S v Karolia

JurisdictionSouth Africa
Citation2006 (2) SACR 75 (SCA)

S v Karolia
2006 (2) SACR 75 (SCA) [*]

2006 (2) SACR p75


Citation

2006 (2) SACR 75 (SCA)

Case No

337/2003

Court

Supreme Court of Appeal

Judge

Zulman JA, Heher JA and Patel AJA

Heard

May 3, 2004

Judgment

May 28, 2004

Counsel

J H Spies for the State.
L M Hodes for the accused.

Flynote : Sleutelwoorde B

Appeal — Against sentence — General rule that appeal Court must decide question of sentence according to facts in existence when sentence imposed, not according to new circumstances — Rule not necessarily invariable — In casu, exceptional and special circumstances making it proper for Court to consider new circumstances in determining appropriate sentence — Accused having served eight-month term of imprisonment originally imposed and having paid C R250 000 compensation as ordered — Unduly harsh to impose substantial custodial sentence at this stage, coupled, in effect, with payment of R250 000 — Justice best served if period of imprisonment imposed which was suspended so as to take into account imprisonment already served and compensation paid — Sentence of ten years' imprisonment imposed with D all but eight months thereof conditionally suspended.

Evidence — Witnesses — Calling, examination and refutation of — By Court in terms of s 186 of the Criminal Procedure Act 51 of 1977 — Principles governing exercise of such discretionary power — Court entitled at any stage of proceedings to call witnesses, even if both parties having concluded E arguments — No requirement that notice be given to parties — Court very properly attempting to discover truth in order to arrive at just decision — No irregularity or failure of justice.

Murder — Sentence — Imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 — Accused deliberately shooting deceased three times at close range — Cruel and merciless attack — While number of mitigating factors present, F sentence of correctional supervision startlingly inappropriate — Sentence of imprisonment plainly warranted.

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances justifying deviation from prescribed minimum sentence — Section 51(3)(a) of Act specifically requiring Court, when imposing lesser sentence than that prescribed, to G enter such circumstances on record — Although not done in casu, could be inferred from both Court a quo's judgments on sentence and granting leave to appeal, that finding such circumstances to exist — Failure formally to record circumstances, at worst, procedural irregularity and not misdirection warranting interference by Court of appeal. H

Headnote : Kopnota

The appeal in this matter comprised three aspects: (a) the State appealed against the leniency of the sentences imposed on the accused by the High Court; (b) the accused appealed against his conviction; and (c) a special entry was noted regarding an alleged irregularity in terms of s 317 of the Criminal I Procedure Act 51 of 1977. The alleged irregularity arose from the fact that the trial Court had called further witnesses without notice to the parties and after both the State and the defence had closed their cases. The accused had

2006 (2) SACR p76

been convicted of attempted murder (of one Lotz), murder (of one A Mofokeng), and assault with intent to do grievous bodily harm (to Lotz). The three counts were taken together for purposes of sentence and the accused was sentenced to five years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act. One year of the sentence was suspended on condition, inter alia, that the accused pay a sum of R250 000 in compensation to the deceased's three children. This amount was duly paid, and the accused served eight months' imprisonment before being B released at the discretion of the Commissioner of Correctional Services a year before the hearing of the appeal.

Held, (per Zulman JA, Patel AJA concurring) that, as far as the special entry was concerned, the witnesses called by the trial Court dealt with two questions: the injuries suffered by Lotz, and the hairstyle of the deceased, Mofokeng. It was clear from s 186 C of the Act that the Court a quo was entitled at any stage of the proceedings to call witnesses, even if both parties had concluded their arguments, and there was no requirement that notice be given to the parties. The Court had very properly attempted to discover the truth in order to arrive at a just decision. There had been, accordingly, no irregularity or failure of justice. (Paragraphs [7] - [10] at 80g - 81d.) D

Held, further, regarding the appeal against conviction, that the Court a quo had competently and correctly weighed the evidence for and against the accused. [The Court proceeded to review the evidence in detail.] There was no reason to disturb the credibility findings of the Court a quo regarding Lotz, or its rejection of the accused's evidence as untruthful, improbable and not reasonably possibly true. Therefore, the accused's cross-appeal had to fail, and the convictions be confirmed. (Paragraph [22] at E 86g.)

Held, further, regarding the State's appeal against the sentences, that the convictions for murder and attempted murder would have attracted minimum sentences of 15 and five years respectively, unless substantial and compelling circumstances were found to exist which justified lesser sentences. While s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997 specifically required a Court, F when imposing such lesser sentence, to enter such circumstances on the record, this had not been done. However, it could be inferred from both the Court a quo's judgment on sentence and its judgment granting leave to appeal, that it had found such circumstances to exist. Its failure formally to record these circumstances was, at worst, a procedural irregularity and not a misdirection warranting interference by the Court of appeal. Furthermore, the factors taken G into account by the Court a quo did constitute substantial and compelling circumstances which entitled it to depart from the prescribed minimum sentences. (Paragraphs [25], [29], [32] - [33] at 87f, 89h, 92a - e.)

Held, further, that even if the Court a quo had been justified in not imposing the minimum sentences, the question remained whether a sentence of correctional supervision together with H payment of compensation was appropriate in the circumstances. While there were a number of mitigating factors, when these were weighed against the seriousness of the crimes a sentence of correctional supervision was startlingly inappropriate and grossly lenient; a sentence of imprisonment was plainly warranted. In the present case, however, a fundamental and peculiar difficulty presented itself: the accused had served the sentence imposed upon him by the Court a I quo, and had paid the required compensation. The general rule that an appeal against sentence was to be decided on the facts in existence at the time of its imposition, and not on facts that arose afterwards, was not inflexible, and the Court was entitled to take account of the exceptional circumstances of the present case. It would be unduly harsh to impose a substantial custodial J

2006 (2) SACR p77

sentence at this stage, coupled, in effect, with the payment of R250 000. Justice would best be served if A a period of imprisonment were imposed which was suspended so as to take into account the imprisonment already served and the compensation paid. (Paragraphs [34] - [39] at 92e - 95j.)

Sentence set aside and replaced with sentences of ten years' imprisonment on the charge of murder; four years' imprisonment on the charge of attempted murder; and one year's imprisonment on the charge of assault with intent to do grievous bodily harm; all sentences to run B concurrently, and, save for eight months thereof, suspended conditionally for five years. Accused ordered to pay compensation in the amount of R250 000. Noted that the accused had already served eight months' imprisonment and paid the said compensation. (Paragraph [40] at 96a - e.)

Held (in a dissenting judgment per Heher JA), that the startling inappropriateness of the sentences warranted the C Court's intervention. The fact that the accused had served eight months' imprisonment could be taken into account relatively easily, but it was more difficult to deal with the payment of compensation when determining sentence afresh. Such payment constituted a substantial and compelling reason to deviate from the prescribed minimum sentence for murder. In addition, the accused was entitled to a reduction in D sentence in recognition of the inconvenience, disruption and anxiety caused by his return to prison so long after his having been released in the Commissioner's discretion. Accordingly, a fitting sentence for the murder was ten years' imprisonment. These circumstances could not benefit the accused twice and, therefore, he should serve the prescribed sentence of five years for attempted murder, and six months' imprisonment would be appropriate for the assault charge. E While a Court would always be reluctant to return an accused to prison under such circumstances, the demands of justice and the public interest required that the accused not be allowed to snatch at the bargain which the mistake of the trial Court had offered him. (Paragraphs [45] - [58] at 97e - 100a.)

Annotations:

Cases cited

Reported cases

Attorney-General, Free State v Ramokhosi 1999 (3) SA 588 (SCA): referred to F

Goodrich v Botha and Others 1954 (2) SA 540 (A): dictum at 546A - D applied

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum at 706 applied G

R v Gani 1958 (1) SA 102 (A): referred to

R v Hepworth 1928 AD 265: referred to

R v Hobson 1953 (4) SA 464 (A): referred to

R v...

To continue reading

Request your trial
24 practice notes
  • S v Masoanganye and Others
    • South Africa
    • Invalid date
    ...v Dladla and Others; S v Joubert; S v Schietekat 1999 (2)SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): referred toSvEB2010 (2) SACR 524 (SCA): referred toS v Hadebe and Others 1997 (2) SACR 641 (SCA): dictum at 645e–fappliedS v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): appl......
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...2 SACR 216 (C) ................ 467S v Kalogoropoulos 1993 1 SACR 12 (A) ............................................. 254S v Karolia 2006 2 SACR 75 (SCA) ....................................................... 254S v Kgosimore 1999 2 SACR 238 (SCA) ...............................................
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...431-432, 436S v Jordan 2002 (6) SA 642 (CC) ................................................................. 407S v Karolia 2006 (2) SACR 75 (SCA); [2004] 3 All SA 298 .......................... 278S v Kearns 2009 (2) SACR 684 (GSJ) ...............................................................
  • S v EB
    • South Africa
    • Invalid date
    ...v Immelman 1978 (3) SA 726 (A): referred toS v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): referred toS v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred toS v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC)(2008 (3) SA 232; 2007 (12) BCLR 1312): fo......
  • Request a trial to view additional results
21 cases
  • S v Masoanganye and Others
    • South Africa
    • Invalid date
    ...v Dladla and Others; S v Joubert; S v Schietekat 1999 (2)SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): referred toSvEB2010 (2) SACR 524 (SCA): referred toS v Hadebe and Others 1997 (2) SACR 641 (SCA): dictum at 645e–fappliedS v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): appl......
  • S v EB
    • South Africa
    • Invalid date
    ...v Immelman 1978 (3) SA 726 (A): referred toS v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): referred toS v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred toS v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC)(2008 (3) SA 232; 2007 (12) BCLR 1312): fo......
  • S v Le Roux and Others
    • South Africa
    • Invalid date
    ...1938 TPD 136: referred toR v Verster 1952 (2) SA 231 (A): referred toS v Barnard 2004 (1) SACR 191 (SCA): referred toS v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred toS v Mgedezi and Others 1989 (1) SA 687 (A): followedS v Mlotshwa and Others 1989 (4) SA 787 (W): referred......
  • S v Manyaka
    • South Africa
    • Invalid date
    ...SA 121): dictum at 9e – f applied S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): dictum in para [15] applied S v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred S v Kruger 1995 (1) SACR 27 (A): dictum at 31b – f applied S v Liesching and Others 2019 (1) SACR 178 (C......
  • Request a trial to view additional results
3 books & journal articles
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...2 SACR 216 (C) ................ 467S v Kalogoropoulos 1993 1 SACR 12 (A) ............................................. 254S v Karolia 2006 2 SACR 75 (SCA) ....................................................... 254S v Kgosimore 1999 2 SACR 238 (SCA) ...............................................
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...431-432, 436S v Jordan 2002 (6) SA 642 (CC) ................................................................. 407S v Karolia 2006 (2) SACR 75 (SCA); [2004] 3 All SA 298 .......................... 278S v Kearns 2009 (2) SACR 684 (GSJ) ...............................................................
  • Recent Case: Criminal procedure
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...(4) SA 464 (A) and Goodrich v Botha and Others 1954 (2) SA 540 (A) (at 546A-D). However, this rule is not immutable. In S v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298) the Supreme Court of Appeal held that where exceptional or peculiar circumstances occur after sentence has been im......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT