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1992
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[1992] ZASCA 103
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S v Sindane and Another (672/91) [1992] ZASCA 103 (29 May 1992)
672/91 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between
EVATON ROBERT SINDANE
FIRST APPELLANT
and
PATRICK JABULANE SKOSANA
SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM
: E M GROSSKOPF, M E KUMLEBEN JJA et KRIEGLER AJA
HEARD
: 15 MAY 1992
DELIVERED
: 29 MAY 1992
JUDGMENT
KUMLEBEN, JA/
1.
KUMLEBEN, JA
Initially three accused stood trial in the East and
South Eastern Circuit Local Division, Transvaal, on
inter alia
charges of
murder and robbery with aggravating circumstances. The appellants, accused nos 1
and 3 respectively, were convicted of
these two offences. The case arose out of
the fatal attack on 10 August 1986 upon Simon Johannes Smit in His home at
Vaalbank, district
Middelburg, Transvaal, and the theft of certain of his
possessions. The appellants pleaded not guilty to these charges. (The second
appellant later changed his plea to one of guilty on all counts.) The first
appellant refused the services of
pro deo
counsel and remained
unrepresented throughout the proceedings.
After conviction neither appellant gave or adduced evidence in mitigation.
The court found no extenuating circumstances and on the
murder charge each
2/...
2. was sentenced to death. (For the robbery each received a
sentence of 15 years imprisonment.) Applications for leave to appeal against
conviction in the court a.
quo
and the petitions to this court in this
regard were refused. The panel, which reviewed the death sentences in terms of s
19(8) of
the Criminal Law Amendment Act, no 107 of 1990 (the "amending Act"),
was of the view that the same sentence would probably have been
imposed had
s
277
of the
Criminal Procedure Act, no 51 of 1977
("the
Act") been
in its present
form at the time of sentencing. The matter is now before this court in terms of
s 19(12)
of the amending
Act. We
are to decide, with due regard to any
aggravating or mitigating factors, whether the death penalty in each case was
the only proper
one.
Whilst the appeal was pending, the first appellant applied on notice of
motion to this court:
3/...
3.
"for the setting aside of the sentences imposed on him on 5 April 1988 and the
remittal of his case to the trial court (Strydom,
J. sitting with the same
assessors) for decision after:
1. the hearing of an application for the referral of the First Appellant for
observation in terms of
section 79
of Act 51 of 1977 and such further evidence
as may be necessary for the application, and
2. the report of the observation panel set up pursuant to the application for
referral."
On the refusal of the petition to the
Chief Justice for leave to appeal the first appellant's normal remedies to have
his case come
before this court by way of an appeal in terms of the Act were
exhausted. The present hearing is, as I have said, pursuant to the
provisions of
s 19(12) of the amending Act, the relevant parts of which read as follows:
"(a) Where the panel finds that the sentence of death would probably have been
imposed in the circumstances contemplated in subsection
(10)(a), ...[the
Appellate Division] shall, irrespective of whether it has
previously
4/...
4.
given a decision on appeal in the case concerned, consider the case in the
same manner as if -
(i) it were considering an appeal by the convicted person against his
sentence; and (ii) section 277 of the principal Act, as substituted
by section 4
of this Act, were in operation at the time sentence was passed by the trial
court.
(b) The Appellate Division may -
(i) confirm the sentence of
death; (ii) if the Appellate Division is of the opinion that it would not itself
have imposed the sentence
of death, set aside the sentence and impose such
punishment as it considers to be proper; or
(iii) set aside the sentence of death and remit the case to the trial court with
instructions' to deal with any matter, including
the hearing of evidence, in
such manner as the Appellate Division may think fit, and thereafter to impose
the sentence which in the
opinion of the trial court would have been imposed had
the said section 277 been so in
operation."
It is clear that the
jurisdiction conferred on this court by the above provisions is restricted to
a
5/...
5. reconsideration (either by this court or, as a result of
remittal, the trial court) of the death sentence imposed. Thus it has
recently
been held by this court in
Mabuti Mamkeli v The State
(judgment delivered
on 20 March 1992: as yet unreported) with reference to ss (12)(a) and (b)
that:
"Although sub-sec (a) requires the court to consider 'the case' ('die saak'
according to the Afrikaans text) which would seem to
refer to the entire case
including the conviction, it is quite clear that sec 19 generally, and sub-sec
(12) in particular, concern
the sentence only."
And, after
stating the reasons for this conclusion, the learned judge commented as
follows:
"There is an obvious reason why the legislature limited the enquiry in terms of
sub-sec (12) to the propriety of the sentence. It
is the amendment of
sec 277
of
the
Criminal Procedure Act. This
is evidenced by the requirement of the panel,
as well as of this court and the trial court in the event of a remittal, to
consider
the sentence as if the amended
sec 277
had been in operation at the
time sentence was passed. Having
6/...
6.
provided for the adjudication of future and pending cases on the basis of the
amended section the legislature saw fit - presumably
with a view to the fair and
equal administration of justice -to have the sentences of those awaiting
execution of the death sentence
be reconsidered on the same basis. To my mind
this is all that
sec 19
seeks to achieve."
Thus it follows that
the relief sought by the first appellant to have the "sentences" (that is,
relating to the murder
and
robbery convictions) set aside, cannot be
granted. At best for the first appellant, in the event of his making out a case
for the
relief sought, it is the sentence of death only which may ultimately be
set aside. Before examining more closely the consequences
of remittal, if
granted, it is convenient to consider the facts and merits of the
application.
The Notice of Motion is accompanied by a short affidavit of a Dr
Grové, a psychiatrist and a senior medical superintendent
at Weskoppies
Hospital. In it he confirms the contents of a letter he wrote in
7/...
7.
December 1989. It in turn states that on 4 January
1979 the first appellant was admitted to that hospital
in terms of the Mental Health Act. He was aggressive,
disorientated and
exhibited thought disorder. He
experienced auditory hallucinations and behaved
irrationally. His mental disorder was diagnosed as
schizophrenia for which he was treated. His condition
improved and on 3 July 1979 he was discharged subject
to receiving medication and further treatment by a
district surgeon. The affidavit of Dr Grové continues:
"3. Schizophrenia is a very serious mental illness and is a clear case of
psychosis. The prognosis is poor, and the likelihood of
complete recovery is not
good. Constant medication is required to prevent the recurrence of its
symptoms.
4. A diagnosis of schizophrenia may have very serious implications for
criminal responsibility, and there is a reasonable possibility
that a referral
of the First Appellant for observation in terms of section 79 of Act 51 of 1977
will reveal that at the time of commission
of his crimes he was incapable of
appreciating the wrongfulness of
8/...
8.
his acts or of acting in accordance with an appreciation of the wrongfulness
of his acts and further that at the time of his trial
he was by reason of mental
illness or mental defect not capable of understanding the proceedings so as to
make a proper defence."
In a short founding affidavit the first appellant says that whilst conducting
his own defence it never occurred to him that his admission
to a mental hospital
as long ago as 1979 could be in any way relevant at his trial. It was only in
December 1989, some 20 months
after his conviction, when interviewed by counsel,
Mr Katzew, (who at that time and has since acted for him) that in answer to a
question he disclosed this fact. In the circumstances he cannot be faulted for
not having brought this application sooner.
It is opposed. The respondent relies on an affidavit of Dr Pretorius, a
senior State psychiatrist also practising at Weskoppies Hospital.
At the request
of Dr Grové, who no doubt conveyed to him the contents
9/...
9. of the letter, Dr Pretorius visited the first appellant in prison
monthly during August 1990, September 1990, October 1990, March
1991 and May
1991. On each occasion he conducted a physical and psychiatric examination. In
his final report, dated 3 May 1991, Dr
Pretorius says that he observed no signs
of mental disorder. He, however, qualifies this finding by saying that he was
unable to
obtain a report from a social worker which could possibly have shed
more light on the first appellant's mental condition at the time
the offences
were committed. He concludes by saying that on the information available to him
there was nothing to indicate that the
first appellant was suffering from any
mental disorder which could have resulted in his not being criminally
responsible for his
acts.
In a replying affidavit Dr Grové points out that it was never his
intention that any report by Dr
10/...
10. Pretorius based on his consultations with the first
appellant in prison could be regarded as the equivalent of an inquiry in terms
of s 79 of the Act or adequately serve as a substitute. He continues:
"Insofar as the Respondent may argue that Dr. Pretorius' report eliminates the
reasonable possibility adverted to by myself in paragraph
4 of my first
affidavit in this matter, it is my firm view that such an argument would
necessarily lose sight of Dr. Pretorius' statement
in his report to the effect
that additional material is required to shed light on the First Appellant's
mental state at the time
of the commission of the crime. It is likely that this
and other material that was also not available to Dr. Pretorius due to the
limited nature of his enquiry which took place exclusively at the Maximum Prison
would be available to a panel appointed in terms
of section
79."
And concludes by saying:
"There is a reasonable possibility that this additional material will be
decisive in determining whether the incapabilities adverted
to by myself in
paragraph 4 of my first affidavit existed or do exist in the case of the First
Appellant."
Dr Grové is quite correct in
pointing out
11/...
11.
that the investigation in terms of s 79 of the Act is far more comprehensive
than those undertaken by his colleague. Where a sentence
of death is involved
two psychiatrists, and a third appointed by the accused if he so chooses, are
afforded an extensive opportunity
of examining him, usually in a mental hospital
over a suitable period of time (s 79(2)). Thereafter the specialists concerned
are
required to furnish a joint report, or more than one if their conclusion is
not unanimous, in which details of the nature of the
enquiry and the diagnosis
of the mental condition of the patient are to be set out. In terms of s 79(4)(c)
and (d) a report is to
conclude with a finding, if the enquiry was ordered in
terms of s 77(1) of the Act, "whether the accused is capable of understanding
the proceedings in question so as to make a proper defence" ("his capacity to
stand trial"): or if the enquiry is under s 78(2) "the
extent to which the
capacity of the
12/...
12.
accused to appreciate the wrongfulness of the act
in question or to act in accordance with an appreciation of the wrongfulness of
that act was, at the time of the commission thereof, affected by mental illness
or mental defect" ("his criminal responsibility").
The court is obliged to order such an enquiry in terms of s 77(1) "if it
appears at any stage of the criminal proceedings" that due
to mental illness or
mental defect an accused lacks the capacity to stand trial or, in terms of s
78(2) "if it is alleged" or "if
it appears" that for such reason he might not be
criminally responsible. Since both subsections envisage no more than an
investigation
to enable the court to make a determination on issues vital to a
fair trial and the proper administration of justice, the test to
be applied for
the grant of such an order is, as one would expect, a low one: "a reasonable
possibility suffices to oblige the court
to direct the
13/...
13. inquiry" -
S v Mogorosi
1979(2) S.A. 938(A) 942
B.
When such an application is made the court will in each case consider
whether there are grounds for such a conclusion. (
S v Makoka
1979(2) S.A.
933(A) 937 G - H.) However, as appears from the notice of motion, the first
appellant does not seek an order pursuant
to ss 77 and 78 but merely one for
remittal to enable the trial court to consider an application for such an order
and envisages
that further evidence in this regard may be adduced. It follows
that in considering the application before us certainly no more than
a
reasonable possibility of such an order being ultimately granted need be
shown.
To my mind such a possibility exists. The significant averments of Dr
Grové, though general, are not answered or in any way
dealt with by Dr
Pretorius: they stand uncontradicted. And the latter's opinion is a qualified
one: he acknowledges that further
14/...
1 4. information would be helpful and implicitly might
cause him to alter his views. There are countervailing considerations. To judge
from the record the first appellant during the course of a reasonably lengthy
trial conducted his case with as much proficiency as
could be expected from a
layman of his standard of education. And the evidence relating to the commission
of the offences does not
indicate that his behaviour, though criminal, was
irrational. Nevertheless, all things considered, I am of the opinion that the
order
sought should be granted.
As already pointed out, s 19 of the amending act is only concerned with a
reconsideration of the death sentence. Should the trial
court, as a result of
the proposed order of this court, direct that the first appellant be examined in
terms of s 79, the report
may reveal mitigating facts acceptable to the court,
though falling short of a conclusion that first appellant is
15/...
15. either unable to stand trial or was not criminally responsible.
This is envisaged by s 78(7) which reads as follows:
"If the court finds that the accused at the time of the commission of the act in
question was criminally responsible for the act
but that his capacity to
appreciate the wrongfulness of the act or to act in accordance with an
appreciation of the wrongfulness
of the act was diminished by reason of mental
illness or mental defect, the court may take the fact of such diminished
responsibility
into account when sentencing the accused."
In such
a case an appropriate sentence, having regard to the provisions of the amended s
277 of the Act, would follow. However, if
the court should find that the first
appellant is incapable of standing trial or not criminally responsible, the
peremptory provisions
of s 77(6)(b) and s 78(6)(b) respectively would apply. In
that eventuality, one should perhaps add, the fact that in
the result
the
conviction on the murder charge
16/...
16. would have to be set aside and therefore no sentence could be
substituted would be due to the provisions of the said two subsections,
and not
as a result of s 19(12)(b)(iii) of the amending Act functioning beyond its
prescribed limits.
Turning to the appeal of the second appellant, though the
complicity of both in the murder was clearly established, details of the
involvement of each were not satisfactorily proved. First appellant,
notwithstanding the fact that his confession was admitted as
evidence (in which
he simply acknowledged that he with others had murdered the deceased) to the
bitter end pursued his alibi defence.
A statement made by the second appellant
was handed in by consent. It gives a detailed account of the incident. It is
exculpatory
to the extent that it alleges that he acted under a measure of
compulsion. When giving evidence, which differed in certain respects
from his
statement,
17/...
17. he finally said that his statement (with one
immaterial qualification) was the truth. However, the court -with ample
justification
- had this to say about his credibility: "Hoe minder daar van
beskuldigde 3 [the second appellant] as getuie gese word, hoe beter.
Van meet af
was hy 'n onbetroubare en ongeloofwaardige getuie." The court also, quite
correctly, rejected his exculpatory assertions.
In the absence of any
eye-witnesses the court was unable to determine the precise part each played in
the actual assault and who
was directly responsible for his death. It did,
however, conclude that they went to the small-holding where the deceased lived
with
the common intention of robbing him and that his murder was a preconceived
part of their plan. The evidence led by the State, read
with such evidence of
the second appellant as can be confidently accepted as accurate, is briefly to
the following effect.
18/...
18. The two appellants, who had come to know each other
when they were in prison together in September 1986, met again before the
day of
the murder. On the morning of that day they went to a secluded spot and smoked
some dagga. The two appellants proceeded to
the deceased's home. Near some ash
heaps the first appellant picked up a piece of iron and on being questioned said
that "he intended
working with it". When they arrived at the deceased's home,
which is only a short distance away from where the object had been picked
up,
they sat under a tree and smoked another dagga "zol". They then made contact
with the deceased and in due course found themselves
in the house. At a stage
when the deceased was in his bedroom, one of them struck him a number of times
with a heavy sharp object.
At some stage he was apparently also stabbed.
According to the report of the post-mortem examination,
19/...
19. a heavy sharp instrument accounted for three skull fractures
which were the cause of death and a number of further major injuries
to the
chest. Abrasions on the neck indicated that a ligature had been applied and
abrasions to the wrists, forearms and chest lead
one to infer that he was tied
up. Extensive injuries to the face and numerous superficial incised wounds to
the neck and chest corroborate
a suggestion in the second appellant's statement
to the effect that the deceased was tortured in order to obtain his keys. His
body
was discovered lying under the bed in the main bedroom. A bunch of keys and
money had been taken off him. The intruders stole various
items from his home
and these were placed in his motor car. They drove off in it. At a certain stage
they stopped and changed their
clothes by putting on garments belonging to the
deceased. They also secreted a shotgun stolen from him. They proceeded on their
way
until, as a result of
20/...
20. being chased by a police vehicle, they collided with a large
lorry. Lieutenant du Toit searched the motor car and found a blade
of a spear
with what appeared to be blood stains on it. On 25 December 1986 Detective
Constable Steyn arrested the second appellant
and under a pillow in his home
found a firearm, which had been stolen from the deceased.
From the above account the aggravating features are self-evident and
important. The inference is inescapable that it was a planned
and brutal attack
on a defenceless 70 year old man in his home with a view to robbing him after he
had been killed. These facts establish
that both acted with
dolus
directus
. Particularly as regard the second appellant, the fact that he may
not have inflicted the fatal or other injuries, is in the circumstances
immaterial. He was well-known to the deceased and he would have been identified
had the life of the deceased been spared.
21/...
21 .
Second appellant, who was about 25 years of age at
the time of the offences, has a lengthy record of previous convictions. They
commence
in 1974, when he must have been about twelve years of age, with a
conviction for housebreaking with intent to steal and theft. This
was followed
during the period from 1974 to 1977 by two further convictions for the same
offence and one for theft. From 1979 to
1981 he was convicted twice of assault
with intent to cause grievous bodily harm. For the second of these offences,
involving a knife,
a sentence of two years imprisonment was imposed. Two further
convictions are recorded, one of which involved a theft of a motor
car. He was
released on parole on 1 May 1986 and within three months committed the offence
giving rise to this appeal. This chronicle
of crimes shows a progression - to
call it that - in the gravity of his crimes; an increase in the severity of the
sentences imposed
which failed to prove a deterrent;
22/...
22.
and a consistent disregard for the law even shortly
after his release from custody on parole.
By contrast the mitigating factors
put forward in argument are unsubstantiated. There are no facts (other than his
allegations in
his statement which were correctly rejected) from which one might
as a reasonable possibility infer that he was influenced or compelled
by first
appellant to participate. If one accepts, despite the absence of acceptable
evidence in this regard, that it was first appellant's
idea to kill and rob the
deceased, there is nothing to indicate that second appellant did not willingly
fall in with this plan. There
is similarly no evidence to support the submission
that the second appellant played a minor or subordinate rôle, as the trial
court correctly concluded in its judgment on extenuating circumstances:
"Mev Meintjies namens die staat betoog onses insiens korrek dat daar in
iedere geval geen
23/...
23.
getuienis voor die hof is dat beskuldigde 1 die leiersfiguur was òf dat
beskuldigde 3 onder die invloed van beskuldigde 1
gehandel het nie. Die blote
feit dat beskuldigde 1 die bestuurder van die voertuig gedurende die loop van
daardie aand was help beskuldigde
3 ook nie. Mev Meintjies wys in hierdie
verband ook daarop dat die twee beskuldigdes van min of meer dieselfde ouderdom
is en dat
selfs sou beskuldigde 1 die leiersfiguur gewees het en beskuldigde 3
'n meer onderdanige rol gespeel het dit op sigself nie 'n versagtende
omstandigheid is nie in die afwesigheid van veral getuienis tot die mate waarin
hy sodanige ondergeskikte rol gespeel het."
The reference to
dagga smoking cannot be relied upon. The second appellant in his statement did
not claim that this eroded his self-control
or influenced him to commit the
crimes. Everything points to a prior decision to do so, at least before they
smoked on the second
occasion.
After giving the matter careful consideration I am of the view that the
proved aggravating circumstances and the absence of factors
wich can fairly be
regarded as mitigatory make the sentence
24/...
24.
imposed the only proper one.
The application of the first appellant is
granted and the following order made:
The sentence of death is set aside and the matter is remitted to the trial court
for the hearing of an application for the referral
of the first appellant for
observation in terms of s 79 of Act 51 of 1977, and such further evidence as may
be necessary for the
application and the report of the observation panel set up
pursuant to the application for referral.
The appeal of the second appellant is dismissed and the death sentence
confirmed.
M E KUMLEBEN
JUDGE OF APPEAL