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1991
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[1991] ZASCA 49
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S v Biyela and Others (657/89) [1991] ZASCA 49 (8 May 1991)
Case No 657/89
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ZEBLON BIYELA
1st Appellant
MBUYISENI NGCOBO
2nd
Appellant
JOSEPH FONSECA
3rd Appellant
and
THE
STATE
Respondent
CORAM:
HOEXTER, STEYN, JJA et PREISS, AJA
HEARD:
18 February 1991
DELIVERED:
8 May 1991
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
In the Circuit Local Division for the Zululand district a court consisting of
ALEXANDER, AJ and assessors found the three appellants
guilty of murder without
extenuating circumstances and sentenced them to death. The trial judge granted
each appellant leave to appeal
against his conviction and sentence.
The
deceased, a man aged 63, was a powerful physical specimen. He was more than
l,83m tall, and weighed 93 kilograms. At the time
of his death he was the food
and beverage manager at the Umhlali Country Club ("the club"). He lived in a
house on the grounds not
far from the club-house. The deceased owned a
Mercedes-Benz motor car ("the car") in which he daily travelled to and from his
work.
3
In the office at the club-house there was a safe.
It was the
habit of the deceased to keep on his person a
number of keys belonging to the
club, including the key to
the safe. The keys were suspended from a belt worn
by the
deceased.
Over week-ends cash takings at the club were kept in the safe for banking on
Monday mornings. Over the week-end of 13/14 February
1988 a fund-raising social
function was held at the club and in consequence the cash takings deposited in
the safe on Sunday 14 Eebruary
were larger than usual.
During the Sunday night in question a number of intruders broke into the
deceased's house and pounced upon him while he was in bed.
The intruders had
rope and twine with them. A violent struggle ensued between the recumbent victim
and his attackers. In the course
thereof the assailants trussed up the deceased
by binding him hand
4
and foot as he lay on the bed; and they killed him by throttling and
strangling him. Thereafter they looted the house and took therefrom
certain
goods which they placed in the car. They then drove away in the car.
In due
course the three appellants and a man called Msomi were arrested and prosecuted
on various charges including the murder of
the deceased. Each of the four
accused was represented by counsel and, save in the case of Msomi, each
testified in his own defence.
At the end of the trial a good deal was common
cause. In regard to the events on the Sunday evening in question it was not in
dispute:
(a) that the four accused had got wind of the fact that there was much
money in the club safe; (b) that the four accused believed
that upon his return
home from the club-house after work the deceased would have the safe key in his
possession; (c) that in fact
the deceased left the key of the safe at the
club-house before he returned to
5
his house; (d) that before the deceased had completed his work at the
club-house the four accused lay in wait for the deceased at
his house, intending
to overpower him with violence in order to gain possession of the key to the
safe, and thereafter to rifle the
safe; (e) that while they were waiting for the
deceased's return the third appellant broke into the house, gaining entry
through
a kitchen window in which a fan was housed; (f) that the third appellant
and one or more of his confederates then entered the,house
and removed liquor
therefrom; (g) that upon noticing the headlights of the deceased's approaching
car the four accused fled to a
nearby spot on the fairway, at which spot the
liquor was consumed and the deceased's house was kept under observation; (h)
that at
the juncture Msomi backed out of the joint venture and left the three
appellants to their own devices; (i) that a while later, and
after the lights in
the housé had been put out, the
6
first and second appellants entered the house through the same kitchen window
earlier used, whereafter thêy surprised the deceased
in his bed and
overpowered him; (j) that thereafter the lights in the house were switched on in
order to facilitate the search for
the safe key; (k) that the third appellant
was present in the house while the search for the key was in progress; (1) that,
the quest
for the key having proved fruitless, the first and second appellants
removed from the house and placed in the car various goods including
a
television set, a radio, a.fan, sundry items of clothing, and some club towels;
(m) that with the third appellant behind the steering-wheel
the three appellants
then drove off in the car; (n) that in Tongaat the stolen goods were removed
from the car which was then driven
further and ultimately abandoned by the three
appellants in Pinetown in the early hours of Monday 15 February 1988.
At the trial the four accused were charged: with
7
housebreaking with intent to steal and theft (count 1); with the murder of
the deceased (count 2); and with robbery with aggravating
circumstances (count
3). On count 1 the first appellant and Msomi were convicted of housebreaking
with intent to rob and theft. On
count 2 Msomi was acquitted but, as already
mentioned, the three appellants were convicted as charged. On count 3, likewise,
Msomi
was acquitted and the three appellants were convicted as charged.
The
body of the deceased was discovered in his house on the morning of Monday 15
February 1988. It was lying spreadeagled on the bed
in his bedroom. The bedroom
presented a scene of complete disorder, and the entire house had obviously been
ransacked. A specialist
forensic pathologist, Dr S B Akoojee, was a State
witness at the trial. Within hours of the discovery of the body Dr Akoojee
visited
the scene of the crime where she inspected
8
the body in the position in which it had been found. Dr Akoojee made notes of
her observations at this inspection; and on the following
day she performed a
post-mortem examination on the body of the deceased at the Gale Street
Laboratories in Durban. Dr Akoojee's evidence
at the trial was a model of
precision and clarity. Dealing with her observations at the scene of the crime
Dr Akoojee said that the
body of the deceased was lying across a double-bed with
both legs dangling over the side of the bed. Clothed only in a sleeveless
vest,
the body was covered bý a quilted blanket. Near the deceased's face were
two blood-stained pillows. Removal of the quilt
and pillows revealed the
presence of two pieces of rope alongside the left arm of the body. Scattered
injuries were noted around
the lower end of both legs. The neck and face were
intensely congested. The sheet and mattress beneath the body were blood-stained
and wet.
9
In her post-mortem report Dr Akoojee recorded the following in regard to the
external appearance of the body. There were abrasions
on the right side of the
forehead; multiple abrasions on the nose; upper lip; left lower jaw; left side
of the neck; angle of the
jaw; superficial abrasions on the right cheek and the
left side of the face; linear abrasions extending from below the right ear
across the lower jaw to the chin area; abrasions on the chin; multiple abraded
lesions cm the left pectoral area and of the left
hip area; superficial abrasion
of the left buttock; a 1,5 cm penetrating wound, to a depth of 3 cm of the left
buttock; abrasion
across the left little finger; and multiple linear and
circumscribed areas of abrasion and bruising on the lateral and anterior aspect
of the lower limbs.
The chief internal post-mortem findings indicated a
10
haemorrhage into the underlying soft tissue of the neck together with a
fracture of the hyoid bone. There was marked congestion of
the head, neck and
scalp, with small subconjunctival haemorrhage of the left eye. Petechial
haemorrhage was noted in the pleura and
pericardium. Dr Akoojee concluded that
the deceased had died of neck trauma. She explained in her evidence that a
significant degree
of force must have been applied to the deceased's neck in
order to fracture the hyoid bone; and, in her opinion, for death to result
from
the rupture of the hyoid bone and the occlusion of the arteries sustained
pressure had probably been applied to the neck of
the deceased for a period of
between five and ten minutes. She further concluded that pressure in the form of
a ligature had been
applied to the neck of the deceased, which had the effect of
asphyxiating him through the interruption of both the passage of air
and the
blood circulation. In her opinion
11
death was caused by the application of the ligature or the fracture of
the hyoid bone or both. From the nature and extent of the deceased's
injuries
the trial court concluded that the deceased had vigorously resisted the attack
upon him, and that his death had been preceded
by a violent struggle between him
and his attackers.
During the period April to October 1987 the third
appellant had been employed at the club as its caddy master. Following upon
certain
differences between him and the deceased the third appellant resigned
from his post as caddy master. Shortly thereafter the vacant
post of caddy
master was filled by Mr Musawenkosi Joseph Mdluli. In what follows I shall refer
to him simply as "Mdluli". In February
1988 Mdluli was still the caddy master at
the club. The three appellants and Msomi were all known to Mdluli.
At this juncture the nature of the defences
12
respectively put up by the appellants at the trial may be shortly stated.
Each testified that the robbéry had been planned
by Mdluli; and that on
the evening in question the three appellants had been conveyed to the club in a
motor vehicle owned and driven
by Mdluli. The first appellant told the trial
court that on the way to the club Mdluli interrupted their journey by stopping
his
vehicle at a certain spot. There Mdluli produced a firearm, and, having
threatened the appellants therewith, he ordered them to gain
entry to the
deceased's house, to tie up the deceased and then to search for, and find the
key to the safe. Out of fear for Mdluli,
so testified the first appellant, he
agreed to carry out Mdluli's instructions. According to the first appellant at
the time of the
actual attack upon the deceased, he (the first appellant) was in
the house together with the second and third appellants. The first
appellant
went on to explain that he had bound the
13
feet of the deceased, whereafter he set about looking for the keys. He did
nothing further to the deceased; and he was unable to describe
the appearance of
the deceased when he left the bedroom to search for the key. The deceased
struggled but feebly and the first appellant
held him gently. There was no
violent struggle and he was unable to describe what roles the second and third
appellants had played
in subduing the deceased. The key to the safe could not be
found.
The second appellant's version as to how Mdluli had allegedly
press-ganged the three appellants and Msomi into embarking upon the
robbery
corresponded broadly with the account given by the first appellant. The
description given by the second appellant as to what
happened in the house after
he had entered it for the second time was characterised by extreme vagueness and
inconsistency. At one
stage of his evidence the second appellant placed all
14
three appellants in the house at the critical time of the attack upon the
deceased. Later he asserted that the third appellant had
not then been present;
and thereafter he again changed his story and said that the third appellant had
in fact been present. Having
heard the voice of the third appellant say "Hold
here" he (the second appellant) held the deceased by the wrists. He did so out
of
fear for the third appellant. Thereafter the deceased was tied up. The second
appellant was, however, unable to say by whom the deceased
was tied up. When the
lights in the bedroom came on again the deceased was still conscious; but
according to his evidence the second
appellant saw ,no blood or any injuries
upon the deceased. He was unable to say how many people had attacked the
deceased; and he
denied that he had seen the deceased being killed.
The third appellant's defence to the murder charge was that he was not in the
deceased's house at the
15
crucial time when the deceased must have met his death.
The third
appellant was arrested on 1 March 1988. During
the afternoon of the following
day he made a statement
before a magistrate in Durban. In the course of the
State
case the statement was handed in by consent as exh S.
Whên the
third appellant came to testify he sought in some
respects to qualify and
depart from what is set forth in
the body of exh S; a f eature of his
evidence which I
shall touch upon briefly in due course. It is convenient
here to quote the
body of the statement in full because it
indicates in summary form the broad lines of the third
appellant's defence
to the murder charge. In exh S the
third appellant referred to the first appellant as
"Zebulon", to the second appellant as "Ngcobo", and to
Msomi as "Temba". The body of exh S reads as follows:-
"During February 1988 a Caddy Master at the Umhlali Country Club Golf Course
spoke to me at his house at Tongaat. I was with Temba
Msomi. The Caddy Master
told me and Temba that on a
16
Saturday about R60,000.00 is collected at the Golf Course. It was then agreed
that a man named Zebulon, Temba and Ngcobo would go
and rob the manager at the
Golf Course from the money. I was to show the three of them where the Manager's
house was because I was
Caddy Master during 1987.
The Caddy Master dropped the four of us near the house of the Manager of the
Golf Course at about 7.00 pm on 14 February 1988. We
sat for about half an hour
outside the house of the Manager. I then suggested we should go in through the
kitchen window and steal
his beer. The four of us then entered the house through
the kitchen window. I took beer from the fridge and put it in a packet. I
also
took a bottle of Whisky from a counter. As we were leaving the house through the
same kitchen window the Manager drove into
his yard. We then ran to a nearby
bush. Temba suggested since we missed the Manager we must forget about the
robbery and go with
the liquor. I told Temba I was still drinking. Zebulon and
Ngcobo stayed with me.
After about an hour's drinking we noticed the lights in the house were
switched off. Zebulon and Ngcobo went back into the house through
the kitchen
window. After a while Zebulon came out and called me. He had opened the front
door. I entered and immediately unplugged
the telephone. I went into a spare
room and put the telephone under a mattress. When I came out of the spare room
Zebulon was standing
in the deceased's
17
bedroom. Zebulon handed me a knife and told met to cut the ropes with which the
Manager's hands and feet were tied. I also cut a
rope what was tied around the
Manager's neck. After I cut the ropes I went to the lounge where Zebulon and
Ngcobo were packing the
car with the TV, a radio, a fan and a packet. I do not
know what was in the packet. There was also a black metal box. I then drove
the
deceased's car to Tongaat. There we offloaded the goods in a sugar cane field. I
then drove the car to Pinetown. Zebulon drew
out his knife for me. I stopped the
car. Zebulon pulled out the keys from the ignition telling me I think I was
clever. I loaded
nothing in the car and after he had given me the keys for the
car Zebulon tried to stab me. I ran away. I then went to Kwa Mashu
and hired a
taxi that evening to take me to Tongaat. I took the fan and sold it in order to
go to Empangeni. I then went to Empangeni."
It is necessary next to deal at some length with
the
version of events given by the third appellant when he
took the witness
stand. He told the trial court that a
few weeks before the night on which the
deceased was killed
he (the third appellant) was approached by Mdluli
in
connection with the contemplated robbery. Mdluli told him
that senior
members of the Inkatha movement had decided
18
that the third appellant should commit the robbery. He regarded Mdluli as a
leader of Inkatha; and he was scared of Mdluli. Mdluli
further told him that
should he not carry out Inkatha's instructions his wife, who was pregnant, would
have her belly ripped open
and their house would be burned down. These threats
were uttered in the presence of Msomi who was instructed to keep an eye on the
third appellant until the time appointed for the robbery. Thereafter, so
testified the third appellant, Msomi stayed at the third
appellant's house day
and night. The third appellant explained that he did not seek the help of the
police because he did not think
of doing so. On the Friday before the fateful
Sunday the three appellants and Msomi met with Mdluli to discuss the means
whereby
the robbery plan should be put into execution.
Having been dropped by Mdluli near the house of the deceased on the night in
question, so testified the
19
third appellant, he explained his theft of the deceased's liquor by saying
that he felt in need of Dutch courage. When the four of
them sat down to consume
the stolen liquor the first and second appellants became very hostile in their
attitude towards the third
appellant. Save that they asked the third appellant
to indicate ,to them the location of the deceased's bedroom, there was no
conversation
between them. Not even the defection and departure of Msomi was
discussed. When the lights in the deceased's house were put off the
first and
second appellants went off on their own to commit the robbery without making any
further arrangements with the third appellant
as to when and where they would
meet him later. Thereafter, so the evidence of the third appellant proceeded, he
betook himself to
another place in the vicinity of the deceased's house where he
awaited further developments. A while later he was called over to
the
20
house by the first appellant, and he went in through the
front door. He
removed the telephone and hid it.
Brandishing a knife in a threatening
fashion the first
appellant told him that the deceased had fainted, and
that
the third appellant should untie him. The third appellant
entered the
deceased's bedroom by crawling along the floor.
In so doing he encountered
nothing on the floor to suggest
any disorder in the room. He found the
deceased pinioned
to the legs of the bed. He cut these ropes and
then
noticed a rope which was simply looped, but not tied,
around the neck
of the deceased. He saw no rope tied as a
ligature. When asked to explain why in exh S he had said
to the magistrate -
"I also cut a rope what was tied around the Manager's
neck...."
the third appellant replied that this had
been a mere slip
of the tongue. According to the third appellant he pulled
the quilt up to the deceased's neck on leavihg the bedroóm;
21
and the deceased was then lying in a normal position with his head to the
headboard. He stuffed the cut ropes into his pocket and
left no ropes behind in
the bedroom. When confronted with a police photograph depicting the deceased as
he had been found dead on
the bed with one rope under his left arm and another
rope very close to it, the third appellant offered two explanations. First,
that
the ropes might have fallen out of his pocket. Second, that during the night
some stranger had entered the bedroom in order
to rearrange the room and the
position of the body. Indeed, the third appellant suggested that the later
intruder might have been
none other than Mdluli himself. The third appellant
further testified that he noticed no injuries whatever on the face or head of
the deceased. However, as the deceased was. not breathing and had no pulse, he
concluded that he was already dead.
Later, and while they were in the
sitting-room,
22
so the evidence of the third appellant proceeded, the first appellant handed
him a bunch of keys. According to the third appellant
he was satisfied that one
of these keys was the safe key. He firmly denied that he had told the first
appellant that the safe key
was not there; or that any further search for the
safe key was undertaken. But despite the discovery of what the third appellant
conceived to be the safe key, his two confederates not only decided at that
juncture to leave the scene of the crime with their business
unfinished, but in
addition they forced the third appellant at knife-point to accompany
them.
The third appellant further testified that when the car in which they
made their getaway reached Pinetown he realised for the first
time that the
deceased was dead because the first appellant then informed him of the fact.
When challenged with his earlier evidence
that he had already concluded as much
from his own earlier observations
23
of the deceased, his response was to say that upon their
departure from
the house he had only been ninety-five
percent sure; and that this "second
opinion" provided
certainty for him. A day or two thereafter, so
testified
the third appellant, he spoke to Mdluli. But although he
told
Mdluli of the goods they had removed from the house he
omitted to mention
that they had left a corpse behind them.
In the course of a comprehensive judgment
the
learned trial judge carefully scrutinised the
evidence and
weighed all the probabilities. In considering the role
played
by the third appellant at the time of the killing
the trial court rightly
regarded it as significant that
originally four men had been considered
necessary to carry
out the plan; and that upon the defection of Msomi the
task-force was reduced to three. In this connection the
trial judge
observed:-
"It was then a matter of two men left to overpower the deceased, if in fact
accused no 4
24
(the third appellant) had to wait in the wings, as it were, until the keys had
been secured. We think it would be taking an extraordinary
risk as a matter of
probability, that two men, even big men like accused Nos 1 and 2, could
effectively do what three were required
to do."
The trial. court considered that the third
appellant
was a lying witness. It found as a fact that at
the critical stage of events
the three appellants re-
entered the deceased's house together and in the
same
fashion as before. I quote again from the judgment of the
court
below:-
"In rejecting the story of accused No 4 as to what he did at that particular
time, not only because of its inherent improbability
which has attracted
scepticism and its ultimate rejection, but because of the lies he has told in
recounting his part, we conclude
that he entered the house at the same time as
accused Nos 1 and 2. Not only was his courage stimulated by the liquor he had
consumed
but it seems to us that, if the lights remained off in the bedroom at
the time of the attack, the chance of his being identified
by his victim was
extremely remote. It seems to us furthermore that his assistance was required to
make assurance doubly sure. It
was he .... who knew the size of the deceased. He
must have
25
known him to be a powerfully built man whose weight would not make him an
easy person to subdue, and whose temperament as known to
the
accused may well
have suggested that he would
fight for his life. So it does not seem to us
unlikely, but in fact extremely probable, that in devising the attack on the
deceased
there must, have been an apportionment of duties between those who were
to seize him. And what No 1 has had to say in that regard
is not inherently
improbable at all, namely that he seized the legs while his companions tackled
the torso of the deceased.
What we have already concluded from the nature of the injuries sustained by
the deceased is that he put up such a battle for his very
life. It is known he
had cried out on their arrival. If a reason has to be found for the fact that
his hyoid bone was fractured,
which is consistént with manual pressure
being applied, then to our way of thinking it was to stifle his cries, and to
prevent
the security guards from coming nearer. It is known that that would not
immediately kill him, so we have the impression of a man
struggling desperately
to save himself
he had to be secured, and there seems no
doubt in our mind that the
ligature was applied to him order to subdue him completely. It was tied round
his neck in such a way as
to strangle him. It seems to us that in endeavourihg
to free himself or to prevent further loops being put round his neck, he put
his
hand there and his finger was cut deeply. It needs no emphasising
26
that if you put a rope like that round a man' s neck you must know by tightening
it to that extent he will be killed."
In the
situation which then confronted the three appellants, so the trial court found,
extreme measures to subdue the deceased became
necessary. The trial court
concluded that, whoever in fact may have used the rope in order to strangle the
deceased, did so in pursuance
of a common purpose to which all three appellants
were party; and that each of the three appellants was therefore guilty of
murder.
The appeals of the appellants were argued by three counsel who
appeared pro Deo. Mr Lupton argued the appeal of the first appellant
while Mr
Singh appeared for the second appellant. They were also counsel for the first
and second appellants respectively at the
trial. Mr Gerber, who did not appear
as counsel at the trial, was prepared at comparatively short notice to argue the
appeal
27
on behalf of the third appellant. This court is indebted to all three counsel
for their assistance in the matter.
Both in his typewritten heads and in his
argument before us Mr Lupton confined his submissions to the matter of sentence.
We consider
that in so doing he exercised a proper discretion. On the merits of
the conviction of the first appellant there is not the slightest
reason for
disturbing the finding of the trial court. The first appellant was a lying and
patently unreliable witness. His evidence
that no violent struggle had taken
place between the deceased and his assailants was transparently false. The trial
court rightly
disbelieved his story that he did not know what his
fellow-attackers did to the deceased. His tale that he took part in the robbery
under compulsion by Mdluli was likewise rightly rejected as untrue.
The heads of argument prepared on behalf of
the
28
second appellant included an attack on the propriety of the second
appellant's conviction, but in argument before us Mr Singh, wisely
we think,
abandoned the appeal of the second appellant on the merits and limited his
submissions to the matter of sentence. On the
merits of his conviction no
argument of any substance can be advanced in favour of the second appellant. He
was rightly described
by the trial judge as a thoroughly unsatisfactory and
untruthful witness who created a most unfavourable impression. Suffice it to
say
that the second appellant was a witness quite unworthy of credence. To the
matter of sentence in so far as the first and second
appellants are concerned I
shall return after dealing briefly with the case on the merits against the third
appellant.
In the case of the third appellant, the merits of his conviction were fully
explored in argument by his counsel. Mr Gerber strenuously
submitted that the
trial
29
court had erred in excluding as a reasonable possibility that at the time
when the deceased was being done to death the third appellant
may well have been
outside the house. Having given due consideration to all the arguments on behalf
of the third appellant in regard
to his conviction I am unable to find any good
ground for disturbing the conviction.
There is so I consider, no reason at
all for disagreeing with the trial court's assessment of the probabilities. That
assessment appears
from a lengthy passage of the judgment of the court below
which has already been quoted. In my view the reasoning adopted by the
trial
court is cogent; I agree with it. The probabilities point overwhelmingly to the
conclusion that immediately before the attack
upon the deceased the three
appellants entered his house together and attacked the deceased in concert.
30
To this must be added the fact that the third appellant, an articulate person
of considerable intelligence, was shown to be a thoroughly
mendacious witness
whose testimony was riddled with inconsistencies. A few examples will suffice.
Mention has earlier been made of
the fact that, although prosecuting counsel at
the trial handed in exh S by consent, the third appellant sought in his evidence
to
depart from his statement to the magistrate. In regard to what is said in the
body of exh S and as to what transpired while the statement
was being recorded,
the third appellant in the course of his evidence revealed himself as an evasive
and transparently untruthful
witness. It is furthermore a significant fact, and
one which reflects adversely on the credibility and reliability of the third
appellant,
that exh S contains not the slightest hint that the deponent's
participation in the whole criminal venture was the result of any
coercion
on
31
the part of Mdluli.
In regard to that part of the third appellant's story
involving the Inkatha movement and the threats allegedly uttered by Mdluli,
the
trial court rightly entertained the gravest doubts. No inkling of this part of
his defence was betrayed before the trial itself,
either in exh S or at the sec
119 proceedings in the magistrate's court (at which the third appellant was
represented by an attorney
and a written statement outlining his defence was
handed in). In my opinion it was a dishonest afterthought.
The third
appellant's version that after the raiding party had been deserted by Msomi
there was no further planning or discussion,
and that the first two appellants
simply moved away without so much as a word to the third appellant, is palpably
false and was properly
rejected out of hand by the trial court. In this
32
connection the trial judge remarked:-
"The merit of course of that part of No 4's story is, that he would not have to
enter the house at
all But (it) carries with it this
telling criticism that he did not discuss
those arrangements with either accused Nos 1 or 2, namely that he would be
moving across the fairway to another part in the bushes,
there to be found, and
be summoned when the key was found
and we may ask rhetorically how is it
then that according to No 4 he was found in
that particular spot after presumably the man had been
killed."
Then there is the third appellant's
version, bordering on the ludicrous, that when a key had been discovered which
he considered to
be the safe key, and when therefore the success of the criminal
venture was finally in sight, it was suddenly abandoned. Equally
unconvincing,
and plainly false, is the testimony of the third appellant as to his
observations in the bedroom of the deceased.
There can be little doubt that
the third appellant's evidence in regard to when and why he removed the
deceased's telephone was false.
This párt of his
33
story was rightly rejected by the trial court in the
following passage in its judgment:-
"If the plan was to be carried out as originally anticipated, namely that Mr
Agar was to be trussed up with ropes, what fear was
there that he would get
loose and use a telephone. We can find no logical reason why, without any
inquiry on the part of accused
No 4 or explanation by accused No 1, that the
telephone should have been hidden at that particular time. Per contra, if the
story
of No 1 and No 2 is correct that No 4 had entered the house with them;
then that would have been a salutary precaution to take before
they got into the
bedroom where Mr Agar was sleeping. It could well have been anticipated by his
would-be assailants that there could
be some running skirmish, as it were, where
the deceased could have got to his telephone and perhaps raised the
alarm."
Lastly, the third appellant's suggestion
that some subsequent nocturnal intruder might have been responsible for the
disorder in the
bedroom and the position of the body as discovered on the
following morning hardly merits serious consideration.
Suffice it to say that in giving evidence the
34
third appellant fared no better than the first and second appellants. He left
the witness stand a thoroughly discredited witness.
The appeal against his
conviction cannot succeed.
I turn to the appeals against the three death
sentences. The appellants were sentenced to death in November 1988. The appeals
against
their sentences are, however, governed by the Criminal Law Amendment
Act, 107 of 1990, which was promulgated on 17 July 1990 and
whose provisions
have abolished the compulsory imposition of the death sentence. Accordingly in
each case the appeal against the
death sentence will have to be decided in terms
of Act 107 of 1990 and conformably to the principles laid down in recent
judgments
of this court such as S v Masina and Others 1990(4) SA 709 (A); S v
Senonohi 1990(4) SA 727 (A); S v Nkwanyana and Others 1990(4)
,SA 735 (A);
35
S v Mdau 1991(1) SA 169(A); S v P 1991(1) SA 517 (A); and
Joseph Cele v S
(an unreported judgment handed down on 16
March 1991).
At the date of
sentence each appellant was a man in his early thirties. No previous convictions
were proved against the secdnd appellant.
The third appellant had a clean
record. The first appellant had a single previous conviction dating from October
1975. This was for
a robbery in which no weapon had been used. For purposes of
sentence the trial judge was prepared (correctly, in my view) to deal
with the
first appellant as if he too were a first offender.
The enormity of the murder in question is
accurately
described in the judgment in which the trial
court recorded its finding that no extenuating circumstances
were present
-
"However we scrutinize the facts we are left with the
inevitable conclusion that these men were
36
motivated by greed. They had determined on violence as a means to this end and,
when faced with a victim who proved more formidable
than they had obviously
expected, set about him with a wicked determination to bring about his
death."
Having regard to the test and the incidence of
onus
formerly applicable, it seems to me that the trial
court's finding that no
extenuating circumstances existed is
hardly open to criticism. However, as is
well known, Act
107 of 1990 requires that a radically different approach
to
the death sentence be adopted. The concept of
"extenuating circumstances" has been displaced by the notion
of
"mitigating or aggravating factors." The death sentence
is to be imposed only after the court has made a finding on
the presence or absence of any mitigating or aggravating
factors and if, with due regard to that finding, the
presiding judge (or, on appeal, this court) is satisfied
that the death sentence is the proper sentence. The
current position is described in the following words by
37
E M GROSSKOPF, JA in S v Senonohi (supra) at 734 D-F:-
"Die appellant se morele verwytbaarheid, wat die
wese gevorm het van die
ondersoek na versagtende
omstandighede, is nie meer allesoorheersend
nie
(hoewel natuurlik steeds belangrik) maar moet nou
in die skaal geplaas
word met die ander faktore
wat verband hou met die doelstellinge
van
straftoemeting. Na behoorlike inagneming van al
hierdie faktore, mag
die Verhoorregter (en hierdie
Hof op appel) die doodvonnis oplê slegs
as hy
'oortuig is dat die doodvonnis die gepaste vonnis
is' (art 277(2)(b)
soos gewysig deur die nuwe Wet
- in Engels 'satisfied that the sentence of
death
is the proper sentence'). Die uitdrukkings 'die
gepaste vonnis' en
'the proper sentence' laat blyk
dat die doodstraf nie opgelê moet word
nie tensy
die Hof oortuig is dat geen ander straf gepas sou
wees
nie "
This Court has held that the
phrase "mitigating
factors" used in the new Áct imports a concept broader than
that
signified by the former phrase "extenuating
circumstances". In S v Nkwanyana
and Others (supra) it was
pointed out that what is comprehended under
"aggravating
circumstances" in relation to a grave crime must await
clarification by
the courts. Considerations relevant to the
38
inquiry would include -
"....the degree of planning, the manner of
commission of the murder, its
motive, the
circumstances of the victim and an accused's
previous
convictions "
What mitigating and aggravating
factors are respectively to go into the scales in the instant case, and how do
they weigh up against
each other? That the second and third appellants have
clean records and that the trial judge rightly treated the first appellant
as a
first offender constitute an obvious and important mitigating factor. It shows
that the appellants were not innately criminal;
and, more significantly, it
shows that before committing the murder in question none of them had displayed a
propensity towards crimes
of violence.
In my view the evidence adduced at the
trial also affords a sufficient factual basis for the finding of a further, if
rather less
weighty, mitigating factor. It
39
emerges in the following way. In order to forestall a defence that in
embarking upon the robbery expedition the four accused had acted
under
compulsion of threats made to them by Mdluli, the prosecution called Mdluli as a
State witness at the trial. This witness testified
at considerable length. In
the course of his evidence Mdluli stoutly denied any participation by him in
either the planning or execution
of the robbery; and in respect of the events on
the night of 14 February 1988 he advanced an alibi which was supported by the
evidence
of other State witnesses. In its judgment the trial Court described
Mdluli as a "man of very strong personality" and as "a formidable
person who, in
a given situation, could well have exercised authority over others." He was
subjected to prolonged cross-examination,
but although he appeared to maintain
his composure in the witness stand the trial Court recorded that his testimony
was "not always
to our
40
satisfaction."
In regard to the possible role played by Mdluli in
the whole affair the trial Court in the course of its
judgment posed
various questions:-
"....was he completely innocent in this matter as he claims to be? Was he the
instigator and willing co-conspirator with the accused,
or did he threaten the
accused in the manner stated at the time of plea so as to force them to take
part in these crimes?"
For the purposes of
determining the more immediate issues
before it the trial Court found it
unnecessary to provide
firm answers to all the above questions. It concluded
that
the four accused -
"....whether in conjunction with Mdluli or not, had embarked upon a plan to rob
the Country Club of the takings that
weekend."
On the evidence as a whole
the trial Court
found as a fact that the participation of the three
appellants in the
robbery had not been induced by any
compulsion on the part of Mdluli. Suffice
it to say that
41
in my view that limited finding was plainly correct.
However, while the
trial Court stopped short of any specific
finding that Mdluli had collaborated with the appellants in
planning and
executing the robbery, it nevertheless recorded
its firm impression that a number of suspicious features in
the case
tending to implicate Mdluli -
" are peculiar enough to place a question mark
over his alleged participation in the events of
the 14th
February "
These suspicious features (as for example
that Mdluli
received possession of a portion of the loot from the wife
of
the third appellant and concealed it, and that Mdluli
gave the third
appellant certain financial assistance) are
detailed and discussed at length
in the judgment of the
court below and need not here be recapitulated.
Suffice it
to say that in my view the evidence as a whole contains
a
number of significant pointers to the conclusion that,
although he was
not a member of the actual raiding party
42
which entered the deceased's house, Mdluli may well have been the originator
of the whole of the robbery; and the person who recruited
the accused to put it
into execution.
At the time of the trial of the appellants the burden of
proving extenuating circumstances rested upon accused persons. Under the
new Act
the burden of proof is upon the prosecution to negative beyond reasonable doubt
any mitigating factors raised by an accused
or suggested by the defence. The
possibility that the entire enterprise máy have been master-minded by
Mdluli and that the
appellants participated therein at the suggestion and
instigation of Mdluli is, in my opinion, a real one. That possibility was not
negatived by the State, and for purposes of sentence it must rank as a
mitigating factor.
So much for the mitigating factors. The aggravating factors in the case are
many and glaring. Whether or not Mdluli was behind the
robbery, the fact
43
remains that the motive which impelled the three appellants to take part
therein was simply greed. The robbery was carefully planned
and the appellants
were privy to the plan. Its execution involved a sustained and brutal assault
ruthlessly carried out upon an elderly
man who lived alone in his secluded home
at a time of night when he was lying helpless and defenceless in his bed.
Although the victim
was heavily-built, he was a man in his sixties. He was
outnumbered three to one by his assailants each of whom was almost half his
age.
Of their respective physiques the trial Court said the following. The first
appellant was "a powerfully built man ....agile
and muscular"; the second
appellant was likewise "a powerfully built man"; and the third appellant was "a
very tall man and well
built."
In my judgment the aggravating factors characterising what can only be
described as a dreadful murder distinctly outweigh the two
mitigating
factors
44
earlier described. By itself, however, such an imbalance will not operate
decisively in favour of the imposition of the death sentence.
The death sentence
imposed by the trial judge must stand only if, having had due regard to such
mitigating and aggravating factors
as are present, this Court is satisfied that
the death sentence is the only proper sentence.
Having given anxious
consideration to all the circumstances of what represehts a troublesome
borderline case, I have come to the conclusion
that the death sentence is not
the only proper sentence. It need hardly be said that in the case of a crime of
murder as heinous
as the present one the deterrent and preventive objects of
punishment predominate. It seems to me, nevertheless, in all the circumstances
-
and having regard in particular to what has been said about their previous
records - that in the case of each of the three appellants
the most
45
appropriate and just sentence would be imprisonment for life.
The punitive
effect of a sentence to life imprisonment has recently been stiffened by
Parliament. In this regard two recent decisions
of this court dealing with the
problem of an appropriate sentence in a murder case are instructive. In S v Mdau
(supra) the accused
had a previous conviction for murder for which he had been
sentenced to imprisonment for six years. Less than two years after his
release
on parole he committed the murder with which the appeal was concerned. This
Court considered that this aggravating factor
in the case far outweighed the
mitigating factor (that the accused had been subjected to provocation and that
he had killed in anger);
and that the death sentence was therefore a proper
sentence. The court nevertheless decided that the death sentence was not the
proper
sentence. One of the considerations upon which the
46
latter conclusion was based was that Act 107 of 1990 had
amended the
provisions of sec 64 of the Prisons Act, No 8 of
1959, in respect of
prisoners serving life sentences in such
a way that it is now the Minister of
Justice and not the
Prison Board who has to initiate the release of
such
prisoners. Accordingly, so it was held, the passing of a
life sentence would reflect the court's manifest intention
that the
offender should be removed from society for the
remainder óf his life.
In this connection EKSTEEN, JA
observed at 176 F-G:
"Die bepalinge van hierdie artikel hou dus in dat
'n Hof sy plig om die gemeenskap te beskerm teen die aanslae van so 'n
geweldenaar soos wat die appellant is, kan nakom deur hom
lewenslang
gevangenisstraf op te lê. Wat die Hof betref, sal so 'n persoon finaal uit
die gemeenskap geneem word en die res
van sy lewe in gevangenisskap deurbring.
Die enigste manier waarop hy weer tot die gemeenskap kan terugkeer, is as die
Minister die
inisiatief neem en die vrylatingsadviesraad vra om hom te adviseer
oor sy moontlike vrylating. Die vrylatingsadviesraad moet dan
'met behoorlike
inagneming van die belange van die gemeenskap', sy vrylating
oorweeg."
47
In Mdau's case (supra) the court was concerned to
protect society against a hardened miscreant with a
proclivity for violent
crime. In the present case there
is, so I consider, no good reason for fearing that any one
of the three
appellants is likely again to inflict extreme
violence on a fellow human; and
accordingly the
safeguarding of society is not here the vital consideration.
But, as
pointed out in Joseph Cele v S (supra), at p 16 of
the typewritten judgment,
even where the protection of
society is not the imperative consideration -
"....life imprisonment is also appropriate where
the circumstances of the case call for punishment which is so severe that no
lesser period of imprisonment would suffice."
Having
regard to the nature of the murder committed by the
three appellants it seems to me that no sentence less
rigorous than imprisonment for life would meet the justice
of the case. Each matter must, of course, be dealt with
48
on its own particular facts and merits, but I am fortified in my view that
here no shorter term of imprisonment would be regarded
by society as an adeguate
deterrent to others by the following indisputable fact. Of recent times this
country has suffered a spate
of cruel and dastardly murders perpetrated by gangs
of robbers upon elderly and defenceless persons living in isolated places. This
is a scourge which must be stamped out.
The appeal of each appellant against his conviction for murder is dismissed.
The appeal of each appellant against the sentence of
death imposed by the trial
Court succeeds. In each case the sentence of death is set aside and there is
substituted therefor a sentence
of
49
imprisonment for life. The remaining sentences of imprisonment imposed by the
trial Court will run concurrently with the sentences
of imprisonment for
life.
G G HOEXTER, JA