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1989
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[1989] ZASCA 147
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S v Hlakotsa and Another (349/89) [1989] ZASCA 147 (20 November 1989)
349/89
N v H
JEREMIA HLAKOTSA and MARTHA RABODILA v THE STATE
SMALBERGER,
JA
349/89 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JEREMIA HLAKOTSA
First Appellant
MARTHA RABODILA
Second
Appellant
and
THE STATE
CORAM
: SMALBERGER, VIVIER, et
STEYN, JJA
HEARD
: 14 NOVEMBER 1989
DELIVERED
: 20 November 1989
JUDGMENT
SMALBERGER, JA:-
On 23 October 1985 the body of Katrina
Skhosana ("the deceased") was discovered in the Vaal River near
Vanderbijlpark. The body was in an advanced stage of decomposition.
The deceased
was
practically naked. Her head was covered with a
/2
2
blanket which was tied with a rope around her neck. There was a second rope
around her neck, to the end of which was attached a concrete
kilometre-stone. A
later post-mortem examination established that the deceased had died as a result
of strangulation.
Arising out of the deceased's death the two appellants
appeared before WEYERS, J, and two assessors in the Vereeniging Circuit Local
Division on a charge of murder. The first appellant and the deceased had been
married to each other for a number of years; the second
appellant is the first
appellant's lover. Initially a third accused, one Mbele, was also charged with
the two appellants. However,
the charge was withdrawn against him and he later
testified on behalf of the State. Both appellants were convicted of murder - in
the case of the second appellant by a majority decision. The court was also
divided on the
/3
3 question of whether extenuating circumstances were present
in the case of the first appellant. By a majority decision none were
found. In
the case of the second appellant the court was unanimously of the view that
extenuating circumstances were present. In
the result the first appellant was
sentenced to death and the second appellant to 10 years imprisonment. With leave
of the judge
a
quo
the first appellant now appeals against the finding
that there were no extenuating circumstances and the sentence of
death
imposed upon him, while the second appellant appeals
against her conviction only.
The evidence established that on 14 October
1985 the deceased left the house she had previously
shared with the first
appellant and went to her sister-
in-law, Mrs Jane Skhosana. She took with her clothes,
curtains and bed
linen. It appears that she was
/4
4 intent on leaving the first appellant. There had for some
time prior to that been disharmony in their marriage, and the first appellant
had formed a liaison with the second appellant. That evening the first appellant
arrived at Mrs Skhosana's house accompanied by a
uniformed policeman. The
purpose qf their visit was to retrieve the curtains and bed linen which the
deceased had removed from the
house. Later that night the first appellant put in
a further appearance. On this occasion he was accompanied by Mbele, who at the
time was a member of the police force. The deceased was already in bed. She got
up, dressed, and after wrapping a blanket around
herself, left with the first
appellant and Mbele. They drove off in the first appellant's bakkie. The second
appellant was also a
passenger in the bakkie. It is common cause that later that
same night the deceased was strangled
/5
5 and her weighted body thrown into the Vaal River.,
The
appellants and Mbele are the only persons who can testify to the events
immediately preceding the deceased's death. All three
gave evidence at the
trial. Their respective versions of what occurred differ materially. A brief
resume of their evidence will suffice.
According to Mbele, when they left Mrs
Skhosana's house he asked the first appellant to take him home. He claims he
dozed off in
the bakkie. When he woke up he discovered they were driving in
the
direction of the Vaal Barrage. At a certain point
the first appellant
stopped and told Mbele to get off saying that he "wanted to talk to these two
women". The appellants and the deceased
then drove off leaving Mbele standing at
the roadside. The appellants returned on foot some time later. Mbele accompanied
them to
where the bakkie was parked. He noticed the
/6
6 deceased lying in the back of the bakkie. She was dead. The
first appellant told Mbele to help pick up the deceased. Mbele claims
he refused
to do so. The appellants between them managed to take the deceased's body to the
river's edge. There a rope was tied to
the deceased's neck. The other end of the
rope was tied to a kilometre-stone. The appellants threw the deceased into the
river. Mbele
heaved the stone in after the first appellant had threatened him
with a gun and instructed him to do so. According to Mbele, even
though he
was armed at the time, he was in mortal fear
of the first appellant.
The
first appellant claimed that the deceased had been killed at the instigation and
insistence of the second appellant. She had expressed
the fear that the deceased
might harm her, and had said they must "kill her before she kills us". He
alleged that on
/7
7 the evening of her death the deceased, at Mrs
Skhosana's
house, had threatened to kill both
appellants. In a statement made by him to
Lt
Corbett of the South African police shortly after his
arrest, the
admissibility of which was unsuccessfully
challenged at the trial, the first
appellant said the
following:
"Sy (the second appellant) het gesê sy is bang vir Katrina (the deceased).
Sy het gesê ons moet vir Katrina doodmaak.
Ek en Martha en 'n swartman
Mbele het toe met my kar na Katrina se plek gegaan. Mbele het vir Katrina gaan
roep. Sy het na die kar
gekom en ingeklim. Ons het alvier in kar gery en ek het
toe stilgehou. Ek en Martha het toe uitgeklim en ent van die kar af gaan
praat.
Sy het gesê ons moet vir Katrina doodmaak en haar lyk in die rivier gaan
gooi. Ons het toe weer na die kar gegaan en
gery. Ek het op die Randf onteinpad
stilgehou en ek en Martha het groot klippe in die kar se kattebak gelaai. Ek het
toe gery tot
by die brug oor die Vaalrivier op die Parys pad. Daar het ek
stilgehou. Ek en Martha het uigeklim. Ek het vir Katrina geroep. Sy
het gekom.
Mbele het by die kar gebly. Dit was ongeveer middernag. Ek en
Martha
/8
8
het vir Katrina vasgegryp en ek het haar met 'n stuk tou wat ek vir die doel
saam met my gehad het, verwurg. Ek het haar bly verwurg
tot sy dood was. Ons het
toe die klippe aan haar vasgemaak. Martha het Katrina sê bloes, romp en
skoene uitgetrek het dit vir
haar gevat."
At the
trial, while admitting that he participated in
the killing of the deceased,
the first appellant
deviated from his statement in a number of
material
respects. The most important departure related to his
denial in
evidence that he alone had strangled the
deceased. He claimed that he and the
second
appellant had tied a rope around the deceased's neck and had then both
proceeded to strangle her, this having occurred on the advice
of Mbele. He
persisted throughout that the second appellant had influenced him and caused him
to act as he did. In his own words,
"Everything that I did I was told or
directed by her, No 2 accused."
/9
9
The second appellant made a statement to Capt
de
Beer shortly after her arrest. The admissibility of
the statement was not
contested at the trial.
Concerning the events which occurred after she left
Mrs
Skhosana's house she said the following:
"Ons het toe gery na die Ou Goue Hoofweg. Jerimiah (the first appellant) het nie
gesê waarheen hy gaan nie. Buite Evaton het
ons by die Ou Goue Hoofweg
stilgehou, Jerimiah het bestuur. Jerimiah het alleen uitgeklim en met 'n klip so
groot soos twee saakdossiere
teruggekeer. Ek het vir Jerimiah gevra wat hy met
die klip gaan maak. Hy het net geantwoord dat hy al baie moeilikheid (gehad het)
met Katrina (the deceased), op daardie stadium was Katrina dood kalm. Ons het
weer verder in die rigting van Vanderbijlpark gery.
By bome het Jerimiah
stilgehou, Jerimiah en die polisieman het in die dcnker uitgeklim, Jerimiah het
aan Katrina gesê om uit
te klim. Ek het in die motor bly sit. Die drie het
toe tussen die bome ingeloop. Die polisieman het Katrina se linkerarm vasgehou
en Jerimiah het haar regterarm vasgehou. Katrina het baie gehuil maar haar nie
baie verset nie. Jerimiah het, nadat sy uitgeklim
het die klip langs die kar
neergesit. Na ongeveer 30 minute het Jerimiah en die polisieman
teruggekeer.
/10
10
Jerimiah en die polisieman het weer na die bome teruggekeer, Jerimiah het die
klip gedra. Na ongeveer 15 minute het hulle weer teruggekeer.
Jerimiah het die
klere wat Katrina aangehad het by hom gehad. Ek het vir Katrina nie gesien nie.
Jerimiah het aan my gevra of ek
die klere wil hê. Ek het aan hom
gesê dat dit te groot is."
By and large the
second appellant stuck to this version
when giving evidence at the trial,
although certain
discrepancies and improbabilities emerged from
her
evidence during the course of cross-examination.
It will be convenient to consider the second
appellant's appeal against her conviction first. The
reasons for convicting the second appellant were
expressed as follows by the judge a
quo
in his
judgment:
"The majority of the court holds the view that in the light of the evidence, as
I have summarised it, that no 2 accused's presence
throughout all the material
times, her participation in all the material activities, her sharing in the
spoils, the clothing of the
deceased, those facts together with
the
/11
11
evidence as it was given and mindful of the dangers of the evidence of Mbele and
of the evidence of no 1 accused, that nonetheless
it has been established beyond
reasonable doubt that accused no 2 was a party to a common purpose to murder the
deceased and must
therefore be found
guilty."
On her own evidence the
second appellant
could not be convicted of any offence. Her mere
presence at or near the
scene of the deceased's death
is in itself insufficient to establish that she
was
party to a common purpose to kill the deceased. To
say that she shared
in the spoils because the
deceased's clothes were offered to her by the
first
appellant is to overstate the position. Her guilt can
only be
established by the acceptance of the evidence
of Mbele and the first
appellant concerning her
involvement, and the rejection of her own evidence as
not reasonably
possibly true. Mbele was found to be an
unreliable witness on whose
uncorroborated testimony it
/12
12
would be dangerous to convict anyone. He was an accomplice to boot, with a
motive to implicate others falsely. He clearly tried to
exculpate himself
throughout. Certain aspects of his evidence were inherently improbable and
unworthy of belief. In my view no reliance
can be placed on any material aspect
of his evidence. It is no wonder that the trial judge refused to grant him a
discharge from
prosecution at the end of the trial.
The first appellant was
found to be "an evasive, ,slippery, unreliable and false witness". He appears to
be a man with a strong and
forceful personality. On his own evidence he was not
one to take instructions from a woman. This renders his evidence that the second
appellant was the planner, instigator and driving force behind the deceased's
death, and that it was she who persuaded and virtually
/13
13 obliged him to act as he did, inherently improbable.
Apart from other shortcomings in his evidence there is the material discrepancy,
previously alluded to, whether the second appellant assisted him in strangling
the deceased, or whether he did so alone. The first
appellant's evidence,
insofar as he sought to implicate the second appellant, is clearly not worthy of
credence, and falls to be
rejected. Both Mbele and the first appellant were such
poor witnesses that the evidence of one could not serve to corroborate
the
other.
Despite the fact that the second appellant was found not to be
a "particularly impressive" witness, and despite other shortcomings
in her
evidence, there was no justification for rejecting her evidence as not
reasonably possibly true. One can even go so far as
to say that her version of
what
/14
14 occurred is probably true. It is certainly inherently
more probable than the versions put forward by Mbele and the first appellant.
The probabilities point strongly to the active participation of the two men,
Mbele and the first appellant, in the killing of the
deceased, rather than to
any involvement on the part of the second appellant.
In the result the second
appellant's appeal against her conviction must succeed.
I turn now to
consider the first appellant's appeal against the finding that there were no
extenuating circumstances present in his
case. The onus was on him to establish
the existence of such circumstances on the requisite balance of probabilities.
It has repeatedly
been emphasized that in relation to such a finding this
Court's powers on appeal are circumscribed. It can only interfere
/15
15 with the trial court's finding if it is vitiated by
misdirection or irregularity, or the conclusion reached was one to which no
reasonable court could have come.
Counsel for the first appellant referred to
four factors which he contended either individually or cumulatively amounted to
extenuation.
The first related to the deceased's alleged threat to kill the
appellants, and the first appellant's claim that he had acted throughout
subject
to the influence and persuasion of the second appellant. The only person who
testified to the alleged threat was the first
appellaht. On his evidence it must
have been uttered in the presence and hearing of Mrs Skhosana. She never
testified thereto, nor
was she cross-examined thereon. The evidence in fact
indicates that the deceased still loved the first appellant, despite the way
he
had treated her. The probabilities are
/16
16 against her having threatened the appellants. The first
appellant's unconfirmed evidence that she did so cannot be accepted. The
further
contention that the first appellant acted under the influence of the second
appellant, which was the foundation of the first
appellant's case in the court a
quo
, was rejected by the trial court as not in keeping with the first
appellant's personality and the overwhelming probabilities. It
has not been
shown that the trial court misdirected itself in any way in coming to this
conclusion.
The second factor advanced was the deceased's alleged infidelity.
Assuming she had been unfaithful (a matter open to doubt), her infidelity
occurred after the first appellant had already commenced his relationship with
the second appellant. What is, however, of greater
significance is the fact that
it
/17
17 was never at any stage contended by the first appellant
in evidence that the deceased's infidelity caused him to act as he did,
nor do
the probabilities suggest this to have been the case.
The third consideration
mentioned was that the first appellant had smoked dagga earlier on the day in
guestion. This was according
to the second appellant - the first appellant's own
evidence in this regard was extremely vague and unconvincing. The trial court
held that the first appellant had failed to establish that any dagga he had
smoked had influenced his conduct. This finding cannot
be faulted, particularly
when regard is had to the planned and calculated way in which the first
appellant acted.
Finally, it was argued that the first appellant had been
angered by the removal from his house of the curtains and bed linen. Even
assuming
/18
18 that he was angry initially, the items concerned were
returned to him, and it is unlikely that he would have remained angry
thereafter,
or that his anger would have caused him to kill the deceased. Once
again the first appellant himself never claimed this to have been
a reason for
his killing the deceased.
None of the factors mentioned, individually or
cumulatively, constitute extentuating circumstances in the present matter for
the reasons
given. Nor are there any other considerations that appear from the
record which can serve to diminish the first appellant's moral
blameworthiness.
The trial court has not been shown to have misdirected itself in any way, and it
certainly cannot be said that its
conclusion was one to which no reasonable
court could have come. In the result the first appellant's appeal must fail.
/19
19
The following order is made:
(a)
The appeal of the first
appellant is dismissed.
(b)
The appeal of the
second appellant succeeds, and her conviction and sentence are set
aside.
J W SMALBERGER JUDGE OF APPEAL
VIVIER, JA )
) CONCUR
STEYN, JA )