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1989
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[1989] ZASCA 40
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S v Lelempe and Another (315/88) [1989] ZASCA 40 (30 March 1989)
CG CASE NUMBER: 315/88
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
STANFORD LELEMPE
Appellant no 1
RODNEY MOLOI
Appellant no
2
and
TME STATE
Respondent
CORAM:
JOUBERT, STEYN, JJA., et F H GROSSKOPF, AJA.
HEARD:
16
MARCH 1989
DELIVERED:
30 MARCH 1989
JUDGMENT
STEYN, JA.
2
Appellants and four co-accused were arraigned before Le Grange, AJP. and two
assessors in the Witwatersrand Local Division on a charge
of murder and two
charges of robbery. Appellants were accused no's 3 and 4 respectively. It was
alleged that on the 28th June 1986
at Tembisa in the district of Kempton Park,
they and their co accused: .
(i) murdered Tlou Jan Ramphela (the deceased),
(ii) robbed the deceased of a 7,65 mm Walther pistol and R700,00 in cash under
aggravating
circumstances and (iii) robbed Fransina Malema of R50,00 in cash.
All pleaded not guilty and none of them indicated the basis of
their defence.
All were acquitted on the robbery charges. The appellants were convicted on the
murder charge and their co-accused
acquitted. Extenuating circumstances,were
found to have been present in the case of the first appellant but none in that
of second
appellant. Both were sentenced to death, and both
3
now appeal against their convictions. Second appellant also appeals against
the finding that there were no extenuating circumstances
in his case. Both also
appeal against their sentences. First appellant's defence on the murder charge
was compulsion and that of
second appellant an alibi.
It is common cause that
the deceased was assaulted and burnt to death in the street in front of first
appellant's dwelling at no 325
in the Kopanong section of Tembisa at or shortly
after 12 noon on Saturday, June 28, 1986. It is admitted by appellants that 90%
of the deceased's body was covered with first and second degree burns, and that
he had the following further injuries: swollen upper
lip and right cheek, four
lacerations spread over the inside of the lower lip, 2 cm jagged laceration on
the tip of the chin with
underlying fracture right across the mandible, and two
upper left front teeth missing.
4
The prelude to the events culminating in the death of the deceased are not in
issue. It is this. On the evening of Friday, June 27,
1986, first appellant, his
girlfriend, Poppie, his brother Jacob and cousin Daniel Mafudi (Dan) had been to
a night club in the Tsithama
section of Tembisa. First appellant and Dan drank,
but first appellant drank less than Dan and was not affected by the liquor.
Between
22h00 and 23h00 they left in first appellant's Cortina motor car to go
elsewhere, obviously to continue their merry-making. En route
they came upon
pedestrians in the street, blocking their way. First appellant, who was driving,
hooted repeatedly but the pedestrians
failed to give way. He was compelled to
stop. He got out and standing next to his car, asked them to make way. Someone
in the group
fired a shot. Jacob, who had also alighted, was mortally wounded;
something struck first appellant on the right eye and he fell down.
Someone
stripped him of his leather jacket.
5
The pedestrians then apparently departed. Jacob was put into the car and with
first appellant driving they took him to the Tembisa
police station about a
kilometre away. On the instructions of the police they then took Jacob to the
hospital. Whilst first appellant's
injured eye was being attended to he was
informed that Jacob had died. He immediately left for home taking Dan and Poppie
with him.
He drove again. He reported Jacob's death to his father and then
retired to his roóm but could not sleep. Early next morning
Robert Komane
(who was accused no 1 at the trial and is referred to hereafter as Komane) took
first appellant to hospital at his
request and in his motor car for further
treatment of his injured eye. Thereafter they again went to the Tembisa police
station and
reported the murder of Jacob and assault upon first. appellant to a
sgt Sithole who then accompanied them to the scene of the offences
and took
certainmeasurements there of points indicated by first appellant. He had not
6
recognised his assailant or anybody else in the group of pedestrians but
Poppie had recognised one of them, a girl Fransina. Sithole
requested first
appellant to find Fransina and bring her to him at the police station. They then
left to do so. A "certain young
man" told them he had seen Fransina at a certain
house. What happened thereafter was in certain material respects in issue at the
trial.
The defence version, as testified to by Komane and first appellant,
was that the two of them found Fransina in the house hiding inside
a wardrobe,
took her to the car and drove off, intending to take her to the police station.
On the way first appellant changed his
mind and decided that she should first be
taken to his home to explain to his relatives "what had happened the previous
night". They
did so. On arrival there Komane parked first appellant's car and
went home. He lived across the street. His car was parked in the
driveway. It
was a
7
brown Cortina and first appellant's a white one. First appellant's version of
what then happened is the following: He and Fransina
entered his house. He could
not remember whether Komane remained with them or departed. There were many
people inside the house but
apart from his uncle first appellant could not
recall who they were. He was still dizzy f rom his injuries and could not see
well
through his swollen eyes. Fransina told them her husband had shot first
appellant and Jacob. He could not remember what else she
told them. After
Fransina had completed her report, he left with her, intending to take her to
the police station. But outside he
found "a lot of people" who stopped them and
compelled him to take some of them and Fransina in his car to the person who had
shot
Jacob. He did not know any of the group and did not know whether or not
they were "Comrades". At that time he was unaware of such
an organisation and
only heard of "The Comrades" for the
8
first time at the police station after his arrest. He drove off with Fransina
and members of the group, following their directions
where to go. He noticed en
route that he was being followed by Komane's motor car. Deceased was ultimately
found in a shebeen where
Fransina pointed him out. Members of the group
apprehended him and brought him to first appellant's car. They compelled him to
open
the boot of the car and put deceased therein. At their command first
appellant then closed the lid and drove off with deceased inside
the boot and
Fransina inside the car. The group compelled him to drive back to his home and
stop in the street in front of it. At
their command he again opened the lid of
the boot. They removed the deceased. First appellant then got back into his car,
reversed
into his yard, parked the car there, entered the house and went to
sleep because his injuries were still painful and he felt bad.
He did not see
deceased being assaulted after being removed from the
9
boot and was unaware of what happened to him. Komane added the following.
When they arrived with Fransina at first appellant's dwelling
there were "a lot
of people" outside. Shortly after returning home he was approached by "six or
seven people". He told them the car
in the driveway was his. He was then asked
to help them "transport certain people" but refused to do so whereupon he was
threatened
by them saying to him "If you do not give us a ride in this car, we
will burn the car and we will also burn you". He believed they
were capable of
doing so and capitulated; the car was push-started by them, he was then ordered
to follow first appellant's car.
Some of the group rode with him. They in fact
"hi-jacked" him and took control over him. They were looking for somebody. This
person
was ultimately found at a place which appeared to be a shebeen. He was
caught by members of the group and put in the boot of first
appellant's car
which had stopped behind him. It
10
was full of people. First appellant's car then drove off followed by Komane.
At a three-way stop he was instructed to take another
route. Ultimately he
arrived back at first appellant's house. What then happened he described as
follows. "When I got to that place
it was full my Lord; it was so full that I
had to blow my hooter, people opened the way, I then saw the deceased lying down
there,
on his back, my Lord. I went past and I got into my home. I parked the
car and then stood on the stoep. After a few minutes I saw
two people, they ran
inside that crowd of people. One of them was carrying spirits. When these people
got into the crowd the other
people started dispersing and running and then I
saw a flame, my Lord. Then I realised this person was set alight. And I did not
see what happened further than this and I have forgotten some of the things." He
later added that when the people made way for him
he saw the person on the
ground being assaulted and that one of the
11
two persons who thereafter ran "inside the crowd" had "two spirits" with him.
He did not know who it was.
Fransina is a young Black woman who was 25 at the
time of the trial. Her version was broadly similar in certain respects but
significantly
different in others to that of Komane and first appellant. She
said that "the comrades" found her at home sitting in her kitchen.
Amongst them
were "Buti" (the name by which Komane was commonly known) and first appellant.
They said to her "you come along with
us, we want you to produce your husband
because you people killed people last night". They drove off with her in a white
motor car
driven by Komane and took her to first appellant's dwelling. She had
to tell his parents what had happened the previous night. Komane
accompanied
them into the house. As she was about to speak first appellant grabbed her in
front by her clothes and accused her of
telling lies. She then recounted what
had happened (she was never asked whilst
12
testifying to repeat the terms of her report or to say what had in fact
happened the previous night). Whilst she was speaking Komane
went out and
fetched his brown car. He lived directly opposite first appellant. Looking
through a window she saw him fetching his
car. After completing her report she
and first appellant left the house. Komane was waiting in his brown car. Many of
the group involved
got into Komane's car. She and first appellant entered his
car. Others of the group also got in. She sat in front and first appellant
was
the driver. Second Appellant was seated with others at the back. They drove off
in both cars. On the way first appellant and
others said to her "If you do not
produce your husband we will burn you". She was terrified. Ultimately they went
to the shebeen
where she and the deceased had been the previous night. The
deceased was seated inside, next to the door. The two appellants, Komane
and
others of the group alighted and entered the
13
shebeen. First appellant said "here, this is the fool", indicating the
deceased. They grabbed hold of him, dragged him to first appellant's
car, put
him in the boot and drove off. On the way first appellant said, referring to
her, "this dog must also be put in the boot,
it cannot travel with us here in
the body of the car". He then stopped, she was also put in the boot and they
drove off again. Just
before stopping again both cars blew their horns. They
stopped in the street at first appellant's place. The boot was opened. The
street was full of people, who "emerged from everywhere" and were moving towards
the scene. The deceased was removed from the boot
but she was left inside. He
was thrown to the ground and assaulted. First appellant started the assault. She
then jumped out and
fled for her life down the street in the direction of her
home. Looking back whilst running she saw the deceased being assaulted
with
bricks and picks by persons in the crowd including first
14
appellant. She did not then see second appellant but noticed Komane driving
off in his brown car and parking it in his yard directly
opposite that of first
appellant. She did not see the deceased being burnt.
The deceased was,
however, seen burning by Annetjie Themole, a girl who was then 15 years old. She
was also a state witness. On that
Saturday afternoon she was at a shop near by.
She noticed a large crowd congregated in the street in front of first
appellant's house
(as pointed out by her on the street plan, exhibit D1, when
recalled by the Court). She ran closer to see what was happening and
saw first
appellant, whom she knew well, removing a person from the boot of a brown car
and placing him on the ground. He was then
assaulted in the street behind the
car by members of the crowd. They kicked him and hit him with bricks. Second
appellant (whom she
called "Boxer" and also knew well) was one of those who did
so. She saw him jump upon deceased and
15
kick him. Whilst the deceased was being so assaulted she also noticed the
following. Masopo (accused no 2) ran from the shops to the
crowd with two blue
containers of "spirits" which he poured over the deceased where he lay in the
street. Jahman (accused no 6) arrived
with a tyre and paraffin. He put the tyre
"over" the deceased and poured the paraffin on to him. Mabeka (accused no 5) set
the deceased
alight. (Accused no's 2, 5 and 6 were also well-known to her.) (She
indicated in Court that she was 25-30 metres from deceased whilst
all that was
being done to him.) She also saw first appellant remove his car from the scene
and drive into certain premises. She
was adamant that it was a brown car
(indicating the colour by way of reference to the armrest of a chair in the
court room, which
was a "very, very light brown" or yellow colour). She did not
see a white car and in fact saw only one car. She also did not see
Fransina
emerge from the boot of the car and running away. Whilst the
16
deceased was still burning the police arrived and she and the crowd ran away.
Whilst testifying Annetjie often looked down. When asked
in cross-examination
why she did so she replied that she was scared, and when later asked by an
assessor what she was afraid of she
said of being burned. When pressed during
cross-examination with accused no 2' s denial that he had been present, she
replied "well,
I could have seen somebody that looks like him, because I know
him". Thereafter, on being guestioned by the Court she however reiterated
that
it
was
accused no 2 she saw coming f rom the shops with the spirits. When
pressed likewise during cross-examination on behalf of accused
no 6, and on it
being put to her that he also denied having been present, she replied "I thought
he looked like the person who did
this".
Constable Andries van Heerden and W.O. Josef Pretorius, both of the South
African Police, also testified on behalf of the State. Van
Heerden arrived
on
17
the scene whilst the deceased was still burning in the street in front of
first appellant's dwelling. A large crowd, estimated by
him at 200, was gathered
in a halfmoon formation around deceased. They were jubilantly dancing and
singing, but dispersed immediately
upon his arrival. The deceased was still
alive and was screaming continually. A number of stones and a burning tyre was
on top of
him. Next to him were two partially burnt methylated spirits
containers. Van Heerden removed the tyre from the deceased and pulled
him off
the fire. It is admitted that deceased died later that day of the extensive
burns he sustained. Van Heerden made no mention
of any motor cars being on the
scene when he arrived and it is obvious that there were none. Pretorius arrived
on the scene at about
15h00 that afternoon. Van Heerden was still on the scene.
Pretorius confirmed the presence of the stones and the burnt tyre and spirits
containers at a burn mark
18
(brandkol) on the street surface in front of first
appellant's house.
Komane and first appellant made statements to capt.
Ueckermann of the
South African Police. Komane made two
statements, exhibits G1 and G2
respectively, on the 7th
and 15th July 1986. First appellant made only
one
statement, exhibit I, on the 17th July 1986. Komane's
first statement
was admitted in evidence by consent, but
the admissibility of his second
statement and that of
first appellant was contested and became the subject of
a
so-called trial-within-a-trial. Both statements were
ruled admissible.
First appellant does not appeal
against that decision. In paragraphs 11-17 of
exhibit I
first appellant said the following:
"11. Ek en Buti wou weer ry om Fransina na Sersant Sithole te neem, maar voor
ons kon ry het Albert en Jahman daar opgedaag. Hulle
het vir Buti geroep en
gesê dat hy sy kar moet bring. Daar het toe nog ander mense wat
soldaatklere aan daar opgedaag. Die
mense is almal Comrades en hulle dra
soldaat
19
klere.
12. Hulle het Buti se kar gestoot en toe dit vat het hulle gesê ons
moet ry. Ek het my kar bestuur en Buti sy bruin Cortina.
Ons moes almal geld gee
om petrol in Duti se kar te gooi.
13. Ons het toe begin soek na Jan, hy is die man wat doodgebrand is en wie
vir my broer Jacob geskiet het. Fransina het ons gesê
om na Temong seksie
te ry om na Jan te soek.
14. Later het ons vir Jan gekry by 'n shebeen. Die Comrades het hom gegryp en
in my kar se kattebak gesit. Ons is toe terug na my
huis waar hulle vir Jan uit
die kattebak gehaal het. Hulle het hom baie geslaan. Die Mense wat hom geslaan
het was Jahman en die
ander kan ek nie onthou nie. Ekself het hom nie geslaan
nie.
15. Ek het gesien dat Masopo spiritus op die oorledene gooi wat toe op die
grond gelê het en Mabeka het 'n vuurhoutjie getrek
en op die oorledene
gegooi. Die oorledene het begin brand.
16. Die mense het toe weggehardloop en Jan het toe gebrand en is later deur
die polisie en h ambulans verwyder en ek het later gehoor
dat hy dood is.
17.
20
Ek is nie 'n Comrade nie en het niks met die dood van Jan te doen gehad nie.
Ek wou nie saam met die mense gaan nie, maar was bang
dat hulle my en my kar sal
brand en het toe saam gegaan. Ek het nie geweet dat hulle vir Jan gaan doodmaak
nie."
In his statement G2, which is mainly an amplification of
his earlier
statement, Komane said the following inter
alia:
"6. Ons het vir Fransina opgespoor en ek wou na die polisiestasie ry om haar
aan Sers. Sithole te oorhandig. Stanford het egter gesê
dat ek eers na sy
huis moet ry sodat die vrou met die familie kan praat en vertel wat gebeur
het.
7. Ons het toe na Stanford se huis gery soos hy versoek het waar hulle met
Stanford se familie gepraat het. Ek het sy kar by sy huis
gelaat en na my huis
gegaan. Stanford het my toe weer geroep en gesê ons moet die Comrades gaan
soek. Ek het toe weer Stanford
se kar bestuur en Stanford het gesê ons
moet Jahman kry. Ek ken nie die Comrades nie, maar Stanford het gesê hulle
sal
help om vir Jan te soek en hom dan na Sers. Sithole te neem.
8. Langs die pad het Stanford vir my gewys waar ek moet stop by huise en ook
by mense in die straat. Stanford het die mense gevra
waar Jabulani is. Jabulani
is volgens Stanford, soos hy my vertel
21
het, 'n Comrade.
Ons het ook by Albert se huis gegaan, hy is 'n leier
van die sokkerklub.
9. Toe ons weer terugkom by die huis van Stanford hel: ek gesien dat daar nou
baie mense is. Onder die mense wat buite die huis was,
was Dan se broer, Oubaas
en Mabina. Daar was ook baie mense met soldaat klere aan. Ek het toe gesien dat
dit Comrades is. Ek het
besef dat die mense moeilik en aggressief is en gehoor
dat hulle vir Jan gaan soek en het besef dat hulle gaan moeilikheid maak.
...
17. Toe ek by Stanford se huis kom het Stanford se kar
in die pad voor sy
huis gestaan. Daar was toe baie mense en hulle het reeds vir Jan uit die
kattebak van die voertuig gehaal.
18. Ek het gesien dat hulle besig is om vir Jan te slaan, te skop en met
klippe geslaan. Die mense wat vir Jan geslaan het was Stanford,
Soxer, Jahman en
nog ander mense wat ek nie ken nie.
19.
Die man Jan het toe by die grond gelê. Ek het my kar toe gaan parkeer
in my erf.
20.
Ek het toe gesien vanaf my huis dat Masopo daar opdaag met 2 (twee) bottels
brandspiritus. Hy heL toe die twee bottels spiritus oor
Jan se liggaam
uitgegooi. 'n Ander man met die naam van Mabeka het
22
toe 'n vuurhoutjie getrek en op Jan gegooi. Jan se liggaam het toe begin
brand. Jahman het toe h kar buiteband bo-op Jan se liggaam
gegooi en dit het ook
begin brand.
21 . Almal het toe weggehardloop en kort daarna het die polisie opgedaag en h
ambulans het Jan daar verwyder. Ek het later gehoor
dat Jan dood is in die
hospitaal.
22.
Dit is Stanford wat die Comrades gekry het om vir Jan te soek. Ek kan nie
sê wat hy wou doen nie. Ek self is gedwing deur die
Comrades om my kar te
bestuur en verder was ek bang vir hulle, want hulle brand jou ook as jy h
sellout is."
This statement is inadmissible against first appellant but is of cardinal
importance in judging Komane's credibility.
Second appellant denied any
complicity in the murder. He admitted that he is known as "Boxer". The gist of
his evidence was that on
the Saturday morning in question he was sitting on his
stoep between 09h00 and 10h00 polishing his shoes when he noticed a motor
car
full of people moving away from first appellant's house.
23
It was first appellant's car. It was followed by Komane's car which was
likewise filled with people. He had heard of "The Comrades",
adding "You see, in
the Transvaal in every Township they talked about the Comrades. This thing is
full in every township". But he
could not say whether the persons in the two
motor cars were Comrades or not because he could not see if they were wearing
uniforms.
After the cars had left he went inside to wash himself and left home
at "something past 11h00 to 12h00" to attend a small child's
birthday party in
the Moreting section of Tembisa to which his girl friend had been invited by the
child's father and to which he
accompanied her at her invitation. He remained
there for the rest of the day and only returned home at 23h00. He could not,
however,
remember the child's or father's names nor the address at which the
party had been held. He claimed to be in possession of a photo
taken at the
party, and at the conclusion of his evidence
24
reguested the Court to give him an opportunity of calling
the person or persons who gave the party, to confirm that
he had in fact
been present. His request was granted and
Spoelstra, J. requested the
prosecutor to arrange that
the investigating officer assist him to do so. For that
purpose the trial
was adjourned until the following day.
But on that day second appellant's
case was closed
without the photograph being handed in or any
further
evidence having been led, and without any explanation why
that was done.
Komane's evidence as to compulsion and
ignorance of the identity of deceased's assailants other
than first appellant, was rejected by the Court in these
terms:
"The statements accused 1 made to Captain Ueckermann are both of an exculpatory
nature. The second statement, exhibit G2, which was
made cm 15 July, 1986 is a
more detailed statement than the first one, G1 which was made on 7 July, 1986.
Exhibit G2 names certain
persons and connects them with certain
conduct.
25
In court accused 1 stated that apart from accused 3 he knew none of the other
accused or the names of any of the persons who forced
him to drive his car when
they were looking for the deceased. This evidence is in our view an obvious
attempt to protect his co-accused.
We do not believe this. We also reject his
fanciful explanation that he drove his car under duress and under the orders of
what was
referred to as the comrades. We find that he willingly made his car
available to facilitate the search for the
deceased."
He was acquitted on grounds which need
not be traversed.
The Court adopted the following approach to
Annetjie's evidence:
"When Annetjie testified she very seldom looked in the accuseds' direction. She
glanced in their direction only when it was necessary
to do so. We formed the
impression that she gave her evidence under great strain and that she was afraid
of some or all of the accused.
When one reads her evidence, a number of
unsátisfactory aspects present themselves. It is for instance not clear
whether she
was at the shops or at Julia' s house when the cars arrived with the
deceased. It was also not clear exactly where she was standing
when she made her
observations, nor did her description of the assault on the deceased always
tally. Also she did not give a consistent
version on whether or not her view had
been clear and
26
unobstructed. There are also other perhaps lesser criticisms of her evidence. I
do not propose to deal with each possible defect.
We are satisfied that she does not qualify as a witness who is satisfactory in
every materiai respect. Although we are satisfied
that she was not lying
deiiberately we approach her evidence with some
circumspection."
For these reasons, inter alia, her
identification of
accused no's 2, 5 and 6 was not accepted as proven
beyond
reasonabie doubt and they were therefore acquitted.
Fransina's evidence was, however, accepted and
that
of first appellant rejected for the following
reasons (I quote from the
judgment):
"I shall now deal with accused 3. There is no doubt whatsoever that accused 3
was present at ail times. We reject his evidence that
he acted under any form of
compulsion at any stage. He had a reason to look for the deceased. He had a
motive to assault the deceased.
We accept Fransina's statement that he
threatened her with burning if she failed to lead them to the deceased. He took
the deceased
from the boot of his car after he had decided not to take the
deceased to the police station, if this had ever been his intention.
His story
that after he had offioaded the
27
deceased, he parked his car in the yard and went into the house, and did not
return is so improbable that it deserves no consideration.
We are satisfied that he assaulted the deceased as testified to by Fransina. In
this regard we bear in mind that Annetjie stated
that he only took the deceased
from the boot of the car. We accept Fransinas evidence without hesitation,
although we have considered
that she may bear a grudge against accused 3. She
was in our view not bnly a satisfactory witness with a good recollection of the
events, but her evidence is also corroborated in almost all material respects by
the evidence of accused 1 and accused 3, and that
of Annetjie. Such
discrepancies as can be found are in our view insufficient to reject her
evidence. She was in a f ar better position
than Annetjie to observe what
happened when the assauit commenced. We therefore give preference to her
evidence in this regard.
The assault was a continuous and prolonged affair. There is not an inkling of
acceptable evidence ináicating that accused
3 disassociated himself from
it at any stage. He is in our view a co-principal of f ender and should be
convicted as such."
The Court alsp rejected second appellant's
alibi and
convicted him. The reasons for doing so are
set out as follows in the
judgment:
28
"Accused 4 put forward an alibi as his defence. This alibi was not put at any
stage of the proceedings. It was raised for the first
time when accused 4
testified. It clearly surprised counsel appearing for him.
He was afforded an opportunity to put more evidence on his alibi before the
court. He could not do so. His alibi is clearly false.
He was also a very
unsatisfactory witness. His explanation of a lack of interest in the occurrence
in the street which drew a large
crowd does not convince. Even more fanciful is
his version of accompanying his girlfriend to the birthday party of a small
child
at the house of a person or persons whose names he cannot recall and whose
identity he did nob bother to establish for purposes of
this trial.
He was identified not only by Annetjie but also by Fransina. It is clear from
the latter's evidence that he took 'an active part in
capturing the deceased. He
was also with her in accused 3's car. Notwithstanding the apparent
contradictions in Annetjie's evidence
on exactly what he did we find Annetjie's
evidence on the identification of accused 4 corroborated by Fransina's evidence
and his
fabricated alibi. In this regard we do not lose sight of the fact that a
person like the accused may be inclined to give a false
explanation when
confronted with a serious charge like the present one, or that he may think that
the truth would appear less acceptabie
than his concocted defence.
29
We therefore find that accused 4's participation in the assault and a common
purpose on his part have been established by the required
degree of proof. He
must also be held liable as a co-principal
offender."
During the investigation as
to the existence or
otherwise of extenuating circumstances both appellants
testified again and persisted with their respective
defences of compulsion
and an alibi. First appellant's
cousin Dan, his father, Solomon Lelempe,
second
appellant's mother, Pauline Moloi and aunt, Miriam
Mishabane, and a
psychiatrist, Dr Kevin Solomons, also
testified, Dr Solomons on behalf of both appellants. The
Court again
disbelieved first appellant on cardinal
aspects and viewed his evidence as a
whole with "a great
deai of scepticism" as is clear from the
following
passages in the judgment:
"I shall f irst deal with accused 3' s case on extenuation. Let me say at the
outset that accused 3 has once again failed to impress
us as a witness. It took
a good deal of prompting
30
and a considerable number of leading questions to place what counsel
obviously wanted on record. Apart from this he again told a number
of obvious
lies. ... His ciaim that his health suffered after Jacob's death is unacceptable
in the absence of any specific complaint.
He certainly does not look ill or
fraii. On the contrary he appears to be a person of good health.
His compiaint that he started to drink too much is also just a vague
generalisation which was not substantiated by facts. His statement
that he
assisted to put Jacob in the car after he had been shot is not only contradicted
by Dan but highly improbable were he in
the condition he wants us to believe.
Either way he is not telling the truth. His allegation that his father was angry
with him and
blamed him for Jacob's death is clearly false. What he told in
court does not coincide with what he toid Dr Solomons.
He is contradicted on a number of aspects by Dan. One should perhaps not make
too much of this for reasons which will appear later.
He persisted in the
untruth that he drove his car under duress when they were iooking for the
deceased. He professed to have had
a very close relationship with Jacob and his
declared sadness about Jacob's demise, are also described in very vague and
general
terms. The instances he mentioned which would prove that, do not impress
us as being any different from any other normal relationship
between
brothers.
31
Once again we view his evidence wi th a great deal of
scepticism."
The Court was likewise very unimpressed
with Dan's
evidence. This is adequately demonstrated by the
following remarks in the judgment:
"He obviously exaggerated his own importance and the role he played during the
course of the evening. On his evidence one has grave
misgivings about his state
of sobriety. His description of accused 3's condition is clearly an
exaggeration. ... Either he fabricated
his story or he has a very cloudy
recollection of the events. We do not believe that much reliance can be placed
on his evidence.'
The evidence of the father,
Solomon Lelempe, did not, in
the Court's estimation, "contribute anything
worth
mentioning". I can find no fault with these summaries
and
assessments. The finding of extenuation was based on
the evidence of Dr Solomons. The ambit of and reasons
for that finding,
are set out by Spoelstra, J. in the
following terms:
"The basis for extenuation set out earlier on in this judgment is derived from
the evidence
32
of Dr Solomons. Our difficulty with Dr Solomons's evidence is that he obtained
information from different sources. He accepted most
of that information as
facts. He interpreted those facts and he drew certain conclusions from them.
Many of those facts have not
been estabiished. In our view this makes his
conclusions invalid or at least suspect. Aithough we do not unqualifiedly accept
Dr
Solomons's evidence on the acute traumatic reaction and the acute grief
reaction we accept, as
Mr De Meillon
on behaif of the state conceded we
should, that the killing of his brother and the assault upon himself aroused in
the accused's
mind anger and a lust for revenge. This guite clearly had a
bearing upon his mind in committing the murder of the deceased.
We have therefore unanimousiy conciuded that in respect of accused 3 extenuating
circumstances have been proved."
The "basis for
extenuation" mentioned by the learned
Judge, refers to the legal
requirements.
Dealing with second appellant, Dr Solomons said
he "was struck by the way in which both his mother and
his auht tended to
put on the best possible image of the
kind of person that he was. They specifically said he
33
was a very responsible sort of person". In his report,
exhibit K, he also
stated that second appellant "claims
not to be easily influenced or dominated
in
relationships" and added "This is afflrmed by both his
mother and his
aunt". Dr Solomons discounted these
statements and came to the conclusion in
his report,
which he affirmed in his evidence, that whilst
second
appellant was not a psycopath he nevertheless "presents
as an
immature young man with little individual
initiative who would seem to be
reasonably easily
influenced by groups". If he, therefore, found
himself
in a group the "group's behaviour would then influence
his own
behaviour even if it were uncharacteristic
behaviour for him". The essence of
his evidence as to
extenuation in second appellant's case is, however, to
be
found in the following passage in his evidence in chief:
"This particular personality type which is characterised by having a very
weakened sense of self, a difficulty taking responsibility
for
34
his own actions, initiating actions, tends to be easily led by others, their own
sense of self is relatively under-developed and
they tend to be swayed by this.
They seem to lack the inner confidence and reserves to bring their own judgments
to bear on situations.
It is a characteristic of this particular type of
personality structure.
Is this just possibly or probably the case with no 4? -- He has not led any
evidence or given me any evidence that this is in fact
what happens, that he was
influenced by the crowd, according to him he was not there when the crowd was
there. So it is a possibility."
The finding that there were no
extenuating
circumstances in second appellant's case
was as follows:
"As far as accused 4 is concerned we find that there is no evidence indicating
that his inadequate personality as described by Dr
Solomons is causally
connected with the commission of the crime. There is no evidence that he was in
any manner influenced by the
crowd. These are matters of mere speculation. On
the evidence the contrary rather seems the case, namely that he was one of the
main
leaders and instigators. In his case we find no extenuating
circumstances."
Dr Solomons dealt
extensively with first
appellant's personal circumstances and with the effect of
35
Jacob's death upon him. In her address on mitigation of
sentence first
appellant's counsel, Miss Sidwell,
stressed the facts that he did not participate in the
actual burning of
the deceased but only in the initial
assault and did not continue therewith
while the deceased
was being burned. She also pertinently dealt with
his
personal circumstances. Mr' de Meillon did not cross
swords with her
in his address and merely asked that
first appellant be sentenced to a lengthy term of
imprisonment. In passing
sentence immediately thereafter
the learned judge said the following:
"As far as accused 3 is concerned, his previous convictions will not play any
role in the sentence which I propose to impose.
The facts in this case show a very gruesome killing. It was, to say the least, a
horrible deed. One can hardly imagine that anything
like this can occur in a
civilised society. It is conduct which, in the mind of a man on the street,
calls for exemplary punishment.
This is not a case where there was immediate
retaliation on provocation. It was the deliberate hunting-down of a man who may
have
36
been innocent of what he was suspected to have done by a pack of bloodthirsty
wild dogs. The manner in which the deed was accomplished
was so brutal, so
vicious and so callous that it outweighs any extenuation or personal
circumstances relevant in this case.
I have considered all the facts surrounding accused 3 and find that were I to
impose any sentence other than the death penalty I
would be shirking my duty and
responsibility towards the community."
The aforegoing factual exposition speaks
largely for
itself. There is, to my mind, no
justification for interfering with the
convictions. The
issue on the merits was decided by the trial Court
mainly
upon its findings of credibility. Those findings can
likewise not
be interfered with. The versions of
Fransina and first appellant coincide to
a large extent;
as already mentioned. Where they differ, that of
Fransina
is, to my mind, clearly true. She stated that
"the comrades" abducted her. She is supported therein by
first appellant himself in his statement, exhibit I. She
37
is corroborated by Annetjie that first appellant did not merely open the boot
of his car. Annetjie, in her turn, is remarkably corroborated
by first
appellant, in his said statement, that accused no 2 brought two containers of
methylated spirits to the scene and poured
the contents on to the deceased who
was set alight by accused no 5. That statement was not admissible against those
two accused but
is of cardinal importance in judging the reliability of
Annetjie's evidence against first appellant. The trial Court did not deal
with
this aspect and may have missed it. But it unquestionably strengthens Annetjie's
evidence against first appellant most materially.
It also strengthens her
corroboration of Fransina in like measure. She is also corroborated by Komane
that there were two containers
of spirits. On the evidence of Fransina and
Annetjie first appellant clearly played a leading role in the abduction of and
assault
upon the deceased. That makes nonsense of his claim to
38
have acted under compulsion. Of all the participants in the abduction he was
the person who had the greatest interest in the deceased.
His evidence that
after having merely opened the boot he drove home and went to sleep without
evincing any interest in or being aware
of what was being done to the deceased
is not only contradicted by his own statement, exhibit I, but is also, as
remarked by Spoelstra,
J., so far-fetched as to be unworthy of consideration. He
and Komane obviously did remove their vehicles as stated by Fransina and
Annetjie because there were no vehicles on the scene when const. Van Heerden
arrived. It would have been most foolhardy to have left
them in the proximity of
the fire. But the removal of his motor car does not indicate that first
appellant had dissociated himself
from what was being done to the deceased. It
is, to my mind, not strange under the prevailing circumstances that Annetjie was
mistaken
about the colour of first appellant's car and that she did not
39
also notice Komane's car or see Fransina emerging from the boot and running
away. Her attention would obviously have been focussed
on the deceased. Fransina
and Annetjie were correct that objects (which they took to be bricks) were
thrown at deceased. Stones were
indeed found on the scene, some lying on top of
the deceased. Annetjie was also correct as to the number of spirits containers
involved
and that a tyre was placed on the deceased and set alight. This
indicates sharp and reliable observation by her. In view of second
appellant's
admission that "the Comrades" were generally known and discussed, and of first
appellant's statement mentioning them,
his alleged ignorance of such an
organisation must be discounted as clearly untrue. Komane's evidence is so
materially contradicted
by his own statement, exhibit G2, that it can be of no
assistance to first appellant. The trial court correctly rejected their evidence
as to compulsion and correctly
40
found that they and the others involved purposefuily hunted the deceased down
and abducted him. The facts that he was brought to first
appellant's home and
that the vehicles' hooters were blown announcing their arrival, clearly indicate
that thêy intended doing
something spectacular to the deceased in public.
That burning was in first appellant's mind is clearly demonstrated by the threat
uttered to Fransina.
On the evidence of Fransina and Annetjie second
appellant played a prominent and active role in apprehending and abducting the
deceased
and thereafter assauiting him at the scene of the murder. His obviously
lying evidence concerning his purported alibi effectively
reinforced their
evidence. Both appellants were beyond any reasonable doubt actively involved in
the common purpose of murdering
the deceased and were correctly convicted.
The court's finding chat there were no
41
extenuating circumstances in second appellant's case can, in my opinion, also
not be disturbed. The afore-guoted passage in Dr Solomon's
evidence-in-chief in
effect disposed of the main contention on second appellant's behalf. No fault
can be found with the trial court's
reasoning as set out in the passage from its
judgment on extenuation quoted above.
I now turn to the death sentence
imposed upon first appellant. This Court will not lightly interfere in a
discretionary sentence imposed
by a trial judge. The crucial question in an
appeal against the imposition of a discretionary death sentence is whether the
trial
judge could reasonably have imposed that sentence. If the answer to that
question is in the affirmative, that is the end of the matter.
S v
PIETERS
1987 (3) SA 717
(AD) at 734 E-F and 735 H. It is clear that under
the particular circumstances of this case there were only two sentences in issue
- the death sentence or a long term of
42
imprisonment. In deciding upon the former, the learned judge did not, in his
judgment on sentence, deal expressly with the latter
or again mention the
personal circumstances of first appellant. But that he must inevitably have had
both in mind is clear from the
fact, as mentioned above, that both those
considerations were dealt with by counsel immediately before sentence was
passed. The learned
judge was, to my mind, correct in according great weight to
the horrible nature of the crime and the judicial duty to protect the
community
from such barbarity. I agree with him that in this case the nature of the crime
and the interests of the community outweigh
the extenuation found and
appellant's personal circumstances. The learned judge could therefore reasonably
have sentenced first appellant
to death.
The appeals of both appellants are dismissed.
M T
STEYN,3A.
JOUBERT, JA.)
F H GROSSKOPF, AJA.)