THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 506/09

In the matter between:

KERSTON MOKGOAKAE MASEOLA

Appellant
and
THE STATE

Respondent

Neutral citation:
Maseola v The State (506/09) [2010] ZASCA 37 (30 March 2010)

Coram:

Navsa JA and Griesel and Saldulker AJJA

Heard:

16 March 2010

Delivered:

30 March 2010

Summary:

Sentence: Cumulative effect of sentences on several counts.

Unduly harsh and disproportionate – Effective sentence set

aside and substituted.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: North Gauteng High Court (Pretoria) (Els J sitting as a court of first
instance):
1.
The appeal against the sentences imposed by the court below is upheld to the
extent set out in para 2.
2.
The order of the trial court, is amended to read as follows:
‘The sentences I impose on accused 3 are the following:
Count 1, the murder charge, 25 years’ imprisonment.
Count 2, the second charge of murder, 25 years’ imprisonment.
Count 3, possession of the automatic firearm, 15 years’ imprisonment.
Count 4, dealing in the firearm, 7 years’ imprisonment.
Count 6, unlawful possession of a firearm -  6 years’ imprisonment
The sentence on count 1 is to run concurrently with the sentence on count 2. Ten
years of the sentence on count 3 is to run concurrently with the sentences imposed in
respect of counts 1 and 2. The sentences imposed in respect of counts 4 and 6 are to
run concurrently with the sentences imposed in respect of counts 1 and 2. The
accused is thus sentenced to an effective 30 years’ imprisonment.’
3.
The sentence is antedated in terms of s 282 of the Criminal Procedure Act 51
of 1977 to 8 August 2005.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SALDULKER (NAVSA JA and GRIESEL AJA concurring)

[1] This is an appeal against sentence with the leave of this court. The appellant,
Kerston Mokgoakae Maseola, stood trial in the North Gauteng High Court (Pretoria)
(Els J) as accused 3 together with two co-accused, Tshuledi Blessing Moloi (accused
1) and David Serame Melato (accused 2)  for  the  murder of two policemen, Inspector
Hechter and Mr Greyling, a police reservist. They were also charged with dealing in an
automatic firearm, the unlawful possession thereof and the unlawful possession of

ammunition. On 8 August 2005 the appellant was convicted together with his co-
accused, on all five counts.

[2] On the same date, the trial court sentenced the appellant to 25 years’
imprisonment on each of the murder charges, 18 years’ imprisonment in respect of the
unlawful possession of the automatic firearm, 6 years’ imprisonment on the unlawful
dealing in the firearm and 7 years’ imprisonment in respect of the unlawful possession
of ammunition. Els J ordered that the sentences imposed on the two murder counts be
served concurrently. Furthermore, he ordered that the 6 and 7 year sentences run
concurrently with the sentence of 18 years in respect of the unlawful possession of the
firearm. Thus the appellant was sentenced to an effective 43 years’ imprisonment.

[3] The appellant was a police informer. Regrettably, he turned rogue and himself
engaged in gun-running, an activity he was tasked to monitor and report on. The
automatic weapon he procured was used by accused 1 in a fierce shoot-out on 17
January 2004, with two policemen on the old Fochville Road, outside Sebokeng, who
had been informed of the latter’s intention to participate in an in-transit heist, and who
were requested to assist in his arrest.

[4] In the ensuing gun-battle, the two policemen died a gruesome death. They
were fired upon unremittingly with an automatic R4 rifle as they attempted to effect the
arrest. Inspector Hechter armed with a 9mm pistol, was no match for accused 1.
Seriously wounded, with parts of his face literally shot off, he collapsed and died at the
scene.  Mr Greyling, accompanying Inspector Hechter, had not been armed. He died
at the scene seated in the police vehicle in which they had travelled.

[5] Although the appellant did not testify, it was put to state witnesses on his behalf
that he was innocent and that he had informed his handler about the acquisition by
accused 1 of the R4 automatic rifle.  It is common cause that the appellant had
communicated this fact only after the shoot-out had already occurred. The appellant
was rightly convicted on all charges. The court below correctly held that the appellant
must have forseen that the R4 automatic rifle  would be used by accused 1 in the
commission of offences, including murder.

[6] In sentencing the appellant on the murder counts, the court recorded that he
was being held liable on the basis of dolus eventualis, and that there were substantial
and compelling circumstances, justifying a departure from the prescribed minimum
sentence of life imprisonment. However, in respect of the possession of the R4
automatic rifle, the court found that there were no substantial and compelling factors
justifying such a departure, and sentenced the appellant to 18 years’ imprisonment,
which the court stated to be the minimum sentence.

[7] In terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997, the
minimum prescribed period for sentences in respect of offences falling under the ambit
of Part II of Schedule 2 is as follows:
‘Nothwithstanding any other law but subject to subsections (3) and (6), a regional court or a
High court shall sentence a person who has been convicted of an offence referred to in-

(a)  Part II of Schedule 2, in the case of-
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20
years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not
less than 25 years;’

The relevant portion of Part II of Schedule 2 reads as follows:
‘Any offence relating to-
(a) the dealing in or smuggling of ammunition, firearms, explosives or armament;
or
(b) the possession of an automatic or semi-automatic firearm, explosives or armament.’

Thus it is clear that the trial court erred  in imposing the sentence of 18 years on the
appellant. The appellant was a first offender, whom the court intended to sentence to
the applicable minimum prescribed period. That period as is shown above is 15 years’
imprisonment.

[8] The appellant is 43 years old and married with four children. He had been a
member of the South African Police Services until his discharge on medical grounds.
Thereafter he started his own business, as a Funeral Undertaker and became

registered as a police informer. He was a first offender and had been incarcerated for
more than a year awaiting the finalisation of his trial. The trial court found that the only
mitigating factor in respect of his personal circumstances was his clean record.

[9] It is true that the trial court was dealing with a police informer who had
committed offences he was tasked to prevent. Unlawful firearms have become the
scourge of our society and sentences imposed should send out a clear message that
offences of the kind in question will be met with the full force of the law.

[10]  It should also be borne in mind that in this matter, policemen were shot and
killed. This is an aggravating factor. The appellant knew when he was approached to
procure the firearm that fatal consequences might ensue.

[11]  Counsel for the state was rightly constrained to concede that the effective
sentence was excessive. The cumulative effect of the sentences is so harsh and
disproportionate that this court is entitled to interfere and substitute its discretion for
that of the trial court.

[12] In S v Mhlakaza & another,1 there was an attack on a police office involving a
machine gun (and the shooting and wounding of members of the public). The two
appellants who had been convicted on charges of murder, attempted robbery,
possession of firearms, and possession of a machine gun were effectively sentenced
to 47 and 38 years’ imprisonment respectively. This court considered, whether in the
circumstances of the case, the cumulative effect of the sentences imposed was so
inappropriate that the court was permitted to substitute its discretion for that of the trial
court. This court determined that each appellant should be sentenced to an effective
38 years’ imprisonment, because both were equal partners in the same criminal
activity. The court stated as follows at (523g-j):
‘The several convictions resulted from more or less the same event. It is therefore appropriate
to assess what sentence I would have imposed for the murderous armed attack on a police
office involving a machine gun and the shooting and wounding of members of the public (cf S
v M 1994 (2) SACR 24 (A) 30h-31e; S v Coales 1995 (1) SACR 33 (A) 37a-b). I believe that a
sentence of life imprisonment would have been fully justified not only in relation to the

1 1997 (1) SACR 515 (SCA).

combined crimes, but also on the murder count alone (cf S v Tcoeib 1991 (2) SACR 627
(Nm); S v Mhlongo 1994 (1) SACR 584 (A) at 589-90). And, as was pointed out by Hefer JA in
S v Nkosi 1993 (1) SACR 709 (A) 717g-i, such a sentence is more realistic and subject to
more safeguards than extraordinarily long sentences of imprisonment. Determinate
sentences, in any event, run concurrently with a life term (s 32(2)(a)).’
And at 524e:
‘In any event, had I not considered a life sentence to be justified I would have regarded an
effective sentence of 47 years as exceeding acceptable limits.’

[13] In Mhlakaza this court sounded a note of caution at 518e-f:
‘The object of sentencing is not to satisfy public opinion but to serve the public interest . . .  A
sentencing policy that caters predominantly or exclusively for public opinion is inherently flawed. It
remains the court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence
does not satisfy the public.’

[14] For the reasons set out above the appeal  against the sentences  succeeds. In
my view, in the circumstances of this case, a sentence that strikes a proper balance is
an effective sentence of 30 years’ imprisonment constituted as set out in the ensuing
order:

[15] The following order is made:

1.
The appeal against the sentences imposed by the court below is upheld to the
extent set out in para 2.
2.
The order of the trial court is amended to read as follows:
‘The sentences I impose on accused 3 are the following:
Count 1, the murder charge, 25 years’ imprisonment.
Count 2, the second charge of murder, 25 years’ imprisonment.
Count 3, possession of the automatic firearm, 15 years’ imprisonment.
Count 4, dealing in the firearm, 7 years’ imprisonment.
Count 6, unlawful possession of a firearm -  6 years’ imprisonment
The sentence on count 1 is to run concurrently with the sentence on count 2. Ten
years of the sentence on count 3 is to run concurrently with the sentences imposed in
respect of counts 1 and 2. The sentences imposed in respect of counts 4 and 6 are to

run concurrently with the sentences imposed in respect of counts 1 and 2. The
accused is thus sentenced to an effective 30 years’ imprisonment.’
3.
The sentence is antedated in terms of s 282 of the Criminal Procedure Act 51
of 1977 to 8 August 2005.

________________________
H K Saldulker

Acting Judge of Appeal

APPEARANCES:

APPELLANT:

D de Kock

Instructed by: Zwelakhe Radebe Attorneys,

Booysens.

Matsepes Attorneys, Bloemfontein

RESPONDENT:

E Leonard SC

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

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  30 MARCH 2010
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

MASEOLA v THE STATE

The Supreme Court of Appeal (SCA) today upheld an appeal by the appellant, Mr
Kerston Mokgoake Maseola, against the sentence imposed on him by the North
Gauteng High Court (Pretoria) on two counts of murder, the unlawful possession of
an automatic firearm, the unlawful dealing in a firearm and the unlawful possession of
ammunition. The High Court sentenced the appellant to an effective 43 years’
imprisonment.

The prosecution arose out of an incident on 17 January 2004, at the old Fochville
Road, outside Sebokeng, in which two policemen were shot and killed by the co-
accused of the appellant, one Moloi. The murder weapon was an R4 automatic rifle,
which was supplied by the appellant, thus giving rise to his conviction as an
accomplice to murder. He was sentenced to 25 years’ imprisonment on each of the
murder charges, 18 years’ imprisonment in respect of the unlawful possession of the
automatic firearm, 6 years’ imprisonment on the unlawful dealing in the firearm and 7
years’ imprisonment in respect of the unlawful possession of ammunition. It was
ordered that the sentences be served concurrently so as to result in an effective
sentence of 43 years’ imprisonment. The sentence was antedated to 8 August 2005
in terms of the Criminal Procedure Act 51 of 1977.

On appeal, the SCA held that the cumulative effect of the sentences is so harsh and
disproportionate that it is entitled to substitute its discretion for that of the trial court.
Hence it upheld the appeal against sentences, holding that a sentence that strikes a
proper balance is an effective sentence of 30 years’ imprisonment.
---ends---