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1994
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[1994] ZASCA 8
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S v Hlongwane (569/92) [1994] ZASCA 8 (15 March 1994)
569/92
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
SNOBOYI MHLANGANO HLONGWANE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: SMALBERGER, KUMLEBEN et HARMS JJA
HEARD
: 7 MARCH 1994
DELIVERED
: 15 MARCH 1994
JUDGMENT
KUMLEBEN JA
/...
2
KUMLEBEN JA
:
The appellant was one of two accused charged in the
Witwatersrand Local Division of the Supreme Court with murder, theft, attempted
murder and two further counts relating to the unlawful possession of arms and
ammunition. The appellant admitted killing the deceased
but said that it was not
intended. A plea of not guilty was entered. This notwithstanding, he was found
guilty of murder, the degree
of intent being
dolus directus
. For this
offence he was sentenced to death. (He was also found guilty on the last
mentioned two counts.) The appeal is restricted
to the sentence on the murder
charge.
The facts giving rise to this indictment appear from the evidence of the main
State witness, Detective-Sergeant Estelle Enslin. On
29 July 1991 she and the
deceased, Sergeant van Niekerk, were on duty and operating together. They were
in a motor
3
car when another vehicle aroused their suspicion.
They
followed it and ordered it to stop. Its driver
complied, only to pull off as
the deceased alighted.
A chase ensued until traffic forced the front
vehicle
to stop. The deceased parked his car on the verge of
the road not
far from the other stationary one. He
went to its occupants and identified
himself as a
policeman. They were the driver (the second
accused) with a
passenger next to him (Joseph) and
another on the rear seat (the appellant).
The
deceased asked Joseph to accompany him to open the
boot of that car
which was done. Detective-Sergeant
Enslin noticed that the second accused
appeared to be
about to drive off, so she alighted and went towards
them.
She heard about three shots being fired and
instinctively retreated for cover
behind the police
car. She could not see who had fired the shots.
When she
stood up she saw that Joseph had closed the
4 boot. He ran back to his seat next to the driver as the latter also seated
himself behind the wheel. She never saw the appellant
leave the car. It drove
off. She found the deceased lying on his back in the middle of the road. His
firearm had been drawn from
its holster and was lying under his body. He had
been fatally shot.
The second accused was also found guilty of murder (
dolus eventualis
)
with reliance upon the doctrine of common purpose. His evidence was
unsatisfactory in many respects, particularly when attempting
to exonerate
himself. Nevertheless in one critical respect the court found his testimony to
be reliable and confirmed by other evidence.
I refer to what he said on how the
fatal shot came to be discharged. In evidence he explained that when one of the
shots was fired,
the deceased fell against the vehicle and to the ground. It was
then, as he
5 attempted to crawl away, that the appellant shot him. The
evidence of the district surgeon was that the deceased's body had two
bullet
wounds. The first, non-fatal, was in the chest. This, no doubt, caused him to
fall. The trajectory of the fatal shot could
be determined from the entrance and
exit wounds: it was from the middle of the back upwards to mid-chest. It was
thus convincingly
consistent with the evidence of the second accused that the
deceased was shot when in a crawling position. The appellant failed to
testify
and this evidence was therefore not contradicted on oath. Nor was this finding
challenged on appeal.
Mr van Eck relied upon, and stressed, two circumstances which he submitted
ought to be regarded as mitigatory. The first was that
the appellant had shown
remorse. This, counsel said, was to be inferred from: his plea of guilty (though
in fact it was
6 equivocal and inaccurate: "I plead guilty but I had no
intention"); and the fact that from the time of the arrest he co-operated
with
the police and complied with his bail conditions. I have some doubt whether this
is sufficient proof of real contrition. But,
in any event, in the context of
this crime such remorse cannot play a significant role as an mitigating
circumstance. Secondly, counsel
drew attention to the conclusion of the trial
court that the appellant ought to be regarded as a first offender. (His two
previous
convictions were, relatively speaking, minor ones committed a long time
ago.) What can be regarded as a clean record is indeed a
mitigating factor and
would ordinarily indicate that the appellant is capable of rehabilitation and
not an inherently vicious character.
7
However, the countervailing aggravating features override this consideration
and oblige one to lay stress on the deterrent and retributive
requirements of
punishment. Counsel could suggest no plausible or clearly discernible motive for
the killing. It would seem to have
been an act of blind vengeance. It was
perpetrated on an injured and defenceless policeman involved in the execution of
his official
duties. In the circumstances one is obliged to conclude - as did
the trial court after a comprehensive consideration of the question
of sentence
- that the death sentence was the only proper one. (Cf
S v Munqati
1992(1) SACR 550(A) 5561.)
The appeal is dismissed and the
8
sentence on the murder charge is confirmed.
M E KUMLEBEN
JUDGE OF APPEAL
SMALBERGER JA
- Concur HARMS JA