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1988
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[1988] ZASCA 6
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S v Samaai (6/1988) [1988] ZASCA 6 (10 March 1988)
MOEGAMAT ABDOEL SAMAAI
Appellant
and
THE STATE
Respondent
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
MOEGAMAT ABDOEL
SAMAAI
Appellant
and
THE STATE
Respondent
Coram
: VILJOEN, VIVIER, JJ A
et BOSHOFF, A J A
Heard
: 4 March 1988
Delivered
: 10 March
1988
JUDGMENT BOSHOFF, A J A:
This is an appeal against sentence. The
appellant was convicted of public violence in a district
division /2
-2-
division of the Wynberg Magistrate's Court and sentenced to 12 months'
imprisonment. He appealed unsuccessfully to the Cape of Good
Hope Provincial
Division and was granted leave to appeal to this Court only against the
sentence.
The circumstances of the offence are the
following.
On 4 September 1985 at about 19h50
constables Johnson and Witbooi of the South African Police were on patrol duty
in a police vehicle
in the Parkwood residential area. There was a situation of
unrest in Acasia Road. The police dispersed people at various spots. Two
large
fires fuelled by motor tyres were raging at different places in the middle of
the road. The fires were clearly intended to
serve as road-
blocks /3
-3-
blocks. The arrival of the police caused the people at these fires to
turn to flight. Further down the road near the intersection
of Willow Road there
was a crowd of 30 to 40 people alongside and halfway into the road. Near them
two motor tyres were in the intersection.
When these people noticed the
approaching police vehicle they became riotous
and started to throw stones at
it. The appellant was amongst
them and was also seen to throw stones. He then went to
the tyres, which had previously been doused with petrol, and
set them
alight. This was obviously done to obstruct the
course of the police vehicle.
When the stone-throwing and
the burning tyres failed to stop the approach of
the police
vehicle, the appellant fled. The police vehicle went on to the
pavement /4
-4-
pavement to pass the burning tyres and followed the appellant. It
caught up with him and he immediately turned back and fled in the
opposite
direction. Constable Johnson got out of the vehicle and called upon him to stop.
He ignored the call and the constable then
fired a shot at him with a shot-gun
using birdshot and struck him in the hand and in the buttock. He was then
arrested.
On the evidence the tyres that were lit and the stones that were thrown in
the vicinity of the area in question were part of a far
wider upheaval. Burning
tyres piled in the road not only obstructed traffic and made vehicles fall prey
to stone-throwers, but also
damaged the tarred surface of the road. In the
instant case there was no damage to the
road /5
-5-road solely due to the fact that the fire was extinguished and the tyres
were removed from the road by some unknown person.
The magistrate took a serious view of the offence and at one stage thought of
referring the case to the regional
court for sentence. He was of the view that a sentence of
two to three years would be a proper sentence for this kind
of offence and that his jurisdiction of one year imprisonment
would in the circumstances be inadequate. He eventually
decided against such a step.
In discussing the offence, the magistrate made mention
inter
/6
-6-
inter alia
of the following:
"As far as the crime is concerned, it is common knowledge that the unrest
just grew and grew and to such an extent did the different sporadic
commissions of unrest take place that in this area, the Peninsula and
spe-
cifically in this Magisterial District of Wynberg, a situation of emergency
was declared. The Court must take
that into consideration, although in your favour is that the commission
of your crime was not at or about the time that this was declared an
emergency area.
The crime that you have been
convicted of is of a serious nature
because firstly, your action shows no respect whatsoever for the public
peace and security. You invaded the rights of other persons, the public
and also the police in this respect. Further, what the Court also bears
in /7
-7-
in mind is that this crime was committed quite close to the residence of a
Member of Parliament and the Court is aware of Members
of Parliament, Coloured
Members of Parliament whose houses have been burnt, bombs have been thrown at
these houses and in fact two
members were quite seriously injured through the
doings of certain
of these unrest people. Public
violence as such is a very serious
crime and the Court sees it in that
light and under normal circumstances this is a case that should be heard in a
Regional Court, not in a District
Court. This Court is of a strong
opinion that none of these cases should be in any District Court."
Mr
Potgieter
for the appellant contends that the magistrate
misdirected himself in three respects. According to him he acted on the basis
that
a sentence of two to three
years /8
-8-years was the norm for the offence of public violence irrespec-
tive of the considerations relative to the assessment of punish-
ment. He
thus fettered his discretion. There does not seem to be any merit in this point.
The magistrate did not consider himself
bound to refer the case to the regional
court so that such a sentence could be passed. He merely mentioned these terms
of imprisonment
to indicate in what serious light
such cases are regarded.
The fact remains that he dealt
with the case himself despite his limited jurisdiction.
Mr
Potgieter
also argues that the magistrate erred :
in taking the
following factors into account: (a) That "a
situation of unrest" was declared
in the "Peninsula" due to
the growing instances of "different sporadic
commissions of
unrest /9
-9-
unrest", there being no evidence to this effect on the record; and (b) that
the incident occurred close to the house of a member of
Parliament and that the
houses of other members were burnt and bombed and two of them seriously injured;
this information being irrelevant
in the absence of evidence linking the actions
of the appellant to such incidents.
This argument cannot be supported. It overlooks one of the basic reasons why
a court of appeal regards the infliction of punishment
as pre-eminently a matter
for the discretion of the trial court. As was pointed out by Innes C J in
R v
Mapumulo and Others
1920 AD 56
at 57:
"It can better appreciate the atmos-phere of the case and can better
estimate /10
-10-
estimate the circumstances of the locality and the need for a heavy or light
sentence than an appellate tribunal."
De Wet C J in
R v Ford
1939 AD 559
at 560 said
about this
passage:
"The Chief Justice by mentioning the
relevance of the atmosphere
of the
case and the circumstances of the
locality where the offence was com-
mitted, seems to me to recognize
impliedly that the question whether
offences of a similar nature are
prevalent or not in this district
can be taken into consideration by
a magistrate in passing sentence."
Mr
Potgieter
further contends that the trial court
did not
properly weigh or have sufficient regard to the
appellant's.../11
-11-
appellant's personal circumstances and background.
The appellant was represented at his trial and did not give evidence in
mitigation of sentence. The magistrate certainly had regard
to circumstances to
which his attention was drawn because he mentioned them in his judgment. There
are other circumstances which
were mentioned in argument about which no evidence
was placed before the trial court. It
is difficult to imagine how the magistrate could have considered
them.
Mr
Potgieter
in conclusion argues that the
magistrate
incorrectly failed to consider alternative forms of
punishment,
more particularly a fully suspended sentence or
corporal
punishment /12
-12-
punishment. This is not correct because it appears from
his judgment that he was requested by the representative
of the appellant not to consider corporal punishment but to
consider a
postponed sentence.
In all the circumstances I am unpersuaded that the magistrate misdirected
himself in any way or that the sentenced imposed by him
was disturbingly
inappropriate.
In the result the appeal is dismissed.
ACTING JUDGE
OF APPEAL
VILJOEN, J A)
concur VIVIER, J A)