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1986
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[1986] ZASCA 17
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S v Shangase (342/1985) [1986] ZASCA 17 (18 March 1986)
LL
Case No 342/1985
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ABSALOM MAKHEHLA SHANGASE
Appellant
and
THE STATE
Respondent
CORAM
: VAN HEERDEN, HEFER et
SMALBERGER JJA
HEARD
: 14 MARCH 1986
REASONS
HANDED IN
: 18 MARCH 1986
REASONS FOR JUDGMENT
/
VAN HEERDEN JA
...
2.
VAN HEERDEN, JA
:
The appellant and two co-accused (hereinafter referred to respectively as no
1 and no 2) were arraigned in the Circuit Local Division
for the Zululand
District on charges of murder and robbery. They were convicted on both counts.
The trial court found that as regards
no 2 and the appellant there were no
extenuating circumstances and they were consequently sentenced to death on the
capital charge.
With the leave of the court a
quo
this appeal was
directed against that sentence.
It appears that one Sibiya, who was some form of headman, promised to provide
the appellant with a building site on condition that
he kill a certain Ngcobo.
The appellant consented but at a later stage, for reasons which are not
material, Sibiya changed his mind
and instructed the appellant and his two
co-accused to stage a robbery at the home of Olga Sithole ("the deceased") at
Driefontein.
On the evening of 13 July
/1984 ...
3.
1984 the three would-be robbers proceeded to the house in
question. They gained entrance by a subterfuge, pretending that they were
members of the police force. No 1, however, remained outside since he was known
to at least some of the occupants of the house. He
was armed with a pistol and
the appellant and no 2 with shotguns. Inside the house the appellant was the
only spokesman. He demanded,
and obtained, money and food from the deceased
whilst no 2 was guarding her husband ("David"). After their main purpose had
been
accomplished, no 2 fired a shot at the deceased. She was hit in the chest
and died instantaneously. The villains then fled with their
loot.
David, who was an eye witness, could give no explanation as to why the fatal
shot was fired. His impression was that the deceased
was killed shortly after
the appellant and no 2 had left the house.
The appellant's version of the fatal events is
/as ...
4.
as follows: when he was on the point of departing the deceased
grabbed hold of him. He tried to break free but she held on to the
tails of his
jacket. He screamed for help, saying: "I am dying." He did so to invoke the
assistance of his companions. Immediately
thereafter he heard a shot go off.
This version was largely corroborated by no 2. He said that he saw the
appellant being held by the deceased. She had her arms around
his waist and was
attempting to pull him towards a bedroom.
Both the appellant and no 2 testified that the shot was in fact fired by no
1. This was denied by the latter and his version was accepted
by the court a
quo
which found:
(a) that the shot was fired during the course
of
and in furtherance of the robbery in which all three
accused had joined,
and
(b) that they were aware that each was armed
/with ...
5.
with loaded guns which, if used, could bring about death, and that they did
foresee/foresaw the possibility that one or more of the
guns could be used, but
were reck-less as, to that possible consequence.
The court also found that having regard to the lighting conditions in the
house, and the fact that David, who was some distance removed
from where the
shot was fired, was in a state of shock, it was possible that the deceased had
in fact grabbed the appellant by the
tails of his jacket.
In the judgment on the question of extenuation the court took into
consideration that the appellant did not fire the fatal shot, but
did not regard
that fact as a circumstance reducing his moral blameworthiness. The court
pointed out that he was a man of 24 years
who had chosen to embark on the
robbery for personal gain, and that he had not been under the influence of
alcohol or subject to
any pressure.
/The ...
6.
The main submission of counsel for the appel-lant was that on
David's evidence, which was accepted by the court a. quo, the murder
was
committed after the robbery had been completed and the appellant had withdrawn
from the scene of the murder. Since no 2 acted
independently when shooting the
deceased, and did so coldbloodedly and not in furtherance of the robbery, so it
was argued, the moral
blameworthiness of the appellant is clearly less than that
of no 2.
The short answer to that submission is that it flies in the face of the
probabilities; the evi-dence of the appellant and no 2, and
a statement made by
the appellant when questioned in terms of s 113 of the Criminal Procedure Act.
It is true that the court a
quo
spoke only of a possibility that the
de-ceased might have grabbed hold of the appellant, but in my view it is a
strong probability.
If the appellant did not cry out for assistance, there
appears
/to ...
7.
to be no motivation for the firing of the fatal shot by no 2, unless
the villains were indeed instructed by Sibiya to kill the deceased.
This is not
a far fetched possibility, since, according to the appellant's testimony, Sibiya
had told him that he hated the de-ceased.
The reason was that she had jilted him
whilst he was attempting to court her. Of course, if the appellant and his
co-accused went
to the house with the intention of robbing and killing the
deceased, there can be no question of extenuation.
I am accordingly of the view that if the vil-lains did not go to the house
with the intention to rob and kill the deceased, the latter
was shot because of
the instigation provided by the appellant's call for assistance.
Counsel for the appellant also relied on the appellant's "relative" youth,
the fact that he acted on the orders of Sibiya, and that
according to the
/findings ...
8.
findings of the trial court his
mens
rea was not that of
dolus directus
. However, the court was fully alive to those factors and
correctly emphasised that the appellant's motive for complying with Sibiya's
instructions was the prospect of personal gain. Counsel conceded, rightly, in my
view, that the trial court did not misdirect itself
and its finding as to the
absence of extenuating circumstances certainly is not one at which no reasonable
court could have arrived.
For these reasons the appeal was dismissed.
H.J.O. VAN HEERDEN JA
I CONCUR
J.J.F. HEFER JA
I CONCUR
J.W. SMALBERGER JA