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1992
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[1992] ZASCA 65
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S v Pule (309/91) [1992] ZASCA 65 (19 May 1992)
Case No 309/91 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between:
BLOM WELLINGTON PULE
Appellant
- and -
THE STATE
Respondent
CORAM:
SMALBERGER, VIVIER et VAN DEN HEEVER JJA
HEARD:
5 MAY
1992
DELIVERED:
19 MAY 1992
JUDGMENT
VIVIER JA.
2.
VIVIER JA:
The appellant was convicted in the East London Circuit Local Division by
LUDORF J and two assessors on one count each of murder, attempted
murder and
robbery with aggravating circumstances. He was also found guilty of the unlawful
possessión of a firearm and ammunition.
No extenuating circumstances were
found in respect of the murder conviction, and under the then prevailing law he
was sentenced to
death. In respect of each of the attempted murder and robbery
convictions he was sentenced to twelve years imprisonment and for the
unlawful
possession of a firearm and ammunition he was sentenced to six months and three
months imprisonment respectively. All the
sentences of imprisonment were ordered
to run concurrently. With the leave of the
3.
Judge a quo the appellant appeals to this Court against the convictions and
sentences.
The offences all arise from an attack on a 53 year old shopkeeper, Makaya
Mark Soga ("the deceased") and his wife Lindiwe Andriena
Soga outside their shop
in Lamont Street, C.C. Lloyd Township, East London at about 9 o'clock on Sunday
night 11 December 1988. They
had just closed the shop for the day, and were
already seated in their Toyota Hi-Lux bakkie which was parked in front of the
shop,
preparing to go home, when a man hooded with a balaclava cap and wielding
a gun came up to their vehicle on the passenger side where
Lindiwe was sitting,
opened the door of the vehicle on that side and fired two shots at them. The
first shot hit Lindiwe in the left
buttock, lodging near the spinal column and
the second struck the deceased, who was sitting behind the steering wheel, on
the left
side
4.
of the chest penetrating the heart and left lung. The deceased died a short
while later as a result of these injuries. The assailant
fled with Lindiwe's
handbag which contained the weekend's takings of some R3000 in cash.
At the trial the appellant was identified as the assailant by an eye-witness,
a 15 year old boy Derrington Meth. He testified that
on the evening in question
he was playing with friends in the yard of a house directly opposite the
deceased's shop. He was sent
on an errand by his friend's mother and upon his
return he observed an unknown Black man standing at a lamp-post in front of one
Albert Hans's house which is diagonally across the street from the deceased's
shop. The man was thickset and was wearing a balaclava
cap which was rolled up
to above his eyebrows, a black
overcoat which extended to just above his knees and
5.
white tackies. The man had a scar which ran vertically along the left temple
next to the left eye. At the time the street lights were
on, including the light
on the post under which the man was standing. He saw Hans coming out of the shop
and talking to the man before
entering his house. When Hans later emerged from
his house the man was still standing under the lamp-post as before. Meth further
testified that shortly afterwards he saw the deceased closing the shop and
getting into his vehicle with his wife. At this stage
the man who had been
standing under the lamp-post moved towards Meth and his friends, swore at them
and fired one shot into the air.
The balaclava cap was now pulled over his face.
Meth was af raid and ran across the street to take shelter behind the deceased's
vehicle which was parked in front of the shop. He ran around the front of the
vehicle and hid behind the
6.
driver's door. He saw the man coming to the passenger side of the vehicle,
opening the door and firing a shot into the vehicle which
struck Mrs Soga. The
man grabbed the handbag which Mrs Soga was holding in her hands and then fired
another shot which hit the deceased.
The man ran off with the bag. He ran with a
pronounced limp. Meth identified the appellánt as the man he had seen
under the
lamp-post on the night in question.
The trial Court accepted Meth's evidence, describing him as an honest and
intelligent witness who was mature for his age. It went
on to say, however, that
in view of his youth and the f act that his evidence was given some 15 months
after the events, corroboration
of the vital aspects of his evidence implicating
the appellant was needed in order to sustain a conviction.
7.
The trial Court found such corroboration in the evidence of a number of other
witnesses as well as in certain circumstantial factors.
The most important of
these witnesses was a 19 year old youth Albert Hans who, as has been mentioned,
lived just across the road
from the deceased's shop.
Hans testified that on the night in quéstion he assisted the deceased
in the shop until about 7 o'clock when he went home.
Lindiwe's evidence was that
he only left the shop at 8 o'clock and the trial Court held that Hans was
mistaken in this respect. It
was not submitted before us that the trial Court
erred in so holding. Hans testified that a Black man, whom he had never seen
before,
was standing under a lamp-post right in front of his house. He went
right up to the man and in Xhosa enquired whom he was waiting
for, thinking that
he might be waiting for his sister.
8.
The man did not reply. Hans went into his house and
when he
came out shortly afterwards he again spoke to
the man who still remained
silent. Hans gave a
detailed description of the man's clothes and
his
physical features which entirely accorded with the
description given
by Meth, adding that the man appeared
to him to be knock-kneed. After
observing the man
for the second time Hans left and only returned to
the
scene after 9 o'clock that evening. He found the
police there and upon
learning what had happened,
immediately furnished the police with a
description of
the man he had seen under the lamp-post. According to
the
police that description was in full accord with the
description Hans gave in
his evidence. Two days later
Hans attended an identification parade where he
pointed
out the appellant as the man he had seen under the
lamp-post on
the night in question.
9.
Meth's evidence that he saw the appellant running with a limp is corroborated
by Zamile Soga, who said that he was sitting in the
back of the deceased' s
vehicle at the time of the attack but that he jumped out and fled after his
mother had been shot. He ran
to the back of the shop from where he saw the
assailant running away with his mother's handbag. Zamile said that the man was
stoutly
built and that he ran with a pronounced limp. He also observed the man
wearing a balaclava cap, a knee-length coat and white tackies.
A number of other
witnesses, including the district surgeon, Dr Wingreen, and an orthopaedic
surgeon, Mr Smit, confirmed that the
appellant walks and runs with a limp.
Meth's account of the attack is fully supported by the evidence of Lindiwe
and Zamile. Both testified that they saw Meth running around
the front
10.
of the deceased's vehicle moments after they heard the first
of the three shots being fired. Lindiwe testified that when the left
front
passenger door was suddenly opened she looked up and saw a Black man wearing a
black overcoat standing next to her with his
back against the open door. His
face was covered by a balaclava cap and he had a gun in his hand. Without saying
anything the man
fired a shot which struck her in the left buttock. The man told
her in Xhosa to hand over her handbag, and as she pushed it towards
him the
deceased said: "Give it to him" and made a movement with his hands to indicate
that she should do so. The man took the handbag
and at the same time shot the
deceased and ran off.
In its judgment convicting the appellant the trial Court said that every
feature by which Meth had identified the appellant was corroborated
by other
11.
evidence and by such features as were apparent to the Court:
the appellant was stoutly built with a prominent stomach; he had a noticeable
scar over the left temple as was described by the witnesses and was
knock-kneed.
Another State witness, Dorothy Smiles, testified that at about 11 o'clock on
the night in question she and her husband gave an unknown
man, whom she later
identified as the appellant, a lift in their car. They live in Duncan Village,
East London, and were on their
way home when the appellant waved them down at a
spot which is about an hour's walk from the deceased' s shop and pleaded with
them
to take him to Mdantsane, offering to pay for the petrol. He said that he
had been gambling. At a filling station he produced a R20
note from a wallet
which contained a thick wad of notes. After dropping the appellant at a
12.
house in Mdantsane they were stopped by the police and she
gave the police a description of the man they had given a lift. She confirmed
that the appellant wore a black knee-length coat on the night in question.
The appellant's defence at the trial was that of an alibi. He testified that
at about 6 o'clock on the evening in question he left
his house in Mdantsane by
taxi for Duncan Village where he gambled at a gambling house. He described
himself as, inter alia, a professional
gambler. He took with him R52, leaving
another R300 at home, and after losing R50 of the money he had with him, decided
to go home
to get more money as there was "good money" in the pool. He left the
gambling house shortly before 8 o'clock and went home by taxi
to fétch
the R300. He returned to the gambling house at about a quarter to nine, won a
lot of money and left at about 11 o'clock.
He stopped
13.
a passing car which took him to his house in
Mdantsane.
The appellant's evidence that he left the gambling house at about
8 o'clock after losing R50 was confirmed by the state witness Ndevo,
who said
that the appellant returned some time between 9 and 10 o'clock, but not earlier
than 9.15, and continued gambling. Ndevo
testified that when the appellant
returned he was sweating profusely.
The trial Court accepted Ndevo's evidence regarding the time the appellant
returned to the gambling house on the evening in question.
It is clear that
during the time he was absent from the gambling house there was ample
opportunity for the appellant to have committed
the crimes as it was common
cause at the trial that it takes only 14 minutes to walk from the gambling house
to the deceased's shop
at normal walking pace. The trial Court rejected the
appellant's
14.
evidence regarding his movements during the time he was away
from the gambling house, and referred to a number of weaknesses and
improbabilities
in his evidence concerning this crucial time. To these may be
added a number of other weaknesses in his evidence generally. To mention
only
three: firstly, he persisted in his denial that he walks with a limp in the f
ace of overwhelming evidence that he has done
so for many years; secondly, he
twice avoided the police when they visited his house in Mdantsane later the same
night and, thirdly,
he clearly lied about the clothes he was wearing on the
night in question.
On behalf of the appellant it was submitted before us that the trial Court
erred in accepting as reliable the evidence of Meth and
Hans. It was submitted,
firstly, that it was improbable that these witnesses could have seen the scar on
the appellant's
15.
face on the night in question, and it was suggested that they
only subsequently learned of this fact when the police showed them a
photograph
of the appellant. I can find nothing improbable in the evidence of either of
these two witnesses that they saw the scar
on the evening in question, and there
is no basis for the suggestion that they were subsequently shown a picture of
the appellant.
The same suggestion was made to these witnesses and to the police
at the trial and denied by them. Hans, in any event, told the police
that same
evening that he saw the scar. This was before the police obtained possession of
the photograph.
Meth's account of the actual attack was criticised by counsel for the
appellant in a number of respects, such as that he said that
he did not move his
head or blink his eyes when the shots were fired close
16.
to him; that he said that he was scared when the first of the three shots was
f ired and that he ran away but that he was able afterwards
to stand still and
calmly observe the appellant firing the second and third shots; and that he said
that he did not see the gun in
the hand of the assailant. The relevance of these
aspects escapes me. It was not suggested that Meth did not observe the attack
and
the accuracy of his account of the attack was not in issue.
I do not consider it necessary to deal with certain other points of criticism
against the evidence of Hans and Meth which were raised
by counsel for the
appellant. They are all of an insignificant nature and do not, in my view,
affect the reliability of these witnesses
in any way.
Counsel for the appellant has indeed been
17.
unable to point to any material misdirection by the trial
Court in its assessment of the reliability of the evidence of the State
witnesses and of the evidence given by the appellant. In my view the evidence
against the appellant was overwhelming. The identification
of the appellant by
Meth and Hans as the man who was standing under the lamp-post shortly before the
attack was based on a number
of striking features and was corroborated by other
evidence such as that of Smiles, Lindiwe and Zamile as well as by the
circumstantial
factors I have referred to. It was not in issue that the man who
stood under the lamp-post was the same person who later shot the
deceased. As to
the appellant, it has not been shown that the trial Court erred in rejecting his
alibi. The appeal against the convictions
must therefore fail.
I proceed to deal with the appeal against the
18.
sentence of death imposed for the conviction of murder. Since
the trial the Criminal Law Amendment Act 107 of 1990 has come into operation
and
this Court now has a discretion to determine, with due regard to the presence or
absence of any mitigating or aggravating factors,
whether the death sentence is
the only proper sentence on the murder charge.
Counsel for the appellant was able to advance only one possible mitigating
factor namely that the appellant did not have the direct
intent to kill. I
cannot agree that the appellant acted only with dolus indirectus. He fired a
shot at point blank range at a vital
part of the deceased's body and in the
absence of an explanation from the appellant the only reasonable inference is
that he had
the direct intent to kill. The absence of mitigating factors will
not, however, mean that the death sentence must or should be passed.
19.
There are a number of aggravating factors. The murder was
committed in the course of a well planned, premeditated robbery. The appellant
stood waiting for some time for his victims to come out of the shop and there
was ample opportunity for reflection and reconsideration.
His victims offered no
resistance and he could have achieved his object without inflicting any injury.
Instead he shot the deceased
in a callous, cold-blooded manner. His motive was
greed of the worst kind viz to obtain money in order to gamble.
The appellant, who was 42 years old at the time the offences were committed,
had a long list of previous convictions, starting as
far back as 1960, and
including five convictions for assault and assault to commit grievous bodily
harm, five for robbery and three
for theft. His prospects of rehabilitation must
be
20.
regarded as minimal, despite the fact that eight years had elapsed between
his last release from prison and the commission of the
present offences.
The final question then is whether, having regard to the number of
aggravating factors and the absence of any mitigating factors,
the death
sentence is the only proper sentence. To decide this question the main purposes
of punishment must be considered, namely
deterrence, prevention, reformation and
retribution. Consideration will be given to whether these objects can properly
be achieved
by a sentence other than the death sentence. In my view the manner
and circumstances in which the present crime was committed are
such that one is
driven to the conclusion that this is one of those exceptional cases where the
deterrent and retributive aspects
of punishment outweigh all other
considerations and the
21 .
death sentence is imperatively called for. I regard the present case as one
where the "perceptions, sensibilities and interests of
the community demand
nothing less than the extreme penalty" (S v Majosi and Others 1991(2) SACR 532
(A) at 541 e-f).
Although leave was also granted to appeal against the sentences imposed on
the other counts, no argument was addressed to us in respect
of those sentences
and there is no basis upon which this Court could interfere with the exercise of
his discretion by the trial Judge.
In the result the appeals against the convictions and sentences on all counts
are dismissed.
W. VIVIER JA.
SMALBERGER JA )
VAN DEN HEEVER JA) Concurred.