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1993
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[1993] ZASCA 24
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S v Khumalo (199/92) [1993] ZASCA 24 (11 March 1993)
CASE NO: 199/92
IN THE APPELLATE DIVISION OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
PURPOSE BONGANI KHUMALO
Appellant
and
THE
STATE
Respondent
CORAM
: E M GROSSKOPF, GOLDSTONE JJ.A. et HARMS
AJA
DATE HEARD
: 1 MARCH 1993
DATE DELIVERED
: 11 MARCH
1993
2
JUDGMENT
GOLDSTONE JA
:
Mr Trevor John Gale ("the deceased") was a part-owner and manager of TJ's
Restaurant in Braamfontein, Johannesburg. On 27 November
1990, the deceased
arrived at the restaurant at approximately 08:30. The shop next door was called
Camp and Climb. Mr Andrew Hoy
was employed there. Hoy and the manager of Camp
and Climb heard sounds of violence coming from the restaurant. Hoy stated in
evidence
that they realised that something unusual was going on as the deceased
was normally alone in his restaurant in the early morning.
They decided to
investigate and went to the restaurant.
3
The glass and security doors were wide open. As they entered, a
black man walked past them. He looked suspicious, according to Hoy,
because he
had draped around him what appeared to be a large pink cloth. Hoy passed within
half a metre of the man. He had a good
look at his face. In the kitchen of the
restaurant they found the deceased either dead or dying in consequence of
multiple stab wounds
to his face, chest and abdomen.
A short while later, when he arrived at the scene, the investigating officer,
Detective Sergeant Eksteen, found an open safe in the
store-room of the
restaurant. The key was in the lock. From the books and records of the business
it was later ascertained that cash
in an amount of R6361,00 was missing. There
were signs that a struggle had taken place in the store-room. On the floor the
investigating
officer found a poster. There was a finger-print cm it which,
according to the
4
expert evidence led by the State, was not older than 72
hours.
The police investigation was unsuccessful until, in July 1991, they received
an anonymous letter in which the appellant was named
as the culprit. His address
was also furnished. That led to the arrest of the appellant.
The evidence against the appellant was the following:
1. It was his finger-print which had been found on
the poster.
2. At an identification parade Hoy identified him
as the suspicious person
whom he had seen
leaving the restaurant on the morning of 27
November
1990.
3. He had worked for the deceased at the
restaurant during 1990.
5
The appellant was charged with murder and
robbery with
aggravating circumstances. He stood trial
in the Witwatersrand Local Division
(Spoelstra J and two
assessors). He was found guilty on both counts and
on
each he was sentenced to death.
Although the notice of appeal was only
directed at the sentences of death, in heads of argument counsel for the
appellant sought to
place in issue the correctness of the convictions. However,
at the hearing of the appeal counsel informed us that she was not pressing
those
submissions. And wisely so. The evidence against the appellant, to which I have
already made reference, was damning. It was
met with unsatisfactory evidence by
the appellant who relied cm an alibi. His evidence, for good reasons, was
rejected as untruthful
by the Court a
quo
. There is clearly no basis for
questioning the judgment of the trial court with regard to the convictions.
6
With regard to sentence there are a number of aggravating
factors. They are the following:
1. Some eight months before the commission of the offences the appellant had
been employed by the deceased at his restaurant. The
appellant must have known
that the deceased was usually alone in his restaurant in the early morning. He
must also have anticipated
that there would be cash in the safe kept in the
store-room. 11 follows that the commission of the offences was planned by the
appellant
a time prior to their execution.
2. The appellant was known to the deceased. The robbery was committed at a time
when the appellant knew and intended that the deceased
would be present. The
overwhelming probability is that the accused went there not only to commit a
robbery but also intending to
7
to murder the deceased in order to avoid the risk of detection. Indeed, but for
the anonymous communication received by the police,
the deceased would not have
been apprehended.
3. The manner in which the deceased was killed was
savage. He was stabbed
over 30 times.
4. The disturbing frequency with which robberies
are committed in the larger
urban areas of
South Africa, and particularly in Johannesburg, is notorious. There is great
fear present in the minds of vast numbers of people
in our country in
consequence of such acts of criminal violence.
5. The appellant was in fixed employment and the
murder and robbery were
committed for gain. It
is possible that the appellant was also moved
by
feelings of revenge for having had his
employment with the deceased
terminated in
8
consequence of an argument with a
co-employee.
Even so, the offences were committed in cold
blood months after the event and months
after
the appellant had succeeded in
finding other
similar employment.
The following are the mitigating
factors. The appellant is 23 years old and has no previous convictions. He was a
reliable employee
and conscientiously maintained a child. No more than this
appears from the record concerning the personal circumstances of the appellant.
However, it does appear even from this meagre information that the appellant is
not a person prone to commit acts of violence and
he is probably capable of
rehabilitation.
The aggravating factors, in my opinion, greatly outweigh these mitigating
factors. The callous manner in which the offences were committed
was such as to
cause and must have caused outrage to the family and friends of
9
the deceased and also to the many persons who carry on business in the
busy commercial area of Braamfontein. That outrage is a relevant
factor in the
imposition of a proper sentence. It is furthermore in this type of case that the
deterrent and retributive objects
of sentence come to the fore. A proper
sentence should act as a deterrent to others who may be tempted to murder or rob
defenceless
and innocent people. It should also in a suitable case, such as
this, reflect the demand by society for retribution in respect of
crimes which
reasonable people justifiably regard as shocking.
By any proper standard this is a case of exceptional seriousness. The murder
calls for the maximum sentence allowed by the law. It
follows, in my opinion,
that on that count the only proper sentence is the death sentence.
In respect of the robbery, however, I have no doubt that the sentence of
death is not the only proper
10
sentence. If one thinks away the murder of the deceased, as
one must for this purpose, a sentence of imprisonment for a substantial
period
of time would be proper. A period of 12 years would be appropriate.
The
appeal against the death sentence in respect of the robbery count succeeds. The
death sentence is set aside and is replaced by
a sentence of 12 years'
imprisonment. The appeal against the death sentence in respect of the count of
murder is dismissed.
R J GOLDSTONE JUDGE OF APPEAL
E M GROSSKOPF JA)
HARMS AJA) CONCUR