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[2011] ZAFSHC 88
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Van der Merwe and Others v S (A366/10) [2011] ZAFSHC 88; 2011 (2) SACR 509 (FB) (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A366/10
In the appeal between:-
ISAK SCHALK VAN DER
MERWE
…...............................
First
Appellant
JOHN ROBERTS
….....................................................
Second
Appellant
ROELOF CHARLES
MALHERBE
…...............................
Third
Appellant
DANIE GROBLER
…......................................................
Fourth
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOLEMELA, J
_____________________________________________________
HEARD
ON:
13 JUNE 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
23 JUNE 2011
_____________________________________________________
[1] This is an appeal
against sentence. The four appellants were each sentenced to a fine
of R20 000,00 or twelve months imprisonment
in default of payment. In
addition to this each of them was sentenced to a further six months
imprisonment which was wholly and
conditionally suspended. All of
them were aggrieved by the sentence which was imposed on them on 30
July 2010.
[2] They now come on
appeal with the leave to appeal granted by the court
a quo
on
31 August 2010. They were sentenced following their conviction in the
Bloemfontein District Court on 27 July 2010. They were
convicted on a
charge of
crimen inuria
committed at the University of the
Free State in Bloemfontein during September 2007. The crime flowed
from a video recording which
the appellants collectively produced
while they were resident inmates of the Reitz Hostel at the
university.
[3] The appellants were
charged with the crime of
crimen iniuria
. They pleaded guilty
to the charge and a statement in terms of
section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, was submitted on their behalf.
Neither the version of the state nor that of the defence was orally
narrated. Subsequent to the
verdict, no oral evidence was given by or
on behalf of any of the appellants in mitigation of sentence.
Similarly no such
viva voce
evidence was given by or on behalf
of any of the complainants in aggravation of sentence.
[4] The record consists
of the following relevant documents on which both the verdict and the
sentence components of the judgment
were crafted. The written
indictment, the written plea and explanation, the appellants’
heads of argument plus seven annexures
thereto, the video taping and
a transcript of its soundtrack. By and large the available material
of the evidence placed before
the court
a quo
was documentary
in nature.
[5] The prelude to the
charge was almost a one page document. I deem it expedient to sum up
the charge. However, I think no serious
harm will be done if I skip
the prelude and briefly capture the essence of the charge. The
prosecution alleged that the four appellants
unlawfully and
intentionally impaired the human dignity of the four complainants at
the University of the Free State in Bloemfontein
between 31 August
2007 and 1 April 2008, both dates exclusive; that the appellants did
so by preparing “a meal of some sort”
or by brewing a
concoction of some sort; that they urinated into the plates
containing the brew so concocted; that they offered
such concoction
to the complainants to ingest; that they videotaped the complainants
as they were vomiting the concoction so ingested
and referred to the
complainants as difebe, in other words, whores (sefebe –
whore); that the appellants depicted the complainants
as inferior and
unintelligent human beings; thereby impairing their human dignity and
finally, that by impairing the human dignity
of the complainants as
they did, the appellants extensively or tacitly impaired the human
dignity of the blacks in general or the
black students as well as the
black personnel of the University of the Free State in particular.
[6] It will be readily
appreciated that I have paraphrased the wording of the charge sheet.
In case I have done any violence to
it, I apologise. The idea was to
elucidate and not to brew yet another distasteful controversial
concoction. Hopefully my good
intentions will also be appreciated.
[7] The appellants
pleaded guilty to the charge of
crimen iniuria
. Their common
plea was an eleven page document. The circumstances which they said
were prevailing at the time they committed the
crime, differed from
those outlined in the charge sheet in certain important respects. It
follows, therefore, that the factual
foundation of their plea was not
strictly in accordance with that of the prosecution which underlined
the charge. However their
plea explanation and the charge sheet
overlapped to a certain extent. On each side of that common ground,
was an exclusive zone.
In the one zone were the facts alleged by the
prosecution, but not admitted by the defence. In the other zone were
facts alleged
by the defence and not disputed by the prosecution.
When the plea, as explained, was accepted, the exclusive zone of the
prosecution
was completely erased, but the exclusive zone of the
defence was preserved and completely incorporated into the common
ground.
The common ground so enlarged became common cause between the
prosecution and the defence.
[8] The appellants were
convicted on their plea and sentenced as follows:
“
Each accused
is fined R20 000.00 (twenty thousand rands) or to undergo 12 months
imprisonment in default of payment of fine. In
addition, each accused
will undergo six months imprisonment wholly suspended for five years
on one of the following conditions:
1. That accused is and/or are not
convicted of crimen injuria or criminal defamation committed during
period of suspension,
OR
2. That the Equality Court does not,
in terms of
Section 21
of Promotion of Equality and Prevention of
Unfair Discrimination Act, 2000 (Act 4 of 2000), determine that
accused has, in terms
of Section 7 of the said Act, unfairly
discriminated against any other person/s on the grounds of race,
which discrimination is
committed during period of suspension.”
[9] The grounds of the
appeal were stated as follows in Afrikaans:
“
Die
voorgenome appèl is gerig teen die geheel van die vonnis
opgelê en op die volgende gronde:
(a) Die vonnis is buite verhouding tot
die misdryf in die konteks daarvan en die relevante omstandighede;
(b) Die boete oorskry die jurisdiksie;
(was later abandoned)
(c) Die gebruik van die bewysstuk
persartikel om die gemeenskapsoortuiging te weerspieël tot
nadeel van die Beskuldigdes, was
nie veroorloof nie;
(d) Die pleit en feite waarop dit
berus het, was nie gebaseer op ‘n rasse belediging nie –
die gedrag waarop skuldig
gepleit is het die eer van die klaers as
mense geskend;
(e) ‘n Vonnis van opgeskorte
gevangenisstraf was nie gepas nie en die opskortingsvoorwaarde
gekoppel aan Artikel 21 van Wet
4 van 2000 in besonder nie ‘n
toelaatbare of gepaste voorwaarde nie.”
[10]
As regards the crime, the court
a quo
remarked:
“
It equally
remains abundantly clear that complainants were manipulated and
tricked into eating what contained an ingredient of urine
or simulate
urine.”
[11]
The appellants contended that as a whole the sentence actually
imposed was so significantly at variance with the sentence which
ought properly to have been imposed and that it could not be
described in any other way than a misdirection, be it an error or
irregularity, on the part of the court
a
quo
, which had a significant adverse
impact on the actual sentence imposed.
[12] Mr. Kemp, counsel
for the appellants, submitted that the variance was so huge that it
indicated an unreasonable exercise of
the sentencing discretion. Mr.
Kruger, counsel for the respondent, disagreed. He submitted that
taking into consideration the gravity
of the offence and all the
relevant circumstances, it could not be contended, as the appellants
did, that the sentence imposed
was disproportionate to the crime
committed.
[13]
In general, the sentencing of an offender is pre-eminently a matter
for the discretion of the trial court -
S v GIANNOULIS
1975 (4) SA 867
(AD) a
t 868 F per Holmes JA.
Sitting as we are in a appellate mode, we cannot interfere with the
exercise of the sentencing discretion
entrusted to the trial court
merely because we would have exercised the discretion differently if
we had sat as the court of first
instance -
S
v SALZWEDEL AND OTHERS
2000 (1) SA
786
(SCA) 790 par. [10] per Mahomed CJ. Notwithstanding our limited
appellate powers to interfere, there are ways in which it may be
shown that the sentencing discretion was, as a result of material
misdirection, not properly exercised to warrant appellate
interference
and amelioration of the sentence imposed –
S
v BLANK
1995 (1) SACR 62
(A) at 65
h.
[14]
In
S v PILLAY
1977
(4) SA 531
(A) at 535 E – F Trollip JA had this to say about
the word misdirection:
“
Now the word
"misdirection" in the present context simply means an error
committed by the Court in determining 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 a nature,
degree, or seriousness that it
shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such a
misdirection is usually and conveniently termed one that vitiates the
Court's decision on
sentence. That is obviously the kind of
misdirection predicated in the last quoted
dictum
above:
one that "the dictates of justice" clearly entitle the
Appeal Court "to consider the sentence afresh"
(cf.
Nel's
and
Hockley's
cases,
supra
).”
[15] In
S v
KGOSIMORE
1999 (2) SACR 238
(SCA) at 241 G it was pointed out
that there were only two basic ways in which to exercise a
discretion:
“
Either the
discretion was properly and reasonably exercised or it was not. If it
was, a Court of appeal has no power to interfere;
if it was not, it
is free to do so.”
[16] In the original
reasons for sentence, the learned district magistrate, while dealing
with the aggravating factors said that
the case was dominated by
negative racial connotations. He then went on to say:
“
That this is
a racially motivated crimen injuria admits of no doubt. Even more
telling is the fact that black were, according to
the admissions of
the accused, targeted by virtue of their colour for the accused to
reach their destination.”
These comments were made
before the appellants were sentenced.
[17] In the supplementary
reasons for sentence, the district magistrate, while dealing with the
grounds of appeal commented as follows
about the charge sheet:
“
4.1 The
charge (as embodied in the charge sheet) to which all 4 accused
pleaded guilty read as follows at the end ‘... and
therefore
the dignity (dignitas) of the complainants and/or black students
and/or black personnel of the University and/or black
people in
general were impaired’.
4.2 Immediately above this, the charge
alleged ‘... and/or to depict the complainants as inferior and
unintelligent human
beings...’.
4.3 It is common cause that all
complainants are blacks and all accused white. It is also common
cause that all accused did not,
in their Section 112(2) of the
Criminal Procedure Act, 1977 (51/1977) plea explanation, controvert
these two allegations which
formed the crux of the charge against
them.”
The comments were made
after the appellants had been sentenced.
[18] Still in his
supplementary reasons the learned district magistrate went a step
further and commented as follows about the plea
explanation given by
the appellants:
“
4.4 On the
contrary, the accused expressly and/or impliedly acquiesced both
allegations in their plea explanation in the following
paragraphs:
Paragraph 1.2:
The issue of
integration
of the
Reitz Residence was a contentious and emotional subject ... Even for
the rugby
a quota system
was introduced ... Many residents
were
dissatisfied
with the issue (my underlinings).
Paragraph 1.5:
The basic theme and purpose of the
video was to demonstrate how ...
integration
of the Reitz
residence would be and that the University’s decision
to
integrate Reitz was out of place
(my underlinings).
Paragraph 1.6:
The complainants were asked to
participate because they were the only
black persons
available
... (my underlining).
Paragraph 1.7:
The video then consists of sketches
where the complainants play the role of
black residential students
... (my underlining).”
[19] The first of the
aforegoing three passages demonstrated that before sentencing the
appellants, the court
a quo
took into account certain racial
averments contained in the charge sheet and treated or used or held
them against the appellants.
The second and third passages indeed
verified or supported the observation that the court
a quo
went beyond the plea explanation and revisited the charge sheet. It
was apparent, upon careful reading of the last two passages,
which
reflected the views of the court
a quo
subsequent to the
imposition of the sentence, that the trial magistrate believed that
he was still entitled to have regard to all
the factual averments
embodied in the charge sheet. The trial magistrate reckoned that he
was entitled to do so on the grounds
that such factual allegations
had not been specifically refuted by the appellants by way of their
plea explanation or in any other
manner.
[20] The aforegoing
reasoning of the court
a quo
was, with respect, incorrect. The
sentence imposed on the appellants should have been premised on the
factual foundation as set
out in the plea explanation. The appellants
did not plead as charged. Had they done so, the trial court would
have been perfectly
correct to rely on all the facts as set out in
the charge sheet. But they did not merely plead guilty. They went a
step further.
They gave an elaborate explanation. Their explanation
embodied the exclusive facts on which they pleaded guilty. The
respondent
state accepted their plea. The court
a quo
itself
neither questioned the correctness of the divergent facts, as alleged
by the appellants, nor expressed any reservation about
their
unqualified acceptance by the respondent.
[21] In those prevailing
circumstances the court
a quo
could not have approached the
matter of sentence anyhow save on those facts plus the undisputed
facts whereby those facts were
amplified by the prosecution and
defence during the course of the closing argument –
S v
JANSEN
1999 (2) SACR 368
(C) 370 – 371;
S v
CALENI
1990 (1) SACR 178
(C);
R v SHUBA
1958
(3) SA 844
(C).
[22] It is clear and
obvious from the original as well as the supplementary reasons for
the judgment that the court
a quo
did not so approach the
business of sentencing on such factual premise. On the contrary, the
court
a quo
reckoned that because the appellants had not
expressly and pertinently taken issue with the racial averments
embodied in the charge
sheet, those averments were tacitly admitted
and thus constituted the facts on which sentence could be validly
premised. In my
view the reasoning of the court
a quo
was
materially flawed. This was the first difficulty.
[23] The court
a quo
approached the issue of sentence from an obtuse angle that the
appellants had made themselves guilty of the criminal offence of
crimen iniuria
as against the blacks in general and in
particular the black students and personnel of the university in
question. From that finding
with a very wide range, the court
a
quo
proceeded to punish the appellants. I am persuaded that the
finding relative to racism, which the court
a quo
regarded as
a strongly aggravating factor, was a monumental misdirection. This
was the second difficulty.
[24] The plea was also
characterised by its narrow scope which was restricted to the four
complainants. Careful scrutiny of the
video taping revealed that
during the encounter or drama the appellants referred to one of the
complainants as “sefebe”;
that none of the complainants
spontaneously took any strong exception to the use of the word; that
none of the complainants withdrew
from the video shoot; that they
continued to actively participate in the video taping and that one of
the complainants told one
of the appellants that he was talking
“crap” and none of the appellants objected.
[25] The appellants
pleaded that although they considered the use of the word “sefebe”
to be offensive, they did not
directly intend offending the
complainants. Notwithstanding their contention that
dolus
directus
, in other words, direct criminal intent was lacking,
they pleaded on the basis of
dolus eventualis
, that they
impaired the dignity of each of the complainants by referring to them
and to them alone as whores.
[26] When the offensive
word is objectively considered within the context of the playful
circumstances in which it was used, it
becomes apparent that the
impression which the video would create to the viewers, and in fact
did create, was that the appellants
deliberately assailed the dignity
of the complainants. This was probably so perceived by the world at
large especially by those
viewers who understood Sesotho language but
not the Afrikaans language. That much the appellants frankly
acknowledged. They acknowledged
that objectively seen the impression
created was that they indirectly impaired the dignity of the
complainants, although impairing
it was subjectively not on the
forefront of their minds.
[27] There is much to be
said for this contention regard being had to the jovial atmosphere
prevailing at the time the offensive
word was used. In saying so I am
fortified by the fact that by the look of things, the complainants
did not immediately feel offended
at the time the offensive word was
used. It appears from the plea explanation that there was no formal
admission made by the appellants
acknowledging criminal intent in any
form (
dolus directus
or
dolus eventualis
) to impugn the
dignity of black students in particular or blacks in general. The
facts were not amenable to the finding that, from
the impairment of
the dignity of the complainants, it could be extrapolated, without
more, that the appellants also had the criminal
intent to impair the
dignity of any other person who happened to share the same race as
the complainants. In my view, there was
no connective tissue at all
to sustain the finding. An impairment of the dignity of complainants
was not an impairment of the dignity
of every other black.
[28] Notwithstanding the
aforegoing, the court
a quo
indeed approached the issue of
sentence as if there was an admission to that effect by the
appellants. The four appellants were
whites. The four complainants
were blacks. The appellants were students. The complainants were not.
The appellants were opposed
to the idea of having black and white
students staying together on campus. The complainants did not have a
direct and substantial
interest in the matter. On account of these
contrasting features the court
a quo
deduced that the
appellants were guilty of
crimen iniuria
as against black
people as a whole. Indeed the court
a quo
then approached the
issue of sentence on that general basis. Ultimately the appellants
were punished on that broad basis.
[29] They were then
retributively and deterrently punished for what the court
a quo
saw as a crime against the black people of this country. The
difficulty about such inferred crime was that it could not be
sustained
by the facts as pleaded and accepted. The pleaded and
accepted facts did not expressly admit or tacitly profess such
criminal intent
on the part of the appellants. Moreover, it could not
be found, beyond reasonable doubt, that their conduct implicitly had
such
an extended effect. Mr. Kruger conceded that the apparent
reference to the case of
S v SCOTT-CROSSLEY
2007 (2)
SACR 470
(SCA) by the court
a quo
was factually misplaced.
[30] It has been held
that where an accused pleads guilty and hands in a written statement
in terms of section 112(2)
Criminal Procedure Act No. 51 of 1977
detailing the facts on which his plea is premised and the prosecution
accepts the plea, the plea so explained and accepted, constitutes
the
essential factual matrix on the strength of which sentence should be
considered and imposed –
S v JANSEN
,
supra
,
at 370 g – 371g. Such an essential factual matrix cannot be
extended or varied in a manner that adversely impacts on the
measure
of punishment as regards the offender. The plea, once accepted,
defines the
lis
between the prosecution and the defence. Once
the parameters of the playing fields are so demarcated, it becomes a
foul play to
canvass issues beyond. The rule of fair play has to be
strictly enforced. In this instance it was not.
[31] The appellants
contended that it was not a punishable criminal offence for them to
express their opinion concerning their opposition
to the university’s
policy on student integration. Indeed this is so. They, as white
students, were of the opinion that the
“forced”
introduction of black students into what they regarded as their
exclusive and separate white residential enclave,
would destroy the
traditions and nature of their residence, whatever those traditions
and nature were. However one may disagree
with this sentiment, which
smacks of racial intolerance and however large the racially tolerant
and reasonable sector of the nation
may condemn the separatist
attitude of the appellants as a very irrational, insensitive and
flawed sentiment, they cannot be denied
the right to express such
opinion. The right to express one’s opinion is a basic right
constitutionally recognised –
vide
section 15 and 16 of
the 1996 RSA Constitution.
[32] What was
impermissible in the exercise of the right to freedom of expression
was the infringement of the dignity of the four
complainants by the
four appellants in the demeaning manner of the expression they
adopted to dramatize their protest against the
student integration
policy of the university. The right to freedom of expression does not
extend to advocacy of hatred or cynical
advocacy of hatred disguised
as innocent drama based on race.
[33] In
S v HOHO
[2008] ZASCA 98
;
2009 (1) SACR 276
(SCA) on 288 par [29] Streicher JA had this to say
about everyone’s right to freedom of expression and everyone’s
fundamental
right to human dignity:
“
But the
freedom of expression is not unlimited. Although it is fundamental to
our democratic society it is not a paramount value.
It must be
construed in the context of other values such as the value of human
dignity.”
[34] On the one hand the
controversial video visually depicted one of the appellant’s
urinating into the concocted brew. The
essential factual matrix as
pleaded and accepted was that none of the appellants actually
urinated into the assorted meal, consisting
of leftover’s of
meat, garlic, Oros and some other unknown ingredients as the video
suggested; that the appellants play acted
the urination scene by
means of a plastic bottle containing water which was hidden in the
pants of one of the appellants; that
he mischievously pretended to be
urinating into the concocted brew by squeezing the hidden plastic
bottle. That was the first very
important dimension of the scene
which deluded the viewers.
[35] On the other hand
the video also visually depicted the complainants throwing out the
urine contaminated foodstuff. The essential
factual matrix as pleaded
and accepted was that none of the complainants really ingested
whatever the appellants had concocted
and offered to them; that the
complainants were expressly asked by the appellants not to eat, let
alone to swallow the mixed leftovers
or concocted brew; that the
complainants were not at all nauseous as the video suggested; that
they mischievously faked vomiting
and that they were also play
acting. That was the second very important dimension of the scene,
which also deluded the viewers
and sparked the global outcry.
[36] What emerges from
the aforegoing two paragraphs was that the whole visual depiction was
unreal. The whole urination saga was
optical delusion. On the facts,
I am persuaded firstly that, in truth and in fact, there was no urine
ingredient in the concoction.
Secondly, I am convinced that there was
no concoction ingested by the complainants. The vomiting saga was
equally and optical delusion.
Those two features of the case were of
utmost importance as regards the issue of sentence. Their
significance lay in the fact that
they certainly reduced the moral
blameworthiness of the criminal conduct of the appellants. Put
differently: the gravity of the
iniuria
was really not as huge
and appalling as it seemed or was thought to be.
[37] Obviously the court
a quo
could not come to terms with these hard facts. The
undisputed facts strongly militated against the finding that the
complainants
were deviously and inhumanely made to actually ingest
what was deliberately contaminated with an ingredient of human urine.
The
crime we are here dealing with was video taped by the appellant’s
themselves. The entire drama was video taped by one of the
appellants
on the scene of the crime. The video was viewed in court before the
sentence was imposed. One of the complainants was
employed as a
cleaner at Reitz Hostel. The appellants were senior inmates of the
particular hostel. With the aid of the cleaner
in question, the
appellants recruited three more black workers to participate as black
students in the production of a video for
the purpose of the
so-called initiation culture. Besides the use of the aforesaid
offensive words no insulting racist remarks were
hurled at the
complainants. It was that video which was globally distributed and
that was ultimately viewed in the court
a quo.
That court
witnessed the incident as it unfolded.
[38] Certain scenes from
the video obviously haunted the mind of the learned magistrate and
seemingly filled him with revulsion
and indignation. He became
emotionally troubled. He was deeply hurt. I can understand why. The
manner in which the appellant conducted
themselves, the demeaning
roles they assigned to the unwary and unsophisticated complainants,
the criteria used to select them,
the clandestine filming of the
urination episode behind the backs of the unsuspecting complainants
and the perceived racist motive
for the dramatisation of the
appellant’s opposition to the deracialisation of the student
residence(s) – all these
factors evoked, on the part of the
court
a quo
, and probably as well as on the part of many
viewers of the video, memories of deep and hurtful divisions of our
recent past, the
past that was characterised by horrendous violations
of the human dignity of the blacks by the apartheid regime.
[39] About eight or so
years ago Marais JA commented as follows in the case of
S v
SMITH
2003 (2) SACR 135
(SCA) on 138 par. [4] about judicial
mind beclouded by emotions induced by viewing the video of brutal
violation of human rights:
“
[4] Yet, for
a Court intent upon dispensing justice in a calm and dispassionate
manner, the
emotions
which well up on viewing the videotape can be a hindrance rather than
a help, if not properly controlled. That does not mean, of
course,
that a justified sense of
indignation
at the gross affront to society's sensibilities has no place at all
in sentencing an offender. It undoubtedly has.
But
it cannot be permitted to so overwhelm all other factors which are
relevant to just sentencing that they are virtually ignored.
”
S v SMITH
2003 (2) SACR 135
(SCA) on 138 par [4].
[40] In this instance the
video depiction of the crime, within the context of the sentencing,
was more significant for what it did
not reveal than what it did. In
the first place it is of great significance to point out that after
viewing, the trial magistrate
himself acknowledged that he did not
really observe the actual urination. Such observation from the bench
materially supported
the version of the appellants that they did not
actually urinate into the concocted brew. That being the case, the
court
a quo
should have found that the urination scene was
indeed simulated, as the appellants averred.
[41] In the second
instance no actual eating of the brew whatsoever was depicted or
could be witnessed by viewing the videotaping.
The undisputed fact
was that the complainants were never made to drink the concoction.
The vomiting was simulated just as the urination
was. Virtually
nothing contaminated or uncontaminated, was eaten or ingested.
Although very unpalatable, the great variety of the
constituent
ingredients of the concoction did not include human urine as at first
blush might have appeared. Let us for the sake
of argument assume
that the appellants seriously contemplated humiliating the
complainants and that they in fact urinated into
the brew. If that
was indeed the case then it seemed to me rather improbable that the
appellants would have defeated that purpose
by turning around and
asking the complainants not to ingest the concoction. If dehumanizing
the complainants was indeed within
their serious contemplation, the
appellants would not have warned them not to ingest the concoction.
[42] But even if the
urination was real as the court
a quo
was inclined to believe,
the fact remains that the complainants did not eat the stuff. The
facts as pleaded and accepted supported
the contention that the
urination, ingestion and vomiting were all simulated. Simulated
offensive conduct towards the complainants
was, without their
consent, made to look real. In that secret depiction laid the
iniuria
– indeed the video was not evidence of the
iniuria
- it
was
iniuria
. It has to be accepted that, as the young people
would say, the two groups were performing, in other words,
play-acting. To the
extent that the court
a quo
found
otherwise, I am of the view that it materially erred.
[43] However, by secretly
video-taping the urination scene without the knowledge and consent of
the complainants the appellants
betrayed the complainants in a big
way. It was precisely the secrecy around the urination scene which
made the black playmates
of the appellants to feel very badly
betrayed. It rendered the motives of the appellants suspect.
Everybody who fleetingly viewed
the video became sceptical about the
motive of the appellants. The secrecy fuelled the scepticism and
precipitated this global
saga. Their secret conduct in this regard
was dehumanising, degrading, humiliating and offensive. Such
ignominious treatment of
one by another has all the criminal
hallmarks which underscored the essence of the crime of
iniuria
.
Everyone is entitled, as a matter of right, to freedom from such
contumelious treatment.
[44] This completes my
consideration of first attack. I am persuaded that some material
misdirection was made concerning the nature
and seriousness of the
crime. In view of this conclusion alone I am inclined to uphold the
appeal. Strictly speaking, it is unnecessary
to consider the two
further attacks. However, I deem it advisable to deal with them in
view of the huge public interest in this
appeal. I suppose courtesy
to the trial magistrate requires that we address all the issues
raised.
[45] As regards the
interest of society, the court
a quo
commented:
“
The defence
tendered this document to prove that the accused have already
suffered a widespread condemnation and utter disgust around
the
globe.”
[46]
During argument in the court
a quo
,
Mr Kemp handed in an article (exhibit “d”) with the
consent of Mr Kruger. Counsel did so for the purpose of demonstrating
that the appellants were reviled, castigated, labelled as outcasts
and depicted, in the press and public media, as extremely loathsome
persons who deserved very severe punishment. The existence of the
article and its contents
per se
established the fact of how the appellants were
portrayed. The existence of the article did not however,
per
se
establish the truth of the contents
of the article. The handing in of the article was not intended to
serve as the truth of the
averments made therein. The article was
handed in for a specific limited purpose as agreed between the
defence and the prosecution.
[47]
The views expressed in the article by some prominent members of the
public were basically hearsay statements. None of the persons
to whom
those views were attributed to by the journalist testified.
Notwithstanding this the court
a quo
extensively quoted passages from the article. The
contents of the article were then relied upon as being true. The
court
a quo
regarded
the views expressed in the article as a true reflection of the legal
convictions of the community. Those views adversely
influenced the
determination of a balanced sentence, and led to the retributive
sentence which was ultimately imposed. The court
a
quo
seemingly reckoned that because the
defence itself handed in the exhibit, it thereby admitted the
contents thereof as true; that
the exhibit was part of the defence
case and that the court was thus entitled to rely on those views as
factors aggravating the
sentence.
[48]
That the court
a quo
could
not do. In the first instance, it was not fair to the appellants to
do so, given the specific purpose for which the press
article was
exhibited.
ADMINISTRATOR, TRANSVAAL, AND OTHERS v
THELETSANE AND OTHERS
[1990] ZASCA 156
;
1991 (2) SA 192
(A)
;
PAYSLIP INVESTMENT HOLDINGS CC v Y2K
TEC LTD
2001 (4) SA 781
(C) at 788;
SOUTH PENINSULA MUNICIPALITY v EVANS AND OTHERS
2001 (1) SA 271
(C)
. It was also unfair to
accentuate the punitive aspects of such public opinions without
affording the defence an opportunity of
dealing with those aspects
For instance, if the defence was forewarned, it might have asked that
such people be subpoenaed in order
to test the veracity of their
untested public opinions. The interest of justice dictated that the
court
a quo
should
have invited the defence to make an input regarding such aspects if
it wished to use then to aggravate instead of mitigating
sentence. As
a result of the press article the court
a
quo
was swayed to conclude that the
appropriate sentence should be retributive. Put differently, the
press article was used contrary
to the purpose for which it was
intended and exhibited.
[49] Secondly, there are
numerous dicta in decided cases which warn against the assumption
that press articles and press reporting
accurately reflect the
convictions of the relevant (reasonable and fair) sector of the
community. Whether the exhibit in question
indeed portrayed the legal
convictions of our society was debateable.
[50]
Thirdly, the critical comments in the article which were relied upon
by the court
a quo
were
not based on the facts in the context placed before the court. On the
contrary, those comments were based on simulation as
depicted on the
videotaping. We now know that, in truth and in reality, the
appellants did not urinate in the brew and did not
force the
complainants to ingest it. Yet, the views expressed in the article
and relied upon were based on that unreal foundation.
[51]
Fourthly, the court
a quo
,
assumed that those critical views expressed in the press article
would not have been different had those prominent individuals
known
the true facts. The court
a quo
recognised, albeit reluctantly, that the exhibit
was not based on true facts. Despite that the court
a
quo
still believed that the true facts
would not have changed such views. Such a rigid stance regrettably
tended to suggest that the
court
a quo
had lost objectivity. Given the profiles of those
particular individuals and the general belief that ours is a rational
public I
have difficulty with the view that the knowledge of the true
facts would not have made them think differently. If the unreal
situation
could be superlatively described as a crime which invokes
utmost moral indignation countrywide, how else could the real
situation
have been described if human urination had indeed been
added to the brew and the brew actually ingested?
[52]
The widespread anger, revulsion and natural indignation was
apparently fuelled by the widespread ignorance of the true facts.
Those comments by the court
a quo
seemed to suggest that the version of the
appellant about the simulated urination was merely accepted at face
value. It has to be
borne in mind that the complainants or the
respondent could not positively disprove such a version. Moreover,
the version was more
probable than not as I have already indicated.
[53] The appellants
asserted that the urination was simulated and explained why. Consider
the toy-gun scenario. If X used a fake
firearm to rob Y but A used a
real gun to rob B, the interests of justice dictate that there be
some differentiation made when
the issue of sentence is considered.
It follows, as a matter of logic, that a simulated conduct does not
have the same adverse
impact on the interest of society. A rational
public would expect the court to impose a more severe punishment for
the actual criminal
misdeed committed than for a simulated criminal
conduct.
[54]
This completes my consideration of the second attack concerning the
interest of society. I am of the view that the interest
of society
was unduly overemphasised. The misdirections were material. Public
opinion was improperly relied upon. See
S
v MAKWANYANE AND ANOTHER
[1995] ZACC 3
;
1995 (6)
BCLR 665
(CC).
[55] As regards the
appellants the court
a quo
collectively considered their
personal circumstances as follows:
“
I will start
with the personal circumstances of the accused. Their ages range from
24 to 27 hence they can meticulously be all regarded
as youths.
Accused 1 and 3 were suspended from academic activities consequential
upon this case. Accused 2 and 4 had the fortune
of graduating. They
are all working with a salary of R4 200 being the lowest earning to
R10 000 being the highest. Accused 4 was
precluded from playing rugby
due to this case.
All the accused have shown contrition
by apologising publicly in the media, by apologising with written
correspondence to the Rector
of the University, copies of which are
tendered as exhibits in court, and also by extrapolating apology in
their plea explanation
in court. They have all pleaded guilty,
thereby obviating a lengthy trial. That would probably trigger
hostile feelings and spark
some ordeal for complainants. They are
more than readily available for victim/offender mediation and the
exercise was stifled at
the instance of complainants. Supporting
documents were also presented to the court by Adv. Kemp.
There is also overwhelming documentary
evidence depicting their crucification by the media wherein they are
labelled as faces of
cruelty, racists and sadists. The accused and
their parents suffered a widespread abhorrence and rejection, to such
an extent that
accused 4 and his family were jettisoned from their
church of many years.
At a certain stage an unpleasant and
unexpected scene unfolded whereby the accused’s photos and
residential places were massively
and repulsively published in the
press. Last but not least, the stigmatisation attaching to them will
painfully endure for long,
if not forever.
The cumulative effect of the accused’s
personal circumstances yield an irresistible impression that given a
second chance,
even if it carries a high price, they can still
achieve prominent citizenry of this country. The rehabilitative and
measure of
mercy principle of sentence thus, in my view, ought to
play a pivotal role herein.”
[56] The first appellant
was born on 14 September 1985. He was 21 years of age at the time he
committed the crime and 24 years of
age at the time he was sentenced.
He originated from Christiana in North West. He was a resident
student at the University of the
Free State. He was studying
agriculture. He was arrested in 2008. In February 2008 he was
summarily suspended when the video was
published in the mass media.
He was in his last year of study at the time. As a result of the
suspension he was unable to complete
his BA Agric Degree in 2008. He
remained suspended in 2009. The negative publicity of the case
pending against him affected his
employment opportunities. During the
period of his suspension he worked on his father’s farm where
he earned R4 500,00 per
month.
[57] The second appellant
was born on 27 March 1983. He was 24 years of age at the time he
committed the offence and 27 years of
age at the time he was
sentenced. He hailed from Hoopstad in the Free State. In 2007 he was
a resident student at the same university.
In that same year he
completed his studies and obtained a B.Com (Accounting) degree. He
was arrested early in 2008. By then he
was no longer a student. He
was employed as a farm manager where he earned R10 000,00 per month.
[58] The third appellant
was born on 3 March 1985. He was 22 years of age at the time he
committed the offence and 25 years of age
at the time he was
sentenced. He came from Hertzogville in the Free State Province. He
was a resident student at the university
when the controversial video
was released in the mass media. At the time he was in his final year
of study. Soon thereafter he
was summarily suspended. His study
career was placed on hold as a result of his suspension. The
suspension endured for two years
from 2008 to 2009. The negative
publicity of the case limited his employment opportunities. He was in
the temporary employ of his
father on a farm during the suspension.
He earned R4 200,00 per month.
[59] The fourth appellant
was born on 7 March 1983. He was 24 years of age at the time he
committed the offence and 27 years of
age at the time he was
sentenced. He was a foreign student from Windhoek in Namibia. In 2007
he was also a resident student at
the university. He was in his final
year of study. Precisely what he was studying does not appear on the
record. In 2008 when he
was arrested he was no longer a student. He
was working in Namibia. He earned R9 000,00 per month. The negative
publicity of the
case also put his job at risk. His employer warned
him that his continued employment depended on the verdict of this
case. He was
a high-level rugby player. On account of his involvement
in this case, he was precluded from playing rugby pending the outcome
of the case.
[60] It will be readily
appreciated that all the appellants were relatively young at the time
they committed the crime. They were
21, 24, 22 and 24 years of age.
They, with the exception appellant no. 4, lived and probably grew up
on the farms. The transformative
values of our fairly new culture of
human rights do not rapidly permeate all the social spheres of our
society at the same pace.
Some communities embrace those values
faster than others. Some children grew up in more conservative rural
communities than others.
Some children grew up in more progressive
urban communities than others. On account of the exposure to certain
social, political
and economic environment some children embrace
those values faster or slower than others. To a greater or lesser
degree this may
invariably determine a child’s respect or
disrespect for the natural dignity of fellow human beings.
[61] The appellants were
all university students at the time they impaired the dignity of the
victims. The second and the fourth
appellant were in the last year of
their studies in 2007. When the iniurious video taping was first
published or first came to
the attention of the university and the
world at large in 2008, they were no longer students. They had
already graduated. Consequently,
the university could do nothing
about them. It no longer had any disciplinary jurisdiction over them.
[62] The first and the
third appellants did not complete their studies in 2007. When the
contumelious videotape was first published
in 2008 they were still
students. The whole thing exploded in their face right there and then
like a powerful bomb. They were then
in the final year of their
studies. They were on the verge of graduating. Not only did they and
their co-appellants impair the
dignity of the four victims, but they
also seriously dented the image of their university in the process.
The university did not
take kindly to their transgressions. They were
summarily suspended. As a result of the suspension they could neither
complete their
studies in 2008 nor in 2009. Their tertiary careers
were effectively derailed and retarded by two academic years. By the
time the
university suspended them in February 2008 they had already
paid their annual fees. They did not demand any refund of the money
which must have been a substantial amount. Instead they asked the
vice chancellor to use the money for the benefit of those students
less privileged than them.
[63] At the time they
were sentenced in 2010, the appellants were all gainfully employed.
On the one hand the first appellant and
the second appellant were
earning R4 500,00 per month and R4 200,00 per month respectively. On
the other side of the coin was the
situation of their co-appellants.
The second appellant and the fourth appellant were earning R10 000,00
per month and R9 000,00
per month. They were graduates whereas the
appellants were not.
[64] I guess I have
adequately contrasted the profiles of the appellants. Now I turn away
from their personal contrasts to their
personal similarities. The
appellants were apparently all single and childless. They were all
first offenders. They all publicly
apologised to the victims, in
particular, the university and to the public in general.
[65] They were labelled
as cruel, sadistic and inhuman racists who forced the victims to
ingest a filthy concoction doused with
human urine. They were reviled
in the media, socially ostracised and globally condemned. The fourth
appellant was precluded from
playing rugby on account of the negative
publicity of the case with which his name was associated. Moreover he
was excommunicated
by his congregation from church on religious
grounds for the same reason. They all pleaded guilty. They all showed
and expressed
genuine remorse. They have all made peace with all the
victims. They were all playing together with all the victims at the
time
the offensive video taping was done.
[66] Lest it is
forgotten, let me accentuate that there was no real urination, no
real ingestion and no real vomiting. All these
were share acts of
playful simulation. It was not shown that the appellants had direct
criminal intent to dehumanise the victims
in such a disgusting and
appalling manner. They did not deliberately and directly intend to
harm the dignity of any of the complainants.
This lack of direct
intention distinguished their matter from the vast majority of
classic cases of
crimen iniuria
. This was a very rare
iniurious matter. The conviction based on
dolus eventualis
is
generally characterised by a lesser or lower degree of moral
blameworthiness and a leniency of sanction.
[67] The aforegoing
concludes my synopsis of significant factors which compellingly show
that the sentence imposed on the appellants
was disturbingly
disproportionate to the misdeed they playfully and indirectly
committed. The iniurious video was not instantly
released and when it
was eventually released, some five or so months after it was
produced, the appellants were not behind its
distribution. Those two
facts significantly supported the submission that they did not by
video taping the incident, primarily
scheme to violate the dignity of
the victims.
[68] By the time they
were sentenced, the appellants, especially the first appellant and
the third appellant, had already suffered
severe punishment. They
will all probably continue to suffer for many more years to come. The
social stigma associated with their
conduct is not likely to
disappear very soon.
[69] There were
aggravating factors as well. The victims deserved better treatment
than they received from the appellants. They
were adults with
children as old as and even older than the appellants. It is
something unheard of in any white or black culture
for a man as young
as the appellants to refer to an adult as a whore. That is simply not
on. It does not get any better merely
because it was all in the
course of playing. The relationship of familiarity was cynically
abused.
[70] The intellectual
disparity between the two groups dictated that the appellants who
were on a far higher plane of intellect
than the victims, should have
behaved more courteously than their victims. The fact that one of the
complainants also used foul
language during the course of the
interaction served as no sound excuse. The appellants were opposed to
the university policy of
deracialization of the campus hostels. They
wanted to register their protest. The policy aimed at bridging the
racial divisions
of the past. It appeared to me that the underlying
reasons were to dismantle the artificial barriers that had kept the
students
over there apart for decades on racial grounds so that they
could learn to live together in harmony now and in the future as
adults.
As I see it, this unfortunate incident was sparked off by an
irresponsible, delinquent and practical joke about a very sensitive,
emotional and indeed dangerous issue of racial segregation.
Inappropriate talking, let alone dramatisation of that issue, may
touch on a very raw nerve of many blacks.
[71] Given their academic
enlightment, the appellants should have had the foresight to realise
that selecting black workers and
using them as black students for the
purpose of demonstrating their opposition as white students to
sharing their previously white
hostel with black students, could
easily be perceived and misconstrued as a racist stance of
intolerance and advocacy of hatred
based on race. Perceptions
emanating from this kind of conduct can dangerously polarise our
people. I have had the privilege of
seeing eight photographs taken on
21 May 2005 over two years before this particular incident. There the
victims of the institutional
“fresher initiation culture”
were white just like the perpetrators or initiators. There was a
striking similarity between
the 2005 incident, as photographically
depicted, and the 2007 incident we are here dealing with. I then
realised that what happened
in 2007 had previously happened in the
name of initiation culture. The cutting edge was that in 2007 the
initiates were black and
not students. This tended to show that there
was no evil or racist motive which inspired the 2007 video.
[72] In my view the court
a quo
did not properly individualise the appellants. Their
outspoken position to the integration policy cast a heavy cloud on
their otherwise
innocent and mischievous motive. Their personal
circumstances were not accorded sufficient weight. The gravity of the
crime and
the interests of society were unduly accentuated to the
detriment of the appellants. The mitigating factors, objectively
considered,
outweighed the aggravating factors by far.
[73] Mr. Kemp submitted
that the last two conditions of the suspended component of sentence
were inappropriate. Mr. Kruger readily
conceded. The linking of the
future rulings by the equality court against the appellants to their
current convictions appeared
undesirable. The equality court
proceedings, the quantum of proof and the ultimate rulings and
remedies are essentially civil in
nature. I am persuaded by the
submission. To allow a suspended criminal sentence to be triggered
off and put into operation on
the strength of a civil wrong or
transgression can lead to absurd repercussions. Our domestic
jurisdiction has not yet developed
that far. The magistrate’s
findings were about unchartered waters. This much Mr. Kruger
conceded.
[74] Mr. Kemp also
submitted that the six months suspended component was also
inappropriate. Before suspension can even be considered
as an option
of sentencing an offender, the court has to consider first and
foremost whether a sentence of imprisonment will be
appropriate in
the circumstances of the particular matter at hand. See
S v
LABUSCHAGNE AND 19 OTHER CASES
1990 (1) SACR 313
(E) on 315 –
316;
S v OLYN EN ANDER
1990 (2) SA 73
(NC) on 74.
[75
]
It has, on more occasions than one, been held that a court should
guard against the temptation of approaching this sort of sentencing
option from the narrow angle that it is a lenient sentence which an
offender is not going to serve. A suspended term of imprisonment
is
not simply an auxiliary to the main sentence. On the contrary, it is
a sentence on its own -
S v SIBEKO
1995 (1) SACR 186
(W) 189;
S
v SCHULZ
1991 (1) SACR 676
(E) 680;
S v ROOI
2007
(1) SACR 668
(C) 671.
[76] On appeal before us,
the defence accepted that the court
a quo
was at liberty to
suspend any sentence of imprisonment it decided was appropriate. The
suspension of a custodial term was, therefore,
not an issue. Whilst
it was thus accepted, the contention of the defence was that a
sentence of imprisonment, whether direct or
suspended, was not an
appropriate sentence in the circumstances of this particular ease.
[77] It has to be
mentioned, that Mr Kruger conceded that he did not argue for the
imposition of a sentence of imprisonment in the
court
a quo
.
On the contrary he supported Mr. Kemp’s submission that a fine
would have been an appropriate punishment for the appellants.
In the
court
a quo
the two counsels only differed as regards the
amount of the fine. The court
a quo
approached the issue as if
the crux of the legal arguments between the two counsels was to
imprison or not to imprison.
“ …
I
am eventually convinced that direct imprisonment would not be a
proper sentence in this case.”
[78] The approach was
incorrect. It is of cardinal importance to point out that the court
a
quo
was informed, through the lips of counsel for the respondent,
that the victims had made peace with the appellants; that they had
forgiven them and that they did not want to see them languishing in
jail. The court
a quo
hardly commented about this important
aspect.
[79] Moreover, and this
relates to the main prison term of twelve months, all the appellants
were employed. They engaged the services
of a seasoned senior
counsel. They obviously had some financial backing from somewhere,
probably from their parents. All these
indicated that they could
afford to pay fines as intimated. The amount of the fines they
intimated were not trivial. Where, as
in this instant, a first
offender can afford a reasonable fine and a court accepts that he is
potentially rehabilitable, the interests
of justice probably can
still be adequately achieved and the objectives of sentencing
satisfactorily attained by other various
options other than
imprisonment, the imposition of a straight fine is one of the
alternatives.
[80] In
S v
SCHEEPERS
1977 (2) SA 154
(AD) at 159 B – C the court
said the following about the aforegoing principle:
“
Indien daar
dus met 'n alternatiewe straf as gevangenisstraf dieselfde oogmerke
met betrekking tot die aard van die oortreding en
die belange van die
publiek bereik kan word, behoort daar, in die belang van die
veroordeelde, deur vonnisoplegging voorkeur verleen
te word aan
alternatiewe strawwe. Ek is persoonlik van oordeel dat
gevangenisstraf slegs geregverdig is indien dit nodig is dat
die
oortreder uit die gemeenskap verwyder word ter beskerming van die
publiek en indien die oogmerke wat deur die vonnisoplegger
nagestreef
word met geen alternatiewe straf bereik kan word nie.”
Viljoen AJA with him
Wessels JA concurred.
[81] If it is accepted,
and I venture to say it should, that the imprisonment component of
the main sentence,
viz
12
months, was inappropriate, then it becomes evident and understandable
why the 6 months suspended component, the logical derivative
of the
sentence of twelve months imprisonment cannot exist in a vacuum.
Logic requires that it should automatically fall away.
In that event,
the rest of the conditions of suspension, which were themselves not
without difficulties, will also die a natural
death.
[82] What remains to be
determined now is the issue of whether the discretion to assess the
fine was properly and reasonably exercised
or not. If the answer is
“yea”, we have no business to interfere; but if it is
“ney” we are at liberty
to interfere
S
v KGOSIMORE
,
supra.
[83] It is my considered
view that the disparity between the fine imposed and the fine I would
have imposed if I had sat as a court
of first instance to try the
appellants is very huge. There has been commendable restorative
justice in this matter. There were
huge differences among the
appellants. Two of them were suspended, but others could not. Those
suspended earned substantially less
than their co-appellants. They
admirably donated undisclosed, but no doubt substantial, amounts to
redress the wrong they committed.
They also probably paid civil
compensation to the victims. These factors, in my opinion, warranted
differentiation in the sentences
imposed. However, all were painted
with the same brush.
[84] Having considered
all the pros and cons of the matter I am persuaded that the court
a
quo
materially misdirected itself in certain respects as I have
already alluded to. In
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216 h the supreme court held per Olivier JA that:
“
A failure to
take certain factors into account or an improper determination of the
value of such factors amounts to a misdirection,
but only when the
dictates of justice carry clear conviction that an error has been
committed in this regard.”
The personal
circumstances of the appellants were unduly underplayed. They were
not properly individualised. The misdirection was
of such a nature,
degree or seriousness that it showed inferentially, if not directly,
that the sentencing discretion entrusted
to the trial court was
improperly exercised. (See Trollip JA in
S v PILLAY
,
supra
, at 535 E – G.) I would, therefore, interfere and
ameliorate the sentence.
[85] There remains one
more thing. This judgment is unusually long for an appeal. It had to
be. This was not a usual appeal. There
was and still is great
interest worldwide.
[86] The acclaimed, Timmy
Thomas of the USA, has a song in one of his albums:
“
Why can’t
we live together”.
The lyrics of that track
are worth echoing in a case like this. He sings:
“
No matter
your skin colour
You are still my brother.”
On that optimistic,
gracious and melodious tune of brotherhood, I wrap up this appeal.
“
Morena
boloka sechaba sa heso.”
Accordingly I make the
following order:
1. The appeal against
sentence succeeds.
2. The sentence imposed
on 30 July 2010 is entirely set aside and substituted with the
sentences set out below.
3. The first appellant
and the third appellant are each sentenced to a fine of R10 000,00.
4. The second and fourth
appellant are each sentenced to a fine of R15 000,00.
5. The appellants are
hereby called upon to appear in this court in person on Monday 25
July 2011, should they fail to pay the fine,
so that this court can
impose a sentence of imprisonment.
______________
M. H. RAMPAI, J
I concur.
_________________
M. B. MOLEMELA, J
On behalf of appellants:
Adv. K. J. Kemp SC
Instructed by:
Christo Dippenaar
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. J. J. Kruger
Instructed by:
Deputy Director: Public
Prosecutions
BLOEMFONTEIN
/sp