REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case Number : 318 / 03
In the matter between
RIAAN BOTHA Appellant
and
THE STATE Respondent
Coram : HARMS, NUGENT JJA and PONNAN AJA
Date of hearing : 14 MAY 2004
Date of delivery : 28 MAY 2004
SUMMARY
Sentence – role of assessors in
alleged irregularity – should be raised by means of a special entry
recommendation by judicial officer on parole – undesirable practice.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN AJA
2
PONNAN AJA
[1] During the course of the af ternoon of 24 March 2001 the appellant
was joined, at his invitation, by ten others at his mother's farm
Inderheken at Dendron near Pi etersburg (now Polokwane). The
appellant's guests, who were all mem bers of a rugby club, of which he
was the first team captain, were at the farm for t he stated purpose of
participating in a team building exercise.
[2] Inderheken is a game farm stocked with a vari ety of herbivores for
the purposes of commercial hunting. That afternoon and evening passed
uneventfully. The next morning t he group set out in the appellant's
bakkie on a game viewing excursion. During the trip, alcohol was
consumed by members of the group, w ho were jovial and in high spirits.
At the ready were four fi rearms intended to be ut ilised by them in bird
hunting.
[3] At approximately 6am that very morning Alex Motlokwana, his
cousin Melford Motlokwana and thei r friend Pitsi Tshepo Matloga (the
deceased) set out from their ho mes in Ga-Mokgeh le Trust, Dendron.
The express purpose of th eir expedition was to hunt small game on
neighbouring farms. As an aid to ac hieving their objective, they were
3
accompanied by a pack of ten dogs. During the course of the morning
they made their way onto the farm Inderheken.
[4] At approximately 11am, according to Alex Motlokwana, their
venture still not having met with any success, they made their way to the
boundary of the farm and were about to pass through a fence when they
noticed a vehicle and a group of men. The retort of a firearm caused
him to quickly dash back into t he bushes, his companions and dogs
following closely on his heels.
[5] After the shooting had commenc ed Melford inched forward on his
belly until he reached relative safety before fleeing on foot. Alex was
less fortunate. After a shot had stru ck the ground in fron t of him, he got
up and ran towards the fence. Wh ilst fleeing, he was struck and
sustained gun-shot wounds. He fell to the ground and sought cover in
the undergrowth where he remained until the next morning.
[6] An explanation for the initial shooti ng is to be found in the evidence
of the appellant. According to the appellant, as the bakkie made its way
around the farm, they came upon some of the dogs belonging to the
Motlokwane cousins and the deceas ed. The appellant's response was
swift and decisive. Not having ob served any people in the company of
4
the dogs and recognising that they were unlawfully on the farm he fired
shots in their general direction.
[7] As he approached the area whe re the dogs were spotted, so
testified the appellant, he was suddenly startled when the deceased
emerged from the brush which wa s knee-high. The deceased was
immediately overpowered and subdued by the appellant.
[8] Despite the appellant's protestation s to the contrary , the trial court
found that immediately after havi ng been subdued, the deceased was
already gravely injured. S upport for that conclusion is to be found in the
evidence of various witnesses that the deceased had to be carried from
the point where he had been apprehended to the appellant's bakkie.
[9] At some stage after he had been placed on the vehicle and whilst
it was stationary, the decease d was observed lying on the ground
alongside the bakkie. Precisely what caused him to fa ll to the ground
was far from clear. What was clear, however, is that once again he had
to be carried onto the bakkie. It wa s not in dispute that the deceased
evidenced swelling around his eyes and bleeding from his nose.
Various witnesses, it must be added, testified to his moaning and
groaning and his arms and legs twitchin g at different st ages of that
journey. Thereafter the bakkie, with an obviously injured individual as its
5
cargo, was driven to different points on the farm, ostensibly in search of
more dogs. There was some dispute as to whether or not he was
conscious and did in fact respo nd coherently when questioned by the
appellant.
[10] Eventually the deceased was d ragged by the appellant into the
veld where he was abandoned. The group, first having been urged by
the appellant to secrecy, ret urned to the farmhouse to braai and
consume more alcohol.
[11] Given that they were poaching unl awfully on the farm, it is not
surprising that Melford did not imm ediately raise the alarm. The next
morning Alex made his way to a ne ighbouring farm, where he solicited
assistance. The police were summ oned and medical assistance was
secured prior to his making a statement to the police. In consequence of
information furnished by him, the police visited Melford at his school.
[12] Shortly after midday, Insp ector Ramothwala of the SAPS
(Dendron) visited the farm Inderheken in the company of Inspector
Matsaung where he discovered the body of the deceased as also the
remains of five dogs. Inspector Ra mothwala summoned detectives from
the murder and robbery un it and handed the crime scene over to them.
Later that day he learnt that the body of the deceased had disappeared.
6
[13] At approximately 9pm that evenin g, Inspector Sauer of the murder
and robbery unit interviewed the appellant. He observed what appeared
to him to be blood spots on the clot hes of the appellant. The appellant
was arrested and various exhibits, incl uding his vehicles, clothes and
firearms were seized. In due cours e the other accused were also
arrested.
[14] The day following upon the arrest of the appellant a search for the
body of the deceased commenced at th e Arabie Dam, which is located
some 130 km away from Pietersburg. The body of the deceased was
found on 2 April 2001 after an intensive search by police divers. Affixed
to the body, which was wrapped in a black plastic sheet, was a metal
pipe weighing 17.4 kg.
[15] The cause of death according to Dr Bhootra, the pathologist who
conducted the post mortem examinat ion on the deceased, was blunt
force trauma to the head. He reco rded that there was bruising all over
the deceased's head except for his right temple, with an associated
sutural fracture of the skull. He al so observed bruising on the upper part
of the anterior chest wall of the dec eased as well as closed fractures of
the third to sixth right ribs and the fourth to sixth left ribs.
7
[16] The appellant and eight others were indicted in the Pretoria High
Court before Ngoepe JP (sitting wi th assessors) on a count of murder,
two counts of attempted murder, o ne count of malicious injury to
property and one count of defeating and/or obstr ucting the course of
justice.
[17] At the commencement of the tr ial, charges were withdrawn against
four of the nine accused. After a protracted trial, the appellant was
convicted of murder and an attemp t to defeat the ends of justice. On the
attempt to defeat the ends of justic e, the appellant was sentenced to a
term of imprisonment for a period of 4 years, which was ordered to run
concurrently with the 18 years’ im prisonment imposed for the murder.
The effective sentence was thus a t erm of imprisonment for a period of
18 years. In arriving at that conc lusion, the learned tr ial judge stated:
"In the light of all of the aforegoi ng the court unanimously imposes the
following sentences on the accused". [Emphasis added]
[18] It is the reference by the learned judge to una nimity that has led to
the present appeal. The appellant contends that th e reference shows
that the sentence was not t he product of the learned judge’s
independent discretion but was the produ ct of a discretion exercised by
the judge acting in concert with the two assessors. That, so it was
submitted, constituted an irregularity that vitiated th e sentence, and we
8
ought to set aside the sentence and consider t he question of sentence
anew.
[19] The court a quo granted leave to appeal to this court but only on
that limited ground. The material port ion of the order made by that court
reads as follows:
‘Applicants … are granted leav e to appeal against sentence, but
only on the ground set out in paragr aph 3 of accused 1’s notice of
application for leave to appeal … and not on any other grounds.’ (That
paragraph raised the issue of the alleged irregularity to which
I have referred.)
An application to this court to broad en the appeal insofar as it related to
sentence was unsuccessful an d that decision is final ( S v Fourie 2001
(2) SACR 118 (SCA); S v Maputle 2003 (2) SACR 15 (SCA)). Thus the
only questions before us are whet her the sentence was imposed
irregularly and if so what consequences that has.
[20] It is trite that an assessor' s function does not extend beyond
verdict. (See s 145 (2) of the Cr iminal Procedure Act 51 of 1977; S v
Sparks and another 1972 (3) SA 396 (A) at 404 F.) It is not competent
for an assessor to the reafter participate in t he decision as to what
punishment should be imposed. Accordingly, the question of sentence is
one for the judge alone a nd not the assessors. (See S v Legoa 2003 (1)
SACR 13 par 16.) It is not irregular, howe ver, for a trial judge to consult
9
with the assessors on the question of an appropriate s entence, but the
sentence must remain that of the judge alone. (See S v Lekaota 1978
(4) SA 684 (A).) Where, however, a judge and the assessors hold
disparate views on sentence, it w ould be impermissible for the judge to
succumb to the will of the assessors in the belief t hat they constitute the
majority of the court.
[21] After conviction, evidence was led in regard to sentence. The
assessors were not asked to retire after verdict; nor is this done in
practice. Indeed, one's experience is that it is usual for a judge to
discuss the sentence with his assessors. (See S v Sparks at 403G;
Smit and Isakow ‘Assessors and Criminal Justice’ [1985] SAJHR 218.) It
follows that a judge may take their advice into account in determining an
appropriate sentence. Re cording, thereafter, t hat there was unanimity
between the judge and the assessors is but a logical extension of that
process.
[22] In giving his reasons for grant ing leave to appeal the learned judge
accepted that the use of the word ‘u nanimous’ lent itself to two possible
constructions and granted leave to appeal on those grounds. The
question, however, was not what the word might convey, but rather what
happened in fact, and it was incu mbent upon the learned judge to
disclose that. The problem might not have arisen, however, had the
10
appellant’s complaint been raised by a special entry as envisaged in s
317. Section 317, which is aimed at ensuring a fair trial, provides that
the special entry should state 'in what respect the proceedings are
alleged to be irregular or not according to law' and t hat 'the terms of the
special entry shall be settled by th e court which or the judge who grants
the application'. Although the fact s were well within the cognisance of
the judge, his approach was to assume that it is the duty of this Court to
decide factually what had happened wi thout any help from him. The
facts on which an accused relies a nd which he alleges constitute an
irregularity must be determined by the court which or the judge who
makes the special entry. ( R v Matsego and Others 1956 (3) SA 411 at
415 A.)
[23] Ultimately though, whilst there are other pointers in that direction,
the clearest indication of the absence of any irregul arity is to be found in
the following remarks in the judgment on leave to appeal: 'An irregularity
is not something to be lightly inferred and I don't think it should be in this
case. While I am quite convinced that no irregularity has occurred, given
the fact that this could turn arou nd the interpretati on of words in my
judgment the question is: is there a reasonable prospect that the appeal
court in reading the sentence might find that the word "unanimous"
11
implies a lot more things, a lot m ore or perhaps implies some of the
things contended for by the applicants'.
[24] In my view, the appellant has fa iled to establish that there was any
irregularity in the proceedings. Th e proposition that the wrong forum
sentenced the appellant inasmuch as the court was improperly
constituted at that time, resulting in an irregularity per se, is untenable. In
the ultimate analysis it has not bee n shown that the trial judge failed,
himself, to impose the sentence.
[25] One final aspect merits ment ion. The trial judge recommended
that the appellant serve at least tw o thirds of his sentence before being
considered for parole. The function of a sentencing court is to determine
the term of imprisonment that a p erson, who has been convicted of an
offence, should serve. A court has no control over the minimum period
of the sentence that ought to be served by such a person. A
recommendation of the kind en countered here is an undesirable
incursion into the domain of another arm of State, which is bound to
cause tension between the judiciary and the executive. Courts are not
entitled to prescribe to the execut ive branch of government how long a
convicted person should be detained, thereby usurping the function of
the executive. (See S v Mhlakaza 1997 (1) SACR 515 at 521 (f)-(i))
12
[26] Albeit, just a recommendation, its persuasive force is not to be
underestimated. It, no doubt, was intend ed to be acted upon. In making
the recommendation which he did, t he trial court may have imposed, by
a different route, a punishment whic h in truth and in fact was more
severe than originally intended. Such a practice is not only undesirable
but also unfair to both an accu sed person as well as the correctional
services authorities.
[27] In the result, for the reasons given, the appeal must fail and it is
accordingly dismissed. The Registra r has been instruct ed to forward a
copy of this judgment to the Departme nt of Correctional Services with a
request that the remarks in paragraph 26 be taken a ccount of in relation
to the present case.
V M PONNAN AJA
ACTING JUDGE OF APPEAL
CONCURRING:
HARMS JA
NUGENT JA