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[2020] ZASCA 114
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Bilankulu and Another v S (188/2020) [2020] ZASCA 114 (29 September 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 188/2020
In
the matter between:
WILLIAM
MZAMANI BILANKULU FIRST
APPELLANT
JANSEN THAPELO
MOKOENA SECOND
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Bilankulu
and Another v The State
(Case
no 188/2020)
[2020] ZASCA 114
(29 September 2020)
Coram:
PETSE DP, MAKGOKA and NICHOLLS JJA
and EKSTEEN and MABINDLA-BOQWANA AJJA
Heard
:
This appeal was disposed of without an oral hearing in terms of s
19
(a)
of the
Superior Courts Act 10 of 2013
.
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives via
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on
29 September 2020.
Summary:
Criminal Law and
Procedure – murder – deceased shot by unidentified person
in shootout with the authorities –
accused had
dolus
indeterminatus
to
commit murder – unlawful hunting of rhinoceros in state reserve
–
s 31(3)
of Limpopo Environmental Management Act 17 of 2003 –
s 252A of
Criminal Procedure Act 51 of 1977
– entrapment
not going further than providing opportunity to commit the offence –
evidence of trap automatically admissible
–
s 35
of
Constitution – evidence of cell phone records not disclosed
before trial admitted in evidence – belated disclosure
not
causing trial prejudice.
Sentence – imposition of non-parole period –
appellants not afforded an opportunity to address the trial court on
the
issue – not providing reasons for imposing non-parole
period – misdirection – cumulative effect of sentence not
considered – constitutes misdirection.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Polokwane (Spilg J sitting as court of
first instance):
1 The appeal against the
conviction is dismissed.
2 The appeal against the sentence
is upheld.
3 The sentence imposed by the high
court is set aside and substituted with the following:
‘
The
accused are each sentenced:
(a) on count 1 to 20 years’
imprisonment;
(b) on count 2 to 15 years’
imprisonment;
(c) on counts 3 and 4, taken
together for sentence, to 15 years’ imprisonment.
(d) the sentence imposed in
respect of count 2 and 10 years of the sentence imposed in respect of
counts 3 and 4 will run concurrently
with that imposed in respect of
count 1.
(e) the accused will therefore
each serve an effective sentence of 25 years’ imprisonment.’
JUDGMENT
Eksteen
AJA (Petse DP, Makgoka and Nicholls JJA and Mabindla-Boqwana AJA
concurring)
[1]
The appellants were convicted in the High Court of South
Africa, Limpopo Local Division, Phalaborwa (the high court) of
murder
(count 1), unlawful hunting of rhinoceros (rhino)
[1]
(count 2), and unlawful possession of a firearm
[2]
(count 3) and ammunition
[3]
(count 4). They were each sentenced to a total of 50 years’
imprisonment, of which five years were conditionally suspended,
and a
non-parole period of 25 years was imposed. They appeal, with leave of
the high court, against their convictions and sentence.
[2]
The appeal against the conviction raises three legal issues: firstly,
the application of s 252A of the Criminal Procedure Act
51 of 1977
(the CPA); secondly, the admission of evidence of cell phone records
in possession of the State which had not formed
part of the docket
provided to the appellants prior to the commencement of the trial;
and thirdly, whether, on the facts, the State
had proved ‘
dolus
’
to the extent necessary to sustain a conviction of murder.
[3]
Two issues were raised relating to the sentence imposed: firstly, the
severity of the sentence, which results from the cumulative
effect of
the individual sentences imposed; and secondly, the imposition of a
non-parole period without first affording the appellants
an
opportunity to address the court on the issue.
[4]
The facts giving rise to the conviction are as follows: Mr Mateketo
Justice Khosa (Khosa) was employed by African Field Ranger
Training
Service (African Ranger) as a field ranger. The Letaba Ranch
(Letaba), a game reserve belonging to the Limpopo Development
and
Tourism Department (the Department) and situated in the district of
Lulekani, Phalaborwa, had utilised the services of African
Ranger
from time to time to train field rangers employed by the Department.
During the latter part of 2012 Khosa had been engaged
to train field
rangers at Letaba.
[5]
In August 2012, he was
approached
by Mr Frans
Ngwenya (Ngwenya) of Orange Farm in Gauteng, who expressed the wish
to hunt rhino in the reserve. Before meeting
Ngwenya, he had
reported Ngwenya’s plans to the senior field ranger in the
employ of the Department at Letaba, Mr Selowa
[4]
(Selowa) and to Mr de Kock, a senior official in African Ranger, both
of whom had suggested that he should cooperate with Ngwenya
and keep
them abreast. Once he had met with Ngwenya, Selowa introduced him to
Colonel Fourie, who registered him as a police informer.
Later Khosa
was introduced to the second appellant, with whom he arranged, at the
suggestion of the second appellant, for a hunt
on 12 January 2013 to
the exclusion of Ngwenya. The second appellant arrived with the first
appellant and a man unknown to Khosa.
On that day, two rhinos were
shot and wounded, but managed to run away, and the poaching team fled
the scene. At Khosa’s
suggestion, the same poaching team went
back to the reserve on 14 January 2013 and Khosa arranged with Selowa
to set up an ambush
at a pre-arranged time and place to apprehend the
poachers.
[6]
The
first appellant carried the firearm and Khosa the bag containing the
axe. The second appellant remained with the vehicle. As
the poaching
party proceeded through the reserve Khosa spotted one of the rangers
lying in wait with a rifle pointing in their
direction. He fell to
the ground and thereafter heard gun shots. It later turned out that
one of the rangers Mr Mulalu Nemakhavhani
(the deceased), had
been shot dead. Hence the charge of murder.
[7]
The
evidence could not establish the calibre of the bullet which had
killed the deceased. The high court was therefore unable to
find that
he was shot by either the first appellant or his accomplice. The
evidence did, however, establish that he was killed
in the shootout
between the field rangers and the police, on the one hand, and the
first appellant and his accomplice, on the other.
Both appellants
were subsequently arrested and charged.
[8] At the conclusion of the
trial, the appellants were convicted on all counts and sentenced as
recorded earlier. An application
for leave to appeal followed and the
trial judge ordered that:
‘
1.
Leave to appeal conviction is granted in respect of the following
grounds only:
(a) whether the cell phone records should have
been admitted into evidence;
(b) whether the court should have admitted the
evidence of Khosa having regard to the provisions of s252A of the CPA
or weighed
it differently;
(c) whether this court
correctly found on the facts regarding the actual shooting incident
on 14 January 2013 when the late Mr Mulalu
Nemakhavhani was fatally
shot inside the Letaba Ranch Nature Reserve;
[5]
(d) whether the accused had the requisite legal
intent, whether in the form of
dolus eventualis
or otherwise,
to be convicted of murder.
2.
Leave to appeal the sentences imposed is also granted.’
[9] It is convenient to consider first the question
raised in para 1(b) of the order granting leave to appeal. Section
252A(6) provides:
‘
If
at any stage of the proceedings the question is raised whether
evidence should be excluded in terms of subsection (3) the burden
of
proof to show, on a balance of probabilities, that the evidence is
admissible, shall rest on the prosecution: Provided that
the accused
shall furnish the grounds on which the admissibility of the evidence
is challenged: Provided further that if the accused
is not
represented the court shall raise the question of admissibility of
the evidence.’
[6]
[10]
At the trial both appellants were legally represented. Counsel for
the appellants had been in possession of all the witness
statements
contained in the docket prior to the trial. Neither counsel raised
any challenge to the admissibility of the evidence
of Khosa nor was
it raised
mero motu
by the trial judge.
In consequence the admissibility of the evidence of Khosa was not
adjudicated upon as contemplated in s 252A(7)
[7]
and the prosecution was not called upon to tender further evidence in
respect of the planning of the operation. It is unfortunate
that
counsel for the appellants failed to raise their challenge at the
trial as this could have served to focus the attention on
the
pertinent issues.
[11]
In his heads of argument counsel for the State argued that s 252A
found no application as there was no evidence that Fourie,
a police
officer, played any role in the operation.
[8]
This argument is factually insupportable and cannot be sustained. As
I have said, Khosa was introduced to Fourie by Selowa and
registered
as a police informer, with Fourie as his handler. During
cross-examination Khosa was asked about the arrangement set
up to
apprehend the poachers. He stated:
‘
On
that day of the 12
th
we had agreed with the field rangers that they were going to make an
ambush there with the police officers, but when we go there
they were
not there and I showed the other people whom I was with where we
should go.’
[12]
In his statement to the police Khosa recorded, and he confirmed the
correctness thereof in his evidence, that after the shooting
on 14
January 2013, he immediately sought to contact both Fourie and Selowa
to advise of his perception that the poachers had been
arrested.
Thus, although the issue had not been pertinently canvassed, probably
in consequence of the failures in the trial proceedings
to which I
have referred earlier, there is good reason to conclude that Fourie
was involved in the coordination of the operation.
Due to the onus
resting on the State to establish the admissibility of the evidence
it was for the State to establish that Fourie
was not part of the
arrangement. In the circumstances the matter must be decided in terms
of s 252A.
[13]
It was contended on behalf of the appellants that the evidence of
Khosa should not have been admitted. He argued that this
was so as
the commission of the offences was facilitated by the police and/or
the game reserve authorities through the use of an
undercover
operation. Selowa had advised Khosa to encourage the suspects to come
to the reserve to poach. The appellants, so the
argument went, would
not have been able to enter the reserve to hunt rhino without the
assistance and encouragement of Khosa. For
these reasons he urged us
to hold that the conduct of the police and the reserve management
went beyond providing the opportunity
to commit the offence and the
evidence ought therefore to have been excluded in terms of s 252A.
[14] Notwithstanding the provisions of s 252A having
been carefully considered and explained in
Kotzé,
they
are still frequently misconstrued. Section 252A(1) provides for the
authority to make use of traps and undercover operations
and for the
admissibility of evidence so obtained. The section states:
‘
Any
law enforcement officer, official of the State or any other person
authorised thereto for such purpose (hereinafter referred
to in this
section as an official or his or her agent) may make use of a trap or
engage in an undercover operation in order to
detect, investigate or
uncover the commission of an offence, or to prevent the commission of
any offence, and the evidence obtained
shall be admissible if that
conduct does not go beyond providing an opportunity to commit an
offence: Provided that where the conduct
goes beyond providing an
opportunity to commit an offence the court may admit evidence so
obtained subject to subsection (3).’
[15]
The legislature has explicitly permitted the use of a trap or
engaging in undercover operations in order to detect, investigate
or
uncover the commission of an offence. This is not unlawful.
[9]
As explained in
Kotzé
:
‘
The section
lays down two approaches to the admissibility of evidence obtained as
a result of the use of a trap. Evidence is automatically
admissible
if the conduct of the person concerned goes no further than providing
an opportunity to commit the offence. If the conduct
goes beyond that
the court must enquire into the methods by which the evidence was
obtained and the impact that its admission would
have on the fairness
of the trial and the administration of justice in order to determine
whether it should be admitted.
It must be stressed that the fact that the
undercover operation or trap goes beyond providing the accused person
with an opportunity
to commit the crime does not render that conduct
improper or imply that some taint attaches to the evidence obtained
thereby. All
that it does is create the necessity for the trial court
to proceed to the enquiry mentioned in the previous paragraph.’
[10]
[16] Whether the trap has gone
beyond providing an opportunity to commit the crime is a factual
enquiry.
[11]
The factual enquiry is carried out by weighing up the various factors
set out in s 252A(2)(a)-(n). They must be weighed holistically
and
cumulatively. If, upon a consideration of these factors, and any
other factor which has bearing on the question,
[12]
the court concludes that the trap did not go beyond providing the
opportunity to commit the offence, the evidence is automatically
admissible. If it did, then the enquiry proceeds to s 252A(3).
[13]
[17] So, did the conduct of Khosa
and the law enforcement authorities go beyond creating an opportunity
to commit the offence? As
I have said, the enquiry requires a
consideration of the factors listed in subsec (2). Not all of the
listed factors find application
in every case and I shall confine
myself to those which are relevant to the facts of this case. The
material portions of s 252A(2)
which find application to the
facts of the present matter are as follows:
‘(2)
In considering the question whether the conduct goes beyond providing
an opportunity to commit an offence, the court
shall have regard to
the following factors:
(a)
Whether,
prior to the setting of a trap or the use of an undercover operation,
approval, if it was required, was obtained from the
attorney-general
to engage such investigation methods and the extent to which the
instructions or guidelines issued by the attorney-general
were
adhered to;
(b)
the
nature of the offence under investigation, including-
(i) whether . . . the national economy is
seriously threatened thereby;
(ii) the prevalence of the offence in the area
concerned; and
(iii) the seriousness of such offence;
. . .
(d)
whether
an average person who was in the position of the accused, would have
been induced into the commission of an offence by the
kind of conduct
employed by the official or his or her agent concerned;
(e)
the
degree of persistence and number of attempts made by the official or
his or her agent before the accused succumbed and committed
the
offence;
(f)
the
type of inducement used, including the degree of deceit, trickery,
misrepresentation or reward;
(g)
the
timing of the conduct, in particular whether the official or his or
her agent instigated the commission of the offence or became
involved
in an existing unlawful activity;
. . .
(j)
the
proportionality between the involvement of the official or his or her
agent as compared to that of the accused, including an
assessment of
the extent of the harm caused or risked by the official or his or her
agent as compared to that of the accused, and
the commission of any
illegal acts by the official or his or her agent;
. . .
(m)
whether the official or his or her
agent acted in good or bad faith; or
. . . ’
[18] As for subsec (2)
(a)
,
there was no evidence of whether or not consent of the Director
Public Prosecutions (DPP) was obtained, perhaps because there
had
been no challenge to the admissibility of the evidence. However, the
evidence of how the events unfolded strongly suggests
that no prior
consent was obtained. This factor militates in favour of the
exclusion of the evidence. However, it cannot,
of itself, be
decisive of the issue. It is but one of the factors to be weighed.
[19] Rhino is a specially
protected animal because it is an endangered species. The decimation
of the rhino population in South
Africa is a matter of national and
international concern, which has enjoyed such media attention over
the years as to thrust it
into the public eye. The evidence in
aggravation presented on behalf of the State established that, during
the period 1 April 2014
to 8 October 2014, no fewer than 821 rhinos
had been unlawfully killed in South Africa. There is no reason to
believe that the
extent of the onslaught was any less significant in
January 2013. The evidence further established that the rhino
population in
South Africa is concentrated in Limpopo, which is
suggestive of the prevalence of the offence in the area concerned. By
virtue
of the proximity of Limpopo to Mozambique and Zimbabwe,
perpetrators of these offences often flee from the area making the
policing
of the offences difficult. Moreover, the harvest of the horn
of a single adult rhino may have a market value of more than R5
million.
The offence set out in count 2 is undoubtedly a serious one
which is disturbingly prevalent in Limpopo.
[14]
[20] The facts leading up to the
offence are set out earlier. Ngwenya had initially engaged Khosa, of
his own initiative, to hunt
a rhino in Letaba. He enlisted the
support of second appellant and introduced him to Khosa. The second
appellant, in turn, invited
the first appellant to become involved.
When Ngwenya was unable to provide the rifle required for the hunt,
the second appellant
solicited the assistance of Khosa to facilitate
the operation to the exclusion of Ngwenya. The initiative for the
crime emanated
from the second appellant.
[15]
[21] A trap has been described as
‘a person who, with a view of securing the conviction of
another, proposes certain criminal
conduct to him, and himself
ostensibly takes part therein . . . [H]e creates an occasion for
someone else to commit the offence’.
[16]
Entrapment is a ‘proactive investigative technique’.
[17]
Per definition it involves a measure of deceit. In the present
matter, after Khosa had agreed to assist Ngwenya, Ngwenya placed
him
under pressure to arrange an opportunity for the hunt. In
consultation with the rangers at Letaba and the SAPS, Khosa
represented
to Ngwenya that the rangers were on strike and it was
accordingly opportune to carry out the hunt in November 2012. The
representation
was false and therefore deceitful. Nothing came of the
hunt because the plans were aborted and this deceit played no role in
the
offences which were later committed. No similar misrepresentation
was made to either of the appellants in respect of the hunt on
12
January 2013. Khosa did no more than to provide the opportunity for
the commission of the crime proposed to him by the second
appellant.
The vehicle utilised to travel to and flee from the scene was
provided by the second appellant. The appellants provided
the axe
that was to be used to dehorn the rhino and the rifle and ammunition
to shoot the animals. Khosa was merely the guide to
show the route.
He did nothing to induce either of the appellants to commit the
offence nor did he show any persistence. The first
invitation, which
was extended in consequence of second appellant’s initiative,
was taken up with alacrity without any deceit,
trickery or
misrepresentation, save that Khosa did not reveal that an ambush was
due to be set.
[18]
[22] In
S
v Lachman
[19]
three different scenarios involving a trap were distinguished:
‘One is where the trap creates the
opportunity to commit a crime for someone who, but for the trap,
would not have committed
a crime. A second occurs where the “trap”
merely creates such an opportunity for someone who wanted to commit
the particular
offence – and would have done so in any event,
even without the trap’s influence. A third category is present
…
‘where the accused is himself or herself the initiator
of the incriminating transaction and instigates the “trap”
to conclude the transaction with him or her and the trap merely
ostensibly participates therein, and in that sense creates the
opportunity for the commission of the crime.
A
fortiori
the accused in such a case
commits the crime without any influence from the trap’.’
[20]
In participating in the hunt on 12
January 2013 the appellants, in my view, fell squarely within the
latter category. On an acceptance
of Khosa’s evidence he acted
in good faith, revealing every intended operation to Selowa in
advance. No controverting evidence
was presented. The argument that
Khosa ‘encouraged’ the appellants to commit the offence
can therefore not be sustained.
[23] As I have said, the hunt on
12 January 2013 did not achieve its purpose. In consultation with the
authorities Khosa again made
contact with the appellants to return to
Letaba to complete the operation. Whilst he deceitfully suggested to
them that he had
located one of the rhinos which was unable to move,
his invitation on this occasion was again accepted with alacrity.
There was
no persistence on his part and no resistance from the
appellants. There was no coercion or inducement. It bears repeating
that
the vehicle, the axe and the firearm and ammunition were all
provided by the appellants without any involvement of Khosa.
[24] Considering all of these
factors holistically and weighing them cumulatively, the inevitable
conclusion is that, notwithstanding
the failure to obtain the prior
consent of the DPP, Khosa did no more than provide an opportunity for
the commission of the offence
which, after all, had been hatched by
the appellants’ erstwhile confederate Ngwenya.
[21]
In those circumstances the admission of the evidence is not
detrimental to the administration of justice nor, in my view, did it
render the trial unfair. Khosa’s evidence was thus
automatically admissible. It is therefore not necessary to consider s
252A(3).
[25] As a result of the argument
presented on behalf of the appellants, the trial judge considered
Khosa to be an accomplice. Whilst
he may have been incorrect in this
conclusion, he recognised the caution which he was required to
exercise in weighing the evidence
of Khosa. He was alive to the need
to seek corroboration for critical aspects of his evidence and found
such corroboration in the
cell phone records. In the result the
evidence of Khosa was correctly admitted and weighed.
[26] That brings me to the
question whether the cell phone records should have been admitted in
evidence. The admissibility of cell
phone records and evidence
relating thereto in criminal proceedings was not contested. Counsel
for the appellants submitted that,
on the facts of this matter, the
admission of these records midway through the trial, in circumstances
where they had not been
provided prior to the trial, infringed their
right to a fair trial guaranteed in s 35(3) of the Constitution of
the Republic of
South Africa, Act 108 of 1996.
[27] The appellants relied on ss
35(3)
(a)
,
(b)
and
(d)
, which provides:
‘Every accused person has a right to a
fair trial, which includes the right-
(a)
to be
informed of the charge with sufficient detail to answer it;
(b)
to have
adequate time and facility to prepare a defence;
. . .
(d)
to have
their trial begin and conclude without unreasonable delay.’
[28] Once the appellants had been
indicted, they called for copies of the investigation docket to
enable them to prepare for trial.
The DPP obliged and provided them
in good time with all the documents contained in the docket. The cell
phone records were not
in the docket and were held by the Technical
Support Unit (TSU) of the SAPS. Neither counsel for the State nor the
investigating
officer had had sight of these records. After the trial
had already started and two witnesses had completed their testimony,
counsel
for the State was advised that the TSU would make the records
available. He therefore sought leave to introduce the records at the
earliest opportunity and an adjournment of the trial in order to
enable him, and the defence counsel, to examine the documentation,
to
take instructions in respect of their content, and to source
witnesses to explain the implications thereof. Counsel for the
appellants objected to both the introduction of the evidence and the
postponement for the reasons set out earlier.
[29] It is not contentious that an
accused person may, by virtue of the provisions of s 35 of the
Constitution, be entitled to documentation
in the investigation
docket in order to prepare for trial. In
Shabalala and Others v
Attorney-General of the Transvaal and Another
[1995] ZACC 12
;
1995 (2) SACR 761
(CC) at para 37 it was held:
‘The accused may, however, be entitled to
have access to the relevant parts of the police docket even in
cases where
the particularity furnished might be
sufficient to enable the accused to understand the charge against him
or her but,
in the special circumstances of a particular case, it
might not enable the defence to prepare its own case sufficiently, or
to
properly exercise its right “to adduce and challenge
evidence”; or to identify witnesses able to contradict the
assertions
made by the State witnesses; or to obtain
evidence which might sufficiently impact upon the credibility and
motives
of the State witnesses during cross-examination; or to
properly instruct expert witnesses to adduce evidence which might
similarly detract from the probability and the veracity of the
version to be deposed to by the State witnesses; or to
focus properly
on significant matters omitted by the State
witnesses in their depositions; or to properly deal with the
significance of matters
deposed to by such witnesses in one statement
and not in another or deposed to in a statement and not repeated in
evidence; or
to hesitations, contradictions and uncertainties
manifest in a police statement but overtaken by confidence and
dogmatism
in
viva voce
testimony.’
[30] In this instance the
contentious documents did not form part of the docket. The reason for
the failure by the TSU to have provided
this documentation, which had
been in their possession for almost a year, was not fully explained
and the trial judge correctly
criticised their conduct. However, that
does not necessarily, of itself, render the trial unfair. The remarks
of this court in
National Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA);
[2010] ZASCA 8
;
2010 (2) SACR 146
(SCA) para
4 are instructive:
‘The right to a fair trial is, by virtue
of the introductory words to s 35(3) of the Bill of Rights, broader
than those rights
specifically conferred by the fair trial guaranteed
therein and embraces a concept of substantive fairness that is not to
be equated
with what might have passed muster in the past. This does
not mean that all existing principles of law have to be jettisoned,
nor
does it mean that one can attach to the concept of a “fair
trial” any meaning, whatever anyone wishes it to mean . .
.
Potential prejudice may be rectified during the course of the trial
and the court may make preliminary rulings depending on how
the case
unfolds and may revoke or amend them. Irregularities do not lead
necessarily to a failure of justice.’
[31] The fair trial enquiry is,
first and foremost, a fact-bound enquiry.
[22]
The appellants contended that their rights to a fair trial were
infringed because the State had been in possession of the cell
phone
records for a substantial period prior to trial without discovering
them. It was argued that the appellants were ambushed
as they had
already been obliged to cross-examine two State witnesses and to
present their versions to them. The suggestion of
an ambush
presupposes that the prosecution had access to the documents before
the commencement of trial and intentionally withheld
them. That is
not supported by the facts.
[32] Both appellants had pleaded
not guilty and chose to exercise their right to silence. The first
witness for the State was a
police official who had been summoned to
the scene of the shooting when the death of the deceased was
reported. He testified as
to what he found on arrival at the scene
and did not implicate either of the appellants in any manner.
Counsel for the first
appellant did not cross-examine him at all.
On behalf of the second appellant cross-examination was brief and his
version
of events was not suggested to him.
[33] Khosa testified thereafter.
He was extensively cross-examined on behalf of both appellants. On
behalf of first appellant, counsel
put it to him that Bilankulu would
deny that he was with him when the crime was committed. Nothing more
was revealed of his defence.
On behalf of second appellant, counsel
revealed that he did meet Khosa at the Mahonisi Village in December
2012. However,
he denied that their meeting or conversation had
anything to do with rhino. He contended that Khosa had enquired about
the purchase
of a vehicle and that he had suggested that first
appellant may have such a vehicle. He therefore introduced Khosa to
first appellant
at their next meeting. On behalf of second appellant,
too, it was suggested that he would deny that he had been in Letaba
with
Khosa.
[34] There was nothing in the cell
phone records which contradicted anything put to these witnesses and
the conduct of the defence
was not compromised by the versions put to
Khosa. After they had had the benefit of an adjournment of
approximately six weeks in
order to study the records, to take
instructions in respect thereof and to identify witnesses who may
contradict the inferences
drawn from the records counsel for the
appellants did not challenge the correctness of any of the records or
any of the evidence
in relation thereto. The appellants have not
identified any respect in which their defence might have been
conducted differently,
nor am I able to perceive any, had the records
been available before the commencement of trial. There was no trial
prejudice which
might have arisen from the admission of the evidence
and, in my view, the appellants’ reaction to the indictment and
to the
evidence of the first two State witnesses would have been
precisely the same. The argument in respect of trial prejudice can
therefore
not be sustained.
[35] The postponement followed
after the ruling to permit the introduction of the records. Section
342A of the CPA was introduced
into the Act in 1997
[23]
in order to give effect to s 35(3)
(d)
of the Constitution to which I have referred earlier. This section
enjoins a court before which criminal proceedings are pending
to
investigate any delay in the completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or their legal
representative, the State or a witness. Whether the delays are
unreasonable
depends on the circumstances of each individual case. In
order to determine whether a particular lapse of time is unreasonable
the court will perform ‘a balancing act’ in which,
amongst other factors, the conduct of both the prosecution and the
accused, the length of the delay, the reason which the State assigns
to justify the delay and the prejudice to the accused are
weighed.
The most important factors bearing upon the enquiry relate to the
nature of the offence, the duration of the delay, the
reasons given
therefor, and the prejudice, actual or potential, to the accused.
[24]
In the present case the length of the delay was relatively brief and
was necessary to enable both the State and the defence to
study and
consider the documentation. I have already alluded to the seriousness
of the offences and the fact that no prejudice
at all to the accused
has been demonstrated.
[36] In the event that it had been
found that the delay would have been unreasonable, the high court
could have refused a further
postponement of proceedings, as the
appellants contended ought to have been done. Section 342A(4)
(a)
,
however, provides that where an accused person has already pleaded to
a charge, a postponement of proceedings should not be refused
unless
exceptional circumstances exist and all other attempts to speed up
the process have failed. None were alleged. In the result
the
granting of the postponement was not only justified but necessary in
the interests of justice.
[37] I turn accordingly to the
question of
dolus
in respect of the shooting of the deceased. The evidence did not
establish who fired the shot which killed the deceased. It may
have
been fired by either first appellant, who was in possession of the
firearm prior to the exchange of fire, or by his accomplice
who had
accompanied them in order to carry out the shooting of the rhino, or
by one of the rangers in the confusion that is inherent
in a
shoot-out. Second appellant was not on the scene of the shooting. In
order to secure a conviction for murder the State was
required to
prove beyond reasonable doubt that each of the appellants had the
intention to kill the deceased. We are concerned
here with the
subjective mental state of the appellants.
[25]
By virtue of the inability to determine the origin of the bullet that
killed the deceased, the facts demonstrate in the case of
each of the
appellants that the enquiry concerns
dolus
eventualis
, ie
whether in each case they knew that someone might be shot and killed.
[38] In the case of second
appellant, the evidence established that he was the mastermind who
solicited Khosa to facilitate the
hunting of rhino. He also told
Khosa that his friend would provide the firearm, obviously to execute
their nefarious plan. First
appellant provided the firearm. The
prevalence of rhino poaching in Limpopo and the difficulties
experienced in policing such crimes
are set out earlier. The
consequences of being caught in the act, as it were, were always
predictable. Second appellant had sent
his foot soldiers into the
reserve to shoot rhino. Letaba was owned by the Limpopo Province and
it must have been foreseen that
the reserve would be patrolled by
rangers. That, after all, was the reason for enlisting the support of
Khosa to guide them. In
the event of them being found in the reserve,
armed with a rifle, a confrontation with rangers was an inevitable
consequence. The
likelihood of first appellant or the shooter in his
company firing at rangers in order to ensure their escape and the
possibility
of return fire was self-evident. In my view, it is clear
beyond a reasonable doubt that, in sending forth his armed posse, he
must
have foreseen the possibility of a shooting affray and a
confused and desperate scene in which anyone could be hit. First
appellant,
as participant in the hunt, must have shared that
foresight.
[39] On behalf of the appellants,
it was submitted that they could not have foreseen the possibility of
a confrontation with rangers
because Khosa had advised that the
rangers were on strike. This argument cannot be sustained. The
evidence established no more
than that Khosa had advised Ngwenya in
November 2012, that the game rangers were on strike. No similar
representation in January
2013 emerged from the evidence. In all the
circumstances, whilst there is no direct evidence that the appellants
knew that a confrontation
with rangers was possible, on a conspectus
of the evidence, I do not think that any person engaged in rhino
poaching in a State
reserve could not have foreseen the inherent
possibility of a shoot-out with rangers in the event of
confrontation. In the circumstances
I consider that it was proved
that the appellants had ‘
dolus
indeterminatus
’
[26]
in the sense that they in fact foresaw the possibility of a shoot-out
with rangers and the concomitant possibility that anybody
involved
therein might be shot and killed.
[27]
In the circumstances the appeal against the conviction must fail.
[40] I turn to the sentence. As
stated already, the appeal against sentence is based on two grounds.
The first is the imposition
of a non-parole period by the high court.
The second is that the cumulative effect of the sentence is
startlingly inappropriate.
I deal with these, in turn. The
power to impose non-parole conditions are circumscribed in s 276B
of the CPA. Section
276B provides:
‘
Fixing of non-parole period
(1)
(a)
If a court sentences a
person convicted of an offence to imprisonment for a period of two
years or longer, the court may as
part of the sentence, fix a period
during which the person shall not be placed on parole.
(b)
Such
period shall be referred to as the non-parole-period, and may not
exceed two thirds of the term of imprisonment imposed or
25 years,
whichever is the shorter.
(2) If a person who is
convicted of two or more offences is sentenced to imprisonment and
the court directs that the sentences of
imprisonment shall run
concurrently, the court shall, subject to subsection (1)
(b)
,
fix the non-parole-period in respect of the effective period of
imprisonment.’
[41]
The high court provided no reasons for the conclusion that such an
order was appropriate and imposed the non-parole period
mero
motu
, without any
prior warning that it was being contemplated or affording counsel for
the appellants an opportunity to address it
on the issue. In
S
v Stander
[2011]
ZASCA 211
;
2012 (1) SACR 537
(SCA) three issues arose: First, whether
the presiding officer had been obliged to give reasons in his
judgment on sentence for
imposing the non-parole order. Second, the
circumstances under which a court would be entitled to impose a
non-parole order as
part of the sentence. Third, whether the
magistrate had been obliged to invite or allow argument before the
imposition of a non-parole
order.
[42] In respect of the second
issue raised in
Stander
this court held:
‘
An
order in terms of s276B should . . . only be made in exceptional
circumstances, when there are facts before the sentencing court
that
would continue, after sentence, to result in a negative outcome for
the future decision about parole.’
[28]
[43] It went on to hold that ‘a
court, before making a non-parole order, should carefully consider
whether exceptional circumstances
exist’.
[29]
Exceptional circumstances, it held, ‘should be circumstances
that are relevant to parole and not only aggravating factors
of the
crime committed, and a proper evidential basis should be laid for a
finding that such circumstances exist’.
[30]
In this instance there was no evidential basis laid for the
conclusion arrived at.
[44] In addressing the first issue
raised in
Stander
this court referred to
S v Immelman
1978
(3) SA 726
(A) at 729A-C where Corbett JA said (at 729A-C):
‘It has been decided in this court, with
reference to the verdict of the court, that, although there is no
provision in the
Criminal Procedure Code for the delivery of a
judgment when a judge sits alone or with assessors (when these
decisions were given
the alternative system of trial by jury still
obtained), in practice such a judgment is invariably given and that
it is clearly
in the interest of justice that it should be given (see
R v Majerero and Others
1948 (3) SA 1032
(A);
R v Van der
Walt
1952 (4) SA 382
(A)). It seems to me that, with regard to
the sentence of the court in cases where the trial judge enjoys a
discretion, a statement
of the reasons which move him to impose the
sentence which he does also serves the interest of justice. The
absence of such reasons
may operate unfairly, as against both the
accused person and the State.’
In this respect, too, the high
court failed.
[45] The third issue which arose
in
Stander
relates to the opportunity for the parties to
address the court on the issue. The court postulated that at least
two questions
arise when such an order is considered:
‘First, whether to impose such an order
and, second, what period to attach to the order.’
It ruled that the parties were
entitled to address the sentencing court on each of these issues and
the failure to permit them to
do so constituted a misdirection.
[31]
The high court failed in each of these respects. For these reasons
the imposition of a non-parole period cannot be sustained.
[46] What remains is the severity
of the punishment imposed. I turn first to consider the periods of
imprisonment imposed in respect
of the individual offences. The power
of the court of appeal to interfere with the sentence imposed by the
trial court is a limited
one. The principles which govern this power
have been reiterated on numerous occasions. The language employed in
framing the test
has sometimes varied, but the effect has in essence
been the same. It was set out in
S v Berliner
1967 (2) SA 193
(A) at 200G-H:
‘. . . [In] the absence of any
irregularity or misdirection, this Court will, on a question of
severity, only interfere if
it considers that there is a striking
disparity between the sentence passed and that which the Court of
Appeal would have
passed …’
This is because the trial court
has a judicial discretion, and the appeal is not to the discretion of
the court of appeal: on the
contrary, in the latter court the enquiry
is whether it can be said that the trial court exercised its
discretion improperly.
[32]
[47] In respect of count 1,
murder, Counsel for the appellants submitted that the discretionary
minimum sentence set out in s 51(2)
of the Criminal Law Amendment Act
(Criminal Law Amendment Act) 105 of 1997 (CLAA), was 15 years. The
submission cannot be sustained.
On the proven facts, which are not
subject to the appeal, the game ranger was shot in circumstances
where the appellants acted
in the furtherance of a common purpose to
poach rhino. By virtue of the provisions of s 51(1) of the CLAA,
read with Part
1 of Schedule 2 para (d), the discretionary minimum
sentence is one of life imprisonment. The high court correctly
approached the
sentence of murder on this basis. It found substantial
and compelling circumstances to deviate from the discretionary
minimum sentence
and imposed a sentence of 20 years’
imprisonment. I am unable to find that there is a striking disparity
between the sentence
which this court would have imposed and that
which was imposed by the high court.
[48] In respect of count 2, s 117
of the Limpopo Environmental Management Act provides for a fine not
exceeding R250 000 or
imprisonment for a period not exceeding 15
years, or both such fine and such imprisonment and a fine not
exceeding four times the
commercial value of the fauna in respect of
which the offence was committed. The penalty on count 2 represents
the maximum period
of imprisonment prescribed under the said Act. As
I have noted, the high court heard evidence relating to the
prevalence of rhino
poaching and the consequences thereof in South
Africa and in Limpopo. The danger posed to the rhino population
generally weighed
heavily with it. It was submitted that the sentence
imposed was unduly harsh as neither of the appellants benefited from
the criminal
deed by virtue of the swift action of the game reserve
management and the evidence did not establish that either of the
rhinos
died. On a conspectus of all the evidence, I do not consider
that these considerations can redound to their benefit. It was not
of
their doing. I am unable to find that the sentence imposed is
startlingly inappropriate.
[49] Counts 3 and 4 were taken
together for purposes of sentence and a sentence of 15 years’
imprisonment was imposed. The
sentence is permissible under the
Firearms Control Act and, in the circumstances of the present matter,
I am unable to find that
it is so harsh as to induce a sense of
shock.
[50] However, when imposing
sentence on multiple counts a court must be aware of the cumulative
effect of the individual sentences
on the accused. The cumulative
effect of the sentences imposed amounts, as I have said, to a
sentence of 45 years’ imprisonment.
Such sentences are
extraordinary in the legal history of this country. In
S v
Tuhadeleni and Others
1969 (1) SA 153
(A) Rumpff JA at 189H
stated:
‘
In
the Republic of South Africa sentences of 50 or 60 or 70 years’
imprisonment, or more, are not imposed, as is done in some
other
countries, the maximum sentence imposed in the Republic being, in
practice, not more than 25 years, and that only in very
exceptional
cases.’
[51] These remarks were referred
to in
S v Whitehead
1970 (4) SA 424
(A), in this court in
considering the cumulative effect of sentences on multiple counts,
where Ogilvie-Thompson JA stated (at 438F-H):
‘
Notwithstanding
all the aforegoing, however, the cardinal . . . fact remains that
[the] appellant was sentenced to a total period
of 22 years’
imprisonment…. In the minority judgment in
S
v Tuhadeleni and Others
. . . RUMPFF, J.A. (with whom VAN BLERK and POTGIETER, JJA concurred)
expressed the view that in practice a maximum sentence is
25 years,
“and that only in very exceptional circumstances”.
Without necessarily concurring in the existence of a maximum
as thus
suggested, I certainly share the view that a sentence of 25 years
will only be appropriate in very exceptional circumstances.’
[33]
In
my opinion, save where the law prescribes a sentence of life
imprisonment, this salutary guideline to the upper limits of prison
sentences ought to be respected.
[52]
I have already rejected the criticism of the individual sentences
imposed. However, I am unable to find that the circumstances
of
the current matter constitute such exceptional circumstances as to
justify an overall effective sentence of 45 years. The trial
judge
appears to have overlooked the impact of the cumulative effect of the
various sentences. This is a misdirection which has
resulted in a
striking disparity between the sentence which he imposed and that
which I consider appropriate. For the reasons set
out above, I
consider that the effective sentence imposed should be ameliorated to
yield an effective sentence of twenty five years.
This may be
achieved by ordering that the sentences imposed in respect of counts
1 and 2 and ten years of the sentence imposed
in respect of counts 3
and 4 run concurrently.
[53] In the result:
1 The appeal against the
conviction is dismissed.
2 The appeal against the sentence
is upheld.
3 The sentence imposed by the high
court is set aside and substituted with the following:
‘
The
accused are each sentenced:
(a) on count 1 to 20 years’
imprisonment.
(b) on count 2 to 15 years’
imprisonment.
(c) on counts 3 and 4, taken
together for sentence, to 15 years’ imprisonment.
(d) the sentence imposed in
respect of count 2 and 10 years of the sentence imposed in respect of
counts 3 and 4 will run concurrently
with that imposed in respect of
count 1.
(e) the accused will therefore
each serve an effective sentence of 25 years’ imprisonment.’
__________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL
Appearances
For
appellants: L M Manzini
Instructed
by: Pretoria Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
respondent: N G Munyai
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
A
contravention of s 31(3) of the Limpopo Environmental Management Act
17 of 2003
[2]
A contravention of
s 3
of the
Firearms Control
Act 60 of 2000
.
[3]
A contravention of
s 90
of the
Firearms Control
Act 60 of 2000
.
[4]
Selowa died prior to the trial in undisclosed
circumstances and his evidence was accordingly not available to the
prosecution.
[5]
This ground of appeal was not persisted in.
[6]
In
Kotzé
v S
[2010] 1 All SA 220
(SCA);
[2009] ZASCA 93
;
2010 (1) SACR 100
(SCA);
[2010] 1 All SA 220
(SCA)
this
court held that notwithstanding
s 252A(6)
the onus resting upon the
State was to prove ‘beyond reasonable doubt’ the
admissibility of the evidence. The distinction
is immaterial on the
facts of this case.
[7]
Section 252A(7)
of the CPA provides: ‘
The
question whether evidence should be excluded in terms of
subsection (3) may, on application by the accused or the
prosecution,
or by order of the court of its own accord be
adjudicated as a separate issue in dispute.’
[8]
Section 252A
applies only to the State.
[9]
Kotzé
para 21.
[10]
Kotzé
paras 23 and 24.
[11]
Kotzé
paras 25 and 26.
[12]
Subsection (2)
(n
)
of
s 252A.
[13]
Kotzé
para 31.
Section 252A(3)
provides for the admission of the evidence
of entrapment in certain circumstances even when the entrapment did
go beyond the
mere provision of an opportunity for the commission of
an offence.
[14]
Section 252(A)(2)
(b)
.
[15]
These considerations bear on subsecs (2)
(d)
,
(e)
,
(f)
and
(g)
of
s 252A.
[16]
S v Malinga and Others
1963 (1) SA 692
(A) at 693F-G.
[17]
S Bronitt and D Roche ‘Between rhetoric and
reality: sociolegal and republican perspectives on entrapment’
(2000)
The International Journal of
Evidence and Proof
77.
[18]
These considerations bear on paras (2)
(d)
,
(e)
,
(f)
,
(g)
and
(j)
of
s
252A(2).
[19]
Lachman
v
S
2008
JDR 1558 (E);
[2009] JOL 24343
(E), upheld on appeal in
Lachman v S
[2010] 3 All SA 483
(SCA) para 30.
[20]
Lachman
para 30.
[21]
Section 252A(2)(l).
[22]
See
Mashnini
and Another v S
[2012]
ZASCA 1
;
2012 (1) SACR 604
para 51; and
Key
v Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996
(2) SACR 113
(CC) para 13, in turn, referring to
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC) para 153 (in relation to the fair trial provisions of the
interim Constitution of the Republic of South Africa, Act 200
of
1993).
[23]
See
s 13
of the
Criminal Procedure Amendment Act 56 of 1996
,
operative since 1 September 1997.
[24]
See
Saunderson v
Attorney-General, Eastern Cape
1998
(2) SA 38
(CC) paras 25 and 31-35 where the question of an
unreasonable delay in the context of an application for a permanent
stay of
prosecution was considered. The factors are provided
in
s 342A(2)(a)
-(f) of the CPA.
[25]
See
R v Hercules
1954 (3) SA 826
(A) at 830H
et
seq
;
R v
Horn
1958 (3) SA 457
(A) at 464C-465E;
and
S v Malinga and Others
1963
(1) SA 692
(A) at 694F-685C.
[26]
See
S v Nkombani and
Another
1963 (4) SA 877
(A) at 892A-B.
[27]
See also
S v Lungile
1999 (2) SACR 597
(SCA);
[2000] 1 All SA 179
(A) para 18.
[28]
See
Stander
para 16.
[29]
Stander
(ibid) para 20
.
[30]
See also
Strydom v S
[2015] ZASCA 29
para 15.
[31]
See also
Strydom
para [16]
Mthimkhulu v S
[2013] ZASCA 53
;
2013 92) SACR 89
(SCA) para 21;
Mhlongo
v S
[2016] ZASCA 152
;
2016 (2) SACR
611
(SCA) paras 6, 12, 13 and 26; and
Jimmale
and Another v S
2016
(11) BCLR 1389
(CC);
2016 (2) SACR 691
(CC) paras 13, 20 and 24.
[32]
S v Ivanisevic
[1967] 4 All SA 422 (A).
[33]
See also
R v
Mzwakala
1957 (4) SA 273
(A) at 278
where a sentence of 25 years was described as ‘exceptionally
long according to our practice’.