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1984
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[1984] ZASCA 167
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S v Rakosa (145/84) [1984] ZASCA 167 (30 November 1984)
Case no. 145/84
MC
LESOLO SOLOMON RAKOSA
and
THE STATE
JANSEN JA
.
Case no. 145/84
MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between
LESOLO SOLOMON RAKOSA
Appellant
- and -
THE
STATE
Coram:
JANSEN, VILJOEN, BOTHA, VAN HEERDEN
JJA et SMALBERGER AJA.
Heard:
16 NOVEMBER
1984.
Delivered
: 30 NOVEMBER 1984.
JUDGMENT
2.
JANSEN JA :
-
The appellant was convicted by VERMOOTEN J (and assessors) on circuit at
Vereeniging of murder without extenuating circumstances and
attempted robbery
with aggravating circumstances. For the murder the appellant was sentenced to
death and for the attempted robbery
to 10 years imprisonment. He appeals against
the sentence of death by leave of the court a
quo
. There is also a
special entry on the record, made by the trial judge at the request of the
appellant, which relates to the following
alleged irregularity: in coming to its
conclusion the court relied on what the appellant was alleged to have said when
called upon
to plead in the magistrate's court, but the record of those
proceedings
had /
3. had not been produced at the trial in terms of sec 234(1) of Act
51 of 1977.
The special entry may be dealt with summarily. No notice of
appeal has been filed in terms of sec 317 of Act 51 of 1977 and the matter
is
not properly before us. But in any event a careful perusal of the evidence and
of the judgment of the court a
quo
shows that the appellant's previous
statement played no crucial part in the evaluation of the appellant as a
witness, and also that
no case could be made out that the irregularity, if such,
resulted in a failure of justice.
The circumstances of the murder can be
stated succinctly in the light of the evidence accepted by the
court /
4. court a quo. The appellant and two others planned to rob the deceased
who conducted a butchery near his dwelling-house on a plot
at Kaalplaats. They
went to the deceased's house very early one morning and by a subterfuge enticed
him into the butchery. There
he was attacked. He resisted manfully, but was
over= whelmed by the appellant who stabbed him at least once, fatally, with a
knife
he found lying in the butchery. That murder was done is plain. It is said
there are extenuating circumstances: the killing was not
premeditated but on the
spur of the moment; the appellant was not armed with any lethal weapon, but took
what was to hand. And, no
doubt, some allowance must
be /
5. be made for the stress resulting from the unexpectedly strong resistance
offered by the deceased. However, bearing all this in
mind, it is still
impossible to overlook the fact that the appellant could easily have abandoned
the enterprise, that the killing
was unneces= sary, that the appellant could
easily have made his escape without resorting to fatal violence and that any
stress was
of his own making. This being so, there is no ground for holding in
the particular circumstances of this case that the appellant
is morally less
deserving of the ultimate penalty.
The appeal is dismissed.
E.L. JANSEN JA. VILJOEN JA
)
BOTHA JA )
Concur.
VAN HEERDEN JA )
SMALBERGER AJA ) ^