Van der Merwe and Others v S (A366/10) [2011] ZAFSHC 88; 2011 (2) SACR 509 (FB) (23 June 2011)

Van der Merwe and Others v S (A366/10) [2011] ZAFSHC 88; 2011 (2) SACR 509 (FB) (23 June 2011)

The appeal succeeded because the trial court materially misdirected itself by sentencing the appellants on a factual basis not admitted or proved, particularly regarding racial motivation and the scope of the offence. The trial court improperly relied on aggravating factors from the charge sheet and public opinion, rather than the facts pleaded and accepted in the section 112(2) statement. The urination and ingestion scenes were simulated, not real, and the complainants did not ingest contaminated food. The appellants showed genuine remorse, apologised publicly, and suffered significant social and academic consequences. The conditions attached to the suspended sentence were inappropriate,...

Citation
[2011] ZAFSHC 88
Parties
Appellant: Isak Schalk van der Merwe; Appellant: John Roberts; Appellant: Roelof Charles Malherbe; Appellant: Danie Grobler; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 June 2011
Case Number
A366/10
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld. The sentences imposed by the trial court are set aside and replaced with fines.
Judges
Rampai, Molemela
Legal Topics
Crimen Injuria, Sentencing Discretion, Mitigating and Aggravating Factors, Freedom of Expression, Racial Discrimination, Restorative Justice
Criminal Law Crimen Injuria Sentencing Discretion Mitigating and Aggravating Factors Freedom of Expression Racial Discrimination Restorative Justice

Case Brief

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Parties

Isak Schalk van der Merwe

Appellant

John Roberts

Appellant

Roelof Charles Malherbe

Appellant

Danie Grobler

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court materially misdirected itself in sentencing the appellants for crimen injuria.
  2. 2 Whether the sentence imposed was disproportionate to the facts as pleaded and accepted.
  3. 3 Whether the trial court improperly relied on aggravating factors not admitted or proved.

Ratio Decidendi

The appeal succeeded because the trial court materially misdirected itself by sentencing the appellants on a factual basis not admitted or proved, particularly regarding racial motivation and the scope of the offence. The trial court improperly relied on aggravating factors from the charge sheet and public opinion, rather than the facts pleaded and accepted in the section 112(2) statement. The urination and ingestion scenes were simulated, not real, and the complainants did not ingest contaminated food. The appellants showed genuine remorse, apologised publicly, and suffered significant social and academic consequences. The conditions attached to the suspended sentence were inappropriate,...

Court Disposition

Appeal against sentence upheld. The sentences imposed by the trial court are set aside and replaced with fines.

Orders

  • The appeal against sentence succeeds.
  • The sentence imposed on 30 July 2010 is set aside and substituted as follows: