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1986
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[1986] ZASCA 15
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S v Payi (16/86) [1986] ZASCA 15 (14 March 1986)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLAT
E DIVISION)
In the matter between:
CLARENCE LUCKY PAYI
Appellant
AND
THE STATE
Respondent
Coram
: JOUBERT, TRENGOVE et JACOBS, JJ A
Heard
: 28 February
1986
Delivered
: 14 March 1986
JUDG
MENT
JACOBS
, J A :
The appellant appeared as accused 2 with one
Sipho Bridget Xulu, who was accused 1, before Kriek, J and
two assessors
in the Court a quo on various charges.
The..... / 2
2
The charges and the allegations in respect of each charge were the
following:
1 Murder of one Johnson Langa, a Black male. (In the
evidence he was
generally referred to as Ben Langa.)
2 Conspiracy to murder one Modise Faith Matloapane
(referred to as Faith)
in contravention of section
18(2)(a) of Act 17 of 1956.
3 Contravention of section 54(1) of Act 74 of 1982
(Terrorism).
There
were also three charges under the Arms and Ammunition Act, 1969, against both
accused but these were withdrawn by the State
before plea.
Mr
Findlay
, assisted by Mr
Southwoo
d, appeared for
both
accused. (They also appeared for appellant before this
Court .... / 3
3
Court.) Both accused pleaded guilty on counts 2 and 3 and were on their
pleas, as amplified by statements filed in terms of section
112(2) of Act 51 of
1977, found guilty on those two counts. Both accused also pleaded guilty to
murder on count 1 but added qualifications
to their pleas that there were
ex-tenuating circumstances present. The State was however not prepared to accept
the qualifications
with regard to extenua-ting circumstances and therefore set
out to prove the guilt of both accused as if they had pleaded not guilty.
Certain wit-nesses were then called by the State and certain formal ad-missions
made on behalf of both accused and it is not in dis-pute
that the State
succeeded in proving the guilt of both accused on count 1 and that they were
both correctly found
guilty of murder. The only remaining issue was the
existence
or .... / 4
4
or otherwise of extenuating circumstances in relation to count 1. Both
accused gave evidence and they were the only witness-es on
this aspect. The
Court a
quo
in the end unanimously arrived at the conclusion that there
were no extenuating cir-cumstances and accused were sentenced as follows:
Count
1. Each accused sentenced to death.
Count 2. Each accused sentenced to Eight
(8) years impri-sonment. Count 3. Each accused sentenced to Eight (8) years
impri-sonment
of which half was ordered to run con-currently with the sentence
imposed on count 2. Applications on behalf of both accused for leave
to appeal
against the trial Court's finding that there were no ex-tenuating circumstances
and against the death sentences imposed
in .... / 5
5
in respect of count 1 were refused by Kriek J but this Court granted leave to
appellant to appeal against the above find-ing and the
resultant death sentence
but it refused to grant such leave in respect of the aforesaid Sipho Xulu to
whom I shall refer to as accused
1.
The facts and circumstances leading to
the death of the deceased are summarised by the learned trial judge as
follows:
"(a) Each Accused was recruited into an organisation known as the African
National Congress (which I will hereafter call the ANC).
(b) Each Accused underwent military training outside
the borders of the
Republic, preparing for armed
conflict with the South African Defence Force
in-
side the borders of the Republic.
(c) The deceased was a member of the ANC but the high
command of that
organisation suspected him of having
supplied it with false information. On
the day
they were brought back into the Republic from
Swaziland .... / 6
6
Swaziland, the Accused were instructed by the Regional Chief of Security of
the ANC to eliminate the deceased, which they subsequently
did. Both accused
fired at the deceased from short range and both shots were fatal, the one into
the head and the other into the
chest. (e) The killing of the deceased was
therefore a planned execution because of his supposed disloyalty to the
ANC."
I now turn to the background of the appellant as
testified to by him and the reasons given by him as to why he
took part in the killing of the deceased. His father died
when he was very
young and his mother died when he was about
10 years old. He was then brought up by an aunt and lived
in KwaMashu near
Durban where he attended school. In 1980
when he was about 16 years old and
in standard 8, which he had
failed the year before, there were school
boycotts and protest
meetings by the scholars mainly about "teachers'
salaries
and .... / 7
7
and the installation of electricity in schools". During this
period appellant met one James Mavuso, whom he trusted and
had a high regard for, who told him about the ANC and asked
him to join that organisation. After giving the matter some
thought he eventually agreed because, as he said, he wanted
to contribute
towards the struggle of the people to live well
and be legally equally
treated. According to what James told
him he would achieve the aforesaid
objects by joining the ANC.
Thereafter James arranged for himself, appellant
and another
person to leave the country for Swaziland where they
joined
the ANC. That was in March 1981. Appellant stated that
he knew when
he left to join the ANC that he would be trained
in the use of firearms, and
he subsequently indeed underwent
such training in Angola and East Germany
where he was sent
from .... / 8
8
from Swaziland. In 1984 he was sent back to Swaziland where he met accused 1
for the first time. Appellant was then 19 years old and
this was also his age
when the crime was commit-ted. Accused 1 was then 24 years old.
Now accused 1
told the Court that he left the Re-public for Swaziland during January 1983. At
that stage he had known the deceased,
Ben Langa, for some time and the de-ceased
had from time to time been urging him to join the ANC. He eventually agreed and
left for
Swaziland where he received basic instructions in the use of firearms
and was thereafter sent to Angola where he received further
training. He
re-turned to Swaziland in May 1984 where he met appellant. Accused 1 told the
Court, and appellant confirmed this, that
he and appellant received orders to
return to the Republic
and ... . / 9
9
and they were given instructions by a high ranking officer of the ANC as to
what to do after entering the country. They were
inter alia
to conduct a
recruiting campaign, train re-cruits and establish a communication network with
ANC agents in South Africa. On the day
they left Mbabane, and this was also
confirmed by appellant, the Regional Chief of Security of the ANC told them that
there was a
person in Pietermaritz-burg who had done the ANC a lot of harm. This
officer said that the person in question had supplied false
information to the
ANC in Swaziland and that one of their, the accused's, tasks was to kill the
person concerned. Prom further dis-cissions
with this officer it appeared that
the person in Pietermaritzburg referred to was in fact Ben Langa the de-ceased.
Accused 1 testified
that he could hardly believe
what .... / 10
10
what he heard because Ben Langa was one of the persons who had persuaded him,
accused 1, to join the ANC and he regarded Ben Langa
as a "comrade". However,
from the information the Regional Chief gave him he was convinced that the
deceased was in fact a traitor
and from that moment he detested the deceased.
Appellant also stated in evidence that having heard what the deceased was
supposed
to have done he too was quite satisfied that the deceased should be
killed. Accused 1 also testified, and again appellant confirmed
this, that they
were also instructed by the Regional Chief to kill any other person they
consider to be hostile to the ANC. The conspiracy
to kill the person Faith
referred to in count 2, apparently arose from this instruction.
Accused 1 further testified, and this again was
confirmed .... / 11
11
confirmed by appellant, that they arrived in Pietermaritz-burg about mid-May
1984 where they met a certain person (whose identity
the Court ordered not to be
revealed and was referred to as "A") who was known to accused 1 before he left
the country in 1983. This
Mr "A" brought them into contact with one George
Martins and as a result of what Martins told them the four of them decided that
Faith who apparently also played quite a significant part in the first accused's
leaving the country for military training, could
no longer be trusted and should
also be eliminated. By that time "A" had already informed accused 1 and
appellant that he knew Ben
Langa and knew where he stayed. However that may be,
on the evening of 20 May 1984, i e very shortly after their arrival
in South
Africa, accused 1 and appellant together with "A"
and..... / 12
12
and Martin set: off to kill first the person Faith and then Ben Langa.
Accused 1 and appellant were each armed with a pistol. When
they arrived at
Faith's house they observed that he had a visitor and decided not to confront
him that evening. They then drove to
the deceased's house. "A" remained in the
car some distance away while accused 1, appel-lant and Martin proceeded to the
house on
foot. Appellant and Martin knocked on the door of deceased's room and
entered when the door was opened for them by the deceased.
On a signal from
Martin accused 1 also entered whereupon accused 1 and appellant each fired one
shot at deceased, accused 1 with
a Mackarov pistol and appellant with a Lugar
pistol. The shot fired by appellant struck the deceased in the face and
the
one fired by accused 1 struck the deceased in the chest.
Both .... / 13
13
Both shots were fatal. The three of them then returned to the car where "A"
was waiting and the four of them left. I may just pause
here to say that
although accused 1 and appel-lant were only arrested some 16 days after they had
shot the deceased no further steps
were taken to kill Faith. Accused 1 gave as a
reason for this that they were too busy "doing other things"and appellant's
reason
was that they did not think about it again.
Appellant stated that he
shot the deceased because he had to carry out the orders given by the Regional
Chief of Security. In his
evidence accused 1 stated that in the organ-isation
(ANC), a "soldier" who had been given an instruction by a superior officer must
carry it out without asking for
reasons. The maximum penalty for disobedience
was the
firing .... / 14
14
firing squad since the ANC was run like an army on military lines. Accused 1
said that he outranked the appellant since he himself
held the rank of commander
of a unit whilst appellant was a "commissar" or deputy commander of such unit.
The "unit" referred to
apparently being people they were going to recruit and
train after arrival in South Africa. Accused 1 stated that the final decision
in
relation to any matter lay with him but he and appellant first compared views
before acting and during the time that they were
together appellant's views
never differed from his own.
In answer to questions by Mr
Roberts
, for
the State, appellant stated that before he left South Africa he thought he would
be trained to fight the South African Defence
Force
soldiers on his return
and did not think he would have to kill
unarmed .... / 15
15
unarmed persons but he also said that even if he had known that he would be
expected to kill unarmed persons he would nevertheless
have joined the ANC. When
he was asked how he felt about having killed the deceased, he said he felt
nothing and did not regret it.
He killed the deceased because he had taken an
oath to obey instructions and not because of fear of a firing squad or of
accused
1. It had not crossed his mind what would happen to him if he was caught
for killing the deceased. He did not think about the possibility
that he might
be sentenced to death although he had heard about some of his "comrades" having
been sentenced to death. He stated
that in doing what he did he was not
motivated by accused 1 since he had already been motivated in Angola.
He ..... / 16
16
He also stated that if he had known the area where the deceased lived he
would have been prepared to carry out the task of killing
the deceased on his
own. He also stated that after entering the Republic he performed certain work
independently of accused 1 and
gave as an example an instance when he,
accompanied by "A", went to reconnoitre a suitable site for arms caches or a
socalled "Dead
Letter Box" and he found a site which he considered suitable at a
bus-stop near the new Supreme Court in Pietermaritzburg.
This, broadly
speaking, was the evidence given by appellant, and by accused 1 in so far as it
affects appellant, on the issue of extenuating
circumstances.
In his heads of
argument Mr
Findlay
made the submission "that the Trial Court misdirected
itself when it found
that .... / 17
17
that, to the extent that the fact of Appellant having received military
training and having been indoctrinated politically might have
constituted an
extenuating circumstance, it was cancelled out by the cold blooded killing of
the deceased and the Appellant's callous
attitude to the deceased's
death".
In support of the above submission the following cases were referred
to:
S v Smith and Others
1984 (1) S A 583
(A) at 595 B - H and
S v
Ndwalane
1985 (3) S A 222
(A) at 227 D - 228 H.
Now the actual passage in the judgment on which
the above submissions are
based reads as follows:
"We do not consider that the fact of their having received military training
and having been indoctrinated politically constitutes
an extenuating
circumstance.
To ..../ 18
18
To the extent that it may have been such, it is cancelled out by the
cold-blooded killing of the deceased and their callous attitude
towards his
death even now. "
Now it is quite clear that the Court a quo's finding on this particular
aspect is contained in the first sentence of the above passage
which followed
upon a lengthy discussion by the Court of Mr
Findlay
's submission that
the two aspects namely the military training and the so called political
indoctrination constitute extenuating
circumstances. The Court's conclusion was
that the circumstances advanced do not constitute extenuating circumstances. In
his judgment
on the application for leave to appeal Kriek J again makes it quite
clear that that in fact was the Court's main
finding. Whether, if the second
sentence in the passage
quoted .... / 19
19
quoted, and on which Mr
Findlay
relied, had stood alone it would have
constituted a misdirection, is not necessary to decide. Mr
Findlay
in
fact conceded that if the first sentence of the passage from the judgment which
I have quoted is regarded as the Court a
quo
's actual finding then his
submission that the Court misdirected itself loses much of its force. I am
satisfied that there was in
fact no misdirection.
Now, as has been said many
times, the jurisdiction of the Appeal Court is strictly limited on an issue such
as the present. The decision
as to the existence or otherwise of extenuating
circumstances is, in the first instance, essentially one for the trial Court,
and,
in the absence of
any misdirection or irregularity, this Court will
not
interfere .... / 20
20
interfere with a finding that no extenuating circumstances were present,
unless it is one which the trial Court could not reasonably
have come to.
In
his argument, and he called this his main argument, Mr
Findlay
asked this
Court to find that the trial Court had erred. He mentioned five factors which he
submitted taken either individually or
cumulatively constitute extenuating
circumstances and submitted that the trial Court's finding that they do not, is
one to which
no reasonable Court could have come to. The main factors mentioned
by counsel were:
(a) the background of the appellant prior to his re
cruitment into the
ANC;
(b) the indoctrination he underwent from the time of
his ..../ 21
21
his recruitment;
(c)
the murder had a political
connotation and appel-lant was only carrying out orders given by a per-son in
authority over him in the
ANC;
(d)
the killing
was not of an innocent bystander;
(e)
the
appellant was 19 years old at the time when the crime was
committed.
Mr
Findlay
elaborated on the above
contentions but in essence his submissions were merely a repetition of his
argument be-fore the Court a
quo
which argument was recorded and formed
part of the record of appeal. The Court a
quo
carefully considered and
analysed the evidence and in its judgment dealt with these submissions and
unanimously came to the con-clusion
that no extenuating circumstances were
present.
I ..... / 22
22
I have again carefully considered the factors mentioned above. As has been
stated in many cases the determination of the presence
or absence of extenuating
circumstances involves a threefold enquiry. Those are (see
S v Ngoma
S A
1984 (3) 666 (A) 673 G - H):
"1 Whether there were at the time of the commission of the crime facts or
circumstances which could have influenced the accused's
state of mind or mental
faculties and could serve to constitute extenuation;
2
Whether such facts or
circumstances in their cumulative effect, probably did influence the accused's
state of mind in doing what he
did; and
3
Whether this influence was of such a nature as to reduce the moral
blameworthiness of the accused in doing what he did. In deciding
(3) the Trial
Court passes a moral judgment."
Requirement (3)
above was phrased by Joubert J A
in
S v Monangasi en Andere
1981 (3) 5 A 204 at 207 G as follows:
"Of die subjektiewe belnvloeding van beskuldigde se geestesvermoens of
gemoedstoestand van so 'n aard was
dat..... / 23
23
dat die beskuldigde se optrede volgens die objektiewe oordeel van die Hof
daardeur minder verwytbaar word."
The trial Court approached the matter on the above lines and I certainly
cannot say that its finding is one to . which no reasonable
Court could have
come. There is accordingly no more to be said about the matter.
The appeal is dismissed.
H R JACOBS, J A
JOUBERT, J A ) concur
TRENGOVE, J A )