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1991
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[1991] ZASCA 176
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S v Mofokeng and Another (306/91) [1991] ZASCA 176 (28 November 1991)
306/91 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
FRANS MOFOKENG
FIRST APPELLANT
ANTHONY MOKGELE
SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM
SMALBERGER JA, NICHOLAS et KRIEGLER AJJA
HEARD
: 25
NOVEMBER 1991
DELIVERED
: 28 NOVEMBER 1991
JUDGMENT
KRIEGLER AJA/....
1.
KRIEGLER AJA
:
This is an appeal against sentences of death
imposed on the two appellants in the Witwatersrand Local Division in June
1990. They had been convicted on several charges, including
one of murder. No
extenuating circumstances were found and consequently the sentences were
mandatory in terms of
sec 277
of the
Criminal Procedure Act No 51 of 1977
as it
then read. At the same time the appellants were sentenced to 16 years and 18
years imprisonment respectively on the other charges.
Leave to appeal against
the death sentences was refused by the the judge a guo but was granted by this
court after the Criminal Law
Amendment Act No 107 of 1990 had materially altered
the law relating to the imposition of sentences of death. The effect and scope
of the changes brought about by the latter enactment and their significance in
the present case, will be considered once the relevant
facts have
2/...
2. been summarised.
On Monday night 14th November 1989
an elderly farming couple were in their homestead watching the 8 o' clock
television news; they
were Mr and Mrs van der Mescht of the farm Doornkloof in
the district of Westonaria (to whom I shall henceforth refer as "the deceased"
and "the complainant" respectively). Suddenly the lights went out; the deceased
took a torch and went to investigate. As he was crossing
the back yard he was
set upon and stabbed to death. (His bloodied corpse was found with a stabwound
to the heart, another to the
liver, a third into the abdominal cavity and a
number of relatively superficial wounds to the head, neck and shoulder.) The
complainant
heard the deceased cry for help and hurriedly fetched a revolver
from her handbag in the bedroom. Thus armed and with a small torch
in her other
hand she went to the back door. Through the screen door she saw two men
3/...
3. in the dark outside. When one of them made to enter she
threatened to shoot and enquired what they wanted. On the reply "Jou geld,
jou
boer", she fired a shot through the door. Not deterred, the men entered,
disarmed the complainant and knocked her down. They
had the deceased's torch and
a knife in their possession. They proceeded to terrorise the complainant,
inflicting a number of superficial
stabwounds on her left shoulder and upper arm
while demanding her money or her life. She produced some change from two
containers
kept in the kitchen and was then forced into the bedroom where the
handbag was found. They returned to the kitchen where the handbag
was emptied.
The complainant was ordered to remain seated on a kitchen chair upon pain of
being killed. Her two assaillants disappeared
into the night, taking the
revolver, the torches and various other readily portable items.
4/...
4.
Early the next morning the two appellants were
accosted by a policeman at a taxi rank in Bekkersdal, a black township nearby.
Appellant
no 2 was in possession of the deceased's revolver and they were both
arrested. Upon their arrivai at the police station their complicity
in the
attack on the Van der Meschts was immediately suspected. They were detained and
the investigation took its course.
Approximately seven months later they appeared before Solomon AJ and
assessors on five counts, to wit (1) housebreaking with intent
to rob or murder;
(2) robbery with aggravating circumstances; (3) the murder of the deceased and,
(4) an (5), unlicensed possession
of the revolver and of four rounds of
ammunition found in its cylinder. Both appellants pleaded not guilty to all
counts, raising
an alibi in respect of the first three and alleging that the
second appellant had bought the loaded firearm from a passing
5/...
5. stranger at the taxi rank shortly before their arrest.
The prosecution had little difficulty in establishing beyond any shadow
of doubt
that the two appellants were the miscreants who had attacked the Van der Mescht
homestead on the night in question. First
appellant was duly convicted on the
first three counts and the second appellant on all five. The trial court held,
indubitably correctly,
that the appellants had acted throughout in the execution
of a common purpose: they had interfered with the power supply to the house
in
order to lure the deceased outside; there he had been attacked and killed and
the appellants had then entered the house and robbed
the complainant at knife
point. The palpably false alibi defence advanced by both appellants rendered the
trial court's finding with
regard to extenuating circumstances well-nigh
inevitable. Indeed counsel for first appellant tendered neither evidence nor
argument
in mitigation.
6/...
6. Efforts by second appellant's counsel to establish some
extenuation proved fruitless.
In the result , had this appeal to be
determined on the law as it stood prior to the introduction of Act No 107 of
1990, little, if
anything, could have been said to assail the sentences of death
imposed by the learned judge a
quo
. The Lawgiver has, however, created an
entirely different approach to the death sentence, which has been analysed in a
number of
judgments of this court (eg
S v Masina and Others
1990 (4) SA
709
(A);
S v Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727(A)
and
S v Nkwanyana and
Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A)). In essence it amounts to this. Although the
trial was conducted under the law as it then was, the appeal is to be considered
under the new regime. This court is obliged to consider anew whether the
circumstances imperatively call for the death penalty. Regard
is to be had to
the presence or absence of
7/...
7.
mitigating or aggravating factors which, if
present,
are to be weighed in conjunction with the general
objectives of
sentence, namely, prevention, deterrence,
reformation and retribution. The
term "mitigating
factors" is broader than the corresponding term which
had to be considered
by the trial court in terms of the
law as it then stood, namely, "extenuating
circumstances". Although the moral blameworthiness of
the appellants' conduct is still a weighty
consideration, it is to be evaluated in conjunction
with all other relevant factors and no longer carries
its former predominant weight. Lastly, the State now
bears the onus of proof beyond reasonable doubt in
respect of both the presence of aggravating factors and
the absence of mitigating factors for which a factual
basis exists.
In applying the new set of criteria to the
proven facts, it will be logical to start with the
identification of aggravating factors. Indeed they are
8/...
8. self-evident. The two appellants, residents of townships
on the East Rand, travelled to a lonely farmstead on the fringes of the
far West
Rand to rob a soft target under cover of darkness. They went armed with a knife
and devised the stratagem of interfering
with the power supply to facilitate
their evil objective. When the deceased emerged from the house he was swiftly
attacked and stabbed
to death. Notwithstanding the complainant's brave
resistance - in the course of which she probably managed to shoot first
appellant
in the hand - they forced their way into the house. There they
manhandled the complainant and terrorised her into submission by prodding
her
with the knife. After having hurriedly gathered their relatively paltry booty
they left, leaving a terrified, injured and badly
shaken old lady. In a few
minutes of brutal violence for gain they fell upon two harmless old people,
killing the one and widowing
the other.
9/...
9. But the picture is not wholly bleak. Notwithstanding the
spurious defence the appellants put up, the proven facts reveal a number
of
reasonably possible mitigating factors. The most salient relates to the intent
with which the deceased was killed. Clearly the
attack on the farmhouse and its
occupants was premeditated. Egually clearly the plan entailed the use of armed
violence to overcome
any opposition. It does not follow, however, that the
appellants necessarily planned to kill the one or the other or both of their
victims. They had only one knife and no other weapon. The encounter with the
deceased took place in the dark. Of the twelve wounds
found on the body at the
post mortem examination nine were superficial and only one fatal. Although the
deceased was 72 years old,
he was 1,90 metres tall and weighed 80 kilograms
whereas the appellants, judging by photographs taken at an identification
parade,
are very
10/...
10. much shorter and of slight build. In the circumstances
it is reasonably possible that the fatal stab wound was inflicted in the
dark in
the course of a violent struggle to overpower the deceased, neither
premeditatedly nor with the direct intention to kill,
but heedlessly. The manner
in which the appellant dealt with the complainant lends support to such
inference. She was not killed
nor even seriously injured, suggesting that the
appeilants had planned to do no more violence than was necessary to overcome
such
resistance as they might encounter. The fact that they took only one weapon
also supports such inference.
There is a further feature to be considered in the enquiry as to mitigating
factors. Although the appellants acted throughout in the
execution of a common
purpose, the evidence does not estabiish which of them wielded the knife during
the attack on the deceased.
Once it is found reasonably possible that
11/...
11.
the one who actually inflicted the fatal wound had
dolus eventualis
only, the possibility applies a
fortiori
to the other. In view of the
uncertainty regarding the roles played by each appellant, it cannot be said that
the death sentence
is the only appropriate sentence for either. It is true that
murder is a most serious crime. It is also true that murder committed
in the
course of an armed robbery is particularly serious. Woreover, the prevalence of
armed raids on the elderly on isolated farms
emphasises the need for markedly
deterrent sentences.
At the same time, however, the appellants are not hardened criminals.
Although 30 and 28 years old respectively, neither had any previous
convictions.
Indeed their bumbling on the night in question suggests that they are amateurs:
they went lightly armed and allowed
the complainant to arm herself, then they
allowed her to have a sufficiently good look at their
12/...
12. faces to be able to identify them; they took
relatively little, left several identifying fingerprints and were arrested in
the
vicinity the next morning with the
corpus delicti
in their
possession. Having regard to their personal circumstances there is a fair
prospect that prolonged sentences of imprisonment
will ensure that neither
appellant will repeat his criminal folly.
In the circumstances lengthy periods of imprisonment will fit the murder the
appellants committed. In assessing such sentences regard
must be had to the
sentences imposed on the other counts, ie 16 years and 18 years imprisonment
respectively. All the crimes were
committed in one and the same course of
conduct and in any event accumulation should not be permitted to bear unduly
harshly. Sentences
of 20 years imprisonment would be appropriate for the murder
the appellants committed, but 14 years thereof will be served concurrently
with
the sentences already imposed.
1 3. The effective total sentences will
therefore be 22 years and 24 years imprisonment respectively.
In the result
the appeals of both appellants against sentence are upheld. The sentences of
death are set aside and substituted by
sentences of 20 years imprisonment of
which 14 years are to be served concurrently with the sentences of imprisonment
imposed by
the trial court on the other counts.
J C KRIEGLER
ACTING JUDGE OF APPEAL
SMALBERGER JA NICHOLAS AJA