De Witt v S (A228/2019) [2021] ZAFSHC 297 (12 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A228/2019

In the matter of:

JOSIAS

ALEXANDER DE

WITT

APPELLANT

versus

THE

STATE

RESPONDENT

CORAM: NAIDOO, J et

PAGE AJ

JUDGMENT BY: NAIDOO,

J

HEARD ON:

23 AUGUST 2021

DELIVERED ON: 12 NOVEMBER 2021

[1] The appellant comes before us with the leave of the court a quo in an appeal against the convictions and sentences imposed on him by the Regional Court, Bloemfontein. Mr P Peyper represented the appellant in this court and Adv D Pretorius represented the State. The appellant faced five charges in respect of various offences as follows:

1.1 Count 1 – Animal abuse in contravention of the Animal Protection Act 71 of 1962;

1.2 Count 2 – Assault with Intent to cause Grievous Bodily Harm;

1.3 Count 3 – Arson;

1.4 Count 4 – Contravention of a Protection Order granted in terms of the Domestic Violence Act, and

1.5 Count 5 - contravening section 90 of the Firearms Act, the charge being one of unlawful possession of ammunition.

The appellant was found not guilty in respect of count 1 and guilty on counts 2 to 5. He was sentenced as follows:

1.6 Count 2 – Eighteen (18) months’ imprisonment

1.7 Count 3 – Five (5) years’ imprisonment;

1.8 Count 4 – Three (3) months’ imprisonment, wholly suspended for 3 years on certain conditions

1.9 Count 5 – Six (6) months’ imprisonment, wholly suspended for three (3) years on certain conditions

The court ordered 12 months of the sentence imposed in count 2 to run concurrently with the sentence imposed in count 3. The appellant was therefore sentenced to an effective Five (5) years and Six (6) months’ imprisonment.

[2] The convictions and sentences were assailed on a number of grounds, as set out in the Notice of Appeal. A broad summary is that the court erred in:

2.1 not evaluating the evidence properly;

2.2 not properly taking into account the contradictions in the evidence of the state witnesses and finding that the state witnesses were reliable;

2.3 finding that the state had proved its case (in respect of counts 2 – 5) beyond reasonable doubt and ignoring that the burden of proof remained on the state;

2.4 finding that the contradictions in the evidence of the state witnesses was not material and failing to give the benefit of the doubt to the appellant;

2.5 allowing hearsay evidence and convicting the appellant on circumstantial evidence;

2.6 failing to properly weigh the version of the state against that of the appellant, finding that the appellant’s version was reasonably possibly true and rendering a verdict of not guilty.

[3] With regard to the sentences imposed, the appellant asserts that the court erred in:

3.1 imposing a shockingly inappropriate sentence and by imposing a

sentence of direct imprisonment;

3.2 not taking proper account of the appellant’s personal circumstances, particularly that he is a first offender and has good chances of rehabilitation;

3.3 over-emphasising the aggravating circumstances of the crime and the community interest at the expense of the mitigating circumstances of the accused;

3.4 not considering other sentencing options.

[4] A brief summary of the background of this case, which led to the appellant being arrested, charged and convicted, is that the accused and the complainant in count 2, Susanna Elizabeth De Witt (Mrs De Witt) were married to each other. The marriage relationship was a very stormy one, and was aggravated by the presence of Mrs De Witt’s daughter, Martha Jacoba Van Tonder, also known as Marle (Marle). The appellant did not enjoy a good relationship with Marle. When Marle’s dog dug up some plants which were newly planted by the appellant, he pushed the dog away, and this appears to have precipitated a disagreement between Marle and the appellant. The incident soon escalated into an assault which left Marle with an open wound on her thigh, a swollen eye and blue marks on her arm. This incident is the subject matter of count 2.

[5] A few days later, Mrs De Witt and Marle moved out of the appellant’s

home to a property owned by Mrs De Witt in Montgomery Street in another suburb. Thereafter, Mrs De Witt obtained a Protection Order, in terms of the Domestic Violence Act 116 of 1998, against the appellant, in terms of which he was, inter alia, prohibited from abusing her in any way, including economically, and from entering her property in Montgomery Street.

[6] Fast forward to New Year’s Eve 2016. Mrs De Witt and her family spent the evening at her friend’s home but she returned home around 23h30 so that the dogs would not be alone at midnight when it was expected that people would light fireworks. She found her house on fire, and the appellant was seen in the yard of her property. His hand appeared injured. Mrs De Witt and her tenant lost all their belongings, and the two dogs also lost their lives in the fire. The appellant was arrested at the scene, and when the police searched his vehicle which was parked on the kerb outside Mrs De Witt’s house, they found a box of ammunition. Mrs De Witt’s car, which was parked in her yard had to be moved to prevent it from also burning.

[7] The appellant’s defence is that he was driving past Mrs De Witt’s house and noticed someone coming out of her property. He stopped to investigate, and soon realised there were four people and that the house was on fire. He ostensibly pursued these people and in a confrontation with one or more of them, his hand was injured when he tried to disarm one of his knife-wielding assailants.

He also entered the premises of various neighbours during the course of this incident and had conversations with them. The neighbours also testified to this effect.

[8] It is a trite and well-established principle of our law that, in the absence of any misdirection, the factual and credibility findings made by a trial court are presumed to be correct. (See S v Francis 1991 (1) SACR 198 (SCA) at 204 e-d.) An appeal court may, therefore, only interfere with the findings of a trial court if there is a clear misdirection and not simply because it would have come to a different conclusion. The trial court has the opportunity to see, hear and appraise witnesses, so that it is in a far more advantageous position to assess and evaluate evidence and make conclusions based on the evidence than a court of appeal. Such conclusions must therefore take precedence, in the absence of a clear misdirection. In S v Pistorius 2014 (2) SACR 315 (SCA), the Supreme Court of Appeal held at para 30 that:

'It is a time-honoured principle that once a trial court has made credibility findings, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Kebana 2010 (1) All SA 310 (SCA) para 12. It can hardly be disputed that the magistrate had advantages which we, as an appeal court, do not have of having seen, observed and heard the witnesses testify in his presence in court. As the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings.'

[9] The court a quo undertook a thorough examination of the evidence presented, and analysed the evidence very carefully. The court was acutely aware of the discrepancies in the evidence of some of the state witnesses, as well the fact that this was an emotionally charged matter where character evidence abounded on both sides, and that both the state witnesses and the appellant embellished their evidence in an attempt to create a poor impression of the other. An example is where witness Lizette Opperman and her boyfriend, Hendrik Jacobus Odendaal testified that they observed soot on the appellant’s body and black burn marks on the appellant’s hand, whereas the paramedic who treated his injury stated that he did not observe soot or burn marks, but only the cuts on his hand and wrist.

[10] The court specifically mentioned that in evaluating the evidence as a whole, it was sometimes apparent that there was ill-will on the part of the state witnesses towards the appellant, specifically Mrs de Witt, Marle, Ms Opperman and Mr Odendaal The court reminded itself to approach their evidence against that background and with caution. The court found no reason to doubt the evidence of the independent witnesses in the form of the Ms Greyling the forensic expert who testified about the cause of the fire, Messrs Rothman and Struwig, who were the two neighbours of Mrs De Witt, Warrant Officer Williams who served the Domestic Violence Protection Order on the appellant and Ms Fouche, the tenant of Mrs De Witt. The court analysed the evidence count by count, and carefully separated the objective facts from the rest of the evidence, basing its conclusions

on such objective facts and its impression of the witnesses. I am unable to fault the reasoning of the court a quo on any of the counts, except count 5. I will deal further with this aspect below.

[11] In terms of the Firearms Control Act 60 of 2000, ammunition is defined as “a primer or complete cartridge”. The Act defines ‘calibre’ as “…a cartridge as described by dimensions and make, mark, model or type” and a cartridge as “...a complete object consisting of a cartridge case, primer, propellant and bullet”. It is so that Sergeant Sothoane recovered the ammunition from the appellant’s vehicle. Mr Peyper for the appellant correctly pointed out that the accused (as confirmed by some of the state witnesses) was not present when his vehicle was searched, nor is there any evidence on record that the appellant’s rights were explained to him prior to his vehicle being searched. In addition, there appears to be some confusion regarding the calibre of the ammunition found. Sgt Sothoane said that he was following what was written on the box, namely 9mm, whereas the Exhibit Register (SAP 13) reflects the calibre of the ammunition as 7.65mm. It is trite that the state must prove the calibre of the ammunition in order to ascertain whether the appellant has a licence to possess such ammunition. This was not done. In any event the state conceded that the conviction in respect of count 5 is not well founded. It is not necessary to deal any further with this aspect, as it is also my view that the conviction in respect of count 5 cannot be sustained.

[12] I turn now to deal with the sentences. The appellant’s personal circumstances that were put on record are that he is a 68 year old man, who was married to the complainant in count 3, Mrs Susanna Elizabeth De Witt, who subsequently reverted to her previous surname of Van Tonder. The appellant is not employed but rents accommodation in properties he owns, as a business. He is a first offender and would suffer great financial loss if he were imprisoned. He also supports people who are not family members. The appellant’s legal representative argued for a non-custodial sentence.

[13] Sentencing is a matter which is within the discretion of the trial court. It is trite that an appeal court will only interfere with a sentence if the trial court misdirected itself in imposing sentence or its discretion is vitiated by irregularity, or if the sentence is unreasonable, unjust or disproportionate to the offence. This trite principle has been well settled in our law, and was succinctly enunciated over 45 years ago in the case of S v Rabie 1975(4) 855 (A) at 857, where Holmes JA said:

“1. In every appeal against sentence, whether imposed by a magistrate or a

Judge, the Court hearing the appeal -

(a) should be guided by the principle that punishment is

"pre-eminently a matter for the discretion of the trial Court";

and

(b) should be careful not to erode such discretion: hence the further principle

that the sentence should only be altered if the discretion has not been

"judicially and properly exercised".

2. The test under (b) is whether the sentence is vitiated by irregularity or

misdirection or is disturbingly inappropriate”.

Subsequently, this principle was re-iterated in the much-quoted case of S v Malgas 2001(1) SACR, 469 (SCA) at, 478 para12, where the court remarked that:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh”.

[14] In considering an appropriate sentence, the trial court must not only balance several competing interests, such as the interests of the accused person, the gravity of the offence and the interests of society, but must also bear in mind the purpose of sentence, namely retribution, personal and general deterrence and rehabilitation. To over-emphasise any one factor could lead to an unfair and unjust sentence. In the current matter, one of the grounds on which the sentences were assailed was that the trial court attached too little weight to the personal circumstances of the appellant, and over-emphasised the interests of society and the gravity of the offence.

[15] The court a quo in this matter delivered a detailed judgment on sentence and comprehensively considered every factor that was pertinent to the appellant and to the consideration of an appropriate sentence, such as his age, the fact that he is a first offender, that he owns and hires property for a living and that he supports three people

with disabilities, who are not family. The court also undertook the exercise of examining several cases where the courts imposed sentences of direct imprisonment on elderly offenders. The court also examined the sentences in cases where the accused were convicted of arson. The appellant’s lack of remorse and refusal to accept responsibility for his actions were also considered by the court. The ground of appeal that the trial court did not consider other sentencing options cannot be sustained, as the court clearly did so, and concluded that correctional supervision was not a suitable sentencing option in this matter.

[16] While retribution and deterrence are important factors to consider in sentencing an accused person, they should not become the overriding purposes of sentence, as was enunciated in S v Scott-Crossley 2008(1) SACR 223 (SCA) at para 35, where the court said: “Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. Against that must be weighed the appellant’s prospects of reformation and rehabilitation…It is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society”.

[17] There is no doubt that the seriousness of the offences in this matter call for stern sanction in order to reflect that society is intolerant of such offences and that the courts will deal sternly with perpetrators of

such offences. The court was, however, cogniscent of the cumulative effect of the sentences in this matter where the appellant was convicted on multiple counts, and tempered the sentences accordingly, indicating the measure of the court’s mercy. The court’s reasons for sentence and the sentences imposed are devoid of any misdirection, so that this court’s interference in the sentences imposed is not warranted. I have already indicated this court’s view in respect of the conviction in respect of count 5.

[18] In the circumstances, the following order is made:

18.1 The convictions imposed by the trial court are substituted with the following:

“Counts 1 and 5 – Not Guilty;

Counts 2, 3 and 4 - Guilty

18.2 The accused is sentenced as follows:

Count 2 – Eighteen (18) months’ imprisonment

Count 3 - Five (5) years’ imprisonment

Count 4 - Three (3) months’ imprisonment which is wholly suspended for three (3) years on condition that the accused is not convicted of contravening section 17(a) of Act 116 of 1998, committed during the period of suspension

18.3 Twelve months of the sentence in count 2 is ordered to run concurrently with the sentence in count 3.”

18.4 The sentences herein are ante-dated to 17 April 2019

S NAIDOO J

I concur

C PAGE AJ

On behalf of the appellant: Mr P Peyper

Peyper Lessing Attorneys

39C First Avenue

Westdene

Bloemfontein

(Ref: P Peyper/DP0099)

On behalf of the Respondent: Adv D Pretorius

Office of the DPP