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 62
|
|
S v Sithole and Another (430/88) [1989] ZASCA 62 (25 May 1989)
CASE NO. 430/88 /CCC
IN THE SUPREME
COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THABANE SITHOLE
FIRST
APPELLANT
VUSI PHAKATI
SECOND APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
GROSSKOPF, NESTADT et EKSTEEN
JJA
DATE HEARD
: 8 MAY 1989
DATE DELIVERED
: 25 MAY 1989
JUDGMENT
NESTADT, JA
:
On the evening of Sunday, 28 December 1986, Mr and Mrs
van der Merwe were in their house on a farm in the district of Dannhauser,
Natal. They, aged 67 and 62 respectively, lived
2/
2.
there alone. Shortly after 8 pm, they were brutallý attacked with a
heavy, blunt instrument and robbed of a large quantity
of their possessions.
Amongst the injuries sustained by Mr van der Merwe were three lacerations of the
head. The most serious was
one to the right parieto-occipital region thereof. It
was 15 cm in length. Underlying the wound was a compound, depressed fracture
and
indeed fragmentation of the skull. The brain itself in this area was severely
and extensively damaged. Mr van der Merwe died
on 16 January 1987 as a result of
complications following on his injuries. Mrs van der Merwe was seriously
injured. She suffered
inter alia
a severe head injury in the form of a 12
cm long linear laceration of the left fronto-temporal region. Accompanying it
was a large
depressed fracture of the skull together with a laceration of the
brain itself. Mrs van der Merwe survived but she has been rendered
permanently
incapacitated. Her ability to speak or to read or
3/
3. write has been severely impaired. The property stolen included
deceased's motor vehicle (a small, open van or "bakkie", which had
been parked
in front of the house) , about R500 in cash (though this was not referred to in
the indictment), a loud-speaker, some
gold necklaces or chains, a portable
radio, a microphone with connecting wires, a tape-player, an old Rl note, a set
of cutlery,
a ten shilling note and a number of tape cassettes. Within days, the
vehicle and, save for the cash, the items referred to were recovered
by the
police who on 31 December 1986 arrested first appellant and on 6 January 1987
second appellant.
These events led to the trial of appellants before THIRION
J and assessors in the Natal Provincial Division on three charges, viz,
(i)
murder (of Mr van der Merwe); (ii) attempted murder (of Mrs van der Merwe) and
(iii) robbery with aggravating circumstances.
The State case was that appellants
were the perpetrators of the attacks and the persons who stole the goods.
Appellants denied this.
Their defence was in the nature of an
4/
4.
alibi. Their evidence to this effect was, however, rejected and they were
found guilty as charged. In the case of first appellant
this decision was not
unanimous. The trial judge, for reasons which are dealt with later, entertained
"some slight doubt" as to his
guilt. However, the assessors did not share this
view. In respect of the conviction of murder no extenuating circumstances were
found.
Appellants were, accordingly, each sentenced to death cm this count. The
death penalty was also imposed for the robbery. They were
each sentenced to five
years' imprisonment in respect of the conviction of attempted murder.
This
appeal, with the leave of the trial judge, is by first appellant against his
convictions and death sentences and by second appellant
against his death
sentences (only).
I commence with the appeal by first appellant against his
convictions. The State did not rely on the evidence of any eye-witness to
the
occurrence. Because of her disability, Mrs
5/
5.
van der Merwe was not able to testify at the trial. Nor were any identifiable
fingerprints found in or around the house. What the
prosecution rested on was,
in summary, the following circumstantial evidence:
(i) First appellant had, as recently as July 1986, from time to time worked
on deceased's farm. He knew deceased. He had frequently
been conveyed in and was
therefore familiar with deceased's vehicle. (ii) He and second appellant were
well-acquainted and friendly
with each other. Indeed, they had grown up
together. (iii) At about 12 o' clock on the night in question they were in each
others
company. They arrived together at a shebeen situate about 20 kilometers
from the Van der Merwe farm. They had driven there in deceased's
vehicle at the
back of which at least some of the stolen goods were loaded. Inside the shebeen
they and
6/
6.
a certain Dumisani Dube drank liquor which second appellant
purchased and paid for. (iv) The three of them, ie appellants and Dube,
then, in
the early hours of Monday morning (29 December), proceeded in the vehicle, which
second appellant drove, to his mother's
nearby house. They entered it. In first
appellant's presence, second appellant gave his mother, Irene Phakati, the set
of cutlery.
It had been off-loaded from the vehicle. (v) After a short stay
there, they left and drove to the house of Beatrice Sibiya. She was
the mother
of second appellant's girlfriend. They remained there until about mid-afternoon
(still on the Monday). During this period,
three significant incidents took
place. Firstly, first appellant went out to the vehicle and returned with some
of the necklaces
which he gave to the young children of the house. Secondly,
he
7/
7.
produced the old Rl note which at his request Sibiya took in exchange for
giving him current coinage to the same value. Finally, there
was first
appellant's reaction to Dube's report to appellants that he had seen the
identity document of a white man lying on the
floor of the cab of the vehicle.
First appellant thereupon demanded that Dube should immediately take the vehicle
away and burn it.
On second appellant's refusal to accede to this, first
appellant stabbed him. (vi) From Sibiya's place appellants and Dube proceeded
in
the vehicle to Dannhauser and thence in the direction of appellants' homes.
First appellant was now driving. At a certain bus stop
along the way Dube
alighted. Before he departed first appellant gave him four of the cassettes, the
ten shilling note, the microphone
and one of the gold chains.
8/
8.
(vii) On the Tuesday (31 December) appellants were still together. At about
8:30 that morning, having abandoned the vehicle, they
arrived on foot at the
house of Julie Mdluli. She was a friend of first appellant. He gave her the
loudspeaker and radio. She was
to keep them for him or them. He told her that he
would come and fetch them later. He explained that he had used the two
instruments
to celebrate Christmas. (viii) Before they parted later that day,
second appellant gave first appellant the tape-player together
with one of the
cassettes.
In addition to what has been stated, there was other evidence
implicating second appellant in the commission of the crimes. Since,
however,
his convictions are not in issue, it is unnecessary to particularise it. But I
must briefly refer to second appellant's
evidence and, of course, that of first
appellant, in explanation of what amounted to a strong
prima
9/
9.
facie
case against them. Second appellant testified that on the
evening of 28 December the vehicle had been pledged with him by an unknown
gambler to whom he had lent R500. He had purchased the other articles from the
same person for R150. As I have indicated, this evidence
was rejected and second
appellant was found to have participated in the crimes.
First appellant's
explanation was the following. On the night in question he met his co-accused at
a stage when second appellant was
already in possession of the vehicle and
goods. This occurred at a shebeen. From there the two of them proceeded to a
second shebeen
where they met up with Dube. First appellant's further movements
over the next few days were, basically, as described. Second appellant
had
invited him to go along which he agreed to do because "it was during the
Christmas festival so I thought that was the way one
could enjoy oneself".
Second appellant had told him that his employer had given him the vehicle and
the goods. He believed this.
It was true that he
10/
10.
had exchanged the Rl note with Sibiya. Second appellant had given it to him.
The tape-player and cassette had been left with him so
that he could repair them
for second appellant. He had merely been carrying the loudspeaker and radio for
second appellant and, on
his instructions, left them with Julie Mdluli. He had
never told her that he had used them as she alleged or at all. He did not
dispose
of or even possess any of the other goods. He denied the incident
concerning his alleged suggestion that the vehicle be burnt. Though
he knew the
Van der Merwe vehicle well, he at no stage realised that it was the one that he
was travelling in and which he admittedly
did drive.
It will be seen that in
numerous respects first appellant's evidence conflicted with that of the State.
A number of credibility issues
therefore arose. They were, in the main, and to
the extent set out above as constituting the case made out against first
appellant,
resolved in favour of the State. Before us, these findings were, for
good reason, not
11/
11.
assailed. It was furthermore conceded, again I think correctly,
that first
appellant was guilty of theft. He must have known
that the articles which he
appropriated had been stolen during
the robbery. This is what the trial court
(unanimously) found.
The judgment of THIRION J in this regard reads:
"Accused No 1 would never have been so gullible as to believe that Accused No
2's employer would have given him a vehicle for his
private use...
The goods which Accused No 2 had in his possession were not of a kind which one
would expect an employer to give to a deserving employee...
Accused No 1 must have known Accused No 2 as an indigent labourer. Accused No 2
made no attempt to hide the fact that he had plenty
of cash on him. He bought
liquor on several occasions with R20 notes. There is no reason to believe that
he would have concealed
his sudden affluence from Accused No 1. Therefore if
Accused No 1 was innocent of the robbery, he would have realised, if not on
the
Sunday then at least on the Monday, that Accused No 2 could not have come by the
vehicle and the other goods and the money by
honest means."
The crucial question for determination, therefore;
is
whether the finding of the majority of the court
that the
evidence justified the further conclusion that first appellant
12/
12.
had actually participated in the robbery was correct. On behalf of first
appellant a negative answer was contended for though, I would
add, it was not in
dispute that if the argument was rejected, first appellant was guilty of murder
and attempted murder as well.
As the trial court found, the manner of execution
of the robbery and the nature of the attacks were such that both f irst
appellant
(if he was one of the robbers) and second appellant must be taken to
have made common cause with each other to commit the crimes
and, in so acting,
to have had the necessary
mens rea
, whether in the form of
dolus
directus
or
dolus eventualis
.
What has to be considered is (i)
whether the inference that first appellant was one of the robbers is consistent
with all the proved
facts and (ii) whether those facts exclude every reasonable
inference save that one (
R vs Blom
1939 AD 188
at 202 - 3 ) . A number of
matters arise in relation to (i) . Firstly, that there was no acceptable
evidence' that any blood was
13/.
13.
found on first appellant's clothing. Having regard to the nature óf
deceased's and Mrs van der Merwe's injuries and the blood
found in and around
their house, this might have been expected. Secondly, only a relatively small
proportion of the stolen goods
was recovered. For the rest, there was no direct
evidence that first (or second) appellant was ever in possession thereof.
Thirdly,
so it would seem, it was second appellant who played the leading role
in his and first appellant's post-crime activities. He seems
to have decided
where they should go. In the main he used the vehicle. And it was he who was the
one who apparently had all the money.
As I have said, the liquor purchased at
the shebeen, where Dube was, was paid for by second appellant. It was this
consideration
that gave rise to the trial judge's doubt as to whether first
appellant participated in the robbery.
I do not think that any of these factors are truly inconsistent with first
appellant's guilt. If he took part in
14/
14.
the actual attack, he could have subsequently changed his clothing and thus
got rid of any incriminating evidence. There was ample
opportunity for the other
items of stolen property to have been disposed of by appellants. Or (whilst the
vehicle was left unattended,
especially at the shebeens) they could have been
removed or (during their travels) lost. Finally, as regards second appellant's
predominance
and, in particular, the fact that he was the one who was spending
the money, the evidence that first appellant was intoxicated must
be borne in
mind. This would explain the more submissive role that he at times played. In
any event, it may well bé that first
appellant was content to allow
second appellant, pending them later sharing the money, to keep (and spend) it.
Much of what I have
said is, of course, speculative but I indulge in the
exercise in an attempt to show, without the use of too fertile an imagination,
that the factors under consideration do not detract from the inference that
first appellant participated in the commission of the
crimes.
15/
15.
This brings me to the second stage of the enquiry, viz., whether the
inference of guilt is the only reasonable one. It is clear that
first appellant
was in possession (and indeed disposed) of some of the stolen goods. There were
the necklaces which he gave to the
children at Sibiya's place; the Rl note to
Beatrice herself; and the four items to Dube. Did his possession of these
articles originate
merely from second appellant's gratuitous willingness to
share the booty acquired by him? Or had first appellant actively assisted
second
appellant in obtaining them and thus "earned" them? It seems to me that the
latter is inherently the more probable state of
affairs. There are, moreover,
positive indications of this. According to Irene Phakati (who was categorised as
"a truthful witness
whose evidence we accept without hesitation"), first
appellant said that they would later come and fetch the cutlery. The
well-reasoned
finding of the trial court was that the robbery was (probably)
committed by more than one person. This means that
16/
16.
second appellant had an accomplice. First appellant was not only a
long-standing friend of second appellant but, having worked on
the farm, would,
in the words of THIRION J, "have been acguainted with the habits of the
victims". He would know the lie of the land.
Second appellant, who knew that
first appellant had worked on the farm, would surely have been aware of this.
First appellant would
be his natural choice as a partner in crime. Not more than
(at the most) a few hours later, first appellant was in his company. And
over
the following two or more days they continued to associate closely with each
other, travel around in the vehicle and deal with
the goods. If all this was a
coincidence (as on first appellant's version it was) it was, in the
circumstances, a most singular one.
It is rather more likely that second
appellant's confederate was first appellant and that they had been together from
an earlier
point in time, ie
r
during the robbery. This conclusion gains support from first appellant's
earlier referred to response to Dube's disclosure at
17/
17.
Sibiya's place that he had seen the identity book of a white man
in the vehicle. Dube described what happened as follows:
"I then decided to go out to where the vehicle was parked and when I got into
the vehicle I saw an identity book with a photograph
of a White man on the floor
of the vehicle...
And thereafter I closed the door of the vehicle and went back towards the house.
And before I entered the house Accused No. 1 said
to Accused No. 2 that he,
Accused No. 2 had to give me the keys of the vehicle so that I could drive the
vehicle to where I had to
burn it.
Yes?- But Accused No. 2 refused to give me the keys
so as to have the vehicle burnt.
Yes? - Accused No. 2 then said that the vehicle will
have to be left where it was taken from. Accused No. 1 then produced a knife
and... stabbed... him."
This account, which was
accepted by the trial court, shows, I
think, a degree of anxiety on first
appellant's part as well as
an independence of behaviour which is more
consistent with an
actual involvement in the crimes than with mere knowledge
of
their commission or that the goods were stolen. As THIRION J
put
it:
"Accused No l's proposal that the vehicle should be burnt was an immediate
reaction verging on panic and
18/
18.
manifesting at the same time a guilty state of mind resulting from his knowledge
that the vehicle had been associated in a serious
crime and resulting from the
realisation that Dumisani was now asking awkward questions about that very
matter."
Fir.st appellant, by falsely denying Dube's
account of what
happened, failed to explain why he wanted the vehicle
burnt.
Nor did he advance the version that, though guilty of theft,
he
nevertheless did not participate in the robbery. Instead,
he
untruthfully denied having disposed of the articles referred to
or that
he knew they were stolen. And I agree with Mr
Farrell
,
in his able argument for the State, that if first appellant had
himself
not been involved in the crimes, there would have been no
need for him to
attempt to justify his possession of the
loudspeaker and radio to Julie
Mdluli.
The cumulative effect of all these considerations
convinces me that on the night in question it was first appellant
who,
with second appellant, entered deceased's house. It follows
that he was
correctly found guilty as charged.
19/
19.
This brings me to the issue of extenuation. The submission on behalf of first
appellant that extenuating circumstances should have
been found to have been
established was based on the proposition that he (who was aged 24 at the time)
was influenced by second appellant.
The leading role, as evidenced by the
factors referred to earlier, which it was said second appellant played in the
events, was relied
on in this regard. On behalf of second appellant on the other
hand, it was argued, on the strength mainly of the incident concerning
the
burning of the vehicle and the fact that first appellant was the elder of the
two, that he (second appellant) was the minor participant.
Further factors which
allegedly reduced his moral blameworthiness were his relative lack of education
(second appellant only passed
std 4), his limited sophistication and his youth
per se
(he was then 23). It was also contended that the murder was not
premeditated and that he had acted with
dolus eventualis
only.
20/
20.
Substantially the same argument was presented to the trial court. There is no
merit in it and it was correctly rejected. I agree with
THIRION J that this was
not a case where any sophistication was required for appellants to realise the
enormity of their crimes.
I agree, too, that it was not established that either
appellant acted under the dominance or influence of the other. Neither said
so.
And the circumstances relied on by each were, in my view, wholely insufficient
to show this. There is no reason to think that
they were anything but equal
partners in the crimes. They can hardly be described as youths. With every
justification, it was found
that the attack had been planned as a robbery and
that appellants must have foreseen that there would be resistance which would
have
to be overcome. In the circumstances, it is improbable that the death of
the Van der Merwes was not premeditated and, in the case
of deceased, not
achieved with
dolus directus
. But, in any event, I do not think that,
taking
21/
21.
into account the motive, nature and place of the attack, these
factors
constituted extenuating circumstances in this case.
The remaining matter concerns the propriety of the
death sentence imposed in respect of the robbery. The learned
trial
judge's reasons for exercising his discretion in this
manner were the
following:
"You committed a very serious offence by robbing these two elderly persons. You
invaded the safety of their home to do so and you
launched a callous and vicious
and cowardly assault on an unsuspecting couple. After having inflicted fearful
wounds on them and
while they were lying there seriously injured with extensive
skull fractures, you ransacked the house and made off with the loot.
This was a
calculated robbery committed for gain.
The only features that count in your favour are that you have no relevant
previous cohvictions and that you are fairly young. But
you are not so young
that that by itself should be the deciding factor. Attacks of this kind are of
all too common occurrence in
this province. In the circumstances I have decided
to impose upon you the ultimate penalty in regard to count 3 as
well."
I can find no fault with this approach. It
cannot be said that
the death sentence was not one which could not reasonably have
22/
22.
been imposed. This is the test (
S vs Pieters
1987(3) S A 717(A)). Nor
were there any misdirections. Obviously, consideration must have been given to
the alternative imposition
of a long period of imprisonment. Whilst the violence
used was taken into account, the death of deceased was clearly not a feature
which in any way weighed with the trial judge in imposing the death sentence for
the robbery (cf
S vs S
1987(2) S A 307(A) at 312 F and cases there
cited).
The appeals of both appellants are dismissed.
NESTADT, JA
GROSSKOPF, JA )
) CONCUR EKSTEEN, JA )