Court name
High Court Main Division
Case number
CA 53 of 2013
Case name
Lang v S
Media neutral citation
[2013] NAHCMD 342
Judge
Miller AJ


















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy



 


REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


 


JUDGMENT





Case
no:
CA 53/2013


Reportable


 


In
the matter between:


 


ADRIAN
JOHN
LANG                                                                                          
APPELLANT


and


THE
STATE                                                                                                       
RESPONDENT


 


 


Neutral
citation: 
Lang v The State
(CA 53/2013) [2013] NAHCMD 342 (18 November 2013)


 


Coram:         
SMUTS, J
et MILLER
AJ


Heard:           
28 October 2013


Delivered:     
18 November 2013


 


Flynote:        
Appeal against sentence of 5 years
imprisonment with two years suspended for culpable homicide. The
appellant had fired warning shots in order to arrest the deceased who
was poaching on the appellant’s farm. The regional magistrate
said that the appellant’s offences must have shocked a small
community like O […] and referred to the appellant taking the
law into his own hands. But there were no facts before her as to how
the community in O […] was affected. Nor did the facts
establish that the appellant took the law into his own hands. The
purpose of firing warning shots was to affect an arrest. The court
found that the regional magistrate misdirected herself by over
emphasizing what she considered to be the interests of society in
balancing process which is inherent to sentencing as set out by the
Supreme Court in
S v van Wyk 1993
NR 425 at 448. The regional magistrate also misdirected herself by
failing to consider an alternative to a sentence of imprisonment and
also misdirected herself in wrongly referring to the evidence of a
clinical psychologist as hearsay evidence and not properly evaluating
that evidence. The sentence was disturbingly inappropriate, taking
into account the uncontested facts of the crime. Sentence set aside
and substituted by a fine of N$15 000 or 2 years imprisonment plus 3
years suspended.


ORDER






In
the result the appeal succeeds. The sentence imposed on count 1 is
set aside and is substituted by the following sentence: ' The accused
is sentenced to a fine of N$15, 000.00 or 2 years imprisonment. The
accused is in addition sentenced to three years imprisonment which is
entirely suspended for a period of five years on condition that the
accused is not convicted of culpable homicide or any other offence
involving injury to the person of another committed during the period
of suspension and for which he is sentenced to imprisonment without
the option of a fine.’





JUDGMENT





 


MILLER
AJ  (SMUTS, J concurring):
       
[1]        The
appellant appeared before the learned regional magistrate sitting at
Swakopmund. He was arraigned on the following main and alternative
charges:


 



1)   
Murder



2)   
Attempted Murder



Alternatively to
count 2 a contravention of Section 38 (1) (1) of Act 7 of 1996 as
amended (Negligent discharge of a fire-arm).



3)   
Attempted Murder



Alternatively a
further contravention of Section 38 (1) (1) of Act 7 of 1996 as
amended.



4)   
A contravention of Section 29 (1) (a) of Act 7 of
1996 as amended (Possession of a machine gun), alternatively a
contravention of Section 2 of Act 7 of 1996 as amended (Possession of
an unlicensed fire-arm).


 


[2] 
A fifth charge in the indictment was withdrawn by the prosecutor
prior to the appellant pleading thereto.


 


[3] 
As a consequence the appellant pleaded to and the trial proceeded on
the four charges I referred to.


 


[4] 
The appellant, who was legally represented at the trial, pleaded not
guilty to all the charges. The learned regional magistrate, after
hearing and considering a substantial body of evidence concluded in a
comprehensive and reasoned judgment that the state had established
beyond reasonable doubt that the appellant was guilty of the
following crimes:



 



1)   
Culpable Homicide which relate to count 1.



2,3,4  The
alternative charges in respect of Count 2, 3 and 4.


 


[5]       
There is no appeal, and in my view correctly so, against any of the
convictions.


 


[6]       
I need only add that the learned regional magistrate concluded in her
judgment insofar as the matrix of facts is concerned, that there was
a reasonable possibility that the facts deposed to by the appellant
and the witnesses called on his behalf were reasonably possibly true.
It follows that those facts underpinned the convictions. The relevant
facts were conveniently and correctly summarized by Mr. Botes, who
appeared for the appellant before us in the Heads of Argument filed
prior to the hearing of the appeal. They are the following:


 


           


21.1    
Appellant and his family (his wife and elderly mother); at the time
of the incident during 2010 were residing on farm O […].
He also owned the property adjacent to it i.e. O […].
This is in the O […] district close to the
town of O […] and between 6 & 10 km
from the township of O […].





21.2    
Appellant was self-employed as a land surveyor and a part-time farmer
and also a lodge owner (Wilderness Safari Lodge); situated on the
property referred to supra.





21.3    
Appellant farmed with his father on the property for approximately 23
years.





21.4    
The farm consists of an area of approximately 8,500 hectares.





21.5    
Appellant and his father initially started farming with cattle. They
later had to give up cattle farming because of continuous stock
losses due to theft.





21.6    
The farm was losing approximately 30 head of cattle per year.





21.7    
After abandoning cattle farming appellant built a lodge on the farm
in order to establish himself in the tourism business.





21.8    
Appellant started with a horse stud; having very expensive horses
which differed in value; but in the range of N$50, 000.00 –
N$150, 000.00


per
horse.





21.9    
Due to poaching the wildlife numbers dwindled and there is not much
left of a previously prosperous and abundance of wildlife. The game
numbers on the farm have decreased to a point where it was nearly
impossible to actually shoot game on the farm for self-consumption.





21.10  
Appellant, at the time of the incident, had a number of cases pending
that he reported to the Namibian Police in O […]
in respect of poaching.


21.11  
Approximately 20 Oryx would be caught in snares on a monthly basis on
the farm referred to supra, which is in fact situated in a sanctuary
area or also referred to as a conservancy area.





21.12  
The tourists that were visiting the lodge did so basically with the
view of seeing wild animals. This was not possible anymore.





21.13  
Appellant employed a poaching unit which was headed by Mr. L M Venter
(one of the state witnesses called).





21.14  
Not only is appellant’s farm secured by a security fence but
his homestead is also surrounded by an additional security fence.
There was an incident during the year of 2009 where he found an
intruder inside his property and in fact found the person running
from his house inside the security fence area; fleeing the scene.





21.15  
Prior to this incident the appellant’s parents, who lived on
the property were robbed from jewellery, a firearm and other
valuables. The firearm so robbed was later found to be the firearm
that was used to kill their very good and close friends, the Kruger
family.





21.16  
On the date of the incident in 2010 the appellant once again, as
numerous times in the past found one of his horses with a snare
around


its
neck.





21.17  
Appellant then contacted the Anti-Poaching Unit in order to assist
him as he had every reason to believe that there were poachers on the
farm busy stealing his game and possibly attempting to steal his
horses.





21.18  
According to state witness L M Venter, the head of the Anti-Poaching
unit, stock theft and poaching is an acute and huge problem in the
district of O […]. He testified that he is
aware of the fact that the appellant was in fact forced to abandon
his Bonsmara Cattle Stud due to stock theft. The witness testified
that game used to be in abundance on the farm of the appellant, but
the numbers have decreased dramatically. This witness also relates
and was in fact involved in the investigation of the Kruger murders,
referred to supra.





21.19  
Witness L M Venter testified that he knew the deceased person, J.H.,
as he arrested him in the past for poaching on the farm of the
appellant. He in fact served a period of imprisonment of six months.


 


The
incident where J.H. was injured and died


 


22.      
Appellant found one of his stud horses with a snare around the neck
on the date of the incident.





23.      
He phoned Mr. L Venter of the security company / Anti-Poaching Unit
to come and assist. Mr Venter indicated that he does not have
transport and requested the appellant to assist the Anti-Poaching
Unit’s members who were on the farm at that point in time.





24.      
When appellant approached the poachers and over a distance of
approximately 60m he shouted to them to sit down and not jump up or
run away. When the first of the poachers jumped up and started
running he fired a warning shot. He thereafter fired a number of
further shots which shots he aimed at the hill lock. Appellant did
this as he was hoping that the fleeing poachers would become afraid
and stop in order to surrender / allow themselves to be arrested.





25.      
Behind the hill lock was a very densely populated area with bushes
and trees. If a person would reach this area it will be unlikely to
apprehend such fleeing person.





26.      
According to the observations of Mr L M Venter, state witness, he
stated that he was of the opinion that the appellant was not aiming
directly at the fleeing suspects as he found the white marks on the
granite hill-lock where the bullets struck the rocks.’


 


[7]       
I need only add that during this incident, the deceased J.H. was
fatally wounded. His companion was also wounded, but survived.


 


[8]       
Prior to imposing sentence the learned magistrate heard the evidence
of a psychologist, Gerhard Meier, who was called by the appellant and
a social worker who was called by the State. The thrust of Mr.
Meier’s evidence is that the situation that prevailed on the
farm of the appellant and the situation in which he found himself
induced in the appellant a state of depression for which he had been
receiving treatment to which he responded favourably.


 


[9]       
Mr. Meier was of the opinion that the prognosis to keep the
depression under control will be better if the appellant was not
sentenced to a term of imprisonment.


 


[10]     
The evidence of the social worker was to the effect that the
appellant will receive treatment for his condition if he was
imprisoned.


 


[11]     
The learned regional magistrate in her judgment on sentence concluded
that a custodial sentence was the appropriate sentence to impose on
count 1, the conviction of culpable homicide. In respect of that
conviction the following sentence was imposed:


 



Five years imprisonment of which
two years are suspended for a period of five years on condition that
the accused is not convicted of culpable homicide or any offence of
which violence towards the body of another person is an element
committed during the period of suspension.’


 


[12]     
The present appeal lies against that sentence. On the remaining
counts fines with the alternative of imprisonment were imposed.


 


[13]     
The Notice of Appeal lists some 21 grounds on which the sentence
imposed is attacked.


 


[14]     
I do not deem it necessary to quote those in full. In essence it is
stated that the learned regional magistrate misdirected herself in
several respects and that in any event the sentence imposed is
startlingly inappropriate.


 


[15]     
In S v Tjiho 1991 NR (HC) Levy J said the following at 365 A –
B:


 


           
The appeal court is
entitled to interfere with the sentence if:


(i)           
The trial court misdirected itself on the facts or on the law;





(ii)          
An irregularity which was material occurred during the sentencing
proceedings;





(iii)         
The trial court failed to take into account material facts and/or
over emphasized the importance of other facts;





(iv)        
The sentence imposed is startlingly inappropriate, induces a sense of
shock and there is a striking disparity between the sentence imposed
by the trial court and that which would have been imposed by a court
of appeal.’


 


[16]           
These principles, if I may call them that correctly summarize our law
on this score and is a convenient distillation of a fair number of
judgments both in this Court and South African Courts.


 


[17]           
The task of the trial court is to consider the nature of the crime
which will include the circumstances under which it was committed,
the personal circumstances of the accused so convicted and the
interests of society and then to impose in the words of Holmes JA a
sentence that…


 



should fit the criminal as
well as the crime, be fair to society and be blended with a measure
of mercy according to the circumstances.’


 



S v Rabie, 1975
(4) SA 855 (A) at 862 G-H.



Ackermann AJA in his
judgment in S v Van Wyk 1993 NR 426 (SC) was in my respectful
view correct when he said the following at 448 D-F:



 



As in many cases of
sentencing, the difficulty arises, not so much from the general
principles applicable, but from the complicated task of trying to
harmonize these principles and to apply them to the facts. The duty
to harmonize and balance does not imply that equal weight or value
must be given to the different factors. Situations can arise where it
is necessary (indeed it is often unavoidable) to emphasize one at the
expense of the other.’


 


[18]           
The learned regional magistrate when dealing with the interest of
society expressed herself in the following way:


 



Now if one looks at the
interest of society, society expect the Court to uphold the law and
order, not to take the law into own hands. These offences before the
Court must have shocked a small community like O [….] and it
must not be lost sight of the fact, that as already, one incident
happened in 2009 the other 2010.’


 


[19]           
That the community of
O [….] must have
been shocked by these incidents is an assumption not based on any
evidence. Given the fact that stock farming in the
O [….]
district is not an occupation for the feint-hearted. I
do not know how that community reacted. Conceivably there may have
been some empathy for the appellant given the circumstances.  I
believe it to be more correct that right-thinking members of society
will recognize that persons must not take the law into their own
hands and to expect that those who do so to be convicted and
sentenced. I am not persuaded that they will expect that in all cases
a custodial sentence must be imposed.


 


[20]           
Moreover the facts of this case do not establish that the appellant
took the law into his own hands. The purpose of him firing the shots
was not to exact some summary and arbitrary punishment. To the
contrary it was an attempt to arrest the fleeing suspects in order to
have them arrested and brought to Court.


 


[21]           
In my view the conclusion of the learned regional magistrate proceeds
not only from the wrong factual premise, but the interest of society
is overemphasized in the balancing process referred to by Ackermann
AJA in van Wyk (supra).


 


[22]           
In my view the learned regional magistrate erred on the facts by
finding that the evidence of Mr. Meier is mainly hearsay. Clearly it
is not. The result in my view is that the evidence of Mr. Meier was
not properly evaluated and accorded the weight it otherwise deserved.


 


[23]           
In finding that because a life was lost through the negligence of the
appellant and that consequently a heavier sentence than would
otherwise have been imposed, the learned regional magistrate seeks to
rely on a passage from the judgment of Parker J and Manyarara AJ in S
v Simon
2007 (2) NR 500 (HC). I think the passage the learned
regional magistrate had in mind is the one appearing at 517 C-D which
reads as follows:


 



It has been held that if
the consequences of the accused person’s negligence has
resulted in serious injury to others or a loss of life such
consequences will almost inevitably constitute an aggravating factor
warranting a more severe sentence than might
otherwise have been imposed (S v Nxumalo 1982 (3) SA 856 (A)
at 861 H).’


 


[24]           
This passage must not be read in isolation as the learned magistrate
seems to have done. At 518 D-F the Court states the following:


 



It appears to us that in
the present case in determining an appropriate sentence the Court
must have regard to the degree of culpability or blameworthiness
exhibited by the appellant in committing the “negligent act”
for which he was convicted. And, in doing so, the Court ought to take
into account the appellant’s unreasonable conduct in the
circumstances, foreseeability of the consequences of his negligence,
and the consequences of his negligent act (S v Nxumalo (supra
at 861 G-H). Indeed the community expects that a serious offence will
be punished, but also expects at the same time that mitigating
circumstances must be taken into account and the accused person’s 
particular position deserves thorough recognition:  that is
sentencing according to the demands of our time.’


 


[25]           
It is also helpful to always bear in mind what was stated in S v
Scheepers
1977 (2) SA 154 (A) at 155 A-B:


 



Imprisonment is not the
only punishment which is appropriate for retributive and deterrent
purposes. If the same purposes in regard to the nature of the offence
and the interest of the public can be attained by means of an
alternative punishment to imprisonment, preference should, in the
interest of the convicted offender, be given to alternative
punishments in the imposition of sentence. Imprisonment is only
justified if it is necessary that the offender be removed from
society for the protection of the public and if the objects striven
for by the sentencing authority can not be attained with any
alternative punishment.’


 


[26]           
In casu the learned regional magistrate found that the only
appropriate sentence was one of imprisonment. What is absent from the
reasoning are the reasons why alternative sentences were considered
to be not fitting.


 


[27]           
In my view ultimately the learned regional magistrate misdirected
herself in the respects I dealt with. There may well be others but
the ones I mentioned are of sufficient weight to entitle us to
interfere with the sentence.


 


[28]           
Sitting as the Court of first instance I would have imposed a
sentence that did not have the inevitable effect that the appellant
should be incarcerated. Attaching to the relevant considerations the
weight they deserve and balancing them against one another leads me
to the conclusion that upon a proper consideration of the crime, the
circumstances of the appellant and the interest of society, a
sentence which is not custodial will meet the needs of this case.


 


[29]           
I raised with Ms. Meyer who represented the State whether this
conclusion does not have as its effect that the sentence imposed by
the learned regional magistrate is startlingly inappropriate. Ms.
Meyer in response referred to the following passage from a judgment
written by Maritz J (as he then was) in Harry de Klerk v The State
SA 18/2003 which reads as follows:


 



Moreover, a sentence is
not inappropriate simply because a Court of appeal considers that a
different type of punishment might also have been appropriate in the
circumstances of the case.’


 


[30]           
I agree with the learned judge.


 


[31]           
The fact remains, though that the sentence imposed by the learned
regional magistrate is entirely inappropriate. The effect of it is
that the appellant must at his age spend time in prison.


 


[32]           
That aspect renders the sentence disturbingly inappropriate.


 


[33]           
In the result the appeal succeeds.


 


[34]           
The sentence imposed on count 1 is set aside and is substituted by
the following sentence:


 


The
accused is sentenced to a fine of N$15, 000.00 or 2 years
imprisonment. The accused is in addition sentenced to three years
imprisonment which is entirely suspended for a period of five years
on condition that the accused is not convicted of culpable homicide
or any other offence involving injury to the person of another is
committed during the period of suspension for which he is sentenced
to imprisonment without the option of a fine.’


 


 


 


 



 


 


               
           
----------------------------------


P
J Miller


Judge


 


 


 


 



     I
agree


 


 


 


 


 


----------------------------------


D
F SMUTS


Judge


 


 


 


 


 


                                                                                                                                   
    


 


 


 


 


 


 


 


 


 


 


 


APPEARANCES


 


APPELLANT                  
:                       
L BOTES


                                                                       
Instructed by Stern
& Barnard



 



 


RESPONDENT:                                       
A MEYER


                                                                 Of
Office of the Prosecutor-General