THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 692/12

In the matter between

JUSTICE KHAKHATHI NEVHUTALU

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:  Nevhutalu v S (692/12) [2013] ZASCA 44 (28 March 2013)

Coram:
PONNAN, TSHIQI, MAJIEDT, PILLAY and PETSE JJA

Heard:
15 MARCH 2013

Delivered:
28 MARCH 2013

Summary:
Sentence – pointing of firearm – contravention of s 39(1)(i) read
with ss 1 and 12 of Act 75 of 1969 as amended – sentence of 6 months
imprisonment, warranting interference on appeal.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (van der Merwe J and Vilakazi
J sitting as court of appeal):

1. The appeal against sentence is upheld.

2. The order of the court below is set aside and is substituted by the following:
‘(a) The appeal against conviction is dismissed.
(b)  The appeal against sentence succeeds.
(c) The sentence of 6 months’ imprisonment imposed on the appellant is set
aside and substituted with the following:

‘The accused is sentenced to 6 months’ imprisonment, wholly suspended for a
period of 5 years, on condition that the accused  is not convicted of a
contravention of sections 120(3), (4), (5), (6), (7) or (8) of the Firearms Control
Act 60 of 2000, committed during the period of suspension.’

3. The order declaring the appellant unfit to possess a firearm   pursuant to the
provisions of s (12)(1) of the Arms and Ammunition Act, 75 of 1969 is set
aside.

________________________________________________________________

JUDGMENT
________________________________________________________________

MAJIEDT JA:

[1] This is an appeal against a sentence of 6 months’ imprisonment, imposed by
the Regional Court for Limpopo, sitting at Polokwane, confirmed on appeal by the

North Gauteng High Court, Pretoria (van der Merwe J, Vilakazi AJ concurring)
imposed in consequence of a contravention of the provisions of s 39 (1) (i) of the
Arms and Ammunition Act, 75 of 1969 (the Act). The appeal is with the leave of the
court below. The appellant was charged under the Act, since the offence was
committed when that Act was still in operation.

[2] The factual matrix underlying the appellant’s conviction and sentence is briefly
as follows:
(a)
The appellant, a member of the Military Police at the time of the
incident, was a passenger in a motor vehicle (‘the appellant’s vehicle’) when
an altercation ensued between him and the complainant, Mr Thomas Rilefe
who, in turn, was a passenger in another motor vehicle, driven by his brother,
Mr Alfeus Rilefe (‘the complainant’s vehicle’). The quarrel emanated from
what appears to have been the inconsiderate driving of one or both of the
motor vehicles.
(b)
The trial court accepted the State’s version of events and rejected that
of the appellant. On the proven facts the appellant’s vehicle overtook the
complainant’s vehicle twice on the N1 national road between Louis Trichardt
and Polokwane. On the second occasion the appellant uttered an obscenity at
the Rilefe brothers relating to their mode of driving and pointed a small black
object at them that, according to them, resembled a firearm. The appellant’s
vehicle drove in a haphazard fashion in front of the complainant’s vehicle,
after having overtaken it for the second time.
(c)
Their vehicles stopped at road works. The appellant alighted from his
vehicle to urinate some distance away. Upon his return he approached the
complainant’s vehicle and again swore and pointed a firearm at them. Both
vehicles drove off, with the appellant’s vehicle continuing to zigzag across the
road. The Rilefe brothers’ employer, Mr Nico Venter, who had been driving
ahead of them and behind the appellant’s vehicle, called the police to report
the driving and the appellant’s pointing of a firearm. The appellant was
arrested shortly thereafter. The police recovered the magazine from the
appellant’s pistol and confiscated both the magazine and the pistol. The
appellant was off duty at the time and dressed in civilian clothing.

[3] The appellant’s personal circumstances can be succinctly summarized as
follows: he was 30 years’ old at the time of sentencing, a first offender, with 4 minor
children. As stated, he was employed at the South African National Defence Force
(SANDF) as a military policeman.

[4] In its judgment on sentence, the trial court alluded to the following aggravating
circumstances: the appellant’s lack of remorse and the fact that the appellant had
intimidated the Rilefe brothers by ‘wielding’ his firearm and thereafter by pointing it at
them, causing them to be petrified. In addition to the sentence of 6 months’
imprisonment, the appellant’s firearm was declared forfeited to the State in terms of s
39(3)(a) of the Act and he was declared unfit to possess a firearm in terms of s 12(1)
thereof.

[5] On appeal, the court below rejected the contentions advanced on behalf of
the appellant, namely that the appellant’s aforementioned mitigating personal
circumstances were largely underemphasized, resulting in a shockingly inappropriate
sentence. Appellant argued further that the trial court had erred in not suspending a
portion of the period of imprisonment or, alternatively, by not imposing a fine. The
court below concluded that the trial court had properly exercised its sentencing
discretion and that the sentence did not warrant interference on any of the well-
established grounds.

[6] The maximum competent sentence for this particular offence, in terms of s
39(1)(i), read with s 39(2)(d) of the Act, at that time was a fine not exceeding
R4 000.00 or 1 year imprisonment or both such fine and imprisonment.

[7] The magistrate misdirected himself on sentence in the following material
respects:

(a)
Firstly, made reference to the Criminal Law Amendment Act, 105 of
1997 (the Criminal Law Amendment Act). Whilst he did not specifically
invoke its provisions he appears to have been influenced by it in his
approach during the sentencing process. This is manifested by his
consideration of a custodial sentence as the only suitable sentence,
without considering alternative sentencing options.
(b)
Secondly, the magistrate took the appellant’s lack of remorse into
account as an aggravating circumstance. But the record does not bear
this out. It is trite that the fact that an accused person pleads not guilty
and contests his or her guilt at a trial is not, without more, indicative of a
lack of remorse.
(c)
Lastly, the magistrate also took into account the fact that the appellant
had ‘intimidated the witnesses by driving next to them and wielding this
firearm as an aggravating feature.’ As indicated in para 3(a) above, the
appellant was in fact not the driver, but a passenger in his vehicle.

[8] In view of these material misdirections, this court is at large to consider the
sentence afresh. Mention must be made at the outset of an important consideration,
namely that the penal provisions in the present Firearms Control Act, 60 of 2000 (the
Firearms Control Act) have been increased substantially in respect of this particular
offence, compared to those in the Act. Section 121 of the present Act, read with s
120 and Schedule 4 thereof, provides for a maximum sentence of 10 years’
imprisonment.

[9] The appellant’s personal circumstances, set out above, are  strongly
mitigating. He is a first offender, gainfully employed and a useful member of society.
He also had to care for his 4 minor children. The aggravating factors are the fact that
he is a member of the SANDF, which is tasked with the protection of the people of
this country. His conduct on the day in question does not behove his occupation as a
military policeman. Furthermore, the Rilefe brothers were justifiably petrified by the
appellant’s conduct, to the extent that they locked their vehicle’s doors.

[10] In a relatively brief judgment of some two pages the magistrate, as stated,
appears to have started from the premise that a custodial sentence is the only
suitable sentence. He gave no consideration whatsoever to alternative non-custodial
sentencing options. I fail to understand what useful purpose a short term of
imprisonment will serve in this case. On the contrary, it will only cause the appellant
grave jeopardy in his work and family situation. Imprisonment should generally be
imposed in instances where there is a need to remove the offender from society.
Nienaber JA pointed out in S v Lister 1993 (2) SACR 228(A) at 232g that ‘a prison is
primarily an institution of punishment, not cure’.  And it is trite that punishment must
fit the crime, the criminal and the needs of society.

[11]  The question which arises next is what the benchmark sentences have been
for similar offences in the past. An analysis of sentences passed under the Act
shows that non-custodial sentences are usually imposed for this particular offence,
although each case must of course be decided on its own merits. Thus in S v van
Heerden, 1990 (2) SACR 579 (E) at 585c-d, a sentence of a fine of R800.00 or 200
days’ imprisonment was imposed on appeal. In that matter a taxi driver was charged
in the magistrates’ court with pointing a firearm in contravention of s 39(1)(i) of the
Act. He had forced the complainant, a rival taxi driver, to bring his taxi to a halt and
had gone to the complainant’s vehicle and had pointed an object, which to the state
witnesses appeared to be a firearm, at the passengers. The magistrate was not
satisfied that the state had proved that what had been pointed was indeed a firearm,
and accordingly convicted the accused of common assault and imposed a fine of
R800.00 or 400 days’ imprisonment. On appeal the court found that the magistrate
had erred and that the appellant should have been convicted as originally charged.
The court, per Kannemeyer J P (Kroon J concurring) made the following observation:
‘In all the circumstances. . . whether the appellant is to be punished in this case for pointing
a firearm or for common assault, his moral blameworthiness is of a similar degree. The
sentence that the magistrate considers appropriate for assault is, in my view, also one which
would be appropriate for the offence originally charged’.

The court altered the sentence to a fine of R800.00 or 200 days’ imprisonment, since
the magistrate had exceeded his sentencing jurisdiction in imposing 400 days as an
alternative.

[12] In S v Sam 1980 (4) SA 289 (T), a 67 year old café owner was convicted of a
similar offence and sentenced to a fine of R100.00 or 25 days’ imprisonment. The
appeal unsurprisingly did not concern the sentence, but the conviction, more
particularly the question of dolus in the context of error iuris and error facti.
In S v Hodgkinson 2010 (2) SACR 511 (GNP), the appellant was convicted in the
Magistrates’ Court of the unlawful pointing of a firearm in terms of s 120 (6)(b) of the
Firearms Control Act and he was sentenced to payment of a fine of R2000.00 or 90
days’ imprisonment, wholly suspended on certain conditions. I must point out that the
incident concerned a toy water pistol, hence the nature of the sentence imposed.
In Van Heerden the incident emanated from taxi rivalry and not road rage as is the
case in the instant matter, but the facts and circumstances as set out in para 12
above are fairly analogous to that in the present matter.

[13] There is to my knowledge only one reported judgment where a custodial
sentence had been imposed for an offence such as the present one. In Modungwe v
S, [2003] 1 All SA 235(T), the appellant had been convicted of the unlawful
possession of a firearm and ammunition, as well as the unlawful pointing of a
firearm. He was sentenced to 5 years’ imprisonment on each of counts 1 and 3, and
3 years’ imprisonment on count 2. The appeal concerned the Magistrate’s imposition
of the minimum sentences prescribed in the Criminal Law Amendment Act. The court
held that these offences do not fall within the ambit of the section of that Act which
attracts the prescribed minimum sentence. In respect of count 3, the unlawful
pointing of a firearm, the court imposed a sentence of one year imprisonment. The
problem is that no facts concerning the commission of the offence can be gleaned
from the judgment and no reasons are furnished for the imposition of the maximum
permissible sentence in terms of s 39(2)(d). The case is therefore of no assistance in
the present matter and it does not detract at all from my views, enunciated above,
that a custodial sentence is not justified in the present matter.

[14] In my view a custodial sentence is grossly disproportionate to the facts and
circumstances relating to the offence. But a severe non-custodial sentence should
nonetheless be imposed to convey clearly the message that conduct such as this,
particularly from a member of the armed forces, will not be tolerated. A sentence of 6
months, wholly suspended on appropriate conditions, would in my view meet the
well-established sentencing objectives.
That, as I see it, will better achieve the traditional aims of sentencing such as
retribution and deterrence - and also be blended with a measure of mercy. It seems
to me that, with a suspended sentence hanging over his head the appellant is hardly
likely to resort to his firearm as readily as he did in this instance. Had the magistrate
properly applied his mind to the task which confronted him I have little doubt that he
ought to have concluded – as I have done – that on the facts here present a
custodial sentence was unjustified.

[15] As stated in para 5 above, an order was also issued to the effect that the
appellant be declared unfit to possess a firearm in terms of s 12(1) of the Act. No
enquiry whatsoever was, however, held  prior to the issuing of that order. On the
contrary, immediately following upon the prosecutor’s argument on sentence (the
appellant’s legal representative having by then concluded his address), the
magistrate made the startling remark that ‘(t)he defence also did not convince me in
terms of s 12 (of the Act) why if not I declared him unfit to possess a firearm’. The
appellant’s legal representative was thereupon asked to make submissions on this
aspect, to which the magistrate replied ‘(r)ather late’, but nonetheless permitted
further submissions to be advanced. Those submissions related primarily to the fact
that the appellant was employed as a military policeman and to the adverse effect
such an order would have on his employment. The magistrate then simply made the
declaratory order of unfitness, without furnishing any reasons. This is a further
misdirection. I can think of no good reason why such an order should have been
made, which would be gravely prejudicial to the appellant in the discharge of his
work related duties. It therefore ought to be set aside.

[16] The following order is made:

1. The appeal against the sentence is upheld.

2. The order of the court below is set aside and is substituted by the following:
‘(a) The appeal against conviction is dismissed.
(b)  The appeal against sentence succeeds.
(c) The sentence of 6 months’ imprisonment imposed on the appellant is set

aside and substituted with the following:

‘The accused is sentenced to 6 months’ imprisonment, wholly suspended for a
period of 5 years, on condition that the accused  is not convicted of a
contravention of sections 120(3), (4), (5), (6), (7) or (8) of the Firearms Control
Act, 60 of 2000, committed during the period of suspension.’

3. The order declaring the appellant unfit to possess a firearm   pursuant to the
provisions of s (12)(1) of the Arms and Ammunition Act, 75 of 1969 is set
aside.

________________________
S A MAJIEDT
JUDGE OF APPEAL

PONNAN JA (TSHIQI, PILLAY and PETSE JJA CONCURRING):

[17] I have read the judgment of Majiedt JA and, whilst I concur in the order, I
deem it necessary to pass certain observations with respect to the matter.

[18] The ready resort to a firearm that one encounters in this case, which has
become all too pervasive in our country, is to be deprecated. What is worse is that
here we are dealing with a member of this country’s armed forces whose conduct
was the very antithesis of that to be expected of someone who is sworn to protect.
No doubt public outrage would be warranted at conduct of this kind and it follows that

the public interest would have to be properly served in the determination of an
appropriate sentence. But we need to remind ourselves that:
‘An enlightened and just penal policy requires consideration of a broad range of sentencing
options from which an appropriate option can be selected that best fits the unique
circumstances of the case before the court. It is trite that the determination of an appropriate
sentence requires that proper regard be had to the well-known triad of the crime, the
offender and the interests of society. After all, any sentence must be individualised and each
matter must be dealt with on its own peculiar facts. It must also in fitting cases be tempered
with mercy. Circumstances vary and punishment must ultimately fit the true seriousness of
the crime.  The interests of society are never well served by too harsh or too lenient a
sentence. A balance has to be struck.'
(State v Samuels 2011 (1) SACR 9 (SCA) para 9.)

[19] It is not clear to me why it was thought that direct imprisonment was the only
appropriate punishment in this case. Sentencing courts would be well advised to
differentiate between those offenders who ought to be removed from society and
those who, although deserving of punishment, should not be removed. In my view
the appellant falls into the latter of the two categories. I cannot imagine that he is
ever likely to repeat what he did. Personal deterrence thus hardly comes into the
reckoning. In any event to the extent that it may be thought necessary that personal
deterrence be addressed, the sword of a suspended sentence hanging over his head
for a period of five years adequately does so. To uphold the sentence imposed on
the appellant would, in my view, be to overemphasise the interests of society and
conversely under-emphasise the interests of the appellant. After all he was a useful
member of society with an unblemished record and his first foray into criminal
conduct of any kind was at the relatively advanced age of 30. In those circumstances
it can hardly be concluded that direct imprisonment was imperatively called for.

[20] Where I part company with my colleague Majiedt is the invocation by him of
various authorities to identify what he describes as the benchmark for an offence of
this kind. To trawl through the cases as an aid to the determination of an appropriate

sentence may well be ‘an idle exercise’ (S v Fraser 1987 (2) SA 859 (A) at 863). For
as Centlivres JA put it in R v Wells 1949 (3) SA 83 (A) at 87 – 88:
'Decided cases are... of value not for the facts but for the principles of law which they lay
down. In this connection I cannot do better than quote the remarks of Lord Finlay in
Thomson v Inland Revenue (1919 SC (HL) 10): "No enquiry is more idle than one which is
devoted to seeing how nearly the facts of two cases come together: the use of cases is for
the propositions of law they contain, and it is no use to compare the special facts of one
case with the special facts of another for the purpose of endeavouring to ascertain what
conclusion you ought to arrive at in the second case."'
That is not to suggest that courts should not strive for consistency (S v Xaba 2005
(1) SACR 435 (SCA)). But as it was put by this court in Jimenez v S [2003] 1 All SA
535 (SCA) para 6:
‘. . . [W]hile it may be useful to have regard to sentences imposed in other similar
cases, each offender is different, and the circumstances of each crime vary. Other
sentences imposed can never be regarded as anything more than guides taken into
account together with other factors in the exercise of the judicial discretion in
sentencing.’
However, the desire to achieve uniformity cannot be allowed to interfere with the free
exercise of a judicial officer’s discretion in determining an appropriate sentence in a
particular case in the light of the relevant facts in that case and the circumstances of
the person charged (S v Moloi [1987] 1 All SA 249 (A)).

[21] Both S v van Heerden and S v Sam were decided over two decades ago.
Those two cases thus hardly prove fertile ground as a comparator for the present.
Hodgkinson, although of more recent vintage, involved a toy water pistol and is
therefore clearly distinguishable from the present. That leaves Modungwe - which my
learned colleague asserts is of no assistance. It follows, in my view, that no
discernible trend can be said to emerge - certainly not one that can culminate in the
conclusion that ‘non-custodial sentences are usually imposed for this particular
offence’. For, as R v Karg 1961 (1) SA 231 (A) at 236H made plain: ‘. . . no
countenance should be given to any suggestion that a rule may be built up out of a
series of sentences which it would be irregular for a Court to depart from’.

________________________
V M PONNAN
JUDGE OF APPEAL

APPEARANCES

For Appellant:
H L Alberts

Instructed by:

Pretoria Justice Centre

Bloemfontein Justice Centre

For Respondent:
A G van Rensburg

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 March 2013

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Nevhutalu v The State (692/12)

Media Statement

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) today upheld an appeal from the North
Gauteng High Court, Pretoria, sitting as a court of appeal. The high court had
dismissed an appeal from the regional court in Polokwane which had imposed a
sentence of 6 months’ direct imprisonment on the appellant, Justice Khakhathi
Nevhutalu, for the unlawful pointing of a firearm. The SCA held that, given the
appellant’s strongly mitigating personal circumstances, a sentence of direct
imprisonment was unwarranted. It concluded that the appellant is a useful member
of society and that a totally suspended sentence subject to certain conditions for a
period of 5 years, would better serve the traditional aims of punishment. The SCA
also set aside the order declaring the appellant to be unfit to possess a firearm, for
which no reasons had been given by the trial court. The SCA held that there is no
justification on the evidence for such an order.

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