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1991
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[1991] ZASCA 15
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S v Khundulu and Another (127/90) [1991] ZASCA 15; [1991] 2 All SA 113 (A) (18 March 1991)
CASE NO: 127/90 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal of:
MONWABISI KHUNDULU
First Appellant
(Accused No 1 in court
a
quo
) and
NZEMENI DANSTER
Second Appellant
(Accused No 4 in court
a quo
)
versus
THE STATE
Respondent
CORAM: HOEXTER, MILNE JJA et KRIEGLER AJA
DATE OF HEARING: 4 March 1991
DATE OF JUDGMENT: 18 March 1991
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The two appellants and two other persons were charged with housebreaking with
intent to rob and murder with aggravating circumstances,
robberý, and two
counts of murder, together with certain other offences not relevant to this
appeal. The first appellant was
Accused No 1 at the trial and the second
appellant was Accused No 4. I shall refer to them as Accused No 1 and Accused No
4 respectively.
Each of them was found guilty as charged. Each of them was
sentenced to 20 years' imprisonment on the housebreaking with intent charge
and
20 years' imprisonment on the robbery charge, such sentences to run
concurrently. Each of them was sentenced to death on each
of the murder charges,
the trial court having found that there were no extenuating circumstances.
Acccused No 2 at the trial was
also found guilty on these charges but the trial
court found that his
-2-
age at the time when the offences were committed constituted an extenuating
circumstance and there is no appeal in his case. Accused
No 3 was discharged
after the defence case had closed.
With leave of the trial court Accused 1 and 4 each appeals against his
conviction and sentence on the housebreaking with intent charge,
Accused No 1
against his conviction on the two murder charges, and each of them against the
finding that there were no extenuating
circumstances and, accordingly, against
the sentences imposed on the murder charges.
These offences were all alleged to have been committed at Leeukloof Farm in
the district of Cradock on 6 February 1987 and the alleged
victims were a Mr and
Mrs Palvie. Much of the evidence tendered by the State at the
-3-
trial was uncontested and the issues have been further
narrowed by the
acceptance of the trial court's findings in
a number of respects, including
an acceptance that it was
correct in rejecting the evidence of the appellants
wherever
it conflicted with the probabilities or the evidence of any
State witness
in any material respect. Save for certain
findings to which I shall draw attention, the correctness
was also
accepted of the following recital of the salient
features of the State case by the trial court:
" During February 1987 Mr and Mrs Palvie occupied a farmhouse on the farm
Leeukloof, in the district of Cradock, approximately 20
km from the town. Mr Boy
Jordaan was the owner of the farm and Mr Palvie acted as his overseer.
Mr Palvie was a strong man, 1,8 m tall and weighed 85 kg. He was 62 years of
age. Mrs Palvie was younger. She was 56 years of age,
1,65 m tall and was of
slender build. Mrs Palview was a chronically ill person.
Accused No 3's father, Boesman Ngolose, worked on Leeukloof as a foreman.
Accused No 3 was at school in Cradock and stayed in Lingehile
Township.
Accused No 1, No 2 and No 4 lived in Lingehile Township. Accused No 2 and No 3
were friends.
-4-
At about 6.30 p.m. on Thursday, 5 February 1987, the four accused were given
a lift in a motor vehicle driven by Tosman Ralawe from
the township to a farm on
the way to Leeukloof. Ralawe did not know either Accused No 2, No 3 or No
4.
From where Ralawe dropped the four accused, they walked to Leeukloof Farm.
There they were given accommodation for the night by Boesman
Ngolose, No 3's
father. Accused No 1, No 2 and No 4 told Mr Boesman Ngolose that the reason for
their visit to the farm was that
they were looking for work. He told them that
Mr Palview only had employment for a gardener.
The next day, the Friday
morning, Mr Boy Jordaan arrived at the farm to count his sheep. After he had
done so he left. The accused
were aware of his arrival and his departure. At
that stage Mr and Mrs Palvie were both in the farmhouse, which was very much in
the
minds of the three accused, Accused No 1, Accused No 2 and Accused No 4.
During the afternoon ..." (on the evidence the morning would
be more
accurate)
"..Mr and Mrs Palvie, after locking the house, drove
off in their green
coloured Volkswagen Golf motor car to sell vegetables in Cradock. Accused No 1,
Accused No 2 and Accused No 4,
who had been keeping an eye on the farmhouse, saw
the Palvies drive off in their motor car.
After Mr and Mrs Palvie had left,
the three accused accompanied Dumeseni Ngolose ostensibly to have a swim in a
dam near the farmhouse.
When they reached the dam none of the three accused had
a swim, but while Dumeseni Ngolose was having one, Accused No 1 and No 2
went to
the farmhouse leaving Accused No 4 to distract Dumeseni Ngolose and at the same
time to keep an eye on the farmhouse.
-5-
Accused No 1 and No 2 entered the farmhouse, and Accused No 4 was in a
position to see them doing so, through a window of a vacant
bedroom, adjacent to
the bathroom and the kitchen. As soon as they entered the house Accused No 1 and
No 2 rummaged through the various
rooms, they ransacked the premises and packed
various things belonging to the Palvies in two suitcases which they found in the
premises.
While going through the various cupboards in the premises, they
found a rifle, an axe, a hammer and a carving knife." (It was submitted
on
behalf of the appellants that there was no proof that Accused No 1 was aware of
the presence in the house of the hammer and the
carving knife during the first
occasion that the house was broken into.) "These weapons are before Court.
On
Accused No 1 and No 2 rejoining Accused No 4 at the dam, Dumeseni Ngolose, who
had seen Accused No 1 and No 2 emerging from the
farmhouse through the window,
through which they had gained entry, asked them what they had been doing in the
premises. He received
a brush-off from Accused No 1.
The three accused then
went to the labourers' houses to await the return of Mr and Mrs Palvie. While
waiting for Mr and Mrs Palvie
to return, they assisted in the slaughtering of
some goats, but as soon as they saw the Volkswagen Golf in the distance
returning
to the farm, the three accused were galvanised into action. They
immediately ran towards the farmhouse.
Now Accused No 1 , 2 and 4 and Mr and
Mrs Palvie arrived almost simultaneously at the farmhouse. While Accused No 1
kept a look-out
from a small building nearby the farmhouse, Accused No 2 and No
4 entered the
-6-
premises. We have no eye witnesses as to what occurred after Accused No 2 and
No 4 entered the premises, but it is common cause that
Mr and Mrs Palvie were
attacked. Mrs Palvie was rendered unconscious severely injured, and Mr Palvie
was killed in the most gruesome
manner.
At an opportune moment, Accused No 1
joined Accused No 2 and No 4 in the premises. There was work to be done. The
three accused hastily
removed the articles listed in the schedule to count 4,
loaded them into the Volkswagen and drove off to Lingehile Township.
After
off-loading the stolen goods in the township, the motor car was driven to a
nearby cemetery where it was set alight and destroyed.
Subsequently Accused No 4
changed his clothes and shoes because of blood on them and the three accused
sold a wall clock and a suit
of Mr Palvie to Mr Vusumzi Witbooi and Zolile
Situngu respectively. At this stage Accused No 4 was in possession of the pistol
(
EXHIBIT 1
), the magazine with ammunition (
EXHIBIT 2
) and a spent
cartridge (
EXHIBIT 3
), while Accused No 1 had the suit (
EXHIBIT
51
) in his possession and did the talking." (These exhibits had been taken
from the Palvies' farmhouse). "... Accused No 2 was also
present but did not do
anything.
For the moment I return to the farm Leeukloof. That afternoon Mrs
Evelyn Matiwane, a 50 year old African woman, who worked for Mr
and Mrs Palvie
as a domestic servant, was also on the look-out for the Palvie motor vehicle.
She had seen it leave for town after
lunch,..." (here again, this should be
about noon) "... after she had asked Mrs Palvie to buy
-7-
groceries for her, and when she saw the motor car return to the farmhouse she
started to walk to the house to fetch her groceries.
As she approached the
farmhouse the Volkswagen Golf drove past her. She saw three persons, whom she
described as 'black children',
in the motor car which was travelling in the
direction of Cradock.
When Mrs Matiwane reached the kitchen door of the
farmhouse she found the door open and noticed Mrs Palvie's groceries lying
scattered
on the kitchen table. Mrs Matiwane called out, but there was no
response from inside. While she was at the kitchen door she was joined
by Mr
Boesman Ngolose. They apparently spoke and he decided to call her husband, Mr
John Matiwane. The three of them entered the
kitchen and went into the empty
bedroom where to their horror they saw Mrs Palvie lying on her stomach on the
floor in a pool of
blood. They immediately left the house. Mr Boesman Ngolose
went on horseback to a local farmer, who arranged for the police to be
informed
of the shocking discovery.
Constable Greyling received the report of the
tragedy at approximately 19h40 at the Cradock Police Station. Upon his arrival
at the
farmhouse he found Mrs Palvie lying in a pool of blood in the empty
bedroom. In the bathroom he f ound the body of Mr Palvie. In
one of the bedrooms
he found a chopper (
EXHIBIT 7
) . In the kitchen he found a blue cap
(
EXHIBIT 44
), which belonged to Accused No 4 and a large knife
(
EXHIBIT 46
) on the kitchen table. In an empty bedroom which leads off
the kitchen he found a hammer (
EXHIBIT 45
) on the window-sill.
At 20h35 the unconscious Mrs Palvie was removed by ambulance to the Cradock
Hospital, where she was given
-8-
emergency treatment by Dr Schoeman, and then taken to Port Elizabeth
Provincial Hospital.
Mrs Palvie was admitted to the hospital at about 2 a.m. on Saturday, 7
February 1987. It was found at the hospital that she had three
serious head
injuries for which she was treated, but she died in the Provincial Hospital on
19 March 1987.
At approximately 09h00 on Saturday 7 February a team of
detectives from the Eastern Province Murder and Robbery Unit went to Leeukloof
Farm. Among the squad of detectives were Warrant Officer Els (the
investigating officer in this case) and Warrant
Officer Meyer, a
fingerprint expert and photographer and an experienced criminal investigating
officer. These two police officers
did a very thorough investigation of the
scene. Photographs were taken, a plan was drawn and most important fingerprints
and bloody
shoe prints were lifted. They discovered that entry had been gained
through a window of the empty bedroom. A window pane had been
smashed from the
outside and a hand had been inserted through the opening. The fingerprints of
Accused No 2 were found on the pane
still in the window frame, on the window
frame itself and on a piece of broken window pane found in the bedroom.
According to Warrant
Officer Meyer the fingerprints on the broken pane still in
the frame had been left by a person standing on the outside of the building
while attempting to remove the broken piece of window pane from the
frame.
The palm prints of both Accused No 1 and No 2 were f ound on the
mirror of a cupboard in one of the bedrooms. The bloody shoe prints
of both
Accused No 2 and Accused No 4 were found in the bathroom where Mr
-9-
Palvie's body was found, as well as in the empty bedroom where Mrs Palvie was
found lying in a pool of blood. Their investigation
and observations led Warrant
Officer Meyer to conclude that Mr Palvie had been attacked by two
assailants.
Shortly after noon on Saturday, 7 February 1987, and while the
detectives from the Murder and Robbery Unit were on the farm Leeukloof,
Captain
Gouws and Lieutenant Goosen of the South African Police force Cradock were on
patrol in Michausdal coloured township. They
noticed Accused No 1, No 2 and No 4
walking on the side of the main street. The three accused aroused their
suspicion. Captain Gouws
and Lieutenant Goosen stopped and searched Accused No 1
and No 2. As they were doing so Accused No 4 moved away and was obviously
trying
to get away. Captain Gouws, an experienced and reliable and credible police
officer, noticed this and promptly followed Accused
No 4. As Captain Gouws
approached Accused No 4 he saw Accused No 4 drop the pistol (
EXHIBIT 1
)
in the road. The three accused were detained on suspicion of being in possession
of stolen property of an unknown person or persons.
At the Cradock Police
Station the three accused were thoroughly searched and various articles,
reflected on
EXHIBIT "H"
, were found on them. It later transpired that
various articles found on each of the accused had been stolen from the Palvie
couple.
Captain Gouws questioned each of the three accused. He did so
separately, and when he and the suspect were alone. Captain Gouws found
the
three accused very co-operative and from what the accused said the two police
officers immediately suspected that they were involved
in the crimes committed
in the Palvie home the previous
-10-
day.
The detectives of the Eastern Cape Murder and Robbery Unit were
immediately informed, and shortly thereafter the members of the Murder
and
Robbery Unit, under the command of Colonel Strydom, and including Warrant
Officer Els, arrived at the Cradock Police Station
and took over from Captain
Gouws and Lieutenant Goosen.
The same afternoon the three accused pointed out
various places and items associated with the present charges. That night Accused
No 1 and No 3 were detained at the Algoa Park Police Station, Accused No 2 at
Swartkops Police Station, and Accused No 4 at the Louis
le Grange Square in Port
Elizabeth.
At 10h33 on Monday, 9 February 1987, Accused No 1 made a statement
(
EXHIBIT "BB"
) to Lieutenant O'Connell. At 10h45 on the same day Accused
No 4 made a statement (
EXHIBIT "AA"
) to Lieutenant Ferreira. The next
afternoon Accused No 1 made a statement (
EXHIBIT "Z"
) to Mrs Botha, a
magistrate. The same afternoon Accused No 4 also made a statement (
EXHIBIT
"Y"
) to Mrs Botha.
On 10 February 1987, Dr Schoeman performed a
post-mortem examination on Mr Palvie. Dr Schoeman's report is
EXHIBIT
"I"
. Dr Schoeman came to the conclusion that Mr Palvie had died almost
immediately from multiple head injuries.
On 20 March 1987, Dr Schoeman
performed a post-mortem examination on Mrs Palvie. Dr Schoeman's report is
EXHIBIT "J"
. Dr Schoeman came to the conclusion that Mrs Palvie had died
of bilateral pneumonia which followed upon the head injuries inflicted
upon her
on 6 February 1987, and her subsequent immobilisation in
-11-
hospital. This finding is substantiated by Dr Keeley who treated Mrs Palvie.
The defence has conceded that the death of each of the deceased was caused by
the injuries inflicted on them on 6 February 1987.
During the trial the State tendered as evidence the statement made by Accused No
1 to Lieutenant O'Connell and a statement made by
him to Mrs Botha. The State
also tendered as evidence the statement made by Accused No 4 to Lieutenant
Ferreira and a statement he
nad made to Mrs Botha."
The
admissibility of these statements was contested at the trial but it was rightly
conceded on behalf of the appellants in the heads
of argument that the trial
court had rightly held them to be admissible.
With regard to the housebreaking charge, there is a strong if not
overwhelming probability that there were two "breakings"; the first
when Accused
No 2 broke the window and he and Accused No 1 entered the house f or the f irst
time; the second when Accused 2 and
4 entered the house
-12-
after they had sighted the Palvies' car returning. It was argued that there
was no proof of any "breaking" when Accused 2 and 4 entered
the house because
there was no evidence that either of them had moved any door or window or had
done anything which would amount
to a housebreaking. The evidence of Dumezweni
Ngolose was, however, that after Accused 1 and 2 had climbed out of the window
after
the first "breaking" they closed the broken window after them. If,
therefore, Accused 2 and 4 entered through that window just before
the Palvies
arrived then they would have had to open the window which would of course
constitute a "breaking". Accused 4 said in
his confession that they did enter
through this window but this is not even admissible against Accused I, leaving
aside any question
of reliability. If Accused 2 and 4 did not enter through the
window then they must surely have entered through a door. It seems probable
that
if they took the trouble to close the
-13-
window after them after the first entry, they did so in order not to alert
the Palvies and that they would accordingly, at the same
time, have closed any
door which they had opened. If that is so then whether they entered through a
window or by means of a door
there was a second "breaking" by Accused 2 and 4. I
shall assume, however, that there was no adequate proof of a second "breaking".
It follows that in order to establish the housebreaking charge the State would
have to rely upon the first "breaking".
In order to establish the alleged intent of Accused 1 and 4 at the time of
the first "breaking" it is necessary to find that there
was a common purpose to
rob and murder at the time when that "breaking" occurred. This follows from the
fact that the trial court
found that Accused No 1 was probably not present in
the house when the murders occurred. In other words the State had to prove
-14-
that the plan to break in and rob the Palvies and to murder them had already
been agreed upon before Accused 1 and 2 entered the house
and that their
entering the house in the absence of the Palvies and the packing of the
suitcases was part of a pre-arranged plan
which had been agreed between Accused
1,2 and 4. If, for example, at the time when Accused 1 and 2 broke in, they had
all agreed
to break in and steal but there had been no agreement that they
should wait for the Palvies to return and then rob and attack them
and that
aspect was only agreed upon after the first break-in, then it is correct that
the appeal would have to succeed in respect
of this count and the conviction
would have to be altered to one of housebreaking with intent to steal and theft.
The court
a quo
however found as a fact that . Accused 1 , 2 and 4 had,
before the first "breaking", jointly planned to break into the house occupied
by
the Palvies and attack and rob them in circumstances where each of the accused
foresaw the
-15-
possibility of death resulting but nevertheless participated in the carrying
out of the plan reckless whether the possible death of
Mr and Mrs Palvie became
a reality.
The trial court found in this regard that
"... the first break-in should not be viewed in isolation, but must be seen as
an important preparatory act and an integral part
of the overall plan to subject
the deceased to violence. From the moment the three accused [that is Accused Nos
1, 2 and 4] formed
their gang, because that is what their little group became
prior to their going to the farm
, and between the time that they decided
to go to the farm on the Thursday until their arrest on the Saturday, they
jointly schemed,
shared in confidences and acted in concert. Accused No 1 and No
2 were prominent members of the gang and each played a leading role
in the
execution of the common plan. Accused No 2 did not on the spur of the moment
decide to attack Mr Palvie, nor did Accused No
4 on the spur of the moment
decide to attack Mrs Palvie and participate in the attack on Mr Palvie; their
joint attack on the Palvies
was in furtherance of a prior agreement with Accused
No 1.
In our unanimous vïew the attacks on Mr and Mrs Palvie were premeditated
and part of the execution of the common plan and the
only inference to be drawn
from all the facts is that Accused No 1 , Accused No 2 and Accused No 4 shared
the common purpose alleged
against
-16-
them by the State." (My underlining).
The basis upon which the court concluded that
there
was such a prior agreement is the following:
"1. Each accused believed that there were firearms in the farmhouse occupied by
the couple.
2. Each accused believed that either Mr or Mrs Palvie or both might be
armed.
3. The accused agreed that Accused No 4 would remain at the dam while Accused No
1 and No 2 broke into the farmhouse, searched for
firearms and packed the
articles which took their fancy in containers ready to be removed once the
accused had overcome Mr and Mrs
Palvie and obtained possession of the Volkswagen
Golf.
4. While in the house Accused No 1 and No 2 discovered the
three
weapons
in the house, namely
the axe
,
the hammer
,
knife
and a
rifle
.
5. Accused No 1 and No 2 knew that the weapons were readily available for use to
overcome any possible resistance.
6. The accused knew that one or other or all of them would have to subdue Mr and
Mrs Palvie by violence:
(a)
to remove the stolen goods
from the premises; and
(b)
to obtain the key
of the vehicle from Mr Palvie so as to convey the stolen goods to
Cradock.
-17-
7. The accused knew that if either Mr and Mrs Palvie survived the assault they
would be identified.
8. The assault upon Mr and Mrs Palvie was carried out swiftly and the goods were
removed and the accused departed within a relatively
short time of the
attack.
9. The nature of the injuries and the weapons used are indicative of the
murderous nature of the joint plan.
10. The accused set fire to the Volkswagen in a futile endeavour to cover up
their tracks."
These findings were challenged in two
respects only. Firstly, as already mentioned, it was submitted that there was no
proof that
Accused No 1 and No 2 had discovered the hammer and knife in the
house on the occasion when they first broke in. It is true that
there is no
direct evidence to this effect and Accused No 1 denied that he had seen the
hammer and the knife cm this occasion. On
the other hand, the evidence was that
the hammer was kept in an open box in the kitchen, while the knife was usually
kept in a cupboard
in the kitchen;and Accused No 1 said in his evidence that
on
-18-
the occasion of the first break-in "we left no stone unturned in our search
for firearms". Furthermore, as pointed out by counsel
for the State, Accused No
1 said that he,
together
with Accused No 2, thoroughly searched the
house. What is more, the attack on the deceased was carried out in a very short
time.
The witness Matiwane saw the deceased returning in their motor vehicle and
walked towards the Palvie's home in order to fetch the
groceries which she had
asked Mrs Palvie to buy for her. She was still far from the house when she saw
Accused 1 , 2 and 3 departing
in the Palvie's car at high speed. On the evidence
therefore the three accused had run to the house, Accused 1 and 2 had entered
the house, the two Palvies had been murdered and the stolen articles had been
loaded into the Palvies' car and it . had been driven
off from the farm house
during the time that it took Matiwane to walk a few hundred mstres, Furthermore
it was clearly proved that
a knife and a blunt instrument were
-19-
used to kill Mr Palvie and the hammer was used to kill Mrs Palvie. The
probabilities are therefore strong, if not overwhelming, that
at least the
hammer had been observed and placed in a position where it was ready to hand
when Accused 2 and 4 rushed into the house
just before the Palvies arrived and
made ready to attack them.
In any event it is quite clear that Finding No 5 above was fully justified on
the evidence. Finding No 7 is put too positively. It
may be correct to say that
the accused knew that if either of the Palvies survived the assault they
could
be identified since the robbery and the attack were carried out in
broad daylight, but whether in fact the Palvies would have been
able to identify
their attackers would have depended on a number of circumstances and in
particular how long after the commission
of the offence they were arrested and
what opportunities the
-20-
Palvies may have had for seeing their attackers.
Subject to these minor qualifications the numbered findings of the trial
court are undoubtedly correct. Furthermore, counsel for the
State submitted that
the evidence established that
(a) Accused 1, 2 and 4 had planned from the beginning to go to the farm to break
in and take money and firearms from the Palvies'
home.
(b) They procured a lift to the farm without arranging for any transport
home.
(c) They arrived after dark and kept out of sight until the Palvies had left the
next day and then broke into the house.
(d) The telephone wires were cut by Accused 1 or 2 on the occasion of the first
break-in.
(e)
Accused 1 and 2 closed the broken window after
them
-21-
after the first break-in. (f) Accused 1 was posted close to the house on the
occasion of the second break-in either to deal with the
Palvies' son in case he
accompanied them home as he apparently sometimes did, or to cut off the Palvies
if they managed to escape
from Accused 2 and 4.
I agree with these submissions. The evidence shows a clearly orchestrated and
methodical approach to the whole enterprise which is
consistent only with
Accused 1, 2 and 4 having planned from the beginning to commit a robbery and to
use such violence as might be
necessary to enable them to carry out the robbery
and to escape with their booty in the Palvies' motor car. It necessarily flows
from the facts already mentioned and in particular the fact that they believed
(as it turns out, correctly) that one or both of the
Palvies might be armed,
that in the particular
-22-
circumstances of this case the accused foresaw from the beginning of their
joint enterprise as a reasonable possibility,that one or
both of the Palvies
might be killed in the course of effecting their purpose.
It follows that Accused 1 and 4 were correctly convicted of housebreaking
with intent to rob and murder. It also follows that Accused
1 was correctly
convicted of murder on both counts notwithstanding that he was not present in
the house when the murders were carried
out. The requirements of common purpose
set out in
S v Mqedezi & Others
1989(1) SA 687 (A) at 705 - 706
apply, as BOTHA JA said at p 705I "in the absence of proof of a prior agreement
...". Here there
was such an agreement. It is also clear that despite Accused No
1 having foreseen the death of the Palvies as a reasonable possibility,he
persisted in the execution of the planned attack and robbery reckless of such
fatal consequence.
-23-
As already mentioned, the court
a quo
found that there were no
extenuating circumstances in the case of Accused 1 or 4 in respect of either of
the murder charges and they
were, accordingly, sentenced to death on each of
these counts. That was before section 4 of the Criminal Law Amendment Act, 107
of
1990, introduced an entirely new approach to the death penalty making its
imposition discretionary, even in cases such as this one
which had concluded
before the amendment came into operation. The first step which must now be taken
is the identification, evaluation
and weighing up of aggravating and mitigating
factors.
The aggravating factors are obvious. Firstly, this was a coolly
planned,premeditated attack. Secondly, it was committed in the execution
of a
robbery committed solely
-24-
for gain. Thirdly, it was committed against a
solitary
couple, well-advanced in years. Fourthly, it was a savage
attack
- the horrifying savagery . is painfully
clear from the photographs taken by the police of the bodies of the two
deceased. The assault with a hammer on Mrs Palvie was so severe
that the police
found a fragment of her skull on the floor where she was found. Fifthly, there
is the undeniable fact that murderous
attacks of this kind
on solitary couples living in isolated places are on the increase and the
deterrent effect of the sentence to be imposed must , in
the circumstances,loom
large. I am well aware that, as pointed out in
S v Khulu
1975(2) SA 518
(N) at 521F, an "exemplary" sentence is inherently unjust and may be justified
only where the injustice thereby done
to the individual is "moderate". On the
other hand, there is a further factor which is relevant in this regard and that
is that both
Accused 1 and 4 had previous convictions. Accused 1 had
-25-
three previous convictions of theft, two previous convictions of
housebreaking with intent to steal and theft, and two previous convictions
of
assault with intent to commit grievous bodily harm. The offences with which this
court is concerned in this case were committed
a mere nine monthgs after Accused
1 had been released frcm prison. Accused 4's record i in certain respects even
worse. He had two
previous convictions of theft, two previous convictions of
housebreaking with intent to steal and theft, a conviction of assault
and a
conviction of robbery with aggravating circumstances in respect of which he was
sentenced to 12 years' imprisonment. This sentence
was imposed on 29 November
1977 and Accused 4 had also cnly been released from prison 9
months before he committed the offences with which we are concerned in this
case. It follows that the prospects of reform are,in the
case of both
appellants, remote.
-26-
It was submitted that there were mitigating factors present. In the case of
Accused No 1 it was submitted that since the intention
to kill existed in the
form of
dolus eventualis
this was a mitigating factor. The mere fact,
however, that the agreed plan of action placed Accused 1 outside the house as a
guard,
not only to keep watch but, if necessary, to use force to overcome the
son of the deceased, does not, morally speaking, distance
him sufficiently from
what actually happened in the house to justify a finding that the particular
form of his intent to kill constitutes
a mitigating factor. Accused 1, 2 and 4
were co-planners and co-executioners of that plan at every relevant stage.
After the accused had been convicted, Mr Meyer, a clinical psychologist,
testified on their behalf.
In the case of both accused it was submitted that the factors referred to in
the evidence of Mr Meyer constituted mitigation. With
the assistance of an
interpreter he
-27-
interviewed Accused 1 and 4, and made a psychological assess-ment of
them (which revealed no abnormality of any kind). He prepared
a report which was
put in as an exhibit. In this report he summed up their family background as
follows:
"... they both came from large, lower socio-economic families who knew life's
hardships intimately. Despite this both families were
apparently contented, the
members were co-operative with one another and they generally lived in a
peaceful, loving atmosphere which
was strongly rooted in Christianity and around
the church. Neither of the accused came from obviously pathological
families."
Accused No 4 "suffered from the early loss of his father
which caused acute financial hardships to the family,
resulting in him being forced to abandon his education in
Std 4"(at the age of 15). Similarly Accused No 1 was "also
forced to drop out of school in Std 8"(at the age of 17),
"due to financial reasons, unequipped to offer the open
labour market any sought after skills". Mr Meyer was, of
course, dependent upon the accused for information and it is
-28-
apparent that in certain respects the information furnished
was incorrect.
For example, Mr Meyer's report states that
Accused Mo 1 's first of fence was one of housebreaking oommitted at
che age of 19. In fact, his first offence was just before
he turned 15
when he was convicted of theft of cheques and
forgery and uttering of the
cheques. This offence must have
been committed while Accused No 1 was still
at school as
indeed it seems probable was his subsequent conviction for
assault with intent to commit grievous bodily harm involving
the use of a knife in August 1976. Nevertheless, it is a
real factor, as Meyer stated, that
"It is a well-known social-psychological fact that school drop-outs find
themselves at a serious disadvantage in an increasingly
technological society
and are forced to take low paying menial jobs which perpetuates their culture of
poverty and increases the
disposition towards delinquency and
crime."
Mr Meyer also gave the trial court the benefit of his
interesting analysis of revolutionary violence particularly
-29-
in black residential areas and referred to the consequent
breakdown in
traditional structures maintaining law and
order. In his evidence he
developed this theme in the
following words:
"That extenuation refers to the fact that the accused living under circumstances
which some have described as a war-zone in which
there was a heavy police and
military presence in the township, that there was extensive violence in the
township at the time, that
these circumstances model aggression, that aggression
becomes part of daily life, and that type of factor put into a context of their
poor socio-economic circumstances within a system in this country which
discriminates against black people."
This evidence
is entitled to considerable weight. In the
first place, it is clear that Mr
Meyer was an impressively
objective witness. The trial court described him as
"an
honest reliable and sensible witness". I fully agree. What
is more, it cannot be doubted that there was a real factual
basis for his
expert opinion, bearing in mind that he was
testifying in October 1989 and referring to events which
took place in February 1987. The fairness of Mr Meyer is
-30-
demonstrated by the question and answer which followed
immediately after the evidence quoted above:
"Mr Meyer, I would understand that if this was a case of perhaps where one or
two policemen during the course of a violent unrest
situation had been killed by
the two accused, I would understand that, but in a cold blooded, premeditated
murder of two old people
on a farm completely away from the township, would you
say that those or political motives and poor socio-economic
situation could be an extenuating factor? Your
Lordship, I do not want to give the court the impression that - as a witness,
I'm not taking into account the very aggravating circumstances
of this case to
which counsel for the State refers, I think these are highly pertinent and very
obvious one, however, I do believe
that within circumstances whereas there is
considerable violence being modelled, that violence is part of the state they
live in,
that that can have an ef f ect on what one sees as legitimate action in
a black-white crime. Not wishing by any stretch of the imagination
to condone
the very brutal killing of two innocent people."
In fact, Mr
Meyer's report concludes with the following
passage:
"In the above situation the arms and ammunition which were stolen from the
Palvie home, possibly being the prime motive for the crime,
have a ready market
value. However the question arises, if this was the motive
for
-31-
the crime, why the callous disregard for the lives of Mr and Mrs Palvie? Why did
the accused not simply break in, steal the arms
and flee from the scene of the
crime by making prior arrangements for transport from the farm in the same way
as they had arranged
to arrive at their destination? These remain unanswered
questions.
In conclusion, Accused 1 and 4 were able to distinguish between right and wrong
at the time of the crime, and there is no acceptable
evidence before the court
regarding any extenuating circumstances existing at the time of the crime.
Nevertheless, it is the examiner's
submission that the broader socio-economic
and political context described above should be taken into account when
considering an
appropriate sentence."
What Mr Meyer referred to
as "unanswered questions" do indeed remain unanswered questions.
These are difficult and complex questions. As already pointed out Mr Meyer
readily admitted in evidence that he had been entirely
dependent on Accused 1
and 4 for information regarding their background and as already mentioned, some
of the information furnished
was incorrect.
-32-
No doubt the accused suffered from frustations as a result of being poor and
badly educated but this was not the major factor relied
upon on behalf of the
appellants. What was principally relied upon was what one might call the
"modêlling" factor or the "desensitisation"
factor. The effect of the
evidence is that when a person particularly one of low educational standard is
exposed,as it were, to a
daily diet of violence where even the authorities as
personified by the police are, rightly or wrongly perceived as perpetrators
of
violence, that person becomes"desensitised to violence ; his sensibilities are
blunted and he is more ready to abandon the restraints
which he would otherwise
have against the use of violence. These are
prima facie
valid
considerations and may, in a proper case, indeed constitute mitigating factors.
They are, however, in the particular circumstances
of this case, very much
weakened,if not entirely countered by two factors. The first is that
-33-
referred to in Mr Meyer's report as "unanswered questions" and this clearly
influenced the trial court in its conclusion that there
were no extenuating
circumstances. The crimes in question were not committed with any political
motive. What is more, we are not
here dealing with teenagers or even young men
in their early twenties. Accused 1 was 27 and Accused 4 was 34 years of age at
the
date when these offences were committed. The very serious waves of violence
which swept through the black residential areas commenced,
cm the evidence
referred to in Mr Meyer's report, in 1984 at a time when the accused were no
longer impressionable youths. What is
more, in the twelve years between
September 1974 and May 1986 Accused No 4 spent nearly 10 years in gaol - in fact
from November
1977 to 28 May 1986 he was continuously in gaol where he was in no
position to witness or participate in what was taking place in
the black
residential areas. In the 6 /2 years from November 1979 to May 1986 Accused No 2
spent
-34-
3½ years in prison. In other words, both the accused were well set on a
course of crime long before 1984.
To sum up:
(a) The aggravating features far outweigh the slight mitigating
factors;
(b)
the prospects of reform are
remote;
(c) the deterrent factor must, for the reasons mentioned, play an important
role;
and one is driven to the conclusion that this
is one of those exceptional cases where the death sentence is imperatively
called for.
I wish to express our indebtedness to counsel for the appellant and counsel
for the State for the clear and objective manner in which
they presented their
arguments.
The appeals of both the appellants against their convictions and sentences
are dismissed.
A J MILNE
Judge of Appeal
HOEXTER JA ) KRIEGLER AJA ) CONCUR