About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 64
|
|
Ledwaba v S [2019] ZASCA 64 (27 May 2019)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 605/2018
In
the matter between:
ELIJAH
PERCY SEHLANO
LEDWABA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Ledwaba
v
The
State
,
(605/2018)
[2018] ZASCA 64
(27 May
2019)
Coram:
Ponnan JA, Leach
JA, Mokgohloa AJA
Heard:
07 May 2019
Delivered:
27 May 2019
Summary:
Criminal appeal
against sentence – appellant convicted of culpable homicide and
sentenced to five years’ imprisonment
- whether such sentence
appropriate in the circumstances
Criminal
Procedure – declaration of unfitness to possess firearm in
terms of
s 103(2)
of the
Firearms Control Act 60 of 2000
– duty
on the court to hold an enquiry and make determination whether
accused is unfit to possess firearm – court failed
to hold
enquiry.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Msimeki and Nkosi JJ sitting as
court of appeal):
1 The appeal is upheld.
2 The order of the court
below is amended by the deletion of paragraphs 3, 4 and 7 and the
substitution therefor of the following:
‘
(3)
The appeal against sentence in respect of count 1 is upheld.
(4) The sentence of 5
years’ imprisonment imposed by the court a quo in respect of
count 1 is set aside and in its stead is
substituted:
“
(4.1)
The accused is sentenced to seven months’ imprisonment.
(4.2)
The sentence is antedated to 6 February 2013 in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
.”’
JUDGMENT
Mokgohloa
AJA (Ponnan, Leach JJA Concurring):
[1]
The appellant was charged in the regional court, Evander, Mpumalanga
(the trial court) with murder, read with the provisions
of s 51(2) of
the Criminal Law Amendment Act 105 of 1997 (count 1) and pointing of
a firearm in contravention of s 120(6)
(a)
of the Firearms Control Act 60 of
2000 (the Act) (count 2). He was convicted as charged on count 2 and
of culpable homicide in respect
of count 1. He was sentenced to five
years’ imprisonment on the latter count and to two years’
imprisonment in respect
of the former. The sentences were ordered to
run concurrently. The appellant was further declared unfit to possess
a firearm.
[2] Aggrieved by the
convictions and the sentence imposed on him, the appellant appealed
to the Gauteng Division of the High Court,
Pretoria. His appeal was
only successful
in respect of count 2,
his conviction and sentence on that count being set aside. The high
court issued the following order:
‘
1
The appeal against conviction in respect of Count 1 is dismissed.
2
The conviction is confirmed.
3
The appeal against sentence in respect of Count 1 is dismissed.
4
The sentence of 5 years’ imprisonment in respect of Count 1 is
confirmed.
5
The appeal against conviction in respect of Count 2 is upheld.
6
The conviction and sentence in respect of Count 2 are set aside.
7
The order declaring the appellant unfit to possess a firearm is
confirmed.’
The
appellant thereafter applied to this court and was granted special
leave to appeal solely in respect of the sentence on count
1 i.e the
sentence of five years’ imprisonment.
[3]
The matter emanates from an incident that occurred on 13 March 2011
at Salonica Street, Evander, Mpumalanga, when the deceased,
Hendrick
Jansen van Rensburg, was shot by the appellant, a constable in the
South African Police Service, and later died.
[4]
The deceased’s son-in-law, Frans Viviers, is the neighbor of
Paul Ledwaba the appellant’s brother. On 13 March 2011,
Frans’
children were playing soccer in their yard. They kicked their ball
into Paul’s yard. Frans proceeded to the
wall between the two
yards to try to retrieve the ball. He noticed the appellant walking
towards the gate. He asked the appellant
to throw the ball back into
his yard but the appellant said he was in a hurry (he testified that
he was running late to reach the
airport before a flight left). The
appellant got into his motor vehicle and drove away. Frans was able
to retrieve the ball from
Paul’s yard.
[5]
Shortly thereafter the appellant returned to Paul’s house in
order to fetch his wallet which he had left there by mistake.
He
parked his motor vehicle at Paul’s gate. He went into the house
and came back to his motor vehicle. Frans approached the
appellant
who was already in his motor vehicle. He banged the bonnet and
knocked on the window and windscreen of the appellant’s
motor
vehicle saying ‘if your mouth is so big come out of the car let
us sort it out’.
According to the
appellant, Frans dragged him out of the vehicle and the two became
involved in a verbal argument,
accusing each
other of having a bad attitude.
[6]
Frans started hitting the appellant with fists. The deceased then
entered the fray armed with a sjambok. He used the handle
of the
sjambok to hit the appellant several times on his head and back. It
is at that stage that the appellant took out his firearm
and
discharged a shot which struck the deceased. The deceased cried
saying ‘You shot me’. The appellant’s response
was
‘Why do you hit me with a sjambok, this is not the old South
Africa.’ Paul and his wife came to diffuse the situation,
and
the appellant left. The deceased was taken to hospital where he
unexpectedly died a month later from a sudden complication
relating
to his gunshot wound.
[7]
At the trial, the appellant’s version was that he had shot the
deceased when he was assaulted by both Frans and the deceased.
He
stated that he had perceived his life to have been in imminent danger
and acted in private defence. After analyzing all the
evidence of the
circumstances of the shooting, the trial court rejected the
appellant’s defence. It found that even though
the deceased was
the aggressor, it was not necessary for the appellant to have
employed his firearm as the attack against him was
already completed.
[8]
This finding is unfortunate and not borne out by the evidence in that
the appellant, who was minding his own business and not
threatening
or provoking anyone, was viciously attacked. The assault was still
on
-
going
and the appellant was reasonably entitled to defend himself. He had
no other means to do so except by using his firearm. Be
that as it
may, whether the appellant was correctly convicted is not an issue in
this appeal which lies in respect of sentence
only.
[9]
It is trite that sentencing is pre-eminently a matter for the
discretion of the trial court and that an appeal court should
be
careful not to erode such discretion unless it has not been
judicially exercised, or the trial court misdirected itself to such
an extent that its decision on sentence is vitiated, or the sentence
is so disproportionate or shocking that no reasonable court
could
have imposed it.
[1]
[10]
In considering a suitable sentence, the trial court accepted that the
deceased was the aggressor. It accepted further that
the manner in
which Frans approached the appellant and the words he uttered
,
were provocative. However
,
it found that the appellant being a police officer with 10 years’
experience and having obtained extensive training in the
handling of
a firearm, would have known that it was not appropriate for him to
use his firearm under those circumstance. The trial
court relied on
the judgment of
S
v Malik
,
[2]
the facts of which are similar to the present matter. It found that
the sentence of direct imprisonment imposed in
Malik
was
the appropriate sentence in these circumstances.
[11]
The court appears to have misunderstood the import of
Malik.
In that case the conviction of murder and sentence of direct
imprisonment were set aside on appeal and substituted with a
conviction of culpable homicide and a sentence of a fine or 12 months
imprisonment with a further period of imprisonment which
was
suspended. It is no authority that a sentence as heavy as that
imposed on the appellant is appropriate.
[12] Considering the
personal circumstances of the appellant and the fact that the
deceased was the aggressor, coupled with the
fact that the appellant
lost his employment as a result of this conviction which is
punishment in itself, I find that the sentence
of five years’
imprisonment is unduly severe and has to be set aside. In my
view, at best for the State, an appropriate
sentence would be
imprisonment for a period no longer than that the appellant has
already spent in custody following his conviction,
which is seven
months.
[13]
Another issue pertains to the declaration that the appellant is unfit
to possess a firearm. Section 103(2) of the Act provides
that:
‘
(
a)
A court which convicts a person of a crime or
offence referred to in Schedule 2 and which is not a crime or offence
contemplated
in subsection (1), must enquire and determine whether
that person is unfit to possess a firearm.
(b)
If a court, acting in terms of paragraph (a),
determines that a person is unfit to possess a firearm, it must make
a declaration
to that effect.’
Culpable
homicide is one of the offences referred to in Schedule 2.
[14]
It is clear from the language of s 103(2)
(a)
that, where a person is convicted of
a crime or offence referred to in Schedule 2 to the Act, the court is
obliged to hold an enquiry
and to make a determination on the
question whether the accused is unfit to possess a firearm. The
provisions of the section are
peremptory and the court seized with
the matter is obliged to conduct an enquiry under the section. This
was not done in the present
matter. Counsel for the respondent
conceded that the enquiry was not held. Therefore the declaration
that the appellant is unfit
to possess a firearm could not stand and
ought to have been set aside by the high court on appeal. Instead,
the high
court confirmed the order declaring the appellant unfit to
possess a firearm. That order (namely, paragraph 7 of the order of
the
high court) accordingly falls to be set aside.
Order
1 The appeal is upheld.
2 The order of the court
below is amended by the deletion of paragraphs 3, 4 and 7 and the
substitution thereof of the following:
‘
3
The appeal against sentence in respect of count 1 is upheld.
4 The
sentence of five years’ imprisonment imposed by the court a quo
in respect of count 1 is set aside and in its stead
is substituted:
“
4.1
The accused is sentenced to seven months’ imprisonment.
4.2
The sentence is antedated to 6 February 2013 in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
.”’
__________________
FE Mokgohloa
Acting
Judge of Appeal
APPEARANCES
For
the Appellants: O P Makobe
Instructed
by: Messrs Makobe & Associates: Witbank
Seobe
Attorneys: Bloemfontein
For
the Respondent: L Williams
Instructed
by: Office of the Director of Public Prosecutions: Gauteng
Office
of the Director of Public Prosecutions: Bloemfontein
[1]
S v Rabie
1975 (4) SA 866
(A
)
at 857D-F;
Bogaards
v S
[2012] ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[2]
S v
Malik
1987 (2) SA 813
(A).