THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No:  109/06

In the matter between:

THE STATE                                                                          APPELLANT

v

THOMAS  BALFOUR

RESPONDENT

Neutral citation:  S v Balfour (109/2006) [2008] ZASCA 116 (25 September
2008).

Coram:
BRAND, PONNAN JJA et LEACH AJA

Heard:
16 September 2008

Delivered:
25 September 2008

Summary:   Respondent convicted of murder and sentenced to 14 years’
imprisonment, wholly suspended on certain conditions for five
years. Sentence
altered
on
appeal
to
years’
direct
imprisonment.

______________________________________________________________

ORDER
_______________________________________________________________

On appeal from: High Court, Mthatha (Dukada AJ sitting as court of first
instance).

The appeal succeeds. The sentence imposed by the trial court is set aside
and is replaced with a sentence of twelve years’ imprisonment.

___________________________________________________________

JUDGMENT
______________________________________________________________

LEACH AJA (BRAND, PONNAN JJA concurring):

[1]   This is an appeal brought by the State under s 316B of the Criminal
Procedure Act 51 of 1977 against the sentence imposed on the respondent
after he had been convicted of murder. It arises from an incident which
occurred on 3 December 1996 when the respondent, an off-duty policeman,
shot and killed one Maxim Mboneli (“the deceased”) during an altercation that
took place at the rural home of his father, Mzwandile Balfour, in the former
Transkei. The respondent was charged with the deceased’s murder but the
subsequent proceedings against him moved at a snail's pace and it took four
years before the matter came to trial before Dukada AJ in December 2000.
The trial thereafter proceeded in fits and starts until it concluded on 17 July
2001 with the respondent being convicted of murder and sentenced to 14
years imprisonment, wholly suspended on certain conditions for five years.

[2]   Disenchanted by the leniency of this sentence, the State sought leave to
appeal from the court a quo. Unfortunately, although its application for leave

was lodged without delay on 26 July 2001, it was not speedily dealt with but,
for a variety of reasons, was postponed time and again. Eventually it was
heard, and dismissed, some three and a half years later on 13 January 2005.
However, on 2 March 2005, leave to appeal was granted by this court.

[3]   But once again, there followed an undue delay. There is a suggestion that
problems were experienced in preparing a record and it appears to have
taken about a year for the trial judge to revise and correct a transcript of his
judgment. Further delays were caused by the respondent’s attorney
withdrawing as attorney of record and the respondent failing to appoint a
replacement. Consequently, it is now almost 12 years since the fatal incident
occurred, seven years since the respondent was convicted and sentenced,
and three and a half years since leave to appeal was granted.  This is
unacceptable. It must be remembered that justice delayed is justice denied,
and this court has previously stressed the need of the State to bring appeals
of this nature without delay.1  Even though the respondent has himself
significantly contributed towards the delays that have taken place since
sentence was imposed, the State was the driving force behind these
proceedings and should not have adopted the relatively supine attitude it did.
It ought instead to have exerted ongoing pressure upon those responsible for
delaying the speedy resolution of the appeal. It failed to do so and I trust that
the National Director of Public Prosecutions will ensure that similar delays do
not occur in matters of this nature in the future.

[4] The appeal was initially set down for hearing in this court on 7 May
2008, but there was no appearance on behalf of the respondent at that stage.
As it was desirable for him to be represented, the matter was postponed and
the Bloemfontein Justice Centre approached to provide the respondent with
representation.  This was done, and when the matter was called on 2
September 2008 Ms Kruger of that office appeared on behalf of the
respondent. Unfortunately, the Justice Centre had not been able to obtain a
mandate to act for the respondent. This led to the appeal being postponed

1 S v Roberts 2000 (2) SACR 522 (SCA) para 24.

once more. When called again on 16 September 2008, thanks in no small part
to the assistance rendered by the Deputy Director of Public Prosecutions,
Grahamstown, to whom I wish to express this court’s gratitude, the
respondent was present in court. I also wish to further express our gratitude to
Ms Kruger for her efforts in tracing the respondent and for appearing on his
behalf.

[5] I turn to the facts. The State’s principal witness, Melissa Balfour, a
traditional healer and the sister of the respondent’s father, Mzwandile, lived in
her own hut at the homestead where the fatal shooting took place.   The
deceased, an apprentice traditional healer who was being trained by Melissa
in the skills of her craft, also resided there at the time.  About a week before
the fatal incident, the deceased and Melissa became embroiled in an
argument with an artisan who was doing some plastering work at the
homestead.  As a result, the artisan downed tools and abandoned the work.
A few days later, the respondent arrived at the homestead to visit his father.
While he was there, he and Melissa ended up arguing when he accused her
of having interfered unnecessarily with the artisan.

[6]   The following day, Melissa confronted Mzwandile for not having
supported her during the course of her argument with the respondent.   This
led to a heated debate between them. The deceased then arrived on the
scene and interceded by striking Mzwandile on the forehead with a stick,
causing an open wound. News of this incident spread, and came to the ears
of the respondent later that day. He immediately returned to his father’s
homestead.   On his arrival, he entered Mzwandile’s hut, spoke to him and
ascertained that he had indeed suffered an open wound on the forehead.   He
promptly left the hut and confronted Melissa and the deceased who were
seated nearby, asking if they had assaulted his father.  The deceased
answered in the affirmative. In response the respondent, without more ado,
took out his service pistol and fired a shot at the deceased who was kneeling
with his hands on the ground in front of him. The deceased collapsed and
died soon afterwards.

[7]   At his trial, the respondent admitted having had a confrontation with the
deceased as a result of the earlier assault upon his father. However, he
testified that the deceased had charged at him with a knife and that he had
been obliged to shoot at him in self-defence.  This version was correctly
rejected by the trial court. The question of sentence thus falls to be
determined in the light of the evidence adduced by the State as set out above.

[8]   The respondent was some 28 years of age at the time of the shooting.
He was married and had three children.   He had joined the police force in
1988 and was therefore a policeman of some experience at the time.    In
imposing sentence, the acting judge in the court a quo correctly stressed the
severity of the crime and stated that a very heavy sentence was justified.
However, while he also took into account the possibility that the conviction
might lead to the respondent losing his employment, he went on to state that
he felt that he should give the respondent the opportunity to live the ‘. . . life of
a policeman who is appointed by the State to protect people, not to kill them’.
He therefore imposed a wholly suspended period of 14 years imprisonment
on the respondent which, he said, would allow the respondent to pay for his
crime by making a contribution to the community.

[9] Of course, the imposition of sentence is a matter falling pre-eminently
within the judicial discretion of a trial court and this court, on appeal, cannot
interfere merely because it would have imposed a different sentence. It can
only do so if the sentence is shockingly inappropriate or if the trial court
substantially misdirected itself either on the facts or by placing undue
emphasis on certain issues and underplaying others.2 It was submitted by the
State that the trial judge had erred in both these respects.

[10]  In considering the appropriateness of the sentence imposed on the
respondent, it is hardly necessary to state that the length of a period of
imprisonment imposed on an offender reflects the gravity of the offence

2 See e.g. S v Salzwedel & Others 2000 (1) SA 786 (SCA) para 10, S v Sadler 2000 (1)
SACR 331 (SCA) para 6-10 and Director of Public Prosecutions:Transvaal v Venter
(430/2007)[2008] ZASCA 76 para16.

committed. A sentence of 14 years imprisonment is only appropriate in a
matter of considerable severity. In the light of the obvious gravity of the
respondent's offence, I have no difficulty with the imposition of a lengthy
period of imprisonment upon him. But I cannot say the same about the
decision to suspend the sentence in its entirety.

[11] Wholly suspended sentences are designed to keep offenders out of
prison in the hope that the suspended sentences hanging over their heads will
deter them from future criminal conduct.   A sentence may also only be
suspended for no more than five years3 and its beneficial influence will be
restricted to that extent. It is accordingly understandable that, as a general
rule, wholly suspended sentences are imposed for crimes of lesser severity
for which a sentence of direct imprisonment is not warranted.

[12]  It is therefore self evident that the longer the sentence of imprisonment,
the less appropriate it will be for it to be suspended in its entirety. Bearing that
in mind, a sentence of 14 years imprisonment (which is suggestive of a
serious offence deserving severe punishment) being wholly suspended (which
in turn reflects an offence of lesser severity) is in itself a contradiction in
terms. It is hardly surprising that in S v Roberts, Marais JA described a similar
sentence imposed for murder as ‘highly unusual’4 and went on to state that ‘. .
. it is plainly undesirable to impose a sentence of so great a length and then to
wholly suspend it. . . .’5 Those comments are equally apposite to the present
case.

[13] The respondent’s crime was brutal and merciless.  I accept that he may
have been angered by the deceased having earlier struck his father over the
head with a stick and that the deceased’s actions amounted to a serious insult
to the head of a household who provided him with accommodation. But there
was no reason to resort to the extreme violence he used. Taking out his
firearm and shooting the deceased, who constituted no threat to him, was a

3 Section 297(1)(b) of the Criminal Procedure Act 51 of 1977.
4 2000 (2) SA 522 (SCA) para 1.
5 Para 19.

shocking response to what had occurred. As a trained policeman, the
respondent knew what steps he could take to deal with an assault upon his
father.  Instead, he took the law into his own hands and imposed the death
penalty as it were, for the deceased’s relatively minor transgression. In these
circumstances, a wholly suspended sentence of imprisonment is clearly
inappropriate.

[14]  There seems to me to be no doubt that in his desire to impose a
sentence which would hopefully reform the respondent, the trial judge lost
sight of the very serious nature of the crime committed and the expectation of
society that persons who take the lives of others should feel the full weight of
the law. While the attempt to ensure that the respondent played a meaningful
role in the community in the future was laudable, punishment, rather than
rehabilitation tends to come to the fore in this case. While the trial judge
correctly purported to stress the severity of the crime and the necessity to
impose a heavy sentence, he appears in fact to merely have paid lip service
to those considerations.  Instead, the sentence he imposed, aimed as it was
primarily at the well-being of the respondent at the expense of the other aims
of sentencing, was the product of distorted judicial reasoning.6

[15]   In my view, the trial judge therefore misdirected himself by not taking
proper account of all relevant considerations. But in any event, imposed a
sentence so startlingly inappropriate that, for that reason alone, this court is at
large to interfere and impose an appropriate sentence.

[16] As the offence took place in 1996, the minimum sentencing provisions
contained in the Criminal Law Amendment Act 105 of 1997 are of no
application in the present case. I must therefore deal with the matter without
reference to those provisions. Had I sat as a court of first instance I may well
have imposed a sentence of direct imprisonment in excess of 15 years. But as
seven years has passed since sentence was imposed, it would be unjust to
consider sentence at this stage solely upon the information that was available

6 Compare S v Botha 1998 (2) SACR 206 (A) at 211.

to the trial judge. The appellant’s personal circumstances have substantially
changed. We were told from the bar, and this was accepted by the State, that
his wife has since died, leaving him to care for three teenage children aged
between 10 and 15 years. He has also been promoted and has now risen to
the rank of detective inspector in the police force. These facts must be taken
into account in considering what would be an appropriate sentence to now
impose upon him.

[17] It is also relevant to take into account the uncertainty as to his future
with which the respondent has had to live for the past seven years pending
the outcome of this appeal. In Roberts,7  Marais JA felt that a delay of less
than two and a half years from the date of sentence until the finalisation of the
appeal and the associated ‘mental anguish which respondent must have
endured’ warranted ‘a significant reduction of the notional period of
imprisonment that would have been appropriate’ at the date of sentence. The
anguish in the present case has endured far longer.

[18] Then there is the fact that the respondent, although not incarcerated,
has essentially served the sentence imposed on him. As already pointed out,
a suspended sentence is designed to attempt to keep an offender from
straying during a period of no more than five years. That period has passed,
and the respondent has not strayed. Effectively, he has served the penance
imposed upon him by the trial court. That should be recognised by this court
in determining an appropriate sentence. In addition it is important to take into
account the apparent beneficial effect the suspended sentence appears to
have had upon him as shown by his advancement in rank since sentence was
imposed and his failure to make himself guilty of similar conduct since then. It
would be wrong not to recognise these as mitigatory factors in determining an
appropriate sentence.

[19] Of course a sentence of direct imprisonment will have disastrous
consequences for the respondent’s career in the police force. But that and the

7 Supra at para 22.

devastation his incarceration will have upon his family life flows from his
callous disregard of the sanctity of his victim’s life. It would be wrong to allow
one’s sympathy for his present plight to deflect the imposition of an
appropriate sentence, regard being had to the nature and the severity of his
crime.

[20] In my view, given the circumstances of this case and taking all the
above considerations into account, there is no alternative but to impose a
fairly lengthy period of imprisonment. At the same time, the sentence must
allow the respondent to return from life behind bars with the prospect of
playing a meaningful role in the community in the future. This will hopefully be
achieved by the order that follows. As the respondent has not been
incarcerated pending this appeal, there is no reason to ante-date the
sentence now imposed.

[21] The appeal succeeds. The sentence imposed by the trial court is set
aside and is replaced with a sentence of twelve years’ imprisonment.

___________________

L E LEACH

ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellant
:
M W Siyo

A N Nkume

Instructed by

Director of Public Prosecutions, Mthatha

For Respondent
:
S Kruger

Instructed by

Bloemfontein Justice Centre, Bloemfontein