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1984
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[1984] ZASCA 49
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S v Mofokeng (48/84) [1984] ZASCA 49 (17 May 1984)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
DAVID MOFOKENG APPELLANT
AND
THE STATE RESPONDENT
CORAM: JANSEN, TRENGOVE et VILJOEN, JJA HEARD: 1 MAY 1984 DELIVERED: 17 MAY
1984
JUDGMENT
VLLJOEN, JA
The /
2.
The appellant was convicted on a charge of murder and, no extenuating
circumstances having been found, he was sentenced to death by
Phillips AJ
sitting without assessors in the Witwatersrand Local Division. Leave to appeal
was refused by the learned Judge a quo
but was granted by this Court which, at
the same time required a report from the learned trial Judge in terms of s 320
of Act 51
of 1977 on the function of extenuating circumstances and the Judge's
failure to summon assessors to his assistance. To this report,
which was duly
furnished, reference will be made hereafter.
In relating the evidence given in the Court a quo, I shall refer to the
appellant as the accused or by
his /
3.
his name, Koatsheng, as used by the State witnesses.
It is alleged in the
charge sheet that on 11 October 1982 the accused murdered one Johannes Ramahuma
("the deceased"). It was at all
material times common cause that the deceased
met his death as a result of a stab wound inflicted by the appellant but the
circumstances
under which the wound was inflicted, are in dispute. In the' post
mortem report the cause of death was described as a "penetrating
incised wound
of the subclavian vessel".
The State witnesses who testified to the'
circumstances referred to were Sonnyboy Adolashe, John Ramahuma (the father of
the deceased)
and Lulu Ramahuma (the mother of the deceased). Sonnyboy told the
Court that
while /
4.
while he was on his way home on the day of the deceased's death he met
Koatsheng and one Pule in the street, not far, 1 deduce, from
the deceased's
parents' home. The appellant requested him to go and call the deceased. Sonnyboy
went to the deceased's parents' house
where he was told that the deceased was
not there. He then went home. Some time later a young man called Moses arrived
at his house
and told him that the deceased wanted to see him. He went once more
to the deceased's parents' house where the deceased enquired
from him why he had
called at his house. Sonnyboy told the deceased that Koatsheng (the appellant)
and Pule wanted to see him. According
to Sonnyboy he did not see the appellant
and Pule again and he went home.
Lulu /
5
Lulu Ramahuma, the mother of the deceased, told the Court
that when Sonnyboy arrived at their, house to look for the deceased, she
explained to him that the deceased was not at home. When the deceased did arrive
shortly thereafter she sent the children to go and
call Sonnyboy. When Sonnyboy
arrived she enquired from him who it was who wanted to see the deceased.
Sonnyboy made a report to them
and left. The Ramanuma family sat down to have
their evening meal. Some time thereafter one of the children who had been to the
toilet
entered the house and made a report to them about Koatsheng whereupon
Johannes Ramahuma, her husband, followed by herself, went outside
to speak to
the accused. In spite of the deceased being
warned /
6
warned by her husband not to go outside, he followed them. Outside she
saw the accused and Pule. Her husband told the accused to get
out of his yard.
She asked the accused why he wanted to see the deceased. The latter did not
answer her but spoke to the deceased,saying:-
"You Mudla, Sonny, you think you
are better. You told your parents that we drew knives for your." (Mudla was the
deceased's nickname).
Thereafter the deceased and the accused talked to each
other but she could not hear what they were saying. As they were talking to
one
another she said to the accused, "I will let you be arrested because you wanted
that he push a motor car." While they were arguing
the deceased was waving his
hands as if he "was speaking
with /
7.
with his hands". Suddenly she saw the accused come up to the
deceased "nearer the gate". She did not see him stab the de-ceased but
only
heard a sound and saw the deceased placing his hand on his chest. She grabbed
him and walked with him to the stoep where he
made a report to her and where he
fell down and died. The accused and his companion walked away. When
cross-examined she said they
ran away.
In spite of certain discrepancies(between their evidence), her husband, John
Ramahuma, gave substantially the same evidence as his
wife. It appears from his
evidence that he was aware of only one appearance of Sonnyboy at their house. He
said that shortly after
he had arrived home from work, Sonnyboy arrived at their
house and made
a /
8.
a report to them. It is obvious that he was referring to Sonnyboy's second
appearance at their house. He did not testify about his
wife sending the
children (Moses obviously being one of them) to call Sonnyboy after the deceased
had arrived home to establish from
Sonnyboy why he had been looking for the
deceased. When Sonnyboy had left he spoke to the deceased advising him not to
leave the
house again "because it was at night already",'he said. While they
were sitting in the house thereafter "the children" came and made
a report to
them about Koatsheng. This evidence coincides with Lulu's evidence that one of
the children came in from the toilet and
made a report to them. John proceeded
to tell the Court that he thereupon went outside
and /
9.
and found, standing in the yard, Koatsheng who told him that he wanted to see
the deceased. At that moment the deceased came out of
the kitchen and the two of
them went and stood at the gate where they had a conversation in the course of
which the deceased made
certain movements with his hands as if the deceased was
demonstrating something to the accused. Suddenly the accused took his hand
out
of his trousers pocket, raised it and stabbed the deceased once. The deceased
ran towards the kitchen, fell on the stoep and
died. When cross-examined he said
that he did not see. any weapon in the accused's hand because it was a little
dark. The next morning
at the mortuary he saw the wound on the right side of
the.
neck /
10.
neck. This is in conflict with the medical evidence which is to the effect
that the wound was on the left side. He said the two were
talking in low voices;
he did not hear what they were talking about. His wife Lulu was near the scene
of the stabbing, he said, because
she even spoke to the accused. She said to the
accused that she would "cause him to be arrested for killing her son, because he
was
kill-ing her son because her son had refused to assist in pushing a stolen
car." Just after his wife had said that the accused killed
his son, he
testified.
The accused, testifying in his own defence, said he knew the
deceased as a member of the Damaras gang who used to assault and rob
people who
frequented shebeens.
On /
11
On one occasion, some time prior to the death of the deceased, he and
his brother were sitting with other people at the house of Julius
Mafaso when
members of the Damara gang, including the deceased,arrived there and, shouting
from outside, told him, Koatsheng, that
the black Damaras had arrived and
threatening to injure him. The gang broke the windows, broke down the door and
entered the house.
'They did not find him because he hid behind a door.
During the afternoon on the date when the deceased met his death, he and
others sat drinking beer and Martell brandy at Nelson Pongela's
house. They
commenced drinking at about 16h00. He left Nelson's house with Pule at about
18h00 - 18h30. When they reached
Shilakwe /
12.
Shilakwe street they met the deceased who announced:-"Here is the black
Damara; he has arrived." The deceased put his hand in his
right trousers pocket
and he, the accused, thought that he was taking a knife out of his pocket. He
asked the deceased what he wanted
from him to which the deceased replied in
Zulu, saying: "We won't hear about everything from you." The deceased thereupon
advanced
towards him still having his hand in his pocket and he then produced
his own knife from the inside pocket of his jacket and stabbed
the deceased
once. Thereafter the deceased ran up the street and entered a certain house.
Whether it was the deceased's home or the
house next door he could not say. He
and Vusi thereafter, walking normally, went home. When
he /
13
he heard the next day that the deceased was dead he went to the police
station, surrendered himself and explained to the police what
had happened.
Sonnyboy, he said, gave false evidence against him because he, the accused, had
once injured a member of the soccer
club, the Sheffield All Stars, of which
Sonnyboy was a member; he never saw Sonnyboy that night. He never spoke to
either the deceased's
mother or his father; as a matter of fact, he never saw
them, he said. The deceased accosted him in the street some distance from
the
latter's parents' house. He did not aim particulary at the chest or neck of the
deceased, he said under cross-examination. He
just saw his hand going down to
that spot. He directed his hand towards the front of the deceased's
body /
14.
body, he said, because the deceased was facing him. In this regard he further
testified as follows:-
"At that stage you knew what was going on? ---
Yes, I could see what was
happening.
In other words, you weren't drunk or sick so
that you weren't able to defend yourself? --- Yes,
( was not drunk that I
could not defend myself
because I could see what was going on and I could walk."
Asked why he did not run away when the deceased put his hand in his pocket,
he replied that the deceased was in front of him, he was
in the direction in
which they were walking.
The explanation which he gave the police when he surrendered himself, was
taken down in the form of a
statement /
13.
statement which was handed in. He also made a statement before a magistrate.
Both statements were roughly consistent with the evidence
he gave in Court.
The learned Judge concluded his judgment on the conviction as follows:-
"Now the State evidence consisted of three very good witnesses who made an
extremely favourable impression on me. There,were inevitably
minor discrepancies
between Mr Ramahuma and his wife, as there must always be between honest
witnesses who are telling the truth,
but they are of little consequence and they
in no way affect my opinion of the witnesses, nor does the fact that they were
the parents
of the deceased. Despite that fact and their evident sorrow at the
death of the deceased at the hands of the accused, they were eminently
fair
witnesses who did their very best to give evidence only of things that they
themselves had seen or heard.
Sonnyboy /
16.
Sonnyboy Adolashe showed that their evidence was the truth, and he himself
told the story that he did freely and frankly and without
any hesitation. As he
said himself, why should he say that the accused told him to fetch the deceased;
if it did not happen. The
suggestion that the accused made for Sonnyboy's
motives in fabricating a story against the accused is too fantastic,and absurd
to
merit dealing with. The accused's story , amounts to a complete denial of
everything these three witnesses said except for the fact
that he stabbed the
deceased to death. On his own version he was not entitled to stab the deceased
as he did, but I emphatically
disbelieve the accused's whole story. In my
opinion, the stabbing took place inside the yard of the deceased's home, the
deceased
was unarmed and had not threatened the accused in any way. The
deceased's parents were eye witnesses and Sonnyboy had conveyed' the
accused's
message to the deceased.
I, therefore, entirely disbelieve the accused's evidence and reject it. This
leaves me no option but to find the accused GUILTY OF
MURDER:"
The /
17.
The appellant did not give evidence in extenuation. The accused's counsel's
address on extenuation has not been reported. From the
record it appears that
counsel for the State, when called upon by the learned Judge to address him
"about the accused drinking that
evening, or that afternoon" argued that, even
though the accused might have had something to drink, there was no actual
evidence
that it particularly affected him; the accused simply chose not to
explain how the liquor affected him. The learned Judge, it seems,
agreed with
this submission because he held:- "You leave me no option but to find that there
are no extenuating circumstances." He
thereupon imposed the death sentence.
Relying /
18.
Relying upon certain discrepancies in the evidence of the State witnesses
counsel for the appellant argued that the learned trial
Judge erred in finding
that the' State witnesses were very good witnesses. It was urged that he erred,
consequently, in rejecting
the appellant's version as not reasonably being true.
The appellant should, on the facts testified to by him, have been convicted
of
culpable homicide only, he argued. After carefully considering all the
discrepancies relied upon by counsel 1 have come to the
conclusion that the
learned Judge a quo was fully justified in describing such discrepancies as
there were, the most important of
which appear from my summary of the evidence
above, as minor discrepancies. The learned
Judge /
19
Judge correctly, in my view, rejected the evidence of the appellant.
The appeal against the conviction cannot, therefore, succeed.
On sentence it
was submitted that the learned trial Judge wrongly failed to find extenuation in
the intoxicated state the appellant
was in as a result of the consumption of
liquor at Nelson Pongela's place from 16h00 to l6h30 and in the provocation by
Lulu who
told him shortly before the stabbing that she would cause him to be
arrested for having requested the deceased to help push a stolen
car. It was
further submitted that the learned Judge perpetrated an irregularity by imposing
the death sentence in failing, in compliance
with the requirements of s
145(2
of /
20.
of Act 51 of 1977, to summon assessors to his assistance.
These were the
factors relied upon by the appellant in his
petition to the Chief Justice for
leave to appeal. At the
request of this Court previously referred to, the
learned
Judge a quo furnished the following report in terms of s 320
of
Act 51 of 1977:-
"(I) As I recall, the only factor that was urged in extenuation of sentence
was that of intoxication. There did not appear to me to
be any reliable evidence
of intoxication to such a degree as to reduce the accused's moral
blameworthiness, and I had rejected the
accused's evidence entirely, so 1 found
that the accused had not proved on a balance of probabilities that he was so
intoxicated
as to constitute extenuating circumstances.
It does not appear to me that Lulu's telling the accused before the stabbing
that she
would / '. .
21
would cause him to be arrested because he had wanted the accused (her son) to
push a stolen motor-car constituted any provo-cation
at all. The murder appeared
to me a particularly revolting one, being deliberate-ly committed, as it was, in
front of the de-ceased
man's father and mother. The accused had first made
certain that the deceased would be at home.
(2) Before embarking on the trial, 1 enquired of the State prosecutor, as I
always do, whether it was necessary to have assessors
in this case. I was
assured that it was not necessary. I was therefore of the opinion that, in the
event of a conviction, the accused
would be able to prove extenuating
circumstances that would not make it obligatory upon me to impose the death
sentence. 1 first
became aware that the death sentence would have to be imposed
when I realised that the accused had not proved that extenuating circumstances
existed."
There is, in my view, no substance in
the /
22.
the intoxication combined with the provocation submission.
The onus was
upon the appellant to prove extenuation. I agree with the learned trial Judge
that there was no re-liable evidence of
intoxication to such a degree as to
reduce the accused's moral blameworthiness. As for the provocation, it was at no
stage the appellant's
case that he was provoked by any utterance by Lulu. His
evidence was that she was not near him and the deceased. Even assuming, in
view
of his lying evidence, that she was there and that he heard what she said, this
Court cannot speculate as to the effect that
utterance had in reducing his moral
blameworthiness. In this Court counsel for the appellant added a further
argument, to wit that
on the
State's /
23.
State's own version the deceased immediately before the stabbing made
peculiar upward and downward movements with his hands which
were consistent with
a threatening attitude. Again, it was not the evidence of the accused that he
re- garded these movements as
a threat. The impression made upon the parents of
the deceased, as appears from their evidence, was that the deceased demonstrated
with his hands to emphasise a point made in argument. If they were right,, and
there is no evidence to the contrary, the movement
of his hands by the deceased
could never constitute, or appear to the appellant to present, a threat to his
safety.
On the matter of the Judge sitting without assessors counsel for the
appellant submitted in his heads
of /
24. of argument as follows:-
"On the 27th May 1983 counsel for
the State informed the appellant's counsel that he had declined to express an
opinion to the presiding
Judge as to whether assessors should be summoned or
not. The Court a quo thus irregularly relied upon assurances which obviously
had
never been given."
This is a hearsay statement. Counsel for the State was reluctant to give his
version as to what happened because he felt that it was
not proper for him,
while appearing for the State in this Court, to become embroiled in a dispute.
It seems, however, that there
was room for a misunderstanding. Counsel for the
appel-lant very properly admitted that he was at fault in not applying for an
entry
to be made on the record immediately
after the
imposition /
25.
imposition of the death sentence. If he had done that, the events which
occurred would still have been fresh in the memory of all
concerned and the
terms of a special entry could very easily have been settled between the trial
Judge and counsel. The failure of
counsel to apply in good time for a special
entry to be made obliged the learned Judge to have to cast his mind back to the
events
of three months earlier. This Court cannot act on a mere hearsay
statement by counsel. In any event, we have a report from the learned
Judge that
he did consider whether it was necessary to have assessors in the case and no
pur-pose would be served, in my view, in
remitting the matter
for /
26.
for the learned Judge to consider making a special entry.
The expression by the learned Judge, "You leave me no op-tion but to find
that
there are no extenuating circum-stances", seems to confirm, in my view, that, in
spite of his initial opinion that this was
not a case for the death sentence, he
was reluctantly compelled, In view of the appellant's failure to prove
extenuating circumstances,
to impose the death sentence. The appeal against the
finding that no extenuating circumstances existed cannot therefore be
disturbed.
The appeal is dismissed.
JUDGE OF APPEAL
JANSEN, JA ) CONCUR TRENGOVE, JA ) CONCUR