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[2016] ZAGPPHC 518
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De Beer v S (A547/2015) [2016] ZAGPPHC 518 (23 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A547/2015
DATE:
23 JUNE 2016
In
the matter between:
DOUW DE
BEER
..............................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Fabricius J,
This
is an appeal against the sentence of two years imprisonment imposed
upon the Appella
nt by Msimeki J on 18 June
2014
. Leave to appeal
against the sentence was granted by the Supreme Court of Appeal on 18
November 201U. The appellant had been convicted
of defeating the ends
of justice under circumstances which had tragic results for a number
of persons.
Appellant
is the father of Dylan Douw de Beer. They together were charged with
two counts of murder, one count of defeating or obstructing
the
course of justice and one count of theft (against the son only). It
was alleged that on 11 April
200k,
the accused had wrongfully
and intentionally murdered two males. It was also alleged against the
Appellant that on the same day
he defeated the ends of justice by
burning the bodies of the two deceased so as to obliterate the cause
of death.
Appellant’s
son was accused of wrongfully stealing a cell phone from one of the
deceased.
The
relevant facts are not in dispute herein. The Appellant’s
evidence was that he owned a game farm in the district of Boschkop.
The farm was fenced and contained different species of animals such
as giraffes, zebras, kudus, warthogs and others. People were
allowed
to hunt and hike on the farm, which also had accommodation for
visitors. The University of Pretoria no doubt had a considerable
interest in wildlife preservation, in that someone who had won a draw
wou
ld be entitled to shoot an impal
a
on the farm and obtain free accommodation for the weekend.
Appellant’s son, who was at home for the weekend, was a good
marksman and was accordingly assigned to do the shooting for the
winner. He took the .308 rifle for that purpose. The particular
ammunition had been designed by the Appellant. Later on that
particular day, his son
came back without
the impal
a that he had
intended to shoot, and informed his father that poachers on the farm
had fired at him and that he had returned this
fire. Father and son
then proceeded to the particular scene. Two bodies of the deceased
were found, a dead warthog and spent cartridges
from the rifle. These
were all picked up and transported to a particular site where the
bodies of the deceased were burned. The
fence had been cut and
created easy
access to the game farm. The
cel
l phone was taken and
was thrown into a small dam. The Appellant’s son was 16 years
old in 2004. He confirmed his father’s
evidence regarding the
particular lucky draw organised by the University. He went to hunt
that afternoon and also saw warthog grazing
right in front of him
whilst he was looking for an impala. He then heard a rifle shot. The
warthog was struck, and having been
surprised by the sound of the
rifle, he started investigating its possible source by going up the
nearest hillock. He heard someone
screaming from the bush and a shot
was fired at him. He ran into a so-called fire belt and saw a man
dressed in camouflage clothes
running towards him. He realised that
he was being shot at. He in return fired two shots, one after the
other, but not particularly
aiming at any person. Unknown persons
continued to fire at him as well. He managed to contact his father at
home and they returned
to the scene of the accident where they found
two deceased persons lying in the veld. As I have said, the bodies
were picked up
and taken to a rubbish dump site where they were
burned. The police later on investigated the events which resulted in
the father
and son being charged with crimes that I have referred to.
Both were found not guilty of murder, but Appellant was found guilty
of defeating the ends of justice, and his son of having stolen the
cell phone.
The
learned Judge a quo dealt with the facts of the case, which as I have
said, were largely common cause. He referred to the discretion
that
he had to exercise in imposing a proper sentence, taking the purpose
of punishment into account, namely the deterrent, preventative,
reformative and retributive aspects. He also correctly mentioned that
punishment should fit the criminal as well as the crime and
should
also be fair to society.
See:
S v Rabie
1975 (4) SA 855
at 862 A – G.
Appellant
was a first offender and according to pre-sentencing reports was a
good candidate for a community based sentence. He had
been granted
bail and had complied with all bail conditions. He was married and
had two major children, who were gainfully employed.
At the time of
sentencing he was 59 years old and the learned Judge mentioned that
the case had been pending for about 10 years.
The probation officer
regarded the offence as an isolated incident which was not planned,
but was committed in a state of distress
and fear. The Appellant’s
actions, according to her were further motivated by a strong sense of
protection as he wanted to
protect his son. The learned Judge was
also informed that the Appellant had virtually lost everything that
he had, because he had
to sell his farm at a loss due to threats by
the surrounding community. His family had been
traumatized
by the incident and Appellant himself was suffering from depression.
The
learned Judge a quo dealt with the interests of society which also
served an important role in the sentencing of offenders.
The Court
found it difficult to condone the actions of father and son after the
poachers were shot. They had enough time to reflect
on their actions.
He also mentioned that the families of the deceased were severely
traumatised, because they could not mourn the
death of their loved
ones. They were still the victims of an unresolved trauma with
suppressed emotions of anger and sadness.
On
behalf of Appellant, it was submitted that an important consideration
was that the case had dragged on from 2004 until 201
U,
because the Boputhatswana
High Court had assumed jurisdiction for a certain period, whereas the
Supreme Court of Appeal had then
directed that the case be heard by
the Gauteng Division of the High Court. Appellant had been in custody
for three months before
bail had been granted. He submitted with
reference to
S
v R
1993 (1) SACR 209
(A),
that the legislature had
made it clear that a difference ought to be made between two types of
offenders, those who had to be removed
from society and those who
could be punished without imprisonment by way of alternative
correctional supervision procedures. Accordingly,
the sentence was
disturbingly inappropriate, and the Appellant had been punished
enough.
On
behalf of Respondent, it was submitted, as I have already said, that
sentencing is per-eminently a matter for the discretion
of the trial
Court. Sentence can only be interfered with if there was an
irregularity, or the Court misdirected itself materially
in respect
of the imposition of sentence or if the sentence was disturbingly or
shockingly inappropriate. The fact that a Court
of Appeal may have
imposed a different sentence, or a lighter sentence, is irrelevant,
it is not free to interfere if it is not
convinced that the trial
Court could not reasonably have passed the sentence that it did.
It
is clear that Appellant's conduct had been calculated and contrived.
The conduct prevented the holding of post mortem examinations
and the
families of the deceased were also severely
traumatized
.
The
submission therefo
re was that the trial
Court
did not
over-emphasize the interest of the community, and that the sentence
was indeed proportionate to the offence.
In
my view, the learned Judge a quo delivered a very carefully reasoned
judgment and took all considerations properly into account.
He
exercised his discretion as he was obliged and entitled to do. There
is no material misdirection that I could gather from the
facts or his
reasons for judgment. His discretion was exercised properly.
Defeating the ends of justice is a serious offence as
it will, in
most cases, if not in all cases, undermine the Rule of law. Its
seriousness must not be underestimated.
Accordingly,
there is no merit in the appeal against the sentence and the appeal
is accordingly dismissed. The Appellant is ordered
to report to the
nearest police station to his present place of residence withi
n
10 days from date hereof. He i
s
entitled to the return of the bail paid.
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH COURT,
PRETORIA
I Agree
JUDGE W. R. C. PRINSLOO
JUDGE OF THE GAUTENG HIGH COURT,
PRETORIA
I Agree
JUDGE N. V. KHUMALO
JUDGE OF THE GAUTENG HIGH COURT,
PRETORIA