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1992
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[1992] ZASCA 61
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S v Tloome (479/91) [1992] ZASCA 61; 1992 (3) SA 568 (AD); (2 April 1992)
CASE NO 479/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
JACOB OUPA TLOOME
Appellant
and
THE STATE
Respondent
CORAM
: CORBETT CJ, KUMLEBEN
JA et NICHOLAS AJA.
DATE OF HEARING
: 18 February 1992
DATE OF
JUDGMENT
: 2 April 1992
JUDGMENT
CORBETT CJ
2
CORBETT
CJ
The appellant stood charged before
O'Donovan AJ and assessors in the Witwatersrand Local Division on two counts of
murder (counts
1 and 3), two counts of robbery with aggravating circumstances
(counts 2 and 4) and one count of housebreaking with intent to steal
and theft
(count 5). Upon arraignment appellant pleaded guilty to counts 1, 2, 3 and 4 and
guilty on count 5 to theft. The last-mentioned
plea was accepted by the
State.
The State proceeded to lead evidence on counts 1, 2, 3 and 4 as fully
as if the accused had pleaded not guilty. The evidence given
by the State
witnesses was hardly challenged by the defence. The appellant did not give
evidence or call any witnesses on the merits,
but did testify in regard to
extenuating circumstances.
The Court a quo found the appellant guilty as charged on counts 1, 2 3 and 4
and guilty of theft in respect of count 5. The Court
held that there were no
3
extenuating circumstances in respect of the murder counts and
the trial Judge imposed the death sentence on each of counts 1, 2, 3
and 4; and
a sentence of six years imprisonment in respect of count 5. The appellant was
sentenced on 9 February 1989.
The trial Judge refused an application for
leave to appeal against the death sentences and a subseguent petition to the
Chief Justice
also failed. Thereafter the appellant's case was considered by the
panel constituted in terms of sec 19 of the Criminal Law Amendment
Act 107 of
1990. The panel decided that had
sec 277
of the
Criminal Procedure Act 51 of
1977
, as substituted by
sec 4
of Act 107 of 1990, been in operation at the time
sentence was passed the sentences of death would probably have been imposed by
the trial Court. Appellant's case was accordingly referred, in terms of sec
19(12) of Act 107 of 1990, to this Court on the question
of sentence.
4
Counts 1 and 2 are linked in that they relate to the same
occurrence, as are counts 3 and 4. Count 5 relates to a third occurrence.
The
facts pertaining to counts 1 and 2, as revealed by the evidence, are shortly as
follows. The deceased, Mrs E M A Ferguson, then
67 years of age, lived together
with her former husband (they having obtained what was described as "a divorce
of convenience") in
Rewlatch in the district of Johannesburg. On the day in
question, 26 November 1987, Mr Ferguson went to work early in the morning.
During the course of the morning, at about 09h30, the deceased came to Mr
Ferguson's place of work in order to bring him some sandwiches.
She left,
intending to return home. When Mr Ferguson himself returned home at about 18h00
that evening he found the deceased lying
dead in the lounge. She had been
stabbed three times in the upper chest and there was clear evidence of
strangulation. The hyoid
bone was
5
fractured. This indicated throttling by hand. The doctor who
performed the post-mortem examination was of the view that the deceased
was
first stabbed and then throttled, while still alive. He attributed death to both
the stab-wounds and the throttling. He estimated
that if the person who
throttled the deceased had maintained a constant pressure death would have
occurred within three of four minutes.
Sixteen items of property were missing
from the home, including the deceased's Toyota Corolla motor car, a television
set, a video-recorder
and ten video-tapes.
Prior to November 1987 the appellant had worked as a casual labourer for a
plumber named Hughes, who stayed in the same street as
the Fergusons. On various
occasions Hughes had done plumbing work at the Ferguson home. On each occasion
the appellant assisted him
with the work. On the last occasion some damage was
done to a ceiling in the bathroom and Hughes undertook to repair
6
this. Prior to the murder of the deceased he had not done so,
and had not instructed the appellant (who in the meanwhile had left
his employ)
to do so.
After his arrest appellant made a confession before a justice of
the peace in relation to counts 1 and 2, which was admitted in evidence
at his
trial. In it he stated that on 26 November 1987 he was busy repairing a ceiling
in what must obviously have been the Ferguson
home. The deceased left the house
to go to the shops. While she was away he drank rum and gin which was in the
house. After the deceased's
return she prepared food for him, which he ate. The
deceased came to the bathroom with a plastic bag in which to put pieces of the
ceiling. The appellant seized her. She broke loose and ran to the dining-room.
He followed her, grabbed her, stabbed her with a knife
and throttled her until
she was dead. He took the goods which were later found missing, loaded them into
the deceased's motor car
7
and drove off. He sold the television set and the
video-recorder. The motor car was stripped by a friend of his. He was arrested
before
the parts of the motor car could be sold.
Counts 3 and 4 concern a
similar episode which occurred on 11 December 1987. The victim this time was
66-year old Mr N J van der Riet,
who lived with his wife in a house not far from
the Ferguson home. He was a pensioner, but his wife worked. On the day in
guestion
she left for work at about 07hl5. Her husband was then in good health.
She returned that afternoon at about 16h30 to find her husband
lying dead in the
kitchen. According to the post-mortem evidence he too had been either throttled
manually or strangled with a ligature
or killed by a combination of both. A
number of items of property were missing from the home, including a portable
radio, radio-tape
player and about R180 in cash. In this case as well the
appellant made a confession to a
8
justice of the peace, which was admitted in evidence. It
appears that appellant used to do gardening work at the Van der Riet home
on
Saturdays. The llth of December 1987 was a Friday, but he went there to cut the
grass and explained to the deceased that he had
come on the Friday because he
wished to go off early the following day. The deceased gave instructions in
regard to the work he was
to do. While he was working the deceased came outside
to find out at what time the appellant wished to leave on the Saturday. The
appellant told him. As the deceased was about to re-enter the house the
appellant seized him from behind and asked: "Waar die geld?"
The deceased
screamed. The appellant grabbed him round the throat and forced him into the
kitchen, where he throttled him to death.
He then helped himself to the missing
goods, packed them in a container and departed. He thereafter sold various
items.
9
No evidence was led in respect of count 5, but the indictment
charges him with having on 3 June 1987 broken into a home in the Johannesburg
district with intent to steal and having stolen 22 items of property, including
a television set, a camera, and a portable radio.
The evidence given by
appellant during the inguiry as to extenuating circumstances was terse in the
extreme. In chief he merely stated
that he was 29 years old, that his only
dependant was his sister, that he gave the police "every co-operation", that he
had admítted
everything on the first four counts and that he was sorry
for what he had done. Under cross-examination he conceded that, having
been
caught in possession of many of the items of stolen property he did not have
much choice other than to admit everything. He
further stated that he started
feeling sorry "after this thing had happened".
10
After the finding of no extenuating circumstances the State
produced his list of previous convictions and led evidence by Col Mostert
of the
South African Police.
The appellant's previous record is a bad one. It shows
that his career in crime started in 1972, when he must have been about 12 years
of age. In that year he was twice convicted of housebreaking and theft and on
each occasion received cuts. In 1976 he again received
cuts on being convicted
on two counts of theft. In the following year (1977) he was convicted of
malicious damage to property. Sentence
was postponed for five years. In 1977 he
was again convicted of theft and sent to a reform school. In 1978 a conviction
for theft
resulted in a sentence of 6 months imprisonment. About 18 months later
(in 1980) he was again convicted of theft and received a sentence
of 12 months
imprisonment. Within 6 months of being released on parol he was
11
convicted of assault with intent, involving the use of a
knife. On this occasion he was fined, but readmitted to serve portion of
his
previous sentence because he had breached his parol. And then finally on 19
August 1983 he was sentenced to six years imprisonment
for housebreaking and
theft (evidently stealing a television set from a private home). One does not
know how much of this sentence
he served, but in view of his record it seems
unlikely that he received much remission. Consequently the present crimes must
have
been committed soon after his release from gaol.
Mostert's evidence
related to the high incidence of attacks (rapes, robberies, murders and serious
assaults) upon elderly people in
their own homes, countrywide and in the
Johannesburg area. This evidence, supported as it was by statistics, shows a
significant
increase over the period 1 January 1987 to 31 December 1988.
12
I shall deal first with the death sentences imposed in respect
of the counts of murder. Attached to the heads of argument of appellant's
counsel are two reports. These were not placed before the Court a quo but,
according to counsel, were put before the panel. The first,
headed "Voorlopige
verslag", which is undated, purports to be from a psychiatrist, who studied the
record of the trial and evaluated
the appellant. The report refers to the
appellant's history of anti-social conduct from an early age, but states that
there is insufficient
information to determine whether psychopathy can be
diagnosed. A full background report by a social worker for this purpose is
accordingly
requested. No other mental disorder whereby he could possibly be
held to be not responsible or his responsibility diminished, is
suspected. The
report concludes by saying that a final report will be given when fuller
background information is available.
13
The other report, dated 8 August 1990, is a social background
report by a probation officer. It gives the usual information about
the
appellant's family background, school attendance, work record, criminal record,
social and cultural situation and so on. It includes
a statement to the effect
that at an early age appellant "showed signs of being mentally disturbed" and
was taken to witch doctors.
Clearly these reports are not properly before the Court and cannot be taken
into account in adjudi-cating the appeal. During argument,
however, the question
arose as to whether the case should not be remitted to the trial Court (the
sentence having been set aside)
for the hearing of further evidence
incorporating the information contained in the reports and generally dealing
with the appellant's
personality. In this connection reference was made to the
judgment of this
14
Court in the case of
S v Dlamini
1992 (1) SA 18
(A), at
30 C - 31 F.
A case referred to this Court under sec 19(12) of Act 107 of
1990 is reguired to be considered in the same manner as if it were an
appeal by
the "convicted person" against his sentence, The powers of this Court in such a
case are set forth in sec 19(12)(b), which
provides that the Court may -
"(i) confirm the sentence of death;
(ii) if the Appellate Division is of the opinion that it would not itself
have imposed the sentence of death, set aside the sentence
and impose such
punishment as it considers to be proper; or
(iii) set aside the sentence of death and remit the case to the trial court
with instructions to deal with any matter, including the
hearing of evidence, in
such manner as the Appellate Division may think fit, and thereafter to impose
the sentence which in the opinion
of the trial court would have been imposed had
the
15
said section 277 been so in opera-tion".
In the recent case of
S v Nofomela
1992 (1) SA
740 (A) this Court considered fully the power of remittal
to the trial
court for the hearing of further evidence.
In the course of his judgment
(concurred in by Hefer JA
and Preiss AJA) Nienaber JA pointed out (at 747
B-E) that
it was the clear intention of the Legislature (in
enacting Act
107 of 1990) that, inter alia, the case of
every person under sentence of
death should be
reconsidered in terms of the new legislation. Where
his
trial was completed under the old regime he may be
prejudiced if he is
denied the opportunity of re-opening
his case and leading new evidence for
-
"The manner in which he conducted the trial, his decision to lead, or to
refrain from leading or controverting specific evidence,
for instance, may well
have been dictated by either the incidence of the onus as it then was or the
narrower connotation ascribed
to the old concept of extenuating circumstances in
contrast to
16
the new concept of mitigating factors (cf
S v Masina and Others
1990 (4)
SA 709
(A) at 714 B) or both."
Because
the rules have been retrospectively changed it is
only right that a person
sentenced to death should be
permitted to reconsider his strategy.
Nienaber JA cautioned, however, as follows (at
747 F-G and 748 A-E):
"Implicit in that approach is, how-ever, a limitation. Since the purpose is to
give an accused the benefit, ex post facto, of the
new test, the proposed
evidence must have a bearing on how the accused would have conducted his case on
sentence if the new test
had been in place at the time sentence was passed by
the trial Court.
As a first step this
Court must therefore be satisfied, in considering whether to accede to the
reguest to have the matter remitted
to the trial Court for new evidence to be
led, that the proposed evidence is of such a nature that it is
17
reasonable to suppose that the appellant would have presented such evidence
if the new test had been in operation at the time sentence
was passed. That
would encompass material of which he was aware and which was available to him at
the time but which he may have
withheld because the onus was against him or
because it was irrelevant; as well as evidence of which he was unaware but which
may
well have led had he been aware of it and had the new test been in
operation. This formulation would exclude as irrelevant any material,
whether or
not the appellant was aware of it at the time of sentence, which is of such a
nature that it would not have been presented
to the trial Court even if the test
had then been what it now is. By the same token, material should as a rule be
excluded which
was not in existence at the time of sentence. Section 19(12)(a)
enjoins this Court, when a matter reaches it via the panel, to consider
it 'in
the same manner as if it were considering an appeal by the convicted person
against his sentence'. Material which originated
after the passing of sentence
but before
18
the hearing of an appeal would, save perhaps in exceptional circumstances, not
be taken into account."
In conclusion
the learned Judge of Appeal summed up the
position as follows (at 748 G - 749 A):
"In summary, and superimposing the above observations on the reguirements of
s
316(3)
of the
Criminal Procedure Act 1977
, an appellant, in order to succeed
with an application in terms of
s 19(12)(b)(iii)
, will have to satisfy the
Court:
(a)
that the proposed evidence is relevant to the issues of mitigating
or aggravating factors and the exercise by the trial Court of its
discretion in
the light of the new test;
(b)
that, save for
exceptional circumstances, there is a reasonable possibility that such evidence
would have been presented to the trial
Court by the appellant if the test had
then been what it now is;
19
(c)
that the
proposed evidence would presumably be accepted as true by the trial
Court;
(d)
that, if accepted, such evidence
could reasonably lead to a different sentence; and
(e)
that, save for exceptional circumstances, there is a reasonably
acceptable explanation why such evidence was not led at the trial.
Situations
falling under (b) above would comply with this
requirement."
In
Nofomela
's
case,
supra
, there was before the
Court an application on notice of motion, with supporting
documents,
asking the Court to exercise its power of
remittal under
sec 19(12)(b)(iii).
In the present case
there is no such application. All that happened is
that
appellant's counsel, reacting to certain observations
from the Bench, asked that the case be remitted for the
hearing of further evidence.
20
It is, accordingly, appropriate in this case to give a general
indication of the procedure to be followed when the Court is to be
asked to
exercise its powers under
sec 19(12)(b)(iii).
As a general rule an applicant for
such relief should make application to this Court cm notice of motion, supported
by affidavits
indicating the evidence which the applicant proposes to lead
before the trial Court. It is an essential requirement that any witness
whom the
applicant intends to call, if and when further evidence is heard, should depose
to an affidavit (to be annexed to the application)
setting out the gist of his
evidence or, where the witness has compiled a report which would constitute the
basis of his evidence,
that such report be verified by affidavit. The Court will
not entertain or have regard to unsworn statements or reports. The application
must be served upon the State in accordance
21
with usual procedures; and the State may, if it so wishes,
file answering affidavits.
Normally this Court will not exercise its powers
under
sec 19(12)(b)(iii)
mero motu. In the event of it appearing to the Court,
from the record of appeal or other information properly before the Court or
from
information tendered by counsel from the bar, that there is a reasonable
possibility that additional evidence, relevant in the
sense defined in
Nofomela
's case, exists and can be led, then the Court may, in its
discretion, invite appellant's counsel to submit an application along the
lines
described above (in the previous paragraph) and postpone the hearing of the
appeal to enable this to be done.
In an exceptional case this Court may invite such an application for remittal
in terms of
sec 19(12)(b)(iii)
even where the basis for the possible existence
of such evidence (as defined in the previous
22
paragraph) is lacking. In such a case this Court will spell
out to appellant's counsel the lines of investiga-tion to be undertaken
in order
to sustain a proper application for remittal. Such a case may arise where there
is a dearth of personal information about
the applicant (cf
S v Dlamini
,
supra
). In such a case the principles laid down in
Nofomela
's case
will have to be borne in mind.
I am of the opinion, upon a review of all the facts of this case, that this
is not an appropriate case for the Court to invite an
application for an order
for remittal in terms of
sec 19(12)(b)(iii).
The appellant was charged in the
Court a quo not only with murder but also with robbery where aggravating
circumstances are present
and housebreaking. Even if the kind of mitigating
evidence vaguely suggested by the psychiatrist's report and the probation
officer's
report might not have been relevant as to extenuating
23
circumstances on the murder charges (I make no finding in this
regard), it would certainly have been relevant on the other charges.
There is no
explanation as to why it was not presented to the trial Court. I cannot,
therefore, conclude that there is a reasonable
possibility that such evidence
would have been led before the Court a quo if the law as to the death sentence
had then been what
it now is. Nor am I persuaded that there is a reasonable
chance that such evidence, flimsy as it appears to be, could lead to different
sentences on the murder charges. My reasons for so concluding will appear from
my treatment of the appeal against these sentences.
The appeal must, therefore,
be considered on the basis of the appeal record as it stands and this Court must
pass its own judgment
as to the propriety of the death sentences imposed (see
sec 19(12)(b)(ii)
).
As far as the murder charges are concerned, there are a number of aggravating
factors. In each case
24
the murder was committed with robbery as the obvious motive in
the home of the victim. The victims were elderly people, less able
because of
their years to offer resistance. In each case the appellant was known in the
home concerned and it may be inferred that
the deceased was killed to prevent
future identification. This inference was conceded by appellant's counsel. In
each case the appellant
gained access to the victim's home on what appears to
have been an untrue pretext. In each case the appellant attacked his victim
ferociously and unexpectedly and without the slightest suggestion of
provocation. Each victim died a relatively slow and cruel death.
In each case
dolus directus is the only reasonable inference.
Another agravating factor is the appellant's criminal record, which reveals
him as a hardened recidivist. It is true that in the past
his offences have for
the most part not involved violence. But they
25
have involved theft and housebreaking and theft. And
housebreaking with theft as the motive often leads to confrontation with the
house-owner and violence. That is what happened here. The appellant eventually
embarked upon a campaign of housebreaking and, in
the last two instances, of
murder.
This Court has on a number of occasions indicated that in determining
whether or not the death penalty should be imposed the main
objects of
punishment, retribution, prevention, deterrence and reformation, should be
weighed. At the same time in cases of murder
of elderly victims in their own
homes with robbery as the motive, inevitably the factors of retribution and
deterrence tend to come
to the fore.
In appellant's case the prospects of rehabilitation and reform appear to me
to be very poor. The aggravating factors are many and
serious. No mitigating
factor of any substance has been suggested.
26
This is a case of extreme seriousness. In my view the death
penalty is the only proper sentence in respect of counts 1 and 3.
I turn now
to the sentences of death imposed in respect of the convictions for robbery with
aggravating circumstances (counts 2 and
4). In his reasons for sentence the
trial Judge, while directing himself to ignore the facts of the death of the two
deceased, emphasized
the features of the case to which I have called attention
in dealing with the question of aggravating factors in respect of the murder
convictions. The problems concerning the possible duplication of sentence in a
case such as the present one have on a number of occasions
engaged the
attention, and concern, of this Court. The most recent decision on this point is
S v S
1991
(2) SA 93
(A) - see particularly at 103 I -105 D. As is
pointed out in a passage from the judgment referred to, the danger of
duplication is
typically
27
present where a murder is committed in the course of
a
robbery and the accused is charged with and convicted of
murder as well
as robbery with aggravating circumstances
(at 104 D). In such cases the approach has been to
"think away" or ignore the death of the deceased when
dealing with the
guestion of sentence on the robbery
charge. With reference to this approach, the Court
stated the following (at 105 A-C):
"Hierdie benadering is, sover my bekend, vir die eerste keer deur Trollip AR
in S
v Mathebula and Another
1978 (2) SA 607
(A) te 613 H geformuleer
(waaroor aanstons meer) en is daarna herhaaldelik toegepas. 'n Selfstandige
regsbeginsel is dit egter nie.
Die eintlike beginsel is dat dieselfde feit of
feitestel wat aan meerdere misdade gemeenskaplik is - in die een geval bes
moontlik
as 'n bestanddeel van die misdaadomskrywing, en in die ander geval as
'n verswarende omstandigheid by vonnis - nie meermale teen
'n beskuldigde in ag
geneem moet word wanneer dit by die oplegging van vonnis op elk van die
28
klagtes kom nie. Die 'wegdink' van die een misdaad sodra 'n vonnis vir die ander
oorweeg word, is dus hoogstens 'n
riglyn."
This passage may reguire
further elucidation, but this is not the appropriate occasion for this. At least
it is necessary in the present
case to think away the fatal conseguences of the
appellant's attacks upon the two deceased in this case.
Having given the
matter careful consideration, I am of the view that, despite the seriousness of
the robberies and their attendant
circumstances, this Court would not have
imposed the death sentence in respect of counts 2 and 4 (see
sec 19(12)(b)(ii).
The violence
resorted to by the appellant clearly constituted an aggravating factor, but
it and the appellant's criminal record do not, in my opinion,
call imperatively
for the ultimate penalty. A sentence of 10 years imprisonment would be a fitting
punishment on each count.
29
Accordingly it is ordered that: (1) The death sentences
imposed in respect of counts 1 and 3 are confirmed. (2) The death sentences
imposed in respect of counts 2 and 4 are set aside and in each case there is
substituted a sentence of 10 years imprisonment.
M M CORBETT
KUMLEBEN JA)
NICHOLAS AJA) CONCUR