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1989
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[1989] ZASCA 88
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S v Tseleng (578/88) [1989] ZASCA 88 (17 August 1989)
Case no 578/88
/MC
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE
DIVISION
Between:
ZACHARIA TSELENG
Appellant
and
THE
STATE
Respondent
CORAM:
HOEXTER, VIVIER et STEYN JJA.
Heard:
17 August
1989
Delivered:
17 August 1989.
JUDGMENT VIVIER JA:
The appellant, to whom I shall refer as accused no 2, and one Shimane Oupa
Ndhlovu, to whom I shall refer as accused no 1, were convicted
by O'Donovan
2.
AJ and two assessors in the Witwatersrand Local Division on one count
of murder, one count of attempted murder and one count of conspiring
to commit a
robbery. Accused no 1 was also found guilty of possessing a fire-arm and
ammunition without a licence. In respect of
the murder charge no extenuating
circumstances were found either in the case of accused no 1 or in the case of
accused no 2 and they
were accordingly both sentenced to death. For the
conspiracy to rob accused no 1 was sentenced to 9 years' imprisonment and
accused
no 2 to 7 years' imprisonment. On the charge of attempted murder each
accused was sentenced to 7 years' imprisonment. Accused no
1 was sentenced to 2
years' imprisonment for the illegal possession of the fire-arm and ammunition.
With the leave of this Court
accused no 2 appeals against the finding that there
were no extenuating circumstances
3/...
3.
and the consequent sentence of death imposed on him. There is
no appeal by accused no 1.
The facts of the case, as found by the trial
Court, are relatively simple and can be stated very briefly. A retired couple,
Mr and
Mrs Gobey, lived on the farm Hartebeesfontein of Mr Lourens Petrus
Barnard in the Hekpoort district. Mrs Gobey and Mrs Barnard were
sisters. The
Gobeys occupied a rondavel in an isolated spot about three kilometres from the
main homestead. Mr Gobey was 65 and his
wife 62 years old. During the morning of
24 April 1987 the two accused proceeded from Brits to the Gobeys' house with the
common
purpose to rob them of a sáfe. Accused no 1 had broken into the
Gobeys' house a week before and had unsuccessfully attempted
to remove the safe
from the house. When they left Brits accused no 1 was armed
4/...
4.
with a pistol. They went up to the house and hid outside the
back door until Mrs Gobey appeared at the door. Accused no 1 rushed at
her and
she turned back into the house, followed by accused no 1. From near point-blank
range he fired at both Mr and Mrs Gobey.
A bullet hit her in the face and
penetrated the spinal cord at the back of her head, killing her instantly.
Another bullet struck
Mr Gobey in the cheek. He recovered from his injury but
later died from other causes. After the shots were fired both accused
immediately
ran away. Nothing was taken from the house. Both were arrested a few
days later.
The evidence given by accused no 2 at the trial was that accused no 1
initially only asked him to accompany him to the Gobeys' house
because he wanted
to collect some money which was owing to him. Accused
5/...
5.
no 1 had previously worked on the farm. When they were a few
hundred metres away from the Gobeys' house accused no 1, for the first
time,
told him that his real purpose was to rob the Gobeys of their safe. Accused no 2
said that accused no 1 at this stage produced
a fire-arm which he proceeded to
load. From that moment onwards he wanted to turn back but he was forced to
accompany accused no
1 who threatened him with the fire-arm. The trial Court
rejected the evidence of accused no 2 and held that it was clearly established
that the two accused from the outset had embarked upon a joint venture with a
common purpose to commit a robbery and that the shots
were fired in the
execution of that common purpose. The trial Court found that accused no 2
subjectively foresaw the possibility
that one of their victims might be killed
in the course
6/...
6.
of the robbery but that he nevertheless persisted in his
actions. The trial Court said in its judgment that even if it was accepted
that
accused no 2 first became aware of the fact that accused no 1 possessed a loaded
firearm when they were nearing the Gobeys'
house, the subsequent conduct of
accused no 2 showed that he was a full participant in the contemplated robbery.
He had followed
accused no 1 right up to the door of the Gobeys' house. In fact,
in his statement to a magistrate, accused no 2 had said that he
entered the
house.
It was submitted on behalf of accused no 2 that the role which he played in
the commission of the murder was insignificant. I do not
agree. His assistance
was essential to the success of the venture and it is clear that accused no 1
would not have gone
7/...
7.
to the Gobeys' house if accused no 2 had not agreed to help
him remove the safe. It was a big, heavy object and it had to be removed
in
broad daylight. There was no reason to think that the Gobeys would not be at
home or that they would not resist the attempt to
remove the safe. Their
resistance would have to be overcome in such a way as to facilitate the slow and
laborious task of removing
the safe. I cannot, therefore, agree with counsel for
accused no 2 that death was foreseen by accused no 2 only as a slight
possibility.
The absence of direct intention was considered by the trial Court
not to be an extenuating factor in all the circumstances of this
case. The trial
Court did not misdirect itself in arriving at its finding, and there is, in my
view, no basis for interfering with
that finding.
The appeal is dismissed.
W. VIVIER JA.
HOEXTER JA)
STEYN JA) Concur.