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[1993] ZASCA 180
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S v Mtolo and Others (409/92) [1993] ZASCA 180 (25 November 1993)
Case Number 409/92
/al
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
MUSI WILLIAM MTOLO 1st
Appellant
BONGANI VINCENT MABANGO 2nd
Appellant
DUMISANI ZITHA 3rd Appellant
HAMILTON MUZIKAYISE NKABINDE 4th Appellant THULANI AGRIPPA KHUMALO
5th Appellant
and
THE STATE Respondent
CORAM
: Hefer JA,
Howie et Kriegler AJJA
DATE OF HEARING
: 4 NOVEMBER
1993
DATE OF JUDGMENT
: 25 NOVEMBER 1993
JUDGMENT
KRIEGLER AJA/
2 KRIEGLER AJA :
The five
appellants were convicted in the Natal Provincial Division (Hugo J and
assessors) of murder and armed robbery. By virtue
of the provisions of
s 316A
of
the
Criminal Procedure Act No 51 of 1977
("the
Act") appellant
no 4 now
challenges his conviction on the murder count and a consequential death
sentence. The other appellants have appealed, with
leave granted by the trial
judge, against heavy sentences of imprisonment imposed upon them on both counts.
Appellant no 3 was also
convicted of the unlicensed possession of a pistol but,
for reasons that will become clear in due course, neither that charge nor
the
sentence thereon need be discussed. Nor need the fourth appellant's conviction
and sentence on the robbery charge, no leave in
respect thereof having been
sought.
Indeed little needs to be said about appellant
3 no
4's conviction on the murder count. Although he doggedly denied any part in the
events culminating in the successful prosecution
of himself and his co-accused,
his guilt was conclusively established. That is plain from the evidence, to
which I now turn.
On Wednesday afternoon, 28 August 1991, five young
black men were seen to arrive on foot at Paisley farm in the Winterton district.
In full view of the farm workers they set upon the owner, Mr Mervyn Gray, after
he had spoken to them. Leaving him mortally wounded,
they proceeded to ransack
his house and then made off in his bakkie with their spoils. They did not manage
to make good their get-away
however. A few kilometres down the road they
overturned the vehicle and had to make do on foot. They split up, two continuing
along
a side road, two making off across open country and one hiding in tall
grass.
4 In the interim Mr Gray's employees had raised the alarm.
The local farming community came out in force and the police hastened to
the
area with road vehicles and a helicopter. Within a short space of time two
couples of young black males were found and arrested.
The first couple consisted
of appellant no 1 (who was wearing a sweater belonging to Mr Gray and which had
been taken from his house
that afternoon) and appellant no 4. The other couple,
who were run to ground some distance away, were appellants 2 and 3. They were
found in possession of two blood-stained daggers, a pistol which had been taken
from Mr Gray's cupboard during the ransacking, and
a pistol which was later
ballistically linked with a cartridge found on the scene where Mr Gray was done
to death. Among the debris
where the bakkie had capsized the police found a
blood-stained clasp-knife.
Withal, then, appellants 1 to 4 faced a
5 formidable
case. So too did appellant no 5, who surrendered to the police the following
Monday and confessed to participating in
the attack on Mr Gray and the
subsequent rifling of his house. Appellant numbers 1, 2, 3 and 5 did not seek to
deny their participation
in the murder and robbery but contended that they had
done so under duress by appellant no 4. According to their evidence at the
trial
appellant no 4 had told each of them the previous day that he had found possible
employment at a saw-mill and had taken them
there on the fatal day under false
pretences. There, to their profound surprise, he produced a fire-arm and shot Mr
Gray after the
latter had intimated that there were no vacancies in his
saw-mill; each of them was then compelled at gun-point to participate to
a
greater or lesser extent in the murder, ransacking of the house and subsequent
get-away.
I mention their version, not because it bears
6 on their
guilt - it is palpably false and is no longer directly in issue - but because of
appellant no 4' s defence. His case, from
first to last, was that he barely knew
his co-accused, that he had never been to Paisley farm and knew nothing about
the crimes charged.
He, so he maintained, had been on his way alone to ask for a
job at a particular hotel and had coincidentally come across appellant
no 1
shortly before their arrest. He could not explain: (a) Why he should be walking
some 20 kilometres from the hotel (but near
Paisley); (b) how it came to pass
that four young men of his acquaintance, who happened to hail from his place of
residence many
miles away, were in the vicinity; (c) why they should place him
on the scene of the crimes and, highly significantly, (d) how he
came to be in
possession upon his arrest of R600,00 in R50,00-notes while a similar amount in
that very denomination had been stolen
from Mr Gray's
7 cupboard by
the robbers.
Furthermore the police managed to lift a partial palm
print in Mr Gray's house which was subsequently identified as that of appellant
no 4. No serious attempt was made at the trial to challenge this ostensibly
damning piece of evidence, nor was it controverted. In
the court below Mr Cooke,
who appeared for appellant no 4 both there and on appeal, argued that an
essential link in the identificatory
chain had not been established and
adumbrated the contention in his heads of argument. At the hearing, however, he
wisely did not
press the point. It is quite plain that (a) the original print
was properly lifted; (b) a duly identified print was later taken from
appellant
no 4; (c) those two prints were properly compared by the police fingerprint
expert; and (d) the expert in his evidence
explained and demonstrated by means
of enlargements why the trial
8 court could accept beyond doubt that
the palm-print found in Mr Gray's house had been left by appellant no
4.
There was other cogent evidence indentifying appellant no 4 as
the fifth member of the gang that killed Mr Gray and made off with
his bakkie
and their loot. Mrs Rosemary Mchunu, the late Mr Gray's housemaid, witnessed the
original conversation between her employer
and the robbers, albeit from a
distance but in broad daylight and with an open field of vision. Her evidence
that four of the gang
were of a height and one materially taller, ties in with
the observation by the trial court, appellant no 4 being the odd man out.
She
testified that the tall man, wearing a brown overall, fired two shots and that
three others then attacked Mr Gray with knives.
(Three bloodied knives were
found and appellants 1, 2, 3 and 5 were
ad idem
that appellant no 4 was
dressed
9 in a brown overall, that he fired shots and that no 1 had
not participated in the stabbing.) After Mr Gray had been stabbed the
man
wearing the brown overall, still brandishing the firearm, approached the
homestead, found her where she was hiding and ordered
her at gun-point to
produce money and firearms. She gathered the impression that that person was the
leader of the group. He was
the one who started the attack on Mr Gray; he took
the lead in ransacking the house; he took possession of a wad of R50,00-notes
and a pistol found in the bedroom cupboard; and he gave instructions for keys to
be found in the bakkie and to be tried on a desk-drawer.
Mrs
Mchunu's identification of appellant no 4 as the gang-leader wearing a brown
overall and wielding a firearm is fully borne out
by the evidence of the other
four appellants. Although they were untruthful regarding the duress to
which
10 they were allegedly subjected, it is of importance that
they not only ascribed the leading role to him but confirmed that he was
indeed
the man in the brown overall who had initially had a firearm and took possession
of another found in the house. They also
testified that, after they had
overturned the bakkie and had to make good their escape on foot, appellant no 4
instructed appellant
no 3 to put on the overall to enable him to secrete no 4's
pistol and the two daggers. Upon his arrest shortly afterwards appellant
no 3
was indeed wearing the overall and was in possession of those three weapons. Mrs
Mchunu later identified the brown overall appellant
no 3 was wearing when he was
arrested as the garment worn by appellant no 4 on Paisley farm. In the
circumstances it is of little
consequence that she was unable to identify
appellant no 4 at an identification parade the next day: his identity as one of
the robbers
was proved
11
conclusively dehors her evidence. But what is of
great moment is the role she ascribed to him, namely that of the gun-wielding
leader
and authoritative commander of the gang.
On that ominous note
one turns to consider the appeal of appellant no 4 against the death sentence
Imposed upon him for the murder
of Mr Gray. By now it has become trite that this
court is obliged to consider afresh whether, having regard to the aggravating
factors
proved beyond reasonable doubt and any reasonably possible mitigating
factors for which there is a basis in the evidence, the death
sentence - and it
alone - is appropriate. It is equally trite that such evaluation must take into
account the fourfold objective
of sentence, to whit deterrence, rehabilitation,
prevention and retribution.
The record evidences many factors that are gravely aggravating. This is
manifestly a very
12
serious case indeed. An armed gang deliberately
set out to commit a daring daylight robbery; the inference is irresistible that
it
was integral to the plot that the farmer would be overcome in such a manner
as to render him powerless and to cow his employees into
submission. And the
means decided upon to those ends was to strike down their prime target with such
ruthless ferocity as to intimidate
the onlookers. That is clear from the
accoutrements they took with them in a carry-bag, as also from the manner in
which they put
them to use. There is no suggestion that they gave a thought to
subduing Mr Gray by any means other than immediate and deadly violence.
As he
turned to leave two shots were fired at him at close range by appellant no 4,
neither - miraculously - finding the target.
Then, while their victim was vainly
trying to escape, three of them set about stabbing him to death in clear view of
his horrified
13
workers. There were no less than 28 stab-wounds
to his head, throat, arms and torso, both from the front and behind. Once he had
been
felled, so appellants 2 and 3 testified, the stabbing continued until they
were satisfied that he was done for.
They then turned to their
ultimate purpose, namely to make free with his possessions. And also with regard
thereto a number of sinister
inferences are ineluctable: they were in a remote
area, far from their home, and must have planned to make their get-away with
their
booty in Mr Gray's vehicle. They must therefore have planned their attack
so as to find him at home. It was no coincidence that they
sat waiting for him
near the saw-mill until he approached them during the lunch-break. It must also
be inferred that they knew the
lay of the land. If one then looks at the
evidence of appellant no 4's colleagues it becomes clear
14 that he
was the one who had reconnoitred the scene. Admittedly they were untruthful in
their attempts to cast a veil of duress
over their proven participation in the
crimes, but there is no reason to doubt their evidence that appellant no 4 had
mustered them
the day before and had told them he had found "work" for them at a
saw-mill. He knew where the farm was and led them there; he knew
there was a
saw-mill; he knew there would be transport for their get-away and especially
recruited appellant no 1 as the driver;
and he took a carry-bag with a pistol
and three other murderous weapons for use by the gang.
The conduct of the gang after Mr Gray had been cut down evidences more
planning. Without further ado four of them went to the house
and appellant no 1
to the bakkie parked under a tree nearby. The housemaid was found and forced to
point out valuables; the telephone
wire was cut and the desk
15
forced open; the stolen goods were bundled in some blankets, loaded on the
bakkie and they drove off. The fact that appellant no
1 proved incapable of
getting them safely out of the area does not detract from the impression of
purposeful efficiency one gathers
from the exercise as a whole. When things
turned sour and they had to try to escape on foot, appellant no 4 was crafty and
cunning.
He foisted the potentially incriminating overall and weapons on
appellant no 3 and told him and appellant no 2 to head for open country
while he
and number 1 kept to the road. And, ultimately, when the two of them were
caught, he put up a fight and had to be subdued.
All in all, therefore,
appellant no 4 comes across as a very resourceful and dangerous man who led a
band of younger men in a planned
and daringly executed robbery/murder.
There is very little to counter-weigh those aggravating factors.
Appellant no 4 was at the
16 time some 21 years old and with a clean
record. He is the product of a deprived tribal back-ground, poorly educated and
was out
of employment for approximately three months. In the light of these
features Mr Cooke urged upon us that the prospects of rehabilitation
by lengthy
imprisonment are so good that it cannot be said that only the ultimate penalty
would be fitting. In similar vein he submitted
that a severe beating inflicted
upon his client by local residents at the time of his arrest and the possibility
that he had not
shot at Mr Gray to wound but merely to frighten him, should be
taken into account.
Some of those factors certainly carry some
weight: the circumstance that appellant no 4 grew up in an environment of
poverty and deprivation,
and particularly the circumstance that his age and
record hold out hope for reformation, must be taken into account. But he was no
unsophisticated tribal
17 youngster; he had worked on the
Witwatersrand for some years and had then held down a job with the Kwazulu
Government for several
months. Nor did he seek to suggest he had been forced
into crime by dire need. The suggestion that he had not shot at Mr Gray is
fanciful - the plan was to kill and the absence of bulletwounds must be ascribed
to some other reason, be it ineptitude or luck.
And on his own showing the
injuries he sustained upon his arrest, assuming them to be relevant, were
minor.
Be that as it may, this court has emphasized repeatedly that
the personal circumstances of the wrong-doer and prospects of his rehabilitation
pale into relative insignificance when juxtaposed with the demands of deterrence
and retribution in cases of this nature. In my view
this is indeed a case where
the death sentence is the only appropriate sanction.
It remains to consider the appeals against
18 sentence by the
other four appellants. With regard thereto Hugo J was at pains to garner such
information as was available. One
point in particular was thoroughly thrashed
out, namely the ages of the four young men, who were all in their late teens.
That was
a necessary enquiry inasmuch as
s 277(3)(a)
of the
Act (as
amended by
s
4
of Act 107 of 1990) prohibits the imposition of the death sentence on a person
who was under the age of 18 years at the time of the
commission of the act
constituting the particular crime. In any event the information was valuable in
assessing sentence. The State
adduced the evidence of a specialist who had
radiologically examined all the appellants to ascertain their ages. In addition
the
court called for probation officer reports regarding their personal
circumstances, while appellant no 3's mother gave evidence as
to his age and
home environment. In each instance the appellants were
19 given the
benefit of any doubt, which is what par (b) of s 277(3) demands. As regards
appellants 1 and 5 the finding was that they
may have been 17 years old in
August 1991, appellant no 2 was found to have been 19 and appellant no 3
somewhat younger.
The probation officer's report makes depressing
but, unfortunately, all too familiar reading. The appellants grew up in a poor
and
primitive environment, characterised by large families, material and
cultural impoverishment, rudimentary education and chronic unemployment.
Unlike
appellant no 4, the other appellants were callow tribal youths, ill-equipped to
make their way in adult life. The trial judge
nevertheless felt obliged to
impose heavy sentences of imprisonment on both counts. I respectfully endorse
that approach. It was
indeed a particularly heinous murder and the
subsequent
20
robbery was sufficiently removed in time and
space, and serious enough in itself, to warrant a robust sentence. I also concur
with
the judge's decision to distinguish between the two younger appellants
(numbers 1 and 5), not only because of their lesser maturity,
but also because
they may have played less active, and hence less blameworthy,
roles.
Hugo J used the proviso to s 280(2) of the Act to obviate
excessive severity and sentenced the four appellants to the following years
of
imprisonment:
APPELLANT MURDER ROBBERY CONCURRENT EFFECTIVE
1
15
10 5 20
2
20 15
10 25
3
20 15 10 25 5 15 10
5 20
Those are very robust effective
sentences indeed for young men on the threshold of life, in each case
substantially in excess of his
total life-span
21
up to the day he was a party to these crimes.
Nevertheless, if that had been the only consideration I may have inclined to the
view
that even teenagers who commit horrible crimes should expect such severe
retribution.
But it is not the only factor. The learned trial judge,
when granting leave to appeal, expressed a reservation whether he had made
sufficient allowance for the degree to which these four appellants had been
under the sway of appellant no 4. With regard to him
the finding was
unequivocally that he had been the authoritative leader from the genesis of the
plot to its denouement. That finding
was amply supported by the evidence and the
probabilities, as appears from the discussion of his sentence above. There was
moreover
evidence by a policeman that the other four were visibly afraid of
appellant no 4 even after they had been detained in police-cells.
22
Indeed appellant no 4 confirmed that he had been
segregated from the other four because of friction between
them.
Upon analysis of the trial court's judgment regarding
mitigating and aggravating factors it does appear that insufficient weight was
ascribed to this particular circumstance
vis-a-vis
the four rank-and-file
members of the gang. The cumulative effect of their sentences is indeed
excessively severe and requires re-assessment.
I consider that justice would be
served by reducing the effective sentence in each instance by five years.
Tinkering with the sentences
on the separate counts would not only be artificial
but could possibly be misconstrued as some indication that this court is less
implacable towards such crimes than the judge
a quo
. It is consequently
preferable to allow the individual sentences to stand but to achieve the desired
reduction by ordering that they
run wholly
23
concurrently.
In the result the following order
issues:
1. The appeal by appellant no 4 against his conviction on the charge of
murder as also his appeal against the death sentence imposed
thereon are
dismissed.
2. The appeal by each of appellants no 1, 2, 3 and 5 against the sentences
imposed on him is upheld to the extent that it is ordered
that his sentence on
the charge of robbery is to be served concurrently with his sentence on the
charge of murder.
J.C. KRIEGLER
ACTING JUDGE OF APPEAL
HEFER JA ]
] AGREED
HOWIE AJA ]