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[2000] ZASCA 184
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S v Ningi and Another (127/99) [2000] ZASCA 184; 2000 (2) SACR 511 (A) (29 September 2000)
CASE
NO 127/99 REPORTABLE
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
In
the matter between:
BONILE
NINGI 1st APPELLANT
ZOLILE
MABADI 2nd APPELLANT
and
THE
STATE RESPONDENT
CORAM: F H GROSSKOPF, SCOTT
et
PLEWMAN
JJA
HEARD: 26
SEPTEMBER 2000
DELIVERED: 29
SEPTEMBER 2000
Sentence
- 18 months imprisonment for public violence - correctional
supervision not a sentencing option by reason of imprisonment
imposed
on other counts - convictions on other counts set aside on appeal -
matter referred back to trial magistrate to consider
sentence under s
276(1)(h) of Act 51 of 1977
J
U D G M E N T
SCOTT JA
/...
SCOTT JA
:
[1] As long ago as 1994 the two appellants together
with 12 others stood trial in the Regional Court on one count of
murder, one
of attempted murder and one count of public violence. One
of the accused was acquitted. The others, including the appellants,
were
convicted on all three counts. Each was sentenced to eight years
imprisonment for murder on count 1, six years imprisonment for
attempted murder on count 2 and 18 months imprisonment for public
violence on count 3. In each case four years of the sentence
imposed
on count 2 and the whole of the sentence imposed on count 3 were
ordered to run concurrently with the sentence imposed
on count 1 so
that each of the 13 accused who were convicted was to serve an
effective period of 10 years imprisonment.
[2] On appeal to the Eastern Cape Division the
convictions on all three counts were set aside in the case of three
of the 13 who
had been convicted. The appeal of the remaining 10
(including the two appellants in this Court) against their conviction
and sentence
on count 3 (public violence) was dismissed. The appeal
of the two appellants against their convictions on counts 1 and 2 was
upheld. As to the other eight, all were unsuccessful in their appeal
against their conviction and sentence on count 2 (attempted
murder),
but all, save one, were successful in their appeal against the
conviction on count 1 (murder). In the case of the one,
the
conviction was altered to one of attempted murder and the sentence
reduced from eight to six years imprisonment. In his case
four of the
six years imposed on count 2 and the whole of the sentence on count 3
were to run concurrently with the 6 years imposed
on count one
resulting in an effective period of imprisonment of 8 years. Of the
remaining seven, the 18 months imposed on count
3 was to continue to
run concurrently with the sentence of six years imposed on count 2.
In the case of the two appellants the
sentence imposed on each was
similarly left intact save of course that there was no longer any
other sentence with which it could
run concurrently.
[3] The present appeal is against
sentence only. It is with the leave of the Court
a
quo
. Both
appellants are out on bail.
[4] All the charges arose from an incident which
occurred on Saturday 4 September 1993 at the Boskor sawmills, Storms
River, in
the Eastern Cape, where all the accused were employed and
where they resided in a compound on the premises. It appears that the
workers fielded a rugby side called the “Boiling Waters”.
Dissension among the players caused a group to break away
and
establish their own rival team which they called the “Wonderful
Fifteen”. The latter team was due to play a match
against a
visiting side from the Ciskei on Saturday, 4 September 1993.
Tension between the two Boskor sides and no doubt their
supporters,
resulted, however, in the match having to be cancelled. The situation
was exacerbated when a member of the one group
who resided in
dormitory 11 assaulted and injured a member of the opposing group who
lived in dormitory 25. Following the assault
a group from dormitory
25 proceeded to dormitory 11 which they attacked with stones and
bottles. Window panes were broken and at
some stage a refuse bin was
rolled into the dormitory. The group then went off to lodge a
complaint with the team manager of the
“Boiling Waters”
before returning to dormitory 25. Inevitably the occupants of
dormitory 11 retaliated, but with
a vengeance. A mob of 30 to 50
persons descended on dormitory 25. They were armed with kieries, iron
bars and other weapons;
one of them had an axe. The dormitory was
stoned and a firebomb thrown in through the window setting a bed
alight.
[5] Most of the occupants of dormitory 25 were able to
escape through a rear window. But at the stage when the attackers
broke
down the door and stormed into the room two of the occupants
had not yet fled. They were Mphakamisi Xhali, the deceased in count
one, and Jacky Sishuba the complainant in count two. The mob set upon
Sishuba. He was viciously assaulted, first in the dormitory
and then
outside. He suffered head injuries and was hospitalised for several
weeks. At the time he had sight only in one eye, having
lost an eye
in a motor accident many years before. As a result of the assault he
is now totally blind. Next, the mob turned on
Xhali who had
attempted to hide under a bed. He too was taken out of the room and
brutally assaulted. Later he was found lying
some distance from the
dormitory. How he got there is unknown. He died the next day as a
result of intra-cranial bleeding.
[6] Much of the evidence related to
the role that each of the accused had played in the two assaults. The
appellants in this Court
were identified as being part of the mob.
They were armed with kieries but the evidence did not establish that
they actually participated
in the assaults. In upholding their appeal
on counts one and two the Court
a
quo
found that it
had not been shown beyond reasonable doubt that they had made common
cause with those who had assaulted Xhali and
Sishuba and that, on the
contrary, there was at least a reasonable possibility that they had
joined the mob in its activities only
after the assaults had been
committed. This finding was not contested by counsel for the
respondent. It follows that for the
purpose of sentence the
appellants must be assumed to have joined the mob at a stage when the
rampage had virtually come to an
end.
[7] Counsel for the appellants
pointed out that in view of the appellants’ convictions and the
sentences imposed on counts
one and two, correctional supervision in
terms of s 276(1)(h) of Act 51 of 1977 was not an option available to
the Regional Magistrate
when imposing sentence on count 3. (The same
is true of imprisonment in terms of s 276(1) (i).) Once, however,
the appeal against
the convictions on counts 1 and 2 were upheld in
the Court
a quo
so that the sentence of 18 months on count 3 stood alone, this
obstacle no longer existed when considering the appropriateness
of
the sentence. In such circumstances there can be no doubt that a
court of appeal is entitled to reconsider the sentence imposed
against the option of correctional supervision (or imprisonment in
terms of s 276(1) (i)). If the position were otherwise, it would
mean
that the appellants would be prejudiced by the incorrect finding of
guilt on counts 1 and 2. It is apparent from the judgment
of the
Court
a quo
granting the appellants leave to appeal that the imposition of
correctional supervision, or imprisonment subject to the provisions
of s 276(1)(i), was not considered as the issue was not raised before
it. Leach J, who delivered the judgment, expressly stated,
however,
that had the issue been raised “we may well have set aside the
sentences imposed on [the appellants] in respect
of count 3 and
referred the matter back to the trial magistrate to consider imposing
a sentence under s 276(1)(h) or (i).”
[8] The question is, therefore, whether in all the
circumstances a sentence of correctional supervision would be
appropriate.
It is unnecessary to repeat what has been said before
of the advantages of correctional supervision. They are well known.
What
I think must be acknowledged, however, is that in so far as a
first offender in particular is concerned and leaving aside for the
moment the practicalities of administering a non-custodial sentence,
whether correctional supervision as opposed to direct imprisonment
is
to be imposed must depend ultimately on the seriousness of the
offence and the particular circumstances in which it was committed.
This is so because, whatever its advantages, correctional supervision
remains a lighter sentence than direct imprisonment. Any
contention
to the contrary I think would be unrealistic.
[9] Both the appellants were, or were regarded for the
purposes of sentence as, first offenders. Both were in their early
thirty’s
and both were in fixed employment at Boskor where
they had worked for some years. The real issue therefore is the
extent of their
crime. It is true, as emphasized by counsel for the
State, that public violence is a serious offence. But as previously
indicated,
the basis on which their conviction on count 3 was
confirmed (and their appeal against their convictions on counts 1 and
2 upheld)
was the reasonable possibility that they had joined the
mob after the assaults had been perpetrated. It follows that for the
purpose
of sentence it must be accepted that the appellants
participated in the activities of the mob only at a very late stage
and indeed
after the real damage had been done. This limited degree
of participation must, furthermore, be seen in the context of the
events
which preceded the attack on dormitory 25. The attack was in
retaliation for the earlier attack on dormitory 11. To this extent
there was clearly a measure of provocation. In all the circumstances
it seems to me that this is an appropriate case to refer back
to the
Regional Magistrate to consider imposing a sentence under s 276(1)
(h) of Act 51 of 1977.
(10) In the result the following order is made:
(1) The appeal succeeds and the sentence of 18 months
imprisonment imposed on the appellants in respect of count 3 is set
aside.
(2) The matter is referred back to the trial Magistrate
to impose sentence afresh, after due compliance with the provisions
of
s 276 A (1) (a) of Act 51 of 1977 and after receiving such further
evidence as may be proffered, to correctional supervision in
terms of
s 276 (1) (h) of that Act or, if the appellants (or either of them)
are found not to be fit for such a sentence, to otherwise
sentence
them (or the one found not to be so fit) in the light of the views
expressed in this judgment.
D
G SCOTT
Concur
:
F
H GROSSKOPF JA
PLEWMAN
JA