About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1989
>>
[1989] ZASCA 38
|
|
S v Sito and Others (166/88) [1989] ZASCA 38 (30 March 1989)
166/88 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
NTSIKELELO SITO
FIRST APPELLANT
XOLILE WILLIAMS
SECOND
APPELLANT
SIGNET THUNYISWA MBAMBO
THIRD APPELLANT
ABRAHAM
ZEYO
FOURTH APPELLANT
MEMBER MGWADLENI
FIFTH
APPELLANT
and
THE STATE
CORAM
: HEFER, NESTADT et KUMLEBEN JJA
HEARD: 20 MARCH 1989
DELIVERED
: 30 MARCH 1989
JUDGMENT
KUMLEBEN JA
/.......
1 .
KUMLEBEN JA
The five appellants, respectively accused nos
1, 3,
5, 7 and 13 in the court a
quo
, stood trial with
nine other accused in
the Eastern Cape Division of the
Supreme Court on charges of murder,
attempted murder
and arson: twelve counts in all. The appellants were
convicted on four of them: on count 1, of the murder of
a woman, Elizabeth
Klaas; on counts 2 and 3, of
culpable homicide arising from the death of two
young
children Goodman Klaas and Sandla Livingstone Klaas
respectively;
and on count 12, of arson in that they
set fire to and gutted the home of the
Klaas family.
Their co-accused were acquitted on all counts. In the
case
of fourth appellant no extenuating circumstances
were found to be present in
respect of the murder
conviction and he was accordingly sentenced to
death.
The other appellants were sentenced to various terms of
2/...
2. imprisonment on the counts on which they were convicted.
At the conclusion of the trial leave was granted to all the appellants
to appeal
against their convictions; to fourth appellant to appeal against his sentence on
the murder charge, that is, against the
finding on extenuation; and third
appellant was granted leave to appeal against his "sentence" which, it was
common cause, referred
to the sentence of 20 years imprisonment imposed on count
1.
The offences, with which the appellants were charged, were committed by a
group of men during the night of 19/20 April 1985 at the
home of the deceased,
Elizabeth Klaas, (also known as "Mankomo") in Bontrug Township, Kirkwood. At the
time the deceased and her
three daughters, Pumla Klaas, Nomathemba Klaas and
Nokuzola Klaas, were in the house together with another woman Xoliswa Ntshenge
and a number of grandchildren of the deceased. The essential
3/...
3. facts giving rise to the charges are not in dispute.
They are thus succinctly set out by Erasmus AJ in his judgment:
"It appears that earlier the evening there were knockings on the door. Later
that evening a group of men arrived and again knocked.
Someone said: 'We are the
Amacabani'. Nokuzola opened the front door; some of the group entered the house,
while others remained
outside. The estimate of the numbers in the house differ,
but it would appear that there were about 10 to 20 in number." ....
"After the group entered, Nokuzola lit a paraffin lamp, which was on the dining
room table. The group stood in the dining room, near
the front door. Members of
the group kept asking for one 'Jimmy' or Jimmy Klaassen'. Nokuzola said 'Jimmy
is not here but you may
look around', or words to such effect.
One of the intruders had with him a 5 litre plastic container, which contained
some inflammable liquid, probably petrol. Nokuzola
grabbed hold of the container
and for some time she and the person who had hold of it struggled over it. They
both had their hands
on the bottle or container and were tugging it to and fro.
Nokuzola told Pumla to fetch a membership card. (It appears that another
sister
had left this card at the house for the protection of the occupants. It was
never quite established what this card
4/...
4.
really was).
The group kept asking for this 'Jimmy'. Elizabeth Klaas called from the bedroom,
whereupon someone said, according to Nokuzola: 'Good
enough, here is Mankomo.'
The evidence is that another member of the group also said ' let us do what we
have come to do.' At this
time Nokuzola and the intruder were still struggling
over the container. One or more of the group threatened to stab Nokuzola or
aimed blows at her and as a result she let go of the container and ran away.
Thereafter the man with the bottle went into the room
where Elizabeth Klaas was
and brought her into the dining room, where petrol was poured over her body and
she was set alight. Petrol
also was thrown on the floor and this, too, started
burning. The occupants, with the fateful exception of three of them, fled the
house. The building was thereupon burnt to the ground. Three of the occupants
were burnt to death, namely Elizabeth Klaas, Goodman
Klaas and Livingstone
Klaas."
Thus it was that Elizabeth Klaas died as a result of
being set alight and the two young children suffered a similar fate when the
house was razed to the ground. Before its destruction it comprised a living
room, kitchen and three bedrooms,as depicted on a plan
handed in as Exhibit B.
The front door opened into a living
5/...
5. room at the back of which was a kitchen. To the left of
the front door, as one faces it from outside, there were three bedrooms,
with
doors opening into the living room and into a short passage which leads from the
living room, between the rear bedroom and the
kitchen, to the back door.
The main enquiry in the court a
quo
was, and the first issue argued on
appeal is, whether the appellants were proved to have been part of the band of
men who attacked
the house and were present when the offences were committed.
The key State witnesses on this issue were those who purported to identify
the
appellants at the home of the deceased, namely, Nomathemba Klaas, Nokuzola
Klaas, Pumla Klaas and Xoliswa Ntshenge. Each appellant
in turn testified
denying complicity and furnishing an alibi in support of his contention that he
was not present or involved.
6/...
6.
The court found Nokuzola Klaas to be a good witness, both
honest and reliable. The eye witnesses, Nomathemba and Pumla, were held
to be
honest but, having regard to certain defects in their evidence, the court
considered that the reliability of their observations
was in a measure suspect.
For this reason the court relied upon their evidence to the limited extent that
it provided corroboration
for the identificatory evidence of Nokuzola. Xoliswa
was considered a good witness. (In point of fact first, second and fifth
appellants
were identified by Nokuzola and Pumla; third appellant by Nokuzola,
Pumla and Nomathemba; and fourth appellant by all four eye witnesses.)
As
regards the defence case, the court rejected the alibis as false. On appeal
appellants contended, as they did in the court a
quo
, that these State
witnesses were dishonest or untrustworthy; 'that they discussed the matter
amongst themselves before the
7/...
7. trial with the result that they influenced each other on
the question of identification; and that it is reasonably possible that
the
alibis proffered were truthful.
It is appropriate to consider in the first place the evidence of
Nokuzola.
She is a twenty-year-old woman who lived at Bontrug, a township
near Kirkwood. She was at the time a scholar at a local school in
form III, the
equivalent of standard 8. She said that she was in bed that night when at about
2 am she heard people knocking at the
door and on the windows of their home. She
arose and opened the front door. A man called Mytanci pushed her back inside the
house.
The intruders told her to light a lamp which she did. They asked for
Jimmy. A short discussion ensued, they insisting that he be
produced, she
explaining that he was not there. She noticed that
8/...
8. fourth appellant held a cannister, which - as she
correctly assumed - contained petrol. She grabbed hold of it and attempted to
wrest it from him. As she grappled with him, the deceased was heard to say from
one of the bedrooms that Jimmy was not in the house.
One of their members
thereupon said "let us do what we have come for." At this point Mytanci
threatened to stab Nokuzola with a knife
causing her to flee through the back
door. She hid in a partially demolished house nearby until the screams of the
people trapped
in the burning home prompted her to return to the house. She
remained there until the police and fire brigade arrived. They were
unable to
extinguish the fire.
That same morning at about 11 am she was taken around the township by the
police in search of the assaillants. She identified first
and second appellants
and two other persons, who featured as
9/...
9.
accused nos 2 and 4 at the trial. During July 1985 at the
Kirkwood police station she pointed out these four persons and in addition
third
and fourth appellants together with another person (who for some or other reason
was not one of the accused at this trial).
On 13 May 1987 she again took part in
an identif ication parade at the Uitenhage police cells at which she pointed out
fifth appellant
and another person (accused no 14 at the trial).
Reverting to what took place at her home that night, she explained that the
paraffin lamp had a glass shade. It was placed on the
table in the middle of the
living room. It was during the period that she pleaded with them not to set fire
to her home and grappled
with the fourth appellant that she identified certain
persons, including the appellants. Her evidence indicates that this took place
over a reasonably
10/...
10. prolonged period of time. The lamp, she said, cast a
bright light in the room. It was not suggested that it did not adequately
illuminate it. The intruders were in a more or less concave line facing towards
the table and standing between it and the front wall
of the living room. They
were therefore close to and facing her. Two of them, Mytanci and another carried
a knife. The rest held
stones in their hands.
She explained in some detail how she came to identify each appellant. First
appellant was known to her as "Dombo". They were pupils
at the same school. He
was standing at the extreme left of the group. She noticed him as she tried to
wrest the container from fourth
appellant. The second, third and fifth
appellants were also known to her. She had seen second appellant from time to
time in the
townsbip and at the school on the Thursday before the incident.
Third
11/...
11.
appellant was a teacher at her school and had in fact visited
her parents at her home. Fifth appellant, known to her as "Member",
was also one
of the scholars she had seen at her school. (As a matter of fact she said that
she first identified this appellant before
he entered the house.) As I have
said, she was able to identify them while she was in the living room explaining
that Jimmy was not
there and whilst struggling with fourth appellant. She
conceded that none of them had special distinguishing facial or other features.
She was not able to describe what they wore.
These facts establish in my judgement that this witness had an adequate
opportunity to make accurate observations. It is true that
under
cross-examination she was not able to say which appellants she identified before
she tried to take the container from fourth
appellant and which she noticed
whilst
12/...
12.
struggling with him. But in the circumstances such detailed
recollection could hardly be expected of her. The fact that each appellant
identified was known to her is significant. The trial court found her to be an
intelligent and observant person and to my mind this
assessment is fully borne
out by her evidence on record. In the circumstances I consider that faulty
identification as a reasonable
possibility was rightly discounted by the
court.
Can it be said that she dishonestly implicated the appellants? Initially Mr
Naidu, who with Mr Soni appeared for the appellants, argued
that she had, but
later conceded, rightly in my view, that there were no valid grounds for
questioning her honesty. It is therefore
unnecessary to discuss the evidence and
the various submissions ir this regard. One aspect, however, ought to be
mentioned since
it was
13/...
13. at one stage strongly relied upon by Mr Naidu. In
criticising her evidence he referred to the fact that in her initial statement
to the police she did not mention the names of the two teachers, third appellant
and one Fihla. This statement was taken down by
W/0 Oelofse on the Saturday
morning after she had identified certain persons from the police vehicle. She
admitted that she at that
stage forgot to include these two men and attributed
this to her shocked state of mind. This seems plausible having regard to what
she had been through the previous night. Be that as it may, D/Sgt Thobile Bona
confirmed that on that same day, that is, on Saturday
20 April, she told
him
that these two teachers were present. It is grossly unlikely that
within such a short space of time she would have decided falsely
to implicate
these two men by mentioning their names to this policeman, particularly when one
was a visitor to her home and a
14/...
14. person she bore no ill will.
Thus, though criticism can be levelled at the evidence of Nokuzola in certain
minor respects, I consider that her evidence as a whole
cm the question of
identification was, as the court found, both truthful and reliable. As I have
indicated, the evidence of the other
eye witnesses was regarded as no more than
corroborative of her evidence and the court's decision to give it such limited
value cannot,
in my view, be faulted.
I turn now to examine the alibi evidence of each of the appellants. These are
comprehensively discussed in the judgment. I need to
do no more than refer to
the salient grounds on which each was rejected (not all of which grounds, I may
mention, were challenged
in argument before us).
15/...
15.
First appellant made a statement to the police on 22 April
1985 denying his presence at the house but without furnishing any details
of an
alibi, as one would have expected him to have done . Only during
cross-examination was it put that he was with his girl friend
Zoleka at the
time. This, he said, he had told the policeman when making his statement, but
the latter had omitted to record it.
This was never put to the policeman
concerned. It is highly improbable that he would have failed to record all that
was said since
the whole purpose of taking such a statement was to follow up any
alibi furnished to see whether or not it could be substantiated.
First appellant
made no attempt to contact the people he subsequently said he was with that
night apart from Zoleka. She too gave
evidence. It was manifestly unsatisfactory
and was
rightly rejected.
16/...
16.
On his arrest on Saturday 20 April second appellant told
constable Fillis that there was another person present when the house was
burnt
down, thus implicitly admitting that he was there at the time. He thereupon took
Fillis to a house where he pointed out accused
no 4, who was also arrested. This
evidence of Fillis was disputed by second appellant. But, if false, no feasible
reason for the
arrest of accused no 4 on that day in the presence of second
appellant can be furnished. Thus the evidence of Fillis, which is supported
by
the probabilities, refutes his alibi which, in any event, on other grounds was
shown to be an afterthought: it differed materially
from what had been put by
his counsel in cross-examination; he claimed to have been with his uncle and
aunt but could not give their
names; and the aunt, who was present in court at
the trial, was not called as a witness.
17/...
17. Third appellant claimed to have been with his wife
that night. This he told the police at the time of his arrest on 22 July 1985,
that is, some three months after the offences were committed. He explained that
he was ill that Friday afternoon and went to bed
when he returned home. There
his wife found him when she arrived home from work. His wife was called as a
witness. There, are material
contradictions in their evidence. For instance, he
said that whilst he was in custody and was visited by his wife he did not tell
her of the charge or ask her whether she recollected that on that night he was
ill in bed at home. He also maintained that the alibi
was not discussed by them.
She, on the other hand, said that when she visited him in custody, she told him
that she could confirm
his alibi. Sgt Dicker, a State witness, said that he went
to the school where appellant was teaching on a day when an identification
parade had been arranged and told him that he was to report later that
18/...
18.
same day to the charge office to attend an identification
parade. At that stage this appellant had a normal crop of hair. However,
when he
arrived at the charge office his head was shaved. His wife confirmed that when
he left for school that morning this was not
the case. If one discounts the
remote possibility, and somewhat startling co-incidence, that what appears to
have been his annual
haircut took place on that very day on his way to school,
his wife's evidence corroborates that of Sgt Dicker. Counsel in argument
pointed
out that at the identification parade Dicker did not remark on his (third
appellant's)
change of appearance. But, since he was identified by the State
witnesses concerned, there was no pressing need for Dicker to disclose
this fact
at that stage. It was also stressed in argument that, as he was known to the
witnesses who subseguently idantified him,
shaving off his hair was really a
pointless act on his
19/'...
19. part. It may not have been a wise decision but
possible reasons for his doing so do come to mind. He may have thought that
shaving
his hair might cause persons who knew him to doubt whether he was
involved inasmuch as they had not observed a person with a shaven
head at the
scene of the crime. Another explanation may be that he could not have foreseen
that only persons to whom he was known
would be called upon to identify him. Be
that as it may, Dicker's evidence on this issue was explicit, uncontroverted and
accepted.
It was given after the appellant had completed his evidence and closed
his case. Mr Naidu submitted that the court was in the circumstanoes
under a
duty to recall the appellant to refute the evidence of Dicker and to explain why
and when he had shaved his head. Had the
appellant been unrepresented, the court
would have been required to explain the ppsition to him and give him the
opportunity of rebutting
such
20/...
20.
evidence. But he was represented by counsel and the
prima
facie
inference to be drawn from Dicker's evidence was an obvious one. Thus,
if appellant was in a position to refute it, one would have
expected his counsel
to have made the necessary application to reopen his case.
It was the
contention of fourth appellant that he was with his brother in Uitenhage that
night. In his statement to the police on
arrest he left out details which one
would have expected to be disclosed had his alibi been genuine. In this regard,
with reference
to this appellant and others, Mr Naidu submitted that the court
was wrong in drawing an adverse inference from the fact that no or
insufficient
particulars of Itheir alibis were disclosed. Counsel pointed out that each
appellant on arrest had been given the customary
warning and told that he was
not obliged to make any statement to the police. This is
21/...
21. so, and had they remained silent no adverse inference
would have been justified. But having chosen to explain that they were not
there, the court was entitled to comment on the fact that they did not
expatiate. In ahy event this consideration, it is to be noted,
was not one of
the main grounds relied upon for the rejection of any of the alibis. Fourth
appellant also contended that what he
had told the police had been deliberately
omitted from his recorded statement. He too was guilty of what the trial court
termed "curious
inactivity" in making no attempt to get in touch with his alibi
witness, namely, his brother.
As regards the alibi of fifth appellant, certain of the unsatisfactory
aspects of the alibi evidence of the other appellants, to which
I have alluded,
feature in his evidence as well: his false assertion that the police incorrectly
recorded his
22/...
22.
statement and his failure to contact his alibi witnesses
promptly after having been released from custody.
Apart from the evidence relating to their alibis, there are a number of other
unsatisfactory aspects of the evidence of each appellant
which bear out the
conclusion that they were not truthf ul witnesses. These are referred to in the
judgment and there is no need
to repeat them.
In the result I consider that their alibis were correctly rejected.
To revert to the evidence of Nokuzola, I should mention that she, in fact she
alone, purported to identify two other accused, nos
2 and 4, who were acquitted.
Considered independently the alibi of each
23/...
23.
of these accused - so the court held - could not be rejected
as false and there were grounds for concluding that Nokuzola's identification
of
these two persons could not be accepted with the same certainty as her
identification of the appellants. Their acquittal therefore
does not ref lect in
any way on the reliability of Nokuzola's evidence implicating the appellants. It
rather endorses the fact that
the court carefully assessed the weight of all the
evidence and, quite correctly, considered the identificatory and alibi evidence
conjunctively.
The fourth appellant was directly responsible for the death of the deceased
and was plainly guilty of murder. The question next to
be considered is whether
the other appellants were correctly convicted of this offence. (I shall for
convenience refer co them simply
as "the appellants".) Their convictions on this
count
24/...
24.
were based upon the application of the doctrine of common
purpose, which has recently been closely examined by this court (per Botha
JA)
in two decisions:
S v Safatsa and Others
1988(1) S.A. 868 and
S v
Mqedezi and Others
1989(1) S.A. 687. They confirm that, if the evidence in
this case establishes that the appellants were party to a decision to kill
the
deceased taken by the group prior to their entering her house, there can be no
doubt that this fact, coupled with their involvement
in the fatal assault upon
her, would make them guilty of murder. (If no such prior common agreement or
acquiescence is proved, the
prerequisites set out in Mgedezi's case 705 I - 706
C would have to be satisfied before such a conviction could be sustained.)
It is common cause that tha group that evening proceeded from the house of
one Jonas to that
25/...
25.
of the deceased. The court a
quo
found as a fact that
the decision to murder the deceased was taken by the group "in the vicinity of
Jonas's house". The question
is whether the evidence justifies this
conclusion.
It is necessary in the first place to examine the relevant evidence of the
State witness Mabuya. He said that he was apprehended and
taken to a house where
he was interrogated by members of the group, which later went to the home of the
deceased. He was accused
of having conveyed Jimmy and the deceased in his motor
vehicle, which he denied. Notwithstanding his denial, on account of what was
thought or known to be his association with these two persons, his accusers
decided to kill him. They were on the point of doing
so when a person called
"Killer" - belying his sobriquet -intervened and saved his life. They then, so
he said, forced him to accompany
them to the house of the
26/...
26.
deceased. In his evidence in chief he stated that before they
set forth one of them said "Come along with us, let us go and set Mankomo's
house on fire" and that someone had also said "Let us gp and kill Mankomo." His
statement to the police was to the same effect. The
court painstakingly
evaluated the evidence of this witness. It was found to be unsatisfactory in
certain respects, particularly as
to whether he had gone to the house of the
deceased involuntarily and as to whom he had seen there. The court in the
circumstances
treated him as an accomplice and considered his evidence with the
caution that such supposition warranted. However, adopting this
cautious
approach to his evidence, and after making due allowance for its flaws, there
appear to be no grounds for rejecting the
evidence of Mabuya to which I have
referred, i.e., the reason why he was very nearly killed and what was said to
him before they
left for
27/...
27. the house of the deceased. There is no reason why he
should have falsely said that he was told that the deceased was their intended
victim if in fact the announced intention was to seek out Jimmy in order to kill
him or for some other unlawful reason.
On arrival at her house, Nokuzola, as has been pointed out, was asked whether
Jimmy was there. Had he been one of the occupants of
the house he may well have
shared the fate of Mankomo, but this is by the way. The important consideration
is that no attempt was
made by any member of the group to search the house and
find out whether Nokuzola's denial of his presence in the house was correct.
Had
Jimmy been the primary or exclusive reason for their going to that house, it is
inconceivable that they would have accepted the
say-so of Nokuzola, who may well
have wished to protect Jimmy by falsely denying his presence
28/...
28. at the house. They would have searched for him there.
Their failure to do so, or to make any further enquiries, makes it clear
that he
was not the real or only reason for their intrusion and suggests - I put it no
higher - that the "question" asked about Jimmy's
whereabouts was more in the
nature of an accusation arising from the fact or belief that he had been allowed
to stay at that house
or had been befriended in some other way. Nokuzola in her
evidence in chief, said that she told them "Jimmy is not here at home,
but you
may go and look." There was, as I have stressed, no response to this invitation.
Instead someone said, after a short discussion
about the membership card, "let
us do what we have come for." And one knows what that turned out to be. Under
cross-examination the
evidence of Nokuzola on the sequence of occurences is, if
anything, more explicit. The relevant passage reads as follows:
29/...
29.
"What caused you to leave, let go of that
container? At the time when my mother said
from the room 'my children, Jimmy is not here. ' One of them then said 'very
well, here is Mamkomo' . And then the one said ' let
us do what we had come for
here'".
According to Nomathemba these words were uttered at
a
stage when the deceased was brought from the room
(when, according to Nokuzola, at a time when she had
already departed.) It
is not improbable that this
statement was repeated. Be that as it may,
whether or
not there is an element of contradiction as to the
stage at which these words were spoken, their
utterance, and the fact that
the decision was
implemented by their killing the deceased, strongly
indicate that it was for such purpose that they had
come to the house.
There is this further consideration. If the pre-arranged plan was directed at
Jimmy and if the fourth appellant, and perhaps some
others, had suddenly
30/...
30. acted contrary to it by assaulting the deceased, one
would undoubtedly have expected some response from the other members' of
the
group by way of guestioning, protest, consternation or dissociation. There is no
suggestion that there was any such reaction
and, of course, no evidence from
appellants to that effect.
One can thus confidently conclude that the group set out with the settled
intention of killing the deceased and setting fire to her
house. I should add
that, in my view, this inference is justified even if what Mabuya said he was
told before they left Jonas's house
is left out of account.
The evidence does not establish that all the appellants were present and were
party to this decision when it was initially taken.
This, however, is
immaterial. Those who were not must have armed
31/...
31.
themselves with stones and joined the group at some
stage before it reached the house of the deceased. One
must obviously
conclude, in the absence of any
explanation to the contrary from the
appellants, that
before doing so they would have ascertained the pur-
pose
of the expedition and decided to take part in it.
The conclusion reached on the application of the doctrine of common purpose
to the murder count applies a fortiori to the other counts
cm which the
appellants were found guilty. As to the convictions of culpable homicide, the
appellants ought reasonably to have foreseen
that the burning down of the house
might result in the death of some of its occupants - see
S v Nkwenja en 'n
Ander
1985(2) SA 560 (AA) 572 I - 573 D.
Turning to the appeal of fourth appellant against the finding that there were
no extenuating
32/...
32.
circumstances, the correct approach to this question has been
stated in a number of decisions of this court. In
S v Nqoma
1984(3) SA
666 (AD) 673 it was put thus:
"The determination of the presence or absence of extenuating circumstances
involves a three-fold enquiry: (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."
Recently in
S v McBride
1988(4) SA 10 (AD) this court, after a detailed examination of previous
decisions relating to extenuation, explained the significance
of the nature of
the offence, and the role played by the accused in its commission, in the
context of
33/...
33.
extenuation thus:
"I shall now endeavour to sum up the present state of the law on this aspect of
extenuating circumstances. The nature of the murder
(and here I would include
the identity of the deceased and the relationship, if any, between the accused
and the deceased) and the
manner of its commission are factors which, while they
cannot be regarded as
per se
excluding extenuation, are nevertheless
relevant to the general enquiry as to extenuation. They may be relevant to the
factual enquiry
as to whether an alleged extenuating circumstance in truth
existed or as to whether it actually influenced the accused; or they may
be
relevant as part of the web of circumstances associated with the crime which
must be considered by the Court when it passes its
moral judgment and decides
whether there exist circumstances which in the minds of reasonable men diminish
the accused's moral blameworthiness."
The court a
quo
correctly considered the question of extenuation in the light of these
principles. It found that there were extenuating factors present
viz. some
degree of immaturity, the emotional circumstances prevailing at the time and
what the court described as the "group activity".
Nevertheless it
34/...
34. considered that, having regard to the active role
played by this appellant in what can only be described as a particularly brutal
murder, these factors did not reduce his moral blameworthiness. In reaching this
conclusion the trial court did not misdirect itself
in any respect. On the
contrary, every possible extenuating factor was carefully considered and
evaluated. In my judgment it cannot
be said that the conclusion reached was not
correct.
The remaining issue is the sentence of twenty years' imprisonment imposed on
third appellant in respect of count 1. It is to be noted
that his direct
involvement in the killing of the deceased was no greater than that of the other
appellants, apart from fourth appellant.
In the case of each of them a sentence
of ten years' imprisonment on this count was imposed. This indicates that
Erasmus
35/...
35.
AJ was mindful of the requirement that there should be
consistency in the imposition of sentences on co-accused unless special
circumstances
call for different treatment of a particular offender. Such
circumstances were held to be present in the case of third appellant
because he
was an adult and a school teacher. This appears from the following comment in
the judgment on sentence:
"Accused no. 5, you have turned literally at deáth's door. The Court
takes into account that you were a school teacher at
the time and that your
presence must necessarily have influenced the others present, especially the
youths, scholars, in the group.
The sentence called for has to be
severe."
There can be no doubt that these two distinguishing
features are pertinent and important and do, as was said, call for a severe
sentence.
However, in the absence of more information on the extent to which
the
36/...
36. other appellants would have been amenable to his
discipline and thus on his capacity to influence them against commiting those
crimes, a sentence twice as severe as that imposed in the case of the others is,
in my judgment, unjustifiably disparate and ought
to be reduced.
The appeal succeeds in part. The sentence imposed on third appellant (accused
no 5 in the court a
quo
) on count 1 is altered to one of 15 years
imprisonment. In all other respects in the case of all the appellants their
appeals fail.
M E KUMLEBEN
JUDGE OF APPEAL
HEFER JA)
NESTADT JA) - Agree