supervision (Section 276(1)(h) of Act 51 of
1977).
Respondent
was declared unfit to possess a firearm in terms of Section 103(2) of
Act 60 of 2000.
The
correctional supervision commenced with a period of six-months,
high-risk house arrest (p 999 lines 23-25 of the record)
and 576
hours of community service (p 1000 lines 13-15 of the record). As at
27 February 2017, when this court was seized of the
matter, the
Respondent has served two years of her suspended sentence, two-thirds
of the period of correctional supervision and
has completed the
community service that she was obligated to perform. In other
words, the Respondent is laboring under the
reasonable apprehension
that she has progressed substantially along the road to having paid
her debt to society. She will
indeed suffer some injustice
should the sentencing in this matter be revisited. Furthermore,
the potential injustice will
be visited not only on the Respondent
but, on the three minor children for whom she continues to be the
primary caregiver.
8.4 Reasonable
prospect of success on appeal:
Condonation
may only be granted in circumstances in which the Court is convinced
that there is a reasonable prospect of success.
For this
reason, the court was compelled to consider the merits of the appeal
and, to this end, heard and considered argument on
these from both
parties.
The appeal
[9] The grounds for the
appeal set out in Appellants papers are:
(a)
The court a
quo did not attach enough weight to the nature and seriousness of the
offence;
(b)
The court
did not attach enough weight to the interests of the community
(c)
The
sentence imposed creates the impression that as long as an accused
has minor children, she will not be incarcerated if she commits
a
serious offence.
(d)
The
court a quo did not attach sufficient weight to the seriousness of
the injuries the complainant suffered.
(e)
The court
a
quo
did
not attach sufficient weight to the fact that the crime was a serious
case of domestic violence, which crime has become endemic
in South
Africa.
(f)
The court a
quo over-emphasized the respondent’s personal circumstances.
(g)
The
sentence imposed has no deterrent effect on future offenders.
[10]
The Appellant argued before this court, that the court a quo paid
only lip-service to the various factors that were required
to be
considered in passing sentence. It emphasized that the court a quo
stressed only the personal circumstances of the respondent
as a
primary caregiver and lost sight of the fact that this was a serious
crime perpetrated on the complainant in the safety of
his own home;
that the complainant was vulnerable as the respondent had taken his
gun; and that the respondent shot the complainant
eight times after
having had ample opportunity and time to reconsider her actions.
The Appellant argued that the attack was
unprovoked and that the
devastating impact of the attempted murder on the complainant, the
children born of the marriage, the extended
family and the community
were overlooked by the court.
[11]
The Appellant also argued that the court erred by not taking the
motive for the attack into account. The point was however
made
by instant court that the motive was always a matter of speculation
and as such, the trial court could not take it into account
in
sentencing.
[12]
The Appellant made much of the finding of the court a quo that the
Appellant had shown some measure of remorse. They
argued that
the court erred in this regard and that no remorse had been shown as
the Respondent never admitted her guilt or assumed
responsibility for
her actions. Whilst this may be so, the Respondent argued that
although the trial court examined remorse it
was not pivotal in the
sentencing.
On
the topic of remorse, in
GK
v S
([2013] ZAWCHC 77
2013 (2) SACR 505
(WCC)), the court stated (at par
[23]):
“
My
colleague observes that the appellant expressed no remorse and that
this must count against him. I agree. Whether the failure
to express
remorse is, as my colleague considers, indicative of a lack of
insight into his reprehensible conduct is less clear
to me. Persons
who face serious charges may consider that their best course is to
deny the charge, since even a guilty plea will
not spare them a heavy
sentence. The court naturally cannot condone the putting up of a
false version, and the fact that an accused
person lies and makes the
complainant re-live her experience in court must certainly go into
the scales against him. However, once
an accused person follows this
course he effectively makes it impossible to throw himself on the
mercy of the court and to express
remorse….”
The
quotation in the case above, speaks directly to the circumstances
confronting the Respondent in the current matter when it came
to
leading evidence in mitigation of sentence.
[13]
The Appellant argued that, as a custodial sentence was, in its
opinion, appropriate in this case, the court erred in considering
a
non-custodial sentence. The Appellant made much of the fact
that the prosecutor in the matter did not avail the court of
all
relevant authority with regards to the sentencing of primary
caregivers, more particularly, the Appellant indicated that the
prosecutor should have brought the case of
S
v M
(2007 (2) SACLR 60
(WLD)) to the court’s attention in which
case a custodial sentence was imposed on a primary caregiver.
That said, it
is clear from the record, which will be discussed more
fully below, that the court was aware of said judgement and did
consider
a custodial sentence as a possible sentence.
[14]
Appellant’s position is that the sentence imposed by the court
a quo is shockingly inappropriate. The court put
too much
emphasis on the personal circumstances of the respondent and the fact
that she was a primary caregiver (par 5.1 of Appellant’s
Heads
of Argument (HOA A)) and disregarded the seriousness of the offence
(par 6.1 HOA A) and the interests of the community (par
8 HOA A).
Appellant thus avers that a custodial sentence of eight (8)
years should be substituted for the non-custodial sentence
imposed by
the trail court.
[15]
In
Bailey
v The State
([2012]
ZASCA 154 per Bosielo JA
at
par [19]) the Judge expressed himself thus on sentencing:
“
Suffice
to state that it remains an established principle of our criminal law
that sentencing discretion lies pre-eminently in the
sentencing court
and must be exercised judiciously and in line with established and
valid principles governing sentencing as enunciated
in a long line of
cases which includes
S
v Zinn
1969
(2) SA 537
(A
)
which espoused a proper consideration and balancing of the well-known
triad;
S
v Rabie
1975
(4) SA 855
(
A)
at 862; and
S
v de Jager and another
1965
(2) SA 616
(
A)
at 628-9. This salutary approach has recently been endorsed by Marais
JA in
S
v Malgas
para
12.
It is
not for an appeal court to substitute its sentence for that of the
magistrate’s court, the appeal court must consider
whether the
sentence imposed was the outcome of a suitable analysis of all
relevant factors.”
Bosielo
JA, in
Bailey v The State
(
supra
par [20]) posed the
question:
“…
..
Can the appellate court interfere with such a sentence imposed by the
trial court after exercising its discretion properly simply
because
it is not the sentence which it would have imposed or that it finds
it shocking?....”
The
answer to this question must be a resounding no.
[16]
Thus, in evaluating the prospects of Appellant’s success on
appeal, the court must
ask
itself whether the trial court could reasonably impose the sentence
it did? The answer is yes. The Court did not misdirect itself
and,
although the sentence appears lenient, it is not disturbingly
inappropriate, nor does it induce a sense of shock. The
court’s
reasoning in this regard is clearly set out and cannot be faulted.
The trial court did not err in law in determining
the appropriate
sentence. The presiding officer considered each and every
aspect raised by the Appellant when she made her
determination.
[17]
The Presiding officer in the trial court gave a detailed explanation
of her approach to sentencing and the reasons for her
final
determination. On p 965-966 of the record she clearly
identifies the triad of principles that must be applied in sentencing
as established in
S
v Zinn
(
supra
).
After determining that there was no mandatory minimum sentence
applicable, she proceeded to deal with the evidence the
State led in
aggravation.
[18]
The court first dealt with the testimony of the complainant regarding
the impact that the attempt on his life had on him and
on his family
life. (pp 966-968) It acknowledged that the impact was both
significant and devastating. (p968)
[19]
Having considered the State’s evidence in aggravation, the
trial court then turned to the evidence led in mitigation
of sentence
and noted the impact that the attempt had had on the Respondent and
her family relationships. (pp 968-970)
[20]
The trial court also considered various pre-sentencing reports that
were presented to it (p970 - p 974) and thereafter, the
evidence
presented by the respondent in mitigation. (p976-977). It
considered what she had to say on remorse (p978) and stated
(lines
23-25) that it could not ascertain from her conduct or actions
whether or not she was truly remorseful. The court noted,
however
(p979 lines 7-13) that it at least had some sense of her feelings and
emotions and that she believed that the complainant
should not have
had to go through what he did.
[21]
The court took cognizance in aggravation, of the domestic
relationship between the respondent and the complainant. (p979 lines
19-21) and that the respondent used a firearm in the commission of an
extremely violent offence that is currently occurring with
increasing
frequency in South Africa, especially within domestic
relationships.(p979 line 22 – p980 line 1) The trial court
also
noted in aggravation, the number of times the respondent shot the
complainant (p980 lines 2-6), that the complainant
was shot in
the bedroom of his own home and while he was vulnerable and unarmed,
(p980 lines 7-10) and the premeditated nature
of respondent’s
actions. (981 lines 12-22)
[22]
The trial court also dealt with the interests of the community (p981
line 25 to 982 line 21).
[23]
The trial court then turned to a detailed consideration of the
position of the three minor children in the care of the respondent.
In doing so, the court considered
J
Pillay v The State
(739/10
[2011] ZASCA 111)
,
S
v M
(2007
2 SACR 539
CC); S v
The
State (Centre for Child law as Amicus Curiae)
([2011] ZACC 7;
2011 (2) SACR 88
(C);
2011 (7) BCLR 740
(CC));
S
v Piater
(2013 2 SACR254 (GNP)); and
S
v Howells
(1999 (1) SACR 675
(C)) (p 982 line 2- page 992 line 10).
[24]
Finally, the trial court turned to the personal circumstances of the
accused. (p 992 line 18 – p 994 line 24).
[25]
It cannot be said that the court overlooked important considerations
in arriving at its decision on what sentence to impose.
The
trial court carefully considered the purpose of punishment. (p994
line 25-p 996 line 4) It referred to
S
v Loggenberg
(2012 (1) SACR 462
(GSJ) par 6, per Willis J) in stating that
sentence serves 5 important purposes: viz. to act as a general
deterrent, a specific
deterrent, enable the possibility of
correction, protect society and serve society’s desire for
retribution. It further remained
cognizant that it must take into
account all mitigating and aggravating circumstances, the interests
of the community and the best
interest of the children. (p996 lines
1-4)
[26]
The trial court acknowledged the seriousness of the offence and the
devastating impact it had on the complainant and the family
when
considering a custodial sentence. (p996 line 5- p 998 line 16)
The court determined that a sentence of that nature would
indeed
serve the purposes of retribution, deterrence and prevention but, it
looked at the personal circumstances of the Respondent
and determined
that the evidence supported the view that she was not prone to
criminal or violent behavior and that incarceration
of the Respondent
was not needed to protect society. It concluded that the
seriousness of the offence and the violence associated
with it could
not be taken in isolation for purposes of sentencing and concluded
that to sentence the Respondent to incarceration
would not serve the
purposes of sentencing so much as serve the need for revenge.
The court referred in that regard to
Kruger
v S
(2012
(1) SACR 369
[SCA] per Shongwe JA at par [11]) where the judge
pointed out that punishing a convicted person is not about revenge.
(p 997 line
25-998 line 4)
[27]
This perspective is also reflected in
Mudau
v
S
: (
supra
at
par [13]-[14]) thus:
“
I
hasten to add that it is trite that each case must be decided on its
own merits. It is also self-evident that sentence must always
be
individualised, for punishment must always fit the crime, the
criminal and the circumstances of the case. It is equally important
to remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and upon a careful consideration
of all relevant factors. Public sentiment cannot be ignored, but it
can never be permitted to displace the careful judgment and
fine
balancing that is involved in arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence
which is
just and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests
of
society. Sentencing involves a very high degree of responsibility
which should be carried out with equanimity, as Corbett JA
put it in
S
v Rabie
:
‘
[a]
judicial officer should not approach punishment in a spirit of anger,
because, being human, that will make it difficult for
him to achieve
that delicate balance between the crime, the criminal and the
interest of society which his task and the objects
of punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender himself to misplaced pity.
While not flinching from
firmness, where firmness is called for, he should approach his task
with a humane and compassionate understanding
of human frailties and
the pressures of society which contribute to criminality.’
…
.
There is consequently increasing pressure on our courts to impose
harsher sentences primarily, as far as the public is concerned,
to
exact retribution and to deter further criminal conduct. It is trite
that retribution is but one of the objectives of sentencing.
It is
also trite that in certain cases retribution will play a more
prominent role than the other sentencing objectives. But one
cannot
only sentence to satisfy public demand for revenge – the other
sentencing objectives, including rehabilitation can
never be
discarded altogether, in order to attain a balanced, effective
sentence. The much quoted
Zinn
dictum remains the leading authority on the topic. Rumpff JA’s
well-known reference to the triad of factors warranting consideration
in sentencing, namely the offender, the crime and the interests of
society, epitomises the very essence of a balanced, effective
sentence which meets all the sentencing objectives.”
[28] It is thus patent
that the trial court exercised its discretion in sentencing
judiciously and with a clear understanding of
the applicable
principles. It should also be noted that at trial, the
prosecutor joined with the defense in supporting a
non-custodial
sentence in this matter.
[29]
It appears from the Appellant’s papers, that the appeal process
was commenced at the behest of the complainant who felt
aggrieved at
the sentence imposed by the trial court. Whilst creating a
sense of justice when sentencing is important, the
interests of
justice must balance the public interest and the complainant’s
desire for revenge and numerous other factors.
This court is
convinced that this was done by the trial court in this matter and
thus, Appellant has very little prospect of success,
if any, in the
appeal.
[30]
The Appellant in this matter cannot be excused from the procedural
rules put in place to protect parties in the interests of
justice on
the basis of its ignorance of the process applicable to obtaining the
transcribed record. The Appellant is not
a lay person and as
such can reasonably be expected to have a firm grasp of procedure in
such matters. (See in this regard
a comparable case of
DPP
v Olivier
2006 (1) SACR 380
(SCA)).
[31]
Having considered the length of the delay, the shortcomings in the
explanation offered and the fact that there is little to
no prospect
of success on appeal, the court has concluded that the Appellant has
failed to show good cause for purposes of the
condonation.
The
Respondent would be severely prejudiced and it would not serve the
interest of justice for the court to interfere with the sentence
at
this stage.
I
would therefor make the following orders:
1.
The
application for condonation is refused.
2.
The Appeal
is struck from the roll
____________________
C.M.A
NICHOLSON, AJ
I
concur and it is so ordered
____________
C.
VAN ZYL, J
On
behalf of appellant:
Adv.
Chalala
Instructed
by:
Director: Public Prosecutions
Bloemfontein
On
behalf of respondent:
Adv. P Van der
Merwe
Instructed
by:
Legal Justice Centre
Bloemfontein