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[2014] ZASCA 213
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Mahlamuza and Another v S (20288/14) [2014] ZASCA 213; 2015 (2) SACR 385 (SCA) (1 December 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 20288/14
In
the matters between:
LUKAS
VUSI
MAHLAMUZA
............................................................................
FIRST
APPELLANT
SIBONGILE
EMILY
NKABINDE
................................................................
SECOND APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Mahlamuza and another v
State
(20288/14)
[2014] ZASCA 213
(1
December 2014).
Coram:
Brand and Willis JJA and Meyer AJA
Heard:
26 November 2014
Delivered:
1 December 2014
Summary:
Duplication of convictions – same set of proven facts giving
rise to separate conviction of robbery with aggravating
circumstances
and two convictions of attempted murder – failure by State to
establish (a) violence used against victims exceeded
bounds of
robbery and (b) further intention to kill –conviction on two
counts of attempted murder thus unwarranted.
ORDER
On
appeal from
North
Gauteng High Court, Pretoria (Smit and Bosielo JJ concurring, sitting
as court of appeal):
(a)
The appeal by the appellants against their convictions on counts 2
and 3 is upheld. Their convictions and sentences on
these
counts are set aside.
(b)
The appeal by the appellants against their sentences on count 1 is
dismissed.
JUDGMENT
Meyer
AJA (Brand and Willis JJA concurring):
[1]
Arising from an incident that occurred on 3 September 2000 at the
farm Vlakplaas in the district of Delmas (the farm) where
an elderly
married couple, Mr PC and Mrs HMG Neethling, resided, the two
appellants (and one co-accused) were convicted in the
regional court,
Delmas of robbing the couple with aggravating circumstances (count 1)
and of attempting to murder Mr Neethling
(count 2) and Mrs Neethling
(count 3). They were found to have acted with a common purpose
in committing the crimes.
In addition, the first appellant was
convicted of attempting to murder a police officer, Inspector Smook,
who arrived at the farm
and gave chase to some of the suspects (count
5).
[2]
The trial court sentenced the first appellant, Mr Lucas Vusi
Mahlamuza, to an effective period of 48 years’ imprisonment:
20 years on count 1; 10 years on count 2; 8 years on
count 3; and 10 years on count 5. The second appellant,
Ms Sibongile Emily Nkabinde, was sentenced to an effective period of
33 years’ imprisonment: 15 years on count 1;
10
years on count 2; and 8 years on count 3. The trial court
did not order the serving of any of the sentences to run
concurrently.
[3]
The appellants appealed unsuccessfully to the North Gauteng High
Court against their convictions and sentences. The high
court,
however, granted them leave to appeal to this court against their
convictions on counts 2 and 3 and the sentences imposed
upon them on
counts 1, 2 and 3. The appellants contend that the proven facts
as found by the trial court did not establish
the commission by them
of the two separate crimes of attempted murder relating to Mr and Mrs
Neethling. The separate convictions
of robbery with aggravating
circumstances and of attempted murder, so it is contended, amount to
an impermissible duplication or
splitting of convictions.
[4]
The same set of proven and accepted facts gave rise to these separate
convictions. Late in the afternoon on Saturday,
2 September
2000, the day before the incident giving rise to the charges and
convictions, a group of four men and two women arrived
at the farm
and four of them (two men and two women), including the appellants,
went to the house of Mr and Mrs Neethling (the
house). One of
the women pretended to order birthday cakes from Mrs Neethling, who
baked for an income. Before leaving
one of the men asked to use
the telephone, but Mrs Neethling told him that it was out of order.
[5]
The following morning, Sunday, 3 September 2000, the same group of
people arrived at the farm and again the same four went to
the
house. They appeared as if they were coming from church and
indeed one of them said so and was carrying a Bible.
This time
they pretended to be interested in furniture that Mr Neethling had
made (he was a cabinet maker) and he promptly acceded
to the request
to view his furniture.
[6]
When they entered the storeroom where the furniture was kept, the man
who carried the Bible produced a revolver and pointed
it at or in the
direction of Mr Neethling, saying he was going to shoot him. At
close range (at most two metres) he fired
a shot but it missed Mr
Neethling. He then hit Mr Neethling on the head with the butt
of the revolver. Mr Neethling
fell over. He was
tied up by two of the persons involved (a man and a woman) who also
fiercely kicked him in the ribs.
The woman searched him and
found a revolver, which she handed over to the man who co-perpetrated
the assault. Mr Neethling
was pulled to the door of the
storeroom where the two of them proceeded to tie him up. Mr
Neethling testified that he was
at that stage thoroughly (‘deeglik’)
tied up and unable to move. The group left the storeroom,
leaving Mr Neethling
behind. The first appellant and one of the
other men returned to him after a while. They dragged him from
the storeroom
to the bathroom inside the house where he was further
tied up with one of his own ties. He was left in the bathroom
with
the door closed until he was freed by one of his employees, Mr
Aaron Masilela (Masilela), about half an hour later.
While he was lying in the bathroom he heard his wife being assaulted
and a commotion in the house as goods were carried out.
[7]
During the time when Mr Neethling remained in the storeroom the first
appellant ordered Mrs Neethling to open the kitchen door.
She
complied out of fear that her husband would otherwise be harmed.
She had heard the gunshot. The first and second
appellants
entered the house. The first appellant pushed and slapped Mrs
Neethling while he demanded firearms and money.
They ordered
Mrs Neethling to the bedroom where they removed her jewellery from
her person and emptied her handbag. While
the first appellant
emptied a safe in the bedroom the second appellant assaulted Mrs
Neethling by kicking her and mostly slapping
her on the head.
Insisting that there had to be more money in the house as Mrs
Neethling was baking cakes for an income,
the second appellant
continued with the assault. The first appellant took a knife
out of the safe and caressing the blade
said to Mrs Neethling that he
was going to kill her that day. They pushed Mrs Neethling to
her workroom where she was thrown
to the ground, tied up with her
husband’s ties and further assaulted by the second appellant.
The appellants left her
in her workroom where she remained until she
too was freed by Masilela. She heard her husband being dragged into
the bathroom and
also the ransacking of the house.
[8]
Because Masilela, who also resided on the farm, noticed people
running into the house, he notified the police of a burglary
at the
farm. When two police officers, Insp Smook and Cst Edward Tom,
arrived, the group of people took to their heels.
One of them
was shot dead when Insp Smook returned fire on him. In trying
to evade arrest the first appellant also fired
a gunshot at Insp
Smook that missed him. This accounts for the first appellant’s
further conviction of attempted murder (count
5). Goods that
were taken from the house and storeroom were found outside the house.
[9]
Mr and Mrs Neethling were admitted to hospital. The evidence
does not disclose when they were admitted, but only that
they were
discharged on 5 June 2000. Mr Neethling was 77 years old at the
time. He sustained two lacerations on his
head and one beneath
his eye, which were sutured. He also sustained multiple bruises
to other parts of his body. Mrs
Neethling was 64 years old.
The trial court observed that she was a thin and petite elderly
lady. She testified that
most of the injuries she had sustained
were to her head and face. No medical evidence relating to the
nature of her injuries
was presented to the trial court. All
that can be seen from the photographs that were formally admitted is
that her injuries
were superficial and in the nature of bruises.
[10]
In
S v Moloto
1982 (1) SA 844
(A) it was held that where
attempted murder is committed in connection with a robbery the State
is entitled, according to the circumstances,
to charge the accused
with robbery and with attempted murder and the court is entitled to
find him guilty on the two separate offences
provided that the robber
used excessive violence that exceeded the limits and bounds of
robbery (which is violence that puts the
life of the victim in
danger) and it was proved beyond reasonable doubt that the accused
also had the intention to kill and not
merely to use force aimed at
temporarily incapacitating the victim.
[11]
In this regard Rumpf HR said the following in
Moloto
:
[1]
‘
.
. . Die probleem in ons moderne reg is om vas te stel wanneer
geweldpleging teenoor die slagoffer by roof sy perke of grense
oorskry om as buitensporige geweld (
vis
major, excessive force
) oor te gaan om
die handelingselement by poging tot moord of die dood-veroorsakende
handeling by moord te word. Myns insiens
is ‘n praktiese
benadering om die aanranding van buitengewone geweld by roof vas te
stel die toepassing van ‘n objektiewe
maatstaf, nl of die
persoonlike veiligheid (die lewe) van die slagoffer in gevaar gestel
word. . . . Sodra ‘n
rower teenoor sy
slagoffer geweld aanwend wat die lewe van sy slagoffer in gevaar
stel, wend hy buitensporige geweld aan wat die
grense en perke van
roof oorskry. Daar sal aan die hand van die aard en graad van
die buitensporige geweld asook die omstandighede
van die betrokke
geval beoordeel moet word of die rower ook die opset gehad het om sy
slagoffer te dood. Indien wel dan is
die rower skuldig aan roof
sowel as moord of poging tot moord na gelang van die omstandighede.’
[12]
The trial court’s finding and that of the high court to the
effect that the acts of violence committed against Mr and
Mrs
Neethling in robbing them exceeded the limits or bounds of the
robbery is unsustained on the facts. Apart from hitting
Mr
Neethling with the butt of a revolver at the beginning stages of the
robbery, the injuries sustained by Mr and Mrs Neethling
were
inflicted without the use of dangerous instruments or weapons.
None of the injuries sustained were shown to be potentially
fatal or
even severe. On the contrary, the evidence established that
they sustained relatively minor injuries only.
It can,
therefore, not be concluded that the violence committed against them
endangered their lives so as to qualify as excessive
force that
exceeds the bounds of robbery.
[13]
The totality of the evidence also did not prove beyond a reasonable
doubt, contrary to the findings of the courts below, that
the
appellants had the further intention (either directly or by way of
dolus eventualis) to kill Mr or Mrs Neethling. The
evidence
established that the violence used against them was perpetrated only
with the intent of depriving them of their belongings,
by inducing
them to submit to the deprivation and to overcome any resistance they
might have offered.
[14]
The gunshot was fired at close range, but it missed Mr Neethling.
There is no evidence relating to the area of his body
at which the
revolver was aimed. Mr Neethling conceded that given the short
distance between him and his assailant at the
time when the gunshot
was fired he ought to have been hit had that indeed been the
intention to hit him. It is also significant
that Mr Neethling
was not shot at again. The reasonable inference to be drawn is
that the gunshot was fired with the intention
to intimidate and to
induce Mr Neethling’s cooperation. The assault upon
him ended once he had been thoroughly
tied up and made unable to
move. The nature of the injuries sustained by him does not
support an inference that the acts
of violence committed against him
before he was immobilised were committed with an intention to kill
him.
[15]
Although the first appellant was armed with a firearm and later on
also with a knife, those dangerous weapons were not used
to injure
Mrs Neethling. Instead, the appellants resorted to lesser forms
of assault, which inflicted relatively minor injuries
to Mrs
Neethling. She was intermittently pushed, slapped and kicked
during the time that the appellants persistently demanded
firearms
and money, and more money, from her. The violence against her
ended after she had been tied up and left alone in
her workroom.
Mrs Neethling conceded that the appellants could easily have used the
dangerous weapons to kill her if that
was what they intended.
[16]
All the acts of violence used against Mr and Mrs Neethling formed
part of the robbery. The ineluctable inference to be
drawn is
that the killing of Mr or Mrs Neethling was not desired nor was the
possibility of killing them foreseen. It follows
that the
convictions of the appellants on the charges of attempted murder
relating to Mr and Mrs Neethling (counts 2 and 3) and
the sentences
on these counts must be set aside.
[17]
I now turn to the sentences imposed upon the appellants pursuant to
their convictions of robbery with aggravating circumstances
(count
1). In sentencing the appellants on this count the trial court
imposed the minimum sentences prescribed by
s 51(2)
of the
Criminal
Law Amendment Act 105 of 1997
. The first appellant, who was a
second offender, was sentenced to imprisonment for a period of 20
years and the second appellant,
who was a first offender, to a period
of 15 years. The trial court’s finding that there existed
no substantial and
compelling circumstances which justified the
imposition of lesser sentences than the minimum prescribed ones was
not challenged
before us and is in my opinion unassailable. The
appeal by the appellants against their sentences on counts 1, 2 and 3
is
premised on the appeal against their convictions on counts 2 and 3
not succeeding. In that event, so they contend, the trial
court
erred in not ordering their individual sentences in respect of counts
2 and 3 to run concurrently with their sentences in
respect of count
1. This contention has no further relevance.
[18]
The first appellant also contends that the trial court erred in not
ordering his sentences in respect of counts 1 and 5 to
run
concurrently. In this regard it is argued that the trial court
failed to have regard to the cumulative effect of the
two sentences:
20 years’ imprisonment on the charge of robbery with
aggravating circumstances (count 1) and 10 years’
imprisonment
on the attempted murder relating to Insp Smook (count 5). There
is no merit in this contention. In sentencing
the first
appellant the trial court exercised its discretion judicially and the
cumulative effect of the two sentences does not
induce a sense of
shock (see
S
v De Jager
).
[2]
All the relevant factors and circumstances were well considered and
duly taken into account by the trial court. The
first appellant
has a previous conviction of robbery with aggravating circumstances
for which he was sentenced to 10 years’
imprisonment.
This time he committed a violent robbery in which injuries were
inflicted upon elderly people. An attempt
at murdering a police
officer is a very serious offence. Life imprisonment is
prescribed for the completed offence.
Interference with the
imposed sentences is not warranted.
[19]
In the result the following order is made:
(a) The appeal by
the appellants against their convictions on counts 2 and 3 is
upheld. Their convictions and sentences on
these counts are set
aside.
(b)
The appeal by the appellants against their sentences on count 1 is
dismissed.
_________________________
PA
Meyer
Acting
Judge of Appeal
APPEARANCES
For
Appellants: V Z Nel
Instructed
by: Legal Aid South Africa, Pretoria
C/O
Legal Aid South Africa, Bloemfontein
For
Respondents: P Vorster
Instructed
by: Director of Public
Prosecutions,
Pretoria
C/O
Director of Public Prosecutions,
Bloemfontein
[1]
1982
(1) SA 844
at 853A-F. ‘The problem in our modern law is
to determine when violence against the victim of robbery exceeds its
limits or bounds in order to, as excessive force (
vis
major, excessive force
),
become the unlawful act of attempted murder or the death causing act
of murder. In my view a practical approach to determine
the
use of excessive force with robbery is the application of an
objective measure, namely whether the personal safety (the life)
of
the victim is being placed in danger. As soon as a robber uses
violence against his victim that puts the life of the victim
in
danger, he uses excessive force that exceeds the limits and
boundaries of robbery. With reference to the nature and
degree
of the excessive force and the circumstances of the given case a
determination will be made whether the robber also had
the intention
to kill his victim. If so then the robber is guilty of robbery
as well as attempted murder depending on the
circumstances.’
(My translation.)
[2]
S
v De Jager
1965
(2) SA 616
(A) at 628H-629B.