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[1988] ZASCA 125
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S v Tsawane and Another (560/87) [1988] ZASCA 125; [1989] 1 All SA 423 (A) (30 September 1988)
1.
560/87 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
JOSIAH TSAWANE
.. FIRST
APPELLANT
DANIEL MALEKA
SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM
: CORBETT, BOTHA, VAN HEERDEN, STEYN JJA e_t
VIJLOEN AJA
HEARD
: 2 SEPTEMBER 1988
DELIVERED
: 30 SEPTEMBER 1988
JUDGMENT
VILJOEN
AJA
On the night of 31 August 1985 and at
Sebokeng,
2/...
2. Vanderbijlpark, Velaphi Philemon Letsele, a security
policeman (hereinafter referred to as the deceased), smartly dressed in a
Carducci suit and a pair of CD-shoes, visited the shebeen of one Hlapane to have
a few drinks with a friend of his whose name and
identity were never revealed.
The two appellants who were also having drinks at the shebeen became aware of
the presence of the deceased.
After a brief discussion between the two of them
the second appellant stood up from where he had been sitting next to the first
appellant,
went up to the deceased, addressed him by remarking: "You are a
policeman. You arrest Cosas. You dont belong here," took one of the
bottles of
beer in front of the deceased and his companion and either squirted or poured it
over the deceased. The deceased and his
companion, having obviously decided that
discretion was the better part of valour, got up and left the shebeen. As they
were leaving
the first appellant picked up an empty beer bottle from the floor
and broke it on the head of the deceased's companion
3/...
3. whereupon the latter f led , with the two appellants in
hot pursuit. After having chased him for some distance they returned and
followed the deceased who was making his own way presumably in the direction of
his home. When the deceased looked back to see who
was pursuing him the second
appellant struck him a blow on the forehead with a small axe which caused him to
fall down whereupon
the first appellant closed in and delivered two stab blows
with a knife to the chest of the deceased. While the deceased lay there
fatally
wounded the first appellant removed his suit and the second appellant took off
his shoes. The two then walked off. The deceased
was removed to hospital but
died on the way there. Both appellants were convicted on a charge of having
murdered the deceased as
well as on a charge of robbery with aggravating
circumstances. On the murder charge, the Court held that in neither accused's
case
did extenuating circumstances exist and notwithstanding a finding that the
first appellant was under the age of 18 years at the time
of the commission
of
4/...
4. the offence, the learned trial Judge sentenced both the
appellants to death, exercising, in the case of the first appellant, his
discretion in terms of s 277(2) of the Criminal Procedure Act 51 of 1977
(hereinafter referred to as the Act). Thereafter the learned
Judge allowed an
application in terms of s 316(3) of the Act for the leading of further evidence
in extenuation. Such evidence was
heard by the Court a
quo
and forms part
of the record before us. The learned Judge also granted leave to the appellants
to appeal to this Court against sentence.
In the case of second appellant this
comprehended the finding that there were no extenuating circumstances. This
appeal has therefore
to be decided on the record as supplemented by the further
evidence. By reason of this further evidence, which is material, this
Court is
now at large to determine for itself the existence or non-existence of
extenuating circumstances.
During the trial on the merits the grandmother of
5/...
5. the first appellant gave evidence on his behalf. She
deposed that she was present when her daughter gave birth to the first
appellant,
according to her, in May 1969. The date of his birth was entered on a
house permit which was issued to her shortly after the birth.
She undertook to
bring this permit to Court.
On behalf of the second appellant his mother testified. She handed in an
abridged birth certificate which reflected the date of the
second appellant's
birth as 9 October 1966.
At the stage when the existence or otherwise of extenuating circumstances was
enquired into the grandmother of the first appellant
was called to produce the
house permit which she had undertaken to bring to Court, which she duly did. On
this permit only the year
of birth of the first appellant, to wit 1969, is
reflected. On the issue of the age
6/...
6.
of the first appellant a report by a radiologist was
handed
in by consent. According to this report, which was prepared
on 15 May 1986, the radiologist, Dr De Villiers came to the
following
conclusion:
"Dit blyk dus uit bogenoemde waarnemings dat
hierdie pasient ouer is as 16 jaar maar dat dit
baie moeilik is om te bepaal of hierdie pasient net
oor of net onder 18
jarige ouderdom is."
For the second appellant his father testified on
his
behalf that his son had passed standard 3 at school. The
second appellant, he
said, has an elder brother, Tommy, who
was arrested by the deceased on a
charge of having committed
some political offence ("dit het iets te doen met
die
politiek"), was convicted and sentenced to serve a term of
imprisonment.
In the Court's judgment on extenuation the learned trial Judge referred to Dr
De Villiers' report and remarked that the first appellant
was probably under the
age of 18 years on the date of the commission of the offences, The second
appellant, the Court correctly found,
was 18 years and
7/...
7. 10 months old on that date. The Court did not agree with
counsel that the cumulative effect of the liquor they had consumed and
the
youthfulness of the two appellants constituted extenuating circumstances. It
held that the appellants' speech was normal and
their movements when they chased
the deceased's companion, when they went after the deceased himself, and the
deftness with which
they overpowered and robbed him of his clothes, were not the
actions of people whose faculties had been impaired by the consumption
of
liquor. The Court rejected the argument that the motive of the second appellant
"synde om wraak te neem op 'n polisiebeampte wat
in die uitoefening van sy plig
beskuldigde 2 gearresteer het" constituted extenuation. On the contrary, said
the learned Judge, it
was an aggravating feature:
"Dit behoef, myns insiens, geen verdere betoog dat dié feit, verre
daarvan dat dit as versagting aangemerk kan word, eerder
as verswarend aangemerk
kan word. Soos dit is, is dit algemene kennis dat polisie 'n moeilike taak het
om uit te voer in
8/...
8.
hierdie ongelukkige tyd waarin ons lewe. Hulle is die skyf onder andere van
roekelose jeugdiges wat dikwels die reg in eie hande
neem en dit is presies wat
beskuldigde nr. 2 daardie aand gedoen het. Myns insiens was die gemoedstoestand
van hom dié van
'n persoon wat wraak wou neem op 'n polisiebeampte en is
sy daad, myns insiens, meer laakbaar as wat dit andersins moontlik die geval
sou
gewees het."
In the case of neither appellant was
extenuation found.
Thereafter the two appellants' previous convictions were proved and counsel
for the appellants addressed the Court on mitigation of
sentence. In turn
counsel for the State requested the Court to exercise its discretion in terms of
s 277(2) of the Act and to impose
the death sentence on the first appellant on
the murder charge. To this request the Court a
quo
acceded as appears
from the judgment which reads:
"Die Hof is geroepe om by 'n oorweging van 'n gepaste
9/...
9.
vonnis die volgende faktore pertinent in aanmerking te neem benewens ander
relevante faktore, waarna ook verwys is, naamlik die soort
van persoon wat die
Hof voor hom het, sy persoonlike omstandighede en alles wat in sy guns kan tel
of teen hom kan tel. Dan moet
die Hof in gedagte hou die aard van die misdaad en
die wyse waarop die misdaad gepleeg is en laastens die belange van die
gemeenskap.
Wat die twee beskuldigdes betref, is dit vir die Hof duidelik dat veral wat
beskuldigde nr. 1 betref, hy 'n persoon is wat net in
een rigting afgestuur het
in sy hele lewe, naamlik dié van 'n persoon wat geen ontsag vir ander
mense het nie. As in gedagte
gehou word dat hy twee. vorige veroordelings gehad
het voordat hy hom aan hierdie moord en roof skuldig gemaak het, so lank terug
as Februarie en Maart 1984 waarin 'n mes gebruik is, en as in gedagte gehou word
dat toe hy in November 1985 in die sorg van sy moeder
was met 'n aanklag van
moord en roof met verswarende omstandighede bo sy hoof, gaan pleeg hy weer h
roof en gebruik weer h skerp
voorwerp waarmee sy slagoffer 'n steekwond
toegedien word ooreenkomstig die dokumente wat ingedien is, bo aan sy
linkerskouer op
'n kwesbare plek van sy liggaam. Dit is, myns insiens, 'n
aanduiding van die tipe van persoon wat die Hof voor hom het en waarvan
word die
klaer in Streekhof Saak 764/85 beroof? Van h leerbaadjie, sy hemp, sy skoene en
h horlosie en R20,00 kontant.
Beskuldigde nr. 2 het h aanklag van moord en roof oor sy kop en wat doen hy?
Hy gaan saam met beskuldigde nr. 1 en neem deel aan hierdie
aanranding en roof
in hierdie Streekhof saak
10/...
10.
764/85. Ek weet nie wanneer hy uit die tronk
uitgekom het nie, want hy het agtien maande
gevangenisstraf gekry,
terwyl beskuldigde nr. 1
drie jaar gekry het.
Daar is dus ten spyte van 'n dapper poging aan die kant van mnr
Landman
, namens hulle, eintlik niks te sê vir die twee beskuldigdes
as persoon en of hulle enigsins 'n verantwoordelike plek in die
samelewing kan
inneem nie.
Wat die misdaad betref, wil die Hof volstaan deur daarop te wys dat roof en
moord ernstige misdade is, maar dat moord die ernstigste
misdaad is wat 'n mens
kan pleeg omdat die Skepper vir ons as mense net een lewe gegee het en daardie
lewe is die kosbaarste besitting
wat enige mens het en die wyse waarop hierdie
moord gepleeg is, naamlik n beplande gewelddadige wyse, deur die gebruik van 'n
byl
deur beskuldigde nr. 2 en beskuldigde nr. 1 weer 'n mes, kan tog sekerlik
nie geduld word in enige beskaafde samelewing nie.
Die belange van die gemeenskap, myns insiens, soos aangedui deur advokaat
Leonard
namens die Staat vereis dat die swaarste straf in hierdie
besondere geval op beide beskuldigdes opgelê moet word.
Die jeugdigheid van beskuldigde nr. 1 en die deernis wat dit wek by die Hof
omdat ervaring vir ons synde die regter en twee assessore
geleer het dat 'n jong
mens sekerlik nie daardie rypheid bereik het wat uit 'n ouer persoon normaalweg
blyk nie, dit verdwyn soos
mis voor die son wanneer gekyk word na die
persoonlikheid van beskuldigde nr. 1. Hy is 'n
11/...
11.
wanaangepaste wrede soort van persoon wat homself betoon het n gevaar vir die
samelewing te wees en dit is volgens die Hof se mening
so ernstig dat sy
jeugdigheid nie daarteen in verrekening gebring kan word nie.
Wat die tweede klagte betref word beide beskuldigdes tot tien jaar
gevangenisstraf gevonnis, veral omdat dit so veragtelik is waar
'n persoon
sterwende op die grond lê, hy van 'n duur pak klere en nuwe skoene beroof
word en die vernedering nog moet ondergaan
dat hy half nakend, net in 'n hemp en
'n onderbroek en sokkies na 'n hospitaal vervoer moet word en ook in die
besonder wanneer dit
blyk dat dit 'n herhaling is van wat gebeur het in die
Streekhof saak nr. 764/85 waaraan hulle albei deelgeneem het.
Wat klagte 1 betref, is die Hof van mening dat ten spyte daarvan dat hy 'n
diskresionêre bevoegdheid het, hy sal faal as hy
sy diskresie ten gunste
van beskuldigde nr. 1 uitoefen en 'n ander straf as die hoogste straf
oplê.
Gevolglik word beskuldigdes nrs. 1 en 2 op klagte 1 beide die doodstraf
opgelê."
Subsequent to an
application for leave to appeal
having been prepared by counsel who originally appeared for
the two
appellants at the trial, but before the application
was heard, the services
of another counsel were obtained who
advised that an application for the
leading of further
12/...
12. evidence should, in conjunction with the application
for leave to appeal, be made. Such an application was duly prepared in support
of which a number of affidavits, including a probation officer's report, were
filed. It was not the appellants' contention that such
evidence was not
available during the trial. The ground advanced for the failure to call such
evidence was the remissness of counsel
who originally appeared to place such
evidence before the trial Court. In the founding affidavit sworn to by the
appellants' attorney,
the nature of the evidence which had not been led and
which was sought to be adduced was described as follows:
"The important evidence that needed to be placed before the trial court were
that of the applicants' maturity, employment records
and details with regard
hereto, scholastic achievements and performances, family circumstances and
emotional development."
It appears
from the record that prior to the
13/...
13.
hearing of the application for leave to appeal, the
learned
Judge a
quo
had granted the appellants leave to
produce
further evidence in extenuation and, in first appellant's
case,
mitigation of sentence on the murder charge. At the
time the learned Judge did not give a considered judgment on
the
application for such leave. His reasons for having
granted leave appears,
however, from the judgment he
delivered after having heard such further
evidence and having
considered the addresses on the application for leave
to
appeal, as follows:
"By way of introduction I am of the view that it should be placed on record that
when leave was granted to lead further evidence
in this matter, I was satisfied
and came to the conclusion from a reading of the papers before me, firstly that
a reasonable explanation
was given why the evidence which was eventually
tendered before me, was not tendered in the Court a
quo
; secondly, that
such evidence is of such a nature that if believed, it could reasonably possibly
lead to a different conclusion than
the one that we have arrived at; and lastly,
that the evidence as appeared from the affidavits before me, in actual fact was
such
that it would probably be accepted by the Appeal Court. As a result of that
decision, the evidence was tendered verbally in Court
and after the
conclusion
14/...
14.
of the evidence, I now have to deal with the application for leave to appeal by
the first appellant against the death sentence imposed
upon him on 23 September
1987 in the Vereeniging Circuit Court by myself, sitting with two Learned
Assessors, and by the Second Appellant
against his conviction of murder without
extenuating circumstances as well as against the death sentence which was
imposed upon him
on the same occasion."
In his
judgment on the application for leave to appeal the learned trial Judge remarked
that "on the record as it now stands, it cannot
be ruled out that a reasonable
possibility does exist that another Court might come to a different conclusion
on the question of
extenuation and consequently might possibly decide that a
different sentence ought to be imposed." The learned Judge consequently
granted
leave to both the appellants to appeal against the death sentence which had been
imposed upon them.
Whether the learned Judge was correct in granting
the appellant leave under s 316(3) of the Act to adduce
15/...
15. further evidence (cf
S v Swanepoel
1983(1) SA
434(A) 439 D -H) is not for this Court to decide. The result is nevertheless
gratifying because, to echo the words of
my Brother Corbett in
S v Ngoma
1984(3) SA 666(A) 675 E, this is the type of case in which the trial Court could
have profited from a report by a probation officer.
In terms of s 316(3) the Court which hears the further evidence, which may
also include evidence in rebuttal by the prosecution and
evidence which the
Court may decide to call, is enjoined simply to receive such evidence for the
purpose of passing it on to the
court of appeal. There is no express provision
that the Court hearing such evidence is required to comment thereon. I am of the
view,
nevertheless, that even though the Judge hearing the evidence is not
competent to set aside the verdict or sentence of the trial
Court (see
S v
Masinda
1981(3) SA 1157(A) 1164 in
fine
-1165) he would be entitled
to express an opinion on the issue
16/...
16.
or issues affected by the new evidence and to furnish the
court of appeal with the reasons for such opinion, including (which is very
important) his comments on the demeanour of the witnesses. Such opinion and
comment can be of great assistance to the court of appeal.
In the present case the supplementary evidence has (apart from the issue of
the effect of liquor on the appellants) fortunately raised
no factual disputes.
The new evidence related solely to the background and the personal circumstances
of the two appellants in respect
of which there was almost a complete dearth of
information before the trial Court. The only factual dispute related, as I have
indicated
above, to the state of intoxication of the two appellants when they
committed the offences concerned. In this respect the probation
officer stated
in her report that "it is apparent that Daniel and his friend committed this
murder
17/...
17. under the influence of alcohol" - a statement which
conflicts with the finding of the trial Court. To this aspect I shall return
in
due course. In view of the fact that the Court receiving the further evidence in
terms of s 316(3) is, subject to what I have
said above, a mere conduit pipe and
is not competent to consider and resolve the disputed issues raised by the
further evidence de
novo
or to review the trial Court's decision on the
supplemented evidence (see
Masinda's
case supra 1165 C - F) it is, I
consider, the function of this Court to consider and decide the matter in the
light of the new evidence
with due regard to whatever comments and opinions the
Judge may have made on the evidence received by him.
This being the approach which in my view should be adopted, I now turn to the
facts of the matter.
The trial Court found that the first appellant had
18/...
18. not reached the age of 18 years on the date of the
commission of the offences concerned. A perusal of the trial Court's judgment
on
extenuation creates the impression that the Court, relying on the radiologist's
report, found that the first appellant was on
the border line between 18 and 19
years. His mother Martha Tsawane subsequently deposed to his having been born on
13 May 1969 which
made him only 16 years and 3 months old on 31 August 1985
being the date of the commission of the offences in question. This is a
very
young age.The younger an accused is, the more desirable it is to have evidence
of his background, upbringing, the level of his
intelligence and his mental
faculties. See
S v Mohlobane
1969(1) SA 561(A) 567G - 568B and
S v
Ngoma supra
674C.
Martha also gave evidence relating to the upbringing of the first appellant,
his living conditions, his schooling, his personality
and generally about his
family life.The father of the second appellant, Petrus Maleka, gave
19/...
19.
similar evidence regarding the second appellant. Elizabeth
Thebe, a social worker, gave evidence in regard to the back-ground of the
appellants, their living conditions, their scholastic achievements, the locality
where they grew up and the extent of their families.
From Martha's evidence it
appears that the first appellant was one of four children who lived in a
four-roomed house in Sebokeng
comprising a kitchen, dining room and two
bedrooms. In addition to her four children her mother, grandmother, aunt and
four brothers
lived in the house. The first appellant's father died in 1974. As
a result of the fact that Martha worked away from Sebokeng she
used to come home
only once a month over a week-end. During 1981 she started to work at Vaal
Potteries in Meyerton which work necessitated
her leaving home at 5h00 every
morning to return at 21h00 at night as a result of which her children were cared
for by her mother
and grandmother. The first appellant started school at the
age
20/...
20.
of 7 years but due to financial circumstances left school in
standard 4. While at school he was disciplined and not aggressive. Martha
noticed that after her son left school his temperament changed. He became
increasingly frustrated because he was unable to find employment.
He was easily
influenced by his friends who were usually older and bigger than himself and who
indulged in criminal activities. In
her report the probation officer emphasized
the fact that the first appellant never knew his father during his upbringing
and thus
had no model in life. She stated that his mother, owing to
circumstances, never assumed full responsibility over her children. The
fact
that the first appellant made friends with older individuals can be attributed
to his need for a sense of security. Josiah (the
first appellant) was never
orientated towards religion, she stated, and on leaving school he joined peer
group members who introduced
him to "shebeen life and sleep-outs." This was
coupled with a lack of discipline from home, she concluded her report.
21/...
21.
Petrus Maleka, the father of the second appellant, testified
that his family, comprising himself, his wife and six children lived
in a
four-roomed house. His son left school in standard 5 because of financial
difficulties. His children were cared for by his eldest
sister Grace while he
and his wife were at work and he only saw his children in the evenings when he
came home from work and on Sundays.
The second appellant himself stated that
after he left school in 1984 he worked as a labourer for a subcontractor at
Escom for approximately
8 months after which he was retrenched and the only
other work he could find was casual work over the weekends when he worked as
a
gardener. The probation officer's evaluation of the second appellant read as
follows:
"1. Daniel spent his leisure time at
shebeens.
2. He never had a responsible father figure to discipline him.
3. It is apparent that Daniel and his friend committed this murder under the
influence of
22/...
22.
alcohol and influence from (of?) one
another."
As I have said, the learned Judge was not prepared to accept the third
proposition stated above. The State witnesses said that the
two appellants "die
aand gedrink was maar nie dronk nie." Fact is, they did consume some liquor and
this might have affected, and
probably did affect, their sense of
responsibility. They were both still youngsters. The first appellant was only 16
years of age.
It is true that he appears to be a hard-bitten sixteen-year-old
but his cynical outlook on life is probably due to all the deprivations
he had
to suffer in his young life. The second appellant was eighteen years and ten
months old on the date of the commission of the
offences. His background is very
similar to that of the first appellant. In his favour is a slightly better
record than that of the
first appellant. Add to that the motive which he had on
account of his brother Tommy having been arrested by the deceased. The Court
a
quo
23/...
23.
regarded this as an aggravating feature. His attitude appears
to have been motivated by a grievance against the deceased for having
arrested
his brother. Misguided though it might have been, this grievance which he
harboured probably deeply affected his immature
mind and in my view it did serve
to reduce his moral culpability. Blood is, after all, thicker than water.
Regard being had to all the circumstances I have mentioned - the youthfulness
of both appellants, the influence of liquor, their personal
circumstances and
the state of mind of the second appellant, I have come to the conclusion that
extenuating circumstances were present.
In any event, in the case of first
appellant, I would not favour the imposition of the death sentence. Taking into
account the aggravating
features pointed out by the learned trial Judge, among
which the seriousness of the offences weighs heavily, and the extenuating
factors which I have found, a
24/ ...
24.
proper sentence to impose on the two appellants would, in my
view, be one of twelve years imprisonment to be served by each appellant,
the
sentence of ten years imposed on the robbery charge to run concurrently with the
sentence of twelve years.
The appeals of both appellants succeed. The death sentence imposed on each
appellant is set aside and each is sentenced to imprisonment
for a period of
twelve years, the sentence of ten years imposed on the robbery charge to run
concurrently with the twelve years sentence
imposed in respect of the murder
charge.
ACTING JUDGE OF APPEAL
CORBETT JA)
BOTHA JA) _ concur
VAN HEERDEN JA) concur
STEYN JA)