Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE No: A 689/2007

In the matter of
MARIUS JANSE VAN RENSBURG 					First Appellant
MARIUS VISSER							Second Appellant

and
THE STATE								Respondent

JUDGMENT DELIVERED : 30 MAY 2008

MOOS A, J:
 Introduction
1.       The appellants (hereinafter, for the sake of convenience, referred to as accused 1 and 2), were convicted, in the district court of Khayelitsha, on a charge of assault ' with the intent to do grievous bodily harm and sentenced, on 18 September 2007, to 24 months imprisonment in terms of Section 276(1)(i) of the Criminal Procedure Act, No 51 Of 1977 ("the Act"). The appellants appeal to this court, with the leave of the court a quo, both in respect of the conviction and sentence.
2.	The allegations against the appellants were that, during the evening of 16 July 1999, they mounted an attack on the complainant with the assistance of police dogs under their respective control. At the time they were performing patrol duty in the Khayelitsha area as members of the South African police dog unit. The appellants denied the allegation of assault.
3.	Accused 1 gave a plea explanation to the effect that he, legitimately and in accordance with the provisions of Section 49(1)(b) of the Act, used an official dog under his control as an instrument to effect the arrest of the complainant who was in the act of fleeing. In the process of affecting such arrest, the complainant was bitten by the police dog. Accused 2 gave a plea explanation to the effect that he was present when accused 1 affected the arrest of the fleeing complainant, but denied that the dog under his control was used to affect such arrest or to assault the complainant.

Findings of the trial court

Grounds of appeal

The facts

Conflicting versions

8. The version of the defence is that, while doing patrol duty, they noticed that complainant collided with a stationary Hi-ace vehicle. The appellants told both the complainant and the taxi driver to report the accident to the Khayeltisha police station. While they were following complainant, he suddenly speeded off, went through a few stop signs and almost collided with other cars. They gave chase, noticed that the complainant slowed down, jumped out of the car, crossed Lansdowne Road and ran towards the bushes on the side of the road. Accused 1 ran after the suspect with his dog on a leash and after warning the suspect, let the dog loose and gave it instructions to catch the suspect. The dog bit and caught the suspect. Accused 2 remained at the car and his dog was never used to bite or secure the arrest of the complainant.

The legal principles

Evaluation
12. The trial court found that despite lengthy and extensive cross-examination, the complainant stuck to his version. He did not deviate from his evidence in chief or contradict himself. He gave a reasonable explanation for the various statements made by him to the police. The court did not get the impression that he was fabricating a story against the appellants. The trial court found the complainant to be an honest and truthful witness. The court concluded that the complainant's evidence was satisfactory in all material respects.

(ft
13.		The appellants' attack on the credibility of complainant was essentially centred on the fact that he made four statements to the police. The purpose of making statements to the police is essentially to facilitate prosecution of a complaint and is not meant to serve as a substitute for the evidence in court. A perusal and examination of the first three statements clearly reflect shortcomings in language and content thereof and as such lacked the element of professionalism. The trial court remarked that the first statement was cryptic and the subsequent two statements were inadequate. A perusal of those statements justifies such findings.

"Polisieverklarings is dikweis onvolledig, soms seifs ten aansien van befangrike feite. Die omststandighede waaronderen die besondere persoon aan wie so 'n verklaring gemaak was, is dikwels vir die onvolledigheid van sulke verklarings verantwoordeiik."
15.	The final statement was a detailed statement and was consistent with complainant's evidence in court. The shortcomings of the impugned statements are, in my view, attributable to the statement takers and cannot be laid at the door of the complainant. I am satisfied that the complainant gave a reasonable and acceptable explanation for making the various statements and, in my view, the making of multiple statements did not adversely impact on his credibility, but in fact reflected badly on the quality of the police investigation.
16.	The trial court remarked that just as it very closely observed the complainant throughout the proceedings, so it had also observed the two accused very closely, during the evidence in chief as well as during the cross-examination. It observed that both of the accused appeared to be very uncomfortable in the witness box and was not impressed with the version of the two accused. It found that there were too many contradictions in their version and concluded that their version was a fabrication. I cannot fault such conclusion.

The probabilities
18. The inherent probabilities favour the complainant's version that there was no collision as alleged by appellants; that complainant drove recklessly is a fabrication; that the appellants had set their dogs on the complainant as described by him and not as alleged by the appellants; that accused 1 had uttered those expletives which had racial overtones; that complainant was taken by the appellants to Khayelitsha Day Hospital for medical treatment in their car as described by complainant and not in a police van as alleged by appellants; and that the charge of reckless or negligent driving laid by appellants was a trumped up charge. I am satisfied the inherent probabilities are consistent with the version of the complainant and accordingly provide the necessary guarantee and safeguard for his evidence as a single witness.

19. The version of the appellants is highly improbable and the trial court correctly found, in my view, that it was a fabrication. On their own version they had no opportunity to warn the driver to report the minor accident to the police station, as it appears that from their version that it was a matter of "hit and run". There is no evidence that such a charge was laid. There is no evidence of any damage either to the stationary vehicle or complainant's vehicle. If there was any damage to complainant's vehicle, they would have noticed such damage as it is common cause that accused 1 drove the vehicle to the police station. The alleged charge of reckless driving arose not from the alleged collision with the stationary vehicle, but emanated from the allegation that complainant drove away after the hit and run accident, was chased by the accused' and drove through stop signs and almost collided with other vehicles. Objectively speaking, there was no reason for complainant to practically jump out of a moving car and try to run away. He would not only have endangered his life jumping from a moving car, but he could also have risked his life by being fired on by the police.

Absence of misdirection on conviction

Sentence

"This Court's powers to interfere with sentence on appeal are circumscribed. It may only do so if the sentence is vitiated by (1) irregularity, (2) misdirection, or (3) is one to which no reasonable
court could have come, in other words, one where there is a striking disparity between the sentence imposed and that which this court considers appropriate."

23. On a close scrutiny of the record, it appears that the court a quo gave serious consideration to a non-custodial correctional supervision in terms of Section 276(1 )(h) of the Act. The court called the complainant to testify in connection with sentence. He was adamant that he wanted the accused' to go to prison. He was not interested in being compensated. It appears that he was trying to exact revenge. The following excerpt from the record is incisive;

Complainant: 'Yes, the reason why I am saying, I am talking like this bitten of the dogs your Worship (inaudible) very painful your worship'."

26.	I do not agree that the interest of the community is served by short term imprisonment of the appellants. They are gainfully employed and the likelihood is that they will lose their employment if they are imprisoned. Their family life will be disrupted. The appellants will not be able to fulfil their social, economic and parental responsibilities towards their families. The education of the children may be jeopardized. They may then become a charge and burden on society.

".. A probationer does not have his freedom - far from it - but he is not cut off from the community altogether. His support systems are not destroyed and in this way his rehabilitation prospects are enhanced. Moreover there is the benefit that society does not lose the skills of someone who is able to maintain himself and his dependants as well as the family unit. Community service, which goes hand in hand with correctional supervision, is beneficial."
28.	A further misdirection, in my view, is that the trial court was unduly influenced by the views of the complainant whose primary objective was to exact revenge. It is not the function of the court to exact revenge. The sentence must fit the crime, the criminal, be fair to society and be blended with a measure of mercy. In view of the misdirections to which I referred, this court is entitled to impose an appropriate sentence anew.
29.	One cannot detract from the seriousness of the offences, which according to the trial court was racially motivated and had racial undertones. Our society has emerged from a past that was deeply divided on the basis of race and was characterized by institutional racism. In our new democratic and constitutional dispensation, there is a duty on every member of the South African society to heal the divisions of the past and not make him- or herself guilty of inflaming the feelings and sensitivities of those who were victims of the past racial discrimination. It is clear from the objective evidence that the appellants abused their power as members of the South African police force. Instead of protecting John Citizen, they assaulted the complainant by setting their police dogs on the complainant as result of which complainant suffered serious injuries for which he had to receive medical attention. One cannot but agree with the trial court that the conduct of the appellants was reprehensible.

30. The appellants are first offenders, they have families who are dependent on them, they have permanent employment, the case is from 1999, they have surely been subjected to anxiety not knowing what would be the final outcome of the case, they showed some degree of compassion by taking the complainant to hospital, there  was some element of provocation on the part of the complainant, they have family support systems in place and both are suitable candidates for correctional supervision.

"As regards correctional supervision in terms of s 276(1)(h) of the

32. I do not think that the appellants deserve to be removed from society. What they need is counselling to disabuse their minds of the racist mindset. Such counselling they can receive just as effectively whether they serve a sentence of custodial or non-custodial correctional supervision. I am of the view that the interest of society will best be served by not removing the appellants from the community, but by imposing a suspended term of imprisonment, coupled with a term of non-custodial correctional supervision.

Order
33.      In the result, each of the accused is sentenced to 2 (two) years imprisonment which is suspended for 3 (three) years, subject to the following conditions: that he is not convicted, during the period of suspension, of assault with intent to do grievous bodily harm, or any other offence of which violence is an element and for which he is sentenced to imprisonment without the option of a fine, or without the imprisonment being conditionally suspended; that he undergoes 2 (two) years correctional supervision in terms of Section 276(1 )(h) of the Criminal Procedure Act, No 51 of 1977, subject to the following measures:

b) Community service for a total period of 16 (sixteen) hours per month. The nature of the community service, the place where and the times during which such services will be performed, will be determined by the Commissioner of Correctional Services, provided that the Commissioner is empowered, if merited, to suspend a maximum of 6 (six) hours per month of the community service on such condition as he deems fit.
c)	Submission to any counselling, rehabilitation or treatment programme(s) which may be deemed appropriate by the designated correctional officer, in order to realise the objectives of the sentence of correctional supervision.
d)	Submission to monitoring by the Commissioner of Correctional Services in order to realise the objectives and compliance with all the conditions thereof.
It is further ordered that the accused:

change of residential or work address.
 
Correctional Services regarding the administration of and compliance with
the sentence.