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[2019] ZASCA 182
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Oosthuizen and Another v S (180/2018) [2019] ZASCA 182; 2020 (1) SACR 561 (SCA) (2 December 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 180/2018
In
the matter between:
WILLEM
JAKOBUS ALBERTUS OOSTHUIZEN FIRST
APPELLANT
THEO
MARTINUS
JACKSON SECOND
APPELLANT
and
THE
STATE RESPONDENT
Neutral citation:
Oosthuizen & another v The State
(180/2018) [2019]
ZASCA 182 (02 December 2019)
Coram:
Van der Merwe, Plasket and Mbatha JJA and Tsoka and Dolamo AJJA
Heard:
11 November 2019
Delivered:
02 December 2019
Summary:
Criminal Procedure – whether State proved beyond reasonable
doubt offences committed – on the version of the appellants
guilt was established – assault with intent to do grievous
bodily harm may be committed by threat. Sentence – sentences
reconsidered – conviction and sentence accordingly amended.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria,
functioning as Mpumalanga Division, Middelburg (Mphahlele J sitting
as court of first
instance):
1 The appeal
succeeds.
2 The order of the
court a quo is set aside and replaced with the following order:
‘
(a)
Both accused are found guilty of the offences of assault with intent
to do grievous bodily harm (count 5) and of kidnapping
(count 4).
(b)
Accused 2 is found guilty of defeating the ends of justice (count 7).
(c)
The accused are each sentenced to five years imprisonment on the
conviction of assault with intent to do grievous bodily harm
(count
5).
(d)
The accused are each sentenced to 1 year imprisonment on the
conviction of kidnapping (count 4).
(e)
Accused 2 is sentenced to 1 year imprisonment on the conviction of
defeating the ends of justice (count 7).
(f)
It is ordered that the sentence in respect of count 4 is to run
concurrently with the sentence imposed on (count 5).
(g)
It is ordered that the sentence in respect of count 7 is to run
concurrently with the sentence imposed in count 5.
(h) The sentences
are antedated to 25 August 2017.’
JUDGMENT
Mbatha
JA (
Van der Merwe and Plasket JJA and Tsoka and Dolamo AJJA
concurring
):
[1]
On 8 November 2016, South Africa woke up to the headline news of The
Sun, a tabloid newspaper, ‘Burn in the coffin!’.
A video
recording of the incident went viral on various social media
platforms. These events set the wheels of justice in motion.
The
appellants, Willem Jakobus Albertus Oosthuizen (Oosthuizen) and Theo
Martinus Jackson (Jackson), were subsequently arrested
and appeared
before the Gauteng Division of the High Court, Pretoria, sitting in
Middelburg. They appeared on charges of unlawful
possession of a
firearm in contravention of the provisions of the
Firearms Control
Act 60 of 2000
read with the provisions of the
Criminal Law Amendment
Act 105 of 1997
, two counts of assault with intent to do grievous
bodily harm, kidnapping, attempted murder, intimidation and defeating
the ends
of justice.
[2]
The appellants tendered pleas of not guilty to all the charges but
made a number of significant admissions as part of their
plea
explanations. They were convicted of all the charges except that
Oosthuizen, who was charged with the unlawful possession
of a
firearm, was acquitted in respect of that charge. The appellants were
sentenced as follows: on counts 2 and 3, both being
assault with
intent to do grievous bodily harm, they were sentenced to three
years’ imprisonment in respect of each count;
on count 4,
kidnapping, they were sentenced to five years’ imprisonment; on
count 5, attempted murder, they were sentenced
to seven years’
imprisonment; on count 6, intimidation, they were sentenced to six
years’ imprisonment; and accused
2, who also faced the charge
of defeating the ends of justice (count 7) was sentenced to three
years’ imprisonment.
[3]
The court ordered that the sentences imposed in respect of count 3
were to run concurrently with the sentences imposed on count
6 and
the sentences imposed on count 4 were ordered to run concurrently
with the sentences imposed on count 5. The court sentenced
Oosthuizen
to a total of 16 years' imprisonment, of which five years were
suspended for a period of five years on condition that
he was not
found guilty of any of the offences that he was convicted of during
the period of suspension. He was effectively sentenced
to 11 years’
imprisonment. Jackson was sentenced to a total of 19 years’
imprisonment, of which five years were suspended
for a period of five
years on condition that he was not found guilty of any of the
offences that he was convicted of during the
period of suspension. He
was effectively sentenced to 14 years’ imprisonment.
[4]
The appellants sought leave to appeal against their convictions and
sentences from the trial court, which application was dismissed
on 27
October 2017. The appellants subsequently petitioned this court for
leave to appeal against their convictions and sentences.
With leave
granted by this Court on 2 February 2018, the appeal against
convictions and sentences are before us.
[5]
It is necessary that I should give a short summary of the evidence.
The first complainant, Delton Sithole, (Sithole) testified
that on 17
August 2016 as he walked along a footpath from Kamfefe to Big House
Squatter Camp, he was confronted by Oosthuizen.
Oosthuizen, who was
in a motor vehicle, enquired from him as to what he was doing there.
Sithole responded by stating that he was
walking on the footpath used
by all other people in the area. He testified that Oosthuizen, who
was confrontational, got out of
the motor vehicle and grabbed him by
the wrist. Sithole managed to free himself from Oosthuizen’s
grip, who in a racially
derogatory term said that he did not want
Sithole on the farm. Thereafter, Oosthuizen proceeded to his motor
vehicle and produced
a firearm, whereupon Sithole fled, crossed the
railway line, hoping that Oosthuizen would not be able to reach him.
[6]
However, as he crossed the railway line, Jackson approached from the
opposite direction in a motor vehicle, stopped him in his
tracks so
that he could not escape. Jackson, who was aggressive, ordered him to
get on the back of his bakkie. He was driven to
Danie Lee’s
house where they met Oosthuizen. He testified that both Oosthuizen
and Jackson got onto the back of the bakkie
and kicked him all over
the body with booted feet. He testified that he was saved by the
remark of one of the appellants who used
a racially derogatory word,
when he announced the presence of a black person, as a result they
stopped assaulting him and proceeded
to apprehend that person, who
was brought to where Sithole was. This person, he said, was someone
known to him, namely, Victor
Rethabile Mlotshwa, the second
complainant in this matter. Sithole was then set free and he
proceeded to Big House Squatter Camp.
[7]
Mlotshwa, the second complainant, testified that on the morning of
17 August 2016, he used a footpath through the mealie-fields
to
get to the main road on his way to purchase goods for his mother in
town. Upon reaching the main road, a motor vehicle approached
on the
R25 road from Bethal to Middelburg. This motor vehicle drove straight
towards him. He realised that the occupant, Jackson,
was in a foul
mood. He decided to run back towards the direction of Big House
Squatter Camp. As he fled from Jackson, a second
vehicle approached
from the direction that he was proceeding to. He ended up being
sandwiched between the two motor vehicles, and
was unable to escape
from the two men. Jackson and Oosthuizen alighted from their motor
vehicles and approached him. Without uttering
a word Jackson hit him
with a clenched fist, whereupon he fell down. Whilst on the ground he
was kicked with booted feet and struck
with clenched fists by the two
appellants. He tried to get up, but was unable to do so. At one stage
he noticed the presence of
another person in one of the motor
vehicles. Thereafter, he was instructed to get into Oosthuizen’s
motor vehicle. He resisted,
but was assaulted, hauled into the said
motor vehicle, and was forced down onto the back of the bakkie.
Jackson brought cable ties,
which were used to tie his hands to the
motor vehicle. He tried to resist but the assault continued and
finally he was secured
to the motor vehicle. As the motor vehicles
drove off he realised that the person he had a glimpse of was no
longer there.
[8]
Mlotshwa testified that he had no idea where he was being taken to.
He was in the vehicle driven by Oosthuizen which was followed
behind
by Jackson’s motor vehicle. Both vehicles drove past the place
where he had been standing before being confronted
by Jackson. They
proceeded towards Middelburg. At the railway line they turned towards
Hendrina and finally turned to the left
onto the farm where the ditch
was located. He observed that Jackson did not turn towards the ditch
but drove past the turn-off
to the ditch. Shortly, thereafter Jackson
arrived. He was untied and ordered to alight from the motor vehicle.
Jackson unloaded
a coffin from the motor vehicle which he placed in
the ditch. Mlotshwa testified that when he saw the coffin he was so
shocked
that he could not follow the conversation between the two
appellants.
[9]
Jackson opened the coffin and warned him that should he try to escape
he was going to be shot. He observed that Oosthuizen had
a firearm on
his waist. Jackson instructed him to get into the coffin but he
refused. This led to a further assault on him by the
two appellants
with clenched fists and open hands all over his body. Jackson fetched
a knobkierie from his motor vehicle which
he used to hit him all over
the body, mostly on his back. He finally relented, got into the
coffin but tried to keep his upper
body outside the coffin.
Oosthuizen forced him inside the coffin by kicking and pressing his
body with booted feet, forcing his
entire body in the coffin. He
tried to keep his hands out of the coffin and begged them to let him
go. He heard one of them saying
that petrol must be poured onto the
coffin. At that stage he was in severe pain and trembling from shock
so he pleaded with the
appellants to spare his life. Instead, he was
asked whether he wanted to die a slow or fast death. At that stage he
noticed that
Oosthuizen had a canister of petrol with him. The two
men had also threatened to put a snake inside the coffin. After some
time,
when he tried to lift himself up from the coffin he realised
that no one was pressing the lid down on him, he rolled out of the
coffin, and fled the place. As he ran away, he was threatened not to
report the incident to the police, as the appellants would
trace him
to his house. He reached his home still in a traumatised state.
[10]
Ms Lonia Mlotshwa, the mother of Mr Mlotshwa, testified that she had
sent his son to buy stock for the tuck-shop, but he returned
after
lunch in a terrible state of shock, eyes red, face bruised and dirty
all over as if he had rolled himself on the ground.
It was only after
Mlotshwa took a nap after taking pain killers, that he related to her
what had befallen him that morning. Dr
Ngoepe, who examined Mlotshwa
in November 2016 testified that she found two linear healed scars of
about six centimetres in length
on the chest and a round scar on the
left thigh. Mlotshwa also informed her that he was swollen shortly
after the assault.
[11]
Two video recordings made by the appellants at the ditch were
introduced into evidence by the prosecution. The videos depicted
Mlotshwa being forcefully pushed with booted feet into the coffin and
the lid being pressed heavily on his head. Though the recordings
were
short, Mlotshwa was seen crying and pleading for his life with two
hands folded together. It was not clear who of the two
appellants was
forcing him into the coffin. One of the appellants was heard asking
how he wanted to die, whether by being burnt
with petrol or a snake
being placed in the coffin. Next to the coffin lay the knobkierie.
Before the commencement of proceedings,
the trial court had conducted
an inspection
in loco
of various places where the incidents
were alleged to have taken place. It recorded that the ditch was in a
secluded place and
that it was wide and deep.
[12]
The appellants’ version was that they never assaulted nor
encountered the first complainant. With regard to Mlotshwa,
their
evidence was that they did not intend to kill Mlotshwa at the ditch,
their intention was to threaten him. They denied assaulting
Mlotshwa
in any way before he was forced into the coffin and denied that
Mlotshwa sustained any serious injuries. The appellants
averred that
Mlotshwa was in possession of a bag containing copper cables, that he
was apprehended with the intention to take him
to the police and that
he begged to be disciplined by them rather than being taken to the
police. When they insisted that they
were going to take Mlotshwa to
the police, he threatened to kill their families and burn their
crops. This made the appellants
take him to the ditch and place him
in the coffin. They wished to instil fear in him so that he would not
carry out his threats.
The appellants testified further that the
amount of force exerted on Mlotshwa did not exceed that which appears
in the video recordings.
They conceded that they committed assault,
took him to the ditch against his will, forced him into the coffin
and uttered threats
about the snake and the pouring of petrol over
him. They denied intimidating Mlotshwa and asserted that Mlotshwa was
released at
their instance. Mlotshwa returned to the motor vehicles
to retrieve his sandals. Mlotshwa then requested a lift from
Oosthuizen,
who obliged. Although Jackson admitted having burnt the
coffin, he denied defeating the ends of justice. He testified that he
burnt
the coffin at the instance of his employer to prevent any
further abuses.
[13]
In criminal proceedings the State bears the onus to prove the guilt
of the accused beyond a reasonable doubt. The accused’s
version
cannot be rejected solely on the basis that it is improbable, but
only once the trial court has found on credible evidence
that the
explanation is false beyond reasonable doubt.
[1]
The corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal.
[2]
The appellant’s conviction can therefore only be sustained
after consideration of all the evidence and their version of the
events is found to be false beyond reasonable doubt.
[14]
Before us, it was contended that the complainants did not pass the
litmus test for the evidence of a single witness in terms
of s 208 of
the Criminal Procedure Act 51 of 1977 (the CPA) as laid down in
R
v Mokoena
[3]
and succinctly set out in
S
v Sauls & others:
[4]
‘
[T]he absence
of the word “credible” is of no significance; the single
witness must still be credible, but there are
. . . “indefinite
degrees in this character we call credibility”. There is no
rule of thumb test or formula to apply
when it comes to a
consideration of the credibility of the single witness. The trial
Judge will weigh his evidence, will consider
its merits and demerits
and, having done so, will decide whether it is trustworthy and
whether, despite the fact that there are
shortcomings or defects or
contradictions in the testimony, he is satisfied that the truth has
been told.’
[15]
It was submitted that the trial court did not have regard to the
cautionary rule when assessing the evidence of the single
witnesses.
It is trite that the court can only convict on such evidence if it is
satisfactory in all material respects. At the
same time the court of
appeal is reticent to interfere with the credibility findings of the
trial court as well as the evaluation
of the oral evidence, unless
there is a material misdirection.
[5]
[16]
It is clear from a reading of the judgment on conviction that the
trial court failed to apply the cautionary rule that applies
to the
evidence of single witnesses. Given the many improbabilities and
contradictions in the complainants’ account, if she
had applied
the necessary caution, she could not have accepted their evidence
because it could not be said to have been satisfactory
in all
material respects.
[17]
The trial court’s approach to the evidence was arbitrary. For
instance, it accepted that there was insufficient evidence
before it
regarding the instrument referred to as a firearm, but at the same
time accepted the evidence of the complainants where
there was a lack
of sufficiency of evidence. There is no indication in the trial
court’s judgment that it was alive to the
fact that it had to
approach the evidence of the two complainants with caution on account
of the fact that they were single witnesses.
It was incumbent upon
the trial court to show that it took into account the necessary
caution. The trial court set out the evidence
in great deal, but
nothing suggests that it was properly evaluated. Regard must be had
at all times to the fact that the onus to
prove the case beyond a
reasonable doubt rests on the state.
[18]
The two complainants alleged that the incidents took place on 17
August 2016 whereas the appellants testified that they knew
only of
one incident involving Mlotshwa, which occurred on 7 September 2016.
The trial court in its judgment alluded to the dispute
about the
date, but did not make any finding with regard thereto. This was
significant as it has a bearing on probabilities. The
court’s
approach in assessing evidence in a criminal case is to weigh up all
the elements that point towards the guilt of
the accused against all
those that are indicative of his innocence, taking proper account of
inherent strengths and weaknesses,
probabilities and improbabilities
on both sides and, having done so, to decide whether the balance
weighs so heavily in favour
of the state as to exclude any reasonable
doubt about the accused’s guilt.
[6]
[19]
The trial court did not consider the merits and demerits,
discrepancies and contradictions in the respective versions of the
complainants, especially as they were single witnesses. In
highlighting this misdirection, I point out the following
discrepancies
and contradictions:
· According
to Sithole when Mlotshwa was apprehended, he was brought to him and
asked if he knew Mlotshwa. He answered in
the affirmative and was
then released; whereas Mlotshwa’s evidence was that he became
aware of the presence of another person
as he was being assaulted by
the appellants but was unable to identify that person, save to say
that it was a black person.
· Sithole’s
evidence was that later on the day of the incident he spoke to
Mlotshwa who informed him that he had been
placed in a “box”.
This was explicitly denied by Mlotshwa.
· When
Sithole was cross-examined as to why he did not report his assault to
the police, he stated that they did not know
whether those people,
(referring to the appellants) were farmers or not. Once again
Mlotshwa denied speaking to Sithole about this.
Mlotshwa’s
version was that he did not report the incident because of the
threats from the appellants.
· Mlotshwa in
fact denied ever speaking to Sithole about the incident.
· Mlotshwa’s
evidence was that he was extensively assaulted on his back with a
knobkerrie, which has a very large metal
nut, however, he did not
point out such injuries to the doctor who examined him.
· A
photograph of Mlotshwa was handed in to the court as exhibit L. This
photograph had been taken by Oosthuizen shortly
after he had been
placed in the coffin. Mlotshwa conceded that that was how he looked
after being placed in the coffin. The photograph
did not show any
visible injuries on his face and chest. This shows the improbability
of Mlotshwa’s evidence about having
been hit all over his body
including the face with fists, as well as a knobkerrie without
sustaining any visible injury on his
body.
· Mlotshwa
denied that he was found in possession of stolen copper cables, but
in the video, Mlotshwa was asked about the
copper cables, which
indicates that such issue was not a fabrication on the part of the
appellants.
[20]
Given the many improbabilities in the complainants’ account,
coupled with contradictions in their own evidence and the
objective
facts, the trial court erred in accepting the evidence of Sithole as
proof of the commission of the assault against him.
The trial court’s
evaluation of the evidence and its approach to credibility findings
of the State witnesses was incorrect
in light of the material
contradictions and improbabilities. The court a quo should have
determined the matter on the version of
the appellants. The video
recordings and photographs corroborate their version.
[21]
It is clear, however that on their own evidence, Mlotshwa was
unlawfully deprived of his liberty. They are therefore guilty
of
kidnapping. On their version they had no intent to kill The question
arises as to whether the appellants on their version should
have been
convicted on assault common or assault with intent to do grievous
bodily harm, where the assaults include threats of
burying Mlotshwa
alive, burning him and putting the snake in the coffin.
Snyman
Criminal Law
,
5
th
Edition
page
455, defines the elements of the crime of assault as follows: ‘(a)
conduct which results in another person’s bodily
integrity
being impaired (or the inspiring of a belief in another person that
such impairment will take place); (b) unlawfulness
and (c)
intention’.
[22]
On page 461 the learned author states about assault with intent to do
grievous bodily harm that ‘[a]ll the requirements
for an
assault set above apply to this crime, but in addition there must be
intent to do grievous bodily harm’. That intention
can be
inferred ‘from the nature of the weapon used, the way in which
it was used, the degree of violence, the part of the
body aimed at,
the persistence of the attack and the nature of the injuries
inflicted, if any’. He further states that ‘the
crime can
be committed even though the physical injuries are slight.’ In
S v
Mtimunye
[7]
the
court held that a threat to inflict grievous bodily harm may result
in the conviction of assault with intent to do grievous
bodily harm.
The court reasoned as follows:
‘
[O]ften the
intention of the perpetrator of an assault is inferred from the act
by which a physical assault is carried out. Where
an assault consists
of a threat, there can be no reason why the intention cannot be
inferred from the contents of the threat, unless,
obviously, it
appears that the perpetrator does not have the intention or the
ability to carry out the threat.’
I
am in agreement with this dictum. In my view the objective facts
appearing from the video, especially as described in para 11
above do
show the intent to do bodily harm.
[23]
The second appellant’s conviction of defeating the ends of
justice should also stand. Jackson’s defence that he
acted on
the instructions of his employer Mr De Beer, is without merit. De
Beer’s evidence was that when he received the
video which had
gone viral, he forwarded it to Jackson. De Beer’s evidence was
that he already knew that the police were
looking for the culprits.
He instructed Jackson to get rid of the coffin. By then Jackson knew
that the police were looking for
the culprits. By burning the coffin,
the latter wrongfully and unlawfully destroyed evidence of the
commission of crime, with the
intention to defeat the ends of
justice.
[24]
The appellants’ convictions of assault with intent to do
grievous bodily harm is a competent verdict to a charge of attempted
murder (count 5) in terms of s 258(b) of CPA and kidnapping (count 4)
as well as Jackson’s convictions of defeating the ends
of
justice (count 7) should be confirmed. The convictions in
respect of all the other offences should be set aside.
[25]
I turn now to the appeal against sentence. As we have interfered with
the convictions of the appellants no purpose would be
served by
dealing with the arguments of the appellants’ counsel
concerning the misdirections made by the trial court. We
are at large
to consider sentence afresh.
[26]
Oosthuizen was born on 11 August 1988, is married and a father to two
minor children. He only completed Grade 10 in 2005 due
to financial
constraints. He was then employed as an assistant farm manager by the
SIS Farming Group (Pty) Ltd. He was promoted
to a full managerial
position that he held for a period of eight years. He left that
position to join G & M Farming Company
as an assistant manager, a
position he held for five years until his arrest on 14 November
2016. After his arrest his family
moved in with his parents in-laws
and survive on selling fresh produce. Oosthuizen is a first offender
[27]
Jackson was born on 6 October 1987. He failed grade 10 due to lack of
funds and having an unstable family life, where his disabled
father
abused alcohol and his mother was unemployed. He is married and has
three minor children. At the time of his arrest he was
employed by JM
de Beer Farming Group and had been so employed for the past 12 years
as a farm foreman. After the incident, he had
to leave the farm as he
was considered a risk. His wife is gainfully employed at PG Labour
Hire, where she has been employed for
the past 10 years. Jackson is a
first offender.
[28]
This Court has found that the appellants should have been convicted
of assault with intent to do grievous bodily harm instead
of
attempted murder. The lack of serious injuries on Mlotshwa does not
make the conviction a lesser offence. This Court finds that
the most
aggravating factor in this case was the failure by the appellants to
acknowledge that what they did to Mlotshwa was very
serious and
humiliating. It is neither here nor there that Mlotshwa allegedly
committed an offence, as no one is entitled to take
the law into his
own hands. This is an aggravating circumstance as the appellants
could easily have called the police to arrest
Mlotshwa. The
appellants grew up in the so-called “New South Africa”,
post 1994, where people are supposed to live
harmoniously together.
They grew up in a South Africa where no one race should be dominant
over another.
[29]
The most disturbing part of this matter was that whilst threatening
Mlotshwa with a gruesome death, the appellants had the
audacity to
video record their sadistic actions. It was most horrifying to view a
man being forced into the coffin, the lid being
pushed down
forcefully, the man screaming for help and begging for mercy. It was
a most humiliating and disturbing scene.
[30]
The appellants sadistic appetites were not satisfied by that: the
video recording had to be shared with other people. De Beer
confirmed
that the video recording had gone viral. Oosthuizen had even
downloaded it onto his computer. These actions did not only
impact on
the right to dignity of Mlotshwa, but on all black South Africans.
The mere fact that it went viral shows that it shook
the entire
country. The actions of the appellants were appalling to all races.
The monstrous actions of the appellants need to
be condemned in the
strongest terms possible.
[31]
The approach I have adopted in sentencing the appellants considers
their personal circumstances, the seriousness of the offences
and the
interests of society.
[8]
In
addition I have considered the rationale of sentencing namely
deterrence, retribution and rehabilitation.
[32]
The commission of a serious offence may attract a custodial sentence
even if the accused is a first offender.
[9]
The fact that the crimes committed also infringed the constitutional
rights of the complainant compounded the seriousness of the
offences.
[33]
The appellants never at any stage expressed remorse or publicly
apologised to the complainant. The appellants never accepted
responsibility for their actions. This impacts on their prospects of
rehabilitation.
[34]
Having considered and balanced the personal circumstances of the
appellants, the nature and seriousness of the offences they
committed
and the interests of society, I am of the view that the following
sentences are appropriate: in respect of the offence
of kidnapping, a
sentence of one year imprisonment; in respect of assault with intent
to do grievous bodily harm, a sentence of
five years imprisonment;
and in respect of defeating the ends of justice, one year
imprisonment. I would order the shorter sentences
to run concurrently
with the five year sentence. The result is that both appellants will
be sentenced to an effective five years
imprisonment.
[35]
In the result, I make the following order:
The appeal succeeds.
2 The order of the
court a quo is set aside and replaced with the following order:
‘
(a)
Both accused are found guilty of the offences of assault with intent
to do grievous bodily harm (count 5) and of kidnapping
(count 4).
(b)
Accused 2 is found guilty of defeating the ends of justice (count 7).
(c)
The accused are each sentenced to five years imprisonment on the
conviction of assault with intent to do grievous bodily harm
(count
5).
(d)
The accused are each sentenced to 1 year imprisonment on the
conviction of kidnapping (count 4).
(e)
Accused 2 is sentenced to 1 year imprisonment on the conviction of
defeating the ends of justice (count 7).
(f)
It is ordered that the sentence in respect of count 4 is to run
concurrently with the sentence imposed on (count 5).
(g)
It is ordered that the sentence in respect of count 7 is to run
concurrently with the sentence imposed in count 5.
(h)
The sentences are antedated to 25 August 2017.’
________________
YT
Mbatha
Judge
of Appeal
Appearances:
For
the Appellants: C J
Van Wyk (with him A Coertze and W Burger)
Instructed by:
Marius Coertze
Attorneys, Pretoria
Symington & De
Kok, Bloemfontein
For
the Respondents: R Molokoane
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
S v
V
2000 (1) SACR 453
(SCA) at 455B.
[2]
S
v Van Meyden
1999 (1) 447 (W) at 448F-H.
[3]
R v Mokoena 1956 (3) SA 81 (A); [1956] 3 All SA 208 (A).
[4]
S
v Sauls & others
1981 (3) SA 172
(A) at 180E-F.
[5]
Pistorius
v S
[2014] ZASCA 47
;
2014 (2) SACR 314
(SCA) para 30.
[6]
S
v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[7]
S
v Mtimunye
1994 (2) SACR 482
(T);
[1994] 4 All SA 388
(T) 484I-J. (my
translation)
[8]
S
v Zinn
1969 (2) SA 537 (A); [1969] 3 All SA 57 (A).
[9]
S
v Kwatsha
2013 (1) SACR 311
(KZP) para 27-28.