S v DALINDYEBO 2016 (1) SACR 329 (SCA)

Arson — What constitutes — Setting fire to one’s own property — Where done with intent to prejudice property interests of another, arson can be committed.
Sentence — Imposition of — Factors to be taken into account — Abuse of position of authority — Shameful abuse of position of authority by king who burnt down homes of certain subjects, kidnapped others and personally brutally assaulted three young men — Such heinous crimes calling for severe sentence.

The appellant, paramount chief of the AbaThembu tribe in the Eastern Cape(also referred to as the king of the tribe), was convicted in the High Court of a number of offences: (a) three counts of arson in that he had set fire to the dwellings of three of his subjects (and tenants) in order to secure their eviction for having breached his rules; (b) three counts of attempted murder in that he had publicly and brutally assaulted three young men, apparently as punishment for their having committed crimes; (c) culpable homicide in respect of a fourth young man who was alleged to have been party to the alleged crimes and who was killed by members of the community who were loyal to the king; (d) attempting to defeat the course of justice by unduly influencing one of the complainants in the arson charges to withdraw the charge; and (e) one count of kidnapping in that he had deprived the wife and six children of one of his subjects of their liberty by forcing them to accompany him to his palace in order to induce her husband to present himself there. He was sentenced individually in respect of these crimes to an effective term of 15 years’ imprisonment.
He appealed with the leave of the court a quo against both the convictions and sentences. As to the convictions, it was contended inter alia on his behalf, as regards the convictions for arson, that the structures he had set alight had acceded to his land and therefore belonged to him. Since the offence could not be committed when one set fire to one’s own property, said convictions were improper.

Held, that arson can be committed where a person sets fire to his own immovable property with the intention to prejudice the property interests of another person.
The court held further, on the evidence, that the conviction on the count of culpable homicide could not be sustained and the conviction and the sentence of 10 years’ imprisonment on that count therefore had to be set aside.
As to the cumulative effect of the sentences, the court rejected the appellant’s contentions that the effective sentence was too severe. It emphasised that persons in positions of authority, such as the appellant, were obliged to act within the limits imposed by the law, and that no one was above the law. The Constitution guaranteed equal treatment under the law and in the present matter the appellant had behaved shamefully and had abused his position as king. The period of imprisonment he was to serve was no more than just deserts for what, given his position of authority, were particularly heinous crimes. With the falling-away of the sentence for the count of culpable homicide, the new effective sentence was one of 12 years’ imprisonment.