About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1989
>>
[1989] ZASCA 87
|
|
S v Nel (59/88) [1989] ZASCA 87; [1989] 4 All SA 900 (AD) (17 August 1989)
59/88 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
A P J NEL
APPELLANT
vs
THE STATE
RESPONDENT
CORAM
: E M GROSSKOPF, STEYN et KUMLEBEN JJA
HEARD
: 23 MAY 1989
DELIVERED
: 17 AUGUST 1989
JUDGMENT
KUMLEBEN JA
/...
1.
KUMLEBEN JA:
The appellant was charged in the regional court with, inter alia, sabotage in
terms of sec 54(3) (e) of the Internal Security Act,
No 74 of 1982,
alternatively, with malicious injury to property. Initially he pleaded not
guilty to both charges. At the close of
the State case, he altered his plea on
the alternative charge to one of guilty. This was not accepted by the State. The
trial proceeded,
at the conclusion of which he was found guilty on the main
charge and sentenced to 10 years' imprisonment. His appeal to the Orange
Free
State Provincial Division of the Supreme Court was partially successful. The
conviction was confirmed but the sentence altered
to one of five years'
imprisonment. The judgment is reported (
S v Nel
1987 (4) S A 276
(OPD))
and the page
2/...
2.
citations in this judgment refer to that reported decision.
Leave was granted by that court for a further appeal against both the
conviction
and reduced sentence.
The facts giving rise to these charges are fully set out in the judgments of
the trial court and the court a
quo
. Only certain of them, which were
undisputed or plainly proved, need be initially recounted.
The appellant started work at the Western Holdings Gold Mine ("the mine") in
1981. In April 1983, when he was a shift boss at no 7
shaft, it was inspected by
officials not connected with the mine. Their selection of his working place at
the mine was a random one.
After their inspection they submitted an unfavourable
report to Mr Edkins, the production
3/...
3.
manager of no 6 and no 7 shafts. He severely
reprimanded the appellant, amongst others. (His work
record hitherto had
been exemplary.) During the period
June to November 1983 three underground
electrical sub-
stations were blown up and sabotage was suspected.
This led to the
appellant being transferred to no 6
shaft. After about two weeks he was allowed at his
request to return to no
7 shaft but was warned that any
further trouble there could result in his
dismissal.
There was a further mishap. A f ire broke out in
the
appellant's section of the shaft. This led to Mr
Edkins discharging
him on grounds of incompetence. The
appellant felt that this action was
unfair and was
deeply aggrieved by it.
For the next four weeks he unsuccessfully applied for work at various gold
minês in the area. He
4/...
4. eventually found employment as a shift boss on the Free
State Geduld Gold Mine. After he had been working there for about a fortnight,
the personnel officer informed the appellant that he was in trouble for having
engaged him since the reason for the appellant's dismissal
from his previous
employment had come to the notice of this official's superiors. The appellant
was told that on this account he
might well lose his job. This was on Friday 18
May 1984. That day, whilst working underground, he stole 14 packets of
explosives
(about 2 kilograms in weight) and took them home with him. On the
following Monday the appellant was in fact discharged. That same
evening he took
the stolen explosives and went to no 7 shaft of the mine. The shaft clerk's
office (also referred to as the planning
office), which was the one easily
accessible to him, was one of twelve offices in the administration
5/...
5. block of that shaft. He placed all the packets of
explosives in that office and detonated them. This caused extensive damage to
the entire block of offices and its contents, which included records, schedules,
a computer and furniture; in short, all the appurtenances
of administrative
offices. The ensuing disruption, from the time of the explosion until the end of
August when normal mining operations
on that mine were resumed, resulted in a
loss of production estimated at R870 016,00 (a 3.4 percentage loss over that
period) and
the cost of replacement of that portion of the office block and
equipment was about R156 000,00. The intent accompanying the damage
caused by
the appellant will be discussed in due course. At this stage all that need be
said is that it was an act of retribution
for what was seen by him to be unfair
treatment at the hands of Mr Edkins and was directed at him and the mine in
general.
6/...
6. Thus it was that the appellant was charged, as I have
said, with sabotage in terms of sec 54(3)(e) of the Act. The first three
subsections of sec 54, respectively create the statutory offences of
"terrorism", "subversion" and "sabotage". I cite those provisions
of sec 54(3)
that are for present purposes relevant and, in reference to a recent decision of
this court to which I shall advert,
the two preceding subsections are also set
out in abbreviated form:
"(1) Any person who with intent to -
(a) overthrow or endanger the State "authority in the Republic;
(in sub-paragraphs (b) to (d) further prescribed intentions are set out)
in the Republic or elsewhere -
(i) commits an act of violence or threatens or attempts to do so;
(in paragraphs (ii) to (iv) further proscribed acts are stated)
7/...
7.
shall be guilty of the offence of terrorism and liable on conviction to the
penalties provided for by law for the offence of treason.
(2) Any person who with intent to achieve any of
the objects specified in
paragraphs (a) to
(d), inclusive, of subsection (1)
-
(a) causes or promotes general dislocation or disorder at any place in the
Republic, or attempts to do so;
(b) cripples, prejudices or interrupts at any place in the Republic any industry
or undertaking, or industries or undertakings generally,
or the production,
supply or distribution of commodities or foodstuffs, or attempts to do
so;
(paragraphs (c) to (k) specify further
objectives)
shall be guilty of the offence of subversion and liable on conviction -
(i) to imprisonment for a period not exceeding twenty years;
or
(ii)
(3) Any person who with intent to -
(a)
8/...
8.
(b)
(c)
(d)
(e) cripple, prejudice or interrupt at any
place in the Republic any
industry or
undertaking or industries or
undertakings generally or
the
production, supply or distribution of
commodities or foodstuffs;
or
(f) .
in the Republic or elsewhere -(i) commits any act;
(ii)
(iii)
(iv)
shall be guilty of the offence of sabotage and liable on conviction to
imprisonment for a period not exceeding twenty years."
In the case of
Minister of Law and Order and Others v Pavlicevic
1989(3) S.A. 679 AD this court was
9/...
9.
concerned with the nature of the offence (subversion) created
by sec 54(2) of the Act. The respondent's husband had been arrested
and detained
in terms of sec 29(1) of the Act. It provides that an officer of the South
African Police of or above a prescribed rank,
may arrest and detain a person if
he has reason to believe, inter alia, that he has committed an offence referred
to in sec 54(2).
The appeal turned on the question whether the officer concerned
had reason to believe - as he purported to have - that the erstwhile
detainee
(he was released from detention by order of the court a
quo
) had done an
act included in sec 54(2) with the intent to achieve the objects specified in
two of the paragraphs of sec 54(1). The
offences created by sec 54(2), as
explained in the judgment (per Corbett CJ) at 689 B - C,
10/...
10.
"consist essentially of two elements: (i) conduct falling within one or other of
the categories listed in paras (a) to (k) inclusive
-'the conduct element' - and
(ii) an accompanying intent to achieve any of the objects specified in paras (a)
to (d) inclusive of
sec 54(1) - ' the mental element'. The coincidence of both
elements is obviously essential for the commission of the crime of
subversion."
The appellant in that case contended that the
"intent element" in sec 54(2) included the common law concept of
dolus
eventualis
and that therefore to sustain a conviction on a charge of
subversion in terms of sec 54(2) it need only be proved that an accused
subjectively foresaw the possibility of his act attaining one of the objects
listed in paragraphs (a) to (d) of sec 54(1) and that
he was reckless of such
eventuality. (Cf.
S v Sigwahla
1967 (4) S.A. 566
(AD) 570 B - C.) This
argument was rejected - see page 689 E to 690 A - on the grounds that:
11/...
11.
"One is here not dealing with the concept of
mens rea
, which is a
necessary ingredient of common law crimes and of most statutory offences, but
with an expressly prescribed element in
a statutory offence. And the wording of
the section, in my view, clearly excludes the idea of some sort of
dolus
eventualis
. It decrees that the offence is only committed if the person
concerned did one of the listed acts 'with intent to achieve' any of
a number of
specified objects (or, as the Afrikaans text, the signed one, puts it, 'met die
opset om enige van die doelstellinge
..... te bereik').
Whatever the position may be where a person commits such an act with intent
to achieve both a proscribed object and one which is not,
I am satisfied that
the section does not cover the case where the person commits the act, not with
the intention of achieving a proscribed
object, but merely with the knowledge
that his conduct may have that result. To hold otherwise would amount to flying
in the face
of the express language of the section. In this connection it must
be borne in mind that sec 54(2) creates a very serious offence,
punishable with
a maximum sentence of twenty years imprisonment (in certain circumstances
twenty-five years imprisonment); that consequently
even if the language is
ambiguous (which I do not think it is) the less onerous interpretation should be
adopted (see
Rex v Milne and Erleigh (7)
1951 (1) SA 791
(A), at 823 A -
F); and that this approach would lead to a rejection of the argument of
appellant's counsel.
12/...
12.
Some support for my conclusion concerning
dolus eventualis
may, I think,
be derived by way of analogy from a series of cases in which it has been held
with reference to sec 29(1) of the Black
Administration Act 38 of 1927, which
penalises conduct 'with intent to promote any feelings of hostility between
Bantu and Europeans'
(Afrikaans: 'met die doel om vyandige gevoelens tussen
Swartes en blanke te bevorder'), that for the State to succeed in a prosecution
under this section it is not sufficient to show that an accused possessed a
constructlve intention (ie
dolus eventualis
); the State has to prove the
actual intention of promoting such hostility (see
S v Singh and Another
1975 (1) SA 330
(N), at p 335 C-F, and the cases there cited; see also
S v
Mbiline and Another
1978 (3) SA 131
(E), at p 134 C - 135
A)."
The offence of sabotage created by sec 54(3) likewise
consists of the two stated elements, the "intent element" being as explicitly
formulated and stated. The reasoning and conclusion in the quoted passage
applies equally to this offence. This was conceded by Mr
Nel, who appeared for
the respondent. Thus, positively stated, in this case the State was required to
prove that the appellant had
the actual
13/...
13. intention (
dolus directus)
specified in
paragraph (e) of sec 54 (3) of the Act.
The guestion posed by Holmes JA in
S v Sabben
1975(4) S.A. 303 (AD) at
304 B - C, an appeal against a conviction of murder, contrasts the two forms of
intent:
"Did he actually intend to compass the death of the deceased (murder with
dolus directus
); or was it a case of foresight of the possibility of
resultant death, and persistence regardless whether death ensued or not (murder
with
dolus eventualis
)."
Certain authorities in the field
of criminal law recognise an intermediate category of intention falling within
the concept of actual
intent. For instance, in South African Criminal Law and
Procedure (2nd Ed.) Vol I at pages 136 and 137 the following appears:
14/...
14.
"Actual Intention (
Dolus Directus or Indirectus
)
This is intention in its ordinary grammatical sense. The accused meant to do the
prohibited act or to bring about the criminal consequence.
Actual intention will
be present in two situations: first, where the accused's aim and object was to
do the unlawful act or to cause
the consequence, even though the chance of its
resulting was small; and secondly, where, although not the accused's aim and
object,
he foresaw the unlawful act or consequence as certain, or as
'substantially certain', or 'virtually certain'."
(Cf. Snyman
Strafreg (4th Ed) 139.) For present purposes I assume in favour of the
respondent that the "intent" referred to in sec
54(3) includes
dolus
indirectus
.
It follows that it must be proved that the appellant actually intended one or
more of the consequences listed in paragraph (e) of
sec 54(3). This
sub-paragraph, one notes, incorporates two distinct, and significantly
different, objectives or intentions and
15/...
15. thus two distinct forms of contravention. The offence
may be committed (1) with intent to "cripple, prejudice
or interrupt .....
any industry"; or (2) with intent to
"cripple, prejudice or interrupt ... the
production, supply or distribution of commodities or foodstuffs". (For ease of
ref erence
I shall ref er to (1) as "the industry directed intent" and (2) as
"the commodity directed intent").
I turn to the charge on this count and its formulation. It is alleged:
"DAT die beskuldigde skuldig is aan
Sabotasie
binne die bestek van
Artikel 54(3)(e) Wet 74/1982.
DEURDAT op 21 Mei 1984 en te
Western Holdings Goudmyn, Welkom, in die distrik van Welkom en in die
Streeksafdeling van die Oranje-Vrystaat,
die beskuldigde wederregtelik en
opsetlik die beplanningskantoor van die Western Holdings Goudmyn, Welkom met
plofstof beskadig het,
met die opset om die produksie van handelsware van die
genoemde Western Holdings Goudmyn synde 'n nywerheid of onderneming te verlam
en/of te benadeel en/of te onderbreek."
16/...
16. It will be seen that the charge explicitly and
accurately refers to, and follows the language of, the commodity directed
intent,
save that a reference to "supply or distribution" and "foodstuffs" has
been omitted. The additional words - "being an industry or
undertaking" - are,
to my mind, descriptive and parenthetic. It was argued that by their
introduction the author included, albeit
in an obscure way, an * allegation of
industry directed intent. This submission - an inherently unattractive one -
cannot be accepted.
The words cripple, prejudice or interrupt govern "the
production of commodities" and nothing else: grammatically they cannot possibly
refer to the phrase "being a mine". The charge therefore complied with the
requirements of
sec 84
of the
Criminal Procedure Act no 51 of 1977
, ("the
Criminal Code") in
that it set out with sufficient clarity the essentials of the
charge.
17/...
17.
One is consequently not dealing with the situation where a
defective charge sheet may or may not have been cured by evidence (see
sec 88
of
the
Criminal Code).
>In
S v Hugo
1976 (4) S.A. 536 (AD) 540 E - G this court (per Miller
JA) affirmed that:
"An accused person is entitled to require that he be informed by the charge with
precision, or at least with a reasonable degree
of clarity, what the case is
that he has to meet and this is especially true of an indictment in which fraud
by misrepresentation
is alleged. (Cf.
R. v. Alexander and Others
, 1936
A.D. 445 at p. 457;
S. v. Heller and Another
, 1964 (1) S.A. 524 (T) at p.
535H). It is of vital importance to such an accused to know what he is alleged
fraudulently to have
said or done and he ought not to be left to specualte as to
the true nature of the misrepresentations laid to his charge, nor to
spell out
of the charge possible misrepresentations upon which the State might have
intended to rely but which it did not reasonably
clearly describe. And when the
State clearly specifies the misrepresentations upon which it relies the accused
is entitled to regard
them as exhaustive and to prepare his defence in respect
of those representations and no other."
18/...
18 . These comments, though made in different context,
apply
equally to the averment of the intent in the present
case. Thus the
question to be decided is whether the
case the appellant was called upon to
meet, namely, the
alleged commodity directed intent, has been proved.
This
conclusion is confirmed by consideration of what
the position would have been
had the State applied for
an amendment of the charge on appeal to allege
the
other intent.
Section 86
of the
Criminal Code provides
that the trial
court may order the amendment of a
charge, inter alia, "where there appears
to be any
variance between any averment in a charge and the
evidence
adduced in proof of such averment ...." It is
settled law that a court . of appeal is empowered to
grant any amendment
which the trial court could have
effected. (See
S v Barketts Transport
(Edms) Bpk en 'n
Ander
1988 (1) S.A. 157
(AD) 160 I.) Had such
an
amendment been sought there are sound grounds why it
would not have
been granted. In S
19/...
19.
v Kruger en Andere
1989 (1) S.A. 785
(AA) 796 C
- J, in reference to an application on appeal to amend the charge by
substituting materially different allegations in
order to sustain a conviction,
it was pointed out that:
"Die begrip 'wysiging' veronderstel h mate van behoud van dit wat gewysig word.
Indien h voorgestelde 'gewysigde' aanklag glad nie
meer met die oorspronklike
aanklag identifiseerbaar is nie, is daar dus nie sprake van h wysiging nie, maar
wel van h vervanging.
Hierdie slotsom bring vanselfsprekend mee dat die grens
tussen h wysiging en h vervanging in die praktyk nie altyd maklik te trek
sal
wees nie. In elke geval sal nagegaan moet word of die voorgestelde 'gewysigde'
aanklag tot so h mate van die oorspronklike aanklag
verskil dat dit in wese h
ander aanklag is."
Similarly in the present case, assuming that
an
industry directed intent was proved, any such
"amendment" would have
amounted to the substitution of
a different offence. (Cf.
S v Sarjoo
1978 (4) S.A. 520
(NPD) 522 E - H.)
20/...
20. The construction to be placed on the charge was
debated in the court a
quo
. The learned Judge was of the view
"that both forms of the offence as contemplated by the súb-section have
been set out therein in a somewhat telescoped form"
and was
"not persuaded that the charge is sufficiently vague and embarrassing to the
extent that the appellant could have been prejudiced
thereby, especially in the
light of the admission" (page 281 F - G).
This conclusion was
based on three grounds. The first
two were that at the trial there was no
objection to
the charge and no further particulars were sought "for
the
purpose of limiting or clarifying the issues" (page
280 D - E) . But, as I
have indicated, the charge as
framed was not vague. It set out with adequate clarity
the nature of the
offence and there was consequently no
cause for objection or need for clarification. The
21/...
21.
third ground relied upon was an admission, made at the start
of the trial, that the mine was an industry. But the fact that a superfluous
averment was admitted is in itself no reason for concluding that a different
form of offence was incorporated in the charge or that
there was an
acknowledgement on the part of the appellant to that effect.
I turn to consider whether a commodity directed intent was proved.
The evidence in this regard, though canvassed in great detail, is not all
that divergent. At the time of his arrest the appellant
was questioned by Capt
Mostert and asked to explain his misconduct. The one answer Capt Mostert
remembers, verbatim, is that the
appellant, in language which need not be
repeated (but
22/...
22. see page 282C), said in effect that Mr Edkins had ruined his
life and that he wanted to blow up the entire mine. The second portion
of this
statement is clearly an exaggeration. The appellant initially denied ever having
made it. Later under cross-examination he
conceded that this is possibly what he
had said. He was distraught at the time of questioning, as his intemperate
language would
seem to confirm. According to Capt Mostert he behaved in a
strange manner and was at times in tears. In the circumstances, and in
the
absence of more details of the conversation with Capt Mostert, this answer ought
not to be regarded as an accurate or comprehensive
disclosure of his intention.
In point of fact it is unnecessary for the State to rely on it since there is no
gainsaying the fact
that he did intend to cause extensive damage to mine
property. His reason for
23/...
23. doing so and his state of mind at the time emerge from
his evidence.
He was out of work and his family, wife and young daughter, were about to
leave him. His deep sense of grievance was directed at Mr
Edkins ("Hy het my
weggejaag, soos 'n hond, oor iets wat ek nie gedoen het nie. Ek kan dit nie vat
nie, 'I am sorry'".) This he said
when giving evidence by way of explaining his
conduct. When asked under cross-examination what his intention was he said:
"Ek wou net, ek was beskuldig van alles en nog wat en van nog wat en ek wou
net vir hulle wys, ek weet nie wat wou ek hulle wys nie,
ek wou hulle wys as ek
iets breek, dan hoe lyk dit.
HOF
: As jy iets breek, hoe lyk dit? -- Ja.
AANKLAER
: Uit u woorde kry ek die indruk dat u wou 'n indruk op
hierdie mense maak, u wou vir huile wys wie is jy en dat daar nie met jou
gemors
word nie, ' is dit korrek? — Nee, dit is nie heeltemal korrek nie.
24/...
24.
Nou verduidelik vir die Hof. -- Dit is nie dat ek hulle wou wys daar kan nie
met my gemors word nie of wie ek is nie, ek wou maar
net ... ek wou net
vergelding kry of soek of ek weet nie, ek weet nie wat se woorde om daarvoor te
gebruik nie, vir die manier waarop
ek behandel is, wat ek nie verdien het
nie.
U gee toe dat u hierdie ding deeglik vooraf geplan, is dit korrek so? -- Dit
is korrek.
U het ook seker besluit dat daar sekere gevolge wat u wei veroorsaak wil
hê? -- Ek het nie aan die gevolge gedink nie, glad
nie.
U het nie aan die gevolge gedink nie, maar u het besef dat daar gevolge gaan
wees, is dit korrek? -- Dit is korrek.
Wat wou jy eintlik daar deur veroorsaak? --Ek weet nie self nie wat wou ek
veroorsaak nie, ek wou net, ek was net in so 'n toestand,
gemoedstoestand, dat
ek wou net iets, ek wou net iets breek, dit is al wat ek wou
doen."
These answers, which seem to have been
spontaneous,
probably reflect his intention as far as he had
formulated
it. His replies to certain other questions
put in cross-examination are in
similar vein, as
appears from the following extract from the record:
25/...
25.
"Maar wat was u doel? — Soos ek netnou gesê het, ek wou iemand,
ek wou iets terugkry, ek wou, ek wou 'even' kom vir wat
hulle aan my gedoen
het.
Was mnr Edkins die hoofpunt? — Hy was.
So dan is kaptein Mostert se woorde nie te vergesog as hy sê dat u aan hom
wel gesê het, of dat hy die afleiding uit
u woorde gemaak het, dat deur
die myn te benadeel, u geweet het u mnr Edkins ook sal seermaak? — Deur,
ek het mnr Edkins nie
seergemaak nie, al wat ek gedoen het, ek het hom werk
gegee, dit is nie seermaak nie.
Soos kaptein Mostert gesê het, dit is die indruk
wat hy gekry het, dat die myn bloot die teiken was om Edkins by te kom, gaan u
akkoord daarmee, dit is hoe u daaroor gevoel het?
— Ja.
U het 'n doel gehad, maar u het ook besef dat
indien u in hierdie doei
voldoen, dit ook ander
gevolge sal hê, is dit korrek? - Dit is
korrek.
Ten spyte van hierdie ander gevolge wat u voorsien het, het u voortgegaan met
die daad wat u gepleeg het? -- Ek het.
Ek wil dit daarom aan u
stel dat u die verlamming of die benadeling of die onderbreking van die
produksie van hierdie myn voorsien
het en dat u ten spyte daarvan voortgegaan
het met hierdie daad van u ? -- Nee. "
His evidence on his state of mind is to be viewed with
26/...
26.
circumspection. The magistrate found him to be an
unimpressive witness and there are clear indications that he at times attempted
to place a more innocent interpretation on his conduct than the facts permit.
Nevertheless, the above-quoted passages, which in the
nature of things cannot be
controverted by any direct evidence, are, in my view, in line with the
probabilities and background facts.
On this evidence Mr Nel was hard pressed to contend that the State had proved
a commodity directed intent. It is at least reasonably
possible, having regard
to his state of mind at the time, that the appellant did not think beyond
causing damage as an act of vengeance
and that, if it crossed his mind that this
would adversely affect production of gold bearing ore (assuming that such can
properly
be described as a
27/...
27.
"commodity"), this consideration formed no part of his actual
intention.
Neither the trial court nor the court a,
quo
found such an intent to
have been proved.
In the judgment of the former it was said that:
"Beskuldigde het selfs in sy hoofgetuienis erken dat indien die
kommunikasienetwerk beskadig is, die produksie in h sekere mate beïnvloed
sal word. Deur die beplanningskantoor wat beskryf kan word as die brein van
hoofsaaklik nommer 7 skag te verwoes met inhoud, het
beskuldigde voorsien dat
produksie benadeel sal word.
Dolus eventualis (
opset met die
moontlikheidsbewussyn) is gevolglik van toepassing."
And at the conclusion of this judgment the findings of fact were,
inter
alia
, that the appellant had the required intent "to sabotage" the planning
office of the mine; and that the production of the mine was
in
28/...
28.
fact prejudiced. It would therefore appear that the
conviction was based on
dolus eventualis
(in respect of the industry
directed intent, though possibly both forms of intent).
The judgment of the court a
quo
(per Findlay AJ with Hattingh J
concurring) in addressing this question, states at the outset that:
"... the issues to be determined on the evidence are whether the accused had the
necessary intention to cripple, prejudice or interrupt
either the production of
commodities by Western Holdings Gold Mine, or Western Holdings Gold Mine as an
industry." (page 281 H -
I).
A careful analysis of the evidence
followed, at the conclusion of which the court found, with respect correctly,
that the appellant
did not, as he contended, intend to restrict the damage to
the planning office and to property in its immediate vicinity and that
he
29/...
29.
must have foreseen the possibility of extensive damage. The learned judge
said in summing up:
"Nevertheless I am satisfied that when the
evidence of the accused is weighed in the light of
the relevant facts and circumstances, the
inference which is inescapable is that he must
have foreseen the possibility of extensive damage
being caused aibeit that he may not have realised
the full extent thereof. I come to this
conciusion because, when regard is had to the
factors which I have outlined above, the only
possible inferencs to be drawn is thak khe
appellant on his own showing had clearly intended
to cause damage to portion of the office compiex,
at very lowest, and, given his knowledge in regard
to the use of this type of explosive, he must have
foreseen that the damage would have been
extensive. In my view the magistrate was quite
right in rejecting his expianation that he did not
have such an intention." (page 287 B - D).
Immediately preceding this passage there is a reference to
S v du
Preez
1972 (4) S.A. 584
(AD) 588H - 589G, in which the sufficiency of
inferential evidence to prove
dolus eventualis
is discussed. Earlier in
the judgment
30/...
30.
it is noted that counsel were agreed (without, of course, the benefit of the
decision in the
Pavlicevic
case) that it was sufficient for the State to
prove in the present case
dolus eventualis
. Thus, although it is not
entirely clear whether the court concluded that the industry directed intent or
the commodity directed
intent, or perhaps both, were proved, one can safely
infer that the decision on appeal was based on
dolus eventualis
as
opposed to actual intention.
In the result, in my view, it cannot be said that an actual intention to
cripple, prejudice or interrupt the production, supply or
distribution of
commodities was proved.
In the event of an intent in terms of
sec 54(3)
being proved in accordance
with the charge, counsel for
31/...
31 . the appellant advanced a further argument. He submitted that
on a proper construction of the subsection the intent envisaged
by it must in
addition have a political component: to state the proposition broadly and in no
way definitively. It was common ground
that the appellant had no such intention,
or underlying intention: the act was one of private vengeance. The court a
quo
(pages 287 E to 294 F) gave careful consideration to this argument
but concluded that it could not be upheld. In the light of the
conclusion I have
reached, it is unnecessary for this question to be settled in this appeal.
There remains the appeal against sentence. In this regard the submissions
made in the court a
quo
, which led to the substantial reduction in
sentence, were repeated and it was submitted that the sentence
32/...
32.
ought to be further reduced, particularly if the conviction
were to be set aside. The substitution of the conviction, though not immaterial
and a factor calling for reappraisal of the sentence imposed, does not on the
facts on this case in any way alter the nature of his
misconduct or its
far-reaching consequences. To my mind the reduced sentence of the court a
quo
remains an appropriate one.
The appeal succeeds partially. The conviction of sabotage is set aside and
one of malicious injury to property is substituted. The
appeal against
sentence
M E KUMLEBEN
JUDGE OF APPEAL
E M GROSSKOPF JA)
STEYN JA) agree