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[2011] ZAFSHC 59
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Ntshasa v S (A249/10) [2011] ZAFSHC 59; 2011 (2) SACR 269 (FB) (17 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A249/10
In
the appeal between:-
ZAKARIA
NTSHASA
….............................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
H.M. MUSI, JP
et
FISCHER, AJ
et
SINGH, AJ
_____________________________________________________
HEARD
ON:
7 MARCH 2011
_____________________________________________________
DELIVERED
ON:
17 MARCH 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
[1] During June 1996 the
appellant was arraigned on charges of murder (count 1) and attempted
murder (count 2) before Lichtenberg
JP (as he then was). He was duly
convicted as charged and sentenced to life imprisonment on count 1
and 12 (twelve) years imprisonment
on count 2. His application for
leave to appeal was refused, whereupon he petitioned the President of
the Supreme Court of Appeal
(SCA). On 16 February 2010 the latter
court granted him leave to appeal to the full bench of this court
against sentence only.
This is how the matter comes before us.
[2] The circumstances
under which the appellant was convicted and sentenced are briefly
that on 8 November 1996 during the day in
Welkom the appellant, who
was driving his motor vehicle, a bakkie, was involved in a collision
with another vehicle, a Volkswagen
Kombi, driven by Mrs. C.H.G.
Oberholzer (the deceased). Following the collision, the appellant
fired shots at Mr. V.B. Shooter,
a passer-by who had arrived on the
scene shortly after the collision had occurred, injuring him
severely. When the latter fled,
he turned on the deceased who had
been sitting in her car and fired several shots at her which all
struck her, killing her instantly.
The trial court dismissed as false
the appellant’s defence that he had acted in self-defence when
shooting the deceased and
Mr. Shooter and that none of the victims
had provoked or in any way threatened him. It found that the
collision was due to the
appellant’s negligence in that he had
been driving at an excessive speed and had failed to keep a proper
lookout. The trial
court accordingly found that there had been no
justification whatsoever for the shootings and that the appellant had
a direct intent
to kill the deceased and Mr. Shooter.
[3] It is trite that
sentence is a matter that falls within the discretion of the trial
court and that a court of appeal will only
interfere if the sentence
is vitiated by irregularity or misdirection or if it is otherwise
startlingly inappropriate.
In casu
, there has been no
suggestion of any irregularity or misdirection in the sentencing
process. The target of the appeal is the sentence
of life
imprisonment imposed in respect of the murder conviction, it being
contended that it is shockingly inappropriate.
[4] When this appeal was
argued on 28 February 2011 Mr. K. Pretorius of the Bloemfontein
Justice Centre (Legal Aid SA) represented
the appellant and Mr.
Hoffman of the Office of the Provincial Director of Public
Prosecutions represented the State. Mr. Pretorius
argued that the
trial court overemphasised the interests of society and the gravity
of the offence and did not pay sufficient attention
to the personal
circumstances of the appellant, which resulted in the trial court
imposing an excessively severe sentence of life
imprisonment. He
suggested that 20 (twenty) years imprisonment would have been
appropriate. In supporting the sentence of life
imprisonment, Mr.
Hoffman submitted that the trial court had thoroughly dealt with and
taken into account all the factors relevant
to sentence and submitted
that life imprisonment was an appropriate sentence in the
circumstances of the case.
[5] During argument I
broached the subject of whether this was not a road rage case and
noted that counsel had not considered this
in their heads of
argument. We then adjourned the matter and directed counsel to file
supplementary heads of argument wherein they
dealt with this aspect
with reference to case law. Such heads of argument were filed in due
course, but when the hearing resumed
on 7 March 2011, new counsel
appeared for the parties. Mr. Van der Merwe came in for the appellant
and Mr. Lencoe for the State.
[6] Both counsel agreed
that the instant case fell within the category of cases normally
referred to as “road rage”
cases and that we should deal
with the appeal on that basis. Mr. Lencoe stood by the arguments
earlier raised by Mr. Hoffman for
the State. Mr. Hoffman had argued
inter alia
that the instant case was worse than the road rage
cases that he had been aware of and that
in casu
life
imprisonment was still an appropriate sentence. In submitting that
life imprisonment was shockingly inappropriate, Mr. Van
der Merwe
drew attention to one aspect of the case that appears not to have
been fully canvassed, if at all, during the trial,
namely, the role
of the extreme anger that seems to have propelled the appellant to
commit the offences and, in particular, its
probable causes. I shall
revert to this aspect in due course.
[7] It
is apposite to refer to what Brand JA said in
S v
McMILLAN
2003 (1) SACR 27
(SCA) at 34 f – g par. [10]:
“
Dit is waar
dat elke saak op sy eie meriete beoordeel moet word en dat vonnisse
wat in soortgelyke sake opgelê is nie die
vonnisoplegger se
diskresie bind nie, maar slegs riglyne by vonnigoplegging bied.
Terselfdertyd is dit tog 'n onmiskenbare vereiste
van geregtigheid
dat vonnisse as konsekwent waargeneem moet word. Hierdie oorweging
laat nie toe vir die oplegging van 'n vonnis
wat geheel en al uit pas
is met vonnisse in vergelykbare sake nie.”
Consistency
of punishment for comparable cases is a principle that was well
recognised and entrenched in the enactment of the
Criminal Law
Amendment Act, 105 of 1997
, which provides for prescribed minimum
sentences for specified offences. See
S
v MALGAS
2001 (1) SACR 469
(SCA)
at
476 h – 477 a.
[8] It
is therefore important to look at comparable cases. Only two cases
involving road rage were cited in the supplementary heads
of
argument. In
S v SEHLAKO
1999 (1) SACR 67
(WLD)
the accused was involved in a motor vehicle collision with another
motorist. He became angry and shot the other motorist
at point blank
range killing him. It was found that although he had not planned the
murder and acted on the spur of the moment
out of anger, the accused
nonetheless had the necessary intention to kill. He was a 37 year old
married man who had two wives and
many dependent children and also
maintained other relatives. He was a first offender. He was sentenced
to 18 (eighteen) years imprisonment.
[9] In
S v EADIE
(2)
2001 (1) SACR 185
(CPD), the accused had been angered by the
driver of the other motor vehicle, who had driven rather
provocatively and recklessly
in relation to the accused. The accused
stopped his car, took out a hockey stick and went out and found the
other driver in the
process of trying to get out of his car. The
accused beat up the other motorist with the hockey stick until it
broke, whereafter
he hit him with fists and booted feet. The other
motorist died as a result of the injuries inflicted by the accused.
The accused
was a 35 year old married man with two young children. He
had previous convictions. He was sentenced to 15 (fifteen) years, 5
(five)
of which were suspended on certain conditions.
[10] I accept that there
are factual differences between the instant case and
SEHLAKO
and
EADIE
. In
SEHLAKO
the collision was
caused by the negligence of the victim. In
EADIE
no
collision took place, the accused having stopped his vehicle on his
own as a result of the reckless manner in which the other
motorist
had been driving. In
EADIE
the accused had acted out of
extreme provocation, whereas in the instant case as in
SEHLAKO
there was no provocation. Most importantly, the instant case is
marked out by the utter senselessness and coldblooded manner in
which
the deceased was executed. Bullets were pumped into her body at close
range while she was sitting in her car, having tried
to get out of
the way of the appellant. It is completely inexplicable why she had
to be shot and killed.
[11] The point, however,
is that there is a common denominator between all these cases. In all
of them the murder was not planned.
Rather the killer acted
impulsively on the spur of the moment but with the intention to kill.
It is of little moment that the intention
in one case took the form
dolus eventualis
. In all the cases it is extreme anger at the
fault, real or perceived, of the other motorist that drove the
killer. The following
statement by Borchers J in
S v SEHLAKO
,
supra
, at 71 i – j applies to all cases of this nature:
“
As far as
the offence is concerned, the murder can on the facts before me only
be attributed to what has come to be called 'road
rage'. It was
obviously not premeditated. It arose directly from the fact that the
accused believed that the deceased was responsible
for the collision
which occurred between their respective vehicles. It was, however, a
cold-blooded and wholly unnecessary killing.”
This statement was quoted
with approval by Navsa JA in
S v EADIE
2002 (1) SACR
663
(SCA) at 693 c – d.
[12] It is apposite to
briefly sketch the personal circumstances of the appellant. He was a
41 year old married man with three minor
children. He had previously
been employed in the mining industry where, according to the trial
court, he held a responsible position.
He was a first offender.
[13] The trial court
remarked that the appellant lost his job due to no fault on the part
of his employer, but did not elaborate.
This partly explains the one
difficulty I have with this matter. This is that not much, if any,
was done to explore the probable
causes of the appellant’s
anger. It could not be assumed that it was his nature to behave as he
did. There is nothing in
the scanty history of him we know or his
conduct subsequent to the incident that would suggest that. There
must have been something
that triggered the burst of anger and
aggression. Road rage has been described as
“
a product of
the confluence of a number of factors - aggression, increasing
frustration, the feeling of power associated with driving
–
which converge to create a cauldron of stressful conditions”.
See
S
v EADIE (SCA)
,
supra
,
at 693 b – c.
There are indications
from the record of some of the factors that may have combined to
produce a cauldron of stressful conditions
on the part of the
appellant. He had just lost his employment in the very same month
during which the crimes were committed and
it appears that he was
fired. This would obviously have caused resentment and frustration.
Now his prized possession, the bakkie,
got damaged.
1
[14] With respect, the
trial court overlooked the fact that this was a typical road rage
incident, as a result of which it imposed
a sentence that was out of
step with sentences normally imposed for this type of offence, and
which was shockingly inappropriate.
We are therefore entitled to
interfere and set aside such sentence. In considering an appropriate
sentence, this court must keep
in mind what was said by Navsa JA in
EADIE (SCA)
,
supra
, at 693 h:
“
The message
that must reach society is that consciously giving in to one's anger
or to other emotions and endangering the lives
of motorists or other
members of society will not be tolerated and will be met with the
full force of the law.”
The sentence to be
substituted must also reflect our revolt at the brutal manner in
which the appellant executed an innocent, defenceless
woman. A
lengthy term of imprisonment is called for and I think 23 (twenty
three) years will be appropriate.
The following order is
made:
(a) The appeal against
sentence is partly upheld in that the sentence of life imprisonment
imposed on the murder conviction (count
1) is set aside and for it is
substituted a sentence of 23 (twenty three) years imprisonment.
(b) The appeal against
the sentence of 12 (twelve) years imposed for attempted murder (count
2) is dismissed and such sentence is
confirmed. The 12 (twelve) years
imprisonment to run concurrently with the sentence of 23 (twenty
three) years imprisonment and
the sentences to be antedated to 20
June 1996.
____________
H.M. MUSI, JP
I concur.
_______________
P.U. FISCHER, AJ
I
concur.
___________
S. SINGH, AJ
On
behalf of appellant: Mr. P. Van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Mr. M. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp
1
The
record indicates that he was particularly fond of the bakkie as
shown by the things he had fitted in it and had the issues
been
probed it may well have emerged that he was relying on it for
generating income and that perhaps it was not insured.