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[1987] ZASCA 117
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S v Gcabashe and Another (119/87) [1987] ZASCA 117 (30 September 1987)
JO
SEPH GCABASHE
Appellant No 1
MNUXA JEROMA GCABA
Appellant No 2
AND
THE STATE
Respondent
Case No 61/87 mp
IN THE SUPREME COURT OF SOUTH APRICA (APPELLATE DIVISION)
In the matter between:
JOSEPH GCABASHE
Appellant No. 1 (Accused
No. 2 in Court
a quo)
MNUXA JEROMA GCABA
Appellant No. 2 (Accused
No. 3 in Court
a quo)
and
THE STATE
Respondent
CORAM
: VAN HEERDEN, GROSSKOPF, JJA et STEYN,
AJA
HEARD:
11 September 198
DELIVERED:
30 September 1987
JUDGMENT
STEYN , AJA
2.
STEYN, AJA,
Both appellants were sentenced to death by BROOME, J on
December 12 1986 on each of two counts, one of murder and the other of
housebreaking
with intent to rob and robbery with aggravating circumstances.
They had been arraigned before him sitting with two assessors at Scottburgh
in the Circuit Local Division for the Southern District
of Natal. At the trial
appellants appeared as accused no's 2 and 3 with two other accused. They were
jointly charged on three counts,
the first being murder, the second attempted
murder and the third house= breaking with intent to rob and robbery with
aggravating
circumstances. The gist of these counts was that on the 5th of June
1986 at the Oribi Gorge Hotel in the district of Port Shepstone
they murdered
Timothy Peter James Jeffreys (the deceased), attempted to murder his wife, Olive
Alexandria Jeffreys (the complainant),
and broke into and entered the said
hotel, the residence of deceased and
complainant,
3.
complainant, with intent to rob them and then robbed them of one .32
revolver, 3 rounds of ammunition, R400 in cash, a cheque book,
a purse and three
bundles of keys.
All four accused pleaded not guilty, each denied any participation in the
alleged offences, and each raised an alibi as defence. Accused
no 1 was
acquitted on all counts but the appellants and accused no 4 were convicted on
count 1 of murder on the basis of
dolus eventualis;
on count 2 they were
convicted of assault with intent to do grievous bodily harm, also on the basis
of
dolus eventualis;
and on count 3 they were convicted as charged, but
as to the robbery apparently only in respect of the purse, the revolver, the
keys
and "the money" (i e R200 - R300).
In respect of the murder the majority of the Court found that there were
extenuating circumstances in the case of accused no 4, but
unanimously found
that there were none in the cases of the appellants. The extenuating
circumstances found in respect of the fourth
accused were
that
4 . that he was 21 years of age at the tlme of the murder, that he
was younger, less intelligent and less mature than accused no's
2 and 3 and that
he was possibly influenced by them to join in the offences resulting
inter
alia
in the murder of the deceased, "something that he on his own or with
people with his own level of maturity might not have done."
Accused no's 2 and 3 were respectively 22 and 23 years old on the 5th of June
1986.
Por the purposes of the discretionary sentences previous convictions were
proved against accused 2 and 4 which they admitted. Accused
no 2 (first
appellant) admitted four previous convictions of housebreaking with intent to
steal and theft, comprising eleven counts
in all, during the period August, 15,
1977 to November 1979. In respect of the first, second and third convictions he
was sentenced
as a juvenile offender, to cuts with a light cane for the first
and second convictions and for the third to
be
5. be sent to a reform school as defined in sec 1 of the Childrens'
Act, 1960. On the fourth occasion (seven counts) he was sentenced
to a total of
42 months' imprisonment conditionally suspended for 5 years.
The fourth accused admitted three previous convictions for housebreaking with
intent to steal and theft and one for possession of
dagga, during the period
November 14 1979 to November 18 1985. In respect of the first and second
convictions for housebreaking he
was sentenced as a juvenile to cuts with a
light cane and for the third (the fourth of the previous convictions, that in
respect
of dagga being the third) to 9 months' imprisonment on November 18 1985.
In this offence R1 069 worth of clothing was involved.
Regarding count 3 mitigating circumstances (being mainly the same as the
aforementioned extenuating circumstances) were found by the
learned Judge to be
present in the case of accused no 4, but none in respect of
appellants
6
appellants.
The mandatory death sentence for the murder was then imposed upon the
appellants, as well as the discretionary death sentence on count
3, the learned
Judge having found in respect of that offence that it was "an extreme case and a
proper one for the death sentence"
even though he accepted that there may well
be more serious cases of that nature. On count 2 he sentenced appellants to
imprisonment
for 18 months and 2 years respectively.
Accused no
4 was sentenced as follows:
On count no 1 - 10 years' imprisonment;
On count no 2 - 18 months' imprisonment;
On count no 3 - 8 years' imprisonment.
It was ordered that all three sentences run concurrently.
Appellants were given leave by the Court
a quo
to appeal against the finding that there were no extenuating
and circumstances in their cases and against the mandatory and
discretionary death sentences; but leave to appeal against
their
7.
their convictions was refused. In considering their appeals the Trial
Court's findings of fact on the merits will consequently have
to be
accepted.
Those findings and the relevant admitted or undisputed facts are briefly the
following:-
The deceased and complainant were an aged couple who owned and had for many
years been running the Oribi Gorge Hotel, which is about
24 km inland from Port
Shepstone. They resided in a separate set of rooms in the hotel. Their married
son, Kenneth, occupied a separate
dwelling on the hotel premises, 80 - 100
metres from the main building. During the night of the 4th/5th June 1986 they
were all at
home. There were no guests staying overnight and the old couple were
the only residents in the hotel.
Deceased suffered from emphysema and went to bed before his wife. On retiring
at 11 pm she unlocked the front door of the hotel as
had been her wont for 39
years so as to enable a servant to enter early in the morning to
make
8.
make the kitchen fire.
Their living-quarters consisted of a private lounge entered from the
reception area at the front door, a bedroom entered from the
private lounge and,
entered from the bedroom, a combined dressing-and bathroom (the latter being
partitioned off from the former).
According to the police sketch plan (part of
exh C) the lay-out of these quarters was then as follows. Coming from the front
door
one would have had to turn left in the reception area to enter the private
lounge, then proceed straight through to the bedroom,
the door of which was
directly opposite the entrance to the lounge. On entering the bedroom there were
two beds to the right front
at rightangles to the bedroom door, with their heads
against the right-hand wall. Deceased's bed was furthest from the door and was
separated from complainant's by a bedside table. To reach his bed one would have
had to pass by the foot of complainant's.
On
9.
On entering the bedroom one had to turn to the right
to rêach the dressing-room door which was at rightangles to the bedroom
door. To the left of the dressing-room door and inside the dressing-room area
there was a short passage between the bathroom partition
and the bedroom wall.
At the end of this passage there was a narrow door opening outwards onto the
verandah on which there were several
tables with chairs.
On the night in
question none of these doors were locked but complainant closed the bedroom door
when she retired. She put off her
light at about midnight and she and her
husband went to sleep. The bedroom was then semi-dark, being dimly lit by a very
bright outside
light on the hotel premises which shone through the thin white
curtains at the bedroom window. The deceased always kept a revolver
near his bed
but complainant did not know exactly where.
At what must have been about 02h00 complainant was woken by the door to the
lounge "flying open". Four
persons
10. persons rushed into the bedroom and
made straight for the deceased's bed but she could not see what they did to him.
One of the
intruders then took her by the throat. He had a knife. She resisted
him and during the course of the struggle was badly cut on her
left hand. (The
tendons of her left ring and little fingers were severed in the process and
those fingers became permanently useless).
Whilst so struggling with him she
asked her assailant what he wanted. One of the four replied in English that they
wanted money and
firearms. She then noticed the deceased "floundering" (as she
called it) and wondered why he was taking so long to produce his revolver.
Then
he got up and as he did so she noticed that he had the firearm in his hand and
that he had blood on his pyjamas and was "bleeding
freely from his shoulder."
She realised that he had been stabbed, although she had not seen anyone doing
so. Deceased raised his
revolver but did not fire, and asked the intruders what
they wanted. Without replying all four pounced upon him and
disarmed .......
11.
disarmed him. One of them then switched on the bedroom light and she saw that
all of them were masked, wearing "balaclava-like" apparel
coming down over their
heads to their waists, with openings only for their eyes, hoses and mouths. They
ransacked the room and one
removed her purse containing about R200 - R300 from
her handbag which had been taken from the drawer where it had been kept. They
also removed her safe keys, the kitchen keys and deceased's safe keys. But they
apparently wanted more money.
Complainant then decided to escape from them and to take the "floundering"
deceased with her. Holding him in front of her and guiding
him, she said to the
intruders "come on, I'll show you where the money is". She then moved towards
the narrow verandah door via the
dressing-room and passage. The intruders
followed, her assailant holding a knife to her back. On the way she repeated her
request
in a loud voice. The one walking behind her with the knife warned her to
keep quiet, saying "shh, I'll kill you if you
don't......
12.
don't keep quiet." On reaching the verandah door at the end of the passage,
she opened it, pushed the deceased through it onto the
verandah and slammed the
door shut in the faces of the intruders. They apparently turned tail and made
off with their loot.
Complainant seated the deceased at one of the verandah tables and went to
phone her son for help. He received the call at about 02hl5
and immediately came
to the aid of his parents. The deceased was by then in a state of collapse.
Kenneth took his father and mother
to the Port Shepstone hospital but deceased
was dead on arrival. He had several wounds and hurts, the most serious of which
was a
stab wound on the right shoulder which entered his body in the vicinity of
the shoulder blade and penetrated to a depth of 8 - 10
cm, severing major blood
vessels and
collapsing the right lung. This wound caused considerable
bleeding into the chest cavity, 1 ½ 1 of blood being found
there. This was clearly a knife wound and if an Okapi
knife
13.
knife had been used to inflict it, the knife would have
penetrated to the full length of the blade. On the deceased's left shoulder
there was a smaller wound, 2 - 3 cm deep, probably inflicted with a screwdriver.
On the deceased's forearms there was a loss of skin
consistent with a struggle
during which he was held by the forearms and struggled to free himself, the grip
and the wrenching causing
the skin to strip. In the post mortem report (exh D)
the age of deceased is given as 81 years and the medical evidence is that the
aged tend to suffer damage to their skins more easily than do younger persons.
The cause of the deceased's death was, however, the
stab wound on the right
shoulder.
By virtue of (i) a palm-print of accused no 2 found in the private lounge on
the frame of the door to the reception area, (ii) statements
made by accused
no's 2, 3 and 4 to a magistrate during proceedings in terms of
sec 119
of the
Criminal Procedure Act, no 51 of 1977
and (iii) certain pointings-out by each of
them, the Trial Court
found
14.
found that these accused were three of the four persons who , had
broken into the hotel and into the bedroom, assaulted the aged couple
and robbed
them as aforesaid, that they had acted in the execution of a pre-conceived
common purpose, and that it was accused no
3 (second appellant) who had fatally
stabbed the deceased and wounded the complainant. These are the findings upon
which the convictions
were based. It must also be mentioned that in the
sec 119
proceedings accused no 4 admitted that he had been armed with a screwdriver.
Turning now to a consideration of the appeals I deal firstly with the
question whether the Court
a quo
erred in finding that no extenuating
circumstances existed in the appellants' cases.
The learned Judge formulated the Court's finding as follows:
"Extenuating circumstances have been defined in a number of cases and it is
not necessary to repeat the definition. The factors which
the
Court
15.
Court considers weigh against Accused No. 2 in this case are the element of
premeditation - he speaks about this in his statement;
the discussions which
preceded the incident. As regards his role, the basis for his guilt has already
been explained. Although it
is a case of
dolus eventualis,
it is not a
case in which that
dolus
only operates remotely. It cannot be labelled as
an unfortunate case and something that although was foreseen was somewhat
remote.
It was not a case for instance, of a stray stab wound effected on the
point of departure. There was in this case a fairly intense
struggle. It is so
that the cause of death was a single stab wound but sight must not be lost of
the fact that there was a fight;
there was a struggle; the deceased did have the
skin torn off his forearms and he did have a second wound on his other
shoulder.
As regards Accused No. 2, his age is given as" 22 but the impression he
created when he gave evidence was that of a mature young mah
and in the
assessment of the Court, immaturity is totally absent.
So as regards Accused No. 2 then, the Court can find no circumstances which
operate to reduce his moral blameworthiness.
As regards Accused No. 3, much of what has been said applies to him. The
starting point is perhaps that he appears to the Court to
be a little more
mature and a little older than
Accused
16.
Accused No. 2. He played a major role. It was he who entered
with an open knife. It was he who stabbed the deceased and then it was
he who
stabbed the complainant. In all the circumstances, we can find no basis upon
which it can be held that there were circumstances
which must have affected his
mind so as to render his conduct morally less reprehensible."
I can find no fault with that conclusion. It is clear that appellants and
their fellow miscreants had planned the break-in for the
purpose of robbing the
aged couple of their money and firearms and had masked themselves for that
nefarious purpose. That they knew
exactly where the deceased was sleeping and
intended to put him out of action forthwith is graphically demonstrated by the
way they
pounced upon him immediately upon bursting into the bedroom, by-passing
the complainant for the moment. But the way complainant was
thereafter also
assaulted and wounded and the deceased manhandled in the process of disarming
him, (during the course of which he
must have suffered the said loss of. skin),
equally demonstrates their joint intention of over= whelming their victims with
physical
and armed force.
When
17. When the bedroom light was switched on they must at least then
have realised that they had to do with two very old persons and
that the
deceased had been seriously wounded; but that did not cause them to relent.
Appellants had already reached the age of discretion
and must have realised that
one or other of their victims could be fatally hurt in the process of
overwhelming them. To my mind the
Court a quo was correct in its estimation that
in appellants' case the
dolus
here in issue did not operate remotely.
Indeed, it clearly came very close to
dolus directus.
They were not moved
by any dire material need to break into the hotel and to assault and rob their
victims. It was clearly greed
that so moved them.
This Court has repeatedly emphasised that
dolus
eventualis is not by
itself an extenuating circumstance. It is only when it is considered in the
context of the relevant surrounding
circumstances that it might have a
contributory extenuating effect. It had no such effect in the present
case
18. case. The Court having correctly found that there were no
extenuating circumstances, the learned Judge was obligedto sentence
the
appellants to death for the murder of the deceased. Their appeals against that
finding and the death sentences imposed for the
murder of the deceased must
consequently fail.
I now proceed to consider their appeals against the imposition of the death
sentences on the third count. In the present matter those
were discretionary
sentences which could be imposed by the learned Judge in terms of
sec 277
(l)(c)
of the
Criminal Procedure Act, 1977
.
It was urged upon us on appellants' behalf that the learned Judge had failed
to exercise his discretion properly in that when deciding
upon sentence he had
failed to divorce his mind from the fact that the deceased had been killed and
that he had also failed to consider
a long term of imprisonment as a suitable
alternative to the death
sentence.
The
19. The test to be applied by this Court in deciding whether a Trial
Judge had properly exercised his discretion in passing sentence
has recently
been reformulated and clarified in
S v Pieters
1987(3) SA 717(A) in the
following terms by BOTHA, JA at 727 F - 728C:-
"Met betrekking tot appelle teen vonnis in die algemeen is daar herhaaldelik
in talle uitsprake van hierdie Hof beklemtoon dat vonnisoplegging
berus by die
diskresie van die Verhoorregter. Juis omdat dit so is, kan en sal hierdie Hof
nie ingryp en die vonnis van 'n Verhoorregter
verander nie, tensy dit blyk dat
hy die diskresie wat aan hom toever= trou is nie op 'n behoorlike of redelike
wyse uitgeoefen het
nie. Om dit andersom te stel: daar is ruimte vir hierdie Hof
om 'n Verhoorregter se vonnis te verander alleenlik as dit blyk dat
hy sy
diskresie op 'n onbehoor= like of onredelike wyse uitgeoefen het. Dit is die
grondbeginsel wat alle appelle teen vonnis beheers.
Met die toepassing van
daardie beginsel in individuele gevalle word daar in die uitsprake van hierdie
Hof van tyd tot tyd verskillende
toetse, hulpmiddels en maatstawwe geformuleer
en aangewend om, na gelang van die besondere omstandighede wat onder behandeling
is,
te bepaal of ingryping geregverdig sou wees. Wat dit betref, is daar soms
verskille in die bewoording wat in verskillende uit= sprake
aangetref word.
Sulke verskille moet
met
20.
met omsigtigheid benader word, want dit sou verkeerd wees om -'soos advokate
te dikwels geneig is om te doen - 'n oënskynlik
algemene stelling, wat
toepaslik is in die samehang van die besondere feite wat behandel word, uit die
verband van 'n uitspraak as
geheel te neem en te probeer, amper asof dit die
krag van 'n statutêre voorskrif het of 'n wet van Mede en Perse is, om dit
op 'n andersoortige stel feite toe te pas waarop dit in der waarheid nie
toepaslik is nie. Dit is daarom dat ek hierbo weer eens
die grondbeginsel
beklemtoon het: per slot van sake is dit daardie beginsel wat uiteindelik en
altyd van deurslaggewende belang is.
In verband met daardie beginsel sou ek nog
net een verdere oorweging wou byvoeg. Hierbo het ek verwys na gevalle waar 'dit
blyk'
dat die Verhoorregter sy diskresie op 'n onbehoorlike of onredelike wyse
uitgeoefen het. Dit moet verstaan word in die sin dat hierdie
Hof op appel
daarvan oortuig moet wees dat die uitoefening van die diskresie op onbehoorlike
of onredelike wyse geskied het. Na my
mening spreek dit eintlik vanself, want,
iuis omdat hierdie Hof nie sonder meer 'n eie diskresie het om uit te oefen nie,
sou daar
sonder sodanige oortuiging geen voldoende rede bestaan om in te gryp
nie."
At p 734 E the learned Judge added the following,
in considering the effect of this Court's judgment in
S v M
1976
(3) SA 644
(A):-
"Met
. 21.
"Met die oog op hierdie oorwegirígs is ek van mening
dat die twee formulerings genoem deur MULLER, AR saamgesnoer kan word
in een
enkele vraag: of die Verhoorregter redelikerwyse die vonnis kon opgelê het
wat hy wel opgelê het. Dit is die deurslaggewende
vraag: as die antwoord
daarop bevestigend is, is dit die einde van die saak."
In dealing with the approach to be adopted by this Court in deciding whether
a discretionary death sentence should be confirmed or
set aside, BOTHA, JA said
the following at 735 B - D:-
"Dit kom dus net hierop neer dat hierdie Hof nie sonder meer sy eie oordeel
oor 'n gepaste vonnis in die plek sal stel van die oordeel
van die Verhoorregter
nie. Maar dit sluit nie die moontlikheid uit dat hierdie Hof homself die vraag
kan afvra of hy in die eerste
instansie die doodvonnis sou opgelê het, en
indien hy oortuig is daarvan dat hy dit nie sou gedoen het nie, dat dit sou kon
lei tot ingryping en die tersydestelling van die doodvonnis wat die
Verhoorregter opgelê het nie."
This Court has also repeatedly stressed the
necessity for a consideration by the Trial Judge of a
long
22.
long term of imprisonment as a suitable alternative to a
discretionary death sentence. See eg
S v Letsolo
1970(3) SA 476 (A) at
476 - 477;
S v Bapela and Another
1985(1) SA 236 (A) at 244 D - E and 245
P - G; and
S v Pieters
,
supra
, at 731 D - G. If he failed to do
so, such failure could, depending upon the particular circum= stances pertaining
to the case in
question, amount to a misdirection vitiatíng the exercise
of his discretion.
Murder and robbery are separate offences, even
when the former is
committed in the course of committing
the latter (
S v Prins en 'n
Ander
1977 (3) SA 807
A at 815 E -
H.) In determining what the sentence should be for a
robbery with aggravating circumstances the fact that a
murder was also
committed in the course thereof must
consequently be ignored. To do otherwise would in effect
be to punish the malefactor twice for the same killing,
and would amount to an improper exercise of the judicial
discretion.
In
23. In order to determine whether the learned Judge could reasonably
have sentenced appellants to death on the third count it is necessary
to take
note of what he said in so sentencing them. These were his words in addressing
them after he had sentenced accused no 4 as
aforementioned:
"Accused Nos 2 and 3, in view of the fact that Accused No 3 perpetrated the
assault on the complainant, you must receive a marginally
greater sentence than
Accused No 2 on count 2. I sentence Accused No 2 to
Eighteen (18) months'
imprisonment
and Accused No 3 to
Two (2) years' imprisonment
. But on
count 3 I must say that I view this case as extreme. People who behave as you
did, mature men who behave as you did, are
a menace to society. You and two
others burst into this bedroom in the early hours of the morning; you attacked
and subdued the deceased;
you subdued the complainant; you ransacked the place;
you took what you could find in the form of money, keys and a firearm and you
left behind a shambles. It may well be, and I accept that there are more serious
cases than this, but that does not prevent me from
treating this as an extreme
case and a proper one for the death sentence.
The upshot of this is that on count 1, I pass the sentence that the law
demands -
I sentence you both to death
and on count 3
in
24.
in the exercise of my discretion,
I sentence you both to
death
."
Although the learned Judge did not in so many words say that he had not taken
the murder into account in deciding upon the sentence
on the third count, his
silence thereon does in the particular circumstances of the present matter
indicate that he had failed to
divorce his mind from the fact that the deceased
was fatally injured during the robbery. The learned Judge's use of the word
"subdued"
instead of "murdered" or "fatally injured", in referring to the
deceased,although correct in the context of the robbery, is nevertheless
equivocal and not a clear indi= cation that he did exclude the killing from
consideration.
His failure to make any mention of having considered a long term of
imprisonment as an alternative to the death sentence is, however,
another
matter. I am mindful of the following remarks by BOTHA, JA in
S v Pieters
25.
S v
P
ieters
,
supra
, at 728 D - G:
"Die beweerde mistasting was kort en saaklik dit: dat die Verhoorregter nie
in sy uitspraak oorweging geskenk het aan die oplegging
van 'n lang termyn van
gevangenis-straf as 'n moontlike alternatiewe vonnis tot die oplegging van die
doodstraf nie. Alhoewel die
Verhoorregter nie in sy uitspraak uitdruklik melding
maak van die moontlike alternatief van gevangenisstraf in plaas van die
doodstraf
nie, is dit na my mening heeltemal ondenkbaar dat hy nie inderdaad
daardie moontlike alternatief oorweeg het nie. Waar 'n Verhoorregter
in 'n
ernstige verkragtingsaak oorweeg of hy die diskresionêre doodvonnis gaan
oplê, kan hy nie anders as om terselfdertyd
die alternatief van
gevangenisstraf te oorweeg nie, want hierdie twee moontlikhede is per slot van
sake die enigste alterna= tiewe
waaroor hy denkbaar kan besin."
The learned Judge was there dealing in terms with a serious rape, but what he
said is equally apposite to housebreaking with intent
to rob and robbery with
aggravating circumstances.
Although BOTHA, JA seems in the last sentence of the above-quoted passage to
have formulated a
general
26. general rule, it is nevertheless notionally possible that a
trial Judge may fail to consider such an alternative sentence. That
is in fact
what did happen in
S v Bapela
,
supra
. Each case must consequently,
and of necessity, be considered upon its own facts.
In the present matter the mitigating factors relating to accused no 4 in
respect of the third count, were not very strong and his
moral blameworthiness
for that offence was not much less than that of appellants'. Yet, he was only
given a relatively moderate sentence
of 8 years' imprisonment therefor. The
disparity between his moral guilt and that of the appellants', (especially in
the light of
his previous convictions, which indicate that he was
by no means an "innocent" easily susceptible to manipula=
without more tion) was not so marked as to have justified without more the
great
quantum leap from a moderate prison sentence in his case
to the death sentence in theirs, and had he addressed his
mind thereto the learned Judge could not have considered
that it did.
Bearing
27.
Bearing this in mind and adverting to the laconic remarks by the learned
Judge in sentencing accused no 4 to imprisonment and appellants
to death almost
in the same breath as it were on the second count, he must have considered and
reiected the alternative of a term
of imprisonment in appellants' cases. This is
therefore an instance where the remarks of BOTHA, AJ in
S v Pieters
(supra
) clearly apply. In so sentencing appellants and accused no 4 on the
second count, it is clear that he had, however, ,indeed failed
to divorce his
mind from the fact that they had murdered the deceased during the course of the
robbery. The learned Judge must then
again have taken into account the
extenuating circum= stances found by the Court to have been present in the case
of accused no 4
on the murder count in deciding upon the sentence to be imposed
upon him on the second count. The aforementioned great quantum leap
from the
sentence imposed upon accused no 4 to that imposed upon appellants cannot be
explained upon any other acceptable ground.
The learned Judge's failure to leave
the murder
out
28.
out of account in sentencing appellants for the house= breaking and robbery
was a material misdirection which had the effect of vitiating
the exercise of
his discretion.
This Court is consequently at large to determine anew the proper sentence for
appellants on the third count. Taking into account that
deceased was seriously
wounded during the course of the robbery (
S v Cain
1959 (3) SA 376
(A) at
383 D - F, and
S v Moloto
1982 (1) SA 844
(A) at 854) but excluding from
consideration the fact that he died as a result thereof, and according due
weight to the other aforementioned
circumstances, I am satisfied that the
offence does not merit the death sentence. The appeal against those sentences
must, therefore,
be allowed.
It was nevertheless a very serious offence, and the fact that it was
perpetrated at night upon an isolated
and
29.
and aged couple in their dwelling, are gravely aggravating
circumstances meriting a very long term of imprisonment. The fact that
their
fellow male= factor was relatively lightly punished for the same . offence is,
however, a factor which must be taken into consideration.
In my estimation the
blameworthiness of appellants is on a par. First appellant has a list of
previous convictions which bear some
relation to the present offence, whereas
second appellant is a first offender. The latter was, however, the one who
wielded the knife
and wounded both deceased and the complainant. In view of the
aforegoing, I consider that the two appellants should each be sentenced
to 15
years' imprisonment.
In
30.
In the result the following orders are made:-
1)
The appeals of both
appellants against the death sentences on count 1 (murder) are
dismissed.
2)
(a) The appeals of both
appellants against the death
sentences on count 3
(housebreaking with intent to rob and robbery, with aggravating circumstances)
are allowed. (b) The sentence
of death on count 3 in respect of each appellant
is set aside and a sentence of 15 years' imprisonment is substituted.
M T STEYN, AJA
VAN HEERDEN, JA )
Concur GROSSKOPF, JA )