S v Naidoo and Others (321/2001) [2002] ZASCA 136; [2002] 4 All SA 710 (SCA) (14 November 2002)

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[2002] ZASCA 136
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S v Naidoo and Others (321/2001) [2002] ZASCA 136; [2002] 4 All SA 710 (SCA); 2003 (1) SACR 347 (SCA) (14 November 2002)

THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 321/2001
In the matter between :
NAIDOO AND TWO OTHERS Appellant
and
THE STATE Respondent
___________________________________________________________________________
Coram: MARAIS, ZULMAN
et
MPATI JJA
Heard: 2 MAY 2002
Delivered: 14 NOVEMBER 2002
Murder –
culpable homicide – conviction upon multiple counts of culpable
homicide arising from single act – whether permissible.
Sentence –
approach in cases of culpable homicide.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
MARAIS JA/
MARAIS JA:
[1] On the afternoon of 24 March 2000 a tear gas
canister was activated in the Throb Club in Chatsworth while it was
packed with schoolchildren
celebrating the end of a school term. A
stampede ensued in which thirteen young people died and many were
injured. Charges of murder,
assault, and unlawful possession of the
tear gas canister were preferred against three persons alleged to
have been responsible for
the activation of the canister.
[2] The murder charges failed because the court (Hugo J
and assessors) concluded that it had not been proved that the deaths
had been
either 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 (a competent alternative
verdict in terms of s 258 of Act 51 of 1977). They were also
convicted
on 57 counts of common assault and the count of unlawful
possession of the tear gas canister.
[3] The three accused were each sentenced to eighteen
months’ imprisonment on each of the thirteen counts of culpable
homicide.
In the case of accused nos 1 and 2 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 accused no 3. All of the accused were sentenced to six
months’ imprisonment in respect of their unlawful possession of the
tear gas canister and five years’ imprisonment in respect of the 57
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 net effect of it all was that
accused nos 1 and 2 were sentenced effectively
to fifteen years’
imprisonment and accused no 3 to nineteen and a half years’
imprisonment.
[4] Accused
nos 1 and 2 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 of 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. They have not prosecuted their appeals and there
was no appearance by them or on their behalf when the appeal was
heard.
I shall return to what the consequence of that should be.
[5] The
court
a quo
granted accused no 3 unrestricted leave to appeal
against all his convictions and sentences. Heads of argument were
filed and counsel
appeared on his behalf at the hearing of the
appeal.
[6] The case which the State sought to prove against
accused no 3 (to whom I shall refer hereafter as the appellant) was
that he,
a part owner of a rival club (the Silver Slipper) in
Chatsworth, supplied accused nos 1 and 2 with the tear gas canister
and commissioned
them to smuggle it into the Throb Club and then
activate it so that the patrons would flee the premises and repair to
the Silver
Slipper instead.
[7] The appellant denied that he had done so and raised
alibis. He also called some witnesses in support of his case. The
case for
the State rested upon the evidence of an accomplice, one
Dayalan Tyrone Pillay, and the corroboration of it which was
submitted to
exist. In essence, the defence case was that Pillay and
the other two accused activated the canister for reasons of their
own, more
specifically, to facilitate the robbing of patrons. That
was said to be a technique which had been employed by a local gang on
a
previous occasion.
[8] The submissions of counsel for the appellant were,
in broad, that the trial court’s evaluation of the evidence of the
accomplice
Pillay and of the evidence which was said to provide
material corroboration of it in respects implicating the appellant
was faulty
and that the evidence of the appellant and his witnesses
had not been accorded the weight it should have been.
[9] Some
of the criticisms of the evidence of Dayalan Pillay have substance
but the trial court acknowledged that to be so and took
them into
account in evaluating his evidence. In deciding that these
criticisms did not derogate from the acceptability of his
incrimination
of the appellant, the court
a quo
found
satisfactory corroboration for it in a number of respects.
[10] There was the evidence of Poobalan (Billy) Pillay
that the night before the incident the appellant arrived at his flat
in a white
Golf motor vehicle and enquired about the whereabouts of
accused no 1 and Dayalan Pillay. He asked the witness to tell them
that
they should come to him at the Silver Slipper. The witness
testified further that on the morning of the incident the appellant
arrived
again at his flat in the same vehicle and again asked for
accused no 1 and Dayalan Pillay. They were not there but accused no
2
was there and he and the appellant left in the appellant’s
vehicle.
[11] After the incident (at about 16h00) accused nos 1
and 2 and Dayalan Pillay came to his flat. Accused no 2 (who is his
stepson)
had blood on his clothes and the clothes of accused no 1
were creased. Both had a bath and left his flat at about 18h00
together
with Dayalan Pillay. Later that evening the police arrived.
They were looking for accused no 2. Five to ten minutes after the
police had left the appellant arrived in the Golf vehicle which he
parked behind the building in a position in which it could not
be
seen from the road. (On the two previous visits he had parked it in
the front of the building where it could be seen.) Accused
nos 1 and
2 and Dayalan Pillay were with him.
[12] Upon being informed that the police had come
looking for accused no 2, Dayalan Pillay and the appellant told
accused no 2 to
pack his clothes so that they could all “go”.
When the wife of accused no 2 remonstrated with them and asked who
would provide
for her in the absence of accused no 2, the appellant
gave her R70,00 and told her not to worry. All four of them then
departed
in the golf vehicle.
[13] This witness also testified that the appellant
subsequently offered him R70 000,00 and a half a packet of Mandrax
tablets
to induce his stepson (accused no 2) “not to talk about
him”. The appellant’s evidence was that none of these
allegations
relating to him was true.
[14] It was not disputed that the
appellant drove accused nos 1 and 2 and Dayalan Pillay to Umkomaas
and left them there that very
evening. The appellant’s version was
that he encountered accused nos 1 and 2 and Dayalan Pillay quite
fortuitously that evening
at a casino a few doors away from the
entrance to the Silver Slipper Club. Accused no 2 asked him for a
lift. He told them that
he was going to watch soccer at the stadium
and all three of them accompanied him to watch the soccer. About
three quarters of the
way through the match accused no 2 said that he
needed to go home urgently. He looked very worried. As the soccer
was boring he
left with the three of them and took them to accused no
2'’ home.
[15] Accused no 2 asked him to wait a few minutes for
him as he wished to return to the casino. While waiting he heard
“loud screams”
emanating from the balcony on the second floor.
Accused no 2 and his family were on the balcony and his wife was
hysterical. They
all looked “shocked” and “worried”. They
begged him to take accused no 2 to Umkomaas. He assented and accused
no 1 and
Dayalan Pillay accompanied them to Umkomaas where he dropped
them and returned to the club.
[16] During a bail application by the appellant in the
Magistrates’ Court the appellant told the presiding magistrate that
he wished
to see a magistrate in private, that he did not want to
talk to his attorney who was present in court and who wished to speak
to
him, and that he wanted to make a statement in private to a
magistrate – “maybe a confession”.
[17] While in custody the appellant indicated to
Captains Govender and Cassim that he wished to see the investigating
officer because
he wanted to become a State witness. The appellant’s
evidence was that he said nothing of the sort to them.
[18] There was the evidence of Bradley Moonsamy that on
the fatal day he was told by the appellant to have his entrance fee
for the
Silver Slipper Club ready because all the people from the
Throb Club would be coming to the Silver Slipper Club. That such a
statement
was made by him was denied by the appellant.
[19] There
was also the evidence given by accused nos 1 and 2 which implicated
the appellant and confirmed Dayalan Pillay’s evidence
in many
important respects. The court
a quo
bore in mind that they
were accomplices on their own version and that a cautious approach to
their evidence was needed.
[20] The evidence given at the trial had of course to be
considered in its entirety before any conclusions could be safely
reached.
It is so that if the evidence given by the appellant and
his witnesses is to be given its face value, the appellant was not
implicated
in the incident at the Throb Club. But that evidence
cannot be regarded as reasonably possibly true or accurate because it
is simply
not reconcilable with facts which were proved beyond
reasonable doubt to exist. The facts are those testified to by
Poobalan (Billy)
Pillay and Bradley Moonsamy and the appellant’s
utterances during his bail application and to Captain Govender and
Cassim.
[21] Poobalan (Billy) Pillay was admittedly not a wholly
disinterested witness. Accused no 2 is his stepson and accused no 1
his
nephew. Yet the evidence which he gave for the State was adverse
to their interests and plainly incriminated them. The possibility
that he might have deliberately and falsely concocted the visits to
his flat which the appellant denied having made is rendered remote
when it is weighed up against, first, the undisputed fact that the
appellant did in fact consort with accused nos 1 and 2 and Dayalan
Pillay on the evening of the incident and that he took them to
Umkomaas and deposited them there, and secondly, the utterances of
the appellant to Bradley Moonsamy, and, during his bail application,
to Captains Govender and Cassim.
[22] When seen in isolation the first of those factors
is not conclusive but when weighed in conjunction with the second
factor, which
is in itself well nigh conclusive of the appellant’s
involvement in the commission of the crimes, their combined impact is
such
as to remove any shadow of doubt that may have existed about the
incrimination of the appellant by Dayalan Pillay and accused nos
1
and 2 and the evidence of Poobalan (Billy) Pillay as to the
appellant’s visits to his home both before and after the incident.
[23] The appellant’s attempts to explain away his
statement that he wished to see a magistrate in private and maybe
make a confession
failed to provide any reasonably possibly true
explanation consistent with his non-involvement in the crimes and the
same can be
said of his explanation as to how it came about that he
was with accused nos 1 and 2 and Dayalan Pillay after the incident
and why
he took them to Umkomaas.
[24] The value of the evidence of the witnesses called
in the defence of the appellant has to be discounted in the light of
what has
been said in the previous paragraphs. To the extent that
any of it is incompatible with the involvement of the appellant, it
cannot
possibly reasonably be true or accurate. To the extent that
it remains compatible, it is of course of no help to the appellant.
[25] Much was made of evidence that the appellant’s
own son and another person to whom he is related was, to the
appellant’s knowledge,
at the Throb Club. It was argued that that
rendered it highly improbable that the appellant would have exposed
them to teargas.
Even if they were indeed there I do not think that
that rules out the appellant’s involvement. He obviously thought
no more than
temporary discomfort would be caused because he banked
on the persons who fled the Throb Club repairing immediately to his
own club.
[26] In the final analysis a court of appeal does not
overturn a trial court’s findings of fact unless they are shown to
be vitiated
by material misdirection or are shown by the record to be
wrong. In my view neither has been shown and the appeal against the
appellant’s
convictions must fail unless his alternative contention
that he should have been convicted of only one count of culpable
homicide
succeeds. I turn to that question. (No submissions were
made relating to the multiple convictions of common assault and I
refrain
from expressing any opinion on that issue. The convictions
were taken together for the purposes of sentence and the sentences
imposed
were ordered to run concurrently with the sentences imposed
in respect of the convictions of culpable homicide.)
[27] What
the crimes of murder and culpable homicide have in common is a fatal
outcome for a human being. Absent a death, absent
the particular
crime. What they do not have in common is that absent a death, there
may be a conviction of attempted murder but
not a conviction of
attempted culpable homicide. The reason for the difference lies in
the distinction between the two forms of
mens rea
which are
essential elements of the respective crimes of murder and culpable
homicide.
[28]
The
crime of murder cannot be said to have been committed unless the act
or omission which caused death was intentionally committed
or omitted
and death was the desired result, or, if not the desired result, at
least actually foreseen as a possible result the risk
of occurrence
of which the accused recklessly undertook and acquiesced in. In
short,
dolus
in one or other of its manifestations (
directus,
eventualis, indeterminatus, etc)
is the kind of
mens
rea
which must have existed. Where the act or omission is
accompanied by such
dolus
but death does not in fact ensue, it
is easy to understand why the accused’s conduct should be visited
none the less with penal
sanctions. A deliberate attempt to commit
the crime of murder cannot be ignored and left unsanctioned simply
because the perpetrator
has failed to achieve his or her objective.
[29] The
crime of culpable homicide, on the other hand, (certainly as regards
the consequence (death) of the impugned act or omission)
postulates
an absence of
dolus
and the presence of
culpa
. The
fact that the crime of culpable homicide may be committed even where
the act which causes death is an intentional act of assault
should
not be allowed to obscure that essential truth. In such a case the
perpetrator is not convicted of culpable homicide simply
because he
or she deliberately assaulted a person as a consequence of which it
so happened that the person died. If the perpetrator
could not
reasonably have foreseen that death might ensue, a conviction of
culpable homicide cannot be justified.
Aliter
if death should
have been foreseen as a possible consequence. What this shows is
that it is the perpetrator’s culpable failure
to foresee the
possibility of death in cases where an assault has resulted in death
and, in cases not involving an assault, that
failure coupled with a
further culpable failure, namely, a failure to do what could and
should have been done to prevent the occurrence
of death, that is the
rationale for the conviction of culpable homicide.
Culpa
is
therefore always present in the crime of culpable homicide.
Sometimes it is also associated with
dolus
(as in intentional
assaults resulting in reasonably foreseeable but actually unforeseen
death). Sometimes it is not (as in negligent
conduct resulting in
reasonably foreseeable death). For a penetrating and instructive
analysis of these matters see Professor Roger
Whiting’s article
“Negligence, Fault
and Criminal Liability”
in
(1991) 108 SALJ 431.
[30] Since
the notion that an intentional unlawful killing may yet be merely a
case of culpable homicide (the so-called “hybrid”
case) was
jettisoned in
S v Bailey
1982 (3) SA 772
(AD), it has been
possible to define without qualification the crime of culpable
homicide as the unlawful
negligent
killing of a human being.
See Snyman,
Criminal Law
, 4
th
ed at p 425;
Burchell and Milton,
Principles of Criminal Law
, 2
nd
ed at p 474; Milton,
South African Criminal Law and
Procedure
Vol 11, 3
rd
ed at p 364.
The intellectual athleticism sometimes devoted in the past to
identifying
culpa
in such situations in order to justify a
verdict of culpable homicide despite the obvious existence of
dolus
in the form of an intention to kill, is no longer required. Such
situations are now classified as murder and the circumstances which
in the past might have prompted verdicts of culpable homicide now
come into consideration as possibly mitigating factors only when
sentence has to be imposed.
[31] All this may seem to be an unnecessary excursion
into the differing nature of the respective crimes when the issue is
whether
appellant should have been convicted of thirteen counts of
culpable homicide or only one count involving thirteen deaths. But
the
analogy (or lack of it) of murder featured in the arguments
addressed to the court and in the cases in which the question has
been
considered in the provincial divisions and it would be as well
to have a clear understanding of the similarities and differences
between murder and culpable homicide before attempting to answer the
question.
[32] In
S v Mampa
1985 (4) SA 633
(C) it was held by Van Heerden J and
Rose-Innes J that a negligent motorist who caused the death of two of
his passengers by driving
too fast around a sharp bend should not
have been convicted upon two counts of culpable homicide. Much of
the judgment is devoted
to a general discussion of the law relating
to the splitting of charges and the drawing of a distinction between
murder and culpable
homicide where more than one death is the result
of the accused’s single act. With respect, I do not find the
general discussion
of the problem of splitting of charges to be of
great assistance in finding the answer. More importantly, I consider
the particular
distinction drawn between an intended act of homicide
which causes the death of more than one person and an unintended act
which
has the same result to be based upon a false premise.
Rose-Innes J said: “The gravity of an accused’s conduct in
offences based
on negligence cannot be judged by its actual
consequences.
R v Msimango
1950 (2) SA 205
(N) at 209-210.
It follows that to charge and convict an accused with one offence or
several offences of culpable homicide arising
from a single negligent
act or omission according to the number of persons whose deaths were
caused by the accused’s negligence
would be arbitrary and
unrelated to his criminal blameworthiness.” (At 639 C–E).
[33]
First, it is undoubtedly so that the reasonably foreseeable
consequences of an accused’s conduct do play a role in assessing
the gravity (“criminal blameworthiness”) of the offence even
where the conduct was negligent and not intentional and that there
is
no arbitrariness in that. The
dicta
in
R v Chamboho
1964 (1) PH H 69 (SR) and
R v Barnardo
1960 (3) SA 552
(A) which Rose-Innes J quoted at 638 H-I appear to have been
misunderstood. Those were not cases in which more than one death had
been caused. The point that was made in those cases was that the
result of negligent conduct is adventitious and
ex hypothesi
not intended. Two identical negligent acts might have vastly
different consequences: one might have no consequence at all, the
other might cause death. In each case the departure from the
standard of care required of a reasonable person is the same and the
moral guilt of the persons involved in the departure is the same.
However, the fact remains that the common law does not visit the
negligence in the one case with any penal sanction but it does in the
other simply because of the difference in consequence of the
departure.
[34] Both
dicta
emphasise the importance of bearing that in mind when
sentencing for culpable homicide but both accept that, nevertheless,
the reasonably
foreseeable seriousness of the consequence must
receive recognition despite the fact that it was not intended. Once
that is so,
it must follow logically that “criminal
blameworthiness” is indeed greater where a large number of deaths
has ensued provided
of course that a reasonable person should have
appreciated that a large number of deaths might be caused. Society
at large will
not take kindly to any suggestion that the sentences
imposed upon a motorist whose high speed around a bend has caused his
vehicle
to capsize and a hitchhiker to whom he had given a lift to
lose his life, and upon a bus driver whose identical conduct has
caused
twenty people to lose their lives, should be the same. In so
far as parity of gravity was invoked as a reason for restricting the
prosecution to one count of culpable homicide where reasonably
foreseeable multiple deaths have resulted from a single negligent
act, I do not think it was a good reason.
[35]
Secondly, in
S v Grobler en ‘n Ander
1966 (1) SA 507
(A)
this court accepted that the crime of murder is committed whenever a
life is unlawfully and intentionally taken because the crime
of
murder is so defined. The illustration given was that of A throwing
a bomb at B and C intending to kill them. That was regarded
as
amounting to the commission of two murders although they were the
result of one act. In
S v Prins en ‘n Ander
1977 (3) SA 807
(A) this court emphasised that it is of the essence of the crime of
murder that it is a crime against life. In my view, exactly
the same
applies to the crime of culpable homicide. They are both narrowly
consequence-oriented crimes in the sense that the death
of a human
being is a
sine qua non
of both. It is of course so that all
crimes (save, obviously, attempts to commit crimes) are
consequence-oriented but the distinction
between a crime like, say
theft, on the one hand, and murder and culpable homicide, on the
other, is the very particular and unique
specificity of the required
social consequence of the misconduct. Thus, and subject of course to
the exception of things which are
either absolutely or relatively
incapable in law of being stolen, to constitute the crime of theft it
matters not what particular
thing is stolen. But, as we have seen,
without the death of a human being there can be no talk of the crimes
of murder or culpable
homicide having been committed.
[36] Just as in the case of murder it is immaterial
whether multiple killings were the result of one act (such as
throwing a grenade)
and as many counts of murder as the number of
people who have been killed may be preferred, so too in the case of
culpable homicide
where multiple deaths have been caused is it
immaterial that they were caused by a single negligent act or
omission provided only
that multiple deaths were a reasonably
foreseeable consequence.
[37] To hold otherwise would have peculiar results. If
A is legitimately charged with three counts of murder in that on the
same
occasion he unlawfully and with intent to kill set his vicious
dogs upon X, Y and Z as a consequence of which they were killed and
the court finds that he did not foresee the possibility that they
might be killed but that he should have, is the court precluded
from
returning an alternative verdict of culpable homicide upon each of
the three murder counts? Surely not. If it be suggested
that a
single alternative verdict of culpable homicide of X, Y and Z could
be returned, to which of the three individual counts of
murder may it
be returned? Whichever one be chosen the consequence would be that
the accused would be convicted of unlawfully killing
two persons to
whom the chosen count of murder did not relate. That would not be
permissible for obvious reasons.
[38] It
may be suggested that in such cases the State should be obliged to
forego its right to rely upon the competent alternative
verdict for
which s 258 of Act 51 of 1977 makes provision and instead draft a
single alternative charge of culpable homicide to all
three of the
murder charges in which alternative charge X, Y and Z are all named
as having died. But by virtue of what principle
of law is the State
to be deprived of its right to a statutorily provided competent
alternative verdict against the accused upon
each
of the
counts of murder? I know of none and none has been suggested.
Moreover, if it is indeed only one offence of culpable homicide,
the
principle of
autrefois convict
would apply to it and in cases
where further deaths ensue after an initial successful prosecution
has run its course, it would not
be possible to invoke any further
criminal sanction for the unlawful causing of those additional
deaths.
Autrefois acquit
may stand on a different footing
depending upon whether the doctrine of issue estoppel is available
against the State in a criminal
prosecution. This problematical
aspect of the matter has received some attention in the reported
cases but, with respect, I am left
unconvinced that satisfactory
answers to the conundrum which a plea of
autrefois convict
raises
have been provided.
[39] In
S v Mavuso
1989 (4) SA 800
(T) the court accepted that a
person who throws a bomb into a room intending to kill A but not
caring whether other persons who are
known to be in the room are also
killed, can properly be charged in separate counts with the murder of
each person killed. However,
it sought to distinguish the case where
a person fires a single shot knowing that it might hit and kill a
person, but it hits and
kills two persons. It said that it was
unaware of authority for the proposition that two separate counts of
murder could be preferred.
[40] With respect, there is, in my view, no reason in
principle or in considerations of fairness why they should not be.
If such
a person intends to shoot and kill one person (or fires a
shot in the direction of one person realising that it may hit and
kill
that person but not caring whether that happens) but he neither
knew nor should have known of the presence or possible presence of
another whom it also hits and kills, he cannot be held guilty of
either the murder of that other person or of the culpable homicide
of
that person. If he did know of the presence of the other person and
actually foresaw that the shot he intended to fire might
strike and
kill both persons but fired the shot not caring whether he also hit
and killed the other person, his position is no different
in
principle from that of the bomb thrower. If he was not aware of the
presence or possible presence of another, he cannot be convicted
of
the murder of that person. If he should have been aware of it and
should have appreciated that he was putting that person’s
life at
risk, he can be convicted of culpable homicide of that person and of
murder of the person whom he intended to kill.
[41] If
that be so, (the same act resulting in separate convictions for
crimes which both entail the unlawful ending of a life) what
reason
is there to balk at separate convictions of culpable homicide if the
State should fail to prove that the accused intended
to kill anybody
(whether by
dolus
or by
dolus eventualis
) but proves
that he should have foreseen that he might kill more than one person
if he fired the shot? I see none.
[42] The
court’s erroneous view of the example which it posed in
S v
Mavuso, supra,
was compounded by what I consider, with respect,
to be its equally erroneous analysis of the legal blameworthiness of
an accused in
cases of culpable homicide where negligence is the form
of
mens rea
which characterises the crime. It said: “Die
heersende oordeel omtrent billikheid is dat in die konteks, die feit
dat meer as
een persoon gedood is nie daarvan afdoen nie dat ‘n
beskuldigde wesenlik een stafbare handeling begaan het en nie twee of
ses of
17 maal gestraf behoort te word nie.” (At p 806 B–C.)
[43] First,
there is a
petitio principii
involved in the statement. To
assert that such an accused has committed only one punishable act and
that reasonableness requires
that he or she face only one count is to
answer the question before it has been addressed. For the reasons I
have given, it is the
foreseeable and actual consequences of the
accused’s negligent act which determine whether he or she is liable
to be charged with
one or more counts of culpable homicide. The
punishable act is by definition the unlawful negligent killing of a
human being. The
unlawful negligent killing of more than one human
being gives rise to more than one punishable act irrespective of
whether the negligent
act which caused death was a series of
different acts or the same single act.
[44] Secondly, the reference to repetitive punishment
for the same unlawful conduct is misplaced. There should be no
difference (subject
of course to jurisdictional sentencing
limitations) in the sentence imposed whether multiple deaths have
been the subject of separate
counts or combined in one count of
culpable homicide. Whether multiple deaths are the subject of a
single count or a number of separate
counts, the totality of the
sentence to be imposed will depend upon the personal circumstances of
the accused, the degree of culpability
present in both his or her
conduct and in the failure to foresee the reasonably possible
consequences of that conduct, and the actual
consequences of that
conduct. I conclude therefore that the appellant was correctly
convicted of thirteen counts of culpable homicide.
I turn to the
appeal against the sentences.
[45] The
circumstances in which the crime of culpable homicide may be
committed range across a wide spectrum. At one end is the case
where
a momentary lapse in concentration on the task at hand has a tragic
result. Neither the lapse nor the failure to foresee the
consequences of it is deliberate. Yet they have resulted in a loss
of life. They could just as easily not have had that result.

Sentencing fairly and appropriately in such a case is one of the
law’s most difficult tasks. The
culpa
may have been slight
but the result stirs an understandable call from society at large
(and
a fortiori
from those close to the deceased) for the
sentence to visit tangible retribution upon the culprit. Balancing
the need for a sentence
that, on the one hand, will not appear to
rate the loss of a life with all the attendant trauma to those to
whom the deceased was
near and dear as not too serious against, on
the other, the need to calibrate the degree to which the accused’s
conduct deviated
from the standard of care expected of a reasonable
person and, if it is found to be slight, to also reflect that
adequately in the
sentence to be imposed, is inherently difficult.
The outcome will often satisfy neither those close to the deceased
nor those close
to the accused, being too lenient in the eyes of the
former and too severe in the eyes of the latter. But that does not
absolve
a court from its duty to strive as best it can to achieve a
proper balance between those objectives.
[46] At
the other end of the culpable homicide spectrum is the type of case
where the accused has deliberately assaulted the deceased
but has not
been convicted of murder because the State has failed to prove beyond
reasonable doubt that death was actually foreseen
as a reasonably
possible consequence of the assault. Because it should have been
foreseen a verdict of culpable homicide is returned.
Here there is
more involved than
culpa
. An assault has been committed.
Dolus
is present. A deliberate attack upon a person’s
bodily integrity which was intended to harm has resulted in the most
irremediable
harm of all: death. Few would quibble at the justness
of substantial custodial sentences for that type of culpable
homicide. But
even within that class of case there are distinctions
to be drawn. Was a weapon used? How obviously potentially lethal
was it?
Was there provocation? How great was the negligence in
failing to foresee that death might result?
[47] Here
we have a case which is situated somewhere between those two ends of
the spectrum. An assault of sorts was involved. Intentional
use of
teargas to induce physical discomfort for no lawful purpose is
plainly an assault. But it was not the assault which was the
immediate physical cause of the ensuing deaths. It was the stampede
which followed upon the release of the teargas and the severely
limited number of exits which were available to patrons desperate to
evacuate the club without delay. It is also relevant that the
appellant knew of an earlier similar incident at another club. No
one had been killed or seriously injured on that occasion. While
that did not entitle him to ignore the objectively appreciable risk
of possible loss of life should the release of the teargas
precipitate
a stampede, it was calculated to induce a belief (albeit
misplaced) that no one would suffer serious harm, far less be killed.
As
the court
a quo
found, the appellant could not have
envisaged serious harm because he hoped that those present would
forsake the Throb Club and proceed
instead to his club. Moreover, he
was not aware of the exceptionally large number of persons who were
in the Throb Club and there
was evidence which cannot be dismissed
(because it accords with the probabilities) that he asked for the
canister to be activated
soon after the Throb had opened its doors.
He is also a first offender. Those are, in my opinion, important
mitigatory factors.
[48] As against those factors there are aggravating
factors. No less than thirteen young lives have been cut short. The
anguish
of their families and friends must have been immense. The
motive was mercenary: to deviate custom to his own club. The
palpable
anger of the community from which the victims came is
entirely justified and fully understandable. The exploitation of
economically
vulnerable young men by requisitioning them to place and
activate the teargas canister is also something which tells against
the
appellant.
[49] When
all is said and done anything less than a substantial custodial
sentence would justifiably be regarded by society at large
as an
unduly lenient response to the tragic consequences of the appellant’s
unlawful conduct, motivated as it was by commercial
considerations.
Yet the sentences imposed by the court
a quo
, when regarded
cumulatively (effectively years’ imprisonment), and even taking
into account that they were also imposed in respect
of the 57
convictions of common assault and the count of unlawful possession of
the teargas canister, are so far removed from what
I consider to be
an appropriate sentence that they fall to be characterised as
strikingly inappropriate and therefore to require
amelioration by
this court. It is therefore unnecessary to deal with the alleged
misdirections of which the court
a quo
was submitted to have
been guilty by counsel for the appellant. It suffices to say that
the submissions were not without some substance.
[50] I make the following orders in respect of the
appeal of the appellant:
(a) The appeal against the convictions fails and is
dismissed.
(b) The appeal against the sentences imposed in respect
of the thirteen counts of culpable homicide succeeds. Those
sentences are
set aside and the following sentences are substituted
for them and, if appellant has been serving the sentences since they
were imposed,
antedated to the date upon which he commenced to serve
the sentences: “On each of the thirteen (13) counts of culpable
homicide,
nine (9) months’ imprisonment”.
(c) For
the rest, the sentences imposed by the court
a quo
remain
unaltered. (This means that appellant’s sentences now amount
effectively to nine (9) years’ and nine (9) months’ imprisonment.
In imposing these sentences I take into account that the appellant
was in custody for eight months prior to his conviction).
[51] Finally
it is necessary to record that although Selvan Naidoo and Vincent
Pillay were granted leave to appeal against their “multiple
convictions of culpable homicide and assault and in respect of
sentence” (no leave to appeal against the finding that the crimes
of culpable homicide and assault had been committed by them was
sought), no heads of argument were filed on their behalf and they
were neither present nor represented at the hearing of the appeal.
The explanation given from the bar was that it was assumed that
if
the appellant’s contention that, at worst, he should have been
convicted of only one count of culpable homicide and one count
of
assault was accepted and, if his sentences were reduced, the court
would also
mero motu
ameliorate the positions of Naidoo and
Pillay. The court having indicated that the assumption was not
well-founded, counsel were
given an opportunity of considering the
question and furnishing further written submissions. This they have
done and are
ad idem
that the appeals of Naidoo and Pillay
should not be dismissed for want of prosecution in terms of Rule 13
(3) of the Supreme Court
of Appeal Rules and that their appeals
should simply be struck from the roll thus leaving it open to them,
if so advised, to apply
for condonation of their non-prosecution of
their appeal and for its reinstatement. Indeed, counsel for the
State was prepared to
allow this court to adjust their convictions
and sentences now should the appeal of the appellant succeed in a
respect which would
justify doing so. That cannot be done. Apart
from this Court’s lack of any inherent review jurisdiction in
criminal matters,
Naidoo and Pillay would not have been heard. It is
ordered therefore that the appeals of Selvan Naidoo and Vincent
Pillay be struck
from the roll.
­­­­­­­­­­­____________________
R
M MARAIS
JUDGE OF APPEAL
ZULMAN
JA )
MPATI
) CONCUR