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[2006] ZASCA 164
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S v Dlamini and Another (175/01) [2006] ZASCA 164 (26 September 2006)
REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
NOT REPORTABLE
Case
number:
175/01
In
the matter between:
JAPIE
MHLUPHELA DLAMINI
1
st
Appellant
MUSA
ENOSENT MAGAGULA
2
nd
Appellant
and
THE
STATE
Respondent
CORAM
:
STREICHER,
MTHIYANE and HEHER JJA
HEARD
:
18
SEPTEMBER 2006
DELIVERED
:
26
SEPTEMBER 2006
Summary: Criminal law
– murder – intention to kill – subjective
appreciation of consequences of forcing object
into victim’s
mouth;
- sentence –
murder and housebreaking with intent to rob and robbery with
aggravating circumstances – duplication of sentence
–
death of victim to be thought away in relation to the robbery
Neutral citation: This
case may be cited as
Dlamini and another v The State
[2006]
SCA 110 (RSA).
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER
JA:
[1] The two
appellants were convicted by Jordaan AJ and assessors of murdering
Johannes van Heerden on 26 August 1998 on a farm at
Nooitgedacht in
the district of Witbank. They were both sentenced to life
imprisonment. They were also convicted of housebreaking
with intent
to rob and robbery with aggravating circumstances arising out of the
same incident. For this both appellants received
20 years
imprisonment. With leave of the court
a quo
they appeal to this court against their convictions and sentences.
[2] The
scope of the appeals is narrow. As to the convictions for murder
counsel submitted that the court
a quo
erred in finding that the appellants intended to kill the deceased
and should properly have convicted both of culpable homicide.
The
finding of housebreaking was flawed, so it was argued, because the
prosecution had not excluded the reasonable possibility that
the
appellants gained entry to the deceased’s dwelling with his
consent or, at least, without any form of housebreaking as
that term
is understood in law. Counsel also sought to persuade us that,
contrary to the conclusion of the trial court, substantial
and
compelling circumstances were present which justified lesser terms of
imprisonment than the otherwise mandatory sentences.
[3] The appellants were
respectively 21 and 19 years of age at the time of the crime. The
first appellant had been employed by the
deceased as a farm labourer
from early in July 1998 for a period of three weeks. He deserted one
Sunday morning and did not return
to the farm until the events
described below. The second appellant was a friend of his without
any connection with the deceased
or the farm.
[4] The
deceased, a man of 63 years, lived alone in a cottage some 800 metres
from the main farmhouse which was occupied by his son,
Johannes Jnr,
and the latter’s family. At 6h45 on 27 August 1998 the son
arrived at the cottage, as he did most mornings.
He noticed that a
Mazda bakkie was not in its usual parking place. The kitchen door
stood open (but undamaged); ordinarily it
was still locked. On
entering he found his father lying dead on his back across his bed.
His body was cocooned in a blanket around
which a jersey had been
wrapped and knotted in front of the chest. The deceased’s feet
had been tied tightly with a telephone
cord ripped from the wall.
The telephone was missing. A thick woolly sock had been crumpled up
and thrust into the deceased’s
mouth. On one of the edges of
the top surface of the kitchen stove Johannes Jnr observed what he
identified as traces of blood and
hair. On the armrest of a chair
outside the bedroom door he detected similar traces. Although
neither observation was confirmed
by expert (or other) evidence, his
observations were not placed in issue by defence counsel.
[5] A post-mortem
examination was carried out by Dr Joynt the local district surgeon.
He determined the cause of death as ‘anoxia
as a result of
asphyxiation caused by a foreign object in the pharynx’. The
sock that had been forced into the deceased’s
mouth had pressed
his tongue and lower dentures against the soft palate and into the
back of the throat. This cut off the passage
of air through the
mouth and possibly also compromised the nasal airway. Dr Joynt was
of the opinion that suffocation might well
have taken place whether
or not the denture had been displaced. The deceased had a blood
alcohol content of .25g/100ml which the
doctor regarded as a high
level. However the deceased was a regular and heavy drinker (he
suffered from cirrhosis of the liver)
and Dr Joynt said that the
injuries to his head and face probably had more effect in rendering
him vulnerable to suffocation than
did intoxication, especially ‘as
hy eers goed geslaan was voor die tyd’. Those injuries
consisted of extensive bruising
on the back of the deceased’s
head caused by a blunt instrument, or, perhaps, a fall, and bruises
of the cheeks under both
eyes. In addition there was a long scratch
behind the left ear.
[6] Fingerprints
of the appellants were lifted by a crime scene investigator from,
respectively, a tin in the deceased’s bedroom
and an empty gin
bottle on the kitchen table. A hi-fidelity system, the telephone and
some R3000 in cash were found to be missing
from the cottage after
the event. The sound system, the telephone and the bakkie were
recovered in circumstances which it is unnecessary
to detail, save to
note that strong connections between the stolen goods and the
appellants were established by the evidence led
by the State.
[7] The
appellants were arrested and brought before a magistrate at Witbank
on 17 September 1998 for the purposes of pleading to the
charges in
terms of
s 119
of the
Criminal Procedure Act 51 of 1977
. The record
of the proceedings was produced by the State at the trial in terms of
s 120
read with
s 76(3)(b)
and
s 235
of the Act. Both appellants
pleaded not guilty to murder but guilty to robbery. Each made a
statement of his defence to the charge
of murder (in terms of
s 115)
and answered questions posed by the magistrate concerning the
allegations of robbery (in terms of
s 112).
The record reads as
follows:
‘
BESKULDIGDE 1 :
AANKLAG 1
EK’T OORLEDENE OP
SY BED GEKRY – HY’T OPGESPRING EN GEVAL – ONS HET
SY VOETE MET ‘N TELEFOONDRAAD VASGEBIND.
EK HET GELD GESOEK
WANT HY HET MY GELD GESKULD – EK EN BESKULDIGDE 2 HET TOE DIE
HI-FI GENEEM OP DIE BAKKIE GELAAI EN WEGGERY.
ONS HET NIKS VERDER
AAN DIE OORLEDENE GEDOEN NIE.
AANKLAG 2
HOF
V. ERKEN U DAT U OP
27/8/1998 TE WITBANK DISTRIK VIR MNR. VAN HEERDEN AANGERAND HET?
A. JA.
V. HET U DIE VOERTUIG,
TELEFOON EN HI-FI STEL GENEEM?
A. JA.
V. WEET EN BESEF U DAT U
VERKEERD OPGETREE HET DEUR DIE GOEDERE MET GEWELD TE NEEM?
A. JA.
V. HET U ENIGE REG, REDE,
TOESTEMMING GEHAD?
A. HY’T MY KOM HAAL
VIR WERK TE BRONKHORSTSPRUIT. HY HET MY GELD GESKULD.
V. U HET GEWEET DAT DIE
GOEDERE WAT U GENEEM HET AAN MNR. VAN HEERDEN BEHOORT?
A. JA.
V. PLEIT U VRYWILLIG
SKULDIG OF IS U VOORGESê OF GEDREIG OF BEïNVLOED OM
SKULDIG TE PLEIT?
V. WIL U NOG IETS BYVOEG?
A. NEE.
BESKULDIGDE 2 –
KLAGTE 1
ONS KRY OORLEDENE OP BED
– ONS LAAT HOM SKRIK EN HY VAL MET SY KOP OP BED – ONS
VANG HOM – BESKULDIGDE 1 HET TOE
SY HANDE EN VOETE VASGEBIND.
ONS HET TOE DIE GOEDERE GEVAT EN IS WEG. ONS HET OORLEDENE DAAR
GELOS – HY HET NOG GELEWE.
ONS HET ‘N KOUS IN DIE
OORLEDENE SE MOND GEDRUK SODAT HY NIE KON SKREEU NIE.
BESKULDIGDE 2 –
KLAGTE 2
V. HET
U OP 27/8/1998 DIE GOEDERE SOOS GENOEM, DIE EIENDOM VAN MNR VAN
HEERDEN GENEEM SONDER SY TOESTEMMING.
A. JA.
V. HOE?
A. ONS HET OORLEDENE IN
KAMER AGTERGELAAT EN IS TOE MET DIE GOEDERE WEG.
V. HET U GEWEET EN BESEF
DAT U OPTREDE VERKEERD WAS?
A. JA.
V. PLEIT U VRYWILLIG
SKULDIG OF IS U VOORGESê OF GEDREIG?
A. EK PLEIT SO VRYWILLIG.
V. ERKEN
U DAT U MNR.
VAN HEERDEN AANGERAND HET EN
TOE DIE GOEDERE GENEEM HET?
A. JA.
V. WIL U NOG IETS BYVOEG?
A. NEE.’
[8] At the
trial both appellants testified in their own defence. It is
unnecessary to analyse their evidence. Both departed from
the
substance of their
s 115
statements. In essence, the first appellant
partially shouldered the blame while the second appellant distanced
himself from the
assault. The substance of the first appellant’s
case was that the deceased invited him into his cottage to fetch
wages that
he was owed; the deceased then attacked him with a
bottle; he defended himself and subdued the deceased after which he
tied him
up and gagged him to prevent the deceased raising the alarm;
he took R100 and the sound system, both of which the deceased had
freely
offered to him before the fracas in order to compensate him
for his arrear wages and drove off in the bakkie (which he intended
to
return when opportunity arose).
[9] The
trial court did not believe either appellant. It found in effect
that no weight could be attached to anything either said
in the
absence of independent corroboration. Counsel made no serious
attempt during the appeal to persuade us that the credibility
findings should be re-assessed and rightly so since the evidence of
both appellants was a mass of serious improbabilities and internal
contradictions.
[10] For the
purposes of the limited investigation to which the appeal against the
first conviction is directed, viz whether either
appellant formed an
intention to kill the deceased, the court
a
quo
was required to determine the subjective
intention of each appellant. As has often been emphasised, in the
absence of direct admissions,
the state of mind of a perpetrator at
the time of a crime is a question of inference drawn from all the
material proven facts both
for and against the conclusion of guilt.
The facts must be considered holistically to determine whether they
permit an inference
to be drawn beyond a reasonable doubt that the
accused actually foresaw the reasonable possibility that his victim
could die from
the assault but, nevertheless proceeded with it
reckless of that outcome. See, for example,
S
v Van Wyk
1992 (1) SACR 147
(Nm) at 161 f-g
per Ackermann AJA. In the present instance the trial court purported
to apply these principles and emphasised its
awareness of the dangers
of adopting an armchair approach in so doing. Counsel’s
submission before us was that the court erred
in its application of
the principles to the facts more particularly in that foresight of
the reasonable possibility of death was
not the
only
reasonable inference to be drawn from the facts in relation to either
appellant.
[11] After
subduing the deceased by violence the appellants trussed him like a
chicken and gagged him. One cannot wholly discount
the evidence of
the first appellant that he was scared that the deceased would raise
the alarm and alert the security guards on an
adjoining property
unless effective steps were taken to prevent him. There is certainly
some inconsistency between a direct intention
to kill one’s
victim and the considerable lengths to which the appellants went to
ensure that the deceased neither shouted
nor moved. However, the
common experience of mankind is that shutting off the power to
breathe leads within a short time to death.
Just as it does not
avail an assailant who points a loaded firearm at his victim’s
heart and pulls the trigger to deny an
intention to kill without
offering an acceptable explanation for such denial, so credibility is
stretched beyond breaking point by
one who forces a gag into his
victim’s throat and denies that he foresaw the reasonable
possibility of death but does not explain
why such blindness
possessed him. The first appellant was both worldly wise and beyond
the age where the callowness of youth might
of itself explain a lack
of insight. Cf
R v Lewis
1958 (3) SA 197
(A) at 109 and
S v P
1972 (2) SA 412
(A) at 416H-417A. The first appellant attempted to
provide an explanation by means of an obviously contrived and
somewhat desperate
description of how he had folded the sock and
carefully placed it ‘just behind the deceased’s teeth’
in such a
manner as to allow him to dislodge it without much effort.
This was not only transparently false since it was clear that the
sock
in its crumpled state had been pressed in to the limit without
any thought for the interest of the deceased but the first appellant
also equivocated in his evidence as to whether the deceased was even
conscious at the time. Under cross-examination he expressly
disavowed an intention to press the gag deep into the mouth of the
deceased because, as he conceded, if he did so the deceased would
choke and die from an inability to breathe. So there was evidence of
a foresight of the consequences and factual proof that despite
such
foresight he had done what was required to bring the expectation to
reality. To this may be added his admitted awareness that
as soon as
the deceased was released he would cause the first appellant to be
arrested – it was common cause that not only
was the first
appellant known to the deceased but the deceased was also aware of
the place of residence of first appellant and his
parents. This last
consideration does not of course justify the inference of a direct
intention to kill but it increases the likelihood
that the first
appellant, aware of the reasonable possibility of fatal consequences,
proceeded recklessly to disable the deceased
in an inherently
dangerous fashion untroubled by the potential permanence of the
solution. In short, he was prepared to take risk
of the deceased
dying before he could be rescued. That was to act with
dolus
eventualis
. The first appellant was
therefore rightly convicted of murder.
[12] The
position of the second appellant was not identical. He may not have
physically taken part in the gagging of the deceased.
If he did not
it is unlikely that he knew how forcefully or how deeply the sock had
been pressed in. He also did not face the same
threat of immediate
identification and arrest if the deceased should be released.
Nevertheless the inescapable inference is that
he actively
participated in the violent and callous subduing of the deceased. He
saw and apparently approved of the first appellant’s
action in
silencing the victim – the photograph of the deceased shows
that almost all of the sock was inside his mouth –
and he was
satisfied to leave the deceased in a helpless and hopeless state
without any attempt to mitigate the possible consequences
by ensuring
that the deceased did not choke. He was educated to standard 7 and
appears to have possessed a reasonable level of intelligence.
His
unconvincing profession of ignorance of the consequences of stuffing
a gag into the mouth of his victim was not buttressed by
any
explanation which might have sustained such a profession. In the
circumstances, it seems to me, the comparison between his position
and that of the first appellant results in distinctions without a
difference in their states of mind. The only reasonable inference
to
be drawn is that he too appreciated the consequences of interrupting
the deceased’s breathing and was similarly prepared
to take the
chance that their victim would expire before he could be rescued. He
also was correctly convicted of murder on the basis
of
dolus
eventualis
.
[13] The
attack on the conviction on the charge of housebreaking can be
shortly disposed of. The evidence of Johan Jnr was that the
deceased
kept his kitchen door locked by means of a sliding bolt and opened it
only with reluctance, even to him. Often he was obliged
to rouse the
deceased by knocking on his bedroom window. There is in my view no
reasonable possibility that the deceased would have
voluntarily
admitted the appellants to the cottage. They offered no acceptable
reason for him doing so. On the contrary, the first
appellant had
abandoned his employment and the second appellant was a stranger to
the deceased who had no excuse for entering his
home. Their evidence
that they went to the cottage so that the first appellant could
collect wages that the deceased owed him is
at odds with his own
admission that he made no attempt to obtain payment when he left
employment, nor subsequently, but only did
so when the deceased, out
of the blue, offered to pay him. His evidence first fixed the
arrears at R150; later it became R750.
In the event the appellants
left the deceased’s cottage with a great deal more, and the
evidence that the first appellant
intended to return the bakkie was
patently false. The front door was not forced but the bathroom
window had apparently been prised
open – the evidence of Johan
Jnr was that this could easily be achieved – and it hung loose.
All that was needed to
gain entry was to hold the window open. The
only reasonable inference is that the two appellants obtained access
by that route and
in that manner. The element of ‘breaking’
was satisfied by such an entry. The appellants were accordingly
rightly convicted
on the second charge.
[14] In
support of the appeal against sentence counsel for the appellants has
drawn our attention to a range of factors: the ages
of the
appellants, the absence of previous convictions, their family
circumstances and responsibilities, their employment and income,
their education and their socio-economic backgrounds. In addition
both appellants had been detained in custody for some two and
a half
years awaiting trial. The conviction on the first count depended on
a finding of
dolus eventualis
,
not direct intention to kill. But all of these considerations were
mentioned by the learned judge in his careful appraisal of the
factors favourable to the appellants against others which called for
a severe sentence. He did not consider that individually or
cumulatively they amounted to substantial or compelling circumstances
and I am not persuaded that he was wrong. (In relation to
the
conviction on the second count he concluded that the minimum sentence
of 15 years was, in any event, inadequate in the circumstances
of the
case. An enquiry into the existence of substantial and compelling
circumstances, was, therefore, unnecessary.)
[15] However, the manner
in which the learned judge approached the question of sentence on the
second count gives rise to some difficulty.
He said,
‘
Ek
het hierbo gehandel met die aard van die misdaad wat gepleeg is. Ek
het gehandel met die feit dat plaasmoorde aan die orde van
die dag
is. Ek het gehandel met die feit dat ‘n mens in sy eie huis
veilig behoort te voel en veilig behoort te wees. Die
aanranding op
die oorledene was onmenslik en hy het ‘n wrede dood gesterf.
Uit die gesag wat ek aangehaal het, het ons hoogste
hof van appèl
dit duidelik gestel dat faktore soos ‘n bevinding van
dolus
eventualis
en die relatiewe jeugdigheid en
rehabiliteerbaarheid nie noodwendig ‘n ligter vonnis regverdig
as die maksimum wat opgelê
kan word nie. Ek is voorts van
oordeel dat die erns van die roofklagte sodanig is dat 15 jaar
gevangenisstraf soos voorgeskryf as
minimum vonnis te min is in die
huidige saak.’
While there
may be some doubt as to precisely what the learned judge had in mind,
it seems probable that he regarded the fact that
the assault upon the
deceased resulted in his death as a factor to be taken into account
in assessing the appropriate sentence for
the robbery with
aggravating circumstances. The overlap between offences such as
murder and robbery in a sentencing context has
frequently led to
discussion about the proper way of avoiding duplication of
punishment. See eg
S v S
1991
(2) SA 93
(A) at 103H-106C and the authorities there cited and
cf
S v Maraisana
1992
(2) SACR 507
(A) per Nestadt JA. In the first-mentioned case
Nienaber JA said,
‘
Die
geweld wat tot die dood gelei het, kwalifiseer vanselfsprekend as ‘n
verswarende omstandigheid vir doeleindes van die roof.
Dan gaan dit
om die skuldigbevinding as sodanig aan die misdaad “roof met
verswarende omstandighede”. (Vgl
R v
Cain
1959 (3) SA 376
(A) te 383D-F;
R
v Constance en ‘n Ander
(
supra
te 634A-D; 636A-G).) Maar wanneer dit by die vonnis vir die roof
kom, moet die moord, soos meermale gesê is, weggedink word
want
anders word die dood van die oorledene twee keer teen die beskuldigde
in ag geneem – een keer onder die rubriek “moord”
en ‘n tweede keer onder die rubriek “roof met verswarende
omstandighede”.
Hierdie
benadering is, sover my bekend, vir die eerste keer deur Trollip AR
in
S v Mathebula and Another
1978 (2) SA 607
(A) te 613H geformuleer (waaroor aanstons meer) en is
daarna herhaaldelik toegepas. ‘n Selfstandige regsbeginsel is
dit egter
nie. Die eintlike beginsel is dat dieselfde feit of
feitestel wat aan meerdere misdade gemeenskaplik is – in die
een geval
bes moontlik as ‘n bestanddeel van die
misdaadsomskrywing, en in die ander geval as ‘n verswarende
omstandigheid by vonnis
– nie meermale teen ‘n
beskuldigde in ag geneem moet word wanneer dit by die oplegging van
vonnis op elk van die klagtes
kom nie. Die “wegdink” van
die een misdaad sodra ‘n vonnis vir die ander oorweeg word, is
dus hoogstens ‘n
riglyn.)’
Jordaan AJ
was clearly entitled to have regard to the degree and circumstances
of the attack on the deceased, even to the point of
recognising that
it was life-threatening, but in so far as he emphasised the fatal
consequences of the attack and the effect of a
finding of
dolus
eventualis
it seems to me that he misdirected
himself. Instead of thinking away the death of the deceased he
allowed it to aggravate the seriousness
of the lesser offence. The
question of sentence on the second count is thereby opened for
reconsideration. The attack on the deceased
was undoubtedly brutal
and cowardly and in every way to be discouraged with all means at our
disposal. But it must also be remembered
that the appellants went
unarmed to the deceased’s home and that the initial, disabling,
assault was probably not caused by
a weapon but by the banging of his
head on the furniture to hand (consistent with the observations of
his son) and the effect was
bruising and not a fracture (neither of
which factors was mentioned in the judgment of the court
a
quo
). I do not leave out of the equation the
additional means adopted by the appellants to silence their victim.
Nor do I discount
the other aggravating features such as the
prevalence of attacks on farmers and the invasion of the deceased’s
home. I do
not agree with counsel for the appellants that their ages
and clean records were, of themselves, such as could properly be
regarded
as substantial and compelling circumstances in the
circumstances of this case. Indeed I cannot find any such
circumstances present
which warrant the imposition of a sentence less
than the mandatory minimum in respect of either appellant. On the
other hand after
weighing the aggravating features of the case I
conclude that those too are not such as to require the imposition of
sentences exceeding
the statutory minimum.
[16] In the result –
1. The appeals of both
appellants against their convictions are dismissed.
2. The appeals of both
appellants against their sentences of life imprisonment on the charge
of murder are dismissed.
3. The appeals of both
appellants against the sentences of 20 years on the count of
housebreaking with intent to commit robbery and
robbery with
aggravating circumstances are upheld. There is substituted for those
sentences a sentence of 15 years imprisonment
in respect of each
appellant.
J A HEHER
JUDGE OF APPEAL
CONCUR:
STREICHER JA)
MTHIYANE JA)