THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO. 337/2003
In the matter between
THE STATE Accused
(Respondent in cross-appeal)
and
E Y B KAROLIA Respondent
(Accused in cross-appeal)
___________________________________________________________
CORAM: ZULMAN, HEHER JJA and PATEL AJA
HEARD: 3 MAY 2004
DELIVERED: 28 MAY 2004
___________________________________________________________
Appeal against sentence by the state in terms of s 316 B of the Criminal
Procedure Act, 51 of 1977, (the Act) tests for a special entry by an
accused in terms of s 317 of the Act; compulsory sentences prescribed by
s 51 of the Criminal Law Amendmen t Act, 105 of 1977 and the existence
of ‘substantial and compelling circumstances’. A sentence of correctional
supervision in terms of s 276(1)(i ) of the Act and the payment of
R250 000,00 set aside and repla ced by a suspended sentence of
imprisonment and a payment of R250 000,00
2
JUDGMENT
___________________________________________________________
ZULMAN JA
A. INTRODUCTION
[1] This appeal with th e leave of the court a quo concerns:
1.1 An appeal by the accused (the St ate) in terms of s 316 B of the
Criminal Procedure Act, 51 of 1977 (the Act) against a sentence
imposed on the respondent (the accused).
1.2 A cross appeal by the accused against his conviction.
1.3 A special entry of an alleged i rregularity in terms of s 317 of the
Act.
[2] The accused was charged with and convicted in the High Court
(Witwatersrand Local Division) on 6 November 2001 of the following
crimes:
2.1 Attempted murder, it being a lleged that he unlawfully and
intentionally attempted to kill He rmanus Johannes Lotz (Lotz) (the
accused having with him at the time a firearm used in the
commission of the offence).
3
2.2 Murder, (not premeditated or planned) it being alleged that he
unlawfully and intentionally ki lled Ntsoeke David Mofokeng (the
deceased); and
2.3 Assault with intent to do grievous bodily harm, it being alleged that
he unlawfully assaulted Lotz by hitting him with a firearm on his
face and head with intention of causing him grievous bodily harm
(but where it could not be found th at the accused intended to use
the firearm as such in the commission of the offence).
[3] It will be convenient to first cons ider the cross appeal on the merits
of the conviction together with the question of the special entry and then
to consider the appeal against sentence.
B. THE CROSS APPEAL AN D THE SPECIAL ENTRY
[4] The accused pleaded not guilty to all three charges. His plea was
based on a defence of se lf defence in that th e deceased and Lotz had
attacked him at his home early on the morning of the alleged offences.
[5] The following facts are not in dispute:
5.1 On 14 April 1998 the accused bought a 333i BMW vehicle from
the accused for a purchase price of R65 000,00.
5.2 The price was to be paid by wa y of a trade in of another BMW
vehicle to the value of R35 000, 00, payment of R10 000,00 in cash
and the balance by the end of April 1998.
4
5.3 After the transaction was conc luded the 333i BMW was returned to
the accused and the vehicle traded in returned to the deceased.
5.4 The deceased and Lotz, without any prior warning, arrived at the
accused’s home early on the morning of 22 June 1998.
5.5 Shortly after entering the accuse d’s home an altercation occurred
between the accused and the deceased.
5.6 Two gun shots were fired by the deceased in the direction of Lotz
as Lotz was in the process of leaving the home.
5.7 The accused then fired a furt her three shots at the deceased.
5.8 The deceased sustained several injuries including one wound in the
abdomen, one in the chest, and one in the neck.
5.9 These wounds were the cause of the death of the deceased.
5.10 When he arrived the de ceased had a firearm on him.
5.11 Shortly after leaving the accuse d’s home Lotz returned to the
vicinity of the home in the presence of a Mr Khan.
5.12 Lotz was subsequently remove d from the scene by the police. No
firearm was found in his possession.
5.13 The deceased’s car which was parked in the street in the vicinity of
the accused’s home was searched by the police. No firearm was
found in it.
5.14 The deceased died in the accused’s home.
5
5.15 Lotz is 1,8 metres tall and weighs 80 kilograms. Both the deceased
and he were about the same size . The accused was a much smaller
man than both of them.
[6] In his evidence the accused stated that he initially did not recognise
the deceased. He also ga ve evidence to the effe ct that Lotz and the
deceased were the aggressors and that he acted in self defence. There was
a conflict in the evidence as to precisely what injuries were sustained by
Lotz after Lotz left the accused’s home.
[7] I interpose to now consider the accused’s contentions concerning
the special entry, before returning to the cross appeal on his conviction. In
essence the accused contends that the court a quo erred in calling further
witnesses without notice to the par ties and after both the state and the
defence had completed their argument s on the merits thus warranting a
special entry of an irregularity in terms of s 317 of the Act. It was
furthermore contended that the only in ference to be drawn from the court
a quo wishing to call the witnesses was that the court attempted to cure
deficiencies in the state case. I do not agree. The witnesses sought to be
called fell into two categories. Firstly witnesses dealing with the injuries
allegedly suffered by Lo tz after the initial shooting and secondly a
witness concerning the question of the deceased’s hairstyle at the relevant
time. In this latter rega rd it was contended, in effect, by the accused that
he did not recognise the deceased at the time, inter alia, because of a
6
change in his hairstyle.
[8] Section 186 of the Act provides that:
‘The court may at any stage of crimin al proceedings subpoena or cause to be
subpoenaed any person as a witness at such proceeding and the court shall so
subpoena a witness or so cause a witness to be subpoenaed, if the evidence of such
witness appears to the court essen tial to a just decision of the case .’ (the emphasis is
mine).
[9] The section makes it plain that the court a quo was entitled to at
any stage of the proceedings which w ould include a stage even after both
the state and the defence had comp leted their arguments, to cause
witnesses to be subpoenaed. ( S v Gerbers 1997 (2) SACR 601 (SCA)).
There is no requirement that the c ourt give any notice to the parties
before deciding to so act. The court has a wide discretion in the matter
(see for example Rex Hepworth 1928 AD 265 at 277 and R v Gani 1958
(1) SA 102 (AD)).
[10] In my view the court a quo was perfectly justified in calling the
witnesses in question so as to clar ify uncertainties regarding the injuries
allegedly sustained by Lotz which remained unclear after the state and the
defence had closed their respective cases. Secondly the evidence of the
deceased’s widow, who was one su ch witness, was also aimed at
clarifying the contention advanced by th e accused that he did not initially
recognise the deceased. Counsel fo r the accused wisely did not in
7
argument before this court seek to challenge the correctness of the
recalling of the last mentioned witness. The court very properly attempted
to discover the truth in order to do substantial justice between the accused
and the prosecution so as to arrive at ‘a just decision of the case’. I
accordingly do not believe that in the circumstances the calling of the
further witnesses or the recalling of the deceased’s widow amounted to an
irregularity or that there was any failure of justice in this regard or that
the court a quo erred in the exercise of its discretion.
[11] I now return to a considerati on of the accused’s defence and his
evidence that the dece ased and Lotz had attacked him by pointing
firearms at him and that he had acted in legitimate self defence.
[12] It is of fundamental importa nce to a proper evaluation of the
accused’s defence to have regard to the evidence of Lotz who was the
main witness for the state even alt hough he was not an eye witness to the
events inside the accused’s home afte r he left it and when the deceased
was shot by the accused. Furthermor e the uncontradicted evidence of Dr
Rowe who conducted a post mort em on the deceased’s body and
Superintendent Van der Ne st called by the state as also the evidence of
the other witnesses called is vital in establishing what happened inside the
house after Lotz had left it. All of th is evidence is to be weighed against
the evidence of the accused, due regard being had to the onus which
rested on the state in order to es tablish whether his defence of self
8
defence was not reasonably possibly true. I believe that the court a quo
competently and correctly went about this task.
[13] Essentially Lotz’s evidence was to the following effect:
13.1 He and the deceased arrive d at the accused’s home on the
morning in question. They pus hed the front door bell and
knocked. The deceased proceeded to the back door as there was
no response at the front door. (A witness, Ms Hlasa, an employee
of the accused, confirmed th at the front door bell was not
working on that day). Thereaft er the accused opened the front
door and security gate to let th e deceased and Lotz in. (This
would explain why it was possible fo r Lotz to later run out the
front door and security gate. This evidence contradicted what the
accused said in this regard.)
13.2 His role was that of a ‘med iator’ in the discussion regarding
R10 000,00 which the deceased contended he was entitled to
receive from the accuse d. In my view it is perhaps unrealistic to
describe Lotz as a simple impa rtial mediator. His occupation was
that of a food technologist w ho attended a business course on
conflict resolution. In my view he was really there to assist the
deceased, who lived near him, to recover what the deceased
believed the accused owed him.
9
13.3 Once he and the deceased were inside the house, Lotz on more
than one occasion, told both th e accused and the deceased to
speak through him and not to each other. The accused however,
appeared to be agitated with th eir presence and the demand for
R10 000,00 and called his son to produce a file with receipts as
proof that he did not owe the deceased any money. The receipts
appeared to Lotz to be of a general nature, so he asked the
accused to view the 333i BMW. The accused was not prepared to
do this but instead pulled out a firearm and pointed it at Lotz’s
face. A shot was fired by the ac cused at Lotz. Lotz asked the
accused what he was doing as he could not believe the bullet did
not strike him. When the accused did not reply Lotz ran away. A
second shot rang out. It grazed the top of his head and he felt the
plaster of the wall next to him falling on his head.
13.4 Once safely outside the accused’ s home Lotz went to the office of
the principal of a nearby school to report the matter.
13.5 When Lotz saw a police vehicle moving in the direction of the
accused’s home he decided that it was safe to return.
13.6 Whilst on his way back to the accused’s home in the company of
Khan, the accused and a number of other people in the street. He
was then assaulted by the accus ed. Khan had to intervene
between the accused and Lotz. It seems clear from this that the
10
accused was still angry with Lotz a nd wanted to give vent to his
anger.
[14] It is true that there was a c onflict between the evidence of the
domestic servant Hlaza and that of Lo tz as to whether or not tea was
served to Lotz before the shooting took place. The importance of this
contradiction should not be over em phasized when considering Lotz’s
evidence as a whole. I believe that on balance the court a quo was correct
in preferring the evidence of Lotz on the matter, especia lly if regard is
had to the fact that Hlasa was an employee of the accused who may well
have been under some pressure to attempt to assist him.
[15] I similarly believe that the court a quo was correct in accepting the
evidence of Lotz which was both probable and in most respects
corroborated and not contradicted by other evidence. The court a quo
described Lotz to be a credible and ‘impressive witness’.
[16] Lotz’s evidence was co rroborated by the evidence of
Superintendent Van der Nest and Dr Rowe.
The evidence of Van der Nest was to the following effect:
16.1 If blood falls at 90° (straight down), a circular pattern will be
formed.
16.2 The more acute the angle (appr oaching 0°) the more the shape
changes and becomes eliptical in nature.
11
16.3 The blood stain on the wall depicted in Exhibit D appears to be as a
result of an artery that was breach ed causing the blood to strike the
wall with force. The donor of th is blood was probably in a low
body position; either sitting or kn eeling as the pattern is ± 75 cm
from the floor and not higher.
16.4 Exhibit D also shows larger and smaller blood stains which in all
probability were the result of a breached artery or free surface
blood which was available when an assault took place. It is,
however, certain that the victim must have been under a table
depicted in the exhibit in order to cause a circular pattern.
16.5 The DNA isolated from the bl ood found on a piece of wood shown
in Exhibit D, corresponds with that of the deceased.
[17] The relevant corroborative aspect s of the evidence of Dr Rowe are:
17.1 During the post mortem exam ination three separate gunshot
wounds were found:
17.1.1 Wound number 1 : in the a bdomen; which had a collar of
abrasion indicating it to be an entrance wound.
17.1.2 Wound number 2 : on the left side of the chest. The wound
had a collar of abrasion indicating it to be an entrance
wound. Wound 3 indicating a bullet lodged beneath the skin.
17.1.3 Wounds number 5 and 6 : the left side of the neck. Wound
number 5 has a collar of abra sion indicating it to be an
12
entrance wound and wound number 6 is an exit wound
below the chin on the right side.
17.2 The wound in the neck would cau se a large amount of bleeding as
the blood vessels are superficial in this area and if they are
breached the blood would spurt out as the heart pulsates.
17.3 Each wound on its own would be fatal, however, the wound in the
neck would lead to death most quickly. Once the wound in the
neck is inflicted, the deceased would fall down if he was standing
and not be able to do much.
17.4 The deceased was still alive wh en the wound through the lung was
inflicted, as there was aspiration of blood.
[18] Although no ballistic evidence was presented I am satisfied that in
the light of the above evidence, the pr obable inferences to be drawn as to
what happened in the house after Lotz ran out are the following:
18.1 The deceased was left in the la rge lower area of the house together
with the accused.
18.2 The deceased was first assaulte d in the entrance hall. That would
explain the following:
18.2.1 the broken overhead light;
18.2.2 the piece of broken wood on which the DNA corresponds
with that of the deceased.
13
18.3 The deceased was already injure d as he ran from the entrance hall
down the steps as depicted in Exhibit D and pushed between the
glass trolley and dining room table. The circular blood stains
depicted in Exhibit D confirm this.
18.4 The deceased probably collapsed in a kneeling position at point K
depicted in Exhibit D. It was at this point where he was shot for the
third time. The third shot was fired from behind into the left side of
his neck behind the ear. This would explain the following:
18.4.1 the spurting of the blood as the large blood vessels were
breached and caused the blood st ain pattern against the wall
and under the table;
18.4.2 the track of the wound.
[19] The accused after testifying in his own defence, called one witness,
namely Mr A K M Sultan.
19.1 Various contradictions emer ge from the accused’s evidence
regarding the vehicle transaction with the deceased which reflect
negatively on the accused’s credibility. I however do not believe that any
useful purpose would be served in detailing them. Of more obvious
importance is a consideration of hi s evidence concerning the incident at
his home and in the street outside on the day of the alleged offences.
[20] The court a quo rejected the accused’s ve rsion in respect of the
incident at his home as being not reasonably possibly true and highly
14
improbable. I believe that it was corr ect in doing so, inter alia, for the
following reasons:
20.1 The accused testified that when Lotz and the deceased entered
through the kitchen, he could not see the deceased as he stood
behind Lotz. However during cross- examination he stated that he
saw the deceased’s face for the first time when Lotz approached his
sons and the deceased was pointi ng the firearm at him. He stated
that he could see the deceased ’s face clearly but yet did not
recognize him. Later the accused contradicted himself when he
said he did not see the deceased’s face. When pressed on this point
he said that he saw the deceased’s face but not clearly. I agree with
the court a quo’s finding that the accu sed’s evidence that he
initially did not recognise the d eceased because of a change in
hairstyle to be both improbable and untrue.
20.2 The accused testified during cross- examination that it is his habit to
carry his firearm on his person. He testified that Lotz pulled out a
firearm and hit him on the left ear which caused him to fall down.
During cross-examination the accused explained how he fell flat on
his back and how Lotz put his foot on his stomach. He stated that
he was pulled and shoved and that he tried to pull Lotz’s hand free
from the grip he had on his collar. Lotz denied all of this. It is
highly improbable that the accused c ould, at this stage, not get his
15
hands free in order to get hold of his own firearm. The accused’s
attempt to explain this failure by saying he was lying on his hand,
is not convincing and I believe untrue.
20.3 The accused testified that th e first two shots he fired were
respectively a warning shot and a shot in the direction of Lotz. This
is highly improbable especially in the light of the fact that the
deceased was the closest to him an d an immediate threat to his life
as he was allegedly pointing a firearm at the accused. There
appears to be no good reason why if this was true, the deceased
would not have fired a shot at th e accused during this time. It is
far -fetched to suggest that becau se the deceased’s firearm was not
later tested that it could have been faulty.
20.4 During cross-examination the a ccused stated that the deceased
never spoke to him but that Lotz demanded R50 000,00 from him.
It is again highly improbable that the deceased would not speak to
the accused at all especially in the light of the fact that the deceased
wanted the money that he claime d was owed to him. Furthermore
during cross-examination the accused stated that he only spoke to
Lotz and the deceased saying th ey must stop hitting him. It is
highly improbable that the accused would not offer to pay at least
some of the money but instead involve his family and himself in a
dangerous life threatening situation.
16
20.5 The accused testified that Lo tz kicked and hit his adult sons
Shaheen and Sufyan causing both of them to fall down. During
cross-examination of Lotz it was, however put to Lotz that the
accused did not see Lotz hitting Sufyan on his face. When the
accused was cross-examined on this point he contradicted himself
by saying he later established that Lotz had hit Sufyan. He states
that he only saw his son’s hands moving and heard what they said.
If the accused’s sons were indeed assaulted by Lotz, in the manner
described by the accused it is highly unlikely that they would only
have sustained the injuries depicted in Exhibits G and J. It is also
highly improbable that Lotz would attack the sons and that they
would both get a chance to escape his attack and run away but not
return to the scene after Lotz ha d left to assist their father in
dealing with the deceased.
20.6 Although there was no onus upon the accused I find it strange that
he did not call either of his adult sons or his wife all of whom were
in the house at the time to corroborate his version. It is not unfair to
infer from this that they were in fact not able to corroborate what
the accused said especially as to the role of his sons in the matter.
This is of some importance as the stick was not brought on to the
scene by the deceased or Lotz and the accused was in possession of
a firearm and had no cause to reso rt to using a stick. The strong
17
likelihood is that the stick was the weapon of a third person who
came to the assistance of the accused.
20.7 The accused testified that after he fired two shots at Lotz, he turned
and fired a third and fourth s hot at the deceased who was still
advancing towards him after he fired the fourth shot. Thereafter the
deceased allegedly grabbed hi m from behind. He explained how
the deceased put both his arms around the accused’s arms. During
cross-examination the accused c ontradicted himself as to how
exactly the deceased would ha ve grabbed him by stating the
deceased put his right arm under hi s right arm and that he does not
know what the deceased did with his left arm. This seems absurd to
me.
20.8 The accused testified that th e deceased fell on t op of him and at
that stage he fired the fifth shot at the deceased while they were
wrestling on the floor. During cros s-examination he contradicted
himself by saying that in the str uggle he fired the fifth shot. The
accused’s description of how, while lying on his stomach with the
deceased on top of him, he fired the shot which struck the deceased
from behind, beggars belief.
20.9 It is highly improbable that the deceased would only have lifted his
firearm and not fired any shots at the accused during the time when
the accused presented a threat to him.
18
20.10 The accused testified that when he ran outside a number of people
were approaching his home. When he returned to his home he saw
people assaulting the deceased. It was put to Lotz during cross-
examination that these people were construction workers who
assaulted the deceased with w ooden weapons or sticks. During
cross-examination the accused, how ever stated that only some of
the people in his home were cons truction workers; others were
people from the community. It is highly improbable that any
people would come into the ac cused’s home to assault the
deceased. Especially since the accused stated that he did not know
any of the workers at the construc tion site and the fact that the
accused said that as he ran out of the house he did not tell anyone
he had been robbed but asked about a white man.
20.11 During cross-examination it was put to Lotz that it was possible
that he injured his head when he bumped the light while on his way
out of the accused’s house. When the accused testified he said that
he did not see how the light got broken, but Lotz hit it with his
head or someone else did as they ran into the house. It is highly
improbable that Lotz damaged the light with his head as it is only
the top part of the light that was damaged.
[21] The finding of the court a quo that Lotz sustained injuries in the
first shooting and in the course of the later assault by the accused on him
19
with a firearm which the accused had with him are completely consistent
with the evidence and probabilities and cannot be faulted.
[22] In the result therefore I do not believe that any good reason exists
to disturb the credibility findings of the court a quo concerning Lotz and
the rejection of the evidence of the accused as being untruthful,
improbable and not reasonably possibly true. Accordingly the cross
appeal of the accused must fail.
C THE APPEAL AGAINST SENTENCE
[23] The court a quo took all three charges as one for the purpose of
sentence. On 18 June 2002 the following sentence was imposed:
23.1 Five years imprisonment in terms of s 276 (1) (i) of the Act being
imprisonment in terms of which the accused was to be placed
under correctional supervision in the discretion of the
Commissioner of Correctional Services.
23.2 One year of the aforesaid five years was suspended for five years
on the following conditions:
23.2.1 That the accused is not c onvicted of an offence committed
during the period of suspensi on in which violence is an
element.
23.2.2 That the accused makes pa yment of the sum of R250 000,00
as compensation in favour of th e three minor children of the
deceased, which sum is to be paid in four instalments the
20
first of R100 000,00 on or be fore 18 June 2002; the second
of R50 000,00 on or before 18 August 2002; the third of
R50 000,00 before 18 Septembe r 2002; and the fourth of
R50 000,00 on or before 18 October 2002.
The payments referred were to be paid to the Master of the
Supreme Court Pretoria for paym ent by him into the Guardians
Fund pursuant to the relevant pr ovisions of the Administration of
Estates’ Act 66 of 1955 for the benefit of the children with the
authority of the Master in terms of the said Act to make advances
to the minor children from the monies standing to their credit in the
Guardians Fund and pursuant to the needs of the children as
provided for in the said Act.
[24] Immediately after the sentence was imposed the accused’s bail was
withdrawn and he commenced serv ing his sentence. The state is
unable to dispute that the accu sed made payment of the sum of
R250 000,00 on the dates required a nd that withdrawals have been
made against this money on behalf of the minor children of the
deceased. Furthermore the accus ed has now served the term of
imprisonment that was required of him (8 months in all). (He was
released from prison in accordance with the powers vested in the
Commissioner of Correctional Services in February 2003).
21
[25] Having correctly found the accu sed guilty, of murder which it
found was not planned or premedita ted, the accused being a first
offender, the court a quo would have been obliged to impose a sentence
of not less than 15 years imprisonment, that of murder, in terms of s
51(2)(a)(i) of the Criminal La w Amendment Act 105 of 1997 (the
Amendment Act) read with part II of schedule 2 thereto (murder, other
than murder referred to in Part I para (a) of the schedule the latter
paragraph dealing with a murder wh ich is planned or premeditated). It
was not so obliged if the court was sa tisfied in terms of s 51(3)(a) of the
Act that ‘substantial and compe lling circumstances’ existed which
justified ‘the imposition of a lesser se ntence than the sentence prescribed
in ss 51(2)(a)(i)’. Section 51(3)(a) furthermore specifically provides that
if the court is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than that prescribed, ‘it
shall enter those circumstance on the record of the proceedings and may
thereupon impose such lesser sentence’.
[26] Similarly having correctly found the accused guilty of attempted
murder with a firearm which the accused had with him at the time
which was intended for use as such in the commission of the said
offence, the court would have b een obliged to impose a minimum
sentence of not less than 5 years in respect of such offence in terms
of s 51(2)(c)(i) of the Amendmen t Act read with part IV of
22
schedule 2 to the said Act. Again the court a quo was not obliged
to impose such minimum senten ce if it was satisfied that
‘substantial and compelling ci rcumstances’ existed which
‘justified’ the imposition of a lesse r sentence than that prescribed
in s 51(2)(c)(i). As was the case in the murder conviction the court
was required, in terms of s 51(3)(a ) to ‘enter those circumstances
on the record of the proceedings ’ before it was entitled to impose
any lesser sentence. Se ction 51(6) of the Amendment Act provides
that the operation of any sentence imposed in terms of s 51 ‘shall
not be suspended as contemplat ed in s 297(4) of the Criminal
Procedure ct, 1977 (Act No 51 of 1997)’.
[27] Unlike the position in regard to ci vil appeals to this court which are
governed by rule 7 the parties in a criminal appeal or cross-appeal
are not required to lodge notices of appeal stating inter alia ‘the
particular respect in which the variation of the judgment or order is
sought’ (Rule 7 (3)). There is no requirement that a notice be
served in a criminal appeal on this court requiring the accused to
set out the grounds of appeal relied upon. Accordingly it would be
useful in this case to look at the grounds advanced by the state in
its application for leave to a ppeal and in the written and oral
arguments that it presented.
23
[28] On 24 June 2002 Mr A P de Vries the then director of Public
Prosecutions, Witwatersrand Local Division, of the High Court
deposed to in an affidavit in supp ort of an application by the state
for leave to appeal in terms of s 316B of the Act against the
sentence imposed by the court a quo. In the affidavit he stated inter
alia that:
‘The grounds upon which this application is brought are the following:
5.1 It is submitted that the sent ence imposed upon the Respondent is
inappropriately lenient and induces a sense of shock.
5.2 The learned Judge erred in attaching insufficient weight to the seriousness of
the crimes in general and insufficient weight particularly to the following
factors:
5.1.1 The ‘cruel and merciless’ attack on the deceased and the witness by the
Respondent.
5.1.2 The arrogant and aggressive manner in which the Respondent acted when he
was confronted by the deceased and the witness.
5.1.3 The fact that the deceas ed was brutally attacked after he was disarmed.
5.1.4 The fact that the assaul t on the deceased continued as he lay dead or dying.
5.1.5 The callous attack by the Respondent when he fired shots at the witness
instilling intense fear in the witness.
5.1.6 The fact that the Respondent fired a s hot at the witness while he was escaping
to safety.
24
5.1.7 The fact that the second assault on th e witness in the st reet was completely
unprovoked and contained racial slurs, in full view of bystanders.
5.2 The learned Judge erred in attaching insufficient weight to the interests of
society in general and insufficient weight to particularly the following factors:
5.2.1 The fact that the deceased’s wife was pregnant at the time of the incident.
5.2.2 The fact that the deceased’s wife ha s been left without companionship and
support of her husband.
5.2.3 The fact that two very young children have cruelly be en deprived of the love
and support of their father.
5.2.4 the fact that the deceased’s youngest child will grow up not knowing her
father.
5.3 The learned judge erred in over-emphasi sing the personal circumstances of the
respondent in general.
5.4 The learned judge erred in referring to the State versus Eadie 2002(1) SACR
633 SCA in the light of the fact that the respondent did not advance a defence
of temporary non-patrological [pathological] criminal incapacity.
5.5 The learned judge erred in finding that imprisonment in terms of Section 51(2)
of Act 105/1997 was not an appropriate sentence despite:
5.5.1 having difficulty in finding mitigating features in the circumstances under
which the crimes were committed, and
5.5.2 finding this matter to be a ‘borderline’ case.
5.6 The learned Judge erred in finding that imprisonment in terms of Section
276(1)(i) of Act 51/1977 is an appropriate sentence. It is submitted that such a
sentence, under the circumstances, is inappropriate and contrary to the
interests of justice.
25
6. I therefore respectfully request that leave to appeal against the sentence be
granted to the Supreme Court of Appeal.’
[ 2 8 ] I t i s o f s o m e s i g n i f i c a n c e t h a t the state did not seek to raise the
question of any irregularity on the part of the court a quo in regard to the
appropriateness or otherwise of s 51(3)(a) either in support of its
application for leave to appeal whic h I have quoted above, nor did it seek
to do so in its heads of argument or in oral argument by its counsel in
support of its appeal.
[29] Similarly the accused did not a ddress this question in his cross-
appeal or in answer to the appeal by the state. The question was raised
mero motu by this court. Although the question of s 51(2) of the
Amendment Act was specifically rais ed by counsel for the state during
argument on sentence the judgment of the court a quo does not contain a
specific entry by it, on the record of th e proceedings or of its reasons for
its decision not to impose the ma ndatory minimum sentences but to
impose the lesser sentences that it di d. Furthermore a reading of the
judgment on sentence does not reveal that the learned judge, in express
terms, directed his mind to imposi ng a separate sentence on the murder
and attempted murder offences and to record the existence of substantial
and compelling circumstances in regard to each. However, in my view a
fair reading of the judgments of the court a quo not only in regard to
sentence, but also in regard to th e merits of the conviction and the
26
granting of leave to appeal, enab les one to infer that the court a quo was
indeed satisfied that substantial a nd compelling circumstances existed in
regard to the two offences justifyi ng the imposition of a lesser sentence. I
say this if regard is had firstly to the following passage in the judgment
on the convictions:
‘We find that the accused, in a state of a nger, lost control of himself, became
outraged, and then proceeded in the manner that he did. The clear conclusion to which
we arrived at is that he acted in anger a nd rage, whether it be because of the arrival of
deceased and Lotz so early in the morning; whether it be that the deceased had the
audacity to challenge him regarding a ref und; whether it be that he was enraged by
being called a liar. Matters then took the course they did.’
(Judgment vol 12 p
1069 lines 19 to 26).
This passage is expressly repeated by the learned judge in his judgment
on sentence in which he stated that it was a ‘significant’ finding by him.
In addition he stated the following in his judgment granting leave to
appeal:
‘It is clear that in addition to other c onsiderations, in arriving at the sentence
considerable reliance was placed by me on the finding in the judgment (page 83)
when convicting the accused and as also appears at page 9-10 of the sentence
judgment, that the respondent “acted in anger and rage”.
[30] Secondly in the course of his judgment on sentence the learned
judge referred with approval to the case of S v Eadie (2) 2001 (1) SACR
27
185 (C) and to the fact that in that case at pp 188J to 189A the court was
content, that if substantial and comp elling circumstances were present, a
lesser sentence than the prescribed minimum would be justified. Those
circumstances were a combinati on of severe emotional stress,
provocation and a measure of intoxication. Eadie dealt with what is
commonly referred to as ‘road rage’ where the offence is committed in a
state of extreme anger or rage. The c ourt, however, concluded that in all
the circumstances of that case it di d not see its way to impose less than
the prescribed minimum sentence of 15 years imprisonment. As correctly
pointed out by the court a quo the judgment and sentence in Eadie was
confirmed on appeal to this court ( S v Eadie 2002 (1) SACR 663 (SCA)).
The court a quo distinguished Eadie’s case on the facts and therefore,
impliedly considered that there were indeed substantial and compelling
circumstances in the case be fore it. The reference to Eadie and the
discussion of the proper approach to substantial and compelling
circumstances referred to in s 51(3 )(a) of the Amended Act which are
dealt with in the cas e, indicate to me that the learned judge a quo was
alive to the section and its conse quences and considered them when
imposing a lesser sentence. It is of course trite that
’An appellate court should not seek anxi ously to discover reasons adverse to the
conclusions of the trial Judge. No judgmen t can ever be perfect and all-embracing,
28
and it does not necessarily follow that, b ecause something has not been mentioned,
therefore it has not been considered.’
(per Davis AJA in R v Dhlumayo 1948 (2) SA 677 (A) at
706)
In his judgement granting leave to appeal the learned judge a quo again
referred to Eadie with approval. It is true that he did not refer to S v
Malgas 2001(2) SA 1222 (SCA) (approved of by the Constitutional Court
in S v Dodo 2001 (1) SACR 594 para [11] pp 602/603 and para [40] pp
615/6) where the requirements of s 51 of the Amendment Act relating to
the imposition of minimum sentences pr escribed by the legislation, were
fully considered. In that case this court held that the imposition of the
prescribed sentence need not amount to a shocking injustice before a
departure from it is justified. That su ch a sentence would be an injustice
is enough (para [23]). The suggestion that for circumstances to qualify as
substantial and compelling they must be exceptional was also rejected.
(paras [10], [30] and [31]). The c ourt made it plain that the Amendment
Act prescribing the minimum sentences, which came into force on 1 May
1998 and was operative at the time th at sentence was passed in this
matter, that High Courts were no l onger free in the exercise of their
discretion, to impose sentences whic h they considered appropriate and
that it was no longer to be ‘business as usual’ when sentencing for the
commission of specified crimes ( Malgas (supra) para [7] p 1230 A-E).
29
Marais JA delivering the judgment of the court put the matter as follows
in para [8]:
‘First, a court was not to be given a clean slate on which to inscribe
whatever sentence it thought fit. Instead it was required to approach that
question conscious of the fact that the Legislature had ordained life
imprisonment or the particular prescribed period of imprisonment as the
sentence which should ordinarily be imposed for the commission of the
listed crimes in the specified circumstances. In short, the Legislature
aimed at ensuring severe, standardised, and consistent response from the
courts to the commission of such crimes unless there were and could be
seen to be, truly convincing reasons for a different response. 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.’ Nevertheless in summarising his conclusion on the matter
Marais JA said, inter alia, ‘All factors (other than those set out in D
above) [i.e. ‘speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to
the efficiency of the policy underlying the legislation and marginal
differences in personal circumstances or degrees of participation...’]
traditionally taken into account in sentencing (whether or not they
diminish moral guilt) thus continue to play a role; none is excluded at the
outset from consideration in the sentencing process.’ (para [25] F p 1236
30
A-B). Plainly the personal circumstances of the particular accused are
‘traditionally taken into account.’ It is clear that the court a quo took the
personal circumstances of the accused which it listed in detail, into
account in sentencing the accused.
[31] Finally one may reasonably conc lude that the following passage in
the judgment leads one to find that the learned judge considered that there
were substantial and compelling ci rcumstances present which entitled
him to depart from the minimum sentences provided for in the
Amendment Act:
‘The case of Mr Karolia is indeed a very borderline case where it could perhaps be
contended that a period of direct imprisonment is the only appropriate sentence, as has
indeed been submitted by Ms Spies for the St ate. However, bearing in mind (1) the
circumstances and particularly that the accused acted in a state of anger and lost
control of himself and became outraged (2) that there are compelling personal
considerations which are relevant to the accused. I have reached the conclusion that
this is not a case where direct impris onment is the only sentence that should be
imposed.’ (my emphasis)
[32] On balance, therefore, and not without some hesitation, I am
persuaded that the court a quo was indeed alive to the fact that unless
there were substantial and compelling circumstances present it was
obliged to impose the minimum peri ods of imprisonment prescribed in
the Amendment Act. Again, not without some hesitation, I believe one is
entitled to infer that in its judgme nts on the conviction, sentence and
31
leave to appeal it found such substa ntial and compelling circumstances to
exist. Regrettably the court a quo failed to formally record those
circumstances in specific terms. Su ch a failure to record at worst
amounted, in my view to a mere procedural irregularity and not a
misdirection warranting interference on that ground alone by this court. I
also believe that one is able to fair ly infer that the murder and attempted
murder offences were considered se parately for the purpose of sentence
by the learned judge and that he decide d, in the exercise of his discretion,
having found substantial a nd compelling circumstances to exist in regard
to each of them, to order all three sentences (including the sentence
relating to the offence off assault to do grievous bodily harm) to be
considered as one.
[33] I am furthermore satisfied th at the above factors constituted
substantial and compelling circum stances which entitled the court a quo
to depart from the compulsory mini mum sentence pres cribed in the
Amendment Act.
[34] The matter does not end here however since even if the court a quo
was not obliged to impose the prescribed minimum sentences it is
nevertheless necessary to consider whether a sentence of correctional
supervision together with the required payment of R250 000,00 was
appropriate in the circumstance s. There are undoubtedly a number of
mitigating circumstances flowing from the personal circumstances of the
32
accused which are fully set out in the judgment on sentence and which
were established in a very compet ent report by Dr I L Labuschagne a
forensic criminologist called by the defence in mitigation of sentence.
Amongst these factors are:
34.1 The accused is a first offender.
34.2 He was 49 years of age at the time of his conviction.
34.3 He suffers from a heart cond ition requiring chronic medication.
34.4 There are no indications of any deviant or criminal behaviour such
as drug or alcohol abuse or the like.
34.5 He is in regular a nd steady self employment.
34.6 From an early age whilst in hi gh school the accused cared deeply
for the underprivileged in his community, instigating numerous
fund raising events. He is appa rently still involved in many such
activities and is a valuable member of society.
34.7 He is actively involved with an orphanage in Mayfair,
Johannesburg and also works fo r a home for the aged and is
actively concerned in fund raisi ng for both Muslim Mosques and
Christian Churches.
Notwithstanding all of the aforegoing mitigating factors it is undoubtedly
so that the crimes with whic h the accused was found guilty more
particularly the cruel and merciless attack on the deceased and Lotz were
most serious. The accused deliberatel y shot the deceased three times at
33
close range and fired shots at Lotz while Lotz was escaping. These are
serious aggravating features whic h must be taken into account when
determining an appropriate sentence.
[35] Taking a balanced view of all of the circumstances of this matter a
sentence of correctional supervision is startlingly inappropriate and
grossly lenient. A sentence of imprisonment is plainly warranted. There is
however a peculiar fundamental difficulty in this particular case.
[36] The general rule is that an appe al court must decide the question of
sentence according to the facts in existence at the time when the sentence
was imposed and not according to new circumstances which came into
existence afterwards (R v Verster 1952 (2) SA 231 (A) at 236 A-C and R
v Hobson 1953 (4) SA 464 (A) at 466A). Ho wever the general rule is not
necessarily invariable ( S v Immelman 1978 (3) SA 726 (A) at 730 H,
S v V 1989 (1) SA 532 (A) at 544 H – 545 C, Thomson v S [1997] 2 All
SA 127 (A) at 138 a-c and Attorney, Free State v Ramakhosi 1999(3) SA
588 (SCA) para [8] 593 D-F). Schreine r JA put the matter as follows in
Goodrich v Botha 1954 (2) SA 540 (A) 546 A-D:
‘In general there is no doubt that this Court in deciding an appeal decides whether the
judgment appealed from is right or wrong ac cording to the facts in existence at the
time it was given and not according to new circumstances which came into existence
afterwards. It was so stated in Rex v Verster , 1952 (2) S.A. 231 (A.D.), and in R v
Hobson 1953 (4) S.A. 464 (A.D.). Those cases d ealt with appeals against the severity
34
of a sentence; it was sought, in each ca se unsuccessfully, to prove subsequent
happenings to support the contention that the sentence should be reduced. But the
language used in the judgments appears to be general. In the absence of express
provision, therefore, it is very doubtful, to put it no higher, whet her this Court could
in any circumstances admit evidence of events subsequent to the judgment under
appeal, in order to decide the appeal.
It is however, unnecessary to exclude the possibility that in an exceptional case this
Court might be able to take cognisance of such subsequent events, where, for
example, their existence was unquestionable or the parties consen ted to the evidence
being so used. For here the foundations for any such exceptional exercise of
jurisdiction were clearly wa nting. The respondents did not consent to the use of the
second report and, if its terms were to be taken into account, it would clearly have
been necessary to provide an opportunity for the responde nts to lead any rebutting or
explanatory evidence that they might wish to. The proceedings have already been
very lengthy and no consideration of convenience supports their further prolongation.’
(This is also true where sentence is concerned)
In my view there are indeed exceptional and peculiar special
circumstances which occurred in this case subsequent to the imposition of
sentence which it would be proper and just for this court to take into
account when considering an appropr iate sentence. These circumstances
are the fact that the accused has by now served the sentence imposed
upon him by a court a quo, the proceedings have been lengthy and more
importantly has paid the sum of R250 000,00 which has been distributed
35
to the minor children of the deceased and is probably ir recoverable. The
state did not dispute these facts which are ‘unquestionable’ nor did it seek
to object to this court taking th em into account. Indeed the state
conceded, in my view, very properl y, that it would be unduly harsh to
substitute a substantial custodial senten ce at this stage, coupled in effect,
with the payment of R250 000,00.
[37] This case is plainly distinguishable on its facts from S v Salzwedel
and Others 2000(1) SA 786 (SCA) referred to by the state. In that case a
sentence of three years correctiona l supervision which had been imposed
by a lower court in a racially motiv ated murder was set aside on appeal
and substituted with a sentence of 12 years imprisonment, two years of
the sentence being suspended on cer tain conditions, namely that the
accused pay into the Guardian’s Fund a sum of R3 000,00 for the benefit
of the minor children of the deceased. There was no question there of any
amount having been ordered to be paid by the lower court which had
been paid. The court on appeal t ook into account, in suspending portion
of an increased sentence, the fact th at for at least two years the accused
had suffered some punishment by being under house arrest and by having
to perform community service wit hout any remuneration. The court
furthermore made the sentence im posed subject to an appropriate
condition that the accused continue to pay into the Guardian’s Fund the
instalments which the court a quo had directed to be paid for the benefit
36
of the minor children of the deceased. No such considerations apply in
this case. In any event it may well be that before setting aside the
payment of R250 000,00 and requiring repayment of the amount it would
be necessary to join not only the Ma ster of the Supreme Court but also
the guardian of the deceased’s minor children. All of these persons have a
real and substantial interest in the matter. None of them have been joined.
A case in which circumstances not di ssimilar to those prevailing in this
case is S v Mushonga 1975(1) SA 247 (RAD). Here the accused had
already served his sentence and been released. A magistrate had
convicted the accused of public viol ence and sentenced him to 6 months
imprisonment half of which was suspe nded for three years. In an appeal
by the Attorney General the sentence was set aside and a sentence of two
years imprisonment imposed, becaus e the accused had already served
three months of his sentence and had been released, the court suspended
one year and nine months of the sentence for three years subject to certain
conditions. This left an effectiv e sentence of the three months
imprisonment already served. Lewis JA delivering the judgment of the
court commented as follows in regard to the matter of the accused having
served his sentence and having been released:
‘However, if what I would re gard as the appropriate se ntence in the ordinary way
were substituted in the inst ant case, it would mean the respondent would have to be
re-arrested, after having served the sent ence imposed on him by the magistrate and
37
after being at liberty for si x weeks, and brought back to goal to serve a further nine
months imprisonment with all the consequent disruption of his lif e which that entails.
This Court has always been opposed to the making of any order which would result in
that situation. While, therefore as I have said, the appropriate sentence would have
been one of two years’ impr isonment with labour with half suspended, in the special
circumstances of this case it will be necessa ry to substitute a sentence with a longer
period suspended to take account of the fa ct that the respondent has already served
three months in gaol and has been duly released.’
(at 249 F-H)
[38] The following remarks of Marais JA in S v Roberts 2000 (2) SACR
522 (SCA) at 529 para [22] p 529 c-d are apposite. (The court was there
considering the question of an appr opriate period of imprisonment where
the state had appealed against a sentence imposed by a lower court):
‘[22] In answering that question [what leng th of imprisonment is appropriate] it
would be callous to leave out of account the mental a nguish which the respondent
must have endured pending the hearing of the appeal. For some three months after the
sentence had been imposed by the trial Court he was lulled into the belief that the law
had taken its course and, fortunate though he may have considered himself to be, he
was free to pick up the scattered threads of his life. That belief was shattered when the
Director of Public Prosecutions set in moti on an appeal against the sentence. He has
had to live in suspense since then. I c onsider that a signifi cant reduction of the
notional period of imprisonment that would have been appropriate at the date when he
was sentenced in May 1998 is warranted.’
38
In the instant case and as previously stated the accused was sentenced on
18 June 2002. It was only some three months later that the Director of
Public Prosecution set in motion an a pplication for leave to appeal. The
appeal was eventually heard by this court in May 2004. The accused as I
have previously stated has served a period of eight months imprisonment,
has paid R250 000,00 and has, it would seem, resumed a normal life.
Were the accused now to be re-arre sted and required to serve a lengthy
prison sentence this would to my mind be callous in the extreme. Equally
pertinent is the following statement of Rosenberg JA in the Canadian case
of The Queen v C.N.H. (Court of Appeal for Ontario 19 December 2002
paras [53] and [54]):
‘[53] Taking all of those factors into accoun t (principally the personal circumstances
of the respondent) it is my view that the objective gravity of the offence still required
that the respondent be sentenced to the penitentiary. In my view, an appropriate
sentence would have been three years imprisonment. The one-year sentence imposed
by the trial judge was manifestly inadequate.
[54] Notwithstanding the trial judge’s error, I would dismiss the Crown appeal. The
respondent has now served the custodial pa rt of his sentence and was released from
prison on October 28, 2002. This court is alwa ys hesitant to re turn a respondent to
prison.’
39
I stress again that in the case befo re this court there is a further
complicating factor. Th e accused has paid R 250 000,00 which has been
distributed and is probably irrecoverable.
[39] Having regard to all of the a bove circumstances justice would best
be served if a period of impr isonment were imposed which was
suspended so as to take into acc ount the period of imprisonment already
served by the accused and to leav e undisturbed the payment by him of
R250 000,00 and now distributed.
[40] In the result the following order is made:
40.1 The appeal agains t sentence succeeds.
40.2 The sentence imposed by the court a quo is set aside and replaced
with the following sentence:
(a) The accused is sentenced to 10 years imprisonment on the
charge of murder, 4 years imprisonment on the charge of
attempted murder and 1 years imprisonment on the charge of
assault with intent to do grievous bodily harm.
(b) All of the aforesaid sentences are to run concurrently.
(c) All of the sentences, save for eight months thereof, are
suspended for 5 years on cond ition that the accused is not
convicted of an offence committed during the period of
suspension in which violence is an element.
40
(d) The accused is ordered to make payment of the sum of
R250 000,00 as compensation in favour of the three children
of the deceased.
(e) It is recorded that the accused has already served the said period of
eight months imprisonment and that he has paid the said sum of
R250 000,00 as compensation in favour of the three children of the
deceased.
40.3 The cross appeal is dismissed.
40.4 The appeal against the sp ecial entry made by the court a quo is
dismissed.
---------------------------------------
R H ZULMAN
JUDGE OF APPEAL
PATEL AJA ) CONCUR
HEHER JA:
[41] I have read the judgment prepared by my brother Zulman. I agree
that the appeal against the convicti on must fail for the reasons which he
41
sets out, although I would wish to em phasise my perception of the crime
as set out in para [43] below. I am, regretfully, unable to find much
common ground between us in respect of the appeal against sentence.
[42] With considerable hesitation I am prepared to agree that
Shakenovsky AJ did apply his mind to the prescriptions of s 51 of the
Criminal Procedure Amendment Act 1997, and that he found substantial
and compelling circumstances to exist in relation to the convictions for
murder and attempted murder.
[43] The learned Judge carefully extr acted all facts and circumstances,
personal to the accused and related to the crimes, which could weigh in
his favour. These are referred to in the main judgment and it is
unnecessary to repeat them here. Th at the accused was apparently moved
by strong anger to behave as he did was regarded by the trial Judge as an
important mitigating factor. I accept (a s Lotz testified) that the deceased
twice called him a liar during the di scussion which preceded the shooting
and that he took grave offe nce. That too must be factored in. Against that
there is the description which Shak enovsky AJ applied to the accused as
having ‘cruelly and me rcilessly and without ju stification killed the
deceased’. The only reasonable inference to be drawn from the evidence
is that after the accused had disa bled and mortally wounded the unarmed
deceased by firing two shots into hi s body (assisted by an unidentified
third person who struck the deceased so hard over the head as to break a
42
sturdy piece of wood) and while the deceased, helpless, crouched or lay
under a table, the accused deliberately shot him in the back of the head.
That was an act of execution rather than the impulsive reaction of a man
beside himself with rage. In all th e circumstances I would have regarded
a sentence of 15 years imprisonment in respect of the conviction for
murder as the appropriate sentence. As that term is the equivalent of the
prescribed minimum sentence no ques tion of substantial and compelling
circumstances within the context of s 51(3)(a) would have arisen.
[44] As to the attempted murder of Lotz, the act of shooting at a fleeing
man, no threat being presented to th e accused by him or the deceased, in
such a manner as to furrow the top of his scalp, seems to me to amount to
recklessness of a high degree. Evalua ting once again all the factors for
and against the accused, I would have imposed 5 years imprisonment as
the fitting sentence. Here too, for th e same reason, an enquiry into the
presence of substantial and co mpelling circumstances would be
superfluous.
[45] The sentence imposed by the tria l court (which included sentence
for the assault with intent on Lotz ) manifests a startling and disturbing
divergence from the sentences I have identified as appropriate to the
circumstances of the case. I agree w ith Zulman JA that justice demands
our intervention.
43
[46] The case is complicat ed by what has occurred since the trial: the
accused paid R250 000 into the Guardi an’s Fund for the credit of the
minor children of the deceased in fulfilment of a condition of his sentence
which suspended one year of the five year sentence imposed by the trial
Court; he also served 8 months of the unsuspended portion of his
sentence before being released by the Commissioner in terms of s
276(1)(i).
[47] The period already served ca n be accommodated by including an
appropriate caveat in the order. The payment provides more difficulty.
Since some (and perhaps, by now, all) of the funds have been released for
the benefit of the deceased’s childre n, at least a part of the accused’s
performance is irreversible. The que stion is whether we are entitled to
take that into account at this st age for the purpose of reassessing the
sentence.
[48] In R v Verster 1952 (2) SA 231 (A) at 236A-C the Court held that
‘’n Uitspraak is reg of verkeerd volgens die feite wat ten tyde van die uitspraak
bestaan, nie volgens nuwe omstandighede wat later ontstaan nie. Indien sulke latere
omstandighede ‘n vonnis wat in ‘n strafs aak opgelê is, onuitvoerbaar maak, of die
uitvoering daarvan onwenslik maak, is dit ‘n saak vir voorlegging aan, en oorweging
deur, die uitvoerende gesag van die Staat-die Gevangenisr aad, of die Minister van
Justisie, of die Goewerneur-generaal; en ‘n appèl is nie die gepa ste manier om hierin
‘n remedie te soek nie.’
44
The Court accordingly refused to take account of a delay in the hearing of
an appeal as a reason for amending the sentence imposed at the trial.
[49] The principle enunciated in Verster’s case has been consistently
followed in this Court: see R v Hobson 1953 4 SA 464 (A) S v Revill
1974 (1) SA 743 (A); S v Sterrenberg 1980 (2) SA 888 (A); Thomson v S
[1997] 2 All SA 127 (SCA). In Attorney-General, Free State v
Ramokhosi 1999 (3) SA 588 (SCA) the Court r eaffirmed the principle ‘as
a general rule’. Holding that th e point argued did not bear on the
correctness of the judgment in the court a quo it treated the appeal before
it as a ‘special case’ and held that intervening circumstances including a
considerable delay in the hearing of the appeal, entitled it to consider
facts that had arisen since the rele ase of the respondent on bail for the
purpose of deciding whether the appeal would have any ‘practical effect
or result’.
[50] In S v Drummond 1979 (1) SA 564 (RAD) the Court held, in
relation to an appeal against sent ence that it was not precluded from
considering material evidence of wh at had transpired since the sentence
was passed. The Court said (at 569D-G):
‘An appeal Court for obvious reasons is most reluctant in deciding on sentence to take
into account facts that have only come into existence since the conclusion of the trial.
Generally speaking, it is for the executive in the exercise of the prerogative of mercy
to give effect to any such facts. Th e rule, however, is not inflexible. See S v
45
Watungwa 1976 (2) RLR 158 and S v Seedat 1977 (2) SA 686 (RA); 1977 (1) RLR
102. This Court will in exceptional circumst ances take into account facts which have
arisen since the trial. The fact that an appeal Court is at large on the question of
sentence for other reasons is not in its elf to be regarded as an exceptional
circumstance justifying the departure from the general rule. But the fact that it is at
large and must in any event reconsider the question of sentence will make it more
receptive of an argument that, in reconsider ing sentence, facts which have come into
existence since the trial should also be take n into account. Since this is the position of
this Court in this appeal, the matters whic h have arisen since the trial should in my
view be regarded as constituting “excepti onal circumstances” as envisaged in the
cases mentioned above. There is no compelli ng reason in the particular circumstances
of this case why this Court should pass res ponsibility for the ultimate decision to the
executive.’
[51] The Rhodesian approach undoubtedly provides a degree of
flexibility necessary in exceptional cas es to ensure that justice is done.
The present case is in my view exceptional. More particularly, the weight
to be attached to the payment is not a matter which can properly be left to
the executive. It is also required of this Court to determine whether the
payment is a matter bearing on th e existence of substantial and
compelling circumstances which may in consequence justify a departure
from the prescribed minimum se ntence. That too is beyond the
competence of the executive. The possibility of neither of these
distinguishing features can have b een present to the minds of the
members of the Court which decided Verster’s case. We are at large as to
46
the reassessment of sentence and jus tice requires that the said features be
weighed in doing so.
[52] The first question then is the weight which should accorded to the
payment. The learned Judge a quo matched R250 000,00 with the
suspension of one year of imprisonmen t. I think that was insufficient and
that three years would be more appropriate. That conclusion has the result
that the sentence of 15 years whic h I would otherwise have regard as
proper must be reduced in order to take account of the payment.
[53] That however can only be done if this Court is entitled to treat the
payment as a substantial and comp elling circumstance ie one which
renders the ultimate cumulative impact of the mitigating factors such as
to justify a departure from the prescribed minimum sentence: S v Malgas
2001 (1) SACR 469 (SCA) at 477g.
[54] I have no doubt that it has precise ly that effect. The result is that
the minimum sentence legislation is not applicable to the sentence which
I shall propose for the murder. I should add that I also consider it fair to
the accused to allow him a reduction for the inconvenience, aggravation,
disruption and anxiety caused by the necessity of being returned to prison
so long after he had been released in the Commissioner’s discretion.
[55] Taking the aforementioned factors into account I consider that the
sentence appropriate to the findi ng of substantial and compelling
circumstances is 10 years imprisonment in respect of the murder count.
47
[56] Of course, the circumstances su ch as those in point here cannot
again be regarded as substantial and compelling when an accused person
convicted of several crimes has once received the benefit of them. There
being no other such circumstances ava ilable to be taken into account in
respect of the conviction for attemp ted murder, the minimum sentence of
5 years imprisonment must stand.
[57] The assault with intent to co mmit grievous bodily harm consisted
of a vicious blow to the face of a defenceless man, close enough to the
eye to be dangerous, with a firear m, causing a wound which bled freely.
That assault took place at a time wh en such anger as may earlier have
influenced the accused must largely have abated. In my view the proper
sentence would be 6 months imprisonment.
[58] Zulman JA finds that, in the ci rcumstances of this case, an order
having the effect of returning the accused to prison would be callous. I
cannot agree. No doubt such an order is made with reluctance and only
with due regard to the proper demands of justice. When the crime is of
such a, relatively-speaking, non-seri ous nature that such additional
imprisonment as is imposed may be suspended without evoking a feeling
of disquiet, the accused should receive the benefit of what is, in effect, a
valid alternative sentence. However, the present case does not fall into
that category. The sentence impos ed by the trial court took no proper
account of the law and I do not regard it as in the public interest (which is
48
that sentences properly imposed shoul d be served out according to law)
that the accused should be allowed to snatch at the bargain which the
mistake of the trial court offered hi m. Even the portion of the sentence
which he did serve was founded on the misapprehension of that court that
the minimum sentence legislation did not apply to him. There is a
substantial discrepancy between the sentence im posed by the trial court
and that which I consider appropriate . The increased sentence serves a
valid penal purpose and ought therefore to be given proper effect.
[59] No particular circumstances which bear upon or derive from the
delay between the passing of the original sentence and the hearing of this
appeal have been drawn to our a ttention. The delay has been purely
systemic and certainly not undue. Th e State had every right to appeal
against the sentence. It did so timeously. (Although the State’s
application was only heard in Se ptember 2002, its notice had been
prepared and served within two weeks of the judgment.) It too is entitled
to fair treatment.
[60] I would order that the three se ntences run concurrently. (Only the
good fortune that Lotz suffered no seri ous injury persuades me that the
accused should receive this indulgence in relation to count 2.) In my view
this Court should make the following order:
1. The appeal of the State against sentence is upheld.
49
2. The sentence imposed by the tr ial Court is set aside and
replaced by the following sentences:
Count 1 (Attempted murder) – 5 years imprisonment;
Count 2 (Murder) – 10 years imprisonment;
Count 3 (Assault with intent to commit grievous
bodily harm) – 6 months imprisonment.
3. The sentences are to run concurre ntly. It is recorded that the
accused has already served 8 months in prison.
4. The appeal by the accused is dismissed.
J A HEHER
JUDGE OF APPEAL