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[1993] ZASCA 19
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S v Tshabalala and Others (541/91,616/91) [1993] ZASCA 19 (5 March 1993)
CASE NO : 541/91 and 616/91
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between :
ROBERT MATLOMOLA TSHABALALA
First Appellant
KENNY
SEGOE
Second Appellant
STEPHEN SHINE MOLEFE
Third Appellant
and
THE STATE
Respondent
CASE NO : 541/91 and 616/91
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between :
ROBERT MATLOMOLA TSHABALALA
First Appellant
KENNY
SEGOE
Second Appellant
STEPHEN SHINE MOLEFE
Third Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, FH GROSSKOPF, JJA,
et HOWIE, AJA
HEARD
: 23 February 1993
DELIVERED
: 5 Maart 1993
JUDGMENT
SMALBERGER, JA :-
On the night of 13 December 1989 the three appellants broke into the house of
Mrs Nola Harriet Levy
2
("the deceased") at 145 Corlett Drive, Johannesburg. Access was gained
through the kitchen window. The deceased was absent from the
premises at the
time. The appellants' motive was theft. While they were going about ransacking
the house the deceased returned. When
they heard the sound of her car they
sought shelter behind a bedroom door. After entering the house the deceased
retired to her bedroom,
unaware of the events that had taken place during her
absence. The appellants decided amongst themselves that it would be necessary
to
render the deceased helpless in order best to achieve their felonious purpose.
They waited until the deceased was asleep before
making their move. They then
entered her room where they subdued, bound and gagged her. In the process they
overcame her resistance
by force. In the course of the struggle the deceased
sustained numerous head and facial injuries including a broken nose. Most of
the
injuries were of a relatively
3
minor nature. She was left lying on her back on the floor of her room. The
appellants then proceeded to partake of food and liquor
in the house before
leaving, some hours later, in the deceased's motor vehicle. They took a
considerable quantity of goods with them.
The following morning the deceased was
found dead in her bedroom by her domestic servant. The above facts are either
common cause
or not in dispute for the purposes of the present appeal.
Following on these events the appellants were convicted in the Witwatersrand
Local Division by M J STRYDOM, J and two assessors of
(1) murder and (2)
housebreaking with intent to steal and robbery with aggravating circumstances.
On the latter count they were each
sentenced to eight years' imprisonment. On
the murder count the learned trial judge, after a thorough review of the
relevant mitigating
and aggravating factors, came to the conclusion that, in
the
4
case of all three appellants, the death sentence was the only proper
sentence, and sentenced them accordingly. They now appeal against
both their
convictions and sentences of death on the murder count. The essential issues
raised on appeal on behalf of the appellants
were (1) causation, (2) intent and
(3) sentence. I shall deal with each of these in turn.
Causation
It was contended under this head that the State had failed to prove that the
appellants' conduct was directly and causally responsible
for the deceased's
death.
According to Captain van Wyk, the investigating officer, he arrived at the
deceased's house shortly after 06:15 on the morning after
her death. He found
the deceased lying on her back on the floor of her bedroom. She had her head on
a pillow and
5
her body was covered by a duvet. Her hands were tied behind her back and her
ankles were bound together. There was a skirt tied around
her throat and mouth.
There was some blood around her nose and on the back of her head. The
bedclothing was bloodstained and there
were traces of blood on the wall adjacent
to the bed. After loosening the skirt he observed two socks in the deceased's
mouth. A
third sock came away from her mouth when the skirt was untied. It is
common cause that a further sock was found lodged in the back
of her throat at
the post-mortem examination conducted by the pathologist, Dr Steenekamp. He saw
the deceased's body for the first
time at her house at approximately 08:30 on
the morning in question. He only recalled seeing one sock in her mouth at that
stage
(and not two, as stated by van Wyk). I shall revert to this difference in
their evidence later.
Dr Steenekamp concluded at the post-mortem
6
examination that the cause of the deceased's death was suffocation. (That
this was in fact the cause of the deceased's death was admitted
by the
appellants at the
commencement of the trial - an admission never subsequently retracted.) The
immediate cause of the suffocation was the sock found
in the back of the
deceased's throat which overlay the epiglottis and obstructed the airflow into
her lungs. This would have led
to anoxia, shock, heart failure and consequently
death. On the medical evidence there were only two possible explanations for the
presence of the sock: (1) it was manually thrust into the back of the deceased's
throat or (2) the deceased suffered some form of
seizure which led to her
involuntarily swallowing, causing the sock to be drawn into the position in
which it was found. There were
clinical findings to support the first
explanation. Dr Steenekamp found small submucosal haemorrhages in the back of
the deceased's
throat which
7
were consistent with the sock having been forcibly thrust there. On the other
hand he could find no clinical signs normally evident
in the case of a seizure
(such as a bitten tongue). On a proper conspectus of the medical evidence it
would seem that a seizure was
a remote rather than a reasonable possiblility. It
follows that the only reasonable inference to be drawn is that the sock was
forced
into the back of the deceased's throat. In any event, whatever the
precise mechanism of death, it was the presence of the sock in
the deceased's
mouth that ultimately caused her death by suffocation; at the very least it was
a major contributing factor. On the
assumption that the appellants were
responsible for the sock in the deceased's mouth the causative link between
their acts and the
deceased's death has been established.
8
Intent
As previously mentioned, it is common cause that after the
return of the deceased the appellants
agreed amongst themselves to overpower
her and render her helpless. In the execution of their common purpose they duly
subdued, bound
and gagged her. In statements made by them shortly after their
arrest, which were admitted in evidence against them, they described
how, while
two of them held the deceased's arms and legs, the third forced what eventually
turned out to be socks into her mouth
to prevent her from screaming. It is
apparent from their statements that each appellant associated himself with the
acts of the others,
thereby making himself legally responsible for both his own
and their acts. When giving evidence the appellants denied that anything
had
been forced into the deceased's mouth, but their denials were rightly rejected
by the trial court. Quite clearly their statements
reflected the true state
9
of affairs in this regard, and were accepted as such.
Because the statement of any one appellant could not be used as evidence
against the others the trial court was unable to make a conclusive
finding as to
which appellant had actually thrust the socks into the deceased's mouth. Only
the appellant who did so would appreciate
how deeply he had forced the socks
into the deceased's mouth and throat, a factor relevant to his actual foresight
of the possibility
of her death. Given the circumstances pertaining at the time
- a relatively poorly illuminated room, an ongoing struggle to subdue
the
deceased and the latter's probable resistance to anything being forced into her
mouth - the other two appellants are unlikely
to have appreciated just how deep
the inward thrust into the deceased's oral cavity was. As it cannot be
established which appellant
was responsible for forcing the socks into the
deceased's mouth the guilt of each must be assessed on
10
the lesser basis that each had knowledge only that socks (or something
similar, they may not have known precisely what) were thrust
into the deceased's
mouth to
prevent her from screaming and that thereafter a skirt was tied over
her mouth, acts with which each appellant associated himself.
As previously mentioned Captain van Wyk and Dr Steenekamp appear to have
contradicted each other with regard to the number of socks
found in the
deceased's mouth and throat. It seems to me to be unnecessary to resolve the
conflict. Whether there were three or four
would probably not have had a
significant bearing upon the choking effect of what was essentially a wad of
material thrust into the
deceased's mouth. And in any event one must proceed on
the premise that none of the appellants would have been aware of the precise
number of socks thrust into the deceased's mouth. All each one must be taken to
have known was that enough material
11
of some kind had been used to effectively prevent her from screaming.
As appears from the medical evidence, the
mere presence of
socks in the deceased's mouth would not
per se
have prevented her from
breathing. But in her
case she had suffered, in the course of the assault
upon
her to subdue her, visible head and facial injuries.
According to
their evidence both the second and third
appellants were aware, when they
assisted in gagging and
binding her, that her nose was bleeding. The
first
appellant's evidence is silent on this point, but if the
other two
appellants were aware of this (what must have
been fairly obvious) fact, the
only reasonable inference
is that he must have been equally aware thereof.
A
person with the meanest intelligence would appreciate
that a bleeding
nose interferes with normal breathing.
The socks in the deceased's mouth
would have interfered
further, and no doubt significantly, with her
breathing
12
process. To this must be added the fact that the appellants tied a skirt
around the deceased's throat and neck thereby effectively
preventing her from
expelling the socks from her mouth.
Having regard to the circumstances outlined above, a reasonable person in the
position of any one of the appellants ought to have
forseen that the socks
thrust into the deceased's mouth would gravely impair her breathing process and
could cause her to die from
suffocation. The question is whether each appellant
subjectively foresaw the possibility of her death, for proof of such subjective
foresight is a necessary prerequisite for a finding of intent in the case of
murder. In this respect one must guard against leaping
to the conclusion that
because the appellants ought to have foreseen her death they did in fact foresee
it.
Proof of the appellants' subjective foresight of the possibility of the
deceased's death is to be
13
found mainly in certain statements made by each under cross-examination. Each
in effect admitted knowing that if socks were bundled
up and placed in a person'
s mouth they would interfere with such person's breathing and could possibly
lead to suffocation and death.
It was argued on the appellants' behalf that this
evidence was ex
post facto
and may have been based on what they had heard
in evidence during the trial. It did not therefore necessarily reflect their
subjective
belief at the time the socks were thrust into the deceased's mouth.
However, the appellants never sought to qualify their answers
and there is no
basis for holding that they did not at all material times hold the belief they
professed to in their evidence. Even
if the factual situation put to the
appellants under cross-examination, which elicited the responses I have
mentioned, went somewhat
further than the evidence justified I do not think that
it detracts from the fact
14
that their replies clearly showed a subjective awareness of the dangers
inherent in stuffing socks into the mouth of a person in the
deceased's
position. That subjective awareness would have been heightened by the fact that
they were dealing with a person who was
injured, whose nose was bleeding and
whose mouth was covered by a skirt tied around it. The false denials by the
appellants in evidence
that socks were thrust into the deceased's mouth further
strengthens the inference that they subjectively appreciated the dangers
inherent in their conduct.
In all the circumstances the only reasonable inference to be drawn is that
the appellants foresaw the death of the deceased as a possibility
and reconciled
themselves with that event occurring - such reconciliation being reflected in
their reckless disregard of whether
the deceased died or not. This was evidenced
by their complete lack of interest in or
15
real concern for the fate of the deceased after leaving her injured and
trussed up in her room. Thus
dolus eventualis
on the part of all three
appellants was proved and they were correctly convicted of murder.
Sentence
This Court is free, upon a consideration of
all relevant mitigating and aggravating factors, to make its own assessment
whether the death sentence in
casu
is the only appropriate sentence in
respect of each of the appellants. Its discretion is not in any way fettered by
the findings
and conclusions of the trial court (save that it should allow
itself to be guided on issues of credibility).
There are substantial mitigating factors present. The appellants' motive in
breaking into the deceased's house was one of theft. They
did not go there with
the preconceived idea of robbing or killing
16
the deceased. They broke into her house in her
absence. For
practical purposes they were unarmed.
One of the appellants had a knife in
his possession but
it was used solely for the purpose of effecting
entry
into the house. It was never used to inflict injury
on the deceased
even though the opportunity to do so
presented itself later. It must be
accepted in the
appellants' favour that they were disturbed by the
early
return of the deceased - it was not established that
they had
deliberately waited for her to return. Their
form of intent was no more than
dolus eventualis
. Their
primary intention was to subdue her and render
her
helpless so that they could proceed to ransack the
house undisturbed.
There is no justification for
finding that they foresaw the deceased' s death
as a
strong possibility. I disagree with the trial court's
finding that
their conduct bordered on
dolus directus
;
if anything the scale tilted
the other way.
17
All the appellants come from a low socio-economic background. The first
appellant was 19 years and 4 months old when the offence was
committed,
prima
facie
he would not yet have reached emotional
and
intellectual maturity. This inference is not sufficiently disturbed by
the fact that he was the prime mover behind the housebreaking
venture and that
he outwardly leads an adult existence. Even though he may have been hardened to
life's vicissitudes, immaturity
is still likely to have been a part of his
make-up. It will require exceptional circumstances before it can confidently be
said that
the death sentence is the only proper sentence for a 19 year old. Such
circumstances were found to be present in
S v Mofokenq
1992(2) SACR
710(A) (but see contra
S v Cotton
1992(1) SACR 531(A)). A further
consideration is that while the first appellant has four previous convictions
for housebreaking or
attempted housebreaking he has no
18
previous convictions involving physical violence. It cannot therefore be said
that he is incapable of rehabilitation as far as any
violent tendencies he may
have are concerned.
The second and third appellants are in a less favourable position. They were
25 and 24 years old respectively at the relevant time.
Youthful immaturity is
therefore not a consideration as far as they are concerned. In their favour is
the fact that they did not
set in motion the events of that fateful night. They
were lesser players in a venture initiated by the first appellant. The second
appellant has two previous convictions of which one was for assault with intent
to do grievous bodily harm. Judging from the sentence
imposed it was not a
particularly serious offence. In his case too rehabilitation cannot be ruled
out. The third appellant has previous
convictions for assault with intent to do
grievous bodily harm, robbery and
19
attempted robbery. The first two were committed when he was a juvenile and
were taken together for the purposes of sentence. The sentence
imposed was one
of 7 cuts with a light cane. The third offence was committed in 1984 and
resulted in a gaol sentence. While his prospects
of rehabilitation seem somewhat
remote they are probably not entirely lacking.
There are a number of seriously aggravating factors present. The appellants
could have made good their escape after the return of
the deceased had they
chosen to do so. Instead they turned to robbery. Their revised plan of action
was a considered one and they
bided their time before putting it into effect.
Theirs was therefore not a spur-of-the-moment decision. In the end result their
actions
were dictated by self-interest and greed. Their attack upon the
deceased, a defenceless middle-aged woman, in the sanctity of her
own bedroom
constituted an unwarranted and grave
20
invasion of her privacy. Their conduct is made all the more serious because
of the prevalence of this type of offence. The retributive
and deterrent
objectives of
punishment come strongly to the fore when considering an appropriate sentence
in cases such as the present. On the other hand it must
be borne in mind that
the appellants did not make themselves guilty of mindless violence or undue
savagery or brutality as is so
frequently the case. Initially they appeared to
show some concern for the deceased by throwing a duvet over her, although they
later
displayed a somewhat callous indifference to her fate. Their callousness,
however, was not of the magnitude found by the trial court,
the court having
misinterpreted certain aspects of the evidence in arriving at its conclusion in
this regard (the details of which
need not be gone into).
While the mitigating factors in favour of the first appellant are somewhat
greater than those in
21
favour of the other two appellants, I do not think that the relevant
circumstances warrant a distinction being drawn between the appellants
in regard
to sentence. Without in any way detracting from the heinous nature of the
offence, this is not a matter of such exceptional
seriousness that it can be
said that the death sentence is the only proper sentence. A long term of
imprisonment would be equally
appropriate.
In my view all the objectives of punishment would be achieved by a sentence
of 20 years' imprisonment for each appellant. It follows
that the appeal against
sentence must succeed.
The following order is made:
(1)
The appeals against the
convictions are dismissed but those against the sentences are
allowed.
(2)
The sentences of death imposed
upon the three appellants are set aside and are replaced, in respect of each
appellant, by a sentence
of 20 years' imprisonment. It is ordered that the
sentence of 8 years' imprisonment on the
housebreaking
22
count is to run concurrently with this sentence.
(3) The Registrar is directed to transmit a copy of this judgment to the
Department of Correctional Services.
J
W SMALBERGER JUDGE OF APPEAL
F H GROSSKOPF, JA )
HOWIE, AJA ) concur