About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1984
>>
[1984] ZASCA 105
|
|
S v Zahayi and Others (10/84) [1984] ZASCA 105 (20 September 1984)
10/84
N v H
STEV
EN ZAHAYI
&
OTHERS v T
HE STATE
SMALBERGER, AJA :-
10/84
N v H
IN THE SUPREME COURT OF SOUTH
A
FIRCA
(APP
ELLATE
DIVIS
ION)
In the matter between:
STEVEN ZAHAYI
1st Appellant
ALFRED MATHE
WS 2nd
Appellant
FRA
NS MABENA
3rd Appellant
and
TH
E STATE Respondent
CORAM
: KOTZé, HOEXTER,
JJA, et SMALBERGER, AJA
HEA
RD: 13 SEPTEMBER 1984
DELIVERED
: 20 SEPTEMBER 1984
JU
DGMENT
SMALBERGER, AJA :-
The three appellants were convicted in
the Witwatersrand Local Division by ELOFF, J, and two assessors of murder
without extenuating
circumstances
(count /
2
(count 1), and robbery with aggravating circumstances as
defined in section 1 of Act 51 of 1977 (count 3). They were acquitted on
a
second charge of robbery (count 2). On the murder charge the second appellant
was sentenced to death; the first and third appellants
were each sentenced to 12
years imprisonment, the death sentence not being mandatory on account of their
ages. On the robbery charge
each appellant was sentenced to 8 years imprison=
ment. In respect of the first and third appellants the sentences were ordered to
run concurrently. All three appellants were granted leave by the trial Judge to
appeal against their convictions. The trial Judge
refused them leave to appeal
against their sentences, but this Court subsequently granted such leave to the
first and second appellants.
The facts of this matter are dealt with at length in the judgment of the
trial Court, and need not be repeated in detail. The evidence
establishes that
on
the /
3 the evening of the 8th April 1982 the deceased, Gekiso Piet
Mabusha, his wife, Pauline Dladla, and a companion, Hotnot Phaliso,
were walking
along a footpath in Tembisa on their way to a church meeting. The footpath is
widely used by pedestrians from the Tembisa
residential area proceeding to and
from a nearby railway station. It was already dark at the time. A group of young
men approached
them from the opposite direction. There is a conflict on the
evidence whether this group comprised three or six men. The trial Court
dealt
fully with this conflict, and accepted that there were only three men. This
finding accords with the weight of evidence, and
I am unpersuaded that it was
wrong. One of the three men tripped the deceased, apparently deliberately,
whereupon all three proceeded
to attack the deceased and Phaliso. Two of the
three men were armed with knives and one with a kierie. Stones were also used in
the
assault. The deceased
was /
4 was fatally injured, and Phaliso sustained head
injuries, two stab-wounds of the back and a broken left hand. The
po
s
t
mortem
findings on the deceased revealed that he died of head injuries
caused by two blows to the head with a blunt instrument which resulted
in
haemorrhaging of the brain. In addition the deceased had five stab-wounds of the
back, two of which penetrated the chest cavity.
According to the medical
evidence, although the stab-wounds alone would not necessarily have been fatal,
they contributed indirectly
to the deceased's death. The pos
t mortem
findings confirm the eye witness evidence that the deceased was felled by
blows
to the head and thereafter stabbed while lying on the ground.
After the assault upon him Phaliso found that his watch and some money were
missing. There was in= sufficient evidence to establish
that any of the
deceased's possessions had been taken by his assailants (hence the
acquittal /
5 acquittal of the three appellants on the second robbery
charge).
When proper regard is had to the circumstances of the attack on the
deceased and Phaliso, the fact that each of their assailants was
armed, the
vicious nature of the assault upon them, the extent of the injuries they
sustained and the fact that Phaliso was dispossessed
of certain property, the
only reasonable inference to be drawn, in the absence of any explanation of
their conduct by those involved
in the assault, is that :-
(a) The deceased and Phaliso were assaulted
in furtherance of a common
design to rob
them;
(b) Each of their assailants foresaw the
reasonable possibility of death
ensuing
in the execution of the robbery yet
persisted, reckless of such
fatal con=
sequences;
(c) The assault on the deceased was accom=
panied by a direct intent to
kill on the
part of the perpetrator or perpetrators
of such assault.
It /
6 It follows that, irrespective of their degree of actual
participation, each of the three persons who joined in the attack upon the
deceased and Phaliso would be responsible for the acts of the others (
S v
Shaik
1983(4) SA 57 (A) ). All three would accordingly be guilty of
murdering the deceased and robbing Phaliso (
S v Madlala
1969(2) SA 637
(A) ).
The only real issue in this matter is the identity of the persons who
attacked the deceased and Phaliso. They were identified by the
State witnesses
Mandla Gele and Vusie Mahlangu as the three appellants. Paulina also purported
to identify the appellants in Court,
but her evidence in this respect was
correctly disregarded because of a previous conflicting statement. Mandla and
Vusie are both
young boys. They claimed to have been relatively close to where
the assault occurred when they witnessed it. Their narrative of the
events they
observed largely coincides with what actually
happened /
7 happened. Paulina and Phaliso both confirm the
presence of two young boys near the scene of the assault. It is common cause
that
the three appellants are well known to Mandla and Vusie. The evidence
establishes that there was adequate lighting for the purposes
of proper
identification. The evidence of the State witnesses that the area was lit by
nearby street lights and a distant mast light
was not disputed during the State
case. Only when the first and second appellants testified did they suggest that
this was not so.
The State witnesses also testified to the fact that the moon
was shining. It is common cause that it was full moon, but the defence
called a
meteorologist, one Waldy, in an effort to establish that the weather conditions
at Tembisa on the evening in question were
such that cloud cover would probably
have obscured the moon. Waldy's evidence was based on observations made and
recorded by someone
else in the course of the latter's duties. The
observations
were /
8
were made some distance from Tembisa itself. The admissibility
of Waldy's evidence was never challenged at the trial, and its admissibility
can
be assumed for the purposes of the present appeal. On a proper analysis thereof,
however, Waldy's evidence is incon= clusive
as to the precise weather conditions
prevailing at Tembisa at the time of the assault, which must needs have been of
short duration.
His evidence does not therefore detract from that of the State
witnesses that the moon was shining and not obscured at the time.
Although the
assault took place a distance of some 73 metres from where Mandla and Vusie
were, they testified
that the three appellants passed within a matter of
yards
immediately from them after the incident. All the circumstances
were therefore conducive to reliable identification.
Furthermore, the
first and second appellants place them=
selves somewhere in the vicinity of where the assault
occurred at the
relevant time. This further enhances
the reliability of Mandla and Vusie's
identification of
them /
9 them. In the circumstances it is not surprising that
counsel for the appellants conceded that Mandla and Vusie could not have been
mistaken in their identi= fication of the three appellants, and confined
themselves to attacking the honesty of their evidence.
The trial Court was
fully alive to the dangers inherent in the acceptance of the evidence of Mandla
and Vusie. They apparently both
created a favourable im= pression.
Notwithstanding certain contradictions and discrepancies in their evidence, of
which the trial
Court was fully aware, they were found to be honest and credible
witnesses. In arriving at this conclusion the trial Court was also
alive to the
fact that Mandla's brother had at one time been charged with the offences of
which the three appellants were convicted.
The evidence reveals no reason for
Mandla and Vusie to implicate the three appellants falsely. If they had
conspired to do so one
would have expected more specific evidence from them
concerning /
10 concerning the involvement of each appellant,
and a greater measure of agreement on essential detail. I am accordingly
unpersuaded
that the trial Court erred in finding that Mandla and Vusie were
honest witnesses. It was not seriously contended on appeal that
the trial Court
erred in rejecting the evidence of the three appellants, and for good reason. As
I mentioned earlier, the first and
second appellants admitted to being in the
vicinity of where the assault on the deceased and Phaliso occurred, but denied
any participation
therein. The first appellant's evidence was rightly found to
be improbable and contradictory in certain respects. His evidence also
differs
in material respects from not only that of his mother, but also that of the
second appellant. The second appellant's evidence
at the trial is at variance
with an earlier version of the facts given by him to a magistrate. He also
contradicted himself in at
least one important respect. The alibi on which the
third
appellant /
11
appellant relied for his defence was destroyed by one of his
own witnesses, as well as being contrary to the evidence of both the
first and
second appellants.
In all the circumstances it can not be said that the trial
Court erred in accepting the evidence of Mandla and Vusie, and rejecting
that of
the three appellants. It follows that the appellants were correctly convicted of
murder and robbery (with aggra= vating circumstances).
The trial Court found
that there were no extenuating circumstances. The only factors relied upon by
the second appellant, both at
the trial and on appeal, to establish extenuation
were his youth, the liquor he had consumed and alleged impulsiveness and lack of
premeditation on his part. The second appellant was 21 years old at the time the
offence was committed, and therefore of an age where
his youthfulness no longer
plays a significant role in relation to extenuation.
On his /
12 On his own showing the second appellant had not
consumed more than 17 pints of beer, and it is therefore unlikely that his
conduct
was influenced by the consump= tion of alcohol. With regard to the third
point, the trial Court held that the crime committed was
a planned, deliberate
act performed with full knowledge of the probable consequences. Bearing in mind
that the onus was on the second
appellant to establish the existence of
extenuating circumstances, I find myself unable to differ from the trial Court's
finding
that no such circumstances were proved.
In the case of the first and
third appellants, because their ages (17 and 16 years old respectively at the
time of the commission
of the offence) did not render the imposition of the
death penalty mandatory, it was not necessary for the trial Court to make any
finding in regard to the existence or otherwise of extenuating circumstances
(
S v Harman
1978(3) SA 767 (A) ).
The /
13 The trial Court, however, chose to make such a
finding, and concluded that in their case too there were no extenuating
circumstances.
In doing so it erred. Their probable youthful immaturity (s
v
Lehnberg en 'n Ander
1975 (4) SA 553
(A) ) coupled with the fact that they
operated in a group, and may well have been in= fluenced by the oldest member of
the group,
the second appellant (
S v van Rooi en Andere
1976 (2) SA 580
(A) ) was sufficient to justify a finding of extenuating cir= cumstances, and
the trial Court should so have found. They were therefore
sentenced on the basis
of their moral culpability being greater than was in fact the case. Interference
with the sentence imposed
is accordingly justified. An appropriate sentence on
the murder charge, in the case of the first appellant, would be one of 8 years
imprisonment. The sentence on the robbery charge must also be reduced in order
to avoid an imbalance between the two sentences. A
sentence of 6 years
imprisonment would be appropriate.
In the /
14 In the case of the third appellant, he was not
granted leave to appeal against his sentences. As he has successfully challenged
the finding that there were no extenuating circumstances, which must needs have
influenced the sentences imposed upon him, the dictates
of fairness and justice
require that his sentences also be altered so as to accord with those of the
first appellant. There can be
no prejudice to the State if such a course is
adopted. In the result :-
(a)
The appeal of the second
appellant is dismissed;
(b)
The appeals of the
first and third appellants succeed to the extent that their sentences on the
murder and robbery charges are reduced
to 8 years imprison= ment and 6 years
imprisonment respectively, such sentences to run
concurrently.
J W SMALBERGER
ACTING JUDGE OF APPEAL
KOTZé, JA )
CONCUR HOEXTER, JA )