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1989
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[1989] ZASCA 96
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S v Skoti and Others (96/89) [1989] ZASCA 96 (7 September 1989)
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
MXOLISI SKOTI FIRST APPELLANT
GXUNYEVU MXOLISI SOKOYI SECOND APPELLANT
SIPHIWO MPAMBANI THIRD
APPELLANT
and
THE STATE RESPONDENT
CORAM : HEFER, EKSTEEN JJA et NICHOLAS AJA. HEARD :
22 AUGUST 1989. DELIVERED : 7 SEPTEMBER 1989.
JUDGMENT BY J J F HEFER JA.
JUDGMENT HEFER J A:
On the evening
of 16 March 1986 the appellants entered the house of Mr Otto Freitag situated
behind his shop on the road to Kei Mouth
in the Eastern Cape. First appellant
was armed, to the knowledge of second and third appellants, with a loaded
revolver. Their design
was to obtain money. When eventually they left the house
two men lay dead and another wounded. Mr Freitag and a neigh-bour, Mr Roux,
were
shot to death and Mr Promnitz, a rela-tive of Mr Freitag, was wounded. Mrs Roux
was fortunate enough not to be hit by a shot
fired at her at point-blank range.
The appellants fled in Mr Roux's truck. Later that night they ran into a police
patrol on the
old coastal road at a spot about fifty kilometres from the
Freitag
.../2
2.
residence. First appellant was arrested on the spot and second
appellant shortly afterwards. Third appellant was detained about two
years
láter.
These are the facts that emerged at the appellant's trial in
the court below where they appeared before KROON J and assessors on no
less than
eleven charges. They were convic-tedof murdering Mr Freitag and Mr
Roux(respectively counts 1 and 2 in the indictment),
of attempting to murder Mr
Promnitz and Mrs Roux (counts 3 and 4 respectively) and of various other
offences including robbery, theft,
and the unlawful posses-sion of firearms and
ammunition. With leave granted part-ly by KROON J and partly by this court they
have
now ap-pealed against their convictions on counts 1,2, 3 and 4 and against
the finding that there were no extenuating
.../3
3.
circumstances in respect of counts 1 and 2, as a result of
which they were all sentenced to death on each of the last mentioned
counts.
Argument in this court centred mainly on the trial court's finding
(hereinafter referred to as the main finding) that the murders
and attempted
murders were com-mitted in the execution by the appellants of their common
design to rob Mr Freitag and were foreseen
by each of them. In order to
appreciate the significance of the main finding it is necessary to know that two
firearms were usedin
the shooting; the one was the ,22 revolver which the
appel-lants had when they went to the house, and the other a 9 millimetre pistol
belonging to Mr Roux. Mr and Mrs Roux lived on a neighbouring property. On the
evening in
.../4
4.
question Mrs Roux heard shots at Mr Freitag's house and
she
and her husband drove there to assist him. Upon their arrival Mr Roux entered
the house with his pistol. Seve-ral shots were fired
and Mr Roux managed to
wound first appellant. But he was dispossessed of his weapon and when Mrs Roux
entered the house shortly afterwards
she found him unconscious on the floor of
the diningroom. (He died later of a bullet wound). She looked for but could not
find his
pistol. Hearing footsteps approaching her she fled into the pantry. It
was there that she was shot at. The evidence reveals that
this shot was fired
with Mr Roux's pistol; and so was the shot which killed Mr Roux himself and
another one which struck Mr Freitag
in the nose and left eye. When he received
this injury
.../5
5.
(which would most likely have been fatal by itself) Mr
Frei-tag must have been lying in the passage already dying from a bullet wound
through the heart from appellants' pistol. The trial court was satisfied that it
was first appellant who had shot Mr Freitag in the
heart before Mr Roux's
ar-rival and that it was third appellant who had shot at Mrs Roux, but was
unable to ascertain on the available
evidence which of the appellants had shot
at and killed Mr Roux, which of them had wounded Mr Promnitz, and which of them
had fired
the shot that struck Mr Freitag in the nose and eye. In view of the
main finding all the appellants were convicted on all four counts
despite these
uncertainties.
Counsel for each of the appellants (separate counsel represented them at the
trial and in this court)
.../6
6.
accepted that the appellants' common purpose was to rob Mr
Freitag and that it was foreseen by each of them that it might be necessary
to
resort to vioience in order to overcome resistance and to make a successful
escape after achieving their purpose. Due mainly to
first appeliant's possession
of a loaded firearm and his demonstration of his determination to use it,
counsel accepted, moreover,
that it was foreseen by each appellant that the
achieve-ment of their purpose might entail serious injury to, and even the death
of, the occupants of the house and anyone who might come to their assistance.
Whilst also accepting that each appellant persisted
in the robbery despite this
foresight, appellants counsel nevertheless contested the correctness of the main
finding by arguing that
it has not
.../7
7.
been shown that the shots fired with Mr Roux's pistol after he
had been deprived thereof, were fired in the execution of the common
purpose or
that they were foreseen by those appellants who did not fire them, The evidence
does not exclude the possibility, so the
argument went, that one of the
appellants returned after they had left the house or were on their way out and
not only shot at Mrs
Roux, but also fired the shots that struck Messrs Roux and
Promnitz and the one that struck Mr Freitag in the nose and eye. There
is no
substance in this argument. The trial court found Mrs Roux an excellent witness
and unreservedly accepted her evidence in every
material respect. Since she did
not immediately follow him into the house, she obviously did not know what
happened there when her
husband
.../8
8.
entered; she only heard the shots. But from her evidence a clear picture
emerges. After the shooting ensuing upon her husband's entry
had stopped, she
decided to investigate. She entered the house by the front door where she
encoun-tered all three appellants but
nevertheless forced her way in. What
happened then has already been described. The person who had approached her in
the diningroom
followed her into the pantry. She saw the firearm being aimed at
her head and, with remarkable presence of mind, dropped to the floor
the moment
before the shot was fired. There can be little doubt that this is what saved her
and that her assailant (who, as mentioned
earlier, the trial court found to have
been third appellant) must have been under the im-pression that he had
successfully disposed
of her for he
.../9
9.
left her alone and shortly afterwards she heard the appel-lants driving away
in her husband's truck.
Mrs Roux could not remember whether one or two shots
were fired at her but on her evidence it i s clear that no other shots were
fired
after she had entered the house. The inference i s accordingly
irresistibie that all those who were injured, received their injuries
before her
entry. That they were shot in the execution of the corrmon purpose is equally
plain. At the stage when Mr Roux arrived
the appellants were, on their own
version, still in the process of looting the house. Mr Freitag had already been
shot with the ,22
and Mr Promnitz, who had been injured with a stick, was
standing helplessly by. But, although all resistance from the original
occupants
.../10
10.
of the house had thus been overcome at that stage, and a
considerable amount in cash had already been taken from Mr Freitag, Mr Roux's
arrivai posed a new threat to the completion of the appellants' operation and to
their es-cape. Since, moreover, he started shooting
at them, he obviously had to
be disposed of and it was in the shooting which followed that he and Mr Promnitz
were shot and Mr Freitag
received the injury to the nose and eye. Only later,
after also attempting to eliminate Mrs Roux, did the appellants escape in the
truck belonging to one of their visitors, taking with them the same victim's
pistol and Mr Freitag's money.
It is true that one of the appellants - third
appellant according to the trial court's finding - did
.../11
11.
return to the inner recesses of the house after Mrs Roux had
forced her way in and shot at her in the pantry. But this was plainly
not an
unconnected act even if it were to be assumed in appellants' favour that they
were on their way out when Mrs Roux met them
at the front door. As has already
been pobnted out the appellants' operation was in-terrupted when Mr Roux
confronted them and he
had hardly been eliminated when his wife entered. Upon
noticing the appellants and being unarmed, she took a chair from the verandah
and barged her way in,holding the chair in front of her as her only protection.
All three the appellants forcibly tried to rid her
of the chair; one of them
told her not to shout and one or more of them hit her in the face and behind the
head. Despite all this
opposition
.../12
12.
she managed to reach her fallen husband's side when third
appellant followed her,obviously realizing that she might prevent their
escape
at the very least by raising an alarm (which is precisely what she did after the
appellants' de-parture). The shot or shots
fired at her formed as much part of
the execution of the corrmon purpose as did the shots fired at the others.
On
the question of foreseeability little need be said. As mentioned eariier,
appellant's counsel ac-cepted that it was foreseeable
to, and actually foreseen
by, all the appellants that the robbery might entail the death of the occupants
of the house and of any
one who might come to their assistance. This is in
accordance with the evidence and the trial court's findings. That
.../13
13.
they might not have foreseen the precise way in which death
might occur, or any particular threat to life, is irrele-vant to the question
of
their guilt.
It should also be mentioned that counsel for third appellant
challenged the trial court's finding that it was third appellant who
followed
Mrs Roux to, and shot at her in the pantry. There is, however, no reason
whatsoever to question the trial court's finding
and,by virtue of the main
finding, it is in any event quite unnecessary to know who Mrs Roux's assailant
was.
Seeing that the appeal against the convictions cannot succeed the question of
extenuating circumstances in respect of counts 1 and
2 remains. This question
was carefully considered by the trial court and answered against
.../14
14. the appellants. We have considered it again and have
arrived at the same conclusion. The trial court's find-ing that there were
no
extenuating circumstances must stand.
The appeal is accordingly dismissed.
J J F HEFER JA.
EKSTEEN JA
CONCUR.
NICHOLAS AJA