S v Naidoo and Another (321/2001) [2003] ZASCA 80 (15 September 2003)

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[2003] ZASCA 80
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S v Naidoo and Another (321/2001) [2003] ZASCA 80 (15 September 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable/Not Reportable
CASE NO. 321/2001
In the matter between
SELVAN
NAIDOO First Appellant
VINCENT
PILLAY Second Appellant
And
THE STATE Respondent
____________________________________________________________
CORAM: MPATI DP ZULMAN JA and SOUTHWOOD
AJA
HEARD: 15
SEPTEMBER 2003
DELIVERED: 15 SEPTEMBER 2003
JUDGMENT
ZULMAN
JA
[1] On
the afternoon of 24 March 2000 a teargas canister was activated in
the Throb Club in Chatsworth while it was packed with school
children. A stampede ensued in which thirteen young people died and
many more were injured. Charges of murder, assault, and unlawful
possession of teargas were preferred against three persons alleged to
have been responsible for the activation of the canister.
[2] The murder charges failed because
the trial Court (Hugo J and assessors) concluded that it had not been
proved that the deaths
either had been desired or actually foreseen.
The Court found that the deaths should have been foreseen and
convicted all three
accused on thirteen counts of culpable homicide.
They were also convicted on fifty-seven counts of common assault and
one count
of unlawful possession of a teargas canister.
[3] The three accused were the two
appellants (accused one and two) and one Sivanathan Chetty (accused
three) (Chetty).
[4] The three accused were each
sentenced to 18 months imprisonment on each of the thirteen counts of
culpable homicide. In the case
of appellants one and two, the
sentences imposed in respect of three of the counts were ordered to
run concurrently with one another
and with the sentences imposed in
respect of the remaining counts of culpable homicide. No such order
was made in respect of Chetty.
All of the accused were sentenced to
six months imprisonment in respect of their unlawful possession of
the teargas canister, and
5 years imprisonment in respect of the
fifty-seven counts of common assault which were taken together for
the purpose of sentencing.
These sentences were also ordered to run
concurrently with one another and with the sentences imposed in
respect of the convictions
of culpable homicide. The nett effect of
it all was that the first and second appellants were sentenced
effectively to 15 years
imprisonment and Chetty to nineteen and a
half years imprisonment.
[5] Appellants one and two together
with Chetty were granted limited leave to appeal by the court
a
quo
. They were restricted to contending that their conviction
upon multiple counts of culpable homicide and assault was
impermissible
in law and that they should have been convicted on one
count of culpable homicide in which the death of thirteen people was
involved
and one count of common assault in which 57 people were
assaulted. They were granted unrestricted leave to appeal against
their
sentences. Appellants one and two did not prosecute their
appeals while Chetty did. No heads of argument were filed on behalf
of
appellants one and two although their appeals were set down for
hearing together with Chetty’s appeal. They were also not present
nor represented when the appeal was heard. In the result only the
appeal of Chetty was heard by this court. After receiving certain
further submissions from counsel in Chetty’s appeal, the appeals of
the two appellants were struck off the roll. However it was
left
open to the appellants, if so advised, to apply for condonation of
their non-prosecution of their appeal and for its restatement.
[6] The appeal of Chetty against his
conviction failed. However the appeal against the sentence imposed
upon him in respect of the
thirteen counts of culpable homicide
succeeded. Those sentences were set aside and the following
sentences substituted for them
and, if Chetty had been serving the
sentences since the date that they were imposed, antedated to the
date upon which Chetty commenced
to serve the sentences:
“On each of the thirteen counts of culpable homicide
nine months imprisonment”.
For the rest, the sentences imposed
by the court
a quo
remained unaltered. This meant that
Chetty’s sentence now amounted effectively to nine years and nine
months imprisonment. In
imposing those sentences the court took into
account that the appellant was in custody for eight months prior to
the conviction.
The judgment of the court in Chetty’s appeal is
reported in
2003 (1) SACR 347
(SCA).
[7] On 24 February 2003 the first
appellant who was in custody addressed a letter to the Registrar of
this court. In the letter he
indicated, inter alia, that he had been
represented at his trial by an advocate appointed by the Legal Aid
Board. He understood
that that advocate would represent him before
this court in his appeal. This did not happen. He requested the
court to place the
matter of his appeal on the roll in that
“substantial injustice would result should its matter not be
heard”. The Registrar,
after consulting the senior judge who
presided in Chetty’s appeal, (Marais JA) replied to this letter and
advised the first appellant
that his appeal would be re-instated on
the Court roll in the Court term running from 15 August to
30 September 2003.
He was also advised should the second
appellant wish to have his appeal re-instated, since nothing had been
heard from him to date,
it too would be re-instated at the same time.
The second appellant was advised to contact the Registrar’s
office. The Registrar
subsequently communicated with second
appellant who also indicated that he wished to pursue his appeal.
[8] Subsequently attorney Pretorius
of the University of the Free State Legal Aid Clinic filed heads of
argument on behalf of the
two appellants. In the heads Mr Pretorius
indicated, wisely, that after a careful consideration of the judgment
of this Court in
Chetty’s appeal any appeal on the merits of the
convictions would not be persisted in. The Court is indebted to Mr
Pretorius for
his assistance in this matter.
[9] In a letter dated 18 August 2003
to the Registrar the respondent indicated that it had considered the
appeals of the two appellants
carefully and that it had been decided
that the respondent would not be opposing the matter but would abide
the decision of the court.
[10] With that introduction I now
proceed to consider the merits of the appellants’ appeal against
the sentences imposed. In essence
the appellants contend that the
sentences are startlingly inappropriate in relation to the sentence
which should have been imposed
and more particularly compared to the
sentence which was substituted by this Court in regard to Chetty.
[11] The Court
a quo
considered the question whether all three of the accused before it
should receive the same sentence and stated the following:-
“The question arises as to
whether all three accused should get the same sentence. There are
various factors that play a role here.
Accused nos 1 and 2 showed
remorse in the sense that they gave themselves up on the day
following this incident. They did not contest
their roles in the
incident and they did not occupy the Court’s time by a fruitless
exercise in falsely exculpating themselves.
That is not the case
with accused number 3 who to the bitter end denied his culpability
and his responsibility in these offences.
As against that, accused no 2 has previous convictions
which the other two do not have. Accused no 2’s previous
convictions are,
save for one, irrelevant to the present case but he
was convicted of malicious injury to property for which he received a
fairly
nominal sentence and one can only conclude that that offence
was not a particularly serious one. I do not believe that it should
play a material role in the sentence save as I shall indicate below.
Of course there is also the factor that had it not been
for accused no 3 and had it not been for the instructions he gave,
accused
no 1 and 2 would not have been in the position they are
today. He was the instigating factor in connection with this offence
and
that too is a ground for differentiating his sentence from the
sentence imposed upon the others.”
[12] The court
a quo
also drew
attention to the fact that the first appellant and Chetty had been in
custody for some eight months and the second appellant
for a lesser
period at the time that sentence was passed. However, the Court
found that this was “compensated for” by the fact
that the second
appellant has previous convictions and that this did not in the
Court’s view form a reason for distinguishing between
the sentences
in itself.
[13] As pointed out by this Court in
Chetty’s appeal Chetty was a first offender. This is also the case
of the first appellant
and for all practical purposes of the second
appellant. However there are certain aggravating circumstances which
cannot be lost
sight of. Thirteen young lives were lost causing
anguish to their family and friends of immense magnitude. As further
pointed out
in the judgment “The palpable anger of the community
from which the victims came is entirely justified and fully
understandable.”
However it is a strong mitigating factor that the
two appellants who were economically vulnerable were exploited by
Chetty who requisitioned
them to place and activate the teargas
canister.
[14] I have taken all these factors
into account in considering what would be an appropriate sentence in
the case of the two appellants.
If such a sentence is measured
against the sentence imposed by the Court
a quo
and the
reduced sentence imposed by this Court on Chetty I believe that it is
fair to say that the sentence imposed on the appellants
is
startlingly inappropriate.
[15] Accordingly:
(1) The
appeal against the sentences imposed on the two appellants succeeds.
The sentences are set aside and the following sentences
are
substituted for them, and if the appellants have been serving these
sentences since they were imposed, antedated to the date
upon which
they commenced serving their sentences:
“On
each of the thirteen counts of culpable homicide six months
imprisonment.”
(2) For
the rest, the sentences imposed by the court
a quo
remain
unaltered.
(This means that the sentences of the
appellants now amount effectively to six years and six months
imprisonment).
---------------------------------------
R H
ZULMAN
JUDGE
OF APPEAL
MPATI
DP )
SOUTHWOOD
AJA )CONCUR