About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1988
>>
[1988] ZASCA 146
|
|
S v Jantjies and Another (199/88) [1988] ZASCA 146 (24 November 1988)
CASE NO 199/88
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION)
In the matter between:
JAMES JANTJIES
FIRST APPELLANT
WILFRED KWETANE
SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM : BOTHA, KUMLEBEN JJA et NICHOLAS AJA
HEARD : 11 NOVEMBER 1988
DELIVERED
: 24 NOVEMBER 1988
JUDGMENT
KUMLEBEN
, JA/...
1.
KUMLEBEN
, JA
At dusk on 9 April 1986 Mr Wilson Mntengwana, who was travelling alone in his
Colt Galant motor car, stopped it on the outskirts of
King William's Town and
gave the two appellants a lift. After he had proceeded a short distance, he was
fatally shot in the head.
The car was driven to Dimbaza in the Ciskei. There the
two appellants buried the
deceased in a shallow grave. They travelled in the stolen car to Welkom,
purchasing petrol with cash they found in it. At Welkom they
attempted to sell a
Ceska pistol, which had belonged to the deceased and was also found in the
car.
The appellants were in due course arrested, and
charged before Jones J and two assessors in the King
William's Town Circuit Local Division of the Supreme Court,
with murder, robbery and unlawful possession of firearms and
ammunition. This appeal is concerned only with the murder
2/...
2. charge. On this count they pleaded not guilty but were
found guilty as charged. The court, having found no extenuation, sentenced
each
to death. It, however, granted first appellant leave to appeal against his
conviction on the ground that the court may have
wrongly held that he was a
party to a preconceived plan to kill and rob the deceased. In the case of second
appellant, he was given
leave to appeal against the sentence imposed and, it
follows, the finding that there were no extenuating circumstances.
The State sought to prove the crucial facts on each
count,
particularly the complicity of the appellants, by
means of certain extra-curial statements, and the pointing
out of objects and places, by each appellant. This entailed a
"trial-within-a-trial", which accounted for the bulk of the
evidence on record. As regards first appellant the State
relied upon: a statement he made to a magistrate, a Mr
Sauerman, on 16 April 1986 at East London; certain statements
3/...
3. made to Major Coetzee at about the same time; and the
pointing out of the Colt motor car and certain other objects to Lieutenant
Landman with accompanying statements. In fact only the admissibility of the
last-mentioned was disputed. To implicate second appellant
the State relied
upon: a statement made on 30 April 1986 at Welkom to a magistrate, Mr Schoeman;
and a similar pointing out with
explanations to Lieutenant Landman. Second
appellant objected to the reception of any of this evidence. The court at the
conclusion
of the "trial-within-a-trial" ruled this evidence to be admissible
and the reasons for doing so are fully set out in the judgment
on the merits.
The correctness of this ruling was not challenged on appeal.
The material portions of the two statements recorded by the magistrates are
as follows:
4/...
4.
Statement of first appellant
"Ek was Woensdag saam met 'n maat. Ons was te King
William's Town. Ons
het daar 'n geleentheid gesoek na
Fort Beaufort. Die oorledene, wie 'n
voertuig bestuur
het, het vir ons stilgehou. Hy wou R3,00 vir die
rit
gehad het. Ons sê ons het geld. Ons klim in kar en
oorledene ry
toe. Terwyl die voertuig ry, sien ek my
maat haal 'n vuurwapen uit. Hy beveel
die oorledene om
stil te hou en uit te klim. Die bestuurder weier om te
stop om uit te klim. Net na die oorledene so gesê het,
het ek 'n skoot hoor afgaan. Ek sien die oorledene se
nek word lam en hy lê eenkant toe. My maat, ROBERT, het
toe die stuur vasgegryp en bestuur. Hy was agter die
oorledene.
Hy het my beveel om die oorledene weg te trek, wat ek
toe gedoen het, want ek was bang. Die oorledene se voet
was nog op petrol
en die motor het vinnig gery. Na ek
bestuurder weggetrek het, het ROBERT oorgeklim en in die
bestuurder se sitplek gaan sit. Hy stop toe die
voertuig en draai dit om. Ons het toe na Dimbaza se
rigting gery. ROBERT stop toe by sy ouerhuis en neem 'n
graaf. Ons is toe weg om oorledene te begrawe.
Ons het oorledene daar in veld begrawe en is weg met die
motor. Ons is na Queenstown met die motor. Daar het
ons petrol in motor gegooi en na Bloemfontein gery. By
die spoorwegstasie het ons die oggend vroeg gekom en toe
daar geslaap. Toe ons wakker word, is ons na Welkom met
die voertuig. Ons het na die lokasie daar gegaan en die
vuurwapen gaan verkoop
Ek was nie bewus ROBERT was bewapen toe ons in motor klim nie. Toe hy wapen
uittrek was ek te bang om hom te
5/...
5.
keer, want hy kon my ook skiet. Ek het hom gehelp die man begrawe omdat ek
bang was hy skiet my. Hy het my nie gedreig om dit te doen
nie maar op pad na
Welkom as ek een van sy sigarette neem dan sê hy ek moet los anders wys hy
my 'n ding wat ek nie van sal
hou nie. Ek wou na Fort Beaufort gaan om daar by
die arbeiders wat na goudmyne gaan aan te sluit, want op King William's Town is
die geleenthede maar skaars om werk op die goudmyne te kry. ROBERT het ook
gesê ons moet daarheen gaan om aan te sluit."
Statement of seco
nd appellant
"Langs die pad het ek 'n Swartman met die naam JAMES
JANTJIES ontmoet. Ek
het toe die vuurwapen aan hom
getoon. Ons het toe besluit om na 'n plek te
gaan waar
ons 'n geleentheid kon kry om met voertuie te ry. Dit
was al
laat die middag gewees toe 'n blou Colt Galant
motorkar stilgehou het. Die
bestuurder van die voertuig
vra toe of ons geld het om vir hom te betaal. Ons
sê
toe vir hom ons het geld. Op daardie stadium het ek en
JAMES
alreeds ooreengekom om iewers 'n voertuig te kry om
mee Welkom toe te kom om
werk te kom soek. Die
bestuurder van die voertuig het toe wel vir ons
'n
geleentheid gegee. Ons is toe wel in die voertuig in.
Nadat hierdie
voertuig by 'n brug verbygery het en dit by
'n afdraend gekom het, het ek en
JAMES na mekaar gekyk en
ons oe geknip. Ek haal toe die vuurwapen uit en
JAMES
beveel toe die bestuurder om die voertuig tot stilstand
te bring.
Die vuurwapen was toe in my hand gewees en
voordat die bestuurder geantwoord
het, het ek hom
geskiet
Ek het toe die voertuig bestuur en 'n U-draai gemaak en
6/...
6.
teruggery in die rigting waarvandaan ons gekom het.
Terwyl die voertuig in
beweging was, het JAMES die
bestuurder se sakke nagegaan. Ons het in die
rigting
van Tembasa gery. Toe ons by Tembasa kom, het ons eers
na JAMES se
woonplek gegaan. Ons het daar 'n graaf gaan
soek ten einde die bestuurder van
die voertuig te kon
begrawe. Ons kon nie die graaf by JAMES se huis
kry
nie. Ons is toe na my woning waar ons 'n graaf gekry
het. Ons het toe
die lyk van die bestuurder begrawe.
Ek en JAMES het toe daarna Welkom toe
gery
Die daaropvolgende dag het ek na President Steyn Goudmyn No 4 Skag gegaan. Ek
het my vuurwapen daar verkoop. Dit was op 'n Donderdag
gewees."
It is unnecessary to refer to the other evidence
(statements
and pointing out) which were also held to be admissible.
Such
evidence is no more than corroborative of what is said
in the two guoted
statements.
Each of the appellants gave evidence after the close of the State case. The
evidence of first appellant corresponded to a large degree
with his statement to
the magistrate. He was cross-examined on the differences. He agreed at one stage
that he had changed his story
and admitted that he
7/...
7. could give no satisfactory reason for having done so. He
said in court that it was coincidental that both he and second appellant
were
given a lift; that second appellant suddenly and unexpectedly shot the deceased;
and that he was thereafter compelled, or felt
compelled, to participate to the
extent that he did. The evidence of second appellant was also to a certain
extent at variance with
his statement to the magistrate. More particularly, in
the witness box he said, referring to the time when they had stopped the car
to
enable the appellants to urinate:
"(A)ccused no 1 said that we must shoot this person. Then accused no. 1 said
that we must take the car after we had shot the driver
of the car, and proceed
to Johannesburg. We then agreed to that; we went back to the car, he got into
the car on the right-hand side
and I went back to the left-hand side. The car
proceeded. As the car was proceeding, he touched me and I then produced the
firearm,
taking it out from me. That was last for me when I was taking out the
firearm, thereafter I do not know what happened in the car."
He
went on to say that what he recounted to the magistrate
8/...
8. about the shooting was told to him by first appellant;
that he was forced by him to say so; and that he was having at the time
an
epileptic attack and only regained consciousness at Dimbaza when they were about
to bury the deceased. According to this evidence,
he was thus not in a position
to controvert the evidence of first appellant that it was he, second appellant,
who had done the shooting.
The court correctly concluded that the evidence of each
appellant
given in court, in so far as it was at variance
with their respective statements before a magistrate, was
unreliable and false. This was not disputed by counsel on
appeal. In the light of this finding, the court - quite
correctly - did not rely on evidence of one appellant
implicating the other. Its approach was to decide on the
statement of each, considered in conjunction with other
reliable evidence, whether each was guilty of murder and
whether there were extenuating circumstances. In doing so,
9/...
9. it held that first appellant had actively associated
himself with the killing and robbery; that there was no reasonable possibility
that he was acting under compulsion; and that the only reasonable inference was
that he was a party to a pre-arranged plan to shoot
the deceased and rob him of
his motor car and perhaps other possessions. As regards second appellant, the
court came to the conclusion
that the State had proved beyond reasonable doubt
that he was a willing party to this plan to kill and rob the deceased and that
at the time he fired the shot he was conscious and in full control of his
faculties.
Mr Brooks, who represented first appellant at the trial
and on appeal, repeated his submission that the facts warrant
the inference, as a reasonable possibility, that first
appellant was not a party to any pre-arranged plan to kill
or rob the deceased or to commit any other offence.
Alternatively, he submitted that what was agreed upon may
10/...
10.
have fallen short of a decision to shoot the deceased: they
may have agreed to hijack the car and driver to reach Welkom and second
appellant may have decided independently to shoot him. The evidence refutes both
these propositions. First appellant immediately
responded to the instruction
from second appellant to pull the deceased from the driving position in order to
remove his foot from
the accelerator. This is inconsistent with the shot coming
as a surprise to him. His active participation in all that took place
after the
shot was fired tends to confirm that they had planned this lethal attack
beforehand. It is moreover most improbable that
second appellant would have shot
the deceased in the presence of a witness who was not associated with the crime
or that second appellant
would have done so whilst the car was in motion if the
assistance and co-operation of first appellant was not assured.
As to the defence of compulsion, which was also raised
11/...
11.
on appeal, the reasons given in the court a
quo
f or
its rejection are comprehensive and convincing. In this regard Jones J said:
"The accused does not allege any overt threat. The threat arises from the
conduct of accused no. 2 in shooting the deceased and his
menacing and
aggressive presence and attitude thereafter. Is it reasonably possible that he
genuinely believed that he was in imminent
peril from accused no. 2? He alleged
that he acted out of fear in his statement to the magistrate in East London,
EXHIBIT D
and mentioned something of the sort whilst talking to Major
Coetzee in the motor vehicle. But he did not mention it at all to Lieutenant
Landman when giying his explanation of his association with the deceased's motor
vehicle and in explaining the blood on his trousers.
He did not raise it when
pleading not guilty to the charge before the magistrate,King William's Town. If
duress was really the single
most important feature which induced him apparently
to participate in the events, is it at all possible, let alone reasonably
possible,
that he would not have said so whenever he made an explanation? We
think not."
I am therefore of the view that first appellant was
correctly convicted of murder.
12/...
12. On the question of extenuation in the case of second
appellant, Mr Schoeman, who appeared on his behalf, submitted in the first
place
that the court misdirected itself in deciding - to quote from the judgment -
that "on his own account, he (second appellant)
was the dominant partner in the
commission of the offence." But this conclusion is fully borne out by the facts.
It was he who shot
the deceased, a task which could have been entrusted to
either of them. He drove the car to Welkom, he conducted first appellant
to his
(second appellant's) home where they procured a spade to bury the deceased. He
sold the Beretta pistol, which belonged to
him and was used to kill the
deceased.
In the absence of any misdirections - and no others
were suggested - this court is bound by the ruling of the
court a quo that there were no extenuating circumstances
unless it can be said that the conclusion was one which could
not reasonably have been reached.
13/...
13. The following facts were relied upon as extenuation in
the court a
quo
and were carefully considered by it: (i) the youthfulness
of the second appellant; (ii) he was an epileptic and suffered grand mal
seizures from time to time; (iii) he was an unsophisticated person with no more
than a standard six education; and (iv) he comes
from a community and background
where human life is not held in high regard.
On appeal before us counsel relied firstly on the fact
that
second appeilant was subject to epiieptic attacks. As
part of the State case a specialist psychiatrist, Dr Zabow,
was calied to
give evidence. He had examined the second
appellant clinically and kept him under observation for two
periods at Valkenburg hospital. In his evidence-in-chief Dr
Zabow dealt in detail with the nature and consequences of
this mental disorder. His conclusion was that second
appellant could not have been in the throes of such a seizure
at the time the deceased was shot and that he was accountable
14/...
14.
for, and conscious of, his acts at tha't time. In the
course
of cross-examination certain questions were put to this
witness, no
doubt with extenuation in mind. They canvassed
the issue whether this disability could in this case be an
extenuating factor. Dr Zabow said that epilepsy
per se
did
not make a person less responsible for his actions (when not
suffering an attack) than other persons. According to Dr
Zabow, the fact that an epileptic of normal intelligence
realises that he may lose consciousness at any stage and in
any situation can make him dependent on others and thus
vulnerable to their influence. Dr Zabow, however, conceded
that this was a generalisation and that there were no facts
in this case indicating that, if the evidence showed he was
influenced by first appellant to take part in the commission
of the crimes, epilepsy made him more susceptible to such
influence. It was put to him that epileptics are more prone
to acts of violence and aggression but he did not accept
this as a general or invariable rule. In the result there
15/...
15. was therefore no evidence to prove that in this case
the fact that second appellant was an epileptic had any bearing upon his
decision to take part in the crime or reduced his moral blameworthiness for its
commission.
The age of second appellant could not be fixed by any direct evidence.
However, a medical doctor examined him thoroughly and carried
out certain
radiological and other tests to determine his age. He concluded that at the time
of the offences appellant was at least
nineteen and á half years of age
and probably older. This estimate was accepted by counsel and by the court. The
youthfulness
of a convicted person is
prima facie
an extenuating factor.
This has been stressed in a number of decisions of this court, for instance, in
S v Lehnberg en h Ander
1975(4) S.A. 553 (AD), S,
v Ceaser
1977(2)
S.A. 348(AD) and
S v Ngoma
1984(3) S.A. 666(AD). In the first-mentioned
case this court (per Rumpff,
C.J.) at 561 said:
16/...
16.
"Wat die probleem van versagting betref, behoort na my mening tienderjariges in
die algemeen as onvolwasse beskou te word, en derhalwe
geregtig op versagting,
tensy die omstandighede van die saak van so 'n aard is dat h Hof homself genoop
voel om die doodvonnis op
te lê. Vanselfsprekend is daar grade van
volwassenheid by tienderjariges, maar uiteraard het geen tienderjarige die
rypheid
van 'n volwassene nie. Jeugdigheid is onvolwassenheid, gebrek aan
lewenservaring, onbesonnen-heid, en veral 'n geestestoestand van
vatbaarheid vir
beïnvloeding, veral deur volwassenes. En 'n persoon van 18 of 19 jaar is,
volgens my mening, onvolwasse of hy
nog op skool of universiteit is, en of hy
reeds 'n jaar of wat gewerk het. Om jeugdiges, sonder meer, met die dood te
straf, is om
die jeugdige met die maat te meet waarmee 'n rype volwassene gemeet
word."
And concluded that:
"Weens hierdie oorwegings is ek van mening dat die doodstraf alleen dan op 'n
tienderjarige, wat 'n moord gepleeg het, opgelê
behoort te word, indien
dit werklik blyk dat hy uit inherente boosheid gedood het."
In
S v Ceaser
at 353 the concept "inherente boosheid" is
discussed in more detail:
"A finding that a person acted from inner vice in the commission of a crime does
not imply that he has manifested vlcious or wicked
propensities throughout his
life; nor is a long history of wickedness necessary to such a finding.
Primarily, the question in any
given case (in the context under discussion, i.e.
with
17/...
17.
reference to youth as a mitigating factor) is whether
the crime in question stemmed from the inner vice of
the
wrongdoer, whether he be a first offender or one with
many previous convictions. It is in order to answer
that question that the Court will examine, and take into
account as
indicia
, the wrongdoer's motive, personality
and mentality, past history and whatever else is
relevant to the enquiry. And, of course, it will take
into account the nature of the crime and the manner of
its commission. (See the passage quoted above from the
judgment of the CHIEF JUSTICE in
Mapatsi's
case.) The
concept of inner vice as the genesis of a grave crime
committed by a youth throws into proper contrast the
case of a crime (perhaps equally dastardly) committed by
another youth who has, largely because of his youth and
its attendant degree of inexperience, acted in response
to
outer
influences; e.g. under the pressure and stress
of intense emotions induced by another (cf.
Lehnberg's
case) or under the direct or indirect influence of one
older than himself, or under circumstances which to him,
because of his youth and inexperience, were provocative
or emotive."
The
indicia
referred to in the
above-mentioned passage were
taken into account and carefully considered by
the court. It
had the advantage of observing the appearance and demeanour
of the second appellant during the trial as an aid in the
assessment of
his maturity. As I have observed, the coúrt was
correct in concluding that second appellant played a dominant
18/...
18. role. On the evidence he was not in any way influenced
by first appellant. Takíng all relevant facts into account, the
court on
this issue concluded:
"it seems therefore that the role played by accused no. 2 in the commission of
the offence was anything but the role of an immature
youth who, through
inexperience and lack of self-control does not know how to behave himself
properly. Indeed, the dominance of the
role he played and the motive for gain
indicate tht this offence was committed out of some inherent wickedness or vice,
referred
to as 'inherente boosheid'".
It cannot be said that the
court erred in reaching this conclusion.
Grounds (iii) and (iv) referred to above, were correctly - in my view - not
relied upon on appeal. In the result the finding of the
court a quo that there
were no extenuating circumstances was based on a proper exercise of its
discretion and cannot be disturbed.
19/...
19. Before the hearing of the appeal unsigned copies of a
notice of motion, with accompanying unsigned affidavits, were lodged in
this
court on behalf of second appellant. The application was aimed at reopening the
case in order to lead further evidence. When
the case was called, the original
signed papers were not yet to hand. (They were subsequently filed after judgment
had been reserved.)In
the circumstances counsel was obliged to apply for a
postponement of the application at the start of the hearing. It was refused
with
the intimation that reasons would be furnished in this judgment.
The application for the leading of further evidence, which was opposed by the
State, was based on an affidavit of one Raymond Shozi.
The latter stated that he
was in custody in the Pretoria maximum security prison, having been sentenced to
death. There he met first
appellant who gave the following account of how the
deceased
20/...
20.
came to be killed. The two appellants decided to rob the
deceased. At a stage when they were in the car, second appellant had an
epileptic
seizure, during which time he (first appellant) shot the deceased.
When second appellant regained consciousness first appellant told
him to say
that he (second appellant) had fired the shot. Second appellant complied because
first appellant was a member of a gang
and second appellant was afraid of him.
According to this account, one notes, second appellant was not told that he had
in fact (unconsciously)
shot the deceased but that he was to say so.
For the application for a postponement to succeed it was necessary for the
applicant to satisfy the court that there was a reasonable
prospect that the
court would grant leave to reopen. The requirements for such an indulgence are
thus summarised in
S v de Jager
1965(2) S.A. 612 (AD) 613:
21/...
21 . "(a) There should be some reasonably sufflcient explanation, based on
allegations which may be true, why the evidence which
it is sought to lead was
not led at the trial.
(b)
There should be a
prima facie
likelihood of the truth of the
evidence.
(c)
The evidence should be
materially relevant to the outcome of the
trial."
Requirement (b) above is in no way satisfied. It is
highly
unlikely, in fact hardly conceivable, that second
appellant would have
falsely admitted to having fired the
fatal shot because he was frightened of first appellant. Had
second appellant not shot the deceased, the significance of
such a false admission would not have been lost on him. Yet
in his confession to the magistrate, in his statement to
22/...
22.
another magistrate when pleading in terms of
sec 119
of the
Criminal Procedure Act 51 of 1977
, and at the trial itself, he consistently
acknowledged that he had shot the deceased. It is also most improbable that
first appellant
in the knowledge that his appeal against his conviction was
pending, would have made such an admission. For these reasons the application
was refused.
The appeals of both first and second appellants are dismissed.
M E KUMLEBEN
JUDGE OF APPEAL
BOTHA J.A. )
NICHOLAS A.J.A.) - concur