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[2018] ZASCA 92
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Oosthuizen and Another v S (144/2018) [2018] ZASCA 92; 2018 (2) SACR 237 (SCA) (1 June 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 144/2018
In
the matter between:
WILLEM
JACOBUS ALBERTUS OOSTHUIZEN
FIRST APPLICANT
THEO
MARTINS
JACKSON
SECOND APPLICANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Oosthuizen
& another v S
(144/2018)
[2018] ZASCA 92
(1 June 2018).
Coram:
Navsa
and Willis JJA and Schippers AJA
Heard:
28 May
2018
Delivered:
1 June
2018
Summary:
Bail
pending appeal – leave to appeal having been granted does not,
per se, entitle a person to be released on bail - there
has to be a
real prospect that a non-custodial sentence will be imposed –
provocation as a defence discussed.
ORDER
On
appeal from
:
Gauteng Division of the High Court, Pretoria, (functioning as the
Mpumalanga Division, Middelburg) (Mphahlele J sitting as court
of
first instance):
The
applicants’ application for leave to appeal the refusal by the
court below to grant bail is dismissed on the grounds that
there are
no reasonable prospects of success and there is no other compelling
reason why an appeal should be heard.
JUDGMENT
Navsa
JA (Willis JA and Schippers AJA
concurring)
[1]
This is an application for leave to appeal by two applicants, namely,
Messrs Willem Jacobus Albertus Oosthuizen (Oosthuizen)
and Theo
Martins Jackson (Jackson),
[1]
against the refusal of bail by the Gauteng Division of the High
Court, Pretoria, functioning as the Mpumalanga Division, Middelburg.
The application was referred by this court for oral argument in terms
of s 17(2)(
d
)
of the Superior Courts Act 10 of 2013 (the Act). It concerns a case
that has attracted national media and public attention because
it has
stark and disturbing racial connotations. In national public
discourse the matter has been described as ‘the coffin
case’.
Race as an historically destructive divisive factor, is something
that no South African can be unaware of. It is an
aspect to which I
will revert.
[2]
In referring the matter for oral argument the parties were directed
to be prepared, if called upon to do so, to address us on
the merits
of the appeal against the refusal of bail. Submissions were made by
the parties, both in relation to the application
for leave to appeal
and the merits. The background is set out hereafter.
[3]
During 2017 Oosthuizen and Jackson faced the following seven charges
in the court below:
‘
Count
1: the unlawful possession of a firearm in contravention of section 3
read with section 3, 103, 120(1)(a) and 121 of Act 60
of 2000 and
further read with the provisions of section 51 of Act 105 of 1997;
Count
2: assault with intent to cause grievous bodily harm;
Count
3: assault with intent to cause grievous bodily harm;
Count
4: kidnapping;
Count
5: attempted murder;
Count
6: intimidation; and
Count
7: defeating or obstructing the course of justice.’
[4]
For a better appreciation of the sequence of events and the facts
alleged by the State, it is necessary to have regard, first,
to the
particulars in the charge sheet in relation to the charge of
kidnapping (count 4), which read as follows:
‘
In
that upon or about [17 August 2016] and/or near [Big House Squatter
Camp in the district of Blinkpan], the accused did unlawfully
and
intentionally deprive Victor Rethabile Mlotshwa of his freedom of
movement, forcing him into the back of a bakkie, tying his
hands
against the roller bar in the bakkie and drove him to a place unknown
to the victim.’
[5]
Second, the particulars in relation to count 5 sets out what,
according to the State, occurred thereafter:
‘
In
that upon or about 17 August 2016 and at or near Hendrina Power
Station, in the district of Blinkpan, the accused did unlawfully
and
intentionally attempt to kill Victor Rethabile Mlotshwa by
threatening to shoot him, hitting and/or beating him continuously
with a knobkerrie to force him to climb into the coffin, threatening
to put a snake inside the coffin and forcefully attempting
to close
the coffin and also threatened to pour petrol onto him whilst inside
the coffin, and set him alight.’
[6]
Following on the particulars in relation to count 4, set out above,
the State’s case in relation to the charge of intimidation
(count 6) was that, one of the complainants, Mr Victor Rethabile
Mlotshwa (Mlotshwa), was kidnapped, in order to prevent him from
escaping and reporting the incident to the police and was threatened
by Oosthuizen and Jackson. According to the charge sheet they
threatened to shoot and kill him.
[7]
In respect of count 2, it was alleged by the State that ‘upon
or about 17 August 2016 and at or near the Big House Squatter
Camp,
in the district of Blinkpan, the accused did unlawfully and
intentionally assault Delton Sithole by hitting him with open
hands
and kicking him with booted feet with the intention of causing him
grievous bodily harm’.
[8]
Count 3 was also one of assault with intent to cause grievous bodily
harm. It was alleged that upon or about 17 August 2016
the accused
did unlawfully and intentionally assault the complainant by hitting
him with open hands and kicking him with booted
feet and fastening
his hands with a cable-tie against a roller bar of the bakkie with
the intention of causing him grievous bodily
harm.
[9]
With regard to count 1, namely the unlawful possession of a firearm,
it was alleged by the State that on the day on which the
events
referred to took place, and at the location where the complainant was
allegedly kidnapped, Oosthuizen was in unlawful possession
of a
firearm in contravention of s 3 read with
sections 103
,
120
(1)
(a)
and
121
of the
Firearms Control Act 60 of 2000
and further read with
the provisions of
s 51
of the
Criminal Law Amendment Act 105 of 1997
.
[10]
The particulars supplied by the State regarding count 7, which
related to the defeating or obstructing the course of justice,
are
set out in the charge sheet as follows:
‘
[U]pon
or during the months of October and/or November 2016, and at or near
Broodsnyersplaas in the district of Blinkpan, the accused
did
unlawfully and with intent to defeat or obstruct the course of
justice, burn to ashes a coffin that was used in the commission
of
the offence to conceal evidence, which act defeated or obstructed the
course of justice.’
[11]
The trial was conducted before Mphahlele J. Oosthuizen was acquitted
on count 1. On 25 August 2017, both Oosthuizen and Jackson
were
convicted on counts 2 to 6. In addition, Jackson was convicted on
count 7.
[12]
The applicants were sentences on 27 October 2017. Oosthuizen was
sentenced as follows:
‘
Count
2: (the assault with intent to do grievous bodily harm to Mr Delton
Sithole, the first complainant) – 3 years’
imprisonment.
Count
3: (the assault with intent to do grievous bodily harm to Mr Victor
Rethabile Mlotshwa, the second complainant) – 3
years’
imprisonment.
Count
4: (kidnapping) – 5 years’ imprisonment.
Count
5: (attempted murder) – 7 years’ imprisonment.
Count
6: (intimidation) – 6 years’ imprisonment.
The
sentence imposed in respect of count 3 is ordered to run concurrently
with the one imposed in respect of count 6.
The
sentence imposed in respect of count 4 is ordered to run concurrently
with the one imposed in respect of count 5.’
The
cumulative sentence of 16 years’ imprisonment was ameliorated
in that Mphahlele J ordered five years thereof to be suspended
for a
period of eight years on condition that Oosthuizen is not found
guilty of any of the offences he was convicted of during
the period
of suspension. The effective sentence was thus one of 11 years’
imprisonment.
[13]
Jackson was sentenced as follows:
‘
Count
2: (the assault with intent to cause grievous bodily harm to Mr
Delton Sithole, the first complainant) – 3 years’
imprisonment.
Count
3: (the assault with intent to cause grievous bodily harm to Mr
Victor Rethabile Mlotshwa, the second complainant) –
3 years’
imprisonment.
Count
4: (kidnapping) – 5 years’ imprisonment.
Count
5: (attempted murder) – 7 years’ imprisonment.
Count
6: (intimidation) – 6 years’ imprisonment.
Count
7; (defeating or obstructing the administration of justice) – 3
years’ imprisonment.
The
sentence imposed in respect of count 3 is ordered to run concurrently
with the one imposed in respect of count 6
The
sentence imposed in respect of count 4 is ordered to run concurrently
with the one imposed in respect of count 5.’
As
with Oosthuizen, Jackson’s cumulative sentence of 19 years’
imprisonment was ameliorated in that five years of his
sentence was
suspended for eight years on condition that he is not found guilty of
any of the offences he was convicted of during
the period of
suspension. His effective sentence is thus one of 14 years’
imprisonment. Subsequently, the trial judge altered
the period of
suspension to 5 years. It is to be noted that in terms of s 297(1) of
the Criminal Procedure Act 51 of 1977 (the
CPA) a sentence of
imprisonment cannot be suspended for a period exceeding five years.
[14]
On 27 October 2017, applications for leave to appeal by Oosthuizen
and Jackson in the court a quo, against their convictions
and related
sentences, proved unsuccessful. Consequently, both filed an
application for leave to appeal the convictions and sentences
in this
court.
[15]
On 7 December 2017, the applicants applied in the court a quo to be
released on bail pending the outcome of the application
for leave to
appeal to this court. That application was refused. In refusing bail,
Mphahlele J, inter alia, said the following:
‘
I
am still of the considered view that there are no reasonable
prospects of success in respect of the appeal. As I have already
mentioned, the application is brought, pending the outcome of the
petition, whatever the outcome of the petition and the subsequent
appeal, should the leave to appeal the judgment and sentence be
granted, taking into account the evidence that was presented in
this
court and the nature and seriousness of the offences the applicants
were convicted of, it is likely that the sentences to
be imposed on
appeal would be custodial. The granting of the appeal, would be like
delaying the inevitable.
Under
the circumstances, the application for bail is hereby refused.’
[16]
On 2 February 2018 this court granted the applicants leave to appeal
against their convictions and the related sentences. This
prompted
the applicants to apply to this court for leave to appeal the refusal
of bail by the court below.
[17]
In their application for leave to appeal, the applicants criticised
the court below, (Mphahlele J), for not considering whether
the
applicants, ‘in fact and in law have a reasonable prospect of
success’ in relation to the merits of an appeal against
their
convictions and sentences and ignored what was described as systemic
difficulties ‘in expediting appeals in this court’.
The
court below was also criticised for subsequently amending the period
of suspension referred to above on the basis that the
substance
thereof was not altered and that it was nothing more than a
typographical error.
[18]
In respect of their prospects of success in relation to the merits of
their appeal against the convictions and sentences, the
applicants
contended that it is clear from the record and especially from the
objective evidence, such as a video recording which
they took of the
incident, that Mlotshwa did not sustain severe physical injuries.
They submitted, further, that the State had
failed to prove the
requisite mens rea in respect of several of the charges faced by
them. They contended that the evidence adduced
in the court below
favoured their version of events rather than the State’s.
[19]
In their applications for leave to appeal the applicants set out, in
summary, the State’s case and contrasted it with
their version
of events. The summary, in their words, bears repeating and is set
out hereafter:
‘
17.2.1
According to the state:
·
We, on 17 August 2016, caught
Sithole and Mlotshwa without any apparent reason;
·
Immediately commenced to
viciously assault them;
·
Then released Sithole for no
apparent reason;
·
Then took (abducted) Mlotshwa
to a silage ditch close by where we attempted to murder him and
intimidated him by threatening to
kill him, should he inform the
police; and
·
Mlotshwa sustained serious
injuries.
17.2.2
On the other hand, our version is that
:
·
We never met Sithole prior to
his appearance in court;
·
His evidence as a whole was
introduced by either the state or perhaps Mlotshwa to support the
state’s version;
·
We, on 7 September 2016, caught
Mlotshwa as a result of his acting suspiciously;
·
Mlotshwa had suspected stolen
copper cable in his possession;
·
We informed him that we were
taking him to the police;
·
Mlotshwa then threatened to
burn our crops every year and to murder our families (who were alone
at home during most of the day);
·
Mlotshwa’s threats
provoked us and as a result, we took a decision to rather teach him a
lesson by scaring him in order to
deter him from carrying out his
threats and to prevent him from stealing in future;
·
We then took him to a nearby
silage ditch;
·
Jackson collected a coffin from
his employer’s farm;
·
We instructed Mlotshwa to get
into the coffin and then threatened to place a snake inside the
coffin with him and to burn the coffin
with him inside;
·
We recorded the incident on our
mobile phones to prove, if necessary, that he was neither assaulted
nor injured; and
·
Upon us noticing that he was
crying and that he was really scared and we having achieved our
objective, we released him without
so much as a scratch.’
[20]
In addition to their complaints set out above, the applicants
contended that several of the offences, such as the assault on
Mlotshwa, his kidnapping and attempted murder, were committed with
the same intention and that the evidence required to prove one
count
also proved the others. In short, they complained that there had been
a splitting of charges and a duplication of convictions.
[21]
Before considering whether the application for leave to appeal
against the refusal of bail should succeed, it is necessary
to note
the admissions made by the applicants in the court below in relation
to the charges faced by them, the correctness of which
was accepted
before us. In relation to Oosthuizen, the following admissions were
made:
‘
1.
That he was present on 7 September 2016, along with the second
accused and at or near the R25 Middelburg-Bethal Road in the Blinkpan
District;
2.
That he and the second accused encountered Victor Rethabile Mlotshwa;
3.
That he and the second accused requested Mlotshwa to get onto the
back of the bakkie driven by him;
4.
That he took Mlotshwa to a silage ditch on the farm Blesbokvlakte;
5.
That he and the second accused forced Mlotshwa to get into a coffin
at the silage ditch;
6.
That while Mlotshwa was in the coffin, he and second accused tried to
close the lid of the coffin;
7.
That while Mlotshwa was in the coffin, he and second accused
threatened that
7.1
they would burn him with the coffin; and
7.2
they would put a snake with him inside the coffin.
[22]
Jackson made the following admissions:
‘
1.
He together with the first accused were present at or near the
Middelburg-Bethal Road in the district of Blinkpan on 7 September
2016;
2.
He and the first accused there and then encountered Victor Rethabile
Mlotshwa;
3.
Mlotshwa was told to climb into a coffin whereafter they attempted to
close the lid;
4.
They threatened whilst Mlotshwa was in the coffin:
4.1
to burn him with the coffin; and
4.2
put a snake in the coffin with him.
5.
He, during October 2016 and on the instructions of his employer and
at the farm Blesbokvlakte, destroyed the said coffin in which
Mlotshwa was placed, by burning it.’
[23]
We are in the difficult position of being precluded from pronouncing
finally on contested issues still to be adjudicated by
fellow judges
in this court in the appeal on the merits of the convictions and
sentences. We thus limit ourselves to a consideration
of that which
is largely uncontested or common cause and on the relatively limited
record presented to us.
[24]
It was put to counsel on behalf of Oosthuizen that, on the admissions
recorded in the court below and their contentions set
out in
paragraphs 21 and 22, the applicants could, at the very least, be
convicted of kidnapping, assault with intent to do grievous
bodily
harm and that Jackson, in addition, could be convicted of defeating
or obstructing the course of justice. The response was
that
provocation in the circumstances of the case could be relied upon to
thwart a conviction. The provocation, in this instance,
it was
submitted, was that Mlotshwa arrogantly threatened to murder their
families and annually burn their crops. Counsel on behalf
of Jackson
contended likewise. We refrain from making a credibility finding on
whether, in the circumstances, where Mlotshwa was
admittedly
physically restrained by the applicants, he could have behaved as
alleged.
[25]
It was contended on behalf of the applicants that they were entitled
to confront Mlotshwa and arrest him when they found him
in possession
of copper cables, the origins of which could not be precisely
determined. Their explanation as to why they did not
take him to the
police was that he had begged them not to and was ready to subject
himself to whatever they might have had in mind.
This is an aspect on
which I will comment later.
[26]
Furthermore, it was put to counsel on behalf of both the applicants
that in the circumstances, provocation might, at best,
in the event
of their version of events being accepted, perhaps be a mitigating
factor rather than being exculpatory. The response
was that, even
then, it might result in a non-custodial or significantly reduced
sentence and what had to be borne in mind, is
that the applicants had
already spent a year in prison and release on bail should be
favourably considered.
[27]
Counsel on behalf of both the applicants rightly conceded that race
was a factor that impacted on the case. That concession
has to be
seen in the light of the following uncontested summary of the
relevant part of Oosthuizen’s testimony by the court
below:
‘
He
further testified that on one occasion he assisted De Beer, the first
witness, to apprehend persons who were stealing maize.
De Beer
informed him that he had scared those individuals off with a coffin.
Bearing this in mind, he asked the second accused
whether they still
had the coffin or not. He thought it wise to threaten Mlotshwa with a
coffin so he could stop the threats and
further deter him from
stealing again. They then agreed that the second accused would go and
collect the coffin and they would
meet later on at the
Hendrina-Pollens Hope gravel road.’
A
little later, the judgment records the following additional part of
his evidence:
‘
He
further confirmed that the coffin was used on black people suspected
of theft and those people never reported the incidents to
the
police.’
[28]
For present purposes, I am willing to accept that there might be some
merit to the contentions on behalf of the applicants
in relation to
the duplication of convictions, which will probably have some impact
in relation to the severity of the sentences
imposed by the trial
court. There is also some force to the submission that alteration of
the period of suspension is one of substance.
These factors, no
doubt, played a part in this court granting leave to appeal. The
latter submission might, however, not have a
direct impact on
whatever sentence is ultimately deemed to be appropriate by this
court.
[29]
In
S v
Masoanganye & another
[2012] ZASCA 119
;
2012 (1) SACR 292
(SCA), this court held that the
granting of an application for leave to appeal does not, per se,
entitle a person to be released
on bail. There has to be a real
prospect in relation to success on convictions and that a
non-custodial sentence might be imposed,
such that any further period
of detention before the appeal is heard would be unjustified.
[2]
Counsel on behalf of the applicants were constrained to accept that a
contrary conclusion on the facts of the present case militates
against the application being successful.
[30]
As stated earlier, great score on behalf of the applicants was placed
on provocation, either as an exculpatory or a mitigating
factor. I do
not intend to embark on an exhaustive excursus on provocation, but
limit the discussion to what, for present purposes,
is required.
Roman law and Roman-Dutch law did not regard anger, jealousy or other
emotions as an excuse for any criminal conduct,
but only as a factor
which might mitigate sentence if the anger (emotion) was justified by
provocation.
[3]
That used to be
the position that pertained in most legal systems.
[4]
More recently there have been developments elsewhere
[5]
and there have also been developments in our law in relation to
provocation.
[6]
There was a time
when our law repeatedly recognised extreme provocation as a complete
defence under the term ‘non-pathological
criminal incapacity’.
Commentators have stated that since this court’s decision in
S
v Eadie
2002 (3) SA 719
(SCA), provocation leading up to a lack of criminal
capacity as a defence has been limited, if not dealt the death
knell.
[7]
[31]
In the present case there is no indication that provocation was ever
relied upon by the applicants in relation to a total lack
of criminal
capacity. There is also no indication in the record that the
applicants placed any reliance on s 78(7) of the CPA,
which provides:
‘
If
the court finds that the accused at the time of the commission of the
act in question was criminally responsible for the act
but that his
capacity to appreciate the wrongfulness of the act or to act in
accordance with an appreciation of the wrongfulness
of the act was
diminished by reason of mental illness or mental defect, the court
may take the fact of such diminished responsibility
into account when
sentencing the accused.’
Having
regard to the admissions made by the applicants referred to above and
to what was stated by them in their applications for
leave to appeal,
referred to in paras 19, 21 and 22 above, that position appears to
have been adopted advisedly.
[32]
C R Snyman
Criminal
Law
(2014) 6 ed
at
234, points out that provocation ought to operate as a ground for
mitigation of sentence only if there are reasonable grounds
for an
accused’s anger. The following dictum in
S
v Mandela
1992 (1) SACR 661
(A) at 665A-C is instructive:
‘
Wesenskenmerk
van provokasie as versagtende faktor is die onmiddelikheid van die
boosdoener se reaksie op die slagoffer se toornverwekkende
handeling.
Die boosdoener moet onverwyld en in die hitte van die oomblik tot sy
geweldsdaad oorgaan. ‘n Vertraagde vergeldingshandeling
met
voorbedagte rade is heeltemal die teengestelde van daardie momentele
verlies aan of inkorting van selfbeheersing wat die waarmerk
van
provokasie dra. Waar, soos hier, die boosdoener eers na verloop van
aansienlike tyd na die uittartende optrede, en nadat hy
behoorlik
geleentheid tot bedaring en besinning gehad het, sy slagoffer in
koelen bloede om die lewe gebring het, kan daar van
provokasie as
versagtende faktor nouliks sprake wees.’
[8]
[33]
The following was said by Plasket J in
S v Ndzima
2010 (2)
SACR 501
(ECG), para 30:
‘
While
it is a feature of provocation as a mitigatory factor that the
criminal act that resulted from it is usually committed immediately
after the provocative act, the extent to which it is mitigatory
depends, essentially, on whether the accused’s loss of control
as a result of his or her anger would be regarded by an ordinary
reasonable person – “’n gewone redelike mens”
– as an excusable human reaction in the circumstances. In this
matter, a reasonable person would baulk at the suggestion
that the
appellant’s acts of executing his incapacitated victims were
understandable in the circumstances, even though he
was justifiably
and understandably angry at having been assaulted and, no doubt,
fearful when he fired the first shots. That he
was provoked, and that
the provocation was severe, is not in dispute. That the anger evoked
by the provocation led him to shoot
the deceased who was running away
is also understandable. But then to execute both of the deceased,
when he ought to have been
able to reflect on what he had done and to
realise that he was no longer in any danger, cannot be regarded as an
excusable human
reaction to the provocation.’
[34]
In light of what is set out in the preceding two paragraphs, I now
turn to what is set out in the applicants’ heads of
argument.
The following are the written submissions on behalf of the applicants
in respect of the assault convictions:
‘
16.2
In respect of a possible finding of assault, it is respectfully
submitted that should it be held that applicants’ version
cannot be disregarded and therefore has to be accepted, that:
16.2.1
There was a sufficient provocation to warrant retaliatory action;
16.2.2
The retaliation occurred without premeditation and in the face of
great and sudden anger;
16.2.3
The retaliation followed immediately upon the provocation; and
16.2.4
The retaliation was moderate, reasonable, and commensurate in nature
with the provocation.
16.3
In the result it may be held that the accused’s actions were
not unlawful.’
[35]
What has to be borne in mind is that when Mlotshwa was first
encountered, on the applicants’ version, he was in possession
of copper cables which they suspected were stolen. Their explanation
as to why he was not taken to the police, if they genuinely
suspected
him of theft, is not particularly persuasive. The justification
proffered by them was that he begged them to do anything
to him
but
deliver him to the police. As stated earlier, on their own version of
events and on the basis of the admissions made, the applicants
were,
at the very least, guilty of kidnapping. They had unlawfully and
intentionally deprived him of his liberty.
[9]
In their own words, they forced Mlotshwa into a coffin and ‘then
threatened to place a snake inside the coffin with him and
to burn
the coffin with him inside’. Even if one were to accept, as
they alleged, that the State had not proved severe physical
injuries,
it is difficult to even begin to imagine the psychological torment
that Mlotshwa must have suffered.
[36]
In dealing with ‘the intent to do grievous bodily harm’,
J R L Milton
South African Criminal Law and Procedure
vol 2
(1996) 3 ed at 432, said the following:
‘
What
is required is that X must have known, or at least foreseen the
possibility, that his conduct (whether this took the form of
the
application of force or threats) might cause Y grievous bodily harm.’
In
the Zimbabwean case,
R
v Edwards
1957
R & N 107, it was held that grievous bodily harm is ‘harm
which in itself is such as seriously to interfere with
health’.
[10]
[37]
Even if one were to accept that Mlotshwa threatened the applicants in
the manner set out above, one would have expected them
to have taken
him to the police. They, however, followed their prior instinct,
which was to resort to their own brand of justice.
They kidnapped
Mlotshwa, drove him to a particular location, fetched a coffin,
forced him into it and made the most horrendous
threats, including
fetching a lighter to make it seem that they would carry out their
threats. Whatever else, their retaliation,
if indeed it was that, can
hardly be described as moderate, reasonable and commensurate, as
submitted by their counsel. On their
own version of events, this was
vigilantism at its worst.
[38]
The offences, which on the applicants’ own version of events
they committed, namely, that of kidnapping and the assault
referred
to above, are serious offences. There was rightly an acceptance on
behalf of the applicants, that race was, in the circumstances
of the
present case, an aggravating factor. From the evidence referred to in
para 27 above, there appears to have been a practice
on the part of
Jackson’s employer, Mr De Beer, to use a coffin
in
terrorem
against
black persons. On Oosthuizen’s own evidence he was aware of
this. By their actions, the applicants associated themselves
with the
practice. The submissions advanced before us were indicative of no
remorse on the part of the applicants. If anything,
there appears to
be a sense of justification and resistance. We were taken aback when
counsel on behalf of Oosthuizen suggested
that Mlotshwa’s
‘terrorism’, which consisted of the threats he apparently
made, could rightly be met with the
‘counter-terrorism’
he was subjected to. It was submitted on his behalf that it was
regrettable that farm attacks and
murders (presumably with white
farmers and their families as victims) were not met with equal
opprobrium. The court hearing the
appeal on the merits will, no
doubt, consider whether the full record demonstrates any degree of
real remorse. It cannot be ignored
that the video recording of
Mlotshwa’s ordeal was made by the applicants and only they
could have been the source of its
publication which, in modern
language, went viral, adding to Mlotshwa’s further humiliation
and the violation of his dignity.
The seriousness of the offences and
the probable sentences militate against releasing the applicants on
bail.
[39]
The applicants assert their right to liberty and to a fair trial and
procedure whilst ignoring how they infringed on Mlotshwa’s
fundamental rights, including his right to dignity and physical
integrity.
[40]
Having regard to what is set out in the preceding paragraphs, a
probable outcome of the appeal on the merits is that the offences
admittedly committed by the applicants will attract significant
custodial sentences, extending beyond the one year they have already
spent in custody and beyond the time of the hearing of the appeal on
the merits. This is like to occur, even if their version that
they
were provoked in the asserted manner is to be accepted. The
applicants’ concern about systemic failure in the
administration
of justice is not justified. Their counsel accepted
that at the very latest, a hearing of the appeal on the merits could
be arranged
for the last court term of this year. They are also free
to approach the President of this court for an expedited date during
the
next court term.
[41]
In refusing to grant bail pending the application for leave to
appeal, Mphahlele J stated that a custodial sentence was inevitable.
We have come to the conclusion that a significant custodial sentence
is probable. It is not in the interests of justice that the
applicants be released, pending the hearing of their appeal on the
merits.
[42]
It is sad, as this case and others in the public eye demonstrate,
that we as a nation have reached this stage of racial polarisation
and that we have not yet overcome the deep divisions that our history
imposed on us. It is the very antithesis of our constitutional
compact. We cannot ignore the fact that racial intolerance is
something that can be exploited by those intent on undoing and
subverting
constitutional values. Racist behaviour is absolutely
unacceptable and courts can rightly be expected to deal with it
firmly. Maya
Angelou, the American author and poet, said the
following:
‘
Prejudice
is a burden that confuses the past, threatens the future and renders
the present inaccessible.’
[11]
We
cannot allow our futures and the future of our children and
grandchildren to be undone.
[43]
Lastly, and with apologies to a great American and a former justice
of their Supreme Court, Thurgood Marshall, whose words
I have adapted
to apply to us as a nation, I pause to reflect that we should, each
of us, consider and apply them:
‘
I
wish I could say that racism and prejudice were only distant
memories. . . . We must dissent from the indifference. We must
dissent
from the apathy. We must dissent from the fear, the hatred
and the mistrust . . . We must dissent because [South Africa] can do
better, because [South Africa] has no choice but to do better.’
[12]
[44]
The following order is made:
The
applicants’ applications for leave to appeal the refusal by the
court below to grant bail is dismissed on the grounds
that there are
no reasonable prospects of success and there is no other compelling
reason why an appeal should be heard.
_________________
M
S Navsa
Judge
of Appeal
Appearances:
On
behalf of the first applicant:
W W Gibbs
Instructed by:
Marius Coertze Attorneys,
Pretoria
Symington and de Kok
Attorneys, Bloemfontein
On
behalf of the second applicant:
J G W Basson
Instructed by:
Marius Coertze Attorneys,
Pretoria
Symington and de Kok
Attorneys, Bloemfontein
On
behalf of the respondent:
R
Molokoane
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
Depending on the context, I will,
throughout the judgment, refer to the applicants as ‘Oosthuizen’
and ‘Jackson’
or collectively as ‘the applicants’.
[2]
See para 14. See also
R
v Mthembu
1961 (3) SA 468
(D) and
S v Scott-Crossley
2007 (2) SACR 470 (SCA).
[3]
See J M Burchell et al
South
African Criminal Law and Procedure
vol
1 (2011) 4 ed at 53.
[4]
See J M Burchell et al
South
African Criminal Law and Procedure
vol
1 (1997) 3 ed at 202.
[5]
See Burchell fn 3 at 344-346 and
349-350.
[6]
See Burchell fn 3 at 53-54 and
338-345 and, also, C R Snyman
Criminal
Law
(2008) 5 ed at
236-242.
[7]
See Burchell fn 3 at 53-54 and C R
Snyman
Criminal Law
(2014)
6 ed at 232-233.
[8]
‘
A material
feature of provocation as a mitigating factor is the immediacy of
the wrongdoer’s reaction to the victim’s
provocative
act. The wrongdoer must have immediately and in the heat of the
moment resorted to violent conduct. A delayed act
of premeditated
retribution is the complete opposite of momentary loss of or reduced
self-control which carries the stamp of
provocation. Where, as in
this case, the wrongdoer, kills his victim in cold blood a
considerable time after the provocative
act and after having had
time to calm down and come to his senses, provocation cannot be
considered as a mitigating factor.’
(My translation.)
[9]
See J R L Milton
South
African Criminal Law and Procedure
Vol
2 (1996) 3 ed at 544.
[10]
See also Milton at 433 and the
authorities there cited.
[11]
iZQuotes https://izquotes.com/quote/5536 (accessed 30 May 2018).
[12]
An extract from
Thurgood Marshall's acceptance
speech upon receiving the Prestigious Liberty Award on 4 July 1992.