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1993
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[1993] ZASCA 124
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S v Masilo and Others (18/93,281/92) [1993] ZASCA 124 (16 September 1993)
Case no 18/93 and 281/92
/MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
THABO BRIAN MASILO
1st Appellant
PAPAS M R
MABASO
2nd Appellant
CANCEL KOTO
3rd
Appellant
NKANYE JOHN NYUMBA
4th Appellant
- and -
THE STATE
Respondent
CORAM:
JOUBERT, VIVIER et VAN DEN HEEVER JJA
HEARD:
20 August 1993
DELIVERED:
16 September 1993
JUDGMENT
VIVIER JA.
2
VIVIER JA:
The four appellants, to whom I shall refer
as accused Nos 1, 2, 3 and 4 respectively, appeared with one Daniel Fiesta
Mosinyi before
SUTEJ J in the Witwatersrand Local Division on one count each of
rape and murder. At the commencement of the trial the charges were
withdrawn
against Mosinyi who subsequently testified on behalf of the State. All four
accused were found guilty of rape and accused
Nos 1, 2 and 3 were found guilty
of murder. Each of the four accused was sentenced to 14 years' imprisonment on
the rape charge and
on the murder charge accused Nos 1 and 2 were sentenced to
death and accused No 3 to 20 years' imprisonment. In the case of accused
No 3 it
was ordered that 9 years of the sentence imposed on the rape charge were to run
concurrently with the sentence imposed on
the murder charge. Accused Nos 1 and 2
appeal to this Court in terms of sec 316 A of Act 51 of
3
1977 against their sentences of death. With the necessary leave accused
No 3 appeals to this Court against his convictions and sentences
on both charges
and accused No 4 appeals against his conviction and sentence on the rape
charge.
The State case at the trial in short was that on Sunday
evening 7 October 1990 the 17 year old Kefilwe Kesilwe ("the deceased") and
her
boyfriend Clive Loate ("Phule") were walking home in zone 7, Meadowlands near
Johannesburg when they were set upon by the four
accused who chased Phule away
and dragged the deceased a distance of some 2km to the Kalekitso High School
where they raped her and
accused Nos 1, 2 and 3 stabbed her to death.
According to the medical evidence the deceased's death had been caused by
multiple penetrating incised wounds. The post-mortem examination
of the
deceased's body revealed that she
4
had sustained no fewer than 41 stab wounds to the head, neck, shoulder,
back, chest and both thighs. Of those, two penetrated the
left lung and were
described as fatal by the pathologist who conducted the postmortem examination.
In addition to the stab wounds
the deceased had sustained three injuries to the
head which, according to the pathologist, had been inflicted by a blunt
instrument
such as a kick with a shoe.
Phule told the trial Court that on the evening in question he and the
deceased attended a party in a house at zone 2 in Meadowlands.
He saw accused
Nos 3 and 4, both of whom he knew by sight, at the party. At about eleven
o'clock he left with the deceased and they
started walking towards zone 7 where
he lives. After a while they noticed that they were being followed by accused
Nos 3 and 4 and
he decided to seek shelter in the house where a friend of his
stayed. They had just entered the premises of this house when
5
they were met by accused Nos 1 and 2 who had come from the direction of
the house. Accused Nos 1 and 2 grabbed the deceased while
accused Nos 3 and 4
came at him. Accused Nos 1 and 2 started fondling the deceased and a moment
later he heard her say that she had
been stabbed. He looked in her direction and
saw accused No 1 holding a bloodstained knife, described as a hunting knife, in
his
hand. Phule said that he ran away and that accused Nos 3 and 4 threw bricks
at him. He hid behind some trees and saw the four accused
dragging the deceased
away. After a while he followed them and saw that they had been joined by
someone unknown to him. More bricks
were thrown at him and he ran home. The
group was moving in the direction of zone 9 when he last saw them. Phule said
that the following
day he came across accused Nos 1 and 2 when he was on his way
to the police station to report that the deceased was missing. There
were
6
bloodstains on accused No 1's jacket and on accused No 2's shoes. When he
asked the former where the deceased was he said that they
had killed her, that
he should not talk about it and that they would give him money. Accused No 2 who
heard what accused No 1 had
said remained silent.
Mosinyi's evidence
was that on the evening in question his brother Ronnie sent him to buy some
meat. He did so and on his way home
he came across the four accused and Phule,
all of whom he knew well, and the deceased, who was unknown to him, on the edge
of zone
7. There was an argument between accused No 3 and Phule and the latter
ran away, chased by accused No 3. Accused No 2 took his meat
from him, saying
that he would give him the money later. Accused Nos 1 and 2 then started to drag
the deceased in the direction of
zone 9, followed by accused Nos 3 and 4.
Mosinyi followed at a distance as he wanted his money for the
7
meat. On the way accused No 1 twice stabbed the deceased with a knife.
Phule at one stage returned but accused Nos 3 and 4 again chased
him away by
throwing bricks at him. The deceased was dragged to a classroom of the Kalekitso
High School where accused Nos 1 and
2 tore her clothes from her body until she
was naked. All four accused proceeded to rape her after which accused No 1 told
Mosinyi
that he should also rape her. Mosinyi then simulated intercourse with
her. Accused No 1 said that the deceased knew him and would
have him arrested,
whereupon accused Nos 1, 2 and 3 each stabbed the deceased a few times, using
the same knife. Mosinyi said that
apart from stabbing the deceased accused Nos 1
and 2 had also kicked her on the head while accused No 3 was raping her. Mosinyi
then
managed to escape through the window of the classroom and returned home
where his brother Ronnie opened the door for him. Mosinyi
8
testified that accused Nos 3 and 4 came to his house early the next
morning where accused No 3 warned him not to talk about what he
had witnessed
the previous night. He noticed that accused No 3's clothes were
bloodstained.
The State also led the evidence of accused No 1's
girlfriend, Martha Molata and his friend Papi Senne. Their evidence was to the
effect
that on the day following the murder accused No 1 told them separately,
on both occasions in the presence of accused No 2 who showed
no reaction, that
he and accused No 2 had raped and killed a girl at the Kelikitso
School.
The evidence of accused Nos 1 and 2 was to the effect that on their way
home from a party on the evening in question they met the
deceased and Phule. An
argument ensued between Phule and accused No 2. Accused Nos 3 and 4 then arrived
on the scene with
9
Mosinyi. Phule ran away, pursued by accused Nos 3 and 4 and Mosinyi, and
accused Nos 1 and 2 proceeded on their way with the deceased.
Near a hardware
store in zone 9 accused No 1 left the other two who continued walking. Near the
Kalekitso School a kombi suddenly
appeared on the scene with Phule and five
other persons in it. Accused No 2 ran away but the deceased was caught and
carried off
in the Kombi. The trial Court rejected as false the evidence of
accused Nos 1 and 2 and since that finding was not challenged before
us nothing
further need be said about their evidence.
Accused Nos 3 and 4 testified to the effect that on the evening in
question they went to a party in Vincent Street, zone 2, Meadowlands,
accompanied by Mosinyi. Accused No 4 said that he saw both Phule and the
deceased at the party. Accused Nos 3 and 4 later left the
party with Mosinyi to
go to the latter's house where they intended spending the night. On the
way
10
they saw a group of people who turned out to be Phule, the deceased and
accused Nos 1 and 2. Accused No 3 approached this group in
order to ask for a
match to light his cigarette, and he then noticed that one of the persons was
Phule who owed him money. He asked
for repayment and a fight ensued between him
and Phule over this debt. The latter ran away, chased by accused No 3, and
disappeared
into a yard. Accused Nos 3 and 4 and Mosinyi then proceeded to the
latter's house where Mosinyi's brother Ronnie opened the door
for them. They
went to bed and did not see the deceased again.
The trial Court rejected as false the evidence of accused Nos 3 and 4 and
accepted the evidence of Mosinyi and Phule. The trial Court
said that accused No
3 "was a master of untruths and his demeanour in the witness box was
scandalous".
Mr van den Berg, on behalf of accused Nos 3
11
and 4, submitted that the trial Court erred in accepting the evidence of
Phule and Mosinyi. He submitted that Phule contradicted himself
in describing
the attack on him by accused Nos 3 and 4 and that his version of the events also
contradicted that of Mosinyi. Phule
at first said that he was grabbed by accused
Nos 3 and 4 but he later denied that there was any physical contact between
himself
and the other two or that there was any argument between himself and
accused No 3. Mosinyi, on the other hand, said that there was
a prior argument
and fight between accused No 3 and Phule. Phule also said that both accused Nos
3 and 4 chased him down the road
whereas Mosinyi said that only accused No 3 did
so. I do not regard these contradictions as of any significance. Phule and the
deceased
were suddenly and violently attacked and when Phule wanted to come to
the deceased's assistance his life was threatened by accused
No 1.
12
The scene was a volatile and fast-moving one. At precisely what moment
Mosinyi arrived on the scene is not clear. In the circumstances
it is not
surprising that Phule is uncertain about certain minor details and that his
account does not in all respects coincide with
that of Mosinyi. The same applies
to the other contradictions relied upon by Mr Van den Berg such as that Mosinyi
said that the deceased
was only stabbed . after Phule had left whereas the
latter said that the deceased was stabbed before Mosinyi appeared on the scene.
With regard to the essential events namely that the deceased and Phule were set
upon by the four accused, that Phule was chased away
and the deceased forcibly
carried off by all four accused, there was no difference between the evidence of
the two State witnesses.
I furthermore cannot agree with Mr Van den Berg that
Phule' s evidence that the four accused reached him and the deceased at the
same
time, is
13
improbable. It was obviously a well orchestrated attack which had been
planned in advance by all four accused.
The trial Court correctly
regarded Mosinyi as a single witness concerning the events which followed
Phule's departure from the scene.
It found Mosinyi a truthful and honest witness
whose evidence was corroborated in two material respects by the medical
evidence.
Firstly, his description of where on her body the deceased was stabbed
was fully borne out by the post-mortem findings and, secondly,
his evidence that
the deceased was kicked on her head was proved correct by the evidence of the
pathologist. There are, undeniably,
blemishes in Mosinyi's evidence, such as the
fact that in his statement to the police on 21 January 1991 he did not mention
that
accused No 3 had also stabbed the deceased. His explanation for this
omission was unsatisfactory and contradictory. The rest of his
statement to the
police was, however,
14
substantially similar to his evidence, except that he did not mention to
the police that accused Nos 1 and 2 had kicked the deceased.
Mosinyi
had further made a previous inconsistent statement during the sec 119
proceedings when he told the magistrate that he had
been with accused Nos 3 and
4 on the evening in question and was standing near accused No 4 when accused No
3 approached the others
for matches. His explanation for this statement was that
he had been asked by the other accused to say so.
Mr Van den Berg submitted that Mosinyi contradicted himself in his
evidence by first stating that he left the group after the meat
had been taken
from him whereas his later evidence was to the effect that he at no stage left
them before the deceased was killed.
It is quite clear from Mosinyi's evidence,
read as a whole, that he did not leave the group
15
before they reached the school where the deceased was killed so that it
is difficult to understand what he meant when he at first
said that he left the
group, if in fact he did say that. According to what the interpreter told the
trial Court when Mosinyi was
being cross-examined on this aspect there would
appear to have been some misunderstanding between him and Mosinyi.
Mr Van der Berg further submitted that it is highly improbable that
Mosinyi would have accompanied the group only to collect his money
which was a
mere R5. I do not agree. The money meant an evening' s meal for him and he had
to account to his brother for it.
Mr Van der Berg next submitted that Mosinyi contradicted himself as to
the events in the classroom by first saying that it was accused
No 2 who had
ordered the deceased to lie down and later that
16
accused No 2 did not do so but that it was accused No 1 who had ordered
the deceased to lie down. Mosinyi was also criticised for
not initially saying
that accused No 2 twice had intercourse with the deceased. I do not regard these
contradictions as of any significance.
Mr Van den Berg finally
submitted that the trial Court erred in not drawing a negative inference from
the State's failure to call
Mosinyi's brother Ronnie in order to support
Mosinyi's evidence. I do not agree. Ronnie was never a State witness and just
happened
to be present at the hearing. His evidence could have added little, if
anything, to the State case. He was available to accused Nos
3 and 4 to testify
in support of their alibis (cf S v Motsepa en 'n Ander 1991(2) SACR 462(A) at
468i - 469b).
Despite the blemishes in his evidence I am satisfied beyond any
reasonable doubt that Mosinyi's account of the events in the classroom
is a true
one.
17
His evidence with regard bo the earlier events was fully corroborated by
that of Phule. At the same time the evidence of accused Nos
3 and 4 was highly
improbable. In my view it has not been shown that the trial Court erred in
accepting the evidence of the State
witnesses and rejecting that of accused Nos
3 and 4. It follows that accused Nos 3 and 4 were correctly
convicted.
That leaves the appeals against the sentences. I shall
first deal with the appeals of accused Nos 1 and 2 against the death sentences
imposed upon them. The aggravating factors are self-evident and of an extremely
serious nature. The motive for the murder was to
avoid being identified and
brought to justice - to escape retribution which must inevitably have been
severe for the vicious, callous,
prolonged attack on a defenceless young girl in
the course of abducting and then raping her, despite her
18
pleas for mercy which fell on deaf ears. That conduct pertaining to the
rape charge, was well-planned and was not committed on the
spur of the moment.
But it cannot be found as proved beyond doubt that accused Nos 1 and 2 had
murder in mind already when they dragged
her off to rape her. Phule did not get
the impression that that was their intent :
"Het u die indruk gekry dat daar 'n gevaar was
met betrekking tot die oorledene? --
Ja.
Wat het u gedink sal met
haar gebeur? -- Ek
het gedink hulle gaan haar verkrag en
haar
laat loop.
HOF: En laat loop? -- Ja
edele."
According to the post-mortem report
most of the many wounds she received were inflicted posteriorly and were
comparatively superficial,
probably as the girl was driven to the school. The
impression left by Mosinyi's evidence is not that she was in extremis
19
when, with accused No 1 setting the terrible example, she was stabbed
fatally as she lay on her back after being again raped by accused
No 2. But
there can be no doubt that she was killed with dolus directus once accused No 1
decided that she had to be eradicated,
cold bloodedly; and there is no
indication that appellants have any conscience, let alone feel remorse. The
mitigating factors are
their youthfulness and the absence of relevant previous
convictions, both of which are usually regarded as strongly mitigating factors
so that the death sentence will only be imposed in exceptional circumstances
when those factors are present. See S v Matala and Others
1993(1) SACR 531(A) at
539 c-d. Accused No 1 was 18½ years old and accused No 2 was 20 years old
at the time the crimes were
committed. Accused No 1 has no previous convictions
and accused No 2 has only one previous conviction for theft. Accused No 1
only
20
attended school up to standard one and accused No 2 was still at school
at the time the offences were committed. Though the somewhat
more mature age of
accused No 2 does not qualify him for the same amount of consideration the
Courts would usually accord an 18-year-old,
it would be inappropriate to
distinguish between him and accused No 1 here, since accused No 1 on all the
evidence took the lead
that night.
In deciding whether the death sentence is the proper sentence in this
case, the main purposes of punishment, namely deterence, prevention,
reformation
and retribution as well as the triad consisting of the crime, the offender and
the interests of society must be considered.
In the present case there is
clearly a strong need to deter others from committing crimes of this nature.
Society cannot countenance
its members being brutally murdered to cover up
heinous offences perpetrated against those
21
going about their business in public places. For the same reason the
retributive effect of sentence also requires emphasis in the
present case. It
may well be said that the deterrent and retributive aspects should override all
other considerations and that the
death penalty is the only suitable punishment.
After careful consideration I have, however, come to the conclusion that a
sentence
of life imprisonment would be sufficient to express society's
repugnance at the murder and to deter others from committing similar
ones, while
accused Nos 1 and 2 would not be entirely denied the possibility of
rehabilitation.
That leaves the appeals of accused Nos 3 and 4 against their sentences.
Both were only 17 at the time the offences were committed.
It was not submitted
that the trial Judge misdirected himself in any way in sentencing accused Nos 3
and 4 and the sole question
is thus whether the sentences are so severe
22
as to justify interference by this Court. Considering accused No 3's age
I think that his effective sentence of 25 years' imprisonment
is excessive. An
effective sentence of 20 years' imprisonment is in my view appropriate in his
case. In the case of accused No 4
I do not regard his sentence on the rape
charge as too harsh.
In the result the following order is
made.
(1)
The
appeals of accused Nos 1 and 2 against the death sentences imposed in respect of
the murder charge succeed. The death sentences
imposed upon them are set aside
and in each case a sentence of life imprisonment is
substituted.
(2)
The appeals
of accused Nos 3 and 4 against their convictions are dismis=
sed.
(3)
The appeal of
accused No 3 against his sentence in respect of the
murder
23
charge is dismissed. His appeal against his sentence on the rape charge
succeeds to the extent that it is ordered that the full sentence
of 14 years'
imprisonment imposed in respect of this charge is to run concurrently with the
sentence of 20 years' imprisonment imposed
in respect of the murder
charge.
(4) The appeal of accused No 4 against his sentence on the rape charge is
dismissed."
W.
VIVIER JA.
JOUBERT JA ) Concur.
VAN DEN HEEVER JA)