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1992
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[1992] ZASCA 90
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S v Sindile and Others (550/91) [1992] ZASCA 90 (27 May 1992)
CASE NO. 550/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between:
KOKO SINDILE FIRST APPELLANT
THAMSANQA VENA SECOND APPELLANT
NZALISEKO PIENKIE SHUMI THIRD APPELLANT
and
THE STATE RESPONDENT
CORAM:
SMALBERGER, GOLDSTONE JJA et, HOWIE AJA
DATE HEARD:
19 MAY, 1992
DATE DELIVERED:
27 MAY 1992
1
HOWIE AJA: Arising out of the killing of an elderly widow and the ransacking
of her home, the three appellants were convicted in the
South-East Cape Local
Division (Van Reenen AJ and assessors) of murder and robbery with aggravating
circumstances. No extenuating
circumstances having been found in respect of the
murder, appellants were sentenced to death. For the robbery they were sentenced
to imprisonment. An appeal to this Court against their convictions and sentences
was dismissed.
The panel appointed in terms of the Criminal Law Amendment Act, 107 of 1990,
("the Act") reviewed appellants' death sentences and
concluded that the same
sentences would probably have been imposed had the changes brought about by the
Act been in operation at
the time of the trial. The matter of their death
sentences is now before this Court in terms of sec 19(12)(a) of the Act.
According
to established principle and procedure it is for this Court,
exercising an independent discretion, to undertake a comparative evaluation
of
the mitigating and aggravating factors relative to the murder charge and
2
then to decide whether the death sentences are the only appropriate sentences
in respect of that offence.
The relevant facts are these. The deceased lived
in a house in Walmer, Port Elizabeth. Third appellant had been employed by the
deceased
as a gardener for some four years. He came to work on 5 January 1988.
He had the use of an outside servant's room and lavatory, in
both of which
various gardening tools were kept. He also had access to the key to the locked
gate which led into the walled garden.
At about 9 am on the morning in question,
while the deceased was temporarily absent, first and second appellants arrived
at the premises.
This was by previous arrangement with third appellant that they
would all participate in entering the deceased's house to rob her.
Third
appellant let them in and told them to wait in the outside room as the deceased
was out and he would let them know when to
enter the house. The house was
equipped with burglar-proofing and an alarm system including "panic buttons".
The inescapable inferences
are that, to evade these measures, appellants planned
to make their entry while the deceased was at home, and that, to
3
prevent her resisting their invasion, they intended to overcome her with
physical violence. Their plan succeeded. Not long after noon
appellants entered
the kitchen and encountered the deceased. First and second appellants were each
armed with a spade from the outbuilding
and third appellant had a knife. It is
not clear who commenced the assault but all three participated in inflicting
multiple injuries
upon the deceased with their respective weapons. There were
three stab wounds of the chest. One was into the heart and this was the
cause of
death. There was one into each lung, both potentially fatal. Several wounds were
caused by blows with the edge of a spade.
One such blow, to the front of the
neck, was inflicted with considerable force, sufficient to fracture the body of
the fifth cervical
vertebra. The deceased would have died from the stabbing
within four or five minutes. The attack past, appellants proceeded to loot
the
house and removed goods to a value of about R6000.
The trial Court held that third appellant was criminally liable for the
deceased's death but expressed no opinion on the form of his
means rea. It
4
was also found that in making common cause with third appellant to assault
the deceased, first and second appellants must have foreseen
that she might be
fatally injured. This was plainly a finding that first and second appellants
acted with dolus eventualis.
The aggravating factors are not in dispute. The
robbery was obviously planned before the fatal day. The culprits had ample time
to
reflect and to think better of their nefarious ideas. They were together on
the property from about 9 am and the attack occurred
after midday. Instead of
using that time to reconsider, appellants waited for the moment to strike. They
worked out how to evade
the burglar-proofing and the alarm system. The assault
was cowardly and brutal. The deceased was alone and without help in the supposed
safety of her own home. The manner of the attack obviously left her no time to
activate the alarm system. The raid was motivated
by the quest for material
gain. These features apply to all three appellants. As regards third appellant
in particular, he breached
the deceased's trust by abusing his position as her
employee. He was clearly at least the
5
inside contact. Whether he was the so-called mastermind was not, in my view,
proved beyond reasonable doubt. His role would have been
as extensive even if
the initiative and the driving force had emanated from one of the other
appellants.
As far as intention to kill is concerned, there can be no other
inference than that third appellant acted with dolus directus. The
other two
appellants were essentially no less blameworthy even if they did not have direct
intention. At the latest when the attack
upon the deceased was at long last
imminent they must have foreseen that her death was a very strong possibility.
The more the assault
progressed the nearer to a certainty that eventuality must
have appeared. Yet they persisted. This is no case in which to find that
dolus
eventual is served to mitigate the crime and its attendant circumstances.
Turning to the matter of mitigating factors, counsel for the State conceded
the reasonable possibility that first and third appellants
were between twenty
and twenty-one years of age at the time of this incident. This is in keeping
with medical
6
evidence called by the trial Court, in terms of which the age of each was
assessed - as at June 1989 - as already at least twenty-two.
It was also
conceded on behalf of the State that it could not be said that appellants were
beyond rehabilitation. Relevant to this
last aspect is the further fact that
none has previous convictions for crimes of violence. However, that, so it seems
to me, is the
sum total of the mitigating factors in this case and even then
some qualification is necessary. Although first and third appellants
were not
yet adults at the time of the murder they were but a few months from majority
and, practically speaking, led adult lives.
(Second appellant is, on the
evidence, manifestly several years older than they are.) Furthermore, first
appellant, despite having
no previous convictions involving violence, had
nonetheless a disturbing record. In 1984 he received cuts for housebreaking with
intent to steal and theft as well as a further count of theft. In 1985 he was
sentenced to 4 years imprisonment, of which sentence
half was conditionally
suspended. That sentence was imposed in respect of two counts of
7
housebreaking with intent to steal and theft, one count of possessing a
firearm and ammunition, three counts of theft from motor cars
and one count of
stealing a motor car. He was released after some 15 months in gaol. The impact
of that experience obviously did
not deter him from a further invasion of
privacy and property.
That history pertaining to first appellant, taken
together with the proficiency and resolve with which third appellant played his
part in this case, strengthen the conclusion that they have no claim to be
regarded as having been less than adults as at the time
of the murder.
Counsel for first and second appellants submitted that their role was
materially less than that of third appellant. I have already
remarked on the
impossibility of finding beyond reasonable doubt that it was third appellant who
initiated and planned the robbery
and its accompanying violence. The position is
that one simply cannot determine who the mastermind was. The furthest one can
take
this aspect in favour of first and second appellants is that the raid could
not have been achieved without third appellant's inside
8
help. True, he breached his trusted position as the deceased's employee. But
they, on the other hand, readily and illicitly entered
her premises with as much
evil intent. From then on they were all on the same footing. And but for
differences in the form of their
intention to kill and the fact that it was
third appellant who brandished the fatal weapon, their contributions to the
entire criminal
enterprise were also to all intents, and purposes equal. I am
not satisfied that in the overall picture the distinguishing features
to which I
have referred really serve to saddle any appellant with greater blameworthiness
in respect of the murder than the others.
In the light of the aforegoing the
aggravating factors outweigh the mitigating factors very considerably.
This
type of murder, involving a cold-blooded, merciless attack upon an elderly
person in the sanctity of her home, has, unhappily,
been prevalent for some
years. Understandably, it evokes feelings of alarm and outrage among all
reasonable members of the national
9
community. They are entitled to protection and, rightly, they look to the
courts to impose sentences that have the appropriate deterrent,
preventative and
retributive force. Having considered all the facts and circumstances relevant to
sentence here, it seems to me that
those elements of punishment must prevail
above all other considerations. The death sentence was the only appropriate
sentence in
respect of all the appellants. Their appeals are dismissed and the
death sentence imposed on each of them is confirmed.
HOWIE AJA
SMALBERGER JA)
CONCUR GOLDSTONE JA )