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1985
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[1985] ZASCA 51
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S v Majola (70/85) [1985] ZASCA 51 (29 May 1985)
I
N THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVI
SION) In
the matter between:
FUNUYISE MAJOLA
Appellant
AND
THE S
T
ATE
Respondent
Coram
: CILLIé, VILJOEN et HEFER, JJ A
Heard
: 14 May 1985
Delivered
: 29 May 1985
JUDGMENT
CILLIé
, J A :
During the evening of 24 January 1984 the
appellant killed the deceased in his hut in the Ndukende Lo-
cation near Kranskop. He removed meat, half a loaf of bread,
some .... / 2
2
some stamped mealies and a radio set from the hut. At
his trial in the
Natal Provincial Division of the Supreme
Court about nine months later, he
was convicted of murder
without extenuating circumstances and of robbery
with
aggravating circumstances. On the first conviction he
was sentenced
to death and on the second to seven years
imprisonment. With the leave of this Court he now appeals
against the finding of the trial Court that there were no
extenuating circumstances and against the sentence of
death.
In order to decide whether this Court should
come to his assistance it is necessary to relate shortly
the evidence given at his trial and then to examine all the
facts and circumstances relevant to the presence of
extenuating .... / 3
3
extenuating circumstances. In this examination special attention will be
given to the following suggested extenuating circumstances:
the effect of the
intoxicating liquor drunk by the appellant prior to the commission of the crime,
the absence of premeditation in
the perpetration of the crime and the personal
circumstances of the appellant. Although the onus rested upon the appellant to
prove
the existence of extenuating circumstances on a balance of probability, he
did not testify during the investigation into the existence
of such
circumstances. Nevertheless the trial Court was and this Court is obliged to
examine all the evidence, including that given
by him during the investigation
into his guilt, for the presence of any factor
which could be extenuating.
The .... / 4
4
The State case was that the appellant and
his son who was ten years old,
had visited two kraals in
the neighbourhood of their own dwelling on the
afternoon
of the murder. At both places, so it was said, he had
drunk intoxicating liquor. They then went to the hut of
the deceased; a fragile old man who apparently lived alone.
The appellant asked the deceased for money and when he
learned that the old man had none, he assaulted him and
removed the articles already mentioned. At the post mortem
examination it was established that the cause of death was
brain damage caused by a "fairly full" blow with a heavy
object, probably a knobkerrie, that two more blows were
struck and that death was "fairly instantaneous". The
appellant's denial that he had visited the three huts and
had .... / 5
5
had assaulted the deceased was correctly rejected by the trial Court in view
of clear and acceptable evidence by the police that the
deceased's radio set was
found in the appellant's possession, by the appellant's son that he had
accompanied his father to all three
huts, and by the owner of the first two huts
that he with his son had been to their huts and that he had drunk intoxicating
liquor
with each of them.
When the appellant and his son arrived at the kraal of Yo Mpungose, Yo had
one carton of beer; he poured some beer into a mug for
the appellant who
apparently shared it with someone else. As to the appellant's condition when he
left Yo's kraal, Yo testified as
follows:
"He was under the influence but not so much because you could understand what
he was saying ....
He .... / 6
6
He walked straight .... he just drank once from that mug."
The appellant and his son also visited Mpiyakhe Zulu at his kraal. It was
about six o'clock in. the evening. According to Mpiyakhe
his neighbour, the
deceased, passed by a short while before on his way to his own dwelling place.
About the appellant's drinking
he said the following:
"No, we just drank a little bit .... That stuff that's like water .... It was
that stuff that the Bantu people make. Gavini .... it
was just a nip. We both
drank from it but he didn't finish it .... He paid two bob for it ... I got it
from a lady who was passing
by selling it."
When asked about the appellant's sobriety his reply was:
"No, he was normal. I did not see anything on him to indicate that he was
drunk."
During cross-examination it was put to this witness that
the .... / 7
7
the appellant would deny he had ever drunk alcoholic liquor with him, but the
witness affirmed his previous statements. The appellant
later testified that he
had not visited Mpiyakhe's kraal on that afternoon. As he did not give evidence
about extenuating circumstances
the Court a quo was never told by the appellant
whether he had anything to drink that afternoon, and if he had, how it had
affected
him. On the evidence before the trial Court it cannnot be said that he
was affected by liquor to such an extent that his condition
constituted an
extenuating circumstance.
On the question whether this was a premeditated crime the evidence of the
appellant's son was the following. On the way from Mpiyakhe's
kraal his father
said
to him that he was going to the deceased to look for money.
At .... / 8
8,
At the hut his father asked the deceased for money but the
old man said that he had none. The son's evidence continued:
"Mkhawanazi (the deceased) said to my father he must forgive him because he
has no money."
Thereupon, he says, his father gave him his (the father's) radio set to hold,
went into the room and hit the deceased with the knobkerrie
he was carrying with
him. His father came out of the hut with some meat, half a loaf of bread, stamp
mealies and the deceased's radio
set. There is no further evidence about the
commission of the murder and the appellant never testified that his actions were
not
premeditated, or that he did not think the frail old man would be killed by
the severe blows with the knobkerrie, or that he acted
on a, sudden impulse, or that he lost control of himself when
the .... / 9
9
the deceased said he had no money. A consideration of the stated facts does
not lead me to the conclusion that they constitute an
extenuating
circumstance.
It was argued in the Court a quo and here that the appellant's personal
affairs should also be taken into account when his moral blameworthiness
was
being considered. He was a married man with six children; the oldest was 10
years and the youngest less than a year. His wife
had deserted him and was
living with another man in a different area. At the time of the murder he was
out of work. It was contended
that the need of the children had influenced the
appellant in committing the robbery and the murder. The trial Judge deals with
this
argument as follows:
"The only piece of evidence which really points in that direction is the fact
that the Accused, apart
from .... / 10
10
from the radio, also took half a loaf of bread and some other groceries from
the deceased's house. As against that there is the evidence
of Bheki (the son)
that the accused when he went towards the deceased's house said that he was
going to look for money. There is
no evidence before the Court that the children
were in indigent circumstances but even if they were in need there is no
evidence
that the need was so pressing that the Accused felt himself compelled
to commit a robbery to provide for their need. It is not without
relevance to
point out that the Accused made no effort to borrow money from Zulu or from
Mpungose, and no questions were put to Bheki
to indicate that they were in
urgent need of food. If the need to provide for his children was uppermost in
his mind then one would
have expected of the Accused that he would have
mentioned that fact to Mpungose and Zulu or that he would have asked them for
assistance."
I agree with the trial Court's finding that the appellant's
personal
circumstances did not constitute extenuation. The
particular circumstances
may evoke pity for the appellant,
but he has not shown that they had
influenced him in the
commission .... / 11
11.
commission of the crime, or, if they had influenced him perhaps
subconsciously, that that would reduce his moral blameworthiness in
these
circumstances.
The conclusions on these three sets of circumstances do not, however, bring
the investigations to an end. The three sets must, with
any other possible
extenuating factor, be considered together for a final assessment. I should add
that, apart from the three sets
dealt with, no other extenuating factor was
brought to the notice of this Court or found on a close scrutiny of the
evidence. After
a consideration of the three sets of circumstances together, I
am still not convinced that, on a balance of probabilities, there
were
extenuating circumstances present in this case. Therefore
the .... / 12
12
the appeal cannot succeed.
The appeal is dismissed.
P.M. CILLIé, J A
VILJOEN, J A )
concur HEFER, J A )