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1989
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[1989] ZASCA 71
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S v Cele (258/88) [1989] ZASCA 71 (30 May 1989)
CASE NO. 258/88
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BONGANI CELE
APPELLANT
and
THE STATE
RESPONDENT
CORAM:
VAN HEERDEN, NESTADT et
VIVIER JJA
DATE HEARD
: 22 MAY 1989
DATE DELIVERED
: 30 MAY
1989
JUDGMENT
NESTADT, JA
:
This appeal is against a sentence of 30 years' imprisonment imposed for
murder. Actually, appellant's effective sentence is longer
than that. It is 32
years' imprisonment. This is because he was also convicted on two
2/
2.
other counts, viz, theft and housebreaking. They respectively carried
sentences of one year and two years' imprisonment. Only the
former was directed
to run concurrently with the sentence on the murder count.
The proceedings in
the court a
quo
(DIDCOTT J sitting with assessors in the Durban and Coast
Local Division) took a somewhat unusual course. The State did not lead
any
evidence. Appellant, together with a co-accused ("first accused") were convicted
simply on their respective pleas of guilty (which
were accepted by the
prosecutor), read with a statement they each made in terms of
sec 112(2)
of the
Criminal Procedure Act, 51 of 1977
("the
Act"). Section
112, in effect, provides
that in order to convict an accused on an accepted plea of guilty to an offence
of a more serious nature
than that postulated in sub-sec (1)(a), the Court is
obliged, either by questioning the accused or on the strength of a written
statement
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3.
by him, to ascertain the facts of the case in order to satisfy itself that
the accused is guilty.
The statements as amplified by answers given to
certain questions by the trial judge revealed that the crimes were committed on
the
evening of 27 September 1986 in the following circumstances. Appellant and
first accused broke into the house of a certain Lawrence
Bhengu. There they
stole a so-called hi-fi set. They required transport to remove it from the place
where they temporarily placed
it. They decided to go to the house of Clement
Bhengu ("the deceased"). They knew he owned a vehicle. They represented that
they
were policemen. Deceased was ordered into his motor car which appellant
then drove to where the equipment had been left. Deceased
was forced to
accompany them lest he raise the alarm by reporting the taking of his vehicle.
It was their intention, however, to
later return it to deceased's house and
there set him free. The hi-fi
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4.
set was loaded into the car. The three of them then proceeded in the car en
route to a place called Inanda where the hi-fi set was
to be sold. On the way
they stopped at a garage and put
petrol into the vehicle. There deceased,
all of a sudden it would seem, recognised them as people he knew. And, obviously
realising
that their claim to be policemen was bogus, he said that he would
report them to the police. This led to the accused, shortly thereafter
(the
hi-fi set having been disposed of), deciding to kill deceased. They each stabbed
him, appellant with a knife and first accused
with a screwdriver. He died as a
result of a penetrating wound of the chest (which severed the left internal
jugular vein) inflicted
"by one or the other" of the accused. The two of them
then returned to deceased's house and there stole certain articles from it.
Subsequently, the vehicle was abandoned after it had broken down.
It will be
seen that in a number of respects the version thus put forward, and which was
accepted by the
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5.
State, lacked clarity. There is, for example, no particularity as to what
conversation (presumably) took place between appellant
and first accused when
it was decided that
the deceased should
be
killed; how long thereafter and where he was put to death; and what
the explanation is for the post-mortem report disclosing that
the deceased had
three stab wounds. This is unfortunate. The charge (of murder) was sufficiently
serious to warrant a more thorough
and penetrating examination and presentation
of the precise circumstances in which the offence was committed (see the remarks
of
BOTHA JA in
S vs Soci
1986(2) S A 14(A) at 17 I -18 A). It would seem,
however, that the State was not able to do this. Its representative at the trial
told the court that the State case "consists basically" of statements made by
appellant and first accused to a magistrate in terms
of
sec 119
of the
Act and
that such statements were "substantially in accordance" with the version put
forward by the accused. It was in these circumstances
that their pleas were
accepted and the
6/
6.
accused convicted. The conviction of theft related to the
articles taken
from the deceased's house.
When it came to sentencing the accused,
DIDCOTT J was quite rightly mindful of the proviso to sec
112(l)(b).
It
prohibits the imposition of the death sentence
where the conviction (in
respect whereof such a sentence is
competent) is based on a plea of guilty;
to justify the death
sentence the guilt of the accused has to be proved "as
if he had
pleaded not guilty". It was obviously because of this
provision
that the learned judge, in his judgment on sentence said:
"Both accused must regard themselves as being fortunate to an extremely high
degree that this is a case in which they do not stand
in jeopardy of the death
sentence. That sentence is not procedurally competent, in view of the absence of
any evidence in the case
and the conviction of the accused on their pleas of
guilty."
DIDCOTT J went on to give the following
reasons for the sentence
of 30 years' imprisonment:
"We do not find that the moral culpability of either accused for this atrocious
crime was to any extent at
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7.
all diminished by the liquor they had consumed. Apart from the fact that we do
not know how much liquor they consumed, their crime
was not that of somebody who
was so inebriated that he did things which no sober man would ever do.
Deliberation, calculation, marked
every step of the affair. In any event I do
not subscribe, and have never subscribed, to the proposition that
blameworthiness for
an act of deliberate violence is ever reduced by the
consumption of liquor. Then it is said that the killing was committed on the
spur of the moment... It is quite true that the murder was not a premeditated
one, to the extent and in the sense that the accused
set out that night
intending to kill anyone. But they decided to and did kill this man
cold-bloodedly, and for the rational but atrocious
reason that he would be able
to identify them to the police...
The only factors in this case which can be regarded as mitigating, and they are
mitigating to only a slight degree, are that at the
time the two accused were
rather on the young side, being some 19 years old each, and the factor already
mentioned that this was
not a premeditated
killing..."
In my opinion, the learned
judge misdirected
himself in two important respects. The first relates to his
dismissal of
liquor as a mitigating factor. That he did so is
clear from the one passage I
have quoted. He was not entitled
to do this. Part of appellant's
sec 112(2)
statement (and that
8/....
8.
of first accused as well) dealt with certain extenuating
circumstances which were relied on. They included the fact that
the accused were "intoxicated cm the evening in question as the
result of the intake of liquor" and that this diminished their moral
blameworthiness. The State accepted this too. If the
court was not prepared to do so, the accused should have so been
told and afforded the opportunity of establishing their
averment
that they acted under the influence of intoxication (see
S
vs
Soci
,
supra
, at 18 B - C where a similar situation was
being
dealt with). But this was not done. On the contrary, the
trial
court, after conviction and despite expressing some doubt as
to
whether, in the light of the proviso to
sec 112
(1) (b) and
the
resultant incompetence of the death sentence, it was necessary to
find
extenuating circumstances, stated that "we formally find
that they do exist".
In these circumstances, the learned judge
was bound, in sentencing the
accused, to take account of their
intoxication as a mitigating factor. It is
true that the
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9.
court's finding was qualified; it was said that "insofar as the weight to be
attached to these various factors is concerned, it will
be dealt with in due
course when sentence is passed". Presumably this was prompted by the
consideration that the degree of intoxication
had not been specified. Nor was
there any information as to what guantity of liquor was consumed or when. There
should have been.
But this lack of detail, important though it was, and though
it made the court's task more difficult, did not justify the learned
judge in
disregarding intoxication as a mitigating factor. Full effect had to be given to
it and in particular to the fact that accuseds'
moral blameworthiness was
thereby diminished. This was, in other words, not one of those cases where the
accused is simply shown
to have consumed some liquor. The finding that it
diminished the accuseds' moral blameworthiness carried with it the corollary
that
intoxication had impaired or affected their mental faculties or judgment
and thereby influenced them in regard to the crime.
10/......
10.
This was the approach to adopt rather than that it had to be shown that
"their crime was that of somebody who was so inebriated that
he did things which
no sober man would ever do". And it should have tempered the inferential finding
that the killing was a deliberate,
calculated and cold-blooded one. The
proposition that blameworthiness for an act of deliberate violence can never be
reduced by the
effects of liquor is plainly too widely stated.
The other
criticism of the judgment on sentence is that whilst emphasising the
retributive, deterrent and preventive aspects of punishment,
it does not have
regard to the reformative aspect. Appellant and his co-accused were both youths.
As appears from the earlier quoted
passage from the judgment, appellant's age
was about 19 years. More specifically, it was stated by his counsel, during the
sec 112
proceedings, that he was born in 1967. The exact date could not be
given. This means that he could, when the crime was
11/
11.
committed, have been less than 19. He had previous convictions . (theft in
1984; housebreaking with intent to steal and theft in
1985 and unlawful possession of a dangerous weapon in 1986) but
none
involving crimes of violence. In these circumstances there were, I would have
thought, prospects of rehabilitation deserving
of consideration and which would
have justified a substantially lesser sentence than the exceptionally long one
imposed (see
S vs Khumalo and Others
1984(3) S A 327(A) at 331 A - F).
And the fact that the death sentence might have been imposed had it been
competent to do so, should
not have been allowed to detract from this.
We are
therefore (as was fairly conceded cm behalf of the State) entitled to consider
sentence afresh. This was undoubtedly a dreadful
crime. I fully understand the
indignation it evoked in the mind of DIDCOTT J. With justification he described
it as atrocious and
appalling. Deceased was a defenceless, innocent victim of
the accused's
12/
12.
decision to kill him because of his threat to report their unlawful conduct.
Obviously a lengthy period of imprisonment is called
for. In my judgment one of
20 years is an appropriate sentence. One of this duration was, incidentally,
described as "massive" by
HOLMES JA in
S vs V
1972(3) S A 611(A) at 614
H. It is one which, I consider, will satisfy the purposes of punishment
mentioned above and achieve a fair
balance between the nature of the crime and
the mitigating factors of appellant's intoxication and youthfulness. I propose
to order
that both the two other periods of imprisonment run concurrently with
the sentence of 20 years' imprisonment.
The first accused has not appealed.
It is likely that if he did, his sentence would also be reduced. It is desirable
therefore that
this judgment be brought to his attention as also that of his
former
pro Deo
advocate. To this end I have in mind directing the
Registrar of this Court to cause this judgment to be served on them.
13/
13.
The following order is made:
(1)
The appeal
succeeds.
(2) The sentence of 30 years' imprisonment imposed on appellant in respect of
count 1 (murder) is set aside. A sentence of 20 years'
imprisonment is
substituted.
(3) The sentences of 1 year and 2 years' imprisonment on counts
2 and 3 are
to run concurrently with the sentence of 20
years' imprisonment.
(4) The Registrar of this Court is directed to cause this
judgment to be
served on the first accused, Zamokwakhe
Qholiyane Bhengu, and on his former
pro Deo
counsel who is
requested to represent such accused in any
further appeal
proceedings that may result.
NESTADT, JA
VAN HEERDEN, JA )
) CONCUR
VIVIER,
JA )