THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA
REPORTABLE
CASE NO: 347/2003
In the matter between:
JAN DANIёL VERMEULEN APPELLANT
and
THE STATE RESPONDENT
CORAM: ZULMAN, MTHIYANE en BRAND JJA
HEARD: 13 MAY 2004
DELIVERED: 24 MAY 2004
Summary: Whether s 51 (3) of the Criminal Law Amendment Act 105 of
1997 applies, and whether there are substantial and compelling
circumstances in terms of that section
JUDGMENT
MTHIYANE JA:
2
MTHIYANE JA:
[1] This appeal is against a sentence of life imprisonment imposed on the
appellant by the Pretoria High Court (Monaledi AJ). The appeal is before us with
the leave of this Court, the trial judge having refused leave to appeal.
[2] The appellant, a 23 year old farmer from Leeufontein in
Bronkhorstspruit, and his half-brother, Mr Albertus Taljaard , were arraigned in
the court a quo on charges of murder and at tempted murder. The appellant
pleaded guilty to the charge of murder a nd to assault, the latter being a competent
verdict on the charge of attempted murd er. He was convicted in accordance with
his plea and was sentenced to life imprisonment. The court a quo found that s 51
of the Criminal Law Amendment Act 105 of 1997 was applicable and that there
were no substantial and compelling circ umstances justifying the imposition of a
lesser sentence as is envi saged in s 51 (3)(a) of the Criminal Law Amendment
Act.
[3] The appellant’s brother, who wa s accused No 2 in the court a quo ,
pleaded not guilty to the charges and c onsequently a separa tion of trials was
ordered in terms of s 81 (2) of the Criminal Procedure Act 51 f 1977.
[4] The appellant’s plea of guilty on the two charges was based on the facts
set out in his statement in terms of s 112 of the Act, which the State accepted as
correct. In what follows I briefly set out the relevant facts.
3
[5] On 27 February 2001 at about 10:00 the appellant was busy attending to
his daily farming routine which involved, inter alia , driving of cattle from one
camp to another, when he came upon Mr Mzayifani Nelson Makhabitshane (the
deceased) and Mr Joseph Nkosi, near a ga te on the farm. He confronted them and
asked what they were doing there. They told him that they were collecting
firewood. He ordered them to leave and threatened th at, if he found them there
upon his return, there would be trouble.
[6] He then went back to the house where he met up with his brother. He
invited his brother to accompany him back to the spot where he had earlier found
the deceased and Nkosi. His intention wa s to see if the were still there. The
appellant and his brother reso lved that if they found the deceased and Nkosi there
they would assault them and drive th em off the farm. Although both brothers
were armed with firearms, they had not, at that stage, decided that they would
shoot any one but had mere ly intended to assault the deceased and Nkosi with
fists.
[7] When the appellant returned to the scene 5 minutes later with his brother,
they found that the deceas ed and Nkosi were still in the camp. The appellant and
his brother alighted from the bakkie and began to charge at them. The deceased
and Nkosi tried to defend them selves with bits and pieces of firewood they had in
their hands. At this point the appellant conceded that what they were about to
carry out was an unwarranted attack upon two innocent persons.
4
[8] The appellant’s brother began to assault the deceased while the appellant
turned to Nkosi. The appellant snatched the piece of firewood that Nkosi had
with him and began hitting him. When he tr ied to retaliate the appellant drew his
firearm and Nkosi ran away . The appellant gave chas e for only a short distance
and returned to join his brother. They then both assaulted the deceased by hitting
him and kicking him. At a certain stag e they tried to throttle him but he broke
free and ran into a thick wattle bush. Th e appellant’s brother gave chase for only
a short distance on foot but the deceased disappeared in the bus h. The appellant
got into his bakkie and drove up to an elev ated spot near a railway line in order to
get a better view of the ar ea. As he alighted from th e vehicle he at once saw the
deceased emerge from the bush and flee. He drew his firearm and fired a shot at
the deceased and then a se cond one. The deceased wa s hit and fell to the ground.
The appellant went up to him and no ticed that he was still alive though he
appeared to be very seriously injured. His face was covered in blood from the
assault, and the gun shot wounds had ripp ed through his upper b ody. He was in a
very serious condition. The appellant says he did not intend to shoot him
(whatever that means).
[9] The appellant and his brother were shocked and frightened and realised
that they were now in big trouble. Th ey then discussed th e matter and decided
that the deceased should be killed and his body hidden, so that they would not get
into trouble. The appellant says that th e intention to kill the deceased was formed
at this stage. They then removed lifted the deceased (who was then still alive) and
5
placed him in the bakkie and drove furthe r into the wattle-bush looking for Nkosi
because they wanted to es tablish whether he had w itnessed the shooting. When
they failed find him they gave up the sear ch and decided to drive home. At home
they decided that the deceased should be buried under the carcass of a cow that
had recently been killed. They selected that spot because the ground was softer
there.
[10] They later on decided against burying hi m in that area as they considered
it to be too open and bare and that they were bound to be noticed. They ultimately
decided to bury him in the cornfields. Th e deceased was still alive. They then
drove home to collect a pick axe and a shovel. These implem ents were collected
by the appellant himself. Hi s parents and his brother’s wife were in the house but
did not see the appellant and his brother.
[11] From there they drove to the corn fields. They removed the deceased
from the bakkie and carried him further in to the cornfields where they began to
dig a grave in which the deceased was to be buried. Af ter the digging was
completed it was clear to them that th e deceased was still a live. The appellant’s
brother wanted to finish off the d eceased by shooting him. The appellant
dissuaded him because of the attention a gunshot would attract. The appellant’s
brother then struck the deceased with a pick axe, killing him instantly.
[12] They then lifted the deceased’s body and tried to deposit it into the grave,
squatting on its haunches. But the body did not fit into the grave as the legs or feet
were catching the lip or sides of the gr ave. The appellant’s brother then took a
6
pick axe and broke the legs or feet and in that way cut the body to size. The body
was then deposited into the grave. The appellant’s brother began to cover the
grave while the appellant took the bakkie hom e as he feared that it might attract
attention if it remained near the scene. After leaving the bakkie at home the
appellant returned to the scene to help his brother cover the grave.
[13] Later that day Nkosi arrived on the farm with a police inspector and a
member of the commando. The appellant was confronted about the incident but he
denied any involvement. They left only to return the following day. On this
occasion Nkosi was with detectives. Th ey found the appellant at his father’s
butchery where Nkosi pointed him out to them. The appellant was duly arrested
and charged with attempted murder, as sault and kidnapping (as the body of the
deceased had not then been found).
[14] During the afternoon on the day of his arrest the appellant informed the
investigating officer, Detective Sergeant Mawelele, that he wished to make certain
pointings out. He then took the police to where they had bur ied the deceased and
made further pointings out.
[15] The appellant did not give evidence but a clinical psychologist, Mr
Kobus F Truter, was called by the defence in mitigation of sentence. His evidence
which was based largely on the report he compiled subsequent to the interview
which he had with the appe llant and his parents. In the report, compiled on 3
November 2002, Truter dealt in some de tail with what he regarded as the
mitigating and aggravating circumstan ces in the case and refrained from
7
suggesting what he considered to be an a ppropriate sentence. I will return to his
evidence later in the judgment, when I c onsider whether there are substantial and
compelling circumstances in the present cas e, as is envisaged in s 51 (3) of the
Criminal Law Amendment Act 105 of 1997.
[16] At the conclusion of all the eviden ce led in mitigation of sentence the
court a quo found that the minimum sentence provisions provided for in s 51 (1)
of the Criminal Law Amendment Act were applicable, and that there were no
substantial and compelling circumstances justifying the imposition of a lesser
sentence as is envisaged in s 51 (3) of the Criminal Law Amendment Act. The
appeal is against this finding.
[17] Sections 51 (1) and (3) of the Criminal Law Amendment Act provide:
’51 minimum sentences for certain serious offences
(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, - (a)
if it has convicted a pe rson of an offence referred to in Part 1 of Schedule 2; or (b)
sentence the person to imprisonment for life.
. . .
(3)(a) If any court referred to in ss (1) or (2 ) is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the sentence presented
in those sub-sections, it shall enter those circ umstances on the record of the proceedings and
may thereupon impose such lesser sentence.’
[18] The relevant portion of schedule 2 re ferred to in para graph [24] above
reads:
‘Part 1
8
Murder, when –
(a) it was planned or premeditated;
. . .
(d) the offence was committed by a person, group of persons or syndicate acting in the
execution of a common purpose or conspiracy.’
[19] In the appeal before us, counsel fo r the appellant conceded that the
killing of the deceased was planned and that it was carried out in the execution of
a common purpose as contemplated in sub-paragraphs (a) and (d) of the
schedule to the Criminal Law Amendment Act. In my view, this concession was
correctly made. Although the agreement be tween the appellant and his brother,
that the deceased be killed was reached shortly before the actual killing, there can
be no question that planning wa s clearly established. In S v Malgas 1 it was said
that the fact that the planning and pr emeditation occurred not long before the
deed was accomplished, cannot alter the fact that life sentence was an appropriate
sentence.
[20] The thrust of counsel’s attack on the judgment a quo was that the trial
judge erred in finding that there were no substantial and compelling
circumstances justifying the imposition of a lesser sentence. In her judgment it is
not clear what factors Monaledi AJ ga ve consideration to in reaching the
conclusion that there were no substantia l and compelling circumstances. Be that
as it may it does not however seem that we, as the appellate court, are in any way
impeded in dealing with the matter. We have the assurance of both counsel, and
9
this is borne out by the record, that a ll the relevant facts and all the evidence
which fall to be considered for purposes of sentence are before us, and that it
would serve no purpose to refer the matter back to the trial judge for
reconsideration.2 In terms of s 51 a sentencing c ourt is not required to record the
factors which led it to conclude that there are no substantial or compelling
circumstances. It is otherwise, howeve r, where there is the finding is to the
contrary. In such event s 51 (3) (a ) imposes a specific obligation upon the
sentencing court (where it finds substa ntial and compelling circumstances to
exist, which justify the imposition of a lesser sentence) to enter them on the
record and to impose such lesser sentence which it considers appropriate.
[21] Counsel for the appellant very fairly conceded that this was a gruesome
killing of an innocent man who was merely collecting firewood. Truter set out
the following factors as aggravating circumstances:
‘(a) the gruesomeness with which the deeds were carried out;
(b) after the appellant had realised in shoc k that he had shot the victim, he could
well have taken other steps to possibly save his life;
(c) the deceased did not di e immediately after being shot and was struck with a
pick axe so as to kill him. The appellant went along with this;
(d) the tragedy in which the deceased’s family was left;
(e) the deceased had basically no defence, and was helpless after the victims were
confronted with two firearms.’
1 2001 (2) SA 1222 (SCA) at 1238 para 34.
2 Cf Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA).
10
[22] When deciding whether there are substantial and compelling
circumstances the court is enjoined to c onsider all of the above factors, including
the personal circumstances of the accused, the interests of society and the gravity
of the offence and to give due recogniti on to the fact that when ‘considering
sentence the emphasis was to be shifted to the objective gravity of the type of
crime and the public’s need for effective sanctions against it.’3
[23] Apart from the contention that the judge a quo should have found that
there are substantial and compelling ci rcumstances no material misdirections
have been drawn to our attention. As to how misdirections are to be dealt with
the following trite approach was reiterated in Malgas:
‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing
discretion of the trial court. Where material mi sdirection by the trial cour t vitiates its exercise
of that discretion, an appellate Court is of course en titled to consider th e question of sentence
afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance. As it is said, an appellate Court is at large’.4
[24] The thrust of counsel’s submission is that the sentence imposed on the
appellant is shockingly inap propriate. It was submitted further that insufficient
weight was given to the appellant’s pers onal circumstances and the other factors
already referred to above su ch as the fact that the appellant’s brother, who
3 See Malgas at 1230G; paras 8 and 9.
4 See Malgas at 1232 A-C.
11
pleaded not guilty and had played a major role, (according to counsel), received a
sentence of 21 years imprisonment, in another court.
[25] The above criticism is, in my view, is unjustified, as the appellant’s case
was disposed of before that of his brothe r. In fact the appe llant was called by the
State as a witness against his brother, who was tried subsequently by Els J in
another court. In any event the difficulty with the judgment of the learned judge,
which was placed before us during argum ent, is the finding that the minimum
sentence provisions were not applicable. This, despite the presence of planning
and common purpose. Of course, the lear ned judge ultimately concluded that,
even if the Act applied, there were s ubstantial and compelling circumstances. It
is not necessary to make any further comment on the matter as the decision of the
learned judge is not on appeal before us . The State did not appeal against that
court’s judgment, nor the sentence imposed by it. In the appeal before us the
Sate, while conceding that there were substantial and compelling circumstances
(a concession which is not binding on us) severely criticised the sentence
imposed by Els J as being too lenient. The State contends that 25 to 30 years
would have been a more appropriate sentence. When asked during argument as to
why leave to appeal was not sought, counsel replied that perhaps with hindsight
an appeal should have been launche d. While conceding that there were
substantial and compelling circumstances in the present matter, counsel for the
State submitted that the appellant shoul d not receive less than 25 to 30 years
imprisonment.
12
[26] It is true that even in the absence of a material misdirection this court
would be justified in inte rfering with the sentence imposed by the trial court, but
it may do so only when there is a disparity between the sentence of the trial court
and that which the appellate court would have imposed had it been the trial court,
which disparity is so marked that it can properly be descri bed as ‘shocking’, or
‘startling’ or ‘disturbingly inappr0priate’. In Malgas it was said:
‘[I]n the latter situation the appellate Court is not at large in the sense in which it is at large in
the former:
‘In the latter situation it may not substitute th e sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the tria l court or because it prefers it
to that sentence. It may do so only where the difference is so substantial that it attracts epithets
of the kind I have mentioned. No such limitation exists in the former situation.’
5
[27] The factors advanced on behalf of the appellant as ‘substantial and
compelling circumstances’ are that the appellant was 22 years of age at the time;
he was a first offender; he pleaded guilty; he co-operated with the police; he was
remorseful; thefts (33 in number) that had taken place on hi s farm over the past
year; he had become ne urotic about people trespassing on his farm. In
amplification of this point Truter recorded the following in his report:
‘(a) the suspicion, distrust, and consta nt condition of vigilance in which he
protected his farm and his parent s. He was driven, investigative, and this mindset was to him
an ‘axe in the frozen cream of crime and threats’ in which he is as a farmer found himself;
(b) in the case of the transgression in po int, the appellant initially regarded the
5 See Malgas at 1232 D-E.
13
trespassers on his farm with suspicion, and belie ved that they had othe r initiatives. He wanted
to frighten them away at all costs, so that they would not trespass on this farm again;
(c) In spite of his efforts of locking gate s and making the farm difficult to access,
there were always paths through the farm whic h were constantly being used by the local
population at their leisure. He typified them as obstinate and believed that, under the course of
collecting firewood and cutting thatching they would reconnoitr e/spy out, perpetrating thefts
afterwards;
(d) the measure of esprit de corps and cohesion and sub conscious mutual
encouragement existing between the two brothers.’
[28] I turn to consider the question whether the above factors amount to
substantial and compelling circumstances which justify the imposition of a lesser
sentence as contemplated in s 51 (3)(a) of the Criminal Law Amendment Act. In
my view the above factors cannot be considered in vacuo, but due weight must
be given to them in the context of the given case and together with all of the
other factors before the court, such as the aggravating features of the case and the
interests of the community. I deal first with the appellant’s age. It is true that the
appellant was 22 years old at the time and his brother was 27 years old. While
this factor has to be take n into consideration, account must also be taken of the
dominant role the appellant played in th e killing of the deceased. It was he who
shot the deceased twice, and then suggested that he be killed and buried under the
carcass of a cow. It was he who stopped th at initial plan and suggested that the
deceased be buried in the cornfield. When his brother wanted to fire a shot it was
he who said the shot should not be fired as it would attract a ttention. It was he
14
who collected the pick ax e and the shovel from home. It was he who drove the
bakkie that carried the deceased. There is nothing to suggest that the brother
issued any instructions. On the contra ry, the appellant’s brother was going along
with whatever he was being told to do by the appellant. In the trial before Els J
the appellant’s brother said he participat ed in the killing because he feared the
appellant. I am not holding this against the appellant, but mention it simply to
indicate that it is not so that the elde r brother played a dominant role. The
appellant did not have an opportunity to challenge this statement during the trial
of his brother because he was a witness and similarly the appellant’s brother was
in no position to challenge th e averments made against hi m at the hearing of the
appellant’s case, that it was he (the appellant’s brother) who played a major role.
Even if one leaves out of account what the appellant’s brother said at his trial
about the appellant (which I proposed doi ng in this case) it seems to me that,
despite his age, the appellant was clearl y the leader rather than the follower in
this whole sordid operation.
[29] The fact that the appellant is a first offender certainly has to be taken into
account. So is the fact that he plea ded guilty and co-operated with the police.
But account should not be lost of the f act that when the appellant was first
confronted by Nkosi, the police insp ector and the member of the commando
about the incident, he denied any i nvolvement. The change of stance by the
appellant later on may well have been influenced by the realisation that the game
was up. Nkosi, mercifully, lived, and he witnessed the attack on himself and the
15
deceased. He also saw the general area where the incident took place. He would,
to the appellant’s knowledge, have been able to provide information which might
ultimately have led to the finding of the body of the deceased and would have
implicated the appellant in the killing.
[30] Turning to the issue of remorse, Truter testified that the appellant showed
remorse. He referred to letters which the appellant wrote to his parents and to the
family of the deceased apologising for what he had done and asked for
forgiveness. When his parents visited hi m in custody he apparently asked for the
Bible and begged for forgiveness. A ll of this, however, happened some 18
months after the incident. By then, in my view, the appellant must have realised
that his situation was desperate. The above acts, it would appear, were, in my
view, actuated by concern for himself rath er than for the victims of the deed.
While this is a factor not to be ignored it has to be put in perspective in the light
of all the facts in this case.
[31] Truter also referred to 33 farm attacks, all of which happened in one year
and to thefts from the appellant’s farm . He suggested that the appellant had
become neurotic. I fail to see what th is had to do with the people who were
merely in the camp to collect fire wood. The deceased and Nkosi were not
stealing cattle or launching an attack on the farm. They were not even armed.
Although they were doing absolutely not hing, the two innocent men were chased
by the appellant and his brother (both of whom were armed with firearms) and
hunted down like wild animals. Fleeing in to a thick wattle bush did not help the
16
deceased. Thinking that the appellant and his brother had given up, the deceased
emerged from the bush only to be shot twice by the appellant. Why the
appellant treated the deceased and Nkosi this way is not easy to fathom because
it emerged in the evidence at the tria l that when he caught some white men
stealing corn on the neighbouring farm th e appellant reported them to the police
and had them arrested. On another occasion he caught some white persons
making a fire on the farm. He ordered them to put out the fire. But this time when
he caught the deceased and Nkosi, who were just coll ecting firewood, he elected
first to beat them up and then to shoot the deceased. The defence, however, did
not contend that this killing was racia lly motivated. Only the appellant knows
what went on in his mind at the time.
[32] Nkosi escaped. While the deceased lay injured, at the suggestion of the
appellant a search was mounted for him, because they wanted to find out whether
he had witnessed the shoo ting. Why was that? Only the appellant knows why.
[33] In his opening address at the trial c ounsel for the defence aptly described
this killing as a ‘gruesome event’. I sh are that sentiment. I cannot imagine a
more revolting way of putting a human being to death. Before the deceased died
he was not only physically assaulted but also emotionally traumatised. While he
lay injured the appellant and his brother carried on a discussion about first killing
him and then burying him under the carca ss of a cow. He was then moved to the
cornfield. Once there, some discussion t ook place to the effect that he should not
be shot because that would attract a ttention. A grave was dug for him while he
17
was still alive. Ultimately, he was struck with a pick axe and buried in the most
undignified way possible – for doing no mo re than collecting firewood. In my
view the aggravating circumstances of this case far outweigh all the other factors,
when balanced against one another. The killing was cruel, inhuman and
degrading and no self respecting society can tolerate deeds of this nature.
[34] It was also submitted that the shock and the realisation that the appellant
and his brother had fatally injured the deceased led them to a point of no return.
This submission loses sight of the fact that this situation was of their own
making. One cannot create a perceptibly i rreversible situation and then seek to
rely on it. I cannot accept that the appe llant and his brother did not have an
opportunity to reflect on the situation or ev en to save the decea sed’s life. He lay
injured and nothing was done to assist him, a factor which demonstrates the
callousness of the whole sordid affair. In stead they indulge in a discussion as to
how and where he was to be buried.
[35] Finally, I turn to the submission that it is unfair that the brother of the
appellant who played a more prominent role should receive a lesser sentence than
the appellant. First, despite the fact that the appellant’s brother struck what was
probably a fatal blow, I do not think that the appellant played a less prominent
role. As I have indicated a bove, in my view, he was the dominant player in all of
this. Secondly, it is true that ‘justice is best seen to be done in the matter of
sentence if participants in an offence (even if tried separa tely) who have equal
degrees of complicity are punished equally, if there are no personal factors
18
warranting disparity. 6 The statement in Giannoulis must now be qualified by
reference to the present legislation to which due weight mu st be given by the
courts. One can imagine the odd results th at might ensue were the trial court to
find that the Act does not apply, when in fact it applies, and a co-accused is given
a lighter sentence on that account. In those circumstances the sentencing court
would certainly not be obliged to impose the same sentence on appeal,
notwithstanding the disparity.
[36] For the above reasons I cannot find fault with the trial judge’s conclusion
that there are no substantial and compelling circumstances present in this case.
[37] The appeal is accordingly dismissed.
__________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
ZULMAN JA
BRAND JA
6 S v Giannoulis 1975 (4) SA 867 AD at 870H.