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1993
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[1993] ZASCA 173
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S v Theoane (643/92) [1993] ZASCA 173 (19 November 1993)
/CCC
CASE NO 643/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
MESHACK THEOANE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, GOLDSTONE et VAN DEN HEEVER JJA
DATE HEARD
: 11 NOVEMBER 1993
DATE DELIVERED
: 19 NOVEMBER 1993
JUDGMENT NESTADT, JA
:
This is an appeal against the death sentence imposed on the appellant
consequent upon his conviction
for murder.
2
The facts appear from the comprehensive judgment of the trial judge,
LICHTENBERG JP, sitting in the Orange Free State Provincial Division.
In summary
they are the following. The crime took place at about 8.30 pm on the night of 1
February 1991 in the district of Koppies.
The appellant, together with two
others, identified as Mojalefa and Sugar, arrived at the farm where the deceased
lived. Their intention
was to rob him. The deceased was a retired farmer aged
76. They entered that part of the house in which he lived alone. The deceased
was stabbed by Mojalefa. Having taken possession of a certain amount of money
(about R400), some keys and a firearm, the three of
them left the scene. This
they did in the deceased's car. It had been parked outside the farmhouse. They
forced the deceased to accompany
them. They proceeded a
3
distance of about four kilometres into a maize land. There, by means of
petrol which was siphoned out of the petrol tank, the car
was set alight. The
deceased had at that stage been placed in the boot of the car. He was still
alive. Being unable to escape, he
died (according to the post-mortem examination
report) as a result of "blootstelling aan brandwonde met vermoedelike terminals
inaseming
van rook en gasse". Based on this and on the doctor's evidence the
trial court's finding was that "die oorledene het dus versmoor
en verbrand".
These then were the circumstances which, together with certain others to
which I shall refer, impelled the trial court to impose the
death sentence on
the appellant for the murder of the deceased. I should add that the appellant
was also charged with and convicted
of robbery (involving the theft of the
items
4
referred to as well as the deceased's car) and kidnapping. These convictions
respectively attracted sentences of eleven years and
four years imprisonment (to
be served consecutively). They are not, however, in issue in this appeal.
LICHTENBERG JP found a number of mitigating factors. In broad outline they
were (i) that at the time of the crime the appellant was
relatively young; a few
months under 24 years; (ii) that he was an uneducated and unsophiscated farm
worker; (iii) that the murder
"(was) nie lank vooruit beplan nie"; (iv) that the
appellant played a lesser role and in particular that it was Mojalefa who
actually
set the car alight; moreover just before this was done the appellant
asked him whether he did not realise that "ons fout maak as
ons die voertuig aan
die brand steek"; (v)
5
that in reply to this question Mojalefa (who had a firearm) threatened to
kill the appellant; he said "hy gaan my ook sommer nou doodmaak".
Taken at
face value these factors may be said to be quite strongly mitigating. On closer
examination, however, I do not think they
are. Nor, so it seems to me, did the
trial judge so regard them. The appellant's age ((i) above) is not mitigating to
any extent.
He was certainly not an immature youth. Besides, he has recent
previous convictions; one for assault with intent to do grievous bodily
harm and
one for housebreaking (committed less than two months before the murder). The
fact that the appellant is uneducated and
unsophisticated ((ii) above) is also
not a cogent factor (
S v Majosi and Others
1991(2) SACR 532 (A) at 541
f-g).
6
The others factors referred to ((iii), (iv) and (v) above) emerge from two
extra-curial statements which the appellant made and which
were handed in at the
trial as exhibits K and L. (The appellant had contested their admissibility but
his evidence that they were
not voluntarily made was rejected.) In the
statements the appellant confesses to his participation in the crime. However,
they also
contain certain exculpatory allegations and it was on the basis of
these that the court a
quo
, applying the principle of
R v Valachia and
Another
1945 AD 826
, found the mitigating factors in question. Such factors
require closer analysis. I begin with (iii) above (absence of planning).
The two
statements give conflicting accounts of when the deceased was placed in the boot
of the car. According to K this took place
in the maize lands just before
the
7
car was set alight. But in L the appellant says that the deceased was put
into the boot at the house just before they drove away in
the deceased's car.
This contradiction matters not. The point is that it is clear that the deceased
was abducted from his house with
the intent that he be killed. The trial court's
finding to this effect was rightly not challenged. And the reason was (as
LICHTENBERG
JP put it) "om latere identifisering van die beskuldigde en sy twee
mededaders deur die oorledene te voorkom". (As will be seen,
the deceased knew
the appellant. ) So, from the time they left the deceased's house, the murder
was planned. We do not know how long
it took to reach the spot where the murder
took place. But the evidence does show, as I have said, that the distance that
would have
had to be travelled was about four kilometres. And at the actual
8
scene there was a degree of preparation by the appellant and his
co-perpetrators for what they had in mind. A hosepipe had to be fetched
from
Mojalefa's vehicle where it had been parked some distance away; it was then used
to siphon petrol out of the tank of the deceased's
car; and the petrol was then
sprinkled over the car. This then was a calculated, deliberate murder involving
a sustained intention
on the part of the appellant (and the others) that the
deceased be killed. It was plainly not a case of the victim of a robbery
(possibly
impulsively or out of panic) being killed during its course.
This brings me to the part played by the appellant in the murder ((iv)
above). Whilst according to the appellant' s statements it
was Mojalefa who by
means of a match set the car alight, it is nevertheless
9
clear that the appellant played an active role in killing the deceased. He
helped place the deceased in the boot of the car; it was
he who fetched the
hose; and it was he who siphoned the petrol out of the petrol
tank.
This leaves for consideration the finding that Mojalefa had
threatened to kill the appellant ((v) above). I would not have thought
that the
appellant's allegations in this regard were worthy of much weight. Indeed in
convicting the appellant, the judge a
quo
firmly found that the appellant
did not act under duress. The appellant repudiated both confessions. He did not
give evidence on the
merits. Accordingly, his allegations of coercion could not
be tested under cross-examination. These are factors which detract from
their
cogency (
R v Yelani
1989(2) SA 43(A)). Besides, the
10
statements contain bald, contradictory assertions. It is only in the second
one that there is mention of the appellant having in effect
taken exception to
the deceased being killed. Accordingly, the allegation in K that Mojalefa
threatened to shoot the appellant is
unmotivated. No details are given in the
statement of how "hy...my...met 'n vuurwapen gedreig (het)". And in L this
allegation does
not appear. It is improbable that the appellant would question
what Mojalefa had in mind doing to the deceased. The appellant had
previously
worked for the deceased. He must therefore have realised that he could be
identified by the deceased. If this be so and
consistent with the finding
(already referred to) that the deceased was removed from the house with the
intention that he be killed,
it is more likely that the appellant would not
11
have objected to that purpose being carried through.
More especially is
this so seeing it was the appellant's
idea to rob the deceased. But most important, there is
an admission in the appellant's second statement which
is largely destructive of his reliance on duress as a
mitigating factor.
Exhibit L is a statement made in
terms of sec 119 of the Criminal Procedure Act in
explanation of his plea of guilty. Towards the end of
it and following on his averment that Mojalefa "net gese
hy gaan my ook sommer nou doodmaak", the appellant said
(in answer to certain questions put to him by the
magistrate):
"Het u vrywillig deelgeneem aan die dag se
gebeure?
Ja ons was nie gedwing nie. Ek het dit net sommer
gedoen omdat Mojalefa vir my gese het hy sal nie
weer saam met my loop as ek nie deelneem nie.
Het u dit dus slegs gedoen om Mojalefa se
vriendskap te behou?
Ja."
12
The "dag se gebeure" obviously include the murder. It
was with this in
mind that LICHTENBERG JP framed his
finding on the issue of duress as a mitigating factor in
the following terms:
"Nietemin bevind ons dat (die)... dreigement vir die beskuldigde tot 'n mate
beinvloed net, en in daardie sin neem ons dit as 'n
strafversagtende faktor in
ag ten aansien van die beskuldigde se morale blaamwaardigheid en/of
verwytbaarheid."
Clearly therefore the learned judge did not
regard the
factor under consideration as a weighty one. Nor do I.
The conclusion of LICHTENBERG JP was that the
aggravating factors heavily outweighed the mitigating
ones. I fully agree. It will be apparent from the
discussion what the aggravating factors are. They may
be summarised as follows: (i) the deceased, a
defenceless, innocent old man, was abducted from the
privacy of his home in order that he be killed; (ii)
13
the (base) motive for this was to prevent the appellant and his
co-perpetrators being identified by the deceased as the robbers; (iii)
the
degree of preparation that was involved in carrying out the murder; (iv) the
fact of the deceased being murdered in a particularly
barbarous manner; the
judge a
quo's
description of it as "'n genadelose, gevoellose,
koelbloedige, meedoenlose, afskuwelike, wrede, gruwelike en weersinswekkende
wyse
gepleeg. Dit was 'n barbaarse, afgryslike en bose daad" is no exaggeration;
(v) the prevalence of this type of crime. These factors
make this an
exceptionally serious, indeed extreme, case. It is one where the deterrent and
retributive objects of punishment come
to the fore. It is a case which brings to
mind the remarks of GOLDSTONE JA in
S v Shabalala and Others
1991(2) SACR
478(A) at 483 d, namely:
"Our farming community too frequently falls victim
14
to the violent criminal. The justifiable outrage understandably caused thereby
must be a relevant factor in the imposition of a proper
sentence in this kind of
case".
In my opinion the only proper sentence is the
death
sentence.
The appeal is dismissed.
NESTADT,
JA
GOLDSTONE JA )
) CONCUR VAN DEN HEEVER JA)