S v Van der Merwe and Others

• Jurisdiction: South Africa
• Citation: 2011 (2) SACR 509 (FB)

S v Van der Merwe and Others
2011 (2) SACR 509 (FB)

2011 (2) SACR p509

Citation	2011 (2) SACR 509 (FB)
Case No	A 366/2010
Court	Free State High Court, Bloemfontein
Judge	Rampai J and Molemela J
Heard	June 13, 2011
Judgment	June 23, 2011
Counsel	KJ Kemp SC for the appellants.; JJ Kruger for the State.

Flynote : Sleutelwoorde

Evidence — Documentary evidence — Media article handed in by accused to B demonstrate how they were, as result of their alleged conduct, portrayed in public media as loathsome, deserving of severe punishment — Whether defence, by handing in such article, admitting content thereof as true — Content of article only establishing fact of how appellants portrayed, not C truth thereof — Such article hearsay in absence of those to whom views attributed testifying — Sentencing court going beyond specific purpose for which article handed in by having relied on its content as being true and conveying true reflection of legal convictions of community — Unfair to accused, given specific purpose for which media article exhibited, to have used views expressed therein as factor aggravating sentence — Also unfair to accused for such views to have been taken into account without D affording accused opportunity of dealing with those views.

Sentence — Imposition of — Factual basis for — Plea explanation in terms of s 112(2) of Criminal Procedure Act 51 of 1977 — Fact that plea explanation not denying certain averments made in charge-sheet not constituting tacit admission thereof — Plea so explained and accepted constituting factual E matrix upon which sentence to be considered and imposed — Such factual matrix cannot be extended or varied in manner adversely impacting on measure of punishment.

Sentence — Imprisonment — Suspension of — Conditions of suspension — Where trial court suspending sentence of imprisonment on condition of F Equality Court not making rulings in terms of s 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 during period of suspension — In Equality Court proceedings, quantum of proof, rulings and remedies essentially civil in nature — Allowing suspended criminal sentence being triggered on strength of civil wrong might lead to absurd repercussions. G

Headnote : Kopnota

The appellants had been convicted in a magistrates' court on charges of crimen injuria and each sentenced to a fine of R20 000 or 12 months' imprisonment, plus a further six months' imprisonment conditionally suspended for five years. The charges arose out of a video recording they had made to express their opposition to the policy, of the university they attended, of H promoting racial integration of the university students' residence in which they resided. It featured an initiation ritual in which the complainants — black staff members at same university — appeared to be forced by the appellants into ingesting a concocted brew and thereafter vomiting. The appellants also appeared to have urinated into the brew and, during the episode, referred to the complainants as 'whores'. I

The facts as pleaded in appellants' plea explanation in terms of s 112(2) were accepted by the State and supported the contention that the urination, ingestion and vomiting were all simulated. No formal admissions were made in the appellants' plea explanations admitting to the averments in the charge-sheet that the iniuria was racially motivated. The State alleged that what appeared in the video recording was real — that the complainants were depicted as inferior and unintelligent human beings, thereby impairing not J

2011 (2) SACR p510

A only their human dignity but also 'extensively and tacitly' that of blacks in general and/or the black students and personnel of the university in particular.

The grounds of appeal were that — (a) the sentence was disproportionate to the offence in the context and relevant circumstances; (b) the fine exceeded the court's jurisdiction; (c) the use of a newspaper article to reflect the B convictions of the community was not competent ; (d) the plea and the facts upon which it rested were not based on racial insult — the behaviour to which was pleaded guilty impugned the dignity of the complainants as human beings; and (e) a sentence of suspended imprisonment was not appropriate and, in particular, linking the condition of suspension thereof to s 21 of Act 4 of 2000 was not appropriate or permissible.

C Held, that, where an accused person pleaded guilty and handed in a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, detailing the facts on which his plea was premised, and the prosecution accepted the plea, the plea so explained and accepted constituted the essential factual matrix on the strength of which sentence should be considered and imposed. Such an essential factual matrix could not be D extended or varied in a manner that adversely impacted on the measure of punishment as regards the offender. The facts, as pleaded and accepted, supported the contention that the urination, ingestion and vomiting were all simulated. Simulated offensive conduct towards the complainants was, without their consent, made to look real. In that secret depiction lay the iniuria — indeed the video was not evidence of the iniuria, it was iniuria. It E has to be accepted that the two groups were performing, in other words, play-acting. To the extent that the court a quo found otherwise, it materially erred. (Paragraphs [30] and [42] at 518e–f and 521c–e.)

Held, further, that, in the circumstances, the court a quo could not have approached the matter of sentence anyhow save on those facts plus the undisputed facts whereby those facts were amplified by the prosecution and F defence during the course of closing arguments. It was however clear from the original as well as supplementary reasons for judgment that the court a quo did not approach the sentencing on such factual premise; instead reckoning that, because the appellants had not expressly taken issue with the racial averments embodied in the charge-sheet, such averments were tacitly admitted and thus constituted facts on which sentence could be G validly premised. This reasoning was materially flawed and the finding relative to racism, which the court a quo regarded as a strongly aggravating factor, was a monumental misdirection. (Paragraphs [22]–[23] at 516f–517a.)

Held, further, that the reliance placed by the sentencing court upon the contents of the press article — handed in by the defence in order to demonstrate how H the accused were portrayed in the press and public media as extremely loathsome persons who deserved very severe punishment — as being true and conveying a true reflection of the legal convictions of the community, had adversely influenced the determination of a balanced sentence. It was unfair to the accused for those views to have been taken into account in such a manner, given the specific purpose for which the article was handed I in. It was also unfair to have accentuated the punitive aspects of the public opinion so expressed without affording the defence an opportunity of dealing therewith. (Paragraphs [46]–[48] at 521i–522h.)

Held, further, that the linking of future rulings by the Equality Court [as suspensive conditions to sentences of imprisonment imposed against the appellants] appeared undesirable. The Equality Court proceedings — the J quantum of proof and the ultimate rulings and remedies — were essentially

2011 (2) SACR p511

civil in nature. Allowing a suspended criminal sentence to be triggered and A put into operation on the strength of a civil wrong or transgression could lead to absurd repercussions. Our domestic jurisdiction had not yet developed that far. (Paragraph [73] at 528a – c.) The appeal was allowed and the sentences of the first and third appellants altered to one of a fine of R10 000 each and the sentences of the second and fourth appellants altered to a fine of R15 000 each. It was further ordered that the appellants had to B appear before the court on a stated date should they fail to pay the fines, so that the court could impose a sentence of imprisonment.

Annotations:

Cases cited

Reported cases

Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A): applied C

Payslip Investment Holdings CC v Y2K TEC Ltd 2001 (4) SA 781 (C): dictum at 788 applied

R v Shuba 1958 (3) SA 844 (C): compared

S v Blank 1995 (1) SACR 62 (A): dictum at 65h applied D

S v Caleni 1990 (1) SACR 178 (C): compared

S v Giannoulis 1975 (4) SA 867 (A): dictum at 868F applied

S v Hoho 2009 (1) SACR 276 (SCA): dictum in para [29] applied

S v Jansen 1999 (2) SACR 368 (C): dicta at 370g – 371g applied

S v Kgosimore 1999 (2) SACR 238 (SCA): dictum at 241g applied

S v Kibido 1998 (2) SACR 213 (SCA): dictum at 216h applied E

S v Labuschagne and 19 Other Cases 1990 (1) SACR 313 (E): dictum at 315 – 316 compared

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665): applied

S v Olyn en Andere 1990 (2) SA 73 (NC): compared

S v Pillay 1977 (4) SA 531 (A): dictum at 535E – G applied F

S v Rooi 2007 (1) SACR 668 (C): dictum at 671 compared

S v Salzwedel and Others 1999 (2) SACR 586 (SCA) (2000 (1) SA 786; [2000] 1 All SA 229): dictum in para [10] applied

S v Scheepers 1977 (2) SA 154 (A): dictum at 159B – C applied

S v Schulz 1991 (1) SACR 679 (E): dictum at 680 compared

S v Scott-Crossley 2007 (2) SACR 470 (SCA): referred to G

S v Sibeko 1995 (1) SACR 186 (W): dictum at 189 compared

S v Smith 2003 (2) SACR 135 (SCA): dictum in para [4] applied

South Peninsula Municipality v Evans and Others 2001 (1) SA 271 (C): applied.

Legislation cited

Statutes H

The Criminal Procedure Act 51 of 1977, s 112(2): see Juta's Statutes of South Africa...