Smith and Others v S [2006] ZAFSHC 144 (2 March 2006)

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[2006] ZAFSHC 144
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Smith and Others v S [2006] ZAFSHC 144 (2 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A557/2003
In
the appeal between:-
J
M C SMITH
First
Appellant
A
C VILJOEN
Second
Appellant
W
J BOTES
Third
Appellant
E
M KRUGER
Fourth
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
HATTINGH
J
et
CILLIé
J
et
RAMPAI
J
_____________________________________________________
HEARD
ON:
20
FEBRUARY 2006
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
2
MARCH 2006
_____________________________________________________
[1] Initially
four appellants were supposed to be involved in these proceedings.
Today, however, the fourth appellant was not ready
to proceed. His
appeal had to be removed from the roll. Therefore, I shall say no
more about him. The appeal before us concerns
the remaining three
appellants.
[2] The
three appellants were tried and convicted in the Parys Circuit Court
on 12 December 2001 on two counts of murder. The next
day on 13
December 2001 each of them was sentenced to 15 (fifteen) years
imprisonment in respect of each count. The court directed
that 10
(ten) years of the sentence meted out in respect of the second charge
should run concurrently with the sentence imposed in
respect of the
first charge. The effective sentence which each of the appellant has
to serve, is therefore 20 (twenty) years imprisonment.
They now come
to this court on appeal against both the conviction and the sentence.
[3] As
far as the merits are concerned, it was contended on behalf of the
appellants that even if the versions of the appellants were
correctly
rejected as false, the court
a
quo
had misdirected itself in evaluating the real impact of the excessive
alcohol they had consumed, the addictive cannabis they had
smoked and
their relative immature youth.
[4] The State relied
primarily on the testimonies of Brazao, Kobben, Van Tonder and
Mofokeng in support of the first charge against
the appellants. In
the course of his judgment Hancke J said the following on p. 1309: 24
to p. 1310: 11:-
“
Soos reeds
gemeld het mnr. Mofokeng ‘n goeie indruk op die Hof gemaak. Wat
die weergawes van Brazao, Kobben en Van Tonder betref,
is dit seer
sekerlik so dat hulle vertoning in die getuiebank nie vry is van
kritiek nie en dat daar weesprekings en verskille is
in hulle
getuienis, asook hulle weergawe wat hulle aan die polisieverklarings
vermeld het. Dit blyk egter duidelik, as die getuienis
in totaliteit
geneem word, dat beskuldigdes 1, 2 en 3 daarop uit was om moeilikheid
te gaan soek met swart mense wat gelei het tot
hierdie aanrandings.
Mnr. Mofokeng staaf die here Brazao, Kobben en Van Tonder tot ‘n
mate en is daar onderlinge stawing te vinde
in hulle weergawes
ondanks die geregverdigde kritiek wat geopper kan word ten opsigte
van hulle weergawe. Die Hof is tevrede dat
mnre. Brazao, Kobben en
Van Tonder se weergawe in breë trekke korrek is dat dit die
beskuldigdes was wat by die taxi staanplek afgeklim
het, waarna die
oorledenes (in aanklag 1) aangerand is.”
The
one critique against the three was that they were intoxicated.
However, the critique does not apply to Mofokeng.
[5] The
version of all the appellants in respect of the first charge was
substantially the same. Their common version was that the
State
witnesses, particularly Kobben and Van Tonder, were to blame for the
first victim’s murder. The court
a
quo
found that their version was fraught with improbabilities, blatant
lies and serious contradictions and that it could on account of
those
defects be safely rejected as false. Although they too were under
the influence of alcohol, they were not so intoxicated that
they did
not know what they were doing. They easily ran away from the scene
and easily jumped onto the bakkie after assaulting the
first victim.
[6] The
court
a
quo
thoroughly dealt with the form of criminal intent. Among other
decisions the case of
S
v SALZWEDEL AND OTHERS
2000 (1) ALL SA 229
(AD) was cited at par. 9 b where Mahomed CJ said
the following:
“
They
had appreciated
that
the acts which they had perpetrated or authorised could have led to
the death of the deceased, but had nevertheless proceeded
with such
conduct, in reckless disregard of the consequences.”
[7] The
court
a
quo
came to the following conclusion after analysing and evaluating the
facts:
“
In ag genome die totaliteit van die
getuienis is hierdie Hof tevrede bo redelike twyfel dat die drie
beskuldigdes wel voorsien het
dat die oorledene kan sterf as gevolg
van die aanranding, maar dat hulle roekeloos daaromtrent gestaan het
en steeds voortgegaan
het om die oorledene te skop, onder andere op
sy kop. Die Hof is dus tevrede dat die Staat sy saak bewys het ten
opsigte van beskuldigdes
1, 2 en 3 wat aanklag 1 betref.”
[8] On
the facts and in law the judgment stood squarely on a solid
foundation. I would therefore confirm the conviction of each of
the
three appellants. The combined effect of their relative youth, the
influence of intoxicating alcohol, coupled with the influence
of
cannabis smoking, was not so serious that it can be said that the
appellants did not know what they were doing. The argument
that
because of these three factors the appellants lacked criminal intent
to commit murder can therefore not succeed. In reaching
this
conclusion I am fortified by the serious injuries they inflicted on
the victim. He was bleeding so profusely that Mofokeng
found it
difficult to recognise him. When they repeatedly kicked the victim
on the head, they must have realised that they could
kill him. The
bleeding on the brain underlined the extent of the violent force
applied.
[9] I
turn now to the second charge. Here the State relied chiefly on the
testimonies of Lorinda Ras, Willem Oosthuizen and Edward
Nyoni.
Although the court
a
quo
found that there were certain unsatisfactory aspects about the
testimony of Ras and Nyoni, their evidence was significantly
fortified
by that of Oosthuizen. Moreover, a defence witness for the
first appellant J.J. Breedt, also known as Jakes, corroborated the
prosecution
version in many material respects. Here as in the first
assault, the appellants were admittedly on the scene.
[10] The
attack and assault of the second victim was clearly a continuation of
a wicked, racial and criminal scheme of the appellants
to victimise
blacks at random merely because they were black. In accepting the
version of the State and rejecting the version of
the appellants that
they did not realise the possibility that they might kill the second
victim by kicking him many times on the
head as they did, the court
a
quo
commented as follows:
“
Hierdie Hof is tevrede dat daar
duidelik ‘n vooraf sameswering of ‘n besluit was tussen
beskuldigdes 1, 2 en 3 om swart mense
te gaan slaan en dat hulle
klaarblyklik die aggressors was deurdat hulle op ‘n stadium besluit
het om die oorledene ‘n les te
leer toe hulle hom agtervolg het.
Die weergawe van beskuldigdes 1, 2 en 3 dat hulle hom saggies sou
geskop het, strook ook nie met
die objektiewe feite nie, allermins
met die getuienis van mnr. Oosthuizen wat op ‘n stadium getuig het
die oorledene is hard geskop
en later het hy gesê die oorledene is
met mening geskop. Die feit dat van die beskuldigdes later
teruggekeer het, is ook aanduidend
van die feit dat hulle voorsien
het dat die oorledene as gevolg van die voorval kon sterf.”
The
victim sustained severe head injuries. The trauma applied to the one
side of his head caused him even worse injury to the other
side. In
medical terms such injury is called “a contra coup” injury.
[11] The
conclusion reached by the trial court that the first appellant,
second appellant and the third appellant indeed foresaw that
the
injuries they were inflicting on the second victim, could result in
his death but notwithstanding such realisation of death persisted
with such criminal conduct in reckless disregard of such foreseeable
consequences, cannot be faulted. The argument of Mr. van Wyk
that
the appellants did not, on account of their juvenile immaturity, the
influence of intoxicating alcohol, coupled with the influence
of
cannabis, foresee the fatal consequences of their actions, falls to
be rejected outright.
[12] Indeed
they set out to assault and not to kill. However, from the excessive
brutal force they, in concert with their companions,
employed, I can
readily infer their intent to murder. That intent took the form of
dolus
eventualis
as the court
a
quo
found. The evidence of Oosthuizen was that the victim was pursued by
the appellants as he was fleeing from them; that the second
and the
third appellant stoned him; that their co-accused no. 5 tackled him
and that the victim fell to the ground on his belly.
He was then
repeatedly kicked over and over again on the head by the appellants
and their co-perpetrators. At one stage one of
them jumped on the
head of the helpless victim. The court
a
quo
was,
in my view, correct in dismissing their claim that the victim hit the
kerb as he was falling down. Also false was their claim
that they
had already withdrawn from the assault at the time the victim was
injured on the head.
[13] I
am therefore also inclined to confirm the conviction of all the three
appellants in connection with the second charge as well.
[14] As
regard sentence, it seems to me that the court
a
quo
took into account all the relevant factors and that it considered
them in an appropriate and a balanced manner. I am satisfied that
it
did not exercise its discretion pertaining to sentence improperly or
unreasonably.
[15] I deem it
unnecessary to repeat the personal circumstances of the appellants.
Among others, the following mitigating factors
were taken into
account. The first appellant, the second appellant, the third
appellant were sixteen, seventeen and eighteen years
of age
respectively. All were first offenders. All were intoxicated and
all had been in custody for 2 years before they were sentenced.
[16] The
brutal killings were prompted by virtually nothing but shear racial
hatred of the blacks by the white appellants. In
S
v SALZWEDEL AND OTHERS
supra
at 234 d - f Mahomed CJ had this to say about this sort of behaviour:
“
Substantially
the same
temper should inform the response of South Africa to serious crimes
motivated by racism, at a time when our country had negotiated
a new
ethos and a clear repudiation of the racism which had for so long and
so pervasively dominated so much of life and living in
South Africa.
The commission of serious offences perpetrated under the influence of
racism subverts the fundamental premises of
an ethos of human rights
which must now ‘permeate the processes of judicial interpretation
and judicial discretion’ including
sentencing policy in the
punishment of criminal offences.”
[17] The
appellants formed a criminal gang whose existence was based on a
culture of violence. To this gang the random victimisation
of blacks
appears to have been an exciting hobby. The victims were elderly and
frail persons who stood no chance whatsoever against
the youthful
might of the appellants. They were killed in an absolutely brutal
and merciless manner without any provocation. So
much about
aggravating factors.
[18] As
I see it nothing was over-emphasized and nothing was under-emphasized
at the expense of the appellants. Although the court
a
quo
found
that there were substantial and compelling circumstances in respect
of each appellant it nonetheless imposed the prescribed
minimum
sentences on each of them. Counsel for the State contended that it
was the brutality of the two murders which moved the
court
a
quo
to impose 15 (fifteen) years imprisonment on each of the appellant
and that it would probably still had done so even if no minimum
sentence was prescribed. It has to be pointed out that the finding
by the trial court that there were substantial and compelling
circumstances in this case, did not in itself bind the court
a
quo
to
impose a lesser sentence than the prescribed minimum sentence.
Section 51 Act No. 105/97 provides that the court can and not must
deviate.
[19] Indeed the effective
sentence of 20 (twenty) years imprisonment on the appellants so
young, with clean criminal records, who
were in custody for two years
before they were sentenced and who had abused intoxicating alcohol on
the night in question, is rather
a stiff sentence. But that alone is
not a valid reason to justify our interference. The fact that we
consider it a stiff sentence
which we would not have imposed had we
being seized with the trial does not mean that the sentence invokes a
sense of shock and therefore
inappropriate. It must be borne in mind
that two completely innocent lives were lost as a result of senseless
acts and society expects
the court to punish retributively and
deterrently those responsible. The court was also mindful of the
impact of the two sentences
if they were to run separately and
therefore tempered with such cumulative hardship accordingly. There
being no misdirection on
the part of the trial court, this court
sitting in an appellate mode is not at liberty to interfere with the
sentences imposed on
the appellants. We cannot interfere with the
exercise of a sentencing discretion merely because we would have
exercised that discretion
differently. Determining a proper sentence
falls primarily in the discretion of a trial judge. In my view, the
appeal against the
sentences should also fail. The sentences were
not shockingly severe or disturbingly inappropriate.
[20] Accordingly I make
the following order:
The
appeal fails
in
toto
.
The convictions and the
sentences are confirmed.
______________
M.H. RAMPAI, J
I
concur.
________________
G.A. HATTINGH, J
I
also concur.
____________
C.B. CILLIé, J
On
behalf of the first, second and third appellant:
Attorney
R. van Wyk
Instructed
by:
Andries
Spangenberg Inc.
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Giorgi
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp