THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable / Not reportable

CASE  NO: 401/2002

In the matter between :

JACOBUS PETRUS SMITH
Appellant

and

THE STATE
Respondent
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Coram:
MARAIS, CAMERON JJA et MLAMBO AJA

Heard:
21 MAY 2003
Delivered:
30 MAY 2003

Assault to do grievous bodily harm – sentence – incident videotaped – effect upon
sentence.
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J U D G M E N T

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MARAIS JA/

MARAIS JA:
[1] It is rare indeed for a court called upon to impose sentence to have
actually witnessed the commission of the crime. But, because the crimes
involved in this case were videotaped that is what occurred in the court a
quo and again in this court. Before us, with leave granted by this court, is
an appeal by the appellant against the sentence of seven years’
imprisonment (of which two were suspended conditionally) imposed upon
him by the court a quo (Van der Merwe J) consequent upon his conviction
on three counts of assault with intent to do grievous bodily harm. The
judgment is reported in 2002 (1) SACR 188 (T).
[2] The case is one of considerable notoriety. The appellant (and,
allegedly, three others) were policemen attached to the police dog unit of
the South African Police Service. They rounded up three allegedly illegal

immigrants and drove them to relatively deserted locations. One by one
they were told to flee whereupon police dogs were despatched to pursue
them and, once they were caught, the dogs were incited to savage them by
biting them. The appellant and his cohorts also kicked the complainants
and struck them with both flat hands and fists. Insulting racist remarks
were addressed to them. The entire event was videotaped by one of the
policemen at the scene, allegedly for instructional purposes. It was this
videotape which ultimately came into the hands of the police investigating
the incident and which made it possible for both the court a quo and this
court to witness the incident as it unfolded.
[3] This brief account of what happened does not capture what only the
videotape can reveal:  the precise nature and true extent of the cruel and
brutal behaviour of the policemen involved;  the frightening ferocity of the

dogs; the abject terror of the complainants and their howls of anguish as
they were mauled by the dogs, egged on, as they were, by their handlers;
their absolute defencelessness against the onslaught of both the dogs and
their handlers;  the devastation of their fragile human dignity as aliens in a
land not their own. They are searing scenes which haunt the mind and fill
one with revulsion and anger. They are an ugly manifestation of what
society detests:  the brutal abuse of power and authority when dealing with
the defenceless and vulnerable.
[4] Yet, for a court intent upon dispensing justice in a calm and
dispassionate manner, the emotions which well up on viewing the
videotape can be a hindrance rather than a help, if not properly controlled.
That does not mean, of course, that a justified sense of indignation at the
gross affront to society’s sensibilities has no place at all in sentencing an

offender. It undoubtedly has. But it cannot be permitted to so overwhelm
all other factors which are relevant to just sentencing that they are virtually
ignored.
[5] Our courts deal daily with distressing crimes of violence:  murder,
rape, and all manner of serious assaults. The consequences for the victims
are frequently far more serious than those which resulted in this case and
the pain and terror to which they are subjected is often worse. With no
videotapes of the commission of such crimes available to enable a court to
relive the horror of the violence done to the victim, there is less risk of a
court being swept along on the tide of emotion and failing to give due
weight to other relevant factors which should be placed in the balance. The
level of sentencing generally resorted to in even more serious cases has to
be borne in mind when considering what sentence should be imposed in a

case such as this. Unless that be done, all sense of proportion may be lost
and a sentence imposed which, by comparison, is too harsh and owes too
much to the fortuitous fact that the commission of the crime happens to
have been videotaped.
[6] The central thrust of the argument advanced by counsel for the
appellant is that the court a quo did fall prey to the emotions which a
viewing of the videotapes evoked in its own mind, in the minds of the
members of the public who were in the court at the time, and in the minds
of the millions of South Africans who saw the videotape when it was aired
on national television. The attention given to the incident by the written
media was considerable and that too, so it was argued, predisposed the
court to imposing a custodial sentence whatever contra-indications the
evidence given in mitigation might reveal. In elaboration of the contention

counsel for the appellant highlighted those contra-indications and
submitted that the court a quo had failed, because of its preoccupation with
the exceptional publicity attending the incident, to give them the weight
which they deserved to be given.
[7] It is so that there were redeeming factors present which needed to be
placed in the scale. The appellant, in common with policemen everywhere
in South Africa, is often at personal physical risk to life and limb and
frequently encounters violence and its consequences. The blunting effect
which this can have upon the natural moral aversion to the infliction of
violence upon others and the erosion of respect for the human dignity of
others which it causes, appear to have taken their toll of the appellant. So
too have the worst excesses of a political culture prevalent among many
whites which permeated the appellant’s formative years:  the belief that

black people were not merely different in appearance, but different in the
sense of belonging to a lower order of humankind and, as such, fit subjects
for humiliation. Some might say that those considerations aggravate the
crimes. While mindsets of the kind I have described are odious and to be
roundly condemned, they were not spawned by the appellant; they are a
consequence of his occupation and his growing up in a politically and
racially abnormal society. While those may not be mitigating factors in the
sense in which that word is usually understood, they serve at least to make
it unsafe to infer that the appellant is innately sadistic and given to
violence.
[8] The appellant is a married man in his early thirties. He has three
minor children. His family background is stable and renders it most
unlikely that, by repeating behaviour of this kind, he will ever again

jeopardise their security and subject them to the trauma which they must
have experienced as a consequence of his arrest and trial. He has rendered
dedicated service in a dangerous vocation. His single previous conviction
for assault occurred as long ago as 1989. Since 1996 he had had to receive
psychiatric treatment for depression, stress, and aggression. His
psychological deficit has predisposed him to conduct of the kind which
resulted in his conviction.
[9] That the complainants were taken to receive medical attention
instead of simply being released in the belief that their tenuous presence in
South Africa made it unlikely that they would report the incident, also
enures in some degree to the credit of the appellant. So too does the fact
that the injuries sustained, despite the savagery of their infliction and the
pain which they caused, were not of lasting seriousness. It is apparent from

the videotape that the dogs were forcibly separated from the complainants
before they could inflict more serious injuries.
[10] The appellant was found by the court a quo to be genuinely
remorseful. His pre-trial confession and subsequent plea of guilty was
consistent with that attitude. Most importantly of all, there is no good
reason to doubt that when he joined the dog unit he was expected at least
by some of his superiors not only to acquiesce, but, when necessary to
participate, in this longstanding and abhorrent practice. No doubt those of
stronger moral mettle would have refused, but the fact remains that the
practice was not of his making and that it would have required
considerable courage and strength of character to refuse to co-operate in
the milieu in which he earned his daily bread.

[11] As against all that, there were a number of factors present which
entitled the court a quo to conclude that the appellant’s personal interests
had to yield to the need for these particular crimes to be seen by society at
large, and the appellant in particular, to be regarded by the court as so
odious and repulsive that nothing less than direct imprisonment would be
an appropriate response. I have already referred in paragraphs 2 and 3 to
most of them. There must be added the following. Not only did the
appellant participate in this cruel practice, it is quite apparent from the
videotape that he did so with enthusiasm and that, not content with the
mauling meted out to the complainants by the dogs, he gratuitously and
vindictively assaulted them himself both during and after their ordeal. It is
true that charges of assault to do grievous bodily harm are seldom brought
before the High Courts and that a sentence of the order imposed in this

case is more severe than many imposed in the magistrates’ and regional
courts. But many of the cases heard in those courts are of the kind where
violence erupts in an unpremeditated way. Often there is an element of
provocation present. Equally often strong drink has played a role. No such
mitigating circumstances are present here.
[12] There is also the damage done to the image of the police in South
Africa. It is so that the appellant cannot be blamed for the exceptionally
high level of visual and written media publicity in which the incident
resulted. But he cannot absolve himself from all blame for the blow to the
image of the police. This in a country whose aim is to inculcate respect for
law and order and those whose lot it is to administer law and order.
Without the latter there is little hope of attaining the former.

[13] The court a quo was fully alive to all this. It gave a very full and
careful judgment on sentence and, in my view, cannot be said to have
materially misdirected itself in considering sentence. The relevant factors
were correctly identified and the weighting given to them was not
manifestly inappropriate. The court was mindful of the sentencing errors
into which the viewing of the videotape could lead one and, contrary to the
submission of counsel for the appellant, I do not believe that the court
failed to heed its own warning.
[14] The fact that other sentencing options existed and might have been
resorted to is not the test on appeal. The question is whether the sentence
chosen by the trial court is unjust. In the absence of any material
misdirection interference on appeal with the trial court’s sentence would
only be justified if that sentence was not only a sentence which this court

would not have imposed, but also one which is so different that the
disparity is truly disturbing and therefore unjust. Notwithstanding that
counsel for the appellant has said all that could be said in his plea for an
amelioration of the sentence, I find myself unable to say that of the
sentence imposed. The appeal is dismissed.

______________________
R M MARAIS

JUDGE OF APPEAL

CAMERON  JA )
MLAMBO AJA )    CONCUR