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1989
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[1989] ZASCA 148
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S v Tabethe (268/1989) [1989] ZASCA 148 (20 November 1989)
LL
Case No 268/1989
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ERIC TABETHE
Appellant
and
THE STATE
Respondent
CORAM
: VAN HEERDEN, MILNE et EKSTEEN JJA
HEARD
: 14 NOVEMBER
1989
DELIVERED
: 20 NOVEMBER 1989
JUDGMENT
VAN HEERDEN JA
:
2.
At approximately 10 p m on 13 November 1987 the body of the late Donald
Steele ("the deceased") was found in Arundel Road, Durban.
His right hand was
grasping a plastic bag containing an item of merchandise and in his left hand
was a crushed Chesterfield cigarette
- a brand smoked by the deceased. One of
his rear trouser pockets was turned inside out. The cause of his death was two
incised wounds
which had penetrated his heart and the upper lobe of his left
lung.
Subsequently the appellant, an adult male,
was arraigned in the Durban and Coast Local Division on charges of murdering
and robbing the deceased. He was convicted on the first
count and was found
guilty of attempted robbery on the second count. The trial court found that
there were no extenuating circumstances
and the appellant was consequently
sentenced to death on the first count. With the leave of the trial judge the
present appeal is
directed only against that sentence.
3.
At the trial the appellant admitted that he inflicted the aforesaid wounds.
He averred, however, that he acted in self-defence after
the deceased had
threatened him with a knife. This version was rejected by the trial court which
found that the deceased was unarmed
and that he was taken unawares by the
appellant. The court also found that when stabbing the deceased in his chest,
the appellant
either deliberately intended to kill him or, with foresight of the
likelihood of his death, was reckless as to whether or not that
result
ensued.
The appellant did not testify after being convicted. Nor was any
other evidence led on exten-uating circumstances. Nevertheless it
was submitted
at the trial that the combined effect of two factors constituted extenuation;
viz, intoxication and the absence of
premeditation.
According to the
testimony of a witness for the State, one Mashiyana, a number of men,
including
4. the appellant, were at some sort of shebeen in Malvern during
the afternoon of 13 November 1987. The appellant left the shebeen
at about 8 or
8.30 p m. The trial court accepted Mashiyana's evidence and found that the
appellant was intoxicated at that stage.
It was, however, not prepared to accept
that his intoxication was of such a degree as to cloud his judgment at the time
of the attack
on the deceased.
In regard to the second factor the court found
that having decided to rob the deceased, the
appellant, either followed him
or lay in wait for him.
In the court's view there was consequently not a true
lack of premeditation.
On appeal counsel for the appellant advanced the same
arguments as in the court a
quo
. They are without substance. It is true
that according to Mashiyana the appellant had been drinking from noon on the day
in question
and that he was intoxicated when he left the shebeen. However,
Mashiyana was not asked,
5. and therefore did not say, how much the appellant
had to drink or to what extent he was intoxicated. The appellant had to walk
some distance to reach Arundel Road and it does not appear from the evidence
precisely when the deceased was attacked. All one knows
is that the attack must
have occurred some time after 8 p m and before 10 p m. Hence it is impossible to
conclude that the appellant
must still have been intoxicated when he stabbed the
deceased. And on the assumption that there was some degree of inebriation, it
does not appear as a probability that that condition had a significant bearing
on the appellant's state of mind when he decided to
rob the deceased.
As
regards the submission that the trial court wrongly held that there had been no
premedita-tion, I need say no more than this. One
simply does not know how long
before the attack the appellant formed the intention of robbing the deceased.
Having decided to do
so, he may well have followed the
6. deceased for a
considerable distance before an opportunity for executing his design arrived.
The appellant therefore failed to
show that he acted impulsively in any sense of
the word. The appeal is dismissed.
H.J.O. VAN HEERDEN AR
MILNE JA
CONCUR
EKSTEEN JA