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[2016] ZANCHC 23
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Afrika v S (CA&R67/2015) [2016] ZANCHC 23 (1 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
CA&R67/2015
DATE
HEARD:
06/06/2016
DATE
DELIVERED:
01/07/2016
In
the matter between:
RUDI
AFRIKA
Appellant
and
THE
STATE
Respondent
Coram
:
Olivier
J
et
Murray AJ
JUDGMENT
Murray
AJ
[1]
The
Appellant (Accused 2) and his co-accused, Xolani Besana, (Accused 1)
were indicted in the Colesberg Regional Court on a count
of murder,
read with the provisions of Section 51(1) of the Criminal Procedure
Amendment Act, Act 105 of 1997 (“the Minimum
Sentence Act”).
[2]
On
25 June 2015
they were convicted as charged and sentenced
as follows:
2.1
Accused 1 to 20 years’ imprisonment;
2.2
The Appellant to life imprisonment in terms of s 51(1) read with
Schedule 2, Part 1of Act
105 of 1997, based on the court’s
finding that :
“
The
offence was committed by a person, group of persons or a syndicate
acting in the execution or furtherance of a common purpose
or
conspiracy.”
[3]
The Appellant exercised his automatic right of appeal in terms of s
309(1)(a) of the Criminal Procedure Act, Act 51 of 1977,
(“the
CPA”) to appeal against his sentence of life imprisonment
only. His appeal is based on the disparity between
the two
sentences. He avers that his sentence is shockingly
inappropriate compared to the 20 years’ imprisonment
imposed on
Accused1 and that interference therein is therefore justified.
[4]
Both accused were legally represented throughout the trial and were
duly warned of the implications of s 51(1) of Act 105 of
1997.
In the appeal Mr Nel of Legal-Aid South Africa appeared for the
Appellant and Ms Ilanga for the State. The State
supported his
sentence.
[5]
Accused 1 pleaded guilty
ab
initio
and
not only described his involvement in and the circumstances of the
murder in detail in a written confession, in his 112(2) statement,
and in court, but also directly implicated the Appellant as his
co-perpetrator in all material respects.
[6]
The Appellant, on the other hand, pleaded not guilty. His defence was
one of total denial, although he did make certain formal
s 220
admissions which placed him on the scene of the murder. He
admitted his presence up to the moment the Deceased was
pulled into
the cemetery, but averred that he then left and only saw Accused 1
again early the next morning when the latter woke
him up to borrow
some shoes.
[7]
The relevant facts appearing from Accused 1’s evidence are that
on the night of the murder, he and the Appellant had some
drinks.
On their way home, they met the Deceased who allegedly owed Accused 1
R10. They started arguing with the Deceased
and the two of them
dragged him to the cemetery where they pulled his hat over his face,
slapped and punched him, before forcing
him through an opening in the
fence. Once inside the cemetery, Accused 1 held the Deceased’s
feet while the Appellant
fetched a rock of about 30cm x 30 cm and hit
the Deceased over the head with it. The Appellant, in turn,
held the Deceased’s
feet while Accused 1 tied his hands with a
belt and wired him to a pole. With a similar sized rock Accused
1 then hit the
Deceased twice on the left side of his head, while the
Appellant threw another rock at his head and kicked him in the chest
with
his boots.
[8]
After every blow they checked to see if the Deceased was still
moving. At some stage a car approached and they hid themselves
and the Deceased among the headstones till it passed, then resumed
the attack. In his statement Accused 1 averred that the
Appellant also stabbed the Deceased in the neck several times with a
broken bottle. When the Deceased stopped moving, they covered
him
with some branches and left him there. His body was found there
the next day.
[9]
Although there are some discrepancies between Accused 1’s
versions in the documents and his testimony in court, and between
his
version and that of Ms Julia Abraham who witnessed a large part of
the incident, as to the exact sequence of events in the
cemetery, the
material aspects of his version were corroborated by her evidence, as
well as by that of Dr Mogoje, the forensic
pathologist who did the
autopsy on the Deceased, and by that of Sgt Visagie of the SAPS who
was called to the murder scene the
next morning.
[10]
Ms Abraham’s testimony, in a nutshell, was that she knew both
accused and the Deceased well. On the night of the
murder she
saw the two accused grab, slap and hit the Deceased before forcing
him through the cemetery fence. From nearby,
in the light of an
Apollo lamp and some security and shop lights, she witnessed the
Deceased struggling in vain to free himself
from his assailants, saw
and heard the blows when the Appellant and Accused 1 took turns to
hold him down and hit him in the head
with the rocks. She saw
them hide themselves and the Deceased among the graves when she
called out to them. Later on
she saw the two accused leave the
cemetery alone.
[11]
Dr Mogoje found the great amount of damage and destruction to the
Deceased’s skull to be commensurate with injuries inflicted
by
a heavy object like the two 30x30cm rocks which Sgt Visagie found
next to the Deceased’s body, of which one had blood
on it.
The Deceased’s chest injuries and ruptured liver according to
the doctor would have been caused by massive force,
such as being hit
by a solid object, or a rock thrown from a distance, or a kick with a
booted foot, and the six stab wounds and
the cut through his penile
shaft by a sharp object, like a broken bottle.
[12]
Sgt Visagie confirmed that the Deceased’s body was found in the
cemetery under some branches, that his hands had been
bound with a
belt and his feet tied with his shoelaces, and that Accused 1’s
tackies, which were found on the Appellant’s
roof, had
the Deceased’s blood on them (as confirmed by a DNA test).
[13]
Despite the Appellant’s denial of any involvement in the
incident within the cemetery, therefore, the evidence against
him was
overwhelming. I agree with Mr Nel that it is clear
that one person acting alone could not have inflicted
such a great
amount of damage and destruction to the deceased’s skull and
body and that Accused 1 and the Appellant must
have acted together,
irrespective of who committed which acts.
[14]
From the evidence it is clear, therefore, that the murder was
gruesome and protracted and, although not proved to have been
pre-planned, was indeed committed with direct intent as the trial
court found. It is clear, furthermore, that, despite his
averments to the contrary, the Appellant had been as involved in
perpetrating the offence as Accused 1 on his own evidence was.
In my view, therefore, the trial court correctly found Accused 1 and
the Appellant to have committed the brutal murder with a common
purpose.
[15]
S 51(1) of the Act 105 of 1997 determines that a sentence of life
imprisonment
shall
be
imposed on someone convicted of an offence referred to in Part 1 of
Schedule 2. And a murder which is committed by
a person
or group of persons acting in execution or furtherance of a common
purpose, as
in
casu,
does indeed fall under Schedule 2, Part 1. Life imprisonment
therefore was the starting point in sentencing both accused.
[16]
With reference to Accused 1 the trial court found substantial and
compelling circumstances to justify the imposition of a lesser
sentence of 20 years’ imprisonment. In regard to the
Appellant, however, the trial court found no such circumstances
to
justify a deviation from the prescribed sentence of life
imprisonment.
[17]
This disparity resulted in the appeal. It is an indispensable
requirement of justice that sentences be consistent and
that they be
perceived as such. The Appellant relies on the passage in S v
Mathebula
[1]
which determined
that:
“
it
is trite that, unless there are exceptional circumstances, accused
persons convicted of the same offences must receive the same
sentence. The principle accords with the fundamental principles
of uniformity of sentence, equality and fairness. Fairness
in
particular is a foundational value which should suffuse the entire
criminal proceedings.”
[18]
Disparity does not guarantee interference, however. Although it
is true that equal punishment for equal offences is to
be achieved as
a general principle unless different personal factors make
differentiation necessary,
[2]
a
court of appeal’s discretion to interfere in a sentence is not
unfettered. In S v Marx
[3]
,
for instance, the court cautioned that even a striking difference
between two sentences does not in all instances justify
interference.
And in S v Vermeulen
[4]
it was held that a court is not obliged to impose on an appellant the
same sentence as that imposed on a lighter-sentenced co-accused,
notwithstanding the disparity in their sentences.
[19]
Despite a disparity in sentences of co-accused, the accepted
principles governing an appeal court’s right to interfere
in
sentencing must still be observed. In S v Matoewa
[5]
,
for example, the court emphasised that in evaluating the contended
disparity in the sentences imposed on two co-accused, the essential
enquiry is not whether the sentences were right or wrong, but whether
the trial court, in imposing them, had exercised its discretion
properly and judicially.
In
casu,
therefore,
in order to justify interference in his sentence, the Appellant needs
to show that his sentence is disturbingly inappropriate
in comparison
to Accused 1’s 20 years’ imprisonment and that the trial
court had misdirected itself or had acted unreasonably
or arbitrarily
in sentencing him to life imprisonment.
[6]
[20]
The court in
S
v Marx
made it clear, furthermore, that, where interference is indeed
justified because the sentence is disturbingly inappropriate, it
needs to be done in accordance with the guidelines set out in S v
Giannoulis
[7]
:
1.
In
general, sentence is a matter for the discretion of the trial court.
Disparity in the sentences imposed on participants
in an offence …
will not necessarily warrant interference on appeal. Uniformity
should not be elevated to a principle,
at variance both with a
flexible discretion in the trial court and with the accepted
limitation of appellate interference therewith.
2.
Where,
however, there is a disturbing disparity in such sentences, and the
degrees of participation are more or less equal, and
there are no
personal factors warranting such disparity, appellate interference
with the sentence may, depending on the circumstances,
be
warranted. The ground for interference would be that the
sentence is disturbingly inappropriate.
3.
In
ameliorating the offending sentence on appeal, the Court does not
necessarily equate the sentences: it does what it considers
appropriate in the circumstances.”
[21]
Justice demands that appropriate sentences be imposed. In
determining whether the Appellant’s sentence is
appropriate or
so disturbingly disproportionate as to cause a disparity which
amounts to
“
unreasonableness
and unfairness which would reduce the credibility of criminal justice
in the eyes of the man in the street
[8]
,
the
court cannot merely consider the facts and circumstances of the
particular offence. It also needs to compare the sentence
appealed against with the lesser one imposed on a convicted
co-perpetrator who participated equally in the same offence, whose
personal circumstances are the same, and whose sentence is a
reasonable or acceptable one in the circumstances of the case.
[22]
That the Appellant participated equally in the murder
in
casu
is
clear. The next issue to determine, therefore, is whether the
personal circumstances of the two co-perpetrators differ
to the
extent that they in themselves justify the disparity in the
sentences.
[23]
Accused 1’s personal circumstances as listed by the trial court
were that he was 20 years old when the offence was committed;
that he
had only completed Grade 5; that he had no dependents; that he had
been raised by an aunt since both his parents had passed
away; and
that before his arrest he had worked at Shoprite and earned R3000.00
per month.
[24]
The Appellant’s, on the other hand, were that he was 31 years
old at the time of the murder; that he had only completed
Grade 4;
that although he was unmarried, he had a 13-year old child who lived
with the biological mother; that he had worked as
a mason and with
his income of R 5600 per month had supported his child and his
mother.
[25]
The only potentially significant differences in the two accuseds’
personal circumstances, therefore, are their ages and
the Appellant’s
dependents. Although Accused 1 was hardly more than a teen-ager
when they committed the murder, there
is no evidence that his youth
in any way affected his reasoning or conduct. As Ponnan
JA stated in
S
v Matyityi
[9]
,
while
someone under the age of 18 is to be regarded as naturally immature,
the same does not apply to adults, and a person
of 20 years or more
must show by acceptable evidence that he was immature to such an
extent that his immaturity can operate as
a mitigating circumstance.
In the absence of any such evidence, Accused 1’s
youthfulness in itself could therefore
not have been a sufficiently
weighty mitigating factor to justify the substantial disparity
between his reduced sentence of 20
years and the Appellant’s
sentence of life imprisonment.
[26]
The Appellant was 31 years old when the offence was committed.
The 10 year age difference between the two accused in
itself in my
view cannot be regarded as significant enough to cause the
substantial disparity in their sentences, especially in
the absence
of any evidence as to how ‘youthfulness’ affected their
conduct. According to S v Matyityi
[10]
,
the Appellant’s age had to be regarded as, at most, a neutral
factor. But age in
Matyity
was discussed with reference to its potential effect on diminished
moral blameworthiness. In that sense the Appellant’s age
would
indeed not be a mitigating circumstance. Age in the context of
life imprisonment, however, affects the proportionality
of the
sentence and the Appellant’s age of 31 years rather than,
for instance, 60 years would indeed be of importance.
In S v
Martin
[11]
, for instance, the
court warned that discrepancies between the imposition of life
imprisonment on young as opposed to old offenders
cannot be ignored
and held that:
“…
an
approach that life imprisonment is what is appropriate for a bad man
committing a bad crime disregards that such a norm tends
to create
disparity. A life sentence imposed upon a lively man of 30
imposes a much longer and harsher sentence than the
nominally
identical sentence when imposed on a man of 65 who has lost interest
in everything around him.”
[27]
The trial court did not take the Appellant’s age into
consideration regarding the proportionality of imposing on him
a
sentence of life imprisonment when it decided that there were no
substantial and compelling circumstances to justify a lesser
sentence
in his case as it did with Accused 1. In my view it should
have.
[28]
The only remaining difference in the two co-perpetrators’
personal circumstances, therefore, is the fact that the Appellant
had
a trade and had applied his meagre income to support his dependents,
a factor which could or should not have contributed to
the
disparity. If anything, it should have contributed to tipping
the scale in his favour as it did in S v Sikhipha
[12]
where the Supreme Court of Appeal considered the appellant’s
age (31 at the time of the trial), his trade from which he makes
a
living and his supporting his dependent family members, to be three
of the factors contributing to a finding of substantial and
compelling circumstances to justify setting aside the appellant’s
sentence of life imprisonment.
[29]
As held in S v Malgas
[13]
the
specified minimum sentences are not to be departed from lightly or
for flimsy reasons, which entails that
“
marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be excluded”
as
substantial and compelling circumstances justifying a deviation. The
two co-accused’s participation in the murder
in
casu
and their personal circumstances having been more or less equal, one
would therefore have to look further for more significant
differences
to see if the disparity in their sentences was justified or not.
[30]
The next factor which clearly played a significant role in their
unequal sentences is the difference in the nature and number
of their
previous convictions. Accused 1 had only one prior
conviction, namely for housebreaking with intent to steal
and theft.
The offence involved no violence against the body of another person
and he was merely placed under correctional
supervision. This
conviction clearly did not play a heavily aggravating role in the
sentence selected for him.
The Appellant, on the other hand, by
the age of 33 had already perpetrated several offences. In 1998
he was convicted of
two counts of assault with intent to cause
grievous bodily harm and of malicious damage to property, and since
then was convicted
of several counts of housebreaking with intent to
steal and theft, but none involving violence against the body of
another person.
[31]
Mr Nel urged this court to take into consideration that the
Appellant’s only convictions for offences involving violence
were those in 1998, when he was still a teen-ager, and that they all
stemmed from a single incident 16 years before his conviction
in
casu
,
and should therefore not have been a factor in deciding on an
appropriate sentence for this murder. He pointed out that
although the trial court stated that it took into consideration that
the Appellant’s further crimes contained no element
of violence
against the body, it still expressed its ‘
shock’
at
the Appellant’s ‘
criminal
career’
which ‘
started
in 1998 already’
,
which might indicate that the non-violent nature of his later crimes
was not accorded enough weight when the court decided to
impose on
him the harshest sentence possible.
[32]
Mr Nel argued that the trial court should have lent proper weight to
the nature of the Appellant’s offences and should
have drawn
the inference that the Appellant is not a repetitive violent offender
who is beyond reform and who could not be deterred
from such conduct
through a lesser but still severe term of imprisonment, and should
certainly not have deemed him to be an offender
who needed to be
removed from society permanently with a sentence of life
imprisonment.
[33]
Apposite in the present case would be Howie JA’s remark in S v
Jibiliza
[14]
when he replaced the death sentence with an effective sentence of 30
years imprisonment in an instance where, although the appellant’s
record read “
badly”
an analysis showed that all his violent crimes had been committed
between 15 and 20 years earlier when he was still a minor and
that in
the 12 years before the present events his only offences were
housebreaking with intent to steal and theft, that:
“…
had
he been convicted in that 12 year period of a crime of serious
violence or had his record in that time showed an undeterred
tendency
to repetitive violence, the argument for life imprisonment would have
been more compelling”.
[34]
A further submission was that the effect of alcohol on the
Appellant’s moral blameworthiness had not been accorded enough
weight in the court’s sentencing decision. Terblanche
[15]
stated that:
“
generally,
once a court is satisfied that the offender was intoxicated, his
intoxication will be a mitigating factor.
The reason
therefore is that liquor can arouse senses and inhibit sensibilities,
which may diminish responsibility of the offender.”
[35]
The court in S v Cele
[16]
,
furthermore, made it clear that:
“
full
effect had to be given to ‘intoxication as a mitigating factor
and, in particular, to the fact that accuseds’ moral
blameworthiness was thereby diminished ‘… [since it]
‘impaired or affected their mental faculties or judgment
and
thereby influenced them in regard to the crime’”.
[36]
I agree that, even though the court in the present case mentioned
alcohol consumption as a potential mitigating factor in considering
the absence or presence of substantial and compelling circumstances
regarding both accused, it failed to indicate what weight
it
did attach to its effect on the moral blameworthiness of the two
accused in each instance and failed to explain why in the case
of
Accused 1 it was held to be one of the factors weighty enough to
constitute substantial and compelling circumstances, but not
in the
Appellant’s case.
[37]
The most significant remaining distinction between the two
co-perpetrators, then, is the fact that Accused 1 demonstrated his
potential for rehabilitation, apart from his age, by pleading guilty
ab
initio,
thereby
showing his willingness to acknowledge his wrong-doing and
demonstrating what the trial court called
‘
real
remorse’
of
the kind of sincere penitence
‘
translated
into action’
which
in S v Brand
[17]
was said to
result in
‘
accommodating
punishment’.
Thence
Accused 1’s 20-year sentence.
[38]
The State submitted that the Appellant, on the other hand,
demonstrated his lack of repentance by denying his role in the
murder, even in the face of the overwhelming credible and reliable
evidence against him and that such lack of remorse should be
regarded
as an aggravating factor. While Mabuse J in S v Au
[18]
on which the State relied, did call this type of conduct
“
a
quintessential example of a lack of remorse”
which
is indicative of the appellant’s not being prepared to
rehabilitate and indicated that it would serve as
“
an
aggravating factor that increased the chances of the imposition of a
heavy sentence”
,
however, one has to keep in mind that the right to remain silent and
to require the State to prove the case against one is a right
that is
constitutionally protected. In S v Mbatha
[19]
Wallis J, as he then was, held that:
“
there
seem to me to be substantial dangers in inferring an absence of
remorse from the exercise of a constitutional right, and treating
that as an aggravating factor. Equally, the Constitution
protects the right of an accused person to advance his or
her
defence. To infer from the fact that the accused has advanced a
defence found to be dishonest, that this reflects a lack
of remorse
and therefore justifies the imposition of a more substantial
sentence, comes perilously close to holding that the accused
is being
sentenced not only for the crime that he has committed, but also for
his failure to confess that crime. All this
seems to me
inconsistent with the constitutional protection afforded to the
accused person to remain silent or put forward a defence
to a
charge. No doubt it is for that reason that remorse usually
comes into the scale in mitigation of sentence, rather than
in
aggravation of it, and where its absence is treated as aggravating,
that is inferred from factors other than the accused’s
conduct
of his or her defence.”
[39]
The trial court in the present instance did state that the Appellant
had a constitutional right to plead not guilty, for which
it could
not punish him, but also remarked that it could not record in his
favour that he had shown even a sprinkle of remorse.
While
the Appellant therefore did not demonstrate his prospects for
rehabilitation by confessing to the murder as Accused
1 did, his plea
of not guilty could not have served to infer that he had no remorse
and therefore had no prospect of rehabilitation,
and that life
imprisonment would therefore be justified and proportionate.
It could, at most, have led to the absence
of the mitigating effect
of demonstrated remorse.
[40]
For Accused 1 the court found the following factors to be substantial
and compelling: his age during the commission of the
offence, his
alcohol consumption, and his true remorse for committing the offence.
It accordingly considered a sentence of life
imprisonment to be
disproportionate for him and reduced the indicated sentence of life
imprisonment to one of 20 years’ imprisonment.
[41]
For the Appellant, though, the court listed and rejected only two
factors as potential substantial and compelling circumstances,
namely
his alcohol consumption and his having been in custody since 14
October 2014, i.e. for a period of about 8 months.
It did so
without any reasoning regarding the potential weight to be attached
to each of those factors and without considering
them in conjunction
with the Appellant’s personal circumstances such as his age
during the commission of the murder (with
reference to the
proportionality of the sentence), his having a trade from which he
made a living, his maintaining his dependents
on his meagre salary
(which Accused 1 did not have to do) and the absence of violence in
any of his convictions as an adult.
The cumulative
effect of all of these factors would in my view have resulted in
substantial and compelling circumstances being
found to be present in
the Appellant’s case as well.
[41]
I agree with Mr Nel that in determining the proportionality of life
imprisonment it is essential to factor into the equation
that it is
the ultimate penalty and that it should be reserved for those
instances in which an offender ought to remain incarcerated
for the
remainder of his natural life. I agree, furthermore, that
there are circumstances which render life imprisonment
disproportionate in the Appellant’s case.
[42]
In my view, then, the Appellant’s sentence of life imprisonment
is, in comparison to Accused 1’s 20-year sentence
and bearing
in mind the co-accused’s equal participation and comparable
personal circumstances, disturbingly inappropriate
and
disproportionate enough to warrant interference. But,
even though equal sentences for equal crimes is indeed
the general
principle to strive for, in view of the Appellant’s lack of
remorse and greater number of previous convictions,
exact parity
would be neither feasible, nor fair.
[43]
The horrendous nature of the murder justifies a lengthy term of
imprisonment. A sentence of twenty-five years’
imprisonment would be long enough to deter both the Appellant and
others from committing such brutal offences, while serving the
community’s need to see justice being done and to see their
safety being protected by the courts’ punishing severe
crimes
with severe sentences. It would, furthermore, allow for a
measure of mercy and afford the Appellant an opportunity
to reform.
As such it would comply with the principles encompassed in the
Zinn-triad and with the objectives of sentencing.
[44]
It would, furthermore, reduce the substantial disparity between the
two sentences to an acceptable level in accordance with
the
guidelines set out in S v Giannoulis, i.e. without elevating
uniformity
“
to
a
principle, at variance both with a flexible discretion in the trial
court and with the accepted limitation of appellate interference
therewith”,
and
would allow fairness to
“
suffuse”
the
proceedings as propounded in S v Mathebula. In the last
instance, it would allow for justice to be seen to be done.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The
appeal against sentence succeeds and the sentence of life
imprisonment is replaced with one of twenty-five years’
imprisonment.
_________________
H
MURRAY
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
_________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Appellant:
Adv V Z Nel
(Legal-Aid,
Kimberley,Northern Cape)
For
the Respondent:
Adv K F Ilanga
(Office
of the Director of Public Prosecutions,
Northern
Cape)
[1]
2012(1) SACR 374 (SCA) at [14] at 379c-d.
[2]
Du Toit, Commentary on the Criminal Procedure Act, Volume 2, Service
53, 2014 at 28-18Y.
[3]
1989(1) SA 222 (A) at 22B-D
[4]
2004(2) SACR 174 (SCA) at [14]
[5]
2009(2) SACR 303 (ECG) at 308 c – d.
[6]
S v Motoewa,
supra,
at 309d.
[7]
1975(4) SA 867 (A)
[8]
Du Toit: Commentary on the Criminal Procedure Act, Service 53, 2014
at 28-18Y.
[9]
2011(1) SACR 40 (SCA) at para [14]
[10]
2011(1) SACR 40 (SCA) at para [14]
[11]
1996(2) SACR 378 (W) at 385E - G
[12]
2006(2) SACR 439 (SCA) at [18] at 445
[13]
2001(1) SACR 469 (SCA)
[14]
1995 (2) SACR 677
(A) at p. 681 A - C
[15]
Terblance S S: The Guide to Sentencing in
South Africa, 2
nd
Ed, at para 7.3.9 at 200.
[16]
1990 (1) SACR 251
(A) at 255 B-D
[17]
1998(1) SACR 296 (C) at 304a-d.
[18]
2014(2) SACR 91 (GP) at [15]. Compare 2008(2)
SACR 135 (SCA) at [26] & 2015 JDR 2610 (GP) at [20].
[19]
2009(2) SACR 623 (KZP) at [31]