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1991
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[1991] ZASCA 179
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S v Ndhlovu (272/91) [1991] ZASCA 179 (28 November 1991)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
CASE NO: 272/91 In the appeal of:
SHIMANE OUPA NDHLOVU APPELLANT
and
THE STATE RESPONDENT
Coram
: BOTHA, NESTADT JJA et HARMS
AJA.
Date heard: 22 November 1991 Date delivered: 28 November 1991
2 JUDGMENT
HARMS AJA
:
The appellant and his co-accused, Zacharia Tseleng, were convicted in the
Witwatersrand Local Division (
coram
O'Donovan AJ with assessors) on 2
June 1988 on a charge of murder. The court found no extenuating circumstances
and imposed the mandatory
death sentence. The appellant was, in the course of
that judgment, also found guilty of a conspiracy to commit robbery, an attempted
murder, unlawful possession of a firearm and unlawful possession of ammunition.
An effective sentence of 18 years imprisonment was
imposed in respect of these
latter charges. Tseleng was also convicted of the conspiracy and the attempted
murder.
3
The appellant's application for leave to appeal was dismissed by O'Donovan AJ
and his subsequent petition for leave to appeal, directed
to the Chief Justice,
met the same fate. His case was thereafter reconsidered by the panel appointed
in terms of section 19 of the
Criminal Law Amendment Act 107 of 1990. The panel
found that, in its opinion, the sentence of death would probably have been
imposed
by the trial court had the amended
section 277
of the
Criminal Procedure
Act 51 of 1977
been in operation at the trial date, in other words, that the
trial court would probably have found that the sentence of death was
the only
proper sentence for this murder. This court is called upon to consider the case
as if it were an appeal against sentence
under the regime created by Act 107 of
1990. It may be noted in passing that Tseleng was granted leave to appeal
against his death
sentence by this court, but that appeal was dismissed on 17
August 1989. It was established by the Registrar that his sentence had
since
been commuted.
4
The facts of the case are fairly simple. The appellant had previously
attempted, unsuccessfully, to remove a safe from a farm house
near Hekpoort,
district Krugersdorp. He then recruited Tseleng to assist him in robbing the
occupants of the house and to remove
the safe. The appellant had previously
worked on this farm and the house was occupied by an elderly couple, Mr and Mrs
Gobey. The
two accused went to the house by foot. On their way the appellant
loaded the Browning pistol in his possession. He had, earlier,
obtained this
pistol in the course of a housebreaking at Brits. When the accused arrived at
the Gobeys' home, the appellant entered
and, upon seeing the Gobeys, first shot
Mrs Gobey, and thereafter her husband. Mrs Gobey was hit in the middle of the
nose and the
bullet penetrated her spinal cord. She died immediately. Mr Gobey
was also shot in the face, survived the shot wound but died shortly
thereafter
from other causes. Tseleng fled from the scene and the appellant followed suit.
It may be noted that the Gobeys
5 were unarmed and did not possess any
firearms.
The appellant's guilt was estabMshed by way of a fingerprint found at the
scene, his admitted possession and pointing out of the weapon
used, his pointing
out of Tseleng who, in evidence at the trial, admitted the commission of the
offences, the appellant's confession,
and lastly, his pointing out of the scene
of the crime. At the trial he relied on an alibi which was rejected by the trial
court.
In considering whether a sentence of death is the only proper sentence for
the crime committed, the appellant's personal circumstances
have to be taken
into account. He was 28 years of age when the crime was committed and was,
therefore, a mature man. He was not married
nor did he have children. He has a
relatively low level of education and, one can assume, a similar level of
sophistication. He was
gainfully employed prior to the commission of this crime.
He had, however, two relevant previous convictions, both for
6 housebreaking
with intent to steal and theft. In each case
he stole,
inter alia
, firearms. The firearm stolen at the
last instance was the weapon used on the Gobeys. It was
submitted on his behalf that these previous convictions
could not be
regarded as aggravating factors because those
crimes did not involve an
element of violence to other
persons. That is an oversimplification. The fact that he
had no previous conviction for a crime involving violence is
a factor which can be taken into account in his favour. On
the other hand, the murder was the direct result of a
housebreaking or robbery attempt. There is, therefore, a
sufficiently close causal link between the previous
convictions and the murder to conclude that the commission
of the previous offences is an aggravating factor. Sight
should also not be lost of the fact that the murder was
committed during a second attempt to rob the Gobeys.
It was also submitted that the killing of the deceased was commi tted on the
spur of the moment, was unplanned and was
7 an unexpected consequence of the
attempted robbery.
Therefore, it was said, a lesser degree of moral
blameworthiness attached
to the appellant's conduct. I do
not agree with the factual premise of this
argument. The
trial court found, in convicting the appellant, that
the
inescapable conclusion was that the appellant had acted with
dolus
directus
. That finding is supported by the following
facts: the appellant
had loaded the gun before entering
the house; he knew the house was occupied by the Gobeys;
since he had worked on the farm, he knew that the occupants
were elderly
and were living alone; the Gobeys were unarmed.
He first shot the wife; he then briefly left the house and
returned to shoot the husband; and he shot both victims in
the face. Some reliance was placed on the fact that the
appellant did not proceed to rob but ran away after the
shooting. That fact could hardly be a mitigating factor.
The appellant never explained why he abandoned his carefully
prepared plan to rob the Gobeys. The only conceivable
reason can be because Tseleng, whose assistance he needed to
8 remove the
safe, had fled.
No other mitigating factors were suggested. On the other hand, the
aggravating factors are overwhelming. Two elderly and defenceless
people were
attacked in broad daylight in the privacy of their house at a lonely spot on a
farm. The attack was planned well in advance
and was initiated by the appellant.
He was armed and loaded the weapon whilst approaching the premises. He was the
leader of the
two. The murder was cold-blooded, committed with
dolus directus
and in the course of a robbery attempt.
If regard is had to the objects of sentencing, the question of rehabilitation
does not really arise in this case. Public interest
demands that retribution and
deterrence should prevail above all other considerations. The prevalence of
murders committed in the
course of housebreaking or robbery, especially on
elderly people, is a matter of serious concern to all. The present case, in
9
particular, is one which demands the imposition of the
ultimate penalty.
5 v S
1991 (2) SA 93
(A) 102 F - 103 C; S
v
Makie
1991 (2) SACR 139
(A) 143 e - i;
S v Sesing
1991 (2) SACR 361
(A) 365 f - h.
The appeal is dismissed and the sentence of death is confirmed.
L T C HARMS AJA BOTHA JA ) CONCUR NESTADT JA )