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[2015] ZAGPPHC 1005
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Prinsloo and Others v S (A1025/2009) [2015] ZAGPPHC 1005 (22 May 2015)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
22
MAY 2015
CASE
NO:
A1025/2009
In
the matter between:
DEON
CHARL
PRINSLOO
First Appellant
JACOBUS
HENDRRIK STEPHANUS
SWANEPOEL
Second
Appellant
CAREL
VAN
DER
POLL
Third
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
M
AKGOKA,
J
[1]
The appellants, who initially faced eight
counts, were convicted in the
magistrate court, Mankweng, of three counts, namely malicious
damage to property (count
1)
and two counts of assault with
intent to do grievous bodily harm (counts 2 and 5). They were each
sentenced to one year imprisonment
on each count, which was wholly
suspended on standard conditions. They appeal against the convictions
and the sentences, with leave
of the trial court.
[2]
The appellants were members of the South African Police Service
(SAPS) stationed at the murder and robbery units of Pietersburg
(now
Polokwane) and Seshego. The complainants are Mrs Caroline Letsoalo
(Mrs Letsoalo) and Mr Jeremiah Lekoloane (Mr Lekoloane).
Count 1 -
malicious damage to property - concerns the property of Mrs Letsoalo.
Counts 2 and 5 (assault with intent to do grievous
bodily harm)
concerns both complainants. The events giving rise to Mr Lekoloane's
complaint occurred during the night
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
22
MAY 2015
CASE
NO: A1025/2009
In
the matter between:
DEON
CHARL
PRINSLOO
First
Appellant
JACOBUS
HENDRRIK STEPHANUS
SWANEPOEL
Second Appellant
CAREL
VAN
DER
POLL
Third Appellant
and
THE
STATE
Respondent
J
U D G M E N T
MAKGOKA,
J
[1]
The appellants, who initially faced eight
counts, were convicted in the
magistrate court, Mankweng, of three counts, namely malicious
damage to property (count 1) and two counts of assault with
intent to
do grievous bodily harm (counts 2 and 5). They were each sentenced to
one year imprisonment on each count, which was
wholly suspended on
standard conditions. They appeal against the convictions and the
sentences, with leave of the trial
court.
[2]
The appellants were members of the South African Police Service
(SAPS) stationed at the murder and robbery units of Pietersburg
(now
Polokwane) and Seshego. The complainants are Mrs Caroline Letsoalo
(Mrs Letsoalo) and Mr Jeremiah Lekoloane (Mr Lekoloane).
Count 1 -
malicious damage to property - concerns the property of Mrs Letsoalo.
Counts 2 and 5 (assault with intent to do grievous
bodily harm)
concerns both complainants. The events giving rise to Mr Lekoloane's
complaint occurred during the night of 1 1 May
1998 until the early
hou rs of 12 June 1998. Those involving Mrs Letsoalo occurred du ring
midnight to early hours of 13 May 1998.
[3]
The factual background to those events is this. The appellants were
investigating a robbery and rape case during which a Mrs
Combrink was
robbed of her vehicle in Tzaneen by four armed men. who also abducted
her to Mankweng, where she was gang-raped by
those men, on two
separate occasions. They were also investigating a case of
armed robbery involving a supermarket in the
Mankweng area. As part
of their investigations, appellant 1 received information that Mr
Lekoloane is a police informer in the
area, and that he could assist
them with their investigations. He was provided with Mr Lekoloane's
contact num ber, as well as
his residential address.
[4]
It is common cause that during the night of 1 1 May 1998, the
appellants and four of their colleagues arrived at Mr Lekoloane's
house. On first encounter with him, he was hand cuffed and
placed in a police vehicle. He was questioned at a secluded place
in
Mankweng, and later driven to Seshego. He was driven back to Mankweng
the following morning in the early hours at approximately
02h00. What
happened to Mr Lekoloan•' between his first encounter with the
appellants until he returned home is disputed.
Mr Lekoloane says that
he was assaulted, which allegation the appellants disputed.
[5]
A day later, on 13 May 1998, the appellants
and their colleagues went to
Mrs
Letsoalo at approximately midnight. This is after they had received
information that her son, Masilo, was involved in
some of the crimes
mentioned earlier. Masilo was not home. It is common cause that the
appellants and their colleagues took Mrs
Letsoalo to several places
looking for Masilo, and returned her to her house
during the early
hours of that
day. Sim ilarly, it is disputed as to what transpi red during
the appellants' presence at
Mrs Letsoalo's house and
during their search for Masi lo. She says that the appellants broke
and damaged her property, and
also assaulted her. The appellants
dispute this.
[6]
It is against this factual background that I now summarise the
evidence led in the trial court. Both Mr Lekoloane and Mrs Letsoalo
testified. Dr ;:,redenkam p, a med ical doctor who examined Mr
Lekoloane shortly after he was alleged ly assau lted by the
appellants,
testified in the state's case. No other factual -vvitness
testified i n respect of the offences ;:: which the appellants
were convicted. Each of the appellants testified in their own defence
and called no further witnesses. I will commence with the
evidence of
Mr Lekoloane.
[7]
Mr. Lekoloane testified that on 1 1 May 1998 at approximately 20HOO
he arrived home in a kombi. He is a taxi driver. He was
with two
other people in the kombi, Maribe and Willy. Shortly upon arrival,
the appellants arrived in three vehicles and pointed
him with
firearms, grabbed him and put him into one of their vehicles and
covered his head with a jacket. They drove off with him
to a mountain
where they assaulted him. Appellant 2 was in that vehicle. They asked
him his name, which he gave
to them. Upon
arrival at the mou ntain, he was hand-cuffed by appellant
1.
[8]
While his head was covered, he was hit repeatedly with a blunt, steel
object, which he later observed it to be a firearm, and
appellant 2
was the one who was having possession of the firearm. He managed to
remove the jacket from his head. He was handcuffed
with his
hands at the back. Appellant I also tripped him and he fell, after
which the appellants kicked him with booted feet. Appellant
3 is the
one who started kicking him and others joined in. By then
all occupants of the three vehicles had alighted
from them and
surrounded him.
[9]
He asked wh y he was being assaulted. The African person who
was in the company of the appellants told him that they were
looking
for two of his friends, 1ight in complexion and who liked wearing
necklaces. Because of the broad description, he was not
able
to ascertain exactly who they were looking for. According to Mr
Lekoloane he was further assaulted in various ways,
including being
suffocated with a tyre tube. Later his face was covered with a
jacket. The appellants drove with him to Seshego,
apparently the
offices of the m urder and robbery units, where further interrogation
occurred.
[I
0) Later he was driven back to Mankweng. They arrived to the local
pol ice station, where appellant 3 pointed him with a firearm
and
threatened to kill him should he not reveal the names of the
suspects. He took them to the residence of Mr Tshepo Ramonyai
, a
friend of his, whom the pol ice suspected could be involved in the
crimes they were investigating. Having seen his friend,
they were
satisfied that he was not one of the suspects, but nevertheless
assaulted Mr Ramon yai before leavi ng.
[11]
It was approximately 2h00 in the morning when they left
Mr Ramon yai 's house. Instead
of taki ng h im back
to his house, Mr Lekoloane says that along the way, while the vehicle
was in motion, appellant 2 opened the
vehicle window and pushed him
out. Because h is leg was already twisted from the earl ier assault,
he crawled to his house.
Later that evening, at
approximately 19h00, appel lant 2 arrived at his house and
warned him never
to report to the police, his ordeal the
previous night. He again threatened to kill him should he do so.
However, by then he had
alread y reported the matter to the police.
[12]
He did not sustain any open injuries because when he was assaulted
with a firearm on the head, he was cushioned by the jacket.
He felt
pains around the cage of his ribs. As to the injury sustained as a
resul t of his leg being twisted, he testified that
he was bandaged
by the doctor who treated him. The leg had been fractured.
[13]
Dr Bredenkamp examined Mr Lekoloane on 13 May 1998,
the day after the incident. He confirmed the contents
of the
J88-form, which he had completed upon examination of Mr Lekoloane. In
that form, he had noted the following injuries:
(a)
'n skaaf plek op linker pols'
(b)
Kneuseplekke op beide poise'
(c)
Linker knieg aan voorkant 'n kneusplek'
[14]
Mrs Letsoalo testified that at approximatel y midnight on 13 May 1998
the three appellants arrived at her house in Mankweng.
The appellants
announced their arrival by breaking her entrance door. She was
awakened by footsteps around her
house
and a flashl ight against her bedroom window. Thereafter
her entrance/bedroom door was broken and appellant,
2 and 3 entered
her bedroom. There was no electricity in the area and the two
appellants used torch light to i lluminate her bedroom.
[15]
Appellant 3 searched the drawers of her dressing table,
throwing the contents around onto the floor. Appellant
3
assaulted her with open hands, and was later joined by
appellant 2. Appellant 2 told her that they
were
looking for his son, Masi lo. She indicated that Masilo was supposed
to be in his bedroom. In the meanwhile, she heard sounds
of banging
and commotion from the other bedrooms. Her 7 year old son, Vincent,
was sleeping in one of them. She could hear Vincent
crying from his
bedroom. Appellant 3 went to Masilo's bedroom
but returned. saying Masi lo was not i n
h is bedroom. Appellant 2
went out and there came in appellant I , who picked her up and
threw her against a wardrobe.
[16]
The appellants demanded that she shou ld give them
directions to the residence of
Masi lo's
girlfriend, Mpho. She told them that she was unable to furnish
directions, but she knew where the place was, and was
able to take
them there. It was across the road at Ga i'>1akanyc village.
The appellants instructed her to accom pan y
them there. She drove in
the same vehicle with appellants 2 and 3, and when they were about to
leave she saw one of the pol ice
of.'icers accom panying ihe appel
lants carrying her son V incent into one of the police vehicles. Masi
lo was not found at Mpho
's place. From Mpho's place she was
instructed to take them to the residence of one Ronnie, apparentl y
Masi lo's friend. She was
unable to identify Ronnie's place among
several homesteads in the area.
[17]
From there, the police vehicle convoy stopped next to a bush in the
vicinity of a shopping complex. She was ordered out
of the
vehicle and interrogated about the finger rings she was wearing. She
explained to them that one of the rings was her wedding
ring and that
her husband had passed on. Apparently the appellants did not
believe her. They assaulted her. She was
taken to a graveyard
to show the appellant her late husband's grave. When they arrived at
the graveyard, the gate was locked. She
was instructed to jump over
the gate into the graveyard. Because it was a cold winter
morning, her hands were so cold that
she was unable to properly hold
on to the steel gate to jump over it. Appellant 3 kicked her off the
gate and she fell, whereupon
the rest of the occupants of the police
vehicles kicked her at random.
[18]
She was later driven ·to several places, all in a vain search
for Masilo. On their way back to her house, appellant
2 and 3
parted company with the rest of the other vehicles and stopped
in the bushes. Appellant 2 asked appellant 3 whether
he, appellant 3,
would like to have sex with her. Appellant 3 ordered her out of the
vehicle and pointing a firearm at her, he
ordered he to lie down,
which she did. Appellant 3 pinned her down on her stomach with his
knee. At that stage appellant 2 dissuaded
appellant 3 from anything
further. Eventually she was returned home. Upon arrival and
inspection of her house, she established
that her property was
damaged and some items were missing. Mrs Letsoalo's evidence
concluded the state's case.
[19]
All appellants testified. In respect of Mr Lekoloane' s complaint the
detailed evidence is that of appellant 1 . He testified
that
during the relevant period, he was a detective attached to the
murder and robbery unit in Polokwane (formerly
Pietersburg). Mr Lekoloane's name as a possi ble police
informer who could assist him with the investigations, was suggested
to him by his colleague, Inspector Machete. Apparently
Inspector Machete and Mr. Lekoloane's
father
were good friends, and the latter had assisted inspector Machete with
his own police investigations.
[20]
Once he received the information about
Mr. Lekoloane·s particulars. he
decided to
visit him during the night of 11 May 1998 as he was busy with a court
in Pretoria the following day.
He arran ged his
team and they met at their office in Seshego. Joining in that
team were inspectors, Swanepoel, Bupedi,
Matlaila, Van
der Pohl and Bosman. The latter was attached
to the Tzaneen Murder and Robbery
unit. He informed the
team that the purpose of the exercise was to speak
to Mr. Lekoloane, the informer,
who could possibly
identify possi ble suspects in the two cases under investigation and
possibly point out where such
suspects could be found. Mr.
Lekoloane was himself not n suspect at that stage.
[21]
All six officers drove from Seshego to Mankweng, where they found
him, having just arrived. He was driving a mini-bus, and
was in the
company of two people. Him, inspector Swanepoel, Matlaila and Bupedi
entered the premises and introduced themselves
to Mr Lekoloane. At
that stage he was outside the house, but inside the premises, on the
drive-way. Inspectors Matlaila and Buped
i spoke to Mr Lekoloane,
which conversation was conducted in Seped i. As he was in the company
of other people, it was not advisable
for them at that stage to tell
him what the purpose of their visit was. Inspector Matlaila suggested
that they should stage
a 'make-believe' arrest, i.e. pretend to
arrest Mr. Lekoloane so that it should not be obvious that he was
co-operating with the
police. Inpectors Matlaila and
Bupedi then staged a 'make-bel ieve' arrest on Mr. Lekoloane,
and
he was hand-cuffed. The two people who
were with Mr. Lekoloane just remained standing and later moved
into the house.
[22]
Mr. Lekoloane got into the car in which Inspector Swanepoel and Van
der Pohl were. They drove from the house, in search of
a secluded
place where they could speak with Mr. Lekoloane, away from the
houses, or the road, where nobody could see them. The
found such a
spot near the University of Limpopo. They informed Lekoloane of the
purpose of their visit and enquired whether he
was in a position to
assist them. Inspector Matlaila and Bupedi led the discussions in an
indigenous language, and from time to
time explained to the rest of
the officers as to what was being said.
[23]
From that information, he deduced that Mr. Lekoloane was familiar
with certain car hijakers and robbers in the Mankweng
area, but
he, Mr. Lekoloane did not mention any names to them. However, he told
them that the robbers changed names regularly,
and used aliases, in
most instances. It was suggested that a pol ice photo album depicting
the photos of suspects, be shown to
him, the idea to wh ich Mr.
Lekoloane was receptive. As the album was in their offices in
Seshego, they had to drive there for
Mr. Lekoloane to view the album.
The arrived is Seshego at approximately 23HOO.
[24]
Upon arrival at their offices, Mr. Lekoloane was shown two photo
albums. He 'instructed' h im that in the event
he
identified any possible robbers in the Mankweng area, he should
indicate that fact. Mr. Lekoloane identified photos of 4 suspects
and
indicated that they operated in the Mankweng area. At
approximately 1 1H30 Mr. Lekoloane's
family
mem bers arrived at thei r offices, worried about, and looking for,
him. Inspector Swanepoel spoke to them and assured
them that there
was nothing to worry about, and that Mr. Lekoloane was busy assisting
them with investigations, and further that
he would be brought back
home. They also spoke to Mr. Lekoloane and after it was explained to
them that he had not been arrested,
they went back home.
[25]
Mr. Lekoloane then indicated to them that there was a person
(whose photo was not in the album) but whom he suspects
to be
involved in robberies and rape, whom he offered to identify where he
lived, in Mankweng. The six of them drove back to Mankweng.
It was
approximately 0 I HOO in the morning when they arrived at the
suspect's house, but after enquiries, the persons did not
match the
description of the person they had in mind. They decided to end their
investigations and took Mr. Lekoloane to his house
at approximately
02HOO in the morning. Inspector Swanepoel and Mr. Lekoioane exchanged
contact details, and arranged to meet
later that evening.
[26]
With regard to Mrs Letsoalo's complaint, the
essence of the appellants' evidence
is
this. On 13 May 1998 the appellants and three of their colleagues
visited Mrs Letsoalo's house
at approximately
midnight, in search of his son, Masi lo. In respect of the complaint
of Mrs Letsoalo, the appellants testified
that the investigating
officer had received information that the fingerprints of
Masilo Letsoalo were found on a vehicle
which ' ;:, L subject of the
robbery. An operation was planned to go and arrest Masilo Letsoalo.
Upon arrival at the address
identified as his residence, they
surrounded the house and entered the house. They found a young boy
and the suspect's mother,
Mrs Letsoalo. Masi lo was not there. They
questioned his mother in a friend ly and polite manner. She agreed
vol untarily to help
them. She was loaded into one of the motor
vehicles and she pointed out the home of the Masi Io's girlfriend and
they all went
into the house wh ile she remained i n the motor
vehicle, and Masi lo was not found.
[27]
On the way they checked her rings to see whether they matched those
taken during the robbery under investigation. She then
took
them to d ifferent places unti l they reached Ga Mamabolo vil
lage where they found Mr. Jerry Mamabolo
who
agreed to help them. Mrs Letsoalo
and her son were subsequently returned home by
appellants 2 and 3,
while Mr. Mamabolo was returned back home by appel lant 1 .
[28]
That briefly, is the evidence led before the trial court. In respect
of all three counts of which the appellant were convicted,
the stage
relied in each on the evidence of a single
witness - Mrs Letsoalo on the malicious damages to
property and
assault, on the one hand, and Mr. Lekoloane, on assault, on the
other. This obviously req uired of the trial
court to approach such
evidence with caution, to ensure that the evidence was satisfied in
all material respects.
[29]
Before I consider the arguments on behalf of the parties, it
is useful to remind ourselves of
the proper
approach in matters such as the present. The approach to be adopted
by a court of appeal when it deals with the factual
findings of a
trial court is found in the collective principles laid down in
R
v
Dhlurnayo
1948 (2) SA 677
(A). A court of appeal
will not disturb the factual finding of a trial court unless the
latter had committed a misdirection. Where
there has been no
misdirection on fact by the trial J udge, the presumption is that his
conclusion is correct. The appeal court
will only reverse it where it
is convinced that it is wrong. In such a case, if the
appeal court is merely left in
doubt as to the correctness of the
conclusion, then it will uphold it. See also
DPP
v
S
[2000] ZASCA 2
;
2000 (2) SA 71
1 (T);
S
v Leve
201 1 (I )
SACR 87 (ECG); and
Minister
of Safety and Security
and
Others v
Graig and Another
NNO
201
1 (1) SACR 469
(SCA).
[30]
In terms of s 208 of the Criminal Procedure Act,
5 1
of
1977, an accused may be convicted of any offence on the single
ev idence of any competent witness. The
court can
base its findings on the evidence of a single witness, as long as
such evidence is substantially satisfactory in
every material respect
(R v
Mokoena
1932 OPD 79
at 80) or if
there is corroboration (S
v
Gentle
2005
(1 ) SACR 420 (SCA)). See further,
R
v
Mokoena
1956 (3) SA 81
(A) at 85;
S v
T
1958 (2) SA 676
(A) at 678;
S v Sauls and
Others
1981 (3) SA 172
(A) at I 80E-G; and S
v
Banana
2000 (2) SACR 1
(ZSC).
[31]
With respect to the learned magistrate. it does not appear from her
judgment that she duly cautioned herself accord ingly.
She accepted
the evidence of both Mrs. Letsoalo and Mr. Lekoloane uncritically.
without testing it against the bench mark of it
being satisfactory in
all material respects. Mrs Letsoalo testified that she sustained
visible injuries. Despite the court suggesting
that the doctor who
examined her shouid be called to testify, the State elected not to do
so. The State failed even to place before
court, her medical records
for the relevant period.
[32]
With regard to Mr Lekoloane, his evidence of the injuries sustained
during the alleged assault, was thoroughly discredited
by the
objective, medical evidence of Dr. Bredenkamp. The doctor
testified that he did not observe any injuries alleged by
Mr
Lekoloane in his evidence. Mr. Lekoloane was, especially,
a most unsatisfactory witness. He was garrulous,
long-winded and tailored his evidence as the cross-examination
exposed the discrepancies in his evidence.
[33]
The learned magistrate simply brushed off the above by suggesting
that the witnesses were simply 'exaggerating' the nature
and
extent of their alleged assault at the hands of the appellants. This
is an impermissible approach. That 'exaggeration'
goes to the
heart of their credibility as witnesses, and the trial court m isd
irected itself by not considering its overall
impact on the
rest of the evidence of the two witnesses, especially i n the light
of their being single witnesses, with no corroboration
of their
evidence. Mr Lekoloane's evidence of the alleged injuries suffered,
as stated already, was totally discredited and was
not borne out by
the medical evidence. I therefore conclude that the learned
magistrate committed a material misdirection in accepting
the
evidence of both Mrs Letsoalo and Mr. Lekoloane on the assault
charges, to the extent such evidence was disputed by the appellants.
[34]
I tum now to the conviction on the count of malicious damage to the
property of Mrs Letsoalo. The appellants' attack against
the
conviction on this count is two-pronged. First that the trial court
erred in using the photographs of the damaged property
without such
photos being proven by the person who took them. Put differently, the
argument is that the ev idence of the photos
was inadmissible and
should not have been considered by the trial court without the
photographer being called to testify for the
purpose of proving them.
Second, it contended that the trial court erred i n its conclusion
that the appellants were the ones whose
actions caused the damage to
Mrs Letsoalo's property. This ground is based on the so-called
concession by Mrs Letsoalo during cross-examination
that she could
not identify the person who caused the damage.
[35]
There is no merit in any of the two arguments, and they can be
disposed of summarily. With regard to the photos, Mrs Letsoalo
testified about the nature and extent of the damage to her property -
broken entrance doors, cupboards and other household items.
Her
evidence in that regard was not challenged. In fact it appeared
to be common cause that there had been damage to her
property.
Therefore, the photos were merel y to demonstrate to the court the
nature and extent of the damage, which was common
cause. For the
above reasons, the learned magistrate did not have
to rely on the photos. The direct and uncontroverted
evidence of Mrs
Letsoalo was sufficient. See S
v Fuhri
1994 (2) SACR 829(A)
;
S
v Ndika
and
Others
2002 (
1)
SACR 250
(SCA) and S
v Kara/er
and Another
20006 (2) SACR 298 (N).
[36]
There has not been any suggestion that her property was not damaged.
Instead, it was suggested during cross-examination that
the damage
could have occurred during Mrs Letsoalo's absence while
she was accompanying the appellants to look for
her son, Masilo. This
is far-fetched and speculative. Mrs Letsoalo's evidence was that
entry into her house was gained by breaking
the entrance doors to her
house, as well as her bedroom door. This was not disputed by the
appellants. On their own version, the
appellants used force and
'swift' entry into the house. As the learned magistrate correctly
pointed out, it was not the
appellants' evidence that
they knocked and doors were opened for them.
[37]
Mrs Letsoalo clearly testified that her bedroom door was broken
shortly before two of the appellants entered her bedroom.
This was
not disputed, so was her evidence that there was loud banging of item
s in other bedrooms. Her evidence that appellant
2 and 3 broke things
in her bedroom was not seriously disputed. From all of the above, it
is clear that the appellants and their
colleagues, who were in the
other bedrooms, were acting in concert and with a common purpose. The
essence of the doctrine is that
where two or more people agree to
commit a crime or actively associate in a joint unlawful enterprise,
each will be responsible
for the specific criminal conduct committed
by one of their number which falls within their common design. See
Burchell
Principles
of
Criminal
Law
4 ed at 574. Also see S
v Safatsa
1988 ( l ) SA
868 (A); S
v
Mgedezi and Others
1989 (l )
SA 687; S
v Thebus
and
Another
2002 (2) SACR 566
(SCA) and S
v
Thebus
and
Another
[2003] ZACC 12
;
2003 (3) SACR 319
(CC),
(2003 (6) SA 505
(CC). I therefore conclude that the appellants were
properly convicted on this count, and the appeal i n respect
thereof
should fail.
[38]
As stated in the introduction, the appeal is
also directed against the
sentence, an
aspect I now turn to. It is trite that the imposition of sentence is
pre-em inently a matter within the
judicious discretion of a trial
court. The appeal court's power to interfere with a sentence is
circumscri bed to instances
where the sentence is vitiated by an
irregularity, misd irection or where there is a striking disparity
between the sentence and
that which the appeal court would have
imposed had it been the trial court. See generally:
S v Petkar
1988 (3) SA 571
(A),
S
v
Snyder
l
982 (2) SA 694 (A) and
S
,.
Sadler
2000 ( 1 ) SACR 331 (SCA)
a:id
Director nl Public
Prosecutions,
KZN v P
2006 (1) SACR 243
(SCA) para I 0. As to the nature
of the misdirection which entitles a court of appeal to interfere,
the following was
stated in S
v
Pillay
1977 (4) SA 531
(A) at 535E-F:
'Now
the word 'misdirection' in the present context simply means an error
committed by the Court in determi ning or applying the
facts for
assessing the appropriate sentence. As the essential inquiry in an
appeal against sentence, however, is not whether the
sentence was
right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere misdirection
is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such nature, degree, or seriousness
that
is shows, directly or inferentially, that the Court did not exercise
its discretion at all or exercised it improperly
or unreasonably.
Such misdirection is usually and conveniently termed one that
vitiates the Court's decision on sentence.'
[39]
In the present case, there is no discernable m isdirection of any
type, Jet alone the one referred to above. The trial court,
i n my v
iew, considered all the relevant factors in respect of sentence,
namely the circumstances of the commission of the offences,
the
personal circumstances of the appellant, the mitigating and
aggravating circumstances, which it balanced
against each other. I bear in mind that the convictions on the
assault charges are to be set aside, and that, ordinarily, would
affect sentence. However, I am of the view that even without the
assault charges, the sentence of 12 months' im prisonment
for
mal icious damage to property, wholly suspended, is still a suitable
sentence. I therefore do not intend to interfere
with that sentence.
The aggravating factor is that the appellants were police
officers. They acted like rogue
elements that night. The appeal
against the sentence therefore falls to fail.
[40]
Before I conclude, I make the following observations. The prosecution
in this matter was not handled with the necessary diligence
and
competence. That benefitted the appellants, for, had that not been
the case, the appellants would most probably have been convicted
on
all counts. For example there is no reason why the appellants should
not have been charged with assault for admitted ly hand-cuffing
Mr
Lekoloane without his consent. They should have faced even more
charges, including the kid napping of Mr LekoJoane. The appeal
succeeds to the extent discussed above, only because the prosecution
was inept, and not because of anything else.
[41]
In the result the following order is made:
I.
The appellants' appeal against the conv ictions in respect of counts
2 and 5 (assault on Mrs Letsoalo and Mr Leko!oane)
is upheld;
2.
The appellants' appeal against the convictions in
respect of count 1 (malicious damage to
property) is dism
issed:
3.
The appeal against the sentences is dismissed.
_______________________
T.M.
Makgoka
Judge
of the High
Court
I
agree
_______________________
G.
Webster
Judge
of the High
Court
APPEARANCES
For
the appellants:
Adv. J.C Klapper
Instructed
by:
Pretoria
Justice Centre
For
the respondent: Adv.
P.T. Nkuna
Instructed
by:
Director
of Public Prosecutions, Pretoria