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[2015] ZAFSHC 126
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Maree v S (A84/2014) [2015] ZAFSHC 126 (18 June 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A84/2014
In
the matter between:-
LOUIS
CHRISTOPHER MAREE
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE
et
DAFFUE,
JJ
et
HINXA, AJ
HEARD:
16 MARCH 2015
DELIVERED:
18 JUNE 2015
ORDER
(
1)
The appeal is upheld in part.
(2)
The order of the court
a
quo
is set aside and replaced with the following:
‘
(a)
The appellant is found guilty of culpable homicide;
(b)
The
appellant is sentenced to 5 (five) years’ imprisonment wholly
suspended for 5 (five) years on condition that:
(i)
the
appellant is not convicted of culpable homicide or any competent
verdict on a charge of culpable homicide, and for which he
is
sentenced to a term of imprisonment without the option of a fine,
committed during the period of suspension;
(ii)
the
appellant shall pay reparation to the family of the deceased by
providing for the deceased’s widow and minor child in
the
combined amount of R2 000.00 per month until the child is
self-supporting or reaches the age of 18 years, whichever
event
occurs first;
(iii)
a
Trust in the name of the minor child shall be formed and registered
to be managed by Trustees of the appellant’s choice,
such Trust
to be responsible for the payment of the widow and child’s
reasonable needs and their maintenance for the duration
set out
above;
(iv)
the
appellant, through Social Development, Free State, and South African
Police Services, Free State, shall lead a delegation of
the farming
community to start talks with the neighbouring community on
non-violent resolution of crime, including stock theft
in the area’.
(3)
The sentence imposed is antedated to 25 March 2013.
JUDGMENT
THE
COURT :
[1]
This appeal arises from an event which occurred on 27 March 2010
during which the appellant shot and killed the deceased, Mr
Sello
Jeremiah Potsane. The appellant together with his erstwhile
co-accused, Mr Nicolaas van Aswegen appeared in the High court,
Free
State, Bloemfontein, on one count of pointing of a firearm
(contravention of s 120 of the Firearms Control Act, 60 of 2000;
(count 1); assault with intent to do grievous bodily harm; (count 2);
murder (count 3) and malicious damage to property (count
4 - killing
a dog). Appellant was discharged and acquitted in terms of s
174 of the Criminal Procedure Act, 51 of 1977, (the
CPA) in respect
of counts 1, 2 and 4 at the close of the State’s case, but
eventually convicted of murder – count 3
- by the court
a
quo
(Ebrahim J). He was sentenced to 12 years’
imprisonment. The appeal against conviction and sentence is
with leave
of the trial court.
POINT
IN LIMINE: RIGHT TO A FAIR TRIAL
[2]
Adv Price SC, for the appellant, raised several issues, inter alia
that the trial court committed serious and gross irregularities
which
vitiated the trial as a fair trial and reliance was also placed on
the failure of the prosecution to co-operate with the
defence in the
pre-trial processes, ie providing the defence with further
particulars and or the contents of the police docket
in order to
assist the defence to prepare properly for the case. This is
contrary to the authoritative decision in
Shabalala
and Others v Attorney General of Transvaal and Another
[1]
.
He argued that the trial court’s attention was drawn to this
anomaly at every step yet it proceeded without in the least
admonishing the State or taking the transgressions into account when
it evaluated the evidence against the appellant at the end
of the
trial. Thus, he submitted further, the conviction of the appellant
infringed several of the appellant’s constitutional
rights
amongst which s 35(3) of the Constitution of the Republic of South
Africa, 1996, which guarantees an accused person the
right to a fair
trial
[2]
,
to be read with s 87 of the CPA. In response Adv Mohlala for the
State, who also prosecuted this matter during the trial, did
not
refute these allegations, but instead argued that the defence
nevertheless obtained the relevant documents it required directly
from the police. So, we were told, the appellant was in the final
analysis not prejudiced.
[3]
The ambit of the duty upon the prosecution to disclose documents to
an accused person has been authoritatively defined by the
Constitutional Court in
Shabalala
[3]
.
The
following dicta from
Porritt
v NDPP
[4]
are
pertinent:
‘
[11]There
is a fundamental difference between the role and functions of a
prosecutor as opposed to those of a magistrate or a judge.
The
judiciary is held to the highest standards of independence and
impartiality because they are the decision-makers in an adversarial
judicial system. Prosecutors neither make the final decision on
whether to acquit or convict, nor on whether evidence is
admissible
or not. Their function is to place before a court what the
prosecution considers to be credible evidence relevant to
what is
alleged to be a crime. Their role excludes any notion of winning or
losing. It is to be efficiently performed with an ingrained
sense of
dignity, the seriousness and the justness of judicial proceedings.
[5]
[12]The
United Nations Guidelines on the Role of Prosecutors requires
prosecutors to perform their duties fairly, consistently and
expeditiously, and respect and protect human dignity and uphold human
rights, thus contributing to ensuring due process and the
smooth
functioning of the criminal justice system (see paragraph 12
thereof).
Further
(in terms of paragraph 13), prosecutors are enjoined, in the
performance of their duties, to:
“
(a)
carry out their functions impartially and avoid all political,
social, religious, racial, cultural, sexual or any other
kind
of discrimination;
(b)
protect the public interest, act with objectivity, take proper
account of the position of the suspect and the victim, and pay
attention to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage of the suspect”.
[13]The
principles that govern prosecutorial conduct must therefore be seen
and understood in the context of the role that prosecutors
play. In
adversarial criminal proceedings such as ours, it is inevitable that
prosecutors will be partisan. They conduct the case
for one of the
two sides in a trial, namely the State, as representing the
citizenry. They often carry out their prosecutorial
functions
vigorously and zealously.
A
prosecutor’s role in a criminal prosecution therefore makes it
inevitable that he or she would be
perceived
to be biased.
[6]
Prosecutors
usually approach criminal prosecutions with a view, sometimes a very
strong view, that accused persons are guilty.
That is permissible,
subject to the
caveat
that they must not prosecute in single-minded pursuit of a
conviction. They have a duty towards the accused to ensure that an
innocent person is not convicted. In this regard, they have a duty to
disclose, in certain circumstances, facts harmful to their
own
case.
[7]
In
S
v Van Der Westhuizen
[8]
this court made the following observation:
‘
In
our practice it is not the function of a prosecutor disinterestedly
to place a hotchpotch of contradictory evidence before a
court, and
then leave the court to make of it what it wills. On the contrary, it
is the obligation of a prosecutor firmly, but
fairly and
dispassionately, to construct and present a case from what appears to
be credible evidence, and to challenge the evidence
of the accused
and other defence witnesses, with a view to discrediting such
evidence, for the very purpose of obtaining a conviction.
That is the
essence of a prosecutor's function in an adversarial system and it is
not peculiar to South Africa.’
[14]The
protection of an accused person, therefore, lies not in a general
standard of independence and impartiality required of
all
prosecutors, but in the right to a fair trial entrenched in s 35(3)
of the Constitution.’
[4]
It is not necessary for purposes hereof to deal with all
irregularities relied upon on behalf of appellant. It is
acknowledged
that the trial court, without compromising objectivity,
has a duty to manage a criminal trial within the law governing
criminal
procedure, has a duty to ensure that an accused is properly
defended and that his constitutional rights are not negatively
affected
either by commission or omission. In this case
appellant may regard himself fortunate that he employed the services
of senior
counsel and an experienced attorney who came to his
assistance to remedy much of the wrongs experienced. Having
said that,
appellant’s counsel conceded during oral argument
that the alleged infringements of constitutional rights could not, on
their
own, lead to an acquittal of the appellant on the charges
preferred against him, but should be judged having regard to the
totality
of the evidence presented. His concession was well made.
The
right to a fair was described in
S
v Shaik
[9]
in
these terms:
‘
The
right to a fair trial requires a substantive, rather than a formal or
textual approach. It is clear also that fairness is not
a one - way
street conferring an unlimited right on an accused to demand the most
favourable possible treatment. A fair trial also
requires “fairness
to the public as represented by the State. It has to instil
confidence in the criminal justice system
with the public, including
those close to the accused, as well as those distressed by the
audacity and horror of crime.’
In
the final analysis, although the conduct of the prosecution ought to
be deprecated, in the totality of the evidence and in all
fairness to
all parties, the conduct highlighted above did not amount to such
gross conduct as to vitiate the proceedings.
In
the result and on that basis, we rule that the appellant was afforded
a fair trial.
ON THE MERITS OF THE CASE.
[5]
The appellant then attacked the judgment and order of the trial court
on the basis that it erred in convicting him of murder
with
dolus
directus
as
the form of intent as the State had failed to prove such a case
beyond reasonable doubt. The defence brought up certain
alleged
material discrepancies, inconsistencies and improbabilities in the
evidence of the State witnesses.
[6]
The two Wesi brothers (David and Frans) were in each other’s
presence on the appellant’s farm. Their evidence
in
essence is that the Wesi’s were employed by Mr Van Aswegen, who
was the appellant’s co-accused and was later found
not guilty
and discharged on all counts. Whilst they were on the
appellant’s farm they noticed four men. They
gave
conflicting versions on how Van Aswegen allegedly assaulted Mr
Lechesa Motsie who obeyed an instruction to approach Van Aswegen.
Appellant was summoned to the farm by Van Aswegen and was advised to
come armed with a rifle, which he did. This aspect need
not
detain us because of Van Aswegen’s acquittal.
[7]
On the other hand these witnesses, including Motsie, the complainant
in counts 1 and 2, testified that when the deceased was
asked to
approach he walked away instead. When pursued by the appellant
he evaded him and disappeared. The appellant
fired in the
direction in which the deceased disappeared. The deceased’s
body was later discovered in the veld where
he had died from a
gunshot wound.
[8]
As far as the suggested discrepancies in the testimony of these
witnesses are concerned, it must be remembered that they were
spectators viewing the events from different angles because the
occurrences were transformed into a moving scene. The Wesi
brothers were on the bakkie several metres away from the place where
the stated assaults by Van Aswegen on Motsie took place.
Their
versions are to an extent supported by Van Aswegen and even appellant
where it mattered.
[9]
Capt. Christiaan Mangena is a ballistic expert attached to the South
African Police Services (SAPS). He testified that he did
not
personally conduct the ballistic tests on the projectile, but it was
shown to him whilst contained in a plastic bag by W/O
Sylvia Monakali
who conducted the tests. She was not called to testify. According to
Capt. Mangena the bullet that killed the deceased
was not a ricochet
bullet as alleged by the defence.
[10]
Const Ngwenya is the officer who drafted the plan of the scene of
crime and took photographs of the same scene, both on the
ground and
from the air. These photos were not of high quality and thus of
little assistance to this court and most probably to
the trial court
as well. Const Ngwenya inexplicably and unprofessionally so, we must
say, paced out the distances instead of taking
tape measurements as
Supt. Bolsik pointed out the different points
inter
alia
pertaining to the deceased’s position prior to the shooting and
thereafter.
[11]
Dr Stephanus Petrus Jansen van Vuuren, a medical intern working under
Dr Book, conducted the post mortem examination. He recorded
on the
post mortem report that the bullet entered the deceased’s
buttock and exited through the abdomen. He confirmed the
cause of the
death to be a ‘gunshot wound, pelvis’. His findings set
out in exhibit ‘R’ corroborated the
version of the
appellant’s expert witnesses referred to later. After Dr
Book came to a different conclusion as indicated
in exhibit ‘R’,
and after being shown an undamaged projectile by Capt Mangena,
instead of the damaged one found on
the scene, Dr Van Vuuren decided
to alter his findings contained in the post mortem report to accord
with Dr Book’s conclusions.
[12]
Dr Robert Jean Book, with Capt Mangena, exhumed the body of the
deceased some seven to eight months later. Dr Book observed
the body
of the deceased which he said was too putrefied to conduct another
post mortem. He however looked at three post mortem
photographs to
come to the conclusion that the bullet entered the deceased on the
anterior wall of the abdomen and emerged at the
back.
[13]
In the final analysis, the ballistic evidence led by the State was to
the effect that the deceased sustained a gunshot wound
on the abdomen
with an exit wound on the right buttock. The entry wound was on
the abdomen and the exit wound on the right
buttock. That gunshot
wound caused the death of the deceased.
[14]
The appellant testified that he was called by Van Aswegen, his
co-accused, who informed him that he had found four men with
seven
dogs on his farm. Van Aswegen asked him to bring his rifle
along as one Inspector Palm had been phoned who had given
permission
to shoot the dogs. It is not clear where the other two trespassers
-apparently illegal hunters - were when appellant
arrived at the
scene. He only noticed two of the alleged trespassers
accompanied by dogs. Appellant should have
been aware
from these set of facts of the possibility that there were more than
these two people in the vicinity. He fired
a warning shot
whilst the two trespassers were directed to come closer. One,
who turned out to be Motsie, surrendered himself,
but the deceased
tried to escape and ignored the command to surrender. Van
Aswegen caught Motsie and pinned him to
the ground to keep him under
control. The appellant followed the escapee, the deceased, for a
short distance but when he disappeared
beyond a slope, he turned to
where Van Aswegen and Motsie were. On his way back he saw a dog
jumping up and down in the grass
a distance from him. He fired
two shots at it without aiming in an attempt to frighten the dog.
It disappeared.
His version was supported in all material
details by Van Aswegen except whether the appellant had walked past
Van Aswegen and Motsie
when he followed the deceased.
[15]
The defence also adduced the evidence of an
ex-
police
officer and ballistic expert, Mr Jacobus Steyl. He testified, in
short, that the damaged condition of the projectile, the
shape and
position of the entry and exit wounds and the fact that the
projectile was found underneath the body of the deceased
conclusively
indicated that the bullet that killed the deceased was a ricochet
bullet. The defence further led the evidence of
Prof Saayman, a
pathologist who studied the evidence of Capt Mangena, Dr Van Vuuren
and Dr Book and came to the same conclusion
as Steyl: that the
deceased was killed by a bullet that ricocheted. The evidence of both
these witnesses was substantiated with
medical assurance and made
sense. It was neither refuted nor was any doubt cast on it by the
State.
[16]
The trial court found that the appellant aimed at the deceased with
the intent to kill him as the latter walked away from him.
[17] Before us, appellant’s
counsel contended that the incident was a horrific accident and that
the trial court erred in:
17.1
concluding that the appellant aimed deliberately at the deceased to
shoot and kill him as he was angry
at the loss he had suffered at the
hands of thieves of his livestock;
17.2
rejecting the appellant’s version that he had made sure before
he fired the shots at the dog
that there was no person in the
vicinity and thus could not have shot the deceased intentionally.
[18]
To secure a conviction on murder the State had to prove beyond
reasonable doubt that the appellant unlawfully and intentionally
killed the deceased. The test in a criminal case has been restated in
S
v V
[10]
,
by
the
Supreme Court of Appeal: the true test is that if there is a
reasonable possibility that the accused is not guilty, he should
be
acquitted. The accused should be convicted if the court finds not
only that his version is improbable, but also that it is false
beyond
reasonable doubt. It is not necessary for the court to believe an
accused person in order to acquit him.
[19]
The approach to be adopted by a court of appeal when it deals with
factual findings of a trial court is trite. A court
of appeal
will not interfere with the factual findings of a trial court unless
the latter had committed a material misdirection
on the facts. The
presumption is that his or her conclusion is correct. The appeal
court will only reverse it where it is convinced
that such conclusion
is wrong. In such a case, if the appeal court is merely left in
doubt as to the correctness of the conclusion,
it will uphold it.
[11]
The
Supreme Court of Appeal in
S
v Naidoo and Others
[12]
reiterated this principle as follows:
‘
In
the final analysis, a court of appeal does not overturn a trial
court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.’
[20] Counsel for the appellant
submitted that the appellant did not have the intention to kill the
deceased for the following reasons:
20.1 He made sure
before he fired the shots that there was no person in the vicinity;
20.2 One warning
shot was fired in the air and two shots at the dog that he had
seen jumping up and down
in the long grass, but which two shots were
fired in the opposite direction to where appellant last saw the
deceased;
20.3 He had every
opportunity to shoot the deceased at short range if he wanted to kill
him, instead of waiting
for him to walk away for a considerable
distance;
20.4 He was armed
with a hunting rifle to which a telescope was mounted, but he shot
from the hip, clearly indicative
of the fact that he was not aiming
at a person or even the dog, at grass level;
20.5 The projectile
which appellant admitted killed the deceased was damaged, which
showed that the bullet was
deflected by some object including the
long thick grass and ricocheted to hit the deceased fatally;
20.6 The appellant
upon being confronted by a certain Mr Uys, who was sent to the scene
first, expressed shock
and uttered the following words: ‘It is
impossible. I was shooting at the dog.’
20.7 The appellant
looked for the deceased in the opposite direction next to the fence
demarcating his farm from
his neighbour’s whereas the deceased
was found at least 250m away by Uys; and
20.8
The appellant went to apologise to the deceased’s family for
their loss.
[21]
The trial court committed several misdirections, which in our view,
led to the wrong conclusion that the appellant was guilty
of murder.
It found that the medical evidence presented by both the State and
the defence was ‘a rage of disagreement’
but yet found it
irrelevant for determination of the guilt or innocence of the
appellant.
[22]
This aspect is the crux of the case. The trial court was bound
to assess it thoroughly in order to determine the appellant’s
guilt on murder with
dolus
directus
or
dolus
eventualis
or culpable homicide, and not his guilt or innocence in a vacuum.
Without such determination the trial court was bound not to find
its
way to the correct verdict. It is further important for a trial court
to analyse the expert evidence presented and to come
to some
conclusion in order to reject or accept it.
[23]
The trial court found that the appellant acted out of revenge for the
loss he had suffered at the hands of poachers and thieves.
This act
of revenge was a factor that the trial court had a duty to factor in
along with other matters that could point to a possible
motive for
the shooting. The fact that the appellant said he was angered
by the thefts, coupled with the police’s failure
to intervene
despite repeated reports the farmers had made, cannot without more,
justify the murder conclusion. This also flies
in the face of the
unequivocal finding by the trial court that the appellant was an
honest witness who did not attempt to evade
questions, but stuck to
his version. What this conveys is that he was regarded as a
credible witness.
Having
considered the evidence as a whole, the conviction on murder with
dolus
directus
or
dolus
eventualis
for that matter cannot stand.
[24]
This then leads us to consider the evidence that remains i.e. whether
a reasonable person in the same circumstances in which
the appellant
found himself would have acted as he did. In other words whilst
he was aware that the deceased and possibly
other persons were in the
vicinity, but having disappeared from his sight, even if it was in a
different direction; would a reasonable
person have fired shots to
scare off the dog. This is so, particularly knowing, as it was
admitted by the defence, that a
dog and its owner are invariably next
to each other during hunting.
[25]
Counsel for the State submitted that the version that the deceased
was struck and killed by a ricochet bullet is not reasonably
possibly
true ‘because of the distance between the spot where the
appellant had testified he had fired the shots and where
he had
testified he had seen the deceased disappearing to and the spot where
the body was found.’
[26]
It is true that if the evidence is considered with the photographs
and points indicated thereon, appellant on his version fired
shots in
a totally different direction from where the deceased (on his
version) had disappeared. His version is contradicted
by the
State’s evidence as well as the objective facts.
Appellant tried to convince the trial court that the deceased
walked
along the border fence and that he fired in a direction far away to
the left of that area. Even based on a finding
that a ricochet
bullet struck the deceased, which finding we make, appellant’s
version that the deceased could not be within
or in close proximity
of his arc of fire should be rejected as false. Although the
evidence presented by the State’s
eye witnesses was of poor
quality, the objective facts support their version in this regard.
[27]
In our view, a reasonable person in the same circumstances as the
appellant would not only have made sure that there was no
person in
the vicinity before he fired the shots, but would not have fired the
shots in the first place. This is particularly
so because,
after the deceased disappeared from his sight, he would not know his
exact location due to the long grass, the undulating
terrain and
because the deceased was walking all the time. Any other person on
the neighbouring farm could have been struck by
a stray or ricochet
bullet as it did in this case. Motsie, who was already
captured, would have identified the people he
had been with on that
day. The motor vehicle used by the trespassers to get to the
farm was still parked on the road close
to appellant and Van
Aswegen’s vehicles. The appellant claimed that he
loved dogs and it was for this reason,
he said, that he even
prevailed upon Van Aswegen to be the one to shoot the other dog
because it would be against his conscience.
Yet he fired two shots at
another dog knowing that he might kill it. Apparently a certain
Inspector Palm, through Van Aswegen,
had instigated them to do so.
[28]
We find that on the evidence viewed as a whole the appellant, while
he did not have the requisite intention to kill the deceased,
negligently killed him.
The appeal against the conviction
on murder with
dolus directus
, for the aforesaid reasons,
ought to succeed.
The
appellant is thus guilty of culpable homicide.
ON
SENTENCE
[29]
The alteration of the conviction from murder to culpable homicide
places this court at large to consider sentence afresh. The
appellant
is a farmer and the sole breadwinner of his family. He was 69
years of age at the time of the commission of this
offence. He is
married with children who are all adults. He is a first offender.
Over and above the seriousness of the offence,
the appellant’s
moral blameworthiness in the circumstances must also be taken into
account
[13]
.
[30]
As the Appellate Division in
S
v Munyai
[14]
stated:
‘
One
instinctively baulks at the thought of a person of this advanced age
being sent to the gallows [in our case long term imprisonment].And,
it is seems to me, the objects of punishment do not require this. It
is true that old age is generally speaking, not a ground for
leniency
(see the writers referred to by Rumpff JA in
S
v Zinn
1969 (2) SA 537
(A) at 541G-542A). Nevertheless, our courts have (as
for an example in
S
v Heller
1971 (2) SA 29
(A) at 55C) treated old age as
per
se
as a mitigatory factor when deciding on an appropriate period of
imprisonment. This has been done on the basis of compassion, I
think,
coupled with the perception that the community expects old people to
be treated with sympathy (DP van der Merwe
Sentencing
at 5-26).Pershaps the reason for this is embodied in the saying ‘pity
at last is due to a feeble octogenarian’ (
Oxford
English Dictionary
sv
‘Octogenarian’).
[31]
Having said that, in our view, correctional supervision which was
recommended by Prof Daniel
Andries
Louw
[15]
and Mr Johannes Van Der Merwe
[16]
,
although appropriate in cases of murder,
[17]
in the right circumstances, would not be appropriate in this case.
The incident occurred three years before sentence was
passed by the
trial court and thus five years ago by now. Its rehabilitative
element of punishment has dissipated significantly
and is less likely
to serve its purpose, regard also being had to the age of the
appellant. A sentence based on rehabilitative
principles
supported by the deceased’s wife upon payment of a sum of money
for reparation was suggested to the trial court
and repeated in this
court. The appellant is remorseful over what has happened. He
contributed a certain amount of money
towards the burial of the
deceased.
[32]
The State’s counsel submitted that even if appellant is capable
of paying compensation, this court should still impose
direct long
term imprisonment. The authority relied upon by him is not
applicable here as in that case the accused was convicted
of murder.
We accept that a court should not create an impression that rich
people could obtain for themselves lenient sentences,
whilst poorer
people are not entitled to the same benefits. However
restorative justice is nowadays accepted as one of the
purposes of
punishment and if it at all possible, it should be considered in
appropriate cases.
[33]
Weighing up all the aggravating factors against the mitigating
factors we are of the view that a term of imprisonment, wholly
suspended on appropriate conditions, will adequately serve the
interests of justice. It will also serve as a deterrent to
the
appellant and hang over his head like a sword of Damocles.
[18]
The cases in which white farm owners claim to have mistaken a Black
person for a baboon, a dog or any kind of animal are
becoming too
common and must be painstakingly investigated, properly prosecuted
and punished. Navsa JA commented in
S
v Crossberg
[19]
that:
‘
It
appeared that the racial overtones the case seemed to be assuming had
caused tensions between the police investigating the incident
and
their superiors. Unfortunately, as this case shows, race continues to
divide and bedevil our society
’
In
the
Crossberg
[20]
case
the appellant was 46 years old at the time of the commission of the
offence of culpable homicide. Having converted his
sentence of
twenty years for murder to culpable homicide, the Supreme Court of
Appeal sentenced him to five years’ imprisonment,
two years of
which were suspended on certain conditions.
[34]
The sentence and orders we deem appropriate in this case were
deliberated upon with counsel, in particular appellant’s
counsel. All considerations such as the affordability of any
compensation the court deemed fit to order, including the formation
of a Trust Fund for the benefit of the beneficiaries, were proposed
to the trial court as well. This proposal was disregarded,
understandably based on the verdict of murder that the court
returned. We also deemed it appropriate to consider and filter in
a
condition which can go a long way to foster better relations between
the two communities: the farming community of which the
appellant is
part of on the one hand and the neighbouring community of which the
deceased and most farm workers come from. The
State had very little
inputs but certainly did not object nor raise any impediments
relating to the implementation of the proposed
order.
[35]
In the result the order set out above is granted.
_________________
________________
________________
B.
C. MOCUMIE, J
J. P. DAFFUE, J
M. D. HINXA, AJ
On behalf of appellant:
Adv. T. N. Price SC
Instructed by:
Nico Naude
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. M. A. Mohlala
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
[1]
S
habalala
and Others vs Attorney General of Transvaal and Others
[1995] ZACC 12
;
1995
(2) SACR 761
(CC);
1996 (1) SA 725
;
1995 12 BCLR 1593.See
also
National Director of Public Prosecutions v King [2010] ZSCA
8;2010(2)SACR 146 (SCA);2010(7) BCLR 656 (SCA);[2010]3 All SA
304
(SCA)(8 March 2010).
[2]
See also Universal Declaration of
Human Rights at article 10, the International Covenant on Civil and
Political Rights at article
14, the European Convention for the
Protection of Human Rights and Fundamental Freedoms at article 6 and
the African Charter
on Human Rights and People’s Rights at
article 7.
[3]
S
habalala
and Others vs Attorney General of Transvaal and Others
[1995] ZACC 12
;
1995
(2) SACR 761
(CC)
[1995] ZACC 12
; ;
1996 (1) SA 725
;
1995 12 BCLR 1593.See
also National Director of
Public Prosecutions v King [2010] ZSCA 8;2010(2)SACR 146
(SCA);2010(7) BCLR 656 (SCA);[2010]3 All SA
304 (SCA)(8 March 2010).
[4]
Porritt v NDPP and Others
[2015]1
All SA 169 (SCA).
[5]
See
Bourcher
v The Queen
[1955] SCR 16
(SCC) 23-24; Malinga v The State (543/13
[2014] ZASCA
161
(1 October 2014) at paras [15] – [18].
[6]
S v Du Toit
2004 (1) SACR 47
(T) at 65.
[7]
S v Riekert
1954 (4) SA 254
(SWA) at 261F, referring to
S
v Steyn
1954 (1) SA 324
(A) at 337A-C.
[8]
S v Van Der
Westhuizen
2011 (2) SACR 26
(SCA) para 11.
[9]
S v Shaik
[9]
[2007] ZACC 19
;
2008
(2) SA 208
(CC) at para
[43]
. See also Magwaza v The State
(20169/14
[2015] ZASCA 36
(25 March 2015) at para [10].
[10]
S v V
2000 (1) SACR 453
(SCA) para 3.
[11]
R v Dhlumayo and Others
1948 (2) SA 677
AD at 705-706. See
also
Booysen
v S (A875/12) [2013] ZAGPPHC 104 (18 April 2013) para 12.
[12]
S v Naidoo and
Others
2003 (1) SACR 347
;
[2002] 4 All SA 710
(SCA) para 26.See also
S
v Makgatho
2013 (2) SACR 13
(SCA) para 17.
[13]
SS Terblanche
The
Guide to Sentencing in South Africa
2 ed (2007) at 150,writes:’The modern view of the seriousness
of crime generally also refers to blameworthiness of the
offender...[T]he seriousness of the offence is affected by the
extent to which the offender can be blamed or held accountable
for
the harm caused or risked by the [offence]...’
[14]
S v Munyai and
Others
1993
(1) SACR 252
(A) at 255 g-i.
[15]
Professor Daniel
Andries Louw is a
clinical
psychologist and retired Professor and head of the Centre of
Psychology at the Faculty of Law, University of Free State.
[16]
A
correctional
services official,
[17]
See section
276(1)(h) of the Criminal Procedure Act 51 of 1977,as explained in
Du Toit et al
Commentary
on the Criminal Procedure Act (2013
)
from 28-9.See also
S
v R
1993 (1) SACR 209 (A).
[18]
See
Persadh
v R
1944 NPD
357
at 358;
S
v Scheepers
2006 (1) SACR 72
(SCA) para
11.
[19]
Crossberg v S
2008(2)
SACR (SCA)
para
51
[20]
Crossberg
above.