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[2020] ZASCA 77
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Mathekga and Another v S (717/2019) [2020] ZASCA 77; [2020] 3 All SA 681 (SCA) ; 2020 (2) SACR 559 (SCA) (30 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 717/2019
In
the matter between:
MMEREKI
WELCOME
MATHEKGA FIRST
APPELLANT
JOHANNES
THULANI MNGOMEZULU SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mathekga And Another v S
(Case no 717/2019)
[2020] ZASCA
77
(30 June 2020)
Coram:
CACHALIA, MOCUMIE, MAKGOKA, MOKGOHLOA AND DLODLO
JJA
Heard
:
This appeal was disposed of without an oral hearing in terms of
s19
(a) of the
Superior Courts Act 10 of 2013
Delivered
:
This judgment was handed down electronically by
circulation to the parties’ representatives by email,
publication on the Supreme
Court of Appeal website and release to
SAFLII. The date and time for hand-down is deemed to be delivered at
09h45
on 30 June 2020.
Summary:
Criminal law and procedure –
murder – intent to kill – dolus directus – whether
present – onus to
prove the protection of s 49(2) of the
Criminal Procedure Act 51 of 1977 (the CPA) – whether
appellants’ objectively
and/or subjectively believed their
actions to be justified by s 49(2) of the CPA – Sentence –
whether appellants ought
to have known that the deceased was a police
officer, for sentencing to be brought within the purview of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
– whether 15
years’ imprisonment appropriate.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Smith AJ, sitting as court of first
instance):
1 The appeal on the
conviction on murder in respect of both appellants is dismissed.
2 The appeal on sentence
in respect of each appellant succeeds to the extent indicated
hereunder.
3 The order of the high
court is set aside and substituted with the following:
‘
In
respect of murder, each accused is sentenced to thirteen (13) years’
imprisonment.’
JUDGMENT
Mocumie
JA (Cachalia, Mokgohloa and Dlodlo concurring):
[1]
This appeal concerns two police officers, the
appellants, who, armed with an R5 assault rifle and Z88 9 mm pistol,
respectively,
opened fire on two other police officers clad in
civilian clothing. The two officers clad in civilian clothing had
been pursuing
a suspect on foot for having shot their colleague. One
of the civilian clad police officers, Constable Tshomela, was fatally
wounded
and the other, Constable Khumalo, was seriously injured. A
bystander was also injured from a gunshot. Three minibus taxis and
two
motor vehicles, which were parked at a taxi rank where the
incident occurred, were badly damaged by bullets. Twenty-nine spent
cartridges were found on the scene in the aftermath of the shooting.
[2]
The first and second appellants, Constables Mmereki Welcome Mathekga
and Johannes Thulani Mngomezulu respectively, appeared
in the Gauteng
Division of the High Court, Johannesburg (the trial court). They were
convicted of murder, two counts of attempted
murder and malicious
damage to property. They were each sentenced to 15 years’
imprisonment on the murder charge and on the
attempted murder of one
of the bystanders to five years. In respect of the attempted murder
charge relating to Constable Sidwell
Khumalo, the first appellant was
sentenced to seven years’ imprisonment. All the sentences, were
ordered to run concurrently
with the sentence imposed on count one.
In effect both appellants were sentenced to 15 years’
imprisonment. The appeal is
with the leave of the trial court.
[3]
It is common cause that on 14 January 2013, at
around 13h45, the appellants, who were based at Jeppe police station
at the time,
as well as other police officers in the area of
Hillbrow, Johannesburg, received a back-up-call from Constable Daniel
Ndima, reporting
that he had been shot while on duty. The suspect had
apparently fled the scene and was being pursued on foot by two of his
colleagues,
Constable Khumalo and Constable Tshomela. In response to
the back-up-call, the appellants drove to Claim Street next to a taxi
rank, in the city centre. As they approached the taxi rank, they saw
two men holding firearms in their hands walking at a rapid
pace.
These two men disappeared behind a line of taxis. The appellants
started shooting in their direction. The bullets went through
the
windows of the minibus taxis and the motor vehicles parked alongside
the pavement.
[4]
From the moment the shooting commencement until it had stopped,
everyone, including the two police officers and taxi commuters,
had
attempted to hide to avoid being shot. Some fled into the taxis and
others out of them. One of the street vendors hid underneath
a mini
bus taxi. The first appellant used an R5 assault rifle and the second
appellant a Z88 9mm pistol.
[1]
By the time the shooting had stopped, Constable Tshomela had been
fatally wounded. He had sustained gun wounds to the head, the
neck,
the chest and the back, whilst Constable Khumalo sustained wounds to
his leg and both hands. The first appellant found Constable
Khumalo
inside a nearby shop into which he had fled for cover. It was only
then that he had realised that Constable Khumalo was
a police officer
after he had identified himself.
[5]
With ample justification, the trial court found that: (a) the two
appellants did not attempt to arrest the suspect; (b) they
had no
reasonable suspicion to think that Constable Khumalo and the deceased
had committed any offence relating to the shooting
of Constable
Ndima; (c) it could not have been clear to Constable Khumalo and the
deceased that there was an attempt to arrest
them or has been made to
arrest them; (d) there was no attempt to resist or to flee by the
two; (e) there was no threat of serious
violence to the ‘arrestor
or any other person’ and (f) that they had not been trying to
overcome any resistance from
the two (Constable Khumalo and the
deceased). It also found that, objectively viewed, the two appellants
were not protected by
s 49(2) of the Criminal Procedure Act 51 of
1977 (the CPA) and therefore, their acts were unlawful.
[6]
Lastly, on whether the appellants subjectively believed that they
were justified to act as they did and have the protection
afforded by
s 49(2), the trial court found that both appellants were experienced
police officers. They had been trained extensively
as established by
their testimony. It was reiterated that they knew exactly what the
requirements of s 49(2) were as they, from
time to time during their
testimony, used the words and phraseology of s 49(2), such as
‘imminent danger’ and ‘we
thought that we were
going to be attacked’. On the strength of
S
v De Blom
,
[2]
the trial court held that a person who works in a particular sphere
of activity, ought to know what the law relating to that activity
is,
that they could not have subjectively believed at all or knew that
their actions were covered by s 49(2). It is these factual
findings
that the appellants are attacking on the basis that another court may
find differently.
[7] Three issues arise
for determination:
(i) Whether the
appellants objectively and/or subjectively believed that their
actions were justified by s 49 of the CPA as amended.
(ii) Whether the
appellants were aware that the deceased was a police officer in order
for the provisions of s 51(1) of the Criminal
Law Amendment Act 105
of 1997 (CLAA) to apply on sentencing, and
(iii)
Whether an effective sentence of fifteen years’ imprisonment
imposed on the appellants was appropriate in the circumstances
.
[8] Section 49(2) (Use of
force in effecting arrest) of the CPA provides:
‘
If
any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees,
when
it is clear that an attempt to arrest him or her is being made
,
and the suspect cannot be arrested without the use of force, the
arrestor may, in order to effect the arrest,
use
such force as may be reasonably necessary and proportional in the
circumstances to overcome the resistance or to prevent the
suspect
from fleeing
, but, in addition to the
requirement that
the force must be
reasonably necessary and proportional in the circumstances
,
the arrestor may use deadly force only
if –
(a)
the suspect poses a threat of serious violence to the arrestor or any
other person; or (b) the suspect is suspected on reasonable
grounds
of having committed a crime involving the infliction or threatened
infliction of serious bodily harm and there are no other
reasonable
means of effecting the arrest, whether at that time or later
.’
[3]
(Emphasis
added.)
[9]
Dealing with the issue of the use of force in effecting arrest,
referring to the case of this Court, in
Govender
v Minister of Safety and Security
,
[4]
the
Constitutional Court in
Ex
parte: Minister of Safety and Security: In re S v Walters
[5]
citing
the judgment of the United States Supreme Court
in
Tennessee
v Garner
[6]
–
in
the context of the history of police violence and brutality from
which South Africa emerged
–
stated
‘
[o]ur
Constitution demands respect for the life, dignity and physical
integrity of every individual. Ordinarily this respect outweighs
the
disadvantage to the administration of justice in allowing a criminal
to escape
’.
Section
49 was thereafter amended by aligning the words of the proviso, ie
the criteria as to when deadly force may be used in order
to effect
arrest of a suspect, with the criteria tabulated in
Walters
.
[7]
These guidelines were also adopted by the South African Police
Service under s 13(3)(
b
)
of the
South African Police Service Act 68 of 1995
.
[10] The Constitutional
Court stated in
Walters
para 47:
‘
The
observation in
Olmstead v United States
referred to by Langa J in the passage quoted above from his judgment
in
Makwanyane
also needs to be repeated and underscored:
“
Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example.
”
We
have a history of violence
–
personal,
political and institutional. Our country is still disfigured by
violence, not only in the dramatic form of murder, rape
and robbery
but more mundanely in our homes and on our roads. This is
inconsistent with the ideals proclaimed by the Constitution.
The
state is called upon to set an example of measured, rational,
reasonable and proportionate responses to antisocial conduct
and
should never be seen to condone, let alone to promote, excessive
violence against transgressors. Its role in our violent society
is
rather to demonstrate that we are serious about the human rights the
Constitution guarantees for everyone, even suspected criminals.
An
enactment that authorises police officers in the performance of their
public duties to use force where it may not be necessary
or
reasonably proportionate is therefore both socially undesirable and
constitutionally impermissible.’
[8]
[11]
The trial court was satisfied that the State had succeeded in proving
the case against the appellants beyond a reasonable doubt.
With
regard to the murder count, the trial court found that the appellants
had the direct intention to kill the deceased.
[9]
The appellants maintained that they did not have such intention. They
asserted that their conduct was only negligent because they
had acted
unreasonably. Thus at worst, on count one, they were guilty of
culpable homicide not murder.
[12]
The appellants’ reliance on s 49(2) must be considered against
the following facts. Firstly, in their defence, the appellants
stated
that they had responded to a backup call from Constable Ndima that he
had been shot. They immediately proceeded in a police
marked motor
vehicle to a street in the city centre near a taxi rank. There they
saw two men briskly walking with firearms in their
hands amongst
commuters and street hawkers on the side of the pavement. They
believed that the men were the suspects who had shot
Constable Ndima.
They identified themselves as police officers and ordered them to
stop and drop their weapons. But they ignored
them and continued
walking. The first appellant fired a warning shot prompting the two
men to take cover behind the minibus taxis.
[13]
Second, they alleged that the intention to fire the warning shot was
to alert the two men to their presence and that they should
come out
of their cover and surrender themselves so that they could be
arrested. They did not fire intentionally at any person.
As the trial
Judge correctly found, if there was any such warning given by either
of the appellants, the probabilities show that
the two would have
noticed them as they were in full police uniform. Or at the very
least Constable Khumalo or the deceased would
have reacted, because
they were expecting other police officers to arrive after the back-up
call was made. The trial Judge also
found, which I agree with, that:
(a) there was no evidence to support the version of the appellants;
(b) their evidence created
doubt that a warning was given; (c) on the
evidence supported by independent witnesses – the civilians at
the taxi rank –
who were close to them when they started to
shoot, the appellants had not issued any warning to their colleagues
before they opened
fire on them. Furthermore, the appellants were
unable to explain why they fired twenty-nine bullets directly at the
two men when
they had posed no threat. Their suggestion that the two
men were seen carrying firearms was of no consequence because the
evidence
established that neither of them had had their firearms in
their hands at the crucial moment when they were shot at. Their
firearms
were in their holsters.
[14]
It is trite that a court of appeal is bound by the factual findings
of the trial court except where these findings are wrong
or not borne
out by the record. This is especially when the findings are dependent
on the credibility of the witnesses who testified.
[10]
The trial court cannot be faulted for having found that the force the
appellants used was not reasonably necessary and proportional
in the
circumstances to overcome the resistance or to prevent the purported
suspects from fleeing. That excessive force was used
is evident from
the fact that Constable Khumalo too was shot on the leg and both
hands with an R5 assault rifle even as he tried
to flee from the
scene, visibly, without a firearm in his hands. The deceased was shot
directly multiple times, which shots hit
him in the head, neck, chest
and back, fired by both the appellants with an R5 assault rifle and a
Z88 9mm pistol which, as testified
to by experts, are both lethal
weapons.
[11]
This on its own, supported by the expert medical evidence and
ballistic reports, led the trial court to conclude that, in respect
of the murder, when the appellants shot the deceased, the deceased
was clearly visible to both of them and thus they intended to
kill
him.
[15]
Taking all the evidence into account, it is clear that the two
appellants, who were trained police officers, armed with lethal
weapons, made no attempt to arrest the two police officers they
thought were suspects. This is evidenced by the testimony of all
witnesses, corroborated to a certain degree by the evidence of the
appellants that they opened fire on the two immediately upon
their
arrival on the scene, without any interruption or pause.
[12]
The first appellant did not even wait for the second appellant to
properly park the police vehicle they were travelling in. He
emerged
from the vehicle with an R5 assault rifle and started to shoot
continually, joined on beat and without fail by the second
appellant,
with a Z88 9mm pistol. They came out of the police vehicle guns
blazing with the clear intent to kill the persons that
had taken
refuge behind the minibus taxis. Regardless of who was behind the
minibus taxis, ie regardless of the identity of those
persons –
with little or no regard to the danger they were putting the
civilians in and their behavior was not indicative
of people who
feared retaliation from criminals. Their conduct subsequent to
getting the report about the shooting of Constable
Ndima was beyond
doubt unreasonable. Had they made the basic yet critical enquiry
before they proceeded to the scene, they would
have established that
they were in pursuit of one suspect, not two, as described by
Constable Ndima, who had seen the suspect when
he was shot. Constable
Ndima would have also told them, as he had told other colleagues who
came to enquire from him, that two
of his colleagues were on foot
pursuing the suspect. This would have alerted them to the fact that
there were two plain clothed
police officers in pursuit of the
suspect.
[16]
In sum, there was no justification for the appellants to have used
deadly force because: (a) the apparent suspects did not
pose any
threat to the appellants or to any other person; (b) they were not
suspected, on reasonable grounds, of having committed
a crime
involving the infliction or threatened infliction of serious bodily
harm; and (c) It has not been shown by the appellants,
on whom the
onus
rested, that although the
identity of the suspect that had shot Constable Ndima was unknown, it
could not have been established
through a basic enquiry , before
resorting to the use of deadly force.
[17]
On a conspectus of all the evidence, I have no doubt that objectively
and subjectively the appellants acted outside the scope
of s 49(2) of
the CPA. I therefore find that there is no merit in the contention
that they were justified in their conduct. There
is consequently, no
basis to interfere with the findings of the trial court in this
regard. The appeal on the convictions of murder
and attempted murder
cannot succeed. It remains to deal with the appellants’
submission that, at worst, they should have
been convicted of
culpable homicide.
[18]
There is no merit in this submission. Once the trial court concluded,
correctly so, that they had fired directly at their colleagues
with
intent to kill and that their actions fell outside the ambit of s 49
of the CPA, there was no room for a finding that
they were merely
negligent.
[19] I
turn next to the question of sentence. It is trite that a court
exercising appellate jurisdiction cannot, in the absence
of material
misdirection by the trial court, assess the appropriateness of the
sentence as if it were the trial court and then
alter the sentence
arrived at by that court, simply because it disagrees with it.
[13]
To
do so would be to usurp the sentencing discretion of the trial court.
But where material misdirection has been demonstrated,
an appellate
court is not only entitled, but is also duty-bound, to consider the
question of sentence afresh to avoid an injustice.
[14]
[20]
The appellants were charged with murder read with
the provisions of s 51(1) of the
CLAA.
For s 51(1) of the CLAA to be applicable, the State must prove
that the offence for which the appellants have been convicted, falls
within Part I of Schedule 2.
Section 51, titled
‘Minimum sentences for certain serious offences’,
provides that:
‘
(1)
Notwithstanding any other law but subject to subsections (3) and (6),
a High Court shall, if it has convicted a person of an
offence
referred to in Part I of Schedule 2, sentence the person to
imprisonment for life.
(2) Notwithstanding any
other law but subject to subsections (3) and (6), a regional court or
a High Court shall–
(a) if
it has convicted a person of an offence referred to in Part II of
Schedule 2, sentence the person in the case of–
(i) a
first offender, to imprisonment for a period not less than 15 years;’
. . .
Provided that the maximum
sentence that a regional court may impose in terms of this subsection
shall not be more than five years
longer than the minimum sentence
that it may impose in terms of this subsection.
(3)
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and may thereupon impose such lesser sentence.’
[21]
This Court in
S
v De Beer
[15]
stated:
‘
It
is a truism that the
Criminal Law Amendment Act 105 of 1997
introduced far-reaching changes to our sentencing regime. As a
reaction to the escalating levels of serious crime, the Legislature
introduced mandatory sentences for certain specified offences. There
is some measure of uncertainty, regarding the correct approach
as to
the proper application of minimum sentences prescribed by the CLAA.
Some courts have held that the minimum prescribed sentence
must be
applied as a matter of course as soon as an accused is convicted of
an offence falling within the various categories of
the CLAA, unless
the circumstances of the appellant are shown to be exceptional. This
approach is wrong.
The
correct approach was adumbrated as follows in
S v Vilakazi
2009 (1) SACR 552
(SCA) at 566A-D:
“
The court was
required to apply its mind to the question of whether the sentence
was proportional to the offence....”
The
court proceeded at 559e-562d to hold that:
“
It was accordingly
incumbent upon a court to assess whether the prescribed sentence was
indeed proportionate to a particular offence.
If any circumstances
were present that would constitute weighty justification for the
imposition of a lesser sentence. Thus, a
prescribed sentence could
not be assumed a priori to be either proportionate to the offence,
or, indeed, constitutionally permissible.
Proportionality was to be
determined on the circumstances of a particular case.”
[22]
It is clear in the judgment of the trial court that it convicted and
sentenced the appellants on the basis of
s 51(1)
read with
Part I
of
Schedule 2 where the victim was a
law
enforcement officer performing his or her functions. The provision
requires that the law enforcement officer must be performing
his or
her functions as such. Such actions will alert the offender to the
fact that the person is a law enforcement officer.
[16]
Where the offender was not aware that the person was a law
enforcement officer, the offender cannot reasonably be expected to
know that the victim was a law enforcement officer, the provisions of
s 51(1)
do not apply.
On
the facts, this murder was one in circumstances other than those
referred to
Part 1.
It automatically, fell within the ambit of
s
51(2)
read with
Part II
of Schedule 2, in terms whereof the
prescribed minimum sentence is 15 years’ imprisonment.
[23]
The trial court, found, erroneously so, that the murder fell within
the ambit of
s 51(1).
It went further and found that compelling and
substantial circumstances contemplated in
s 51(3)(
a
)
existed which justified a deviation from the prescribed minimum
sentence of life imprisonment, but the lesser sentence of 15 years’
imprisonment. On that basis alone, it misdirected itself materially.
This obliges this Court to reconsider sentence afresh.
[17]
[24]
Having said that, it is proper to refer to the approach this Court
has adopted in the application of
s 51
as gleaned from a plethora of
judgments of this Court.
[18]
But nonetheless requires repetition to serve as a basis for the
decision to be reached in this judgment on sentence. Authors in
this
area of the law state that when dealing with the minimum sentence
legislation two important factors must be borne in mind.
Firstly, the
CLAA creates a minimum sentence with a lower limit, ‘leaving
the court with the discretion to impose more’.
[19]
The
seriousness and aggravating nature of the offence can lead to the
imposition of a higher sentence than the prescribed minimum
sentence;
because the 15 years is a minimum that a court may impose and not the
maximum as ordained in the proviso to s (2) that
‘the maximum
sentence that a regional court or high court may impose in terms of
this subsection shall not be more than five
years longer than the
minimum sentence that it may impose in terms of this subsection.’
[20]
In
Khoza,
[21]
the trial court imposed 21 years’ imprisonment for robbery with
aggravating circumstances where the prescribed minimum sentence
was
15 years. The trial court found that in view of the seriousness and
aggravating nature of the offences, a sentence of 15 years
would be
too lenient and accordingly imposed a higher sentence. This Court
confirmed the sentences imposed by the trial court and
dismissed the
appeal. Secondly, the most important factor to bear in mind is that,
substantial and compelling circumstances do
not exist in a
vacuum.
[22]
The minimum
sentence is the bench mark, the starting point. This means, the
sentencing court must consider the prescribed minimum
sentence as the
bench mark – ie the usual sentence it should impose for that
offence, where there exist no reasons for it
to impose another
sentence.
[25]
Coming back to the appellants,
the unfortunate
part is that despite the loss of a human life and many years of
reflection and introspection, the appellants still
took no
responsibility for what they had done. They said they were sorry for
having killed their colleague. Not another human being
which is
remarkably different from genuine remorse. There is nothing on record
indicating that the two offered their condolences
or even reached out
to the families of the deceased and Constable Khumalo in any way.
Such action would have given room for restorative
justice to be
considered by the trial court and this Court. In fact, it is revealed
in the Victim Impact Statement compiled in
2016, three years after
the incident, that Constable Khumalo was still emotionally wounded.
According to that report, he still
remembers how the deceased looked
when he fell down after being gunned down by his own colleagues. His
own physical injuries were
not healed. A bullet that was lodged in
his arm still had to be removed. He stated that, ‘he had told
both suspects to tell
the truth and they failed to do so. . . ’.
[26]
Furthermore, in the Victim Impact Statement, the deceased’s
elder sister stated that the deceased was the sole bread
winner of a
family of seven siblings with an unemployed elderly mother and no
father, and thus his death has had a huge financial
impact on their
lives. She confirmed that the appellants did not approach her family
to apologise for what they had done. They
did not contact them in any
way. On the question of remorse, the trial court correctly observed
that ‘you both expressed
your remorse that you are sorry that
you killed a colleague but maintained that your killing of the
deceased was excusable and
therefore not unlawful’.
[27]
In its reconsideration of sentence, this Court is not bound by the
conclusion of the trial court on its findings on what qualifies
as
compelling and substantial circumstances. However, in my view, the
following do qualify as compelling and substantial circumstances.
Both appellants are first offenders. They are relatively young and
were gainfully employed in the police service with no track
record of
ill-discipline or misconduct before this fateful day. They spent ten
months incarcerated prior to being released on bail.
They have
families and young children of school going ages who depend on them.
The circumstances under which the murder was committed
are unusual as
depicted in the trial court judgment; although committed with direct
intention as this Court found earlier in this
judgment. However,
particularly because of the unusual circumstances of the case; a
measure of mercy, must be filtered into the
sentence considered
appropriate. All these cumulatively, would justify a deviation from
the prescribed sentence of 15 years.
[28]
Having said that, however, to arrive at a balanced sentence which
reflects the
triad
enunciated in
S
v Zinn
:
[23]
‘the crime, the offender and the interests of society’,
the interests of the victim(s) as part of the broader society
should
also come into play and be accounted for. In
R
v Karg
,
[24]
five decades ago this Court stated:
‘
It
is not wrong that the natural indignation of interested persons and
the community at large should receive some recognition in
the
sentences that Courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient,
the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their own hands.’
This
Court recognised this approach in
Matyityi
where it stated:
[25]
‘
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
court. To that should be added, it also needs to be
victim centered.
Internationally the concerns of victims have been recognised and
sought to be addressed through a number of declarations
the most
important of which is the UN Declaration of the Basic Principles of
Justice for Victims of Crime and Abuse of Power. The
Declaration is
based on the philosophy that adequate recognition should be given to
victims and that they should be treated with
respect in the criminal
justice system. In South Africa victim empowerment is based on
restorative justice. Restorative justice
seeks to emphasise that a
crime is more than the breaking of the law or offending against the
state it is an injury or wrong done
to another person. The Service
Charter for Victims of Crime in South Africa seeks to accommodate
victims more effectively in the
criminal justice system.
’
[29]
In my view, a sentence of 13 years’ imprisonment will be
proportionate to
‘
the
crime, the criminal and the legitimate needs of society
’.
[26]
It
will remind the members of the police service as the Constitutional
Court stated in
Walters
that ‘the state is called upon to set an example of measured,
rational, reasonable and proportionate responses to antisocial
conduct and should never be seen to condone, let alone to promote,
excessive violence against transgressors.
’
A n
on-custodial
sentence in the form of a wholly suspended sentence or correctional
supervision in terms of
s 276(1)
(i)
of the CPA as proposed by the appellants would be inappropriate in
the circumstances. One of the
aggravating
circumstances which stood out, was the fact that they did not show
any remorse for having killed another human being.
That lack of
appreciation of having killed another human being, leaves a lasting
and unsettling impression that they cannot rehabilitate
easily, if
given a non-custodial sentence. However, on the above reasons in the
preceding paras the appeal on sentence ought to
succeed.
[30]
This judgment must be brought to the attention of those responsible
for training the members of the police service so that
they begin to
train members of the police service appropriately – to
reinforce the orders under the Police Service Act 68
of 1995 on the
use of force in arresting a suspect(s).
[31]
In the result, the following order is made:
1 The appeal on the
conviction on murder in respect of both appellants is dismissed.
2 The appeal on sentence
in respect of each appellant succeeds to the extent indicated
hereunder.
3 The order of the high
court is set aside and substituted with the following:
‘
In
respect of murder, each accused is sentenced to thirteen (13) years’
imprisonment’
________________________
B C MOCUMIE
JUDGE OF APPEAL
Makgoka
JA (dissenting)
[32]
I have read the main judgment of my colleague, Mocumie JA. I agree
with the conclusion that the appeal against the conviction
should
fail. However, I disagree with the sentence proposed in the main
judgment. The court a quo erroneously imposed a sentence
of 15 years’
imprisonment because of a misdirection as to the applicability of s
51(1) of the Criminal Law Amendment Act
105
of 1997 (the Act)
which
aspect I shall consider shortly. The main judgment reduces the
appellants’ imprisonment terms from 15 to 13 years on
the
murder count. After much anxious reflection, and given the very
unfortunate and unusual circumstances of the case, I conclude
that
long term imprisonment is not appropriate. Instead, correctional
supervision, as recommended by the probation officers in
respect of
both appellants, should be given serious consideration. Below I set
out the reasons for my conclusion.
[33]
The facts which led to the conviction of the appellants are fully set
out by my colleague, and need no regurgitation here.
Briefly, a
police officer was shot in downtown Johannesburg on 14 January 2013.
The appellants responded to a call to search for
the suspect who had
shot their colleague. Upon arrival at the vicinity of where the
shooting took place, they observed two men
in civilian clothes
holding firearms, walking briskly. Unbeknown to the appellants, those
were also police officers, who too, were
on the trail of the suspect.
The appellants mistook them for the suspects, and fired several shots
in
their
direction. Constable Tshomela was fatally wounded and his colleague,
Constable Nxumalo, and a civilian, were injured. Vehicles
in the
vicinity were damaged. Only thereafter, it dawned on the appellants
that the deceased and Constable Nxumalo were their colleagues.
On the
evidence before it, the trial court correctly concluded that the
appellants had no intention of arresting the suspect, but
to kill him
in revenge.
[34]
As explained already, the court a quo’s sentence is based on a
misdirection, which is. The appellants were charged, among
others,
with murder subject to s 51(1) of the Act, which, read with Part I of
Schedule 2 of the Act, requires the imposition of
a minimum sentence
of life imprisonment because the deceased was a law enforcement
officer performing his functions as such. The
court a quo considered
the applicable sentence to be life imprisonment. However, it imposed
a lesser sentence of 15 years’
imprisonment, based on its
finding, in terms of s 51(3)
(a)
of
the Act, that there existed substantial and compelling circumstances.
That sentence was ordered to run concurrently with all
other
sentences.
[35]
It is common cause in the present case that the appellants did not
know that the deceased was a police officer. They mistook
him for a
criminal. The court a quo misdirected itself in this regard. It said:
‘
[T]he
Legislature has not distinguished, as it had done with murder falling
under Part 2 of Schedule 2 of the Act, between the fact
if the murder
of a law officer is committed in a situation where the perpetrator
knew that the person he is killing is a police
officer or the
situation where a perpetrator did not know or ought to have known
that it is a police officer that he or she is
killing.’
(Emphasis added.)
[36]
What exactly the court a quo intended to convey by this is unclear.
Part II of Schedule 2 of the Act makes no reference to
what the
learned Judge says it does. The part lists lesser crimes than those
mentioned in Part I of the Schedule, eg murder simpliciter,
robbery,
drug trafficking, firearms smuggling, finance and exchange control
crimes, terrorism and mercenary activities. There is
no mention at
all of killing of a police officer in Part II. That crime is
mentioned only in Part I of Schedule 2 of the Act.
[37]
However, somewhere in the judgment on sentence, the court a quo
suggests that irrespective of the fact that the appellants
did not
know the deceased was a police officer, they nevertheless faced life
imprisonment in terms of s 51(1). This is clearly
wrong, and a
material misdirection. The mischief s 51(1) read with part I(
b
)(i)
of Schedule 2 aims to curb is the intentional and wanton killing of
law enforcement officers, in order to impede them in their
duties. It
is not applicable where the perpetrator has no such knowledge, or
could reasonably not be expected to have such knowledge.
This is very
clear by the use of the words ‘a law enforcement officer
performing his or her functions as such’, in
relation to the
murder victim.
[38]
It is therefore clear that the court a quo misconceived the import
s 51(1) read with Part I
(b)
(i)
of Schedule 2. That led it astray in considering sentence, starting
on a wrong footing. The correct starting point ought to
have been
that, because the appellants did not know that the deceased was a
police officer, Part II of Schedule 2 was applicable.
The prescribed
minimum sentence is 15 years’ imprisonment, in respect of first
offenders (which the appellants are) unless
the court finds
substantial and compelling circumstances in terms of s 51(3)
(a)
are present to justify a lesser sentence (which the court a quo
found). It follows that had the court a quo not misdirected itself
as
to the applicability of s 51(2), it ought to have imposed a sentence
of less than 15 years’ imprisonment.
[39]
So viewed, the court a quo’s misdirection was undoubtedly
material. It had a direct and crucial bearing on the sentence
it
imposed. It is the type envisaged in
S v
Pillay
1977 (4) SA 531
(A) at 535E-F as
being ‘of such a nature, degree, or seriousness that it shows,
directly or inferentially, that the Court
did not exercise its
discretion at all or exercised it improperly or unreasonably’.
[40]
This court is therefore at large to consider sentence afresh. The
lodestar in considering an appropriate sentence remains the
enduring
triad – the crime, the offender and the interests of society,
as enunciated in
S v Zinn
1969 (2) SA 537
(A);
[1969] 3 All SA 57
(A) at 540G. Closely allied
to these factors, is the impact of the crime on its victims. All
these have to be considered bearing
in mind the main purposes of
punishment, which were reiterated in
S v
Rabie
1975 (4) SA 855
(A);
[1975] 4 All
SA 723
(A) 862A B as being deterrence, prevention, reformation
and retribution.
[41]
The appellants’ personal circumstances, as gleaned from the
probation officers’ reports, compiled in respect of
both, are
briefly the following. The first appellant was 32 years old at the
time of sentencing. He had a difficult childhood.
As a result of
poverty, he and his brother grew up in a place of safety as his
unemployed mother could not take care of them. His
father died when
he was a child. However, he seems to have risen above the adversity,
and his difficult childhood does not seem
to have had any role in the
commission of the offence. He was not married, but was a father of
two young children, with different
mothers. He joined SAPS as a
reservist in 2007, and permanently in 2009. As a result of the
incident, he no longer performed duties
which required him to
constantly carry a firearm. The second appellant was 37 years old at
the time of sentencing. He too, grew
up without a father figure. He
had three minor children with different mothers, one of whom is his
wife, who is employed. He completed
matric in 2005 and joined SAPS
the same year. He was promoted to the rank of sergeant in 2015, after
the incident.
[42]
The crimes which the appellants have been convicted of, are
undoubtedly serious. A valuable member of society – a law
enforcement officer – was killed on duty. Although the deceased
was not married and had no children, his family, especially
his
elderly mother, has been devastated by the loss. Constable Nxumalo
was badly injured and disfigured. There was no formal victim
impact
reports. However, affidavits deposed to by the deceased’s
sister, Ms Zandile Tshomela, and by Constable Khumalo, were
handed up
by consent.
[43]
The following appear from the affidavit of Ms Tshomela. The deceased
was 32 years old. He joined SAPS in 2008. He had seven
siblings.
Their father passed on in 2003, and their mother, who was 66 years
old, was finding it difficult to come to terms with
the deceased’s
death. The deceased was not married, and did not have any children.
However, he supported the family and his
death had a huge impact on
them.
[44]
The family was aggrieved with the appellants pleading not guilty, and
‘not coming clean’ about the shooting of
the deceased.
Further, the appellants never reached out to the family to apologise
or contribute towards funeral costs. The family
members were divided
as to what type of sentence should be imposed on the appellants.
Their mother wished for a long prison sentence,
while the siblings
wished for ‘some period of imprisonment’. She, Ms
Tshomela, on the other hand, after being appraised
of the different
sentencing options by the prosecutor, felt that correctional
supervision was the appropriate sentence.
[45]
Constable Khumalo, the injured police officer, too, was very
aggrieved about the appellants’ failure to ‘tell the
truth’ in court about the shooting. He had suffered trauma as a
result of the incident, which resulted in him being reluctant
to
participate in crime prevention operations. He wished for a period of
15 years’ imprisonment to be imposed on both appellants.
[46]
With regard to the interests of society, it must be considered in the
appellants’ favour that they were useful, upright
and
productive members of society, whose overzealousness overcame them at
a crucial moment in the execution of their duties. I
do not think
society’s interests would be served by subjecting them to
lengthy prison terms, with damaging and lasting consequences.
While
they need to be punished for their conduct, this should not be to the
point of breaking them. Although there must be a certain
proportionality between punishment and the crime, that does not imply
that the punishment be equal in kind to the harm that the
offender
has caused, as explained in
S v Mafu
1992 (2) SACR 494
(A). See also
S v
Kruger
[2011] ZASCA 219
;
2012 (1) SACR
369
(SCA) where this court cautioned against viewing punishment of a
convicted person as revenge. It must also be borne in mind that
long
term imprisonment would leave the appellants’ families without
financial support.
[47] What is more, the
appellants’ moral blameworthiness should not be lost sight of.
It bears emphasis that their conduct
was not pursuant to any greed,
personal gain or criminal motive. Furthermore, it should be borne in
mind that the appellants have
continued their employment with SAPS.
The second appellant was even promoted despite the unfortunate
incident. This, in my view,
is a clear indication that their
superiors had accepted their remorse, and continue to regard them as
valuable members of the police
service.
[48]
It therefore escapes me what purpose would be served by long
imprisonment terms. Certainly not rehabilitation. In
S
v Khumalo and Others
[1984] ZASCA 30
;
1984 (3) SA 327
(A);
[1984] 2 All SA 232
(A) at 331F it was observed that
rehabilitation is generally not served by prolonged imprisonment. The
Constitutional Court in
S v Williams and
Others
[1995] ZACC 6
;
1995 (2) SACR 251
(CC);
1995 (7)
BCLR 861
(CC) para 65 noted an international gradual shift of
emphasis away from the idea of sentencing being predominantly the
arena where
society wreaks its vengeance on wrongdoers. Sentences
have been passed with rehabilitation in mind.
[49]
As far as the aims of punishment are concerned, it seems that my
colleague, like the trial court, overemphasises the deterrent
element
of sentence over others. In my view, sufficient weight is not
accorded to three most important mitigating factors. First,
that the
appellants’ conduct was not motivated by any personal gain or
with a ‘criminal mind’. Second, that the
appellants are
not a danger to society and there is no prospect that they will
reoffend. As pointed out by this Court in
S
v Ingram
1995 (1) SACR 1
(A);
[1995] 3
All SA 121
(A) at 9a-b, this fact is an important factor in
mitigation as it means that individual deterrence does not play a
major role in
the case. While general deterrence remains a relevant
factor, an accused should not be sacrificed on the altar of
deterrence. See
S v Sobandla
1992 (2) SACR 613
(A) 617F-H. Third, the extra-ordinary and
unfortunate circumstances of the case and the fact that the
appellants have shown remorse
for killing their colleague.
[50]
With regard to remorse, our courts link the presence of remorse with
the prospect of the rehabilitation of the offender.
S
v Ntuli
1978 (1) SA 523
(A) 528B–
C;
S v Keyser
[2012] ZASCA 70
;
2012 (2) SACR 437
(SCA) para 29. My colleague
considers the fact that the appellants never reached out to the
family of the deceased to assist with
funeral expenses, nor visited
Constable Nxumalo, as an indication of lack of remorse. It does not
appear that these were ever raised
as discrete issues during the
sentencing proceedings, and that the appellants were afforded an
opportunity to meaningfully deal
with them. As such, one should not,
without full facts, conclude that this conduct is indicative of lack
of remorse.
[51]
The main consideration, in my view, should be whether the appellants
need to be removed from society. This is where correctional
supervision comes in. In
S v R
1993 (1) SA 476
(A);
[1993] 1 All SA 326
(A) at 488G this Court
pointed to the legislature’s intention to distinguish between
two types of offenders, namely those
who had to be isolated from the
community by incarceration and those who were deserving of punishment
but not required to be removed
from the community. Do the appellants
need to be removed from the community? I do not think so.
[52]
In
Williams
Langa J lauded ‘[t]he introduction of
correctional supervision . . . as a milestone in the process of
“humanising”
the criminal justice system’. He
remarked further:
‘
.
. . It brought along with it the possibility of several imaginative
sentencing measures including, but not limited to, house arrest,
monitoring, community service and placement in employment. This
assisted in the shift of emphasis from retribution to rehabilitation.
This development was recognised and hailed by Kriegler AJA in
S
v R
as being the introduction of a new
phase in our criminal justice system allowing for the imposition of
finely-tuned sentences without
resorting to imprisonment with all its
known disadvantages for both the prisoner and the broader community.
The
development of this process must not be seen as a weakness, as the
justice system having ‘gone soft’. What it entails
is the
application of appropriate and effective sentences. An enlightened
society will punish offenders, but will do so without
sacrificing
decency and human dignity.’
[27]
[53] Lest it be suggested
that because of the seriousness of the murder count correctional
supervision is
a priori
, inappropriate, I tabulate below,
cases in which this court, and the various divisions of the high
court, have considered it suitable
for murder. In most of them the
death of the victim resulted from abuse, a history of acrimony,
assault over a number of years
and so-called crimes of passion. I
consider the underlying approach apposite.
(a)
The appellant in
S
v Potgieter
1994 (1) SACR 61
(A);
[1994] 3 All SA 432
(A) was convicted of murder and was
sentenced to seven years’ imprisonment. It was assumed in her
favour that over
a period of six years, she was subjected to
assaults, humiliation and psychological abuse by the deceased. She
was 37 years of
age, a first offender and the mother of four
children. This court set aside the sentence of the trial court of
seven years’
imprisonment and remitted the case to the trial
court to reconsider the sentence afresh after compliance with the
provisions of
s 276A(1)
(a)
of
the
Criminal Procedure Act 51 of 1977
as amended (CPA).
(b)
In
S v Larsen
1994 (2) SACR 149
(A);
[1994] 4 All SA 380
(A) the appellant was
sentenced to five years’ imprisonment, half of which was
suspended, for shooting and killing her husband.
The appellant had
been assaulted and abused by the deceased over many years and the
marriage was under severe strain in the period
leading up to the
fatal incident. This court remitted the matter to the trial court for
the consideration of the imposition of
a sentence of correctional
supervision in terms of
s 276A(1)
(a)
of the CPA.
(c)
In
Ingram
the appellant was convicted of murder and sentenced to eight years’
imprisonment. The appellant was frequently abused by
her husband, the
deceased. They were both intoxicated at the time of the shooting. It
was held that for a murder such as this,
the imposition of
appropriate conditions can render the sentence of correctional
supervision suitably severe and the sentence of
eight years in prison
was set aside on appeal. The matter was remitted to the trial court
to reconsider the sentence afresh after
compliance with the
provisions of
s 276A(1)
(a)
of
the CPA.
(d)
In
S v
Aspeling
1998 (1) SACR 561
(C) the
appellant had shot and killed his brother after a long history of
acrimony between them. Having regard to the appellant’s
personal circumstances and other factors, it was held that it was not
necessary for him to be removed from the community for any
substantial time. It was held that correctional supervision in terms
of
s 276(1)
(i)
of the CPA was appropriate.
(e)
In
S v Romer
[2011] ZASCA 46
;
2011 (2) SACR 153
(SCA) the respondent had been
convicted on one count of murder and two counts of attempted murder
under a state of diminished responsibility,
though not acting as an
automaton, at the time of the shootings. He was sentenced to 10
years’ imprisonment wholly suspended
for five years on the
usual conditions. In addition, he was sentenced to three years'
correctional supervision. In an appeal by
the State against the
sentence, it was contended that the sentence imposed on the
respondent was disturbingly lenient, given the
serious consequences
of his conduct. This dismissed the appeal, and held, that the
deterrence of the respondent, or others, was
not an overriding
consideration.
(f)
This court found a sentence of 12 years’
imprisonment for murder strikingly inappropriate in
Botha
v S
[2017] ZASCA 148
, given the facts
of that case and the mitigating circumstances, which included
prolonged abuse of the appellant by the deceased
(her husband). This
court held that the appellant was not a danger to society. The matter
was accordingly remitted to the trial
court for reconsideration of
sentence in terms of
s 276(1)
(h)
of the CPA
.
(g)
The appellant in
S
v Mosikili
2019 (1) SACR 705
(GP) had
been convicted for killing his disrespectful and abusive son and was
sentenced to 12 years’ imprisonment, five years
of which were
suspended for a period of five years. The appellant was 58-years old,
first offender and gainfully employed and supported
his family,
including the deceased’s son. On appeal, the high court held
that the relatively low risk that the appellant
would re-offend,
combined with his remorse, rendered a sentence of correctional
supervision more likely to achieve the goal of
rehabilitation than
other potential sentencing options. The sentence was accordingly set
aside and replaced with a sentence of
36 months' correctional
supervision, which included house detention and the performance of
free community service.
[54]
In
S v Maritz
1996 (1) SACR 405
(A) and
S v Maleka
2001 (2) SACR 366
(SCA) this court decided against a sentence of
correctional supervision. So did the high court in
S
v Zulu
2004 JDR 0434 (W). Like the
present case,
Maritz
involved a police officer in executing his duties. The officer had
tied a murder suspect to the front of an armed vehicle and ordered
him to run in front of the vehicle. The deceased was pulled under the
wheels of the vehicle and was killed. In the trial court
the
appellant was sentenced to eight years’ imprisonment of which
two were suspended. This court held that the case did not
only stem
from negligence but also from an abuse of power by the appellant and
that correctional supervision was therefore not
a befitting sentence.
Despite that, this court interfered and substituted a sentence of
four years’ imprisonment of which
two years were suspended.
[55]
In
Maleka
the appellant, a teacher, shot and killed a school principal after
the latter had severely assaulted him. He was sentenced to 10
years’
imprisonment. On appeal it was held that although many mitigating
circumstances were present, the seriousness of the
offence made it
necessary to send a clear message to the community at large that
resort to violence, particularly with firearms,
would not be
tolerated. It was held that a sentence of correctional supervision
would be inappropriate. However, the sentence of
ten years’
imprisonment was set aside and replaced with a sentence of ten years’
imprisonment of which five years were
suspended for three years.
[56]
In
Zulu
the accused had been a victim of an armed robbery and the police
station where he had reported the robbery seemed not to care.
He took
the law into his hands, and killed the robbers. He was convicted of
premeditated murder. His conduct of having handed himself
over to the
police was considered indicative of remorse. He was sentenced to 12
years’ imprisonment of which four years was
suspended for three
years on suitable conditions.
[57]
What the above cases demonstrate is this. In murder cases where the
moral blameworthiness is reduced because of the unusual,
unfortunate
or extra-ordinary circumstances such as in the present case, the
courts have consistently considered correctional supervision
as a
suitable sentencing option. Where they found it unsuitable, like in
Maritz
,
Maleka
and
Zulu
, long
prison terms were avoided.
[58]
In the present case, the main judgement reduces the appellants’
prison terms from 15 to 13 years. In an appeal against
sentence where
it is contended that a sentence imposed by the trial court is either
excessive or lenient, interference is justified
where there exists a
‘striking’ or ‘startling’ or ‘disturbing’
disparity between the sentence
of the trial court and that which the
appellate court would have imposed, had it been the trial court. See
for example
S v Sadler
[2000] ZASCA 105
;
2000 (1) SACR 331
(SCA);
[2000] 2 All SA 121
(A) para 8;
S
v Cwele and Another
[2012] ZASCA 155
;
2013 (1) SACR 478
(SCA);
[2012] 4 All SA 497
(SCA) para 33.
[59]
It must be assumed that 13, instead of 15, years’ imprisonment,
is a sentence which my colleague would have imposed had
she been the
trial court. If that be the case, the appeal against sentence must
fail because the disparity between the sentence
imposed by the trial
court and that which she would have imposed, is not so substantial
that it can be considered ‘striking’,
or ‘disturbing’
as to justify interference.
[60]
This is because when an appeal against sentence is upheld, that
success ought to be meaningful and have practical effect. In
my
respectful view, the reduction of the appellants’ imprisonment
terms from 15 to 13 years is largely symbolic, and does
not reflect
the success of their appeal against sentence. It is pretextual and
renders the success impotent.
[61]
It must be borne in mind that the trial court moved, albeit on a
misdirected basis, from life imprisonment to 15 years’
imprisonment. That is a massive and meaningful reduction. On this
basis, it is not unreasonable to infer that had the trial court
moved
from the correct basis of 15 years’ imprisonment, together with
its finding of substantial and compelling circumstances,
it most
likely would have imposed a sentence in the region of 8 and 10 years’
imprisonment. Viewed in this light, the imposition
of 13 years’
imprisonment by this court can conceivably be regarded in real terms,
as an increase, rather than a decrease,
in their sentences.
[62]
The fact is that the appellants’ fair trial rights were
infringed at the sentencing stage by being subjected to a wrong
sentencing regime. It is the duty of this court to correct that. A
symbolic reduction of the appellants’ sentences from 15
to 13
years, in my respectful view, does not achieve the purpose of
interference. It does not give due regard to the weighty mitigating
factors so articulately set out by my colleague in para 27 of the
main judgment. Instead, to my mind, the sentence perpetuates,
rather
than corrects, the injustice committed by the trial court.
[63] I
turn now to consider what I deem to be an appropriate sentence. As
stated already, both appellants are first offenders. In
respect of
each, the probation officers recommended a sentence of correctional
supervision. However, in respect of the second appellant,
a
pre-sentencing report by another probation officer and a social
worker, direct imprisonment was recommended, and correctional
supervision was considered not suitable ‘because of the
seriousness of the offence’.
[64]
However, in all the three reports, the appellants were reported to be
responsible citizens, with no history of violence or
substance abuse.
They had stable homes and sufficient family support systems. They
both verbalised remorse for their part in killing
their colleague and
injuring another, which had caused them much anxiety and regret. They
were both found to be suitable candidates
for a sentence of
correctional supervision.
[65] The trial court
summarily rejected correctional supervision as a sentencing option.
It said:
‘
(T)he
yardstick . . . that the sentence for murder under these
circumstances is life imprisonment and the question is, if the
substantial
and compelling circumstances [are] of such a nature that
the court will then only be permitted to impose a sentence of up to
three
years under correctional supervision in terms of
section
267(1)(h)
of the
Criminal Procedure Act 51 of 1977
. The court is
humbly of the opinion that this period of three years also does not
reflect the seriousness of the offence and the
fact that a life has
been lost and the absence of true remorse.’
[66] The above passage
demonstrates that the court a quo started on the premise that because
the appellants had been convicted of
serious offences, that in and of
itself, rendered correctional supervision inappropriate. As I have
attempted to show, this is
a wrong premise. As explained in
S v D
1995 (1) SACR 259
(A) at 266
c
-
d
:
‘
In
its nature a sentence of correctional supervision is not
denunciatory. It does not follow, however, that such a sentence is
necessarily inappropriate because the case is one which excites the
moral indignation of the community. The question to be answered
is a
wider one: whether the particular offender should, having regard to
his personal circumstances, the nature of his crime and
the interests
of society, be removed from the community.’
[67]
This court has on various occasions stressed that correctional
supervision should not, without more, be seen as a light sentence,
but as a suitably severe sentence for even a serious crime. See for
example
S v Ingram
at 9e-f;
S v Flanagan
1995 (1) SACR 13
(A);
[1995] 4 All SA 86
(A);
S
v Schutte
1995 (1) SACR 344
(C) at
349E. In
Potgieter
at 88
d
it
was pointed out that the conditions imposed could render the sentence
a suitably severe one.
[68]
In my view, the trial court failed to consider in any meaningful
manner, correctional supervision as a sentencing option, as
recommended by the probation officers. The learned Judge did not even
engage with the reasoning in those reports and set out why
she did
not agree with the conclusions reached therein. All she mentioned was
that correctional supervision was too lenient a sentence
for the
crimes of which the appellants had been convicted, and moved quickly
to the conclusion that a custodial sentence was the
only suitable
sentence. At the risk of repetition, this is a wrong approach.
[69]
In conclusion, I make the following observation. The psychological
impact which the increasingly brazen killing of police officers
by
criminals, was not investigated as a possible factor in the conduct
of the appellants. One probation officer alluded to it,
but did not
elaborate further. The trial court made a passing comment about it
during sentence. It is unfortunate that the appellants
are not
wealthy. Had they been, they would have been in a position to afford
the services of professional psychologists or psychiatrists
to
investigate this aspect, compile reports and testify about it.
[70] Many of those who
have benefitted from the sentence of correctional supervision were
able to persuade the courts towards that
sentence aided by these
professionals. But the services of such professional are costly, and
the appellants, being less privileged,
clearly cannot afford them. In
S v Brown
[2014] ZASCA 217
;
[2015] 1 All SA 452
(SCA);
2015
(1) SACR 211
(SCA) para 121 this court cautioned against creating the
impression that there are two streams of justice; one for the rich
and
one for the poor. One is left to wonder how such evidence would
have impacted on sentence in this case.
[71] This is a
regrettable and most unfortunate case, which makes sentencing even
more difficult. The irony of it all is that the
appellants are to
serve long prison terms, alongside the very criminals whose
activities they had dedicated their lives to fighting.
In line with
the cases I have referred as guidelines, and having considered the
nature of the crimes, the complimentary personal
circumstances of the
appellants, the interests of society and the aims of punishment, I am
of the view that a sentence of correctional
supervision for each of
the appellants is a suitable one, as recommended in the probation
officers’ reports. Were I to impose
a prison term, it would be
for no more than 8 years’ imprisonment, half of which to be
suspended.
T M MAKGOKA
JUDGE
OF APPEAL
Appearances
For
First Appellant: M Mzamane
Instructed
by: Johannesburg Justice Centre
Bloemfontein
Justice Centre
For
Second Appellant: M Mkhatswa
Instructed
by: BDK Attorneys, Johannesburg
Symington
& De Kok Attorneys, Bloemfontein
For
Respondent: R Barnard
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
An
expert, Cees Clover, Equity International at the Marikana Commission
of Inquiry (February 2013 to October 2014) stated that a
shot fired
from an R5 assault rifle at close range at centre body mass, abdomen
or legs produces horrific injuries – death
is virtually
inevitable.
[2]
S
v De Blom
1975 (3) SA 513 (A).
[3]
Section
49
was substituted by
s 7
of the
Judicial Matters Second Amendment
Act 122 of 1998
and by
s 1
of the
Criminal Procedure Amendment Act 9
of 2012
.
[4]
Govender
v Minister of Safety and Security
2001(2) SACR 197 (SCA).
[5]
Ex
Parte: Minister of Safety and Security and Others: In re S v Walters
2002
(2) SACR 105
(CC) with reference to
S
v Makwanyane
1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
[6]
Tennessee
v Garner
,
471 US 1
(1985).
[7]
The
nine guiding principles are: (a) The purpose of arrest is to bring
before the court for trial persons suspected of having
committed
offences. (b) Arrest is not the only means of achieving this
purpose, nor always the best. (c) Arrest may never be
used to punish
a suspect. (d) Where arrest is called for, force may be used only
where it is necessary in order to carry out
the arrest. (e) Where
force is necessary, only the least degree of force reasonably
necessary to carry out the arrest may be
used. (f) In deciding what
degree of force is both reasonable and necessary, all the
circumstances must be taken into account,
including the threat of
violence the suspect poses to the arrestor or others, and the nature
and circumstances of the offence
the suspect is suspected of having
committed, the force being proportional in all these circumstances.
(g) Shooting a suspect
solely in order to carry out an arrest is
permitted in very limited circumstances only. (h) Ordinarily such
shooting is not permitted
unless the suspect poses a threat of
violence to the arrestor or others or is suspected on reasonable
grounds of having committed
a crime involving the infliction or
threatened infliction of serious bodily harm and there are no other
reasonable means of carrying
out the arrest, whether at that time or
later. (i) These limitations in no way detract from the rights of an
arrestor attempting
to carry out an arrest to kill a suspect in
self-defense or in defence of any other person. (see also Burring
and Reddi, ‘
Section 49
, lethal force and lessons from the De
Menezes shooting in the United Kingdom’ 2013 (46) De Jure 928
at 943 citing the work
of Bruce ‘Killing and the Constitution
– Arrest and the use of lethal force’
(2003)
SAJHR
430
at 442).
[8]
Footnote
5 above.
[9]
Commonly
referred to as intent in the form of
dolus
directus.
Dolus
directus, also called actual intention, is present, when a person
directs his or her will to bringing about the prohibited
act or
consequence and deliberately accomplishes what he or she actually
intended and desired to accomplish. See Snyman
Criminal
Law
6 ed (2015). See also
S
v Pistorius
[2015] ZASCA 204; 2016 (2) SA 317 (SCA).
[10]
See
Liesching
and others v S
[2018]
ZACC 25
;
2019 (1) SACR 178
(CC) para 94
where
the Constitutional Court held that ‘[t]his Court held in
Makate
that appeal courts are generally reluctant to interfere with factual
findings made by trial courts, more particularly if the
factual
findings depended upon the credibility of the witnesses who
testified at the trial’ (Footnotes omitted.). See also
Modiga
v The State
[2015] ZASCA 94
;
[2015] 4 All SA 13
(SCA) para 23.
[11]
Captain
Sereo, supported by the evidence of the first appellant described
the R5 assault rifle as a high caliber firearm.
[12]
The
witnesses said this happened immediately upon the arrival of the two
appellants. The two said, they shouted first and simultaneously
started to shoot when they received no response.
[13]
See
S
v Bogaards
[2012] ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[14]
See
S
v Phillips
[2016] ZASCA 187
;2017(1) SACR 373 (SCA) para 5.
[15]
S
v De Beer
[2017]
ZASCA 183
;
2018 (1) SACR 229
(SCA).
[16]
SS Terblanche, A guide to Sentencing in South Africa,3 ed (2016) at
61.
[17]
S
v
Malgas
2001(1) SACR 469 (SCA) para 33
[18]
See
S v
Khoza and Others
2010 (2) SACR 207
(SCA);
S
v Mathebula and Another
2012
(1) SACR 374 (SCA).
[19]
Khoza,
ibid,
para
48.
[20]
Hiemstra’s
Criminal Procedure
at 28-21 (Service Issue 12) with reference to
S
v Khoza and others
2010 (2) SACR 207
(SCA) para 88-89.
[21]
Ibid.
[22]
In
vacuo
,
in Latin.
[23]
S
v Zinn
1969(1)
SA 239 (A).
[24]
R
v Karg
1961 (1) SA 231
(A) at 236A-C.
[25]
S
v Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA) para 16.
[26]
S
v Malgas
2001 (1) SACR 469 (SCA).
[27]
S
v Williams and Others
[1995] ZACC 6
;
1995 (2) SACR 251
(CC);
1995 (7) BCLR 861
(CC) paras 67 and 68
(footnotes omitted).