THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 718/2022
In the matter between:
PIETER CORNELIUS DE KLERK APPELLANT
and
THE STATE RESPONDENT
Neutral Citation: De Klerk v The State (718/2022) [2023 ] ZASCA 172
(05 December 2023)
Coram: CARELSE, MOTHLE and HUGHES JJA
Heard: No oral hearing in terms of s 19 (a) of the Superior Courts Act 10 of
2013
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail, publication on the Supreme Court of Appeal
website and released to SAFLII. The dat e and time for hand -down is deemed to be
05 December 2023 at 11h00.
Summary: Criminal law and procedure – appeal – appeal to the Supreme Court of
Appeal against the refusal of a pet ition in the high court seeking leave to appeal
against conviction and sentence imposed by a regional court – whether the State’s
version of the events was to be preferred over the appellant’s version – if so ,
whether there was intent or negligence on the part of the accused – whether a
sentence of 15 years imprisonment is appropriate – reasonable prospects of success
on appeal.
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ORDER
On appeal from: Gauteng Local Division of the High Court, Johannesburg (Monama
J and Mhango AJ, on petition for leave to appeal from the Regional Court, Boksburg
in Gauteng):
1 The appeal succeeds.
2 The order of the high court to the extent that it refused leave to appeal is set
aside and substituted by the following:
‘The application for leave to appeal the conviction and sentence imposed on
the applicant succeeds and the applican t is granted leave to appeal agains t
conviction and sentence to the Gauteng Division of the High Court,
Johannesburg.’
JUDGMENT
Mothle JA (Carelse and Hughes JJA concurring):
[1] On 14 October 2019, the appellant, Mr Pieter Cornelius de Klerk (Mr de Klerk), was
arraigned on one count of murder, and in terms of s 51(2) read with Part II to Schedule 2 of
the Criminal Law Amendment Act 105 of 1997, in the Regional Court, Boksburg (the regional
court). On 16 March 2020, t he regional court convicted Mr de Klerk on one count of
murder with direct intent, and on 2 J une 2020, sentenced him to 15 years’
imprisonment. The regional court refused to grant him leave to appeal. Mr de Klerk
lodged a petition to the Gauteng Local Division of the High Court, Johannesburg (the
high court), for leave to appeal both the conviction and sentence. The high court also
declined to grant him leave to appeal. He turned to this Court with a petit ion for
special leave to appeal, which was granted against both conviction and sentence on
22 June 2022.
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[2] Mr de Klerk and the Director of Public P rosecution, Gauteng Local Division,
Johannesburg agreed, to mitigate the costs of litigation, that the appeal in this Court
should be adjudicated in terms of s 19(a) of the Superior Courts Act 10 of 2013. The
parties dispensed with the court appearance for oral argument.
[3] This Court has developed the approach to be taken in the adjudication of an
appeal as in this case. In S v Matshona1 it was held that ‘…where, as is the case here,
an accused obtains leave to appeal to this court against the refusal in a high court of a
petition seeking leave to appeal against a conviction or sentence in a regional court, the
issue before th is court is whether leave to appeal s hould have been granted by the
high court, and not the appeal itself …’2 ‘Not only does this court lack the authorit y to
determine the merits of the appellant’s appeal [against his sentence] at this stage, but there
are sound policy reasons why the court should refuse to do so, even if it could’3…‘The test in
that regard is simply whether there is a reasonable prosp ect of succ ess in the env isaged
appeal…rather than whether the appeal…ought to succeed or not’.4
[4] Therefore, in considering this matter, the Court cannot determine the merits of
the appeal , but should confine itself to the question whether there are reasonable
prospects of success in the envisage d appeal against both conviction and sentence.
The background facts are largely common cause. O n the afternoon of
27 December 2018 at about 18h00, at Reiger Park, Boksburg, Gauteng, along Forel
and Johnny Arends S treets, a fig ht broke out between Mr Wendell Pietersen (the
deceased) and his friends, Mr Darryl Dwan van Greunen (Darryl), Mr Theodore
Hoffman (Theo) and Mr Ethan Johnson ( Ethan), over money. The deceased threw
stones at Darryl and Theo . This incident occurred on Forel Street, with houses on
both sides and some motor vehicles park ed on the side of the street , in front of the
houses. There were also members of the public present on the street.
1 S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA); 2013 (2) SACR 126 (SCA) paras 5 to 7.
See also Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA); Radebe and Another v S [2013]
ZASCA 31; 2013 (2) SACR 165 (SCA) and Vumani Oscar Ntuli v S [2023] ZASCA 150
(10 November 2023).
2 Ibid para 5.
3 Ibid para 6.
4 Ibid para 8.
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[5] Mr de Klerk testified that he had just arrived from work and was seated on one
of the be nches, next to Mrs Russon, his neighbour from across the street ,
Mr Russon and Uncle Cyril were seated on another bench opposite Mr de Klerk. The
deceased threw a stone which went over their heads. The stone was seemingly
aimed at Darryl and Theo, who at that time were using the fence next to Mr Russon’s
gate as cover. The deceased threw a second stone which hit Mr Russon’s gate in
what the witn esses described as a hard and loud impact , which startled the people
on the benches. Darryl and Theo chased the de ceased in the direction of his home
but returned midway. The deceased also returned, armed with a half -brick.
Mr Russon approached the two men who were returning in order to reprimand them
from throwing stones in a public area. Mr de K lerk crossed the street towards his
house and saw the deceased returning . He stood an d faced the deceased to stop
him.
[6] Mr de Klerk further testified that as the d eceased approached him , he (the
deceased) said to him ‘get out my way’. Mr de Klerk stood in his path and refused to
move aside. He intended to stop the deceased from throwing further stones. The
deceased, who had a half -brick in his right hand, took a swing with the right hand
and Mr de Klerk ducked by bending down . The swing missed him and as he stood
up, he produced his firearm from the holster on his hip, with a view to scar ing the
deceased. The deceased, who was already near him, dropped the half-brick and
grabbed the firearm by the barrel, and they scuffled for control of the firearm . It was
during that scuffle that Mr de Klerk’s forefinger accidentally slipped into the trigger
guard and pulled the trigger. A shot went off, the projectile hit the deceased in the
chest. The deceased clutched at his chest, turned, and started running towards his
home, calling for help. He ran for a short distance when he fell to the ground. Mr de
Klerk drove to the police station to report that he had just shot the deceas ed. When
he came back with the police, the deceased’s body was surrounded by onlookers.
[7] In regard to sentence, the regional court heard evidence of Mr de Klerk’s
personal circumstances, when he testified in support of his applicatio n for bail
pending sentencing. In addition, t he regional court had the correctional supervision
report and the pre -sentencing report authored by Ms Anna Elizabeth Cellier, who
also testified in mitigation of sentence as an expert. The evidence from the witnesses
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and reports con firmed that Mr de Klerk was 43 years of age, a first offender, and
single. He had a daughter aged 22, a son aged 16 and a one-year-old grandchild. At
the time of sentencing, Mr de Klerk had been in custody and consequently lost his
employment. His dependants were therefore deprived of the benefit of his
employment. His children depended on him. Of concern is that he had to leave his
residence on Forel Street and stay somewhere else as a condition of his bail ,
imposed by the magistrate. As a result, hereof, he had to rent his house out and
move to another area. In addition to these mitigating factors, the circumstance of the
crime involved an active participation by the deceased. These factors were either
ignored or not accorded sufficient weight by the regional court.
[8] The regional court concluded, on this evidence, that Mr de Klerk was guilty of
murder, committed with direct intent , without specifically indicating the evidence on
which it relies . This was a misdirection. As regards sentence, the regional court
found that there were no substantial and compelling circumstances, justifying a
departure from the prescribed minimum sentence of 15 years, which it imposed. The
defence in this appeal contends that there is no evidence, alternatively sufficient
evidence, to suppor t a finding that Mr de Klerk’s conduct manifested a direct
intention to kill the deceased. It submits that at best for the State , the offence is
culpable homicide.
[9] It is evident that the very circumstances of the case point to the deceased as
an active participant as opposed to an innocent bystander , a fact which, together
with the evidence tendered in mi tigation, renders the sentence of 15 years’
imprisonment harsh and disproportionate to the crime. Having regard to the
circumstances under which the shooting incident occurred, I am of the view that the
high court erred in not granting leave to appeal, as there exist reasonable prospects
that a court of appeal would i nterfere with the conviction and sentence imposed on
Mr de Klerk. The appeal must therefore succeed , and the decision of the high court
should be set aside and substitut ed with one granting Mr de Klerk leave to appeal to
the high court.
[10] It will be remiss of me if I were to conclude without commenting on how the
trial was conducted. It is evident from reading the trial record that the magistrate
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comes across as being overbe aring o n the witnesses, having repeatedly
admonished and rebuked them for answering the questions without his permission to
do so. This prompted one of the state witnesses to say that he was scared . In
addition, the magistrate kept Mr de Klerk standing for long h ours as he rea d his
judgment. He insisted that Mr de Klerk should remain standing. As a result , Mr de
Klerk’s long-standing injured ankle became swollen. Further, the magistrate did not
refrain from entering the fray when he subjected Mr de Klerk, and his witness in
mitigation of sentence, to a line of questioning which was lengthy and went beyond
just clarifying issues. The transcript is also replete with instances where the
witnesses had to repeat their answers, often regarding questions or answ ers that
were misinterpreted. It is not surprising that during the lengthy cross-examination of
Mr de Klerk , the magistrate warned him of mislea ding the court with one of his
answers. This prompted Mr de Klerk’s attorney to object and apply for the
magistrate’s ‘withdrawal’5. Proceedings in a courtroom should not be conducted in
an atmosphere where participants are terrified of the presiding officer and are not at
ease to testify on what they witnessed.
[11] In the result, I make the following order:
1 The appeal succeeds.
2 The order of the high court to the extent that it refused leave to appeal is set
aside and substituted by the following:
‘The application for leave to appeal the conviction and sentence imposed on
the applicant succeeds and the applicant is granted leave to appeal against
conviction and sentence to the Gauteng Division of the High Court,
Johannesburg’.
_____________________
SP MOTHLE
JUDGE OF APPEAL
5 It is clear from the transcript that in fact, he meant ‘recusal.’
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Appearances
For the appellant: F Roets
Instructed by: Lawley Shein Attorneys, Johannesburg
Symington De Kok Attorneys, Bloemfontein
For the respondent: M M Rampyapedi
Instructed by: Director of Public Prosecutions, Johannesburg