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1993
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[1993] ZASCA 20
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S v Gadivhana (395/92) [1993] ZASCA 20 (9 March 1993)
1
Case no 395/92 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between
TAKALANI ALFRED GADIVHANA
Appellant
- and -
THE STATE
Respondent
CORAM:
BOTHA, VIVIER JJA et KRIEGLER
AJA.
HEARD:
2 March 1993.
DELIVERED:
9 March 1993.
JUDGMENT
VIVIER JA.
2
VIVIER JA:
The appellant was convicted in the Venda Supreme Court
by VAN DER WALT J and assessors on one count each of murder and robbery with
aggravating circumstances (counts 1 and 3) and of offences involving the
unlawful pointing and possession of a firearm (counts 2
and 4). On count 1 no
extenuating circumstances were found, and under the then prevailing law the
appellant was sentenced to death.
On count 3 the appellant was sentenced to 18
years' imprisonment. On count 2 he was sentenced to a fine of R500-00 or 6
months' imprisonment
and on count 4 to 18 months' imprisonment. The terms of
imprisonment imposed on counts 2 and 4 were ordered to run concurrently with
that imposed on count 3. Since the trial the provisions of the Criminal Law
Amendment Act 107 of 1990 have been adopted in Venda
by Venda Proclamation 16 of
1991. In terms of sec 316 A of the Criminal
3
Procedure Act 51 of 1977, as amended ("the Act"), the appellant appeals to
this Court against the sentence of death imposed on count
1 and, with the leave
of the trial Judge, he further appeals to this Court against the sentence
imposed on count 3.
The relevant facts are the following. At about 3 o'clock on Saturday
afternoon 23 September 1989 the appellant entered the Masikhwa
Store in the
Tshivhilwi rural area, some 20 km from Thohoyandou. He was armed with a loaded
revolver and intended to rob the store.
He waited until a delivery vehicle which
had arrived with bread for the store had been off-loaded and the vehicle with
its personnel
had left, before he produced the revolver and pointed it at the
cashier behind the counter, one Anderson Makhuvha ("Anderson"), demanding
all
the money in the store. Anderson handed him the money from the till, which came
to about R300-00, but the appellant was not satisfied
4
and started searching the store, informing Anderson that he would kill him if
he found more money. He found none and forced Anderson
and one Elinah Madima,
who was the only other person in the store, at gunpoint into the kitchen and
then into the storeroom where
he conducted a fruitless search for more money.
Afterwards Elinah Madima was ordered to remain in the storeroom and the
appellant
took Anderson at gunpoint ahead of him through the front door of the
shop. The deceased's taxi, conveying some 15 members of a burial
society on
their way back from a funeral, had in the meantime stopped in front of the shop.
The deceased, Muvhango Tshamaano, had
alighted from the taxi and was standing at
the gate in front of the shop waiting for one of the passengers who had also
alighted
on an errand, to return to the taxi.
When the appellant noticed the deceased at the gate he pointed the revolver
at him and ordered
5
him to approach him. The deceased refused, saying that he was not employed at
the shop. The appellant thereupon fired a shot at the
deceased from a distance
of about 9 paces, hitting him in the stomach and fatally wounding him. When
Anderson ran away the appellant
shot at him but missed. The appellant thereafter
calmly walked away from the scene, wiping the gun with his scarf and putting it
in his pocket as he did so.
The appellant said in evidence at the trial that when he saw the deceased
standing at the gate he pointed the firearm at him merely
in order to scare him
so that he would run away. He did not intend to shoot the deceased and did not
know how it happened that the
shot was fired. The deceased was not known to him.
This was in direct conflict with what the appellant had earlier told the
Magistrate
during the proceedings held in terms of sec 119 of the Act,
namely
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that he had shot the deceased, who knew him, because he was afraid of being
identified. The Court a quo rejected the appellant's evidence
and found that he
had shot the deceased with the direct intention of killing him in order to avoid
being identified. On the charge
of attempting to murder Anderson the appellant
was convicted only of the statutory offence of pointing a firearm.
I shall deal first with the appeal against the death sentence imposed in
respect of count 1. At the time when the appellant was sentenced
the death
sentence was mandatory, no extenuating circumstances having been proved. Under
the new legislation this Court now has a
discretion to determine, with due
regard to the presence or absence of any mitigating or aggravating factors,
whether the sentence
of death was the only proper sentence.
The appellant was 29 years old at the time of
7
the commission of the crimes. He had left school when he was in standard 5.
He told the trial Court that he had come out of prison
a little more than a
month before he committed the present crimes, that he was unemployed and that he
needed money to help his mother
who had to support his two younger brothers and
sister. The appellant admitted six previous convictions: two for theft, one for
housebreaking
with intent to steal and theft, one for rape, one for bestiality
and one for the possession of suspected stolen property.
Counsel for the appellant submitted in this Court that the appellant acted
impulsively to avoid being identified and that this should
be regarded as a
mitigating factor. I do not agree that the appellant acted impulsively or in a
state of panic. After realising that
he was known to the deceased he first spoke
to him and it was only when the latter refused
8
to come closer that he fired the shot which killed the deceased. He
thereafter calmly strolled away from the scene. As for killing
the deceased in
order to prevent being identified, I consider this to be an aggravating rather
than a mitigating factor. It was further
pointed out that the appellant was an
unsophisticated, poorly educated man from a primitive society. I do not,
however, regard the
appellant's background as a mitigating factor in the present
case. The trial Court described him as a self-assured, intelligent person
and
his conduct and history showed that he was a man seasoned in crime.
Counsel for the appellant further submitted that he had shown genuine remorse
for what he had done. At the trial there was no sign
of remorse until after his
conviction. In his evidence before his conviction he persisted in his defence
that the shooting of the
deceased had been an accident and in his denial that
he
9
had previously told the Magistrate that he had intentionally killed the
deceased. After he had been convicted the appellant expressed
regret for what he
had done without taking the trial Court fully into his confidence. In my view
remorse, as an indication that the
offence will not be committed again, is not a
valid consideration in the present case.
The aggravating factors are self-evident. The deceased was killed in the
course of a carefully planned armed robbery. As the trial
Court pointed out, the
particular target was carefully chosen because it was situated in a sparsely
populated area where the appellant
considered that there was less chance of
detection. The appellant acted with the direct intention to kill. An innocent,
defenceless
bystander was ruthlessly gunned down in cold blood for no other
reason than to escape identification. Another aggravating factor
is the
appellant's criminal record.
11
That leaves the appeal against the sentence of 18 years' imprisonment in
respect of the robbery count. In the present case it is necessary,
in order to
avoid a duplication of punishment, to ignore the fatal consequences of the
appellant's attack on the deceased. When this
is done I consider the sentence
for the robbery to be unduly severe. No physical harm was suffered during the
robbery. In my view
a sentence of 12 years' imprisonment would be a fitting
punishment.
Accordingly the following order is made:-
(1)
The appeal against the
death sentence imposed in respect of count 1 is
dismissed;
(2)
the appeal against the sentence
of 18 years' imprisonment in respect of count 3 is allowed. The sentence is set
aside and there is
substituted a sentence of 12 years'
imprisonment.
W. VIVIER JA.
BOTHA JA)
KRIBGLER AJA, Concurred.