THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 471/2010

In the matter between

RUDOLPH JACOBUS
COMBRINK

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Combrink v The State (471/10) [2011] ZASCA 116

(23 June 2011)

Corum:

BRAND, PONNAN and SHONGWE JJA

Heard:

25 May 2011

Delivered:

23 June 2011

Summary:
Criminal law – whether the appellant’s guilt proved beyond
reasonable doubt – appellant’s defence not put to state’s eye witness – effect
thereof – Sentence – appeal court’s power to increase sentence.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  North Gauteng High Court (Pretoria) (Preller, Poswa and
Ledwaba JJ sitting as court of appeal):
In the result the following order is made:
1. The appeal against both conviction and sentence is dismissed.
2. The sentence imposed by the court below is set aside and substituted
with the following:
‘The appellant is sentenced to 15 years’ imprisonment.’
______________________________________________________________

JUDGMENT
______________________________________________________________

SHONGWE JA (BRAND and PONNAN JJA concurring)
[1]      The appellant (Combrink) appeared before Coetzee J, sitting in the
circuit court of the North Gauteng High Court (Pretoria) in Middelburg. He was
charged with murder, attempting to defeat or obstruct the cause of justice and
the contravention of section 3 of the Arms and Ammunition Act 75 of 1969
(unlawful possession of a firearm).

[2] At  the  close  of  the  state’s  case  he  was acquitted  on the second
and third charges in terms of section 174 of the Criminal Procedure Act 51 of
1977. At the end of the trial he was, however, convicted of murder and
sentenced to 15 years’ imprisonment, five years of which was suspended for

five years on the usual conditions. He was granted leave to appeal to the full
court of the North Gauteng High Court against both conviction and sentence.

[3] The majority of the full court (Poswa & Ledwaba JJ) dismissed the
appeal against conviction and upheld the appeal against sentence. The
sentence imposed by the trial court was set aside and substituted with a
sentence of ten years’ imprisonment. Preller J disagreed and concluded that
the appeal against both conviction and sentence should succeed to the extent
that both conviction and sentence must be set aside. The appeal against the
majority judgment of the full court is with leave of this court

[4] Both the trial court and the majority of the court a quo found that
Combrink intentionally shot and killed Mr Benjamin Ngwenya (the deceased).
On the other hand Preller J found that the cause of the ‘tragic death of the
deceased was nothing more than a freak accident’. He further found that
Combrink was not negligent and could not even be convicted of culpable
homicide.

[5] Combrink contends that the interpretation of the state’s evidence by the
trial court and the majority of the court a quo was unfair and incorrect. He
contends further that the evidence of Mr Du Plessis (a ballistics expert for the
defence) was considered in isolation.

[6] The facts are that on 17 October 2000, and at about 17h30, Combrink
fatally shot and killed the deceased. It is common cause that a shot fired from
Combrink’s rifle struck the deceased on his back just below the left shoulder.
It is not disputed that his death was caused by the tamponade effect of blood
accumulating in the heart sac after the bullet had ruptured the aorta.

[7] It is also common cause that the deceased was walking on the mealie
land, on the said afternoon, which is on a farm where he was employed and
where Combrink farmed with his father. Combrink was driving his vehicle (a
bakkie) on one of the farm roads on his way to fetch some of his workers. He
saw a person, whom, according to his evidence, he could not identify at that
time. He called him to draw his attention. The person did not respond. He just
continued walking. Combrink called him repeatedly but in vain. He then fired a
shot from his .308 calibre Parker Hale hunting rifle, apparently with the
purpose to warn or intimidate the person. He thereafter called him again and
when the person did not respond he fired the second shot. The person turned
slightly towards Combrink and fell face down. According to Combrink he
noticed when the person turned and fell down that it was the deceased, one of
his employees.

[8] The state led the evidence of Mr Masilela who was an eyewitness and
one of the employees on the farm. He testified that he was in the vicinity when
he saw Combrink driving his vehicle. He passed him.  Combrink saw a
person, whom Masilela was able to identify as the deceased. Combrink
stopped the vehicle and called him. He confirmed that Combrink called

repeatedly but that the deceased did not stop. Masilela was unable to
estimate the distance between Combrink and himself when the shots were
fired. But he pointed out a distance in court which was estimated by the trial
court as 120 metres. He must have been within a hearing distance because
he heard Combrink say:  ‘Hey kom hier’. Combrink’s evidence was also that:
‘Ja ek is seker hy kon my hoor’.

[9] He testified further that he then saw Combrink crouching in the bakkie
and that he came up with a rifle.
‘Hy het toe een skoot geskiet teen die grond en toe was daar stof … Hy het geskiet
na die rigting van die persoon … die werker … die stof was langs die persoon, die
werknemer’.
Thereafter Combrink called him again. He testified further that:
‘Hy het toe die tweede keer geskiet. Die tweede een het toe hierdie persoon getref
en hierdie persoon het toe geval. Hy is raak geskiet na die tweede skoot’.
Thereafter Combrink drove away. When asked how far from the deceased he
saw the dust rise after the first short, Masilela said:
‘Naby aan hom, naby aan hom, dit was naby aan hom.’

[10] It is significant to note at this stage that Masilela’s version was not
challenged or disputed. The only pertinent and material question in cross-
examination was that, the appellant would testify that:
‘… nadat hy die tweede skoot geskiet het, het die man omgedraai, … en hy het toe
gesien dat dit die man is, die oorledene.’

[11] The state also led the evidence of Madigage, also an employee of
Combrink. His evidence is basically that he was on the back of the vehicle
driven by Combrink at the time when the shooting took place. His version
under cross – examination appeared to differ drastically and materially from
the statement he made to the police. His evidence was also contradicted by
the evidence of Masilela and Combrink that he was never on the vehicle when
the shooting took place. In light of this his whole version was rejected, rightly,
in my view, by the trial court. Inspector Van der Berg arrived on the scene and
he showed Superintendent Neethling where the deceased was found and
Inspector Wolmarans took the photos of the area and the deceased. Their
evidence did not take the case any further.

[12] It is common cause that after Combrink shot the deceased he
proceeded to fetch some of the farm workers who were working some
distance from where the incident occurred. It was only on his way back that he
went to investigate, in the company of one Majola, what happened to the
deceased. He discovered that he was already dead. Combrink’s evidence is
that he saw a shotgun under the body of the deceased as he lay face down
on the ground. At the trial there was no proper enquiry into how it came about
that the shotgun was found under the deceased. Hence, Combrink was
acquitted on counts 2 and 3 which related to the shotgun. The state tendered
the evidence of Mr Frederik Nel who was the commanding officer of the local
commando at the time. According to his testimony, Combrink telephoned him
at about 18h00 on the afternoon in question to inform him that there was a
shooting incident on his farm involving a suspicious person. This I find

irreconcilable with Combrink’s version. On his version one would have
expected him to tell Nel that there was a terrible accident which led to the
death of one of his workers. Combrink’s version continued that he proceeded
to his home where he informed his father about the accident. He could not say
who called the police, but he was certain that it was not him.

[13]   According to Combrink he fired the first shot into the ground about 80
metres away from the deceased. This important piece of evidence is contrary
to what Masilela said, which was that the first shot landed near the
deceased’s feet. What is significant is that Combrink’s version was not put to
Masilela for his comment. Instead, Combrink introduced the evidence of Du
Plessis, who attended to the body of the deceased and the scene of the
shooting on the farm some six days after the event. Du Plessis was briefed to
reconstruct the scene of the shooting in the presence of Combrink only. He
came up with a theory that when Combrink fired the second shot, the bullet
first struck a wire fence surrounding the mealie land which caused the bullet to
ricochet towards the deceased. Had it not been deflected, so the theory goes,
it would have caused a round entry wound. But because it was deflected and
unstable the projectile caused an oval entry wound. The trial court as well as
the court a quo rejected this theory and found it unconvincing, tenuous and
not reasonably possibly true.

[14]   Counsel for Combrink submitted that the fact that he repeatedly called
the deceased is indicative of lack of intention to shoot and kill. However, he
was bound to concede that using a .308 hunting rifle under the circumstances

was entirely inappropriate. The situation did not call for the use of any firearm,
let alone one as powerful as a hunting rifle. The deceased was walking
innocently and relaxed on the property of his employer, he did not pose any
danger to Combrink or to anyone else. The state argued that Combrink could
have driven towards him to stop him, or could have used the hooter of the
vehicle. If he wanted to draw his attention, there were numerous other ways of
doing so.

[15]   It is trite that the state must prove its case beyond reasonable doubt and
that no onus rests on an accused person to prove his innocence. The
standard of proof on the state and the approach of a trier of fact to the
explanation proffered by an accused person has been discussed in various
decisions of this court and of the high courts (see R v Difford 1937 AD 370 at
373; S v Van der Meyden 1999 (1) SACR 447 (W) at 448f-i). It suffices for
present purposes to state that it is well settled that the evidence must be
looked at holistically.

[16]   Masilela’s evidence was accepted by the court a quo. Counsel for
Combrink conceded, as much, that Masilela was an honest witness. In my
view, not only was Masilela an honest witness, his evidence is reliable, and
sufficient to sustain a conviction. This I say having considered all the evidence
and the necessary caution required when dealing with the evidence of a
single witness (see R v Mokoena 1932 OPD 79 at 80; S v Webber 1971 (3)
SA 754 (A); S v Sauls 1981 (3) SA 172 (A) at 180E-G). It is significant to note
that Du Plessis’s theory is irreconcilable with Masilela’s evidence. On his own

version Combrink is an experienced hunter and a very good marksman. He
said he aimed the second shot at the same place as the first. It is my view that
when doing so, he foresaw the possibility that a bullet might strike the
deceased. His version is that he did not see the wire in front of him. That
matters not. For, on the undisputed evidence he plainly shot at the deceased.
And in resorting to his firearm in those circumstances and in the manner that
he did he must subjectively have foreseen the possibility (a real one I must
add) that the bullet could ricochet after striking a stone or some other object
and in the process strike the deceased. Regardless of that foreseeable
possibility he went on to shoot.

[17]   Holmes JA in S v De Bruyn 1968 (4) SA 498 (A) at 506H-507A referred
with approval to S v Sigwahla 1967 (4) SA 566 (A) at 570B-E where the
following was said:
‘1. The expression ‘‘intention to kill’’ does not, in law, necessarily require that the
accused should have applied his will to compassing the death of the deceased. It is
sufficient if the accused subjectively foresaw the possibility of his act causing death
and was reckless of such result. This form of intention is known as dolus eventualis,
as distinct from dolus directus.
2.  The fact that objectively the accused ought reasonably to have foreseen such
possibility is not sufficient. The distinction must be observed between what actually
went on in the mind of the accused and what would have gone on in the mind of a
bonus paterfamilias in the position of the accused. In other words, the distinctive
between subjective foresight and objective foreseeability must not become blurred.
The factum probandum is dolus, not culpa. These two different concepts never
coincide.

3. Subjective foresight, like any other factual issue, may be proved by inference. To
constitute proof beyond reasonable doubt the inference must be the only one which
can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility
that subjectively the accused did not foresee, even if he ought reasonably to have
done so, and even if he probably did do so.’
As already stated, in the present case Combrink fired the second shot
knowing that the bullet might fatally strike the deceased. In my view he is
guilty of murder, the intention being dolus eventualis.

[18]   What remains unexplained on Combrink’s version is that, after shooting
for the second time, he simply drove off without establishing what happened
to the deceased. He was bent on stopping him because he thought he posed
a danger. Now that he had stopped him, he simply left him, after having
realised that he was one of his employees. He fetched his other employees
and only later did he return to the scene of the shooting and discovered that
the deceased was dead. Strange enough, Combrink telephoned Nel to inform
him of the shooting incident. What he then told Nel was not that there was a
terrible accident. He said he shot a ‘suspicious’ person. Which, as I said, I find
irreconcilable with his version.

[19]   The trial court made certain credibility findings. This court is not at liberty
to interfere with such findings. (See R v Dhlumayo 1948 (2) SA 677 (AD) at
705-706; President of the Republic of South Africa v South African Rugby
Football Union 2000 (1) SA 1 (CC) paras 78 and 79.) In this case we do not
have a single reason to do so. Combrink’s conviction must stand.

[20]   I now turn to the question of sentence. It is common cause that the
provisions of section 51 of the Criminal Law Amendment Act 105 of 1997 are
applicable in this case. The trial court found substantial and compelling
circumstances. However, it did not place those circumstances on the record
as required by the Act.
It is trite that sentencing or punishment is pre-eminently a matter of discretion
of the trial court. (S v Rabie 1975 (4) SA 855 (A) at 857D-E.) Therefore an
appeal court should be slow to interfere with the trial court’s discretion. An
appeal court may interfere provided the discretion has not been judicially and
properly exercised and the sentence is vitiated by irregularity, misdirection or
is disturbingly inappropriate.

[21]   The court a quo found that the trial court misdirected itself, and I agree.
The minimum sentence in the circumstances is 15 years’ imprisonment. But
for the finding of substantial and compelling circumstances, that is the
sentence the trial court was bound to impose. As  to what this yardstick
means, Marais JA said the following in S v Malgas 2001 (2) SA 1222 (SCA)
para 25:
‘A. Section 51 has limited but not eliminated the courts’ discretion in imposing
sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment
for other specified periods for offences listed in other parts of Schedule 2).
B. Courts are required to approach the imposition of sentence conscious that the
Legislature has ordained life imprisonment (or the particular prescribed period of
imprisonment) as the sentence that should ordinarily and in the absence of weighty
justification be imposed for the listed crimes in the specified circumstances.

C. Unless there are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore required to elicit a severe,
standardised and consistent response from the courts.
D. The specified sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy underlying
the legislation and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E. …
F. All factors (other than those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish moral guilt) thus continue to play a role;
none is excluded at the outset from consideration in the sentencing process.
G. The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (‘‘substantial and compelling’’) and must
be such as cumulatively justify a departure from the standardised response that the
legislature has ordained.’

[22]    In light of this I am of the view that the trial court focused exclusively on
the mitigating factors instead of balancing them with the aggravating factors.
Firstly Combrink’s personal circumstances were overstated while the personal
circumstances of the deceased and the gravity of the offence were virtually
ignored. The court required direct evidence as to the effect of the deceased’s
death on his family. I do not think it is necessary to lead such evidence. It
stands to reason that the loss of life will self-evidently have a negative impact.
(See S v Matyityi 2011 (1) SACR 40 (SCA.) Moreover, life was the most
valuable asset of the deceased which had been taken away from him.

The fact that Combrink had a military background does not in itself, in my
view, impact on mitigating factors.
The trial court appreciated the fact that murder is a very serious offence, and
that the resort by Combrink to his firearm and the killing of the deceased was
gratuitous. One would have thought that the minimum sentence was being
contemplated.

[23]   The only aggravating circumstance mentioned by the trial court was that
Combrink failed to, immediately, assist the deceased, after realizing that he
had shot him. The court also concluded that Combrink failed to show remorse,
that he steadfastly denied that he committed the offence. In my view, it was
the most callous behaviour of Combrink to have used a .308 hunting rifle just
to deal with a ‘suspicious’ person who was just walking on the mealie land
without posing any danger to anybody. The late Mahomed CJ said in S v
Salzwedel 2000 (1) SA 786 (SCA) para 12:
‘[12] My main difficulty with the approach of the trial Judge is that he over-
emphasised the personal circumstances of the respondents without balancing these
considerations properly against the very serious nature of the crime committed, the
many very aggravating circumstances which accompanied  its commission, its actual
and potentially serious consequences for others, and the interests and legitimate
expectations of the South African community at a very crucial time in its transition
from a manifestly and sadly racist past to a constitutional democracy premised on a
commitment to a constitutionally protected and expressly articulated culture of human
rights.’

In that case the respondents had been charged with murder; assault with
intent to do grievous bodily harm and malicious damage to property. They

were all convicted of murder and malicious damage to property. On the
murder charge they were each sentenced to ten years’ imprisonment but the
whole sentence was suspended for five years on certain conditions which
included three years’ correctional supervision. The respondents, who were
young white men and women, had assaulted the complainants who were all
black men and damaged the vehicle belonging to one of them. They had been
part of a group of young persons who were bent on attacking black persons
indiscriminately. The state took the view that the sentence imposed in respect
of the murder charge was glaringly inadequate and obtained leave to appeal.
The sentence for the murder charge was set aside and then substituted with
12 years’ imprisonment, two years of which was suspended on certain
conditions.

[24]   A sentence of ten years’ for murder is very light and inadequate, so
argued counsel for the state before us. I am not suggesting by any means that
the murder committed in this case was racially motivated; however, I am
saying that courts must be conscious and sensitive to cases which on the
facts appear to have a racial or discriminatory connotation, especially when
dealing with the question of sentence. We all know that the public is incensed
with sentences that appear to favour a particular group in society. The public
interest is one of the essential considerations in determining an appropriate
sentence. That the trial court appeared to ignore.

[25]   Courts have in the past dealt with cases with a racial connotation. (See
S v Van Wyk 1992 (1) SACR 147 (Nm); S v De Kock 1997 (2) SACR 171 (T);

S v Matela 1994 (1) SACR 236 (A). I therefore agree with Poswa J when he
said in para 88 of his judgment that:
‘What the court a quo did not mention, which, in my view, merits mentioning, is the
fact that the appellant’s conduct was adding to a series of disturbing events in which
a number of African people, some of them employees of the accused persons, are
shot by a number of ‘‘white farmers’’ which episode definitely has a negative impact
on race relations in a country with a painful history of relations between ‘‘white’’ and
‘‘black’’ citizens.’
Counsel for Combrink argued that Poswa J was politicizing the case. I don’t
think so. The public interest and discrimination is not necessarily between
black and white but rather between people in general who perceive others,
with prejudice, to be different or inferior to them. It is this perception that the
judiciary should address. As a result of avoiding the issue of racial tension
some people think that:
‘Judges and magistrates will not necessarily be aware that the effect of hate
crimes goes far beyond the victims and serve to traumatise whole
communities and damage South African society. Without the decision makers
in the criminal justice system being attuned to these issues it will not be
possible to properly combat hate crimes’ (see Kerry Williams, Legalbrief on
Hate Crimes in South Africa (assisted by Tshego Phala and Benjamin Cronin)
(27 May 2010) para 7.3.4).

[26]   In short, when weighing up all the mitigating circumstances against the
aggravating factors, I believe that the trial court had erred in finding that the
yardstick of substantial and compelling circumstances had been met. Because
of this view I held on a prima facie basis, Combrink’s legal representatives

were notified of the possibility of the sentence being increased in the event the
conviction is confirmed. Despite the arguments to the contrary presented by
Combrink’s counsel I have not been persuaded to the contrary. In terms of
section 322 (6) of the Criminal Procedure Act 51 of 1977 this court is
empowered to increase the sentence imposed by the court a quo. On the
authority of Malgas (supra) the legislature decreed that in the absence of
substantial and compelling circumstances, the prescribed minimum sentence
must be imposed. Section 51 (2) (a) (i) of the Criminal Law Amendment Act
stipulates that in the case of a first offender convicted of an offence referred to
in Part II of Schedule 2 the court must impose a sentence of not less than 15
years’ imprisonment.

[27]   In the result the following order is made,
1. The appeal against both conviction and sentence is dismissed.
2. The sentence imposed by the court below is set aside and substituted
with the following:
‘The appellant is sentenced to 15 years’ imprisonment.’

_________________

J B Z SHONGWE

JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
B C Bredenkamp SC

Instructed by:

Coert Jordaan Inc Attorneys, Nelspruit;

Giorgi & Gerber Attorneys, Bloemfontein.

FOR RESPONDENT:
J J Kotzé
Instructed by:
Director of Public Prosecutions, Pretoria;

Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
22 June 2011
Status:
Immediate

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.
* * *
COMBRINK V THE STATE

The Supreme Court of Appeal (SCA) today dismissed an appeal by Mr Rudolph Jacobus
Combrink against both conviction and sentence and increased the sentence imposed upon
him by the majority of the full court of the North Gauteng High Court (Pretoria) to 15
years’ imprisonment.

Mr Combrink was charged with the murder of his employee (the deceased). The evidence
established that Mr Combrink was driving on one of the farm roads on his way to fetch
some of his workers. He saw the deceased, whom he could not identify at that time,
walking on the mealie land. He called the deceased to draw his attention. The deceased did
not respond. He then fired a shot from his hunting rifle with the purpose of warning or
intimidating him. He called him again and when the deceased did not respond he fired the
second shot. This shot fatally wounded the deceased. Mr Combrink then, without
establishing what had happened to the deceased, proceeded to fetch the farm workers who

were working some distance from where the incident occurred. It was only after fetching
these farm workers that he discovered that the deceased was already dead.

At the trial Mr Combrink argued that he had not intentionally shot the deceased. His expert
witness advanced a theory that when Mr Combrink fired the second shot, the bullet first
struck a wire fence surrounding the mealie land which caused the bull tot ricochet towards
the deceased. The trial court, and the majority of the full court, rejected this theory and
found it unconvincing, tenuous and not reasonably possibly true. The trial court found Mr
Combrink guilty of murder. It found that there were substantial and compelling
circumstances and imposed a sentence of 15 years’ imprisonment upon him, five years of
which were suspended. On appeal, the majority of the Full Court dismissed the appeal
against conviction but upheld the appeal against sentence. It imposed a sentence of ten
years’ imprisonment. In a dissenting judgment Preller J was of the view that the appeal
against both conviction and sentence should be upheld.

In dismissing the appeal against conviction, the SCA held that in resorting to his firearm in
the circumstances and in the manner that he did Mr Combrink must subjectively have
foreseen the possibility that the bullet could ricochet after striking a stone or some other
object and in the process strike the deceased. Regardless of that foreseeable possibility, the
SCA held, he went on to shoot. He therefore had the necessary intention, albeit indirect, to
kill the deceased. In respect of sentence the SCA held that the trial court had erred in
finding that there were substantial and compelling circumstances. It reasoned that the trial
court had focused exclusively on the mitigating factors instead of balancing them with the
aggravating factors. Having found that there were no substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence, the SCA
substituted the sentence imposed by the majority of the full court and increased the
sentence to 15 years’ imprisonment.