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1992
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[1992] ZASCA 70
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S v Shangase (521/91) [1992] ZASCA 70 (21 May 1992)
Case No 521/91
DCLD
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between
CLEOPAS NDODA SHANGASE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HEFER, VIVIER JJA et NICHOLAS AJA.
HEARD
: 12 MAY 1992.
DELIVERED : 21 MAY 1992.
JUDGMENT
/HEFER JA
2.
HEFER JA
:
The appellant was convicted in the Durban and Coast Local Division of murder
and robbery with aggrava-ting circumstances and sentenced
to death for the
murder. On appeal this court refused to interfere with the trial court's finding
that there were no extenuating
circumstan-ces and dismissed the appeal against
the sentence. After the Criminal Law Amendment Act 107 of 1990 came into
ope-ration
the sentence was considered by the panel appointed in terms of sec
19(1) of the Act. It is presently before us for consideration
in terms of sec
19(12).
The charges against the appellant arose from an incident which occurred on 11
April 1987 at the Umgababa Holiday Resort between Umkomaas
and Illovo where Mr
Arnold Hlophe was employed. On the day in question Mr Hlophe col-lected the
previous day's takings from the bottle
store. Outside the building the appellant
and two associates, Zola Mthethwa and Gideon Khuzwayo, who had planned to
rob
3. him, were waiting. When he emerged Mthethwa shot him to death with a
home-made shotgun whereupon one of the appellant's associates
grabbed and made
off with the bag containing the money amounting to some R2 750,00. Later that
day the appellant received R600 when
the proceeds of the robbery were
shared.
In the first appeal this court approved of the trial court's rejection of the
appellant's evidence to the effect that Mthethwa had
coerced him to take part in
the robbery. Mthethwa, it emerged at the trial, was a vicious murderer who had
inter alia
robbed two taxi drivers after killing them in the appellant's
presence with the same weapon that he used at Umgababa. The trial court
rejected
the appellant's evidence that he feared Mthethwa, and that he had for that
reason accompanied him and Khuz-wayo to Umgababa.
The court found that he had
willingly taken part in the robbery. In its first judgment this court confirmed
the trial court's finding.
4. Realizing the futility of relying on his client's evidence, the
appellant's counsel in the pre-sent appeal tried to persuade us
that there is a
reason-able possibility that the appellant was at least influen-ced by Mthethwa.
I do not agree. At the time of the
incident he was a mature man (33 years old)
and there is no reason to believe that he was susceptible to any kind of
influence. Apart
from his own evidence which the trial court rightly rejected
there is no indication whatsoever of influence being exerted upon him.
On the
contrary the only reasonable inference from the evidence is that he was a
willing member of a well-organised gang of rob-bers
in which he had his own
allotted task.
The only other factors on which the appellant's counsel sought
to rely in mitigation are the absence of previous convictions and the
fact that
he played a minor role in the robbery. In a proper case either of these may be
decisive. But not so in the present one.
Although
5. the appellant is a first
offender his active and willing association with the criminal activities of
Mthethwa's gang reveals his
real character. The incident at Umga-baba was by no
means the only one in which he associated himself with that kind of conduct.
He
was a willing mem-ber of a nefarious gang whose only business it was to kill for
gain. The trial court found - and I respectfully
agree -
"that he went to Umgababa in the full knowledge that a robbery was to be
committed on that day; that after he knew that Zola was armed
with the lethal
fire-arm he nevertheless agreed to con-tinue to play his part in the robbery. We
are satisfied that he knew and expected
Zola to make use of the gun to shoot the
deceased if anything went wrong, and that what in fact hap-pened that morning
was what he
expected and an- . ticipated would happen."
Nor does it avail him in these circumstances that he played
a minor part. This is precisely how the gang operated;
Mthethwa was the
leader who was - to the knowledge of the
other members - always ready to kill the victim if necessary
6. while each
of the others had his own allotted task. With-out the others the gang could not
operate. In any event the gravity and
sheer brutality of the offence committed
at Umgababa far outweigh the mitigation that might other-wise have affected the
sentence.
In my view the death penalty is the only appropriate one.
The appeal is dismissed and the death
sentence confirmed.
J J F HEFER JA
VIVIER JA )
CONCUR. NICHOLAS AJA ),