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[2009] ZAKZPHC 2
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Mbatha v S (AR461/07) [2009] ZAKZPHC 2; 2009 (2) SACR 623 (KZP) (5 March 2009)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
NATAL PROVINCIAL DIVISION
CASE NO.AR.461/07
In the matter between
WILLIAM MUNTU
MBATHA
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
Delivered on 5 March 2009
WALLIS J.
[1] The facts
in this case are relatively straightforward. Their consequences
for
two families are tragic.
[2] On 13
August 2004 at Good’s Garage in Estcourt, the appellant, a 46
year-old
man, shot and killed Mr Rudolf van Zuydam, a 49 year-old
married farmer with three children. The mystery is why he
did so. The appellant was until that day a perfectly
respectable citizen, himself married with five children, who
conducted
business cutting timber on farms in the district and
selling that timber. This was no hand-to-mouth existence as the
appellant
owned a tractor and trailer and employed people to assist
him. He also owned his own bakkie and appears to have dealt
with
the farmers in the area as the principal source of his
business.
[3] The
deceased was one such farmer. He was, according to his
attorney, Mr Geldenhuys,
a meticulous farmer and over a period of at
least a year if not longer prior to this incident arranged for the
appellant to cut
and remove wattles on his farm and poison stumps. He
had told Mr Geldenhuys that he was pleased with the appellant’s
work,
which had proved more satisfactory than that of a previous
contractor. The only blot on the relationship was that in
the course of these activities a shed and a gate were damaged by the
appellant’s employees. The damage was not extensive
but
also not insignificant. As will become apparent it is possible
that a dispute over the obligation to compensate the deceased
for
this damage may have lain at the root of the incident leading to his
death.
[4] The
deceased’s son, also Rudolf van Zuydam, was employed as an
apprentice at
Good’s Garage. His father was apparently
aware that the appellant sometimes called at the garage to have
repairs effected
to his vehicles. At some stage shortly prior
to 13 August 2004 he told his son to contact him telephonically the
next time
the appellant was at the garage as, according to what the
deceased told his son, the appellant owed him some R2000-00 in
compensation
for the damage caused by his employees and he wished to
resolve with him the payment of this amount.
[5] The younger
van Zuydam carried out this instruction on 13 August 2004 when the
appellant
had brought his tractor into the garage for repairs.
He telephoned his father who came to Good’s Garage and
encountered
the appellant in the workshop. They spoke to one
another and walked out of the garage together, apparently amicably
according
to Mr Saltmarsh, who was waiting in the reception area for
his own vehicle. As they walked out of the workshop Mr van
Zuydam
senior rang his friend and attorney, Mr Geldenhuys, on his
mobile phone and asked him if he was free to come down to the garage
to help him with the matter of payment for the damages. Mr
Geldenhuys agreed to do so.
[6] From the
stage when this phone call was made until the entire shocking
incident was
over cannot have taken long as Mr Geldenhuys testified
that his office is only a little more than a kilometre away from
Good’s
Garage and he came immediately by car. By the time
he arrived the incident was over and his friend was dead. At
most
it does not seem likely that much more than twenty minutes can
have passed from the time the phone call was made and it may have
been as little as ten minutes.
[7] After Mr
van Zuydam senior and the appellant left the workshop they walked
through
the entrance gate across to that portion of the garage
premises where both their motor vehicles were parked, a distance of
some
30 paces. At this point they were by the testing centre
and out of sight of the younger Mr van Zuydam who had been watching
them from the workshop window. He had left the place where he
was working to go into the reception area from where he could
watch
his father and the appellant. Unfortunately he did not say why
he did this and he was not asked to explain whether
this was merely a
matter of idle curiosity or was motivated by a concern that something
might be amiss.
[8] Shortly
after the appellant and Mr van Zuydam disappeared from view a number
of shots
were fired and Mr van Zuydam emerged from behind the testing
centre running towards the workshop, with the appellant running after
him with a gun in his hand. It is common cause that this was
the appellant’s gun and that all the shots fired that
day were
fired by him from that gun. The younger Mr van Zuydam ran from
the window to the door of the workshop and outside
towards his
father. As his father ran towards him the appellant fired a
further shot that appeared to hit the older van Zuydam.
Nonetheless he ran on until he slipped on the metal track on which
the automatic gate to the workshop premises ran and fell forward
on
to his knees and face. The appellant reached him, crouched on
his haunches straddling his body, grabbed his collar and
shot Mr van
Zuydam through the head, killing him. Young Rudolf then tackled
the appellant, disarmed him and pummelled him
with his fists until
restrained. The time that expired from the firing of the first shot
until the appellant was tackled by Mr
van Zuydam’s son was
undoubtedly less than 5 minutes and was probably considerably
shorter.
[9] Thus far
the facts. Then comes the unknown. What caused this
respectable
citizen to lose control so utterly that he killed Mr van
Zuydam in this fashion? We do not know because the appellant
gave
a false explanation in his evidence, claiming to have been
assaulted by the deceased by being hit on the head with what he said
looked to him like a gun and saying that he himself used his gun from
a fallen position purely in self-defence. This explanation
was
rightly rejected by the trial court and I need say no more about it
save that it leaves us, as it left the trial court, in
the dark over
the reasons for this crime. All we can say is that something occurred
that led to a total loss of control on his
part. It would be quite
wrong on the evidence we have to attribute whatever occurred to
conduct on the part of Mr van Zuydam and
equally wrong to say that
the appellant acted from some dastardly motive. We simply do not
know. This makes the task of determining
a proper sentence even more
difficult than usual. All that can be concluded from the evidence is
that Mr van Zuydam and the appellant
were almost certainly having a
discussion arising from Mr van Zuydam’s claim to be paid R2000
for the damage to his shed,
when something occurred in the course of
the discussion that resulted in the appellant losing his normal
self-control and engaging
in the frenzied attack leading to Mr van
Zuydam’s death.
[10] It was accepted at the
trial that this is a murder falling within
section 51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
and accordingly the court was
obliged to impose a sentence of imprisonment for a period of not less
than fifteen years, in the
absence of substantial and compelling
circumstances justifying the imposition of a lesser sentence.
There was no real attempt
to suggest that there were any such
circumstances and the trial court moved in the opposite direction and
imposed a sentence of
twenty years’ imprisonment. This
appeal is against that sentence.
[11] In determining an
appropriate sentence the court must have regard to the well-known
triad of the
crime, the offender and the interests of society
[1]
.
Whilst there was initially judicial controversy over the minimum
sentencing legislation its constitutionality has been affirmed
by the
Constitutional Court
[2]
and most of the early concerns about its impact were laid to rest by
the judgment of the Supreme Court of Appeal in
S
v Malgas
[3]
,
which relaxed the perceived stringency of the legislation by holding
that if, when all relevant factors have been taken into account
by
the trial court, the court’s conclusion is that the imposition
of the prescribed minimum sentence would be excessive and
disproportionate a lesser sentence is justified.
[12] Whilst the question of
what constitutes substantial and compelling circumstances justifying
the
imposition of a sentence less than the prescribed minimum has
been the subject of much judicial consideration and learning, there
has been no similar consideration of the circumstances in which it is
appropriate for a trial court to impose a sentence greater
than the
prescribed minimum. Does the court simply have a free and
unbounded discretion once it concludes that a sentence
greater than
the statutory minimum is appropriate? What influence does the
statutory minimum have in the determination of
sentence in such a
case? These are the questions that fall to be considered in the
present instance.
[13] Before venturing into
uncharted territory it is helpful to start with those principles that
are
already established by way of binding authority. In
Malgas
Marais JA made it clear that the process of sentencing in cases
falling within the minimum sentence legislation was no longer to
be
“business as usual”.
[4]
The effect of that judgment, as affirmed in
S
v Kgafela
[5]
,
is that the proper starting point in determining an appropriate
sentence in a case falling within the minimum sentencing legislation
is the prescribed minimum sentence. It is not correct for the
court to make an initial determination of the sentence that
it
regards as appropriate and then to compare that sentence with the
prescribed minimum sentence. The starting point of the
enquiry
is the prescribed minimum sentence and thereafter the court considers
whether the circumstances are such that a departure
from that
sentence is justified.
[14] I appreciate that the
Supreme Court of Appeal laid down this approach in the context of
cases
concerned with a departure from the statutory minimum sentence
by virtue of the presence of substantial and compelling
circumstances.
I am also alive to the fact that the legislation
contains no provision corresponding to
section 51(3)(a)
when the
departure from the prescribed minimum sentence is upwards rather than
downwards. Nonetheless it seems to me that
this must remain the
correct approach when the court is contemplating imposing a greater
sentence than the prescribed minimum in
the same way as where it is
contemplating imposing a lesser sentence. Otherwise the process
of determining an appropriate
sentence will be bifurcated in a most
undesirable way. If the approach is different from that which I
have indicated it will
lead to the following situation. The court
will first determine whether the case is one falling within the
minimum sentencing legislation.
If it is then it will enquire
whether there are substantial and compelling circumstances justifying
the imposition of a lesser
sentence. If it concludes that there
are none, it will then abandon all that has gone before and simply
determine in the
exercise of its discretion an appropriate sentence,
having no regard to the legislation.
[15] In my view such an
approach disregards one of the purposes of the minimum sentencing
legislation,
which is to provide a measure of uniformity and not
simply to limit in one direction the discretion of courts in imposing
sentence
in particular cases, whilst leaving them entirely at large
in the other direction. In para [8] of his judgment in
Malgas
,
Marais JA said that the purpose of the legislation was that of:
“…
ensuring a severe, standardised
and consistent response from the Courts to the commission of such
crimes, unless there were, and
could be seen to be, truly convincing
reasons for a different response. When considering sentence the
emphasis must be shifted
to the objective gravity of the type of
crime and the public’s need for effective sanctions against
it.”
[16] Later
[6]
he set out the general principles to be applied in approaching the
issue of sentence in these cases, some of which bear upon the
present
problem. They are the following
“
B Courts are
required to approach the imposition of sentence conscious that the
Legislature
has ordained life imprisonment (or the particular
prescribed period of imprisonment) as the sentence that should
ordinarily and
in the absence of weighty justification be imposed for
the listed crimes in the specified circumstances.
C Unless there are, and can be seen to be,
truly convincing reasons for a different response, the crimes in
question
are therefore required to elicit a severe, standardised and
consistent response from the Courts.
D The specified sentences are not to
be departed from lightly and for flimsy reasons …”
[17] I can see no reason
why those remarks are not of equal application in the situation where
a court
is considering the imposition of a sentence greater than the
prescribed minimum. It needs to bear in mind that the emphasis
in determining an appropriate sentence in respect of these offences
is the objective gravity of that particular crime and the public’s
need for an effective sanction against it. In the language of
the traditional triad Parliament, acting on behalf of society
as a
whole, has expressed a view on the severity of the offence and
indicated what the interests of society require in that situation.
In doing so it has sought to limit the extent to which sentence may
be dependent upon the personal views of the judge as to the
efficacy
of imprisonment for a longer or shorter period or any other factor
that may vary from judge to judge. The seriousness
of
particular crimes is reflected in the fact that they should in
general attract sentences that are severe, standardised and
consistent.
[18] It is true that with
the exception of those instances where life imprisonment is the
prescribed
sentence the legislation lays down periods of imprisonment
of “not less than” a term of years. Thus in the
present
case the prescribed minimum sentence is one of not less than
fifteen years’ imprisonment. It is not therefore a
requirement
for imposing a greater sentence than the prescribed
minimum that there should be substantial and compelling circumstances
justifying
the imposition of a greater sentence. To approach
the matter on that basis would re-write the statute by introducing
something
that does not appear there. However that does not
necessarily mean that the standardised and consistent response from
the
court that the legislature intended vanishes whenever a judge is
minded to impose a sentence greater than the statutory minimum.
[19] In my view the proper
approach is the following. The court’s starting point
should
be the statutory minimum sentence. It must bear in mind
that this is the sentence that Parliament has prescribed as
appropriate
for the crime in question having regard to both the
general nature of that crime and the interests of the public.
As the
statutory approach is a standardised one requiring generally
that there be a consistent response to particular crimes the court
needs to identify the circumstances that take a particular case out
of the ordinary so as to render the prescribed minimum sentence
an
inadequate response to the particular crime. It must ask itself
whether there are factors present in the particular case before
it
that create a significant and material distinction between that case
and other cases involving the same offence. Thus in the
case of a
murder by a first offender, are there circumstances attendant upon
the killing, for example, a deliberate degree of sadism
or a motive
of personal advantage, such as a desire to inherit under an insurance
policy or to prevent disclosure of or apprehension
for a crime, that
render the offence deserving of greater moral approbation than murder
always properly attracts? In many ways
the enquiry will be the
converse of that undertaken when the court is considering whether
there are substantial and compelling
circumstances for imposing a
lesser sentence, provided it is borne in mind that in the case of an
increased sentence the court’s
discretion is broader and more
flexible and is not constrained by that statutory yardstick.
[20] On that approach there
is as much a necessity for the court in its judgment on sentence to
identify
on the record the aggravating circumstances that take the
case out of the ordinary as there is for it in the converses
situation
to identify those substantial and compelling circumstances
that warrant the imposition of a lesser sentence than the prescribed
minimum. The trial judge should identify the circumstances that impel
her or him to impose a sentence greater than the prescribed
minimum
and explain why they render the particular case one where a departure
from the prescribed sentence is justified. The factors
that render
the accused more morally blameworthy must be clearly articulated. In
doing so the court must also weigh in the balance
any factors, such
as youth, provocation or past ill-treatment by the deceased, that
point in the opposite direction. It is only
where the balance is
clearly in favour of the imposition of a sentence greater than the
prescribed minimum that such a sentence
should be imposed. Otherwise
the whole purpose of a reasonably consistent and standardised
approach to sentence in the case of
the most serious crimes will be
defeated as it will be open to those judges who have particularly
stern views on sentence and regard
Parliament’s response to
serious crime as inadequate, to impose those views in disregard of
the purpose of the legislation.
[21] One further point of
importance was stressed in argument before us by Mr Marimuthu, who
appeared
for the appellant and argued the appeal. It is that the
prescribed minimum sentence for any particular offence does not stand
in
isolation. It must be viewed in the context of legislation as a
whole and the minimum sentences that Parliament has prescribed for
other offences. Thus where a court is contemplating, as here,
imposing a sentence of 20 years imprisonment where the prescribed
minimum is 15 years, it should consider the case before it and assess
whether it is of such seriousness and whether the moral
blameworthiness attaching to the accused is such that it properly
deserves comparison with those offences where the prescribed minimum
sentence is 20 years. Here the direct comparison is with a person who
has been convicted of two murders or two robberies with aggravating
circumstances or two counts of drug trafficking where the value of
the drugs in question exceeded R50 000
[7]
or a third offence of rape or a third offence of sexual exploitation
of a child or a person who is mentally disabled
[8]
.
[22] I conceive that this
approach is consistent with the obligation that rests on all courts
in interpreting
legislation to do so in accordance with the spirit,
purport and objects of the Bill of Rights. It is consistent with the
constitutional
prohibition on cruel, inhuman and degrading
punishment
[9]
and ensures a measure of equality of treatment of those who commit
serious crimes, whilst ensuring that where the crime provokes
a
greater degree of moral outrage it will attract a more severe
sentence.
[23] Against that
background I turn to consider the approach to sentence of the court
a
quo
and the reasons that actuated it to
impose a sentence of 20 years imprisonment. Unfortunately the
judgment on sentence is extremely
brief. It records that the
court had taken account of the appellant’s personal
circumstances and the sentencing triad.
The court indicated
that it was aware of
Malgas’
case. The judgment then proceeds as follows
“
The Minimum Sentences Act, when it was passed,
it was passed for a specific purpose. It was passed so that
there was some
uniformity in sentencing. It was also passed
because of the prevalence of certain offences. I have taken
into account
the accused’s circumstances and I have heard the
submission of counsel for the defence in what we loosely termed on
the merits.
I find myself in agreement with counsel for the
State that the accused has shown no remorse. He had a golden
opportunity
when he went to the box, to speak the truth. As I
have stated before, he lied and lied and lied. He has certainly
shown
no remorse. I find as an aggravating circumstance –
and we have accepted that after he had already shot the deceased,
he
went up to the deceased and shot him again. This was done –
and this is further aggravating circumstances –
this was done
in full view of his son. We can only speculate as to what
enraged the accused so much, that he had to draw
his firearm and
shoot the deceased. But no amount of provocation should have
led to what he did. It is especially upsetting
in view of the
fact that the accused is a mature man. Further aggravating is
prior to this, the accused and the deceased
had a mutually beneficial
relationship and they were on good terms. The accused gave
evidence in the box there was some altercation
prior to this,
referring to his van keys, but this was never ever put to any of the
witnesses. So the court accepts that
prior to this there was
not any bad blood between them. As I have said before, this
incident has robbed not only one family
of a father but another one
as well.
Taking into account all the circumstances of the
accused, and the terrible crime that was committed, I find that the
appropriate
sentence is one of
TWENTY (20)
YEARS’ IMPRISONMENT.
”
[24] A disquieting feature
of this case that must be mentioned at this stage is that until the
concluding
sentence of the judgment on sentence there had been no
indication to the appellant’s legal representative from the
judge
that he had in mind the possibility of imposing a sentence
greater than the statutory minimum. Mr Govender who represented
the appellant at the trial, was invited
[10]
to address the court “on mitigation”. Once he had
done so the presiding judge pointed out to him that the case
fell
under the provisions of the minimum sentencing legislation and
counsel for the State intervened to point out that there was
a
minimum sentence of fifteen years’ imprisonment but that the
court was not precluded from imposing a higher sentence.
The
record then reads as follows:
“
BADAL AJ
: I just want to hear
argument from you. The Act provides that the minimum sentence
should be 15 years. The Act
further provides, I think, that
unless there are substantial and compelling circumstances, the court
must impose a sentence of
not less than 15 years minimum.
Can
you advance any reasons why the Court should not impose a sentence in
terms of the Minimum Sentences Act?
”
When
Mr Govender pointed out that the crime was not planned by the accused
the court’s response was to say that a premeditated
killing was
dealt with under another category in the Act. The record then
reads as follows:
“
BADAL AJ
:
Yes, it calls for
a minimum sentence of 15 years – a minimum sentence of 15
years. Do you follow? So the Court
can go over 15 years.
So now I am asking you, can you advance any reason why the
sentence should be less than the 15 years?
MR GOVENDER
: There are
no further substantial and compelling circumstances, m’Lord.”
[25] In my view the effect
of the questions posed by Badal AJ in the passages I have italicised,
was
to direct Mr Govender’s attention to the question of
whether there were any substantial and compelling circumstances that
would have warranted the imposition of a sentence of less than
fifteen years’ imprisonment and away from any other question.
Although it was clear that this was a minimum sentence there was no
indication that the judge was contemplating imposing a higher
sentence and the manner in which he put questions to Mr Govender was
in my view misleading. Instead of asking him about substantial
and
compelling circumstances for reducing the sentence below the
statutory minimum he should have alerted him to the fact that
he was
thinking of imposing a sentence in excess of the minimum. The
situation is aggravated by the fact that, when at the
end of her
reply counsel for State made the submission that the court could
“increase the sentence as prescribed by the Minimum
Sentences
Act to a period of between 15 and 20 years”, the court did not
invite Mr Govender to deal with that statement and
indicate that it
was indeed contemplating a sentence greater than the statutory
minimum. This is particularly important because
from the manner in
which the prosecutor couched this statement it appears to be a
reflection of the proviso to section 51(2) of
Act No.105 of 1997,
which is concerned with the jurisdiction of a Regional Court and not
the jurisdiction of the High Court, rather
than a submission as to
the sentence that should be imposed. In those circumstances it is
hardly surprising that Mr Govender did
not respond to an irrelevant
statement.
[26] Consistent with what I
have already said about the proper approach to sentence when the
court
contemplates a sentence greater than the statutory minimum and
consistent also with those cases that have held that if the State
intends to rely upon the minimum sentencing legislation the accused
must be forewarned of that fact, preferably in the indictment,
I
think that that the failure to apprise the defence of the fact that a
higher sentence than the minimum was in contemplation was
a defect in
the proceedings. What makes that defect of greater significance is
that the way in which Badal AJ put his questions
to Mr Govender meant
that the latter may have been misled. In my view there was a
substantial risk of him having been lulled into
a sense of false
security in the belief that the court was only concerned with the
question whether there were substantial and
compelling circumstances
justifying the imposition of a sentence less than the minimum and was
not entertaining the possibility
of a sentence greater than that.
That is particularly so in a case such as the present where the fact
that the appellant
chose to advance a dishonest defence, which had
been correctly rejected by the court, and did not then give evidence,
meant that
there was little point in advancing a submission that
substantial and compelling circumstances were present justifying the
imposition
of a sentence of less than fifteen years’
imprisonment. In my view the court contemplating the imposition
of a sentence
greater than the statutory minimum should make it
apparent to the accused and his or her legal representative as that
may well
alter their entire approach to sentence.
[27] I think that this was
on its own an irregularity warranting this court’s
interference.
Had Mr Govender been forewarned of the learned acting
judge’s disposition on sentence he could have asked for time to
try
and persuade his client, hitherto obdurate, to enter the witness
box, or at least make a statement from the dock, concerning the
events that triggered his murderous attack on Mr Van Zuydam. As
he was not afforded that opportunity and was misled by the
judge we
can only speculate on whether this would have had any effect. However
it is one thing for an accused person to refuse
to give evidence in
mitigation – perhaps in the misguided belief that there are
still prospects of succeeding in an appeal
against conviction –
knowing that they are risking a minimum sentence of 15 years
imprisonment and another entirely different
thing for them to do so
when they are confronted with a possibility that the sentence may be
substantially greater than that.
That risk may also galvanise
counsel in his or her efforts to advise their client as to the best
course of action. I appreciate
that we cannot say what would have
occurred in the present case had the judge forewarned Mr Govender of
his inclinations in regard
to sentence, but the point is that the
judge’s approach foreclosed any such possibility. In simple,
but constitutional, terms
it meant that the appellant did not have a
fair trial on the question of sentence insofar as the sentence
imposed on him exceeded
the statutory minimum. For us to endorse that
sentence now on the basis that it is a proper sentence on the
material at present
before the court would merely compound the
irregularity in the proceedings before the court
a
quo.
[28] In the ordinary course
the only way in which this irregularity could be addressed would be
for
us to set aside the sentence of the court
a
quo
and remit the matter for a proper
consideration of the question of sentence. I have however considered
whether the justice of the
case will be met by setting aside the
sentence of 20 years imprisonment and replacing it with one of 15
years imprisonment. This
is because it is in my view clear on any
basis and leaving this irregularity aside for the moment that the
court
a quo
misdirected itself in material respects in regard to sentence and
that on the evidence before it there were no sufficient grounds
for
imposing a sentence greater than the minimum sentence of 15 years
imprisonment, There can be no question about the appellant
having
been afforded a proper opportunity to lead evidence and advance
argument in support of a lesser sentence but the submissions
on his
behalf fell well short of making a proper case for that.
[29] The respects in which
I think the court below fell into error are the following.
Firstly,
as I read the judgment on sentence and the exchanges between
the judge and the respective legal representatives, whilst the judge
was manifestly aware of the terms of the legislation and generally
aware of
Malgas’
case, there is no indication that he viewed the statutory minimum
sentence as being the proper starting point for his analysis
with a
need to identify clearly those circumstances of an aggravating nature
that justified the imposition of a higher sentence.
The
approach reflected in the judgment is consistent with a view that
provided the court did not go below fifteen years’
imprisonment
it was otherwise at large to impose sentence in accordance with its
own unfettered discretion. For the reasons
set out above I do
not think that is correct.
[30] Secondly and in any
event, it does not seem to me that the circumstances referred to in
the judgment
on sentence as aggravating could in all instances be
correctly characterised as such. In the first instance it was said
that the
appellant had shown a lack of remorse as evidenced by his
having advanced a dishonest version in his defence and not having
come
forward to tell the truth after his conviction. Whilst it
is correct that the level of remorse of an accused is recognised
as
one of many factors to be considered by a sentencing court, it is a
regrettable fact of life that in the vast majority of defended
criminal cases the accused either keeps silent in the hope that the
prosecution will fail to prove its case or tells a false story
that
is rejected by the court. The latter is what the
appellant did. I accept that this does not demonstrate
the type of contrition that would be inferred from a full and frank
description of events and acceptance of responsibility for
the crime,
but that is an instance where remorse is a mitigating feature.
However, it is a far cry from those cases
[11]
,
where the accused’s absence of remorse is demonstrated by their
past criminality, punishment and recidivism
[12]
.
It is equally far from those cases where the brutish nature of the
offence and the conduct of the accused in the immediate
aftermath of
the killing demonstrate a level of callousness and absence of
remorse
[13]
.
Even where the accused followed the same path as the appellant in
this case and denied all involvement in a murder in the
course of
robbery it has been held that this did not preclude the court from
finding on the basis of the youth of the accused that
substantial and
compelling circumstances existed warranting the court imposing less
than the statutory minimum sentence
[14]
.
[31] I am also mindful of
the fact that the right to remain silent and to require the State to
prove
the case against one is a right that is constitutionally
protected. There seem to me to be substantial dangers in
inferring
an absence of remorse from the exercise of a constitutional
right and treating that as an aggravating factor. Equally the
Constitution protects the right of an accused person to advance his
or her defence. To infer from the fact that the accused
has
advanced a defence found to be dishonest that this reflects a lack of
remorse and therefore justifies the imposition of a more
substantial
sentence, comes perilously close to holding that the accused is being
sentenced not only for the crime that they have
committed but also
for their failure to confess that crime. All this seems
to me inconsistent with the constitutional
protection afforded to the
accused person to remain silent or put forward a defence to a
charge. No doubt it is for that
reason that remorse usually
comes into the scale in mitigation of sentence, rather than in
aggravation of it, and where its absence
is treated as aggravating
that is inferred from factors other than the accused’s conduct
of his or her defence. In the present
case I do not think that the
fact that the accused put forward a false defence is a seriously
aggravating feature.
[32] The second aggravating
feature relied upon by the court below was the fact that the
appellant,
having already shot the deceased in the course of pursuing
him, then caught up with him and shot him again. The fact that the
fatal
shot was fired in the presence of the deceased’s son was
also treated as an aggravating circumstance. As to the first
of
these it suggests a separation in time and space between the firing
of the initial shots and the firing of the final fatal shot
that is
simply inconsistent with the evidence. In effect it is premised
on the notion that there was an opportunity for thought
and
reflection – a
spatium deliberandi
-
between the firing of the initial shots and the firing of the final
one. That is not what occurred. As the court
correctly held, the accused became enraged for a reason that has not
been disclosed. The entire incident was over in a matter
of
moments, with little more than a minute or two, if that, passing from
the firing of the first shot to the firing of the fatal
bullet .
The statement that “after he had already shot the deceased, he
went up to the deceased and shot him again”
suggests time and
reflection, rather than an enraged chase during which shots were
fired until the pursuer caught up with the pursued
and fired a last
fatal shot. Like the then Lord Chief Justice
[15]
,
Lord Phillips of Worth Matravers, I ask rhetorically how much is
added to the crime of deliberate killing of another human being
by
the feature that the final bullet is fired in the gratuitous
execution of a victim already rendered vulnerable by a prior bullet,
when the entire criminal enterprise was over in a matter of
seconds?
[16]
The answer is surely very little because it is what commenced the
criminal enterprise that is important not an impractical
belief that
when a person is enraged they behave rationally. As regards the fact
that the fatal shot was fired in full view of
Mr van Zuydam’s
son I do not see how the appellant is burdened with a greater degree
of moral responsibility for his crime
by virtue of that chance fact.
It is not even suggested in the evidence that he was aware of the
presence of Mr van Zuydam’s
son and it is certainly not the
case that he had any intention to harm the latter, as well as his
father.
[33] The last aggravating
circumstance is said to be that previously the accused and the
deceased had
had a mutually beneficial relationship and were on good
terms. I am entirely unable to see how this is aggravating in
the
present case. Whilst there may be cases of murder where the
friendship between the parties or even a blood relationship, has an
impact on the moral culpability of the accused, this is not one of
them. The probabilities are overwhelming that whatever
did
occur between the appellant and Mr van Zuydam occurred because of the
latter raising with the appellant an alleged indebtedness
arising
from the damage to Mr van Zuydam’s shed. The prior good
relationship makes the reason for committing the crime more
baffling,
but it is not an aggravating circumstance when one comes to sentence.
[34] In my view therefore
there were significant misdirections by the court below in regard to
the
question of aggravating circumstances. A further
misdirection was that there was no attempt whatsoever to weigh any of
those
circumstances against the range of obviously mitigating
circumstances that were present in this case. The court
accepted
that for an unknown reason the appellant became enraged.
It accepted that this led to his complete loss of control and the
killing of Mr van Zuydam. However the court should have
recognised that this was a “moment of madness” entirely
out of character with everything that it knew about the appellant.
Hitherto he had been a model citizen, a family man, conducting
his
own business in a respectable and reputable way, without any prior
blemishes on his record and lawfully in possession of the
firearm
that he used. The court should have weighed a lifetime of
respectable citizenship against a few moments of enraged
madness.
Its failure to do so is a further misdirection.
[35] That conclusion would,
if the irregularity I have already dealt with is left aside, have
left
this court at large to impose the sentence that should have been
imposed by the court below. In accordance with the principles
discussed above the starting point is the statutory minimum of 15
years. Nothing has been advanced that would warrant a finding
that
there are substantial and compelling circumstances entitling us to
impose a lesser sentence. All relevant circumstances must
be weighed
both aggravating and mitigating. This involves weighing the
appellant’s hitherto unblemished record and
life as a
responsible citizen, together with the fact that this was a short and
temporary loss of control, against the circumstances
of the crime.
The question is whether those circumstances make this crime more
morally reprehensible than a case where the minimum
of 15 years would
be imposed for murder. Higher minimum sentences provided in the same
legislation provide a useful benchmark against
which to measure his
moral culpability. I can see nothing in the facts of this case that
makes the appellant’s crime as heinous
as those of a double
murderer or a triple rapist for whom the statutory minimum is 20
years imprisonment. The aggravating circumstances
that do exist, such
as the abuse of his licence to carry a firearm; the bloody way in
which the final shot was fired and the impact
of these events in
broad daylight in a public place, are in my opinion balanced by the
mitigating features I have identified. This
should in my view have
led the court below to conclude that there were not sufficient
grounds on the evidence before it for departing
from the statutory
minimum sentence.
[36] On reflection,
however, I do not think this is the correct course to follow. My
colleagues are
less persuaded than I that this is a case where only
the minimum sentence is appropriate. In addition as my brother van
der Reyden
has pointed out following this course would still mean
that the sentencing process was infected by a grave irregularity.
That can
only be cured by setting the sentence aside and remitting
the case to the trial court for the matter to be considered afresh in
the light of this judgment. The evidence that then emerges after a
full investigation may cast a very different light on matters
and the
resultant sentencing process will be fairer to the appellant and
ensure that his constitutional right to a fair trial is
fully
realised. The appellant can then be properly apprised of the risks he
runs if he persists in his untruthful version of events
or refuses to
tell the court why he acted as he did. I accordingly conclude that
this is the proper course for us to adopt .
[37] In the circumstances
the order I propose is that the appeal be upheld and the sentence of
twenty
years’ imprisonment imposed by the trial court be set
aside. The case should then be remitted to the trial court to
consider
sentence afresh, including if the appellant so desires the
hearing of evidence in mitigation, in the light of this judgment.
VAN DER REYDEN J.
NILES-DUNỀR J.
DATE OF
HEARING:
30th January 2009
DATE OF
JUDGMENT
5 March 2009
COUNSEL FOR
THE APPELLANT:
Mr P Marimuth (Pietermaritzburg
Justice Centre)
COUNSEL FOR THE
STATE:
Mr I P Cooke
[1]
S v Zinn 1969(2) SA 537 (A)
at 540 F-H, which was applied in S v M (Centre for Child Law
Intervening) 2008(3) SA 232 (CC).
[2]
S v Dodo 2001(3) SA 382 (CC);
[3]
S v Malgas 2001(2) SA 1222
(SCA);
[4]
Paras [7] and [8];
[5]
2003 (5) SA 339 (SCA)
[6]
In para [25];
[7]
Section 51 (2)(a)(ii) of Act
105 of 1997
[8]
Section 51 (2)(b)(iii) of Act 105 of 1997
[9]
Section 12(1)(e) of the
Constitution
[10]
Record
253, line5
[11]
Such as
S v B
1985 (2) SA 120
(A) or S v N (Centre for Child Law as
amicus
curiae
) 2008 (3) 232 (CC), para 115.
[12]
S
v N
(Centre for Child Law as
amicus
curiae
) 2008 (3) 232 (CC), para 115
[13]
S
v Salzwedel and others
2000 (1) SA 786
(SCA) at para 17.
[14]
S
v Ndhlovu 2002 (6) SA 305 (SCA)
[15]
Now
the senior Law Lord
[16]
R
v Bieber
[2009] 1 All ER 295
(CA) para [56]. This case involved the
accused who had been detained for being in possession of a stolen
motor vehicle suddenly
producing a gun and shooting all three
policemen who were on the scene and then administering the
coup
de grace
to one
already wounded and unable to escape. It was on any basis a far
worse case than the present one. Not only were the victims
policemen
but there was no question of the killings being anything other than
cold-blooded murder, unlike the present situation
where the
appellant was for some reason enraged.