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1992
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[1992] ZASCA 118
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S v Moyo (643/91) [1992] ZASCA 118 (28 August 1992)
Case number 643/91
/al
IN THE SUPREME COURT OF SOUTH-AFRICA
(APPELLATE
DIVISION)
In the matter between:
LINDILE TUNKI
MOYO Appellant
and
THE STATE Respondent
CORAM
: E.M. GROSSKOPF ET GOLDSTONE JJA ET KRIEGLER AJA
DATE OF HEARING
: 17 August 1992
DATE OF JUDGMENT
: 28-08-92
JUDGMENT
KRIEGLER AJA/
2
KRIEGLER AJA:
On Friday morning, 18 September 1987, the appellant, assisted by his
girlfriend ("accused number 2"), robbed, raped and murdered a
58-year old widow
in her home in East London. Upon their arraignment in the Eastern Cape Division
during August 1989 both pleaded
not guilty to charges of murder, rape and
robbery with aggravating circumstances. A written plea explanation in terms of
Section
115(3) of Act 51 of 1977 was submitted on appellant's behalf. With
regard to the charge of murder, he alleged self defence and denied
that he had
intended to kill the deceased. On the rape count his defence was one of consent
and with regard to the robbery he contended
that the deceased had given him a
set of keys for the purposes of his employment and a radio-alarm combination in
part payment of
his wages. The trial culminated in both accused being
convicted
3
on all counts. In the case of the appellant no extenuating circumstances were
found and he was sentenced to death on the murder charge
- as was mandatory in
terms of the law as it then stood. On the other two counts he was sentenced to
11 years imprisonment. An application
for leave to appeal against inter alia the
finding with regard to extenuating circumstances and the imposition of the death
sentence
was refused by the trial court. Subsequent to the adoption of Act 107
of 1990 the death sentence was submitted to a panel appointed
in terms of
section 19 of that Act. The panel's conclusion was that a sentence of death
would probably have been imposed by the trial
court even had section 277 of Act
51 of 1977 at the time read as it now reads pursuant to its substitution by
section 4 of Act 107
of 1990. It is now this court's duty in terms of section
19(10)(a) of Act 107 of 1990 to consider afresh whether the
4
imposition of the death sentence is appropriate.
The proper approach to a
case such as this and the criteria to be applied in answering the crucial
question have been clearly stated
in a number of judgments of this court. A
detailed discussion thereof would be superfluous. In the context of the present
case it
suffices to say that regard should be had to any aggravating factors
proved beyond reasonable doubt, to any mitigating factors not
negatived beyond
reasonable doubt and to the general objectives of punishment. In the light of
such findings this court must decide
whether the death sentence is the only
appropriate penalty in the circumstances.
That question is to be answered against the following factual background. In
May 1987 the deceased returned to her home in East London
after an absence of
several years. She intended rendering it fit for sale and putting it on the
5
market. She set about restoring the house and engaged the services of the
appellant as a handyman. Some time thereafter she also employed
accused number 2
to assist. The refurbishment progressed satisfactorily and was to have been
completed on the fatal day. Around midmorning
that day the appellant attacked
the deceased while she was sitting in her lounge reading a newspaper and
enjoying a snack. He grabbed
her by the throat with both hands, threw her to the
ground and, straddling her torso, proceeded to throttle her. The appellant then
gagged the deceased with a dishcloth, repeatedly stuffing it into her mouth
until she could no longer eject it with her tongue. Thereupon
the appellant
twisted a bathroom towel around the deceased's neck and strangled her by pulling
the ends tight. At some stage he added
depravity to brutality by raping his
helpless victim.
6
The deceased had managed to utter a scream before the appellant silenced her
and two next door neighbours went to investigate. The
one called from her
backyard opposite the deceased's kitchen door. Accused number 2 thereupon opened
the kitchen door and successfully
diverted the enquirer's attention by saying
that she, too, had heard a scream but that it had emanated from elsewhere. The
other
neighbour walked to the deceased's front door. Before she reached it
accused number 2 emerged and managed to allay her suspicions
as well. In the
interim the appellant had been pursuing his attack on the deceased. Then,
leaving the deceased dead or dying on the
floor, the appellant went to change
from his working clothes while accused number 2 searched the house for
valuables. They departed
shortly thereafter with the deceased's wallet
(containing R37,00 in cash), the deceased's jewellery and two
7
plastic bags stuffed with clothing and the deceased's radio-alarm. Some time
thereafter the one neighbour, still uneasy, instructed
a young African gardener
to gain access to the deceased's locked house via an open toilet window. He
discovered the deceased lying
on the floor of her lounge. The police were
summoned and within hours all relevant features were photographed and a post
mortem examination
was conducted
in situ
. A full autopsy was subsequently
conducted at the government mortuary. A number of points noted by the district
surgeon warrant emphasis.
First, the cause of death was both strangulation and
suffocation; second, considerable difficulty was encountered in removing the
dish-cloth because of the force with which it had been stuffed into the
deceased's mouth; third, the towel had been twisted tightly
around the neck;
fourth the clinical and pathological findings established that considerable
8
manual pressure had been applied to the deceased's throat for a prolonged
period.
In the meantime the two miscreants had spent the stolen cash and the proceeds
of the sale of the alarm-radio on liquor. The two carrier
bags were left with a
relative and the two went to a remote hideaway. The police were quickly onto
their trail and arrested them
the following night. They were both in an advanced
state of intoxication, accused number 2 dressed in the deceased's clothes and
wearing some of her jewellery. The investigating officer interviewed his two
suspects the following evening and, as a result of their
co-operation, managed
to locate the wallet and the two carrier bags. The next morning he arranged for
them to be taken to magistrates
to make statements. The manuscript recording of
the appellant's detailed narrative to the magistrate covers more than four full
sheets
of paper. Its
9
significance lies not so much in what is stated,
but rather in what is
omitted: There is no
suggestion of any altercation preceding the attack
on the deceased; indeed there is no mention of any provocation at all. On the
contrary, in his statement to the magistrate the appellant
sought to create the
impression that accused number 2 had summoned his assistance after she had
attacked the deceased. There is no
mention of manual strangulation and it is
alleged that it was accused number 2 who had forced the dish-cloth into the
deceased's
mouth. The statement also suggests that the appellant played no part
in the collection and removal of the deceased's possessions.
Moreover not a word
is said about any sexual involvement with the deceased.
In his evidence at the trial, however, the appellant took an entirely
different tack. The attack had not been initiated by accused
number 2
10
but had been precipitated by an an argument between himself and the deceased
regarding his remuneration. Indeed his version at the
trial was clearly directed
towards exculpating his partner: she had not felled the deceased but he had; she
had not stuffed the dish-cloth
into the deceased's mouth but he had; she had not
participated in strangling the deceased with the towel, he had done so on his
own.
With regard to the sexual component of the crime, his evidence was that he
and the deceased had had intercourse at her suggestion
earlier that morning
during his lover's temporary absence from the house.
The trial court found the appellant to be a thoroughly untruthful witness.
There is no reason to differ. Not only was the version
he advanced in the
witness box inherently unworthy of credence and riddled with contradictions and
inconsistencies, but it was irreconcilable
with
11
what he had told the magistrate three days after the events.
The question at issue, however, is not the appellant's credibility but
whether it has been established that the circumstances of the
murder were such
that the ultimate penalty is imperative. Counsel for the appellant, wisely, did
not contend for the absence of aggravating
factors. Indeed they are many and
grave. The appellant and his partner in these horrible crimes set upon a
middle-aged woman in the
privacy of her home. Over a period of several weeks the
deceased had come to repose such trust in the appellant and accused number
2
that, notwithstanding an acute concern for personal security, she had admitted
them to her home. The trial court found that she
was attacked whilst sitting in
her lounge, reading a newspaper and enjoying a midmorning snack. Those findings
were well founded.
A crumpled newspaper
12
and the deceased's reading spectacles were found near the body while a
partially eaten tomato sandwich was grasped in the one hand.
Clearly the fatal
attack was launched on an unsuspecting victim whiling away the time in repose.
There she was attacked, manually
throttled, suffocated with a gag and garroted
with a twisted towel. Whilst mortally incapacitated she was subjected to the
ultimate
indignity of rape. Thereupon her assailants rifled her home and made
off with their spoils - leaving their victim dead or dying.
Counsel for the appellant submitted, however, that there were a number of
mitigating factors to be taken into account. First we were
urged to accept as a
reasonable possibility that the attack on the deceased had been precipitated by
an argument about money. There
is no merit in the submission. In his detailed
statement to the magistrate three days after the murder, in which he
13
sought to exculpate himself as best he could, the appellant did not suggest
that there had been any argument involving himself and
the deceased. On the
contrary, he furnished a description of accused number 2 attacking the deceased
where she was sitting reading
a newspaper.
The next point urged on appellant's behalf was that a direct intention to
kill had not been established. The argument fails in its
point of departure, its
development and its conclusion. The basic hypothesis that the violence was
triggered by an altercation is
unfounded. There was no sudden outbreak of anger
which had to be swiftly quelled. While accused number 2 cunningly kept the
neighbours
at bay the appellant dispatched his victim with ruthless efficiency.
He and his partner performed their respective roles well enough
for them to
commit the crimes and make good their getaway with their spoils. Furthermore
the
14
duration and violence of the attack described by the appellant (and borne out
by the post mortem findings) is barely reconcilable
with an intention to
incapacitate the deceased temporarily. In his evidence on this aspect the
appellant found himself in a dilemma.
On the one hand he professed not to know
that prolonged throttling or suffocation could be fatal; yet, at the same time,
he contended
that he intermittently released the pressure on the deceased's
throat, to avoid serious injury. In the context that can only mean
that he
appreciated that sustained pressure was dangerous. In any event, as the trial
court found with ineluctable logic, the very
fact that three different forms of
potentially fatal violence were applied - in succession and over a protracted
period of time -
leaves no room for doubt as to the direct intention to induce
death. Moreover, once it is accepted that there was an unprovoked attack
followed by the rape and
15
the theft, the conclusion is inevitable that the attack was launched in order
to rob. Inasmuch as the deceased had come to know her
assailants well during the
preceding weeks there is grave doubt whether the intention had been merely to
incapacitate her as an impediment
to the robbery, and not rather to eliminate
her as a potential identifying witness. Then, when the appellant proceeded to
rape his
victim, he must have done so in the knowledge that she would not live
to tell the tale. The sang-froid with which the robbers acted
once the deceased
had been overcome also strongly suggests that they knew they could take their
time without fear of any hindrance
from that quarter. The appellant proceeded to
change from his working into his street clothes and accused number 2, possibly
assisted
by the appellant, selected and packed their booty; then they left the
house separately so as not to evoke suspicion.
16
As the deceased was not tied up, the sinister inference is that their
confidence was founded cm knowledge that the deceased was dead
or dying.
Counsel for the appellant also suggested that the subsequent theft "appears
to have been something of an afterthought, and the items
were of relatively
small value." Neither contention can be sustained. Robbery was the very motive
for the attack. Having overpowered
their victim the robbers selected their booty
with ostensible discrimination. With only their pockets and two plastic bags at
their
disposal they managed to take goods to the value of approximately R8
000,00. To the appellant that figure represented some three
years' gross income
and far exceeded the contract sum of R240,00 he was due to be paid that day. By
the time the police caught up
with them the following night the robbers had not
only spent the cash and secreted the carrier bags but had already
17
disposed of several items of value.
Counsel for the appellant also contended that his actions after the
commission of the crimes manifested mitigatory features. I cannot
agree. First
and foremost there is no merit in the suggestion that the appellant, by his
co-operation with the police, manifested
contrition. It is true that, once the
police had run him to ground, he assisted them in the recovery of some of the
stolen goods.
It can also be accepted that, at the time, he made further
disclosures to the investigating officer. It can even be assumed in the
appellant's favour that in doing so he was not merely bowing to the inevitable.
Nevertheless an inference of remorse on his part
is not reasonably possible. The
morning after the pointings out he made a statement to a magistrate evidencing
no such sentiment
but, on the contrary, a studied attempt to exculpate himself
at the expense of his lover.
18
His evidence at the trial reveals not a scintilla of remorse. While the
merits were still in contention he adhered to his palpably
false attempts at
exculpation by suggesting that the deceased had rutted with him and had
subsequently threatened to shoot him. Once
he had been convicted he declined to
testify with regard to extenuating circumstances. Protestations of remorse at
that stage would
have rung singularly untrue in the light of the callous
unconcern for his victim manifested throughout.
Counsel submitted on his behalf, however, that such conduct should be viewed
in the context of the appellant's socio-cultural background
of gross deprivation
and his history of chronic alcohol dependency. While it is true that the
appellant came from humble origins
and was eking out a precarious existence,
there is no evidence to suggest any environmental conditions which could
19
have predisposed him to the reprehensible actions in issue in this case.
There is no history of any mental aberration or socio-pathology.
His record of
previous convictions reflects two minor thefts in the mid 1970's and a clean
record thereafter. For some six years
prior to the commission of the instant
offences he had fended for himself reasonably adequately as a freelance
contractor in and
around the urban area of East London. He was therefore neither
an unsophisticated tribesman nor a helpless alcoholic. Counsel's further
suggestion that the appellant's adherence to traditional beliefs could possibly
have played a part, finds no support in the evidence.
But the case is not wholly devoid of mitigatory features. The trial court
found as a fact that the murder had not been premeditated.
Indeed it is
reasonably possible that even the
20
decision to rob the deceased was taken shortly before when the appellant
and/or accused number 2 realised that their presence in the
house in the
proximity of a soft target presented an opportunity for easy spoils. What is
more, to persons of their station in life
the deceased's jewellery and personal
effects must have seemed unattainable riches. Although the description by
counsel for the appellant
of the robbers' actions as "inept" cannot be
supported, there is substance in the submission that there are indications of a
lack
of forethought. Thus they did not wait till the deceased had drawn their
wages, which would have made sense from their point of view.
Also the absence of
any weapon suggests that they fell upon the deceased without any predetermined
plan. The progression from manual
strangulation to gagging and ultimately to the
use of the towel as a ligature, albeit not a "frenzy of confusion" as
21
counsel characterised it, does tend to indicate the absence of planning.
What is more important, though, is that it leaves room for doubt as to
whether the intention to kill was not formed in the heat of
the moment as the
attack gathered momentum. In that context regard should be had to the personal
circumstances of the appellant.
He was in his mid-thirties at the time and had
never been involved in any crime of violence. His two previous brushes with the
law
had been petty thefts more than a decade before. Not only can he be regarded
as a first offender, but, what is more important here,
the instant crimes seem
out of character. That lends support to the possibility that (a) the robbery was
launched without reflection,
and (b) that the subsequent crimes were committed
in the unstructured escalation of violence. clearly such lack of premeditation
is a cogent factor in
22
determining whether the death sentence is the only appropriate penalty. So,
too, due weight should be given to the appellant's clean
record for more than a
decade after he had served five months in prison in 1976/77. Not only does it
tend to suggest that he is amenable
to rehabilitation, but it also indicates
that he was a law abiding and useful member of society.
That having been said, the question remains whether the retributive and
deterrent demands of the law do not render the death penalty
unavoidable. In
this regard it is important to note that the trial court expressly mentioned the
prevalence of murderous attacks
on elderly or defenceless robbery victims in its
area of jurisdiction. Counsel for the State stressed this factor and drew
attention
to a number of recent judgments in this court dealing with such cases
emanating from the Eastern Cape. Sad to say,
23
that area is by no means unique; nor is robbery the only motive for the
alarming increase in both the incidence and the savagery of
crimes of violence
currently besetting the country. The causative factors are complex, manifold and
pervasive. Yet the legislature,
within whose field of competence such factors
pre-eminently lie, and with knowledge of their dire consequences, turned over a
new
leaf with Act 107 of 1990. Although maintaining the death sentence, it
reserved it for cases where no other penalty, even imprisonment
for life, could
do justice.
Despite the heinousness of the murder, the mitigating factors discussed above
take this case out of that category. The ultimate penalty
is not imperative. The
interests of society and the retributive and deterrent objectives of sentence,
would be adequately served
if the appellant were to spend the rest of his life
in
24
prison.
The appeal against the death sentence is upheld and in its stead the
appellant is sentenced to life imprisonment.
KRIEGLER AJA-
E.M. GROSSKOPF JA ]
] CONCUR
GOLDSTONE JA ]