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[1993] ZASCA 63
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S v Francis (525/92) [1993] ZASCA 63 (18 May 1993)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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Case No:
525/92
N v H
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the
matter between:
LAWRENCE
FRANCIS
Appellant
and
THE
STATE
Respondent
SMALBERGER,
JA :-
NOT
REPORTABLE
Case No: 525/92
N v H
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
LAWRENCE FRANCIS
Appellant
and
THE STATE
Respondent
CORAM
:
SMALBERGER,
EKSTEEN, JJA,
et KRIEGLER, AJA
HEARD
:
13
MAY 1998
DELIVERED
: 18 MAY 1993
J U D G M E N T
SMALBERGER, JA:-
The appellant was convicted in the
Natal Provincial Division by Thirion J and two assessors of murder
and various other counts (including
attempted murder and robbery with
aggravating circumstances). He was sentenced to death on the murder
count and to a
2
total
of 16 years' and 3 months' imprisonment on the other counts. His
appeal, in terms of
s 316A
of the
Criminal Procedure Act 51 of 1977
,
is directed only
against
the sentence of death imposed upon him.
The
events giving rise to the appellant's convictions took place on the
evening of 8 May 1991 on the farm of J.I. ("the deceased")
and his wife
A.I. ("the
complainant"). The deceased was 82
and
the complainant 79 years of age. They lived alone
in
their house on the farm. There were staff quarters
nearby.
On the evening in question they were together
in their study.
At a certain stage the deceased left to fetch a newspaper from his
motor car. The garage where the car was parked
is attached to the
house. Access to it from the
house is through a door in
a
passage leading off the kitchen. The deceased was
carrying his
revolver. The complainant also had a
revolver
which she had placed on a coffee table in the
3
study.
The
deceased was accosted in the garage by
the
appellant and one Khanyile and dispossessed of his
revolver.
On hearing the deceased talking the
complainant
got up to go and investigate. She opened
the
study door. On entering the adjoining passage she observed the
appellant in it. She turned back to fetch
her
revolver. Her attempt to do so was frustrated by
the
appellant who got to the revolver before she could.
The
appellant propelled the complainant at
gun
point to the garage where the deceased and Khanyile
were.
The deceased was being held up there by Khanyile
with
his (the deceased's) own revolver. Khanyile had a
largish
knife in his other hand. The appellant and
Khanyile
then herded the deceased and complainant back
to the study. On
the way the appellant told the complainant to keep quiet. He added
that they would
have to kill the
deceased and the complainant as they
4
had seen
their (the two assailants') faces.
In the
study the appellant and Khanyile
demanded
firearms and money. The deceased pleaded with
them
not to hurt either the complainant or himself. He offered to give
them whatever they wanted, and handed
over
his wallet. The appellant and Khanyile proceeded
to
search the study for firearms and money - they were apparently not
interested in anything else. They found
nothing. They then
took the deceased and the
complainant
at gun point to the main bedroom where the
search
continued. There was a safe in the bedroom which the deceased opened.
It contained some jewellery but no
firearms or money. At one
stage in the bedroom
Khanyile
told the deceased to keep quiet or else he
would be killed.
In
response to questioning the deceased told
the
appellant and Khanyile that the only other safe was
at the
dairy about 1 km away. The deceased and the
5
complainant
were taken to the dairy (still at gun point) in one of their motor
cars which was driven by Khanyile.
On
the way the complainant tried to escape from the car
but
her attempt was thwarted by the appellant who again
threatened
to kill her. On arrival at the dairy the
safe
was opened. It contained very little money and no
firearms.
The
deceased and the complainant were then
taken
back to the house. At the garage the appellant
and
Khanyile started assaulting the deceased, presumably
with
a view to forcing him to disclose the whereabouts
of
money or firearms. The complainant seized the
opportunity to
run away. She went to a nearby servant's cottage in search of
assistance. The
appellant
followed her and dragged her back by her hair,
threatening to
kill her.
When
one of the farm employees (Maseda Phiri)
appeared
at the entrance to the garage Khanyile fired at
6
him
but missed. Some minutes later another employee
(Remus
Phiri, Maseda's father) arrived on the scene.
Khanyile fired
several shots at him, four of which
struck
him (one in the head) causing him to collapse in
a nearby
flower bed. Khanyile then turned to the
deceased
and without further ado shot and killed him.
This
all happened in the presence of the appellant.
According
to the post-mortem report the deceased died
from
a single gunshot wound fired from close range that
penetrated
his chest and dissected the arch of the aorta.
After
shooting the deceased Khanyile grabbed
the
complainant and dragged her into the house. In the
passage
he started cutting the complainant's clothes
from her body.
While he was doing so the appellant
moved
down the passage past him. Khanyile threw the
complainant
onto the floor and attempted to rape her.
He
then got off her and went in search of the appellant,
7
dragging
the complainant with him. She, displaying
great
fortitude and presence of mind, eventually managed
to
escape from him, fled the house and hid outside. She
remained
hidden and undetected for the next two hours or
so
while the appellant and Khanyile ransacked the house
before
leaving in the vehicle in which they had come.
The
facts outlined above are either common
cause
or based on findings made by the trial Court which
are
not in issue for the purposes of the appeal. In
passing
it may be mentioned that the appellant admitted
having
accompanied Khanyile on the evening in question.
He
claimed that he did so at the request of Khanyile who
had
said that he was going to his former employer to collect certain
wages due to him. He admitted that he
was
present during the events that occurred but alleged
that,
to the extent that he participated in them, he did
so under
duress by Khanyile. The trial Court rightly
8
rejected
his evidence and came to the following
conclusion:
"In
our view the State has proved that the
accused [the appellant]
took part in the
robbery
realising that Khanyile in pursuance
of
the robbery might shoot the deceased or
might
shoot anybody who might turn up there to
see what was going
on. Despite that realisation the accused continued to
participate
in the robbery reckless as to
whether
anybody would be killed in pursuance
of the common purpose to
rob."
This
finding is not challenged on appeal.
We are
called upon to decide, on a
consideration
of all relevant mitigating and aggravating
factors,
whether the death sentence on the murder count
is the only
proper one.
There are
numerous aggravating factors present. The robbery was carefully
planned and executed. The motive for it was greed and
personal
gain.
Khanyile had previously been employed by the
deceased and the
complainant on their farm. He would
9
have
known their circumstances and would probably have
informed
the appellant accordingly. Their attack was
therefore
deliberately directed against an elderly
couple
living alone in a remote area. The deceased and
the
complainant had their privacy and the sanctity of their home
violated, they were treated with callous
indifference
and subjected to prolonged humiliation. Ultimately the defenceless
deceased was fatally shot in
an act of mindless killing.
The
only reasonable inference to be drawn from
the
evidence as a whole is that the appellant foresaw the death of one or
both of the victims as a strong probability - one almost
bordering on
a certainty. He
and
Khanyile went to rob them armed with a knife. At an
early
stage each one had obtained possession of a revolver. The appellant
told the complainant they
would
be obliged to kill her and the deceased as they could identify their
assailants. The appellant
10
registered
neither shock nor surprise when Khanyile
fired
at Maseda Phiri and then shot Remus Phiri before cold-bloodedly
shooting the deceased at nearly point-
blank range. Nor did he
remonstrate with Khanyile for doing so. His subsequent behaviour
demonstrates his full acceptance
of, and association
with,
Khanyile's conduct. Because of the appellant's
high
degree of foresight the absence of
dolus
directus
cannot constitute a mitigating factor.
Although
Khanyile appears to have taken the
lead throughout, the
appellant was at all times a
willing
and enthusiastic participant. I agree with the
submision
by counsel for the State that the appellant's
overall
role in the events, while different from that of
Khanyile,
wat not a significantly lesser one.
The
appellant has twelve previous convictions
for various offences
of which the most serious are three for housebreaking and theft. He
only has one
11
conviction
for assault, which was of a minor nature.
His
longest sentence to date was one of three years of
which he
served less than two years. The present
offences
were committed one month after his provisional
release. If not
one yet, he is fast on the way to becoming a hardened recidivist.
The
appellant is 40 years of age. He is not
married but has three
children. He passed standard 6
at
school. He was unemployed when the offences were
committed.
These are neutral rather than mitigating
factors.
Although the appellant expressed remorse for
his
deeds through his counsel there is no evidence of
genuine
remorse on his part.
In
the present matter the aggravating factors
are
many and serious. There are no mitigating factors,
or
none of any substance. The appellant's prospects of
rehabilitation
are slim. While regard must be had to
all
the main objects of punishment when determining an
12
appropriate
sentence, it has repeatedly been emphasised
by
this Court that in cases of murder of elderly victims
in
their own homes with robbery as the motive, the
factors
of retribution and deterrence inevitably tend to
come
to the fore (
S v
Tloome
1992 (2) SACR
30(A)
at 39
H). This is particularly so having regard to the
prevalence of this type of
offence. On a conspectus of
all
the evidence this is in my view a case of extreme
seriousness
where the only proper sentence is the death
sentence.
The appeal
is dismissed.
J
W SMALBERGER
JUDGE OF
APPEAL
EKSTEEN,
JA )
KRIEGLER, AJA ) concur