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1992
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[1992] ZASCA 80
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S v Masiane (522/91) [1992] ZASCA 80 (22 May 1992)
CG CASE NUMBER: 522/91
IN THE SUPREME COURT OF SOUTH AFRICA {APPELLATE DIVISION)
In the matter between:
NATHANIEL MASIANE
Appellant
and
THE STATE
Respondent
CORAM
: HEFER, GOLDSTONE et VAN DEN HEEVER JJA
HEARD ON
: 18 MAY
1992
DELIVERED ON
: 22 MAY 1992
JUDGMENT VAN DEN HEEVER JA
2
Nathaniel Masiane was originally charged as
accused no
2 together with Raymond Ntshangase as accused
no 1, on two counts of robbery
with aggravating
circumstances and one of murder. At the commencement
of
the trial the prosecutor announced that he withdrew the
charges against
Ntshangase. He informed the court that
Ntshangase had already been executed
in consequence of a
death penalty imposed in another trial. Masiane
was
convicted on all three counts and sentenced to eight
years'
imprisonment on the first robbery count. The
death sentence was imposed on
the second robbery count,
and again in respect of the murder charge after
a
finding that no extenuating circumstances had been
established.
Leave to appeal was refused by the trial court on 13 September 1989, The
matter is before us in terms of section 19(12) of Act 107
of 1990. I refer to
Masiane in what follows as the appellant.
The facts may be summarized as follows:
3 On 18 August 1986 Mr and Mrs
Knighton left their home at 50 Keats Road, Lombardy East, for their respective
places of employment.
During the course of the morning the maid, Melita Lepuru,
interrupted her domestic tasks to go to the toilet outside. She saw two
black
men at her room. One was unknown to her. We know that he was Ntshangase. The
other was the appellant, whom she knew as Thabo.
He had done casual work for the
Knightons at the premises on a few occasions. Ntshangase asked her for water. He
entered her room,
took a glass, drank water, returned the glass and then seized
her around the neck. Both men pushed her into her room. Appellant fetched
rope
and tied her hands and feet. They locked her in her room. After a while they
returned. Ntshangase produced and opened an Okapi
knife. He threatened her,
demanding money. Ntshangase took her money box, her watch and some tapes, and
they then left. After some
time she succeeded in escaping not only from her
bonds but also from the room through a window after
4 breaking the glass, and
reported to a neighbour who called Mrs Knighton and the police. The complainant
told the police that Thabo
had been one of the pair of robbers. A video
recorder, revolver, cassette player, portable tape recorder, money and tools had
been
removed from the Knightons' home. Mr Knighton estimated the total loss at
about R5 000,00.
The pattern of conduct at the Knightons' home on 18 August, was repeated some
three weeks later in the same suburb at 37 Sheridan
Road, except that this time
the victim resisted and was killed.
On 8 September Mrs Hearn went off to work, leaving behind her pensioner
husband and the maid Doreen Mbelani who had worked for them
for more than ten
years. Mr Hearn, somewhat hard of hearing, sat in the family room in the front
portion of the house, reading, listening
to the radio, dozing. At about 12h45 he
called the maid but she did not reply. He got up and on investigation found the
main bedroom
in complete
5
disarray, and evidence of an unsuccessful attempt to
open the safe.
The maid still did not respond to her
name. He tried to telephone but the instrument was out
of order. He went to a neighbour to telephone from
there. His wife summoned the police and she and they
arrived simultaneously. Admission was gained to Ms
Mbelani's room by means of a spare key. She lay dead on
the floor. Her feet were tied together with some sort
of cloth, a cloth was tied around her neck, and she had
suffered a number of stab wounds. Goods to the value of
R2 500,00 were missing from the Hearns' house.
Appellant's and Ntshangase's fingerprints were
found in the room. Appellant made a statement to
Captain Barnard of the police. This was admitted, after
a trial within a trial, as exhibit J, and reads as
follows:
"Ek en Raymond het vanaf Alexandra na Lombardy-Oos gegaan. Dit was gedurende
die negende maand 1986. Op Lombardy-Oos het 'n sekere
swart vrou ons geroep en
vir ons gevra om vir haar koeldrank te gaan koop. Ek het haar naam vergeet. Sy
het vir ons R1,00 gegee
6
en ons het vir haar koeldrank gekoop. Op pad terug het Raymond vir my gese dat
ons hierdie swart vrou moet beroof. Ons het na die
vrou se kamer gegaan met twee
liters koeldrank. Ek het dit gedra en dit op die tafel neergesit. Raymond het
die vrou gegryp en haar
gewurg. Die vrou het 'n mes uit haar oorpak getrek.
Raymond het gese ek moet die mes by haar gryp. Ek het die mes vanaf die vrou
gegryp en haar met die mes op die linkerkant van haar bors gesteek. Sy het op
die vloer geval. Ek en Raymond het uit haar kamer geloop
na die huis van haar
werkgewer. Ons het by die kombuisdeur ingegaan. Raymond het ' n hangkas in een
van die slaapkamers oopgemaak.
Ons het vier geldblikkies gekry. Ons het die geld
gevat en geloop. Dit is al."
When testifying,
appellant admitted that he had been casually employed at the Knightons' house
but denied having anything to do with
the robbery there. Ms Lepuru's accusation
against him was false and motivated by jealousy, he surmised, because he was
paid by the
Knightons at a far higher scale of remuneration than she
received.
As regards the later episode he testified that he and the deceased knew one
another by sight. When Ntshangane seized her and she resisted.
7
"(was) die oorledene ... sterker gewees as (Ntshangase), en dit het gelyk asof
sy loskom van horn af. En toe se die gewese beskuldigde
1 ek moet haar mes vat,
en toe vat ek dit, en toe neem gewese no 1 dit van my af en steek oorledene
daarmee. Ek is toe onmiddellik
uit, gevolg deur gewese beskuldigde no
1."
In short, he contradicted his
earlier
confession by denying that he himself had stabbed
deceased at all; though
under cross-examination he said
that Ntshangase had instructed him to do so.
The trial court not surprisingly found him to
be a lying witness. His tale that he did not flee from
the scene despite disapproving of Ntshangase's conduct
because he was afraid of and had been threatened by the
latter, does not merit serious consideration any more
than that about Ms Lepuru's alleged jealousy does. His
evidence also leaves one in the dark as to what exactly
happened when Ms Mbelani resisted, and particularly when
and why her legs were tied together.
The court a quo correctly found that dolus
directus had under the circumstances not been proved.
8
No medical evidence was led at the trial, the
medico-legal post mortem
report having gone in by
consent as exhibit B, which is perhaps unfortunate;
although the doctor may not have been able three years
later to remember, and give, more detail than contained
in that document. The cause of death is stated to be
"multiple penetrating incised wounds of the body with
ligature application to the neck". Eight wounds are
listed and described in somewhat contradictory fashion:
although five "penetrating incised wounds" in the chest
are tabulated the comment is made that "wounds 2 and 3
are non-penetrating". The fifth is described as
penetrating
superficially
into the left breast. We do
not know the depth of any of these wounds. The fourth
appears to be the only one which could have perhaps
caused or contributed to the death of the deceased,
namely one to the side of the left nipple, the track of
which passed
"backwards and slightly laterally to enter the left chest
cavity through the 5th intercostal
9
space and it causes the injuries to the
pericardium".
This in turn was described:
"There is haemorrhage into the wall of the pericardium anteriorly. The heart
is slightly pale."
The three remaining stab wounds were on the left upper and right lower arm
and caused no vascular damage. Here too we do not know
how deep those wounds
penetrated.
Encircling her neck was a friction abrasion about 5 mm wide with extensive
haemorrhage into the muscles of the neck. The walls of
both common carotid
arteries were contused, but the hyoid bone and thyroid cartilage intact. There
were "numerous areas of abrasion"
over the face and forehead. Without more
detail one does not know what should be inferred from those.
Appellant was 22 years of age and a first offender when the offences in
question were committed,
10 and probably illiterate since he signed his
confession, exhibit J, with a thumb-print. He seems to have been neither
inherently
violent nor criminally inclined until Ntshangase whom he had met
about two months earlier misled him onto that slippery path. Ntshangase
was a
good deal older than appellant, his age having been estimated at 37 years. And
according to Ms Lepuru's evidence it was Ntshangase
who took the lead when she
herself was robbed and he was the only one who was armed. Appellant had had
ample opportunity to rob her
before, had he been so minded, while working there
and alone with her on the premises. And although they knew one another, he made
no attempt to silence her permanently to prevent her from identifying him.
Against that background it is a fair inference that although the second
robbery was planned, the murder was not but came about when
the deceased,
probably contrary to expectation, offered armed resistance. There is nothing to
contradict appellant's version that
11 it was she who produced the knife with
which she was stabbed, and that he himself stabbed her once at most, and did so
on Ntshangase's
instructions, after which Ntshangase took the knife from him. On
that version he had little time for reflection and there may well
have been
little that he could do in a situation that got out of hand. On the only
evidence we have (and in accordance with the previous
pattern) it was Ntshangase
who strangled the deceased without any assistance from appellant. If the pattern
was carried through it
would probably have been appellant who tied the
deceased's legs together - hardly the conduct of one confident that he and/or
his
socius
had rendered her harmless through death.
Aggravating factors that weigh in the scale, are that the motive for the
murder was robbery, and particularly that the offences were
committed brashly in
broad daylight in a residential area. Despite these, I do not regard the death
sentence as the only one
12
appropriate in respect of the murder count, in view of the mitigating factors
which outweigh them.
A complicating factor, and a factor which tipped the scale for the court a
quo in regard to sentence on the second robbery charge,
is an earlier conviction
but in respect of offences committed after the ones presently in issue. Those
offences were committed on
26 July 1987, and again in the company of Ntshangase.
Where the pair started with robbery and graduated to robbery and murder, their
activities escalated further. From the judgment of the court a quo (the SAP 69
form is not included in the record) we learn that
after having been convicted of
housebreaking, robbery with aggravating circumstances, murder and arson,
Ntshangase was sentenced
to death. Appellant received sentences totalling an
effective 25 years' imprisonment. The trial judge held that those offences
confirmed
his impression that appellant is by now a hardened criminal. He
expressed himself somewhat
13 unfortunately:
"It was a heinous offence committed by two cowardly murderers - or shall I
rather say, two cowardly robbers because I must take it
that she was not
murdered"
for purposes of determining what sentence would be
appropriate on the robbery count as a separate charge.
From the discrepancy between the extreme penalty imposed on Ntshangase and
that meted out to appellant, the inference is that the
former pattern continued:
with Ntshangase taking the lead and appellant performing a lesser role.
Were one to ignore that conviction and also that Ms Mbelani died, the death
sentence would not be imperatively called for, in respect
of the second robbery
committed by a 22-year-old first offender with a much older man setting the
pace. Because of the violence inflicted
upon a woman exercising her right to
defend herself, this is however clearly more serious than the offence which
formed the subject
of the first
14
count.
The weight that should be attached to an
earlier conviction for offences committed after those
for which an appropriate sentence is sought, must depend
on all the circumstances. The trial court regarded the
earlier conviction for offences committed some 9 months
after those with which it was dealing as proof not only
that appellant is a hardened criminal, but that
"there is no hope of reformation for him -that is clear. If ever he were let
out of goal again, I am sure he would immediately lapse
into his old habits of
housebreaking
with concomitant results" (my underlining).
Appellant was unfortunate that the police were unable to make anything of the
information given them by Ms Lepuru, that Thabo who
had worked on occasion for
Mr Knighton had been one of the pair who had robbed her. Instead of learning
that crime does not pay,
he learned that he could literally get away with
murder. There has been no attempt at rehabilitating him so far, and it must
carry
weight in his favour that he came through the
15 turbulent years of
youth without any clashes with the law. Ntshangase has been removed as a source
of influence. But although the
inference, that should he ever be free he will
again break into houses and kill whoever may attempt to thwart him, is not an
inescapable
one, it would be unfair to the law-abiding community to subject it
to the risk that a third innocent may fall victim to one who holds
life as cheap
as appellant does. The appeal succeeds. The sentence of death imposed on
appellant on the second count, in respect
of the murder of Doreen Mbelani, is
set aside and replaced by one of life imprisonment. The sentence of death
imposed on appellant
on the third count in respect of the robbery which led to
the death of Doreen Mbelani, is set aside and replaced by one of twelve
years'
imprisonment.
16
L VAN DEN HEEVER JA
HEFER JA)
CONCUR GOLDSTONE JA)