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2014
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[2014] ZANCHC 31
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S v Mere (KS 31/2014) [2014] ZANCHC 31 (21 November 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[
THE
NORTHERN
CAPE DIVISION
]
Unrevised
CASE
NUMBER
:
KS 31/2014
THE
STATE
AND
EDGAR
GAOITSIWE
MERE
ACCUSED
THE
SENTENCE
Date
of the hearing : 18 November 2014
Date
of the sentence: 21 November 2014
Phatshoane J:
1.
The
accused, aged 29, was convicted on 2 counts: attempted murder and
murder
read
with the provisions of
s 51(2)
of the
Criminal Law Amendment Act, 105
of 1997
. In his plea explanation in terms of
s 112(2)
of the
Criminal Procedure Act, 51 of 1977
, he states that at the time of the
incidents he was employed by the South African Police Service (SAPS)
as a constable stationed
at the Warrenton Police Station. On 13 June
2014 at approximately 06h00 in the afternoon he reported for duty and
was posted with
constable Letebele to the crime prevention and/or
visible policing unit. The accused was also the acting Community
Service Centre
commander. His assignment of the night and morning in
issue required of him to go out on patrols.
2.
The
accused states that at approximately 12h00 midnight on 13 June 2014
he went out on patrol duty. He explained that when doing
visible
policing patrols they regularly visit taverns and the like places
where alcohol is sold because more often than not incidents
of crime
are bound occur at these places. On his way home to pick up his
dinner he stopped at a tavern to buy cigarettes. He parked
the police
vehicle in front of the tavern and exited the vehicle accompanied by
a lady he had earlier offered a lift
to
home. They entered the tavern. Whilst inside a person by the name of
Jonas called him and informed him that a certain male person,
whom he
pointed out to the accused, wanted to fight with him and showed the
accused where he had been hit by this person. He later
learned that
this person was Mr Alister Spaigen, the complainant in the count of
attempted murder.
3.
The
accused explained that he stood between Jonas and Alister in order to
calm the situation and to prevent them from fighting.
During his
intervention Jonas hit Alister with a fist on the mouth. A fight
ensued between the two and in the course of it Alister’s
friend
joined the fray. The accused says that he took Alister out of the
tavern in an attempt to stop the fight. Whilst outside,
near the
devil’s fork fence surrounding the tavern, he observed another
male person armed with a “panga”. This
man attempted to
hit him with the “panga” but the accused managed to ward
off the attack and the “panga”
hit the devil’s fork
instead. He later realized that the attacker was the deceased, Mr
Lionel Mandjies. The accused stated
that at
that
juncture he ran out of the tavern premises towards the police
vehicle. Jonas also exited the tavern and came towards his direction.
The accused saw that Jonas had been further assaulted and was
bleeding from his head.
4.
The
fight escalated and numerous people exited the tavern and approached
them. The angry mob started to hurl insults at the accused
stating
that “the police think that they can do whatever they like”.
The accused intimates that in an attempt
to prevent any further
violence from breaking out he took out his “pepper spray”
and sprayed in the direction of the
crowd. He says this ignited much
fury from the mob which was clearly intending to assault him. He
intimates that he climbed into
the police vehicle through the left
back door because he was prevented from entering the driver’s
side by the angry crowd.
Inside the vehicle he climbed over the back
seat to the driver’s seat. Two unknown male persons had also
entered the vehicle.
One of them, on the passenger side, attempted to
push him out of the vehicle whereas the one in the back grabbed him
from behind,
hit him with a fist and pulled him by his clothing.
5.
The
accused says that he could not drive away as the vehicle was
surrounded. He alighted and saw Alister, the deceased and another
friend of theirs. Alister was armed with a panga whilst the deceased
had a spade. The deceased threw the spade at him which hit
the back
of his bullet proof vest. The accused drew his firearm and discharged
two warning shots into the ground. He noticed the
deceased running
towards some houses situated close to the tavern. He then found an
opportunity to climb into the vehicle and drove
away. He drove a
short distance in order to turn around and to leave Warrenvale but
could not turn the vehicle near the tavern
as there were other
vehicles blocking his way. He reversed the vehicle into the driveway
of one of the houses and observed that
the mob had followed him and
was again standing next to the vehicle hitting it with their hands
and insulting him.
6.
He
admitted that at that stage he could drive away as there was nothing
preventing him from doing so. Nevertheless, he felt seriously
provoked by the conduct of Alister, the deceased and their friend as
well as the other people. He further explained that he became
extremely angry and provoked because the initial attack on him and
the conduct of the people were undeserved. He alighted from
the
vehicle and retaliated by insulting the mob. He further states
that there were people that came from the neighbourhood
who attempted
to calm down the situation.
7.
The
accused states that the deceased approached him unarmed where he
stood but in anger he (the accused) pushed him away. He saw
that
Alister who was a distance away was unarmed. He explained that he
momentarily lost his temper and self-control and recklessly
discharged two shots towards Alister and the deceased. He witnessed
the deceased running away and he (the accused) entered the
vehicle
and departed the scene for the police station.
8.
The
accused states that there was no justification for his conduct when
he shot Alister and the deceased because there was no attack
on him
or any imminent threat at that stage and could have driven away.
However, he says he felt humiliated and provoked which
enraged him to
the extent of losing his temper.
9.
The
accused intimates that at the police station he reported to Inspector
Motsoaneng that he had shot people near the tavern.
Motsoaneng
requested him to hand over to him his service pistol. He complied
with his instruction. He surrendered to his arrest
and fully
co-operated with the Independent Police Investigative Directorate who
investigated the matter. He states that he later
learnt that he had
shot and injured Alister in his leg and the deceased in his chest
which caused his death.
10.
The
accused admit that on 14 June 2014 at approximately 02h00, early
morning, he intentionally discharged his service pistol towards
Alister thereby shooting and injuring him. He states that at the time
of discharging his firearm towards Alister he foresaw the
reasonable
possibly that he could either seriously injure or inflict a fatal
wound
on
him but he acted indifferently and in reckless disregard of this
possibility and proceeded to shoot him.
11.
The
accused admits that on 14 June 2014 at approximately 02h00 in the
early hours, he intentionally discharged his firearm towards
the
deceased thereby fatally injuring him. He says that at the time of
shooting the deceased he foresaw the reasonable possibility
that he
could seriously injure and even fatally wound him. He acted
indifferently and in reckless disregard of that possibility
and
proceeded to discharge his firearm. He admits that the deceased died
as a result of the injury he inflicted on him.
12.
The
State accepted the plea as tendered and on the basis of his plea the
accused was convicted of attempted murder (Count 1) and
murder (Count
2).
13.
In
considering an appropriate sentence the Court should have regard to
the crime, the offender, and the interest of the society
and impose a
sentence which would attempt to balance the nature of the offence and
circumstances under which the offence was committed,
the character of
the offender, his/her circumstances and the impact of the crime on
the victim and the community, its welfare and
concern. See
S
v Zinn
1969 (2) SA 537
(A) at 540G and
S
v Banda and Others
1991 (2) SA 352
(B) at 355A –C.
14.
The
accused
testified
in mitigation of the sentence. His mother died when he was in Grade 2
at school while his father passed away when he was
in Grade 7. He was
raised by his grandmother. He has a sibling and other extended family
members. He is unmarried but is engaged
to be married to Ms Nozipho
Gela. He has 6 children aged 12; 7; two 4 year olds; 1 year old and 1
month old baby. Three of these
children were born of the relationship
between the accused and Ms Gela whereas the other three were born
from his previous relationships.
He is maintaining all his children.
15.
The
accused matriculated in 2003. In 2004, at the age of 19, he became a
reservist in SAPS. He was permanently employed by SAPS
in 2006.
He
liked being a police officer to protect his community and country
against crime. He stated that in the 10 years of service with
the
SAPS he has never been subjected to a disciplinary hearing. He
intimates that following the commission of the offences he resigned
from SAPS because his deeds hurt him and he did not want to work with
firearms.
16.
The
accused states that he pleaded guilty because he is saddened by the
fact that he took someone else’s life. As a police
officer he
made contributions to the community related projects and has now
disappointed and hurt the people he served; that knew
him well and
cared for him. He wishes that what he did could have happened to him
instead and says he is genuinely sorry for his
actions. He says that
he understands the severity of the punishment that he is likely to
face. He accepts his fate and says that
all he can ask for is
forgiveness from the family of the deceased and Alister. He pleads
that there be no hatred because it would
not happen again.
17.
The
accused testified that he was diagnosed with some pancreatic decease.
This ailment does not affect his day to day activities.
18.
Adv
V. Nel, for the accused, argued that the accused reported for duty
without any malice. He contended that the accused was extremely
provoked and when his anger got the better of him, he committed the
offences on the spur of the moment. That with intention being
in the
form of
dolus
eventualis
,
the murder was not foremost in the mind of the accused. Counsel
further contended that the accused lacked any propensity to commit
further crimes and is a good candidate for rehabilitation.
19.
The
deceased was 18 years of age when he met his untimely death. He
stayed with his mother and was due to start employment on 17
June
2014; three days after his death. Dr Lemainè Fouchè
conducted the post-mortem examination on the body of the
deceased.
The contents of her report were admitted by the accused and handed in
evidence by consent. Dr Fouchè’s report
reflected that
the deceased had an entrance and exit wound on the left lower arm as
well as a re-entry wound on the left lateral
chest. He also had a
defect through the 7
th
rib on the left lateral chest wall with damage to the diaphragm, the
stomach and the heart and pericardium. She recorded the cause
of
death as gunshot to the arm.
20.
The
deceased was robbed of his life at a very young age and this
situation is irreversible. His death must have left a void in his
family. In
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC) at 57 para 144 the Court made the following
pronouncement:
“
The
rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in Chapter
3.
By committing ourselves to a society founded on the recognition of
human rights we are required to value these two rights
above all
others.”
21.
Alister
was 14 years old when the accused shot him. On the J88 medical report
compiled by Dr Moses, which was also handed in evidence
by consent,
Alister had a wound on the anterior aspect of the right thigh which
was haemorrhaging. He also had a circular wound
on the lateral aspect
of the right thigh which was not actively bleeding. He was treated
for a day at the hospital and discharged.
Alister’s
wounds are completely healed.
22.
The
accused committed serious offences. Alister and the deceased were
unarmed at the time he shot them. In the accused’s own
words he
attended a Police Training College and graduated. With his 10 years
of service within the SAPS, as a crime preventer,
he should be
skilled enough to know where to draw a line even if provoked. He
discharged his official firearm injuring and killing
unarmed members
of the public he was trained and employed to protect. He ought to
have known how to control his temper more so
because he says people
from the neighbourhood came to the scene to calm the situation. These
are serious aggravating circumstances
deserving severe punishment.
23.
The
offence of murder committed
in
casu
should be read in conjunction with the provision of
s 51(2)
of the
Criminal Law Amendment Act, 105 of 1997
, as it attracts the
prescribed sentence absent a finding
of
substantial and compelling circumstances. Both the defence and
the State counsel are
ad
idem
that there are substantial and compelling circumstances justifying a
departure from the imposition of the prescribed minimum sentence
of
15 years imprisonment. The defence was of the view that a punishment
far less than the 15 years imprisonment with a suspended
portion
thereof will fit the crime. The State submitted that 10 years
effective imprisonment will meet this case.
24.
The
accused has no record of any previous conviction. He confessed his
transgressions in detail and placed the relevant facts before
the
Court. He also cooperated with the police. Through his plea of guilty
he curtailed what could have been a lengthy trial. I
am swayed that
with the genuine contrition he displayed there is hope for him for
his rehabilitation and his eventual reintegration
into the society.
The accused’s six very young children stand to suffer due to
his folly. It holds true that on that fateful
day violence erupted in
an unpremeditated manner with devastating consequences at the hands
of the accused. The evidence elicited
show that the accused was
subjected to insults and provocation.
These
factors aggregately considered constitute substantial and compelling
circumstances and are persuasive enough to justify a
departure from
the imposition of the prescribed minimum sentence.
25.
The
society demands that the serious offences be suitably punished. It is
also required that mitigating circumstances of the accused
be taken
into consideration and that the accused's particular position be
given thorough consideration. See
S
v Holder
1979 (2) SA 70
(A) at 81A - B. Miller J states the following in
S
v Mkize
1973 (3) SA 284
(N) at 286G:
“
While
the public is entitled to protection against any one individual, one
cannot sacrifice the individual entirely in offering
that protection
to it. I think the most the Court can do consistently with justice is
to protect the public for as long a period
as seems commensurate with
the accused's deserts”.
26.
In the
circumstances the following sentences are imposed:
1.
On
count 1, the charge of attempted murder: The accused is sentenced to
5 (five) years imprisonment.
2.
On
count 2, the charge of murder: The accused is sentenced to 9 (nine)
years imprisonment.
3.
The
sentence of attempted murder is to run concurrently with the sentence
of nine years imprisonment for murder.
MV
PHATSHOANE J
Appearing for the state:
Adv R
Makhaga
instructed
by Director of Public Prosecutions, Kimberley
Appearing for the accused:
Adv V.
Nel
instructed
by Justice Centre, Kimberley