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[1994] ZASCA 9
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S v Khumalo (155/93) [1994] ZASCA 9 (15 March 1994)
CCC
CASE NO 155/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
DAN
KHUMALO
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: BOTHA, NESTADT JJA et NICHOLAS AJA
DATE HEARD
: 22 FEBRUARY 1994
DATE DELIVERED
: 15 MARCH 1994
JUDGMENT NESTADT, JA
:
At about 7 pm on 10 December 1991 the owner of a store bordering on the
main Nelspruit-White River Road in the eastern Transvaal emerged
from his
premises. He
2
was 43 year-old Jose da Silva. Having locked the front door, he walked to
his car where it was parked at the side of the building.
As he approached it, he
was confronted by a person with a firearm. His assailant (together, it seems,
with one or two others) had
been lying in wait for him. Their motive was
robbery. Da Silva attempted to flee. Three shots were fired at him, the third
from close
range. He was struck once in the head. His assailants escaped. Before
doing so they apparently stole from Da Silva (though whether
from his person or
shop or car is not clear) an Astra 9 mm pistol. Da Silva was taken to hospital.
He died there three days later
from his head wound.
These events led to the appellant and two others being charged with
murder and robbery as also on three counts of unlawfully possessing
certain arms
and
3
ammunition in contravention of Act 75 of 1969. Two of these counts
related to the weapon and ammunition used to kill the deceased;
the third
concerned the possession of the pistol taken from the deceased. The trial came
before CURLEWIS DJP and assessors sitting
in the Eastern Circuit of the
Transvaal Provincial Division. One of the co-accused (accused 3) failed to stand
trial. The other (accused
2) was acquitted. The appellant (accused 1), however,
was found guilty on all charges. The conviction for murder attracted the death
sentence. In respect of the other four counts he was sentenced to twelve years
imprisonment. This appeal is against the murder conviction
and death sentence
and (with the leave of this Court) against the appellant's other
convictions.
The State called two eye-witnesses to the
4
crime. However, neither advanced its case. The one was unable to identify
any of the deceased's assailants. And the other, who purported
to identify the
appellant as one of them, was discredited. The evidence on which the State
ultimately relied was, in broad terms,
certain extra-curial admissions allegedly
made by the appellant. These took two forms. It is necessary to analyse them in
some detail.
According to the State evidence, the first occurred on the
appellant's arrest. This took place on 11 December 1991, ie the day after
the
robbery. Having received certain information, three members of the South African
Police, detective-sergeants Vuma, Nxumalo and
Magakoa, went to the compound of a
farm in the area. In a room there they came across accused 2. In a jacket (which
the accused admitted
was his) hanging on the wall of the room a firearm together
with certain
5
ammunition was found. It can be accepted that it was
the
weapon which fired the shots at the deceased.
Thereafter and in a
second room the appellant was
encountered. He was hiding in a large
box. In
response to a query by the police "waar...die
ander
vuurwapen (was)" (ie the Astra), he stated that "hy
dit
weggesteek het". He showed the police where it was
to
be found, namely in a nearby rubbish bin close to the
house of the owner of the farm. They all proceeded to
the spot. Sgt Vuma's description of what then happened
is the following:
"Nadat ons daar stilgehou het, het ons uitgeklim en langs 'n vullisblik
het hy toe dit vir ons uitgewys. Hy het aan ons genoem dat
hy die vuurwapen
binne-in die vullisblik weggesteek het en dat ons net die vullis kan uithaal en
dit is binne-in 'n geel plastiesesak.
Nadat ons alles uitgehaal het, het ons toe
die vuurwapen daar binne gevind."
The firearm in question was that of the deceased. This
6
was proved by a computer print-out which, without objection, was
(presumably in terms of
sec 221
of the
Criminal Procedure Act, 51 of 1977
)
admitted in evidence.
Secondly, the State adduced evidence of certain pointings out,
accompanied by inculpatory statements, which it was said the appellant
made on
13 December 1991. Following on his arrest on 11 December, the appellant was
taken to and kept in custody in the cells at
the Nelspruit police station.
Warrant officer Vorster interviewed him. He was the investigating officer. He
testified that the appellant
expressed his willingness "om toneelaanwysings te
doen". He accordingly arranged for Colonel Alberts, the district head of the
murder
and robbery unit, to take the appellant to the scene of the crime. This
Colonel
7
Alberts did. Constable Mdluli acted as interpreter. I do not propose to
set out in any detail what according to them the appellant
pointed out or said.
In summary it was that he indicated where, outside the store, he and another lay
in wait; where he held Da Silva
up; and where he stood when he shot the
deceased. Photographs were taken of the appellant at each stage of this
procedure.
The pointing out of the deceased's firearm, even taking account of the
appellant's admission that he had hidden it, may not, on its
own, have been
sufficient to connect him to the murder. But together with what he showed and
told Colonel Alberts, the case against
the appellant was undoubtedly proved. He,
in effect, confessed. This is, of course, on the assumption that the evidence
referred
to was admissible and acceptable.
8
In support of his alibi defence, however, the appellant denied the State
version relating to the recovery of the Astra firearm. And,
on the basis that he
had not acted voluntarily, he contested the admissibility of Colonel Alberts'
evidence. The appellant alleged
that in the interval between his arrest and
being taken to the scene, the police had assaulted him.
This led to the usual trial within a trial. Evidence was given both on
behalf of the State and by the appellant. It is convenient
to commence with that
of the appellant. He testified that on his arrival at the police station after
his arrest the police "het vir
my geslaan en my forseer dat ek oor ('n) ketting
moes spring terwyl my hande aan my rug vasgeboei is en my voete". Thereafter and
consequent upon his having denied that he participated in the robbery of Da
Silva,
9
he was taken to a "waarkamer" in the police station. This was at about 2
pm (on 11 December). A balaclava was placed over his head.
His hands were bound
together by a rope. So were his feet. The tube of a tyre was put over his face
and "elektriese skokke (is toe)
aan my bene toegepas". After that and in another
room he was hit with a sjambok. That night the appellant spent in the police
cells.
The following day he was again confronted by his captors. They asked him
"waar is die ander vuurwapen?". Having denied all knowledge
of it, he was tied
up and for a second time subjected to electric shocks. On both occasions he was
assaulted by the same four policemen.
He identified them as Vorster, Vuma,
Nxumalo and Magakoa. The electric shocks caused certain marks on his legs which
he showed the
Court. They were described by the trial
10
judge as "vier merke...klein kolletjies". The beating with the sjambok
had also, so the appellant testified, left permanent scarring
in the form of
"merke...aan my lyf". These too were shown to the Court but, save that certain
of them were said to be weals, were
not described. They were, it seems, on his
back and upper left arm. He said that at the scene he did not of his own accord
point
out anything. What happened was that he was told what to point out. Nor
did he make any admissions or indeed say anything to Colonel
Alberts.
The policemen concerned denied the appellant's allegations. The effect of
their evidence in the trial within the trial was that the
appellant had at no
stage been assaulted; that he had pointed out the places and made the statements
referred to; and that in doing
so he had acted voluntarily. Colonel Alberts
handed in as
11
an exhibit the prescribed form used by the police in matters of this kind
and in which he noted what questions had been put to the
appellant prior to the
pointing out and his answers thereto. Included was an acknowledgment by the
appellant not only that he was
acting voluntarily but that he had not been
assaulted. But in answer to a question whether he had any injuries, the
appellant replied
that he had "merke aan rug...en op linker arm" and that he
sustained these "tydens arres met polisie toe hulle my gevang en aangeval
het".
Colonel Alberts recorded his observation of what the appellant showed him as
"sigbare (skynbaar ouerige merke wat roof op het)
ou merke - moontlik snymerke".
Vuma was asked about this. However, he denied that the appellant sustained any
injuries on his arrest.
It will be apparent that the trial judge was
12
faced with two conflicting versions. He had to resolve the resultant
credibility issue bearing in mind that the onus was on the State
to establish
its version and in particular that the appellant had acted freely and
voluntarily. Only then would the pointings out
and the accompanying statements
be admissible (
s vs Sheehama
1991(2) SA 860(A)). CURLEWIS DJP had little
hesitation in accepting the State's evidence and in rejecting that of the
appellant. He
accordingly found that the appellant had acted freely and
voluntarily and that he had pointed out and inculpated himself as alleged
by
Colonel Alberts. In the result, the evidence in question was held to be
admissible.
The trial proceeded. The appellant testified again, this time on the
merits of his alibi defence. He explained that he worked and
lived on a farm
situate
13
between Nelspruit and White River. On the day in question, viz 10
December 1991, he returned to his compound at about 5.30 pm. He
never left it
again until the following morning when he returned to work. Later that day he
visited a neighbouring farm. That is
when he was arrested. He was standing
outside the room of accused 2 (whom he did not know). The police having emerged
from it, approached
him. They asked him about the jacket (which it will be
recalled had been found with a firearm in it in accused 2' s possession).
He
said he knew nothing about it. He was then arrested and together with accused 2
taken to the Nelspruit police station. He denied
that he had attempted to hide
away; or that he had shown the police where the Astra firearm was; on the
contrary, he had just after
his arrest seen accused 3 hand the pistol over to
the police.
14
This part of the appellant's evidence was also rejected. The trial court
found that the appellant had on his arrest shown the police
where he had hidden
the deceased's firearm. On this basis, together with the evidence of what the
appellant had pointed out and said
to Colonel Alberts, the appellant was found
guilty as charged.
I do not quite share the trial judge's apparent confidence regarding the
reliability of the State evidence. It has certain features
which give rise to a
measure of disquiet. I say this for a number of reasons. No detail is given as
to how often and for how long
the appellant was questioned after his arrest.
Vorster should have been asked about this. Colonel Alberts had his office in the
same
building as the team of policemen investigating the crime. It was
therefore
15
not desirable that he should have undertaken the pointing out by the
appellant and this despite the fact that he was not personally
involved in the
investigation (see
S vs Mdluli and Others
1972(2) SA 839(A) at 841 A-B).
Then there is the matter of the appellant's injuries. Colonel Alberts noted
their presence when he
saw the appellant two days after his arrest. Yet despite
this, he made no enquiries as to what had happened on the appellant's arrest
to
allegedly cause these injuries. Nor did Colonel Alberts take the precaution of
having the appellant examined by a doctor. I would
have thought that he should
have done both. Vorster too would seem to have been remiss in the same respects
(though he does say that
the appellant declined his offer of medical treatment).
But the matter does not rest there. I have in mind the
16
following evidence (which has not yet been referred to).
On 3
January 1992 (ie after a delay of some three weeks
which Vorster
unconvincingly sought to explain on the
basis that no magistrate was
available), the appellant
was taken to one to make a confession. What then
happened is not without significance. He was asked
whether he had been influenced to make a statement.
This elicited a complaint by the appellant in the
following terms:
"Ja ek is...gedwing. Daar net bale dinge gebeur wat daartoe gelei het dat
ek goed erken het wat nie gebeur het...ek is aangerand.
Ek is met elektriese
skok toegedien en ek het die indruk gekry die mense wil my doodslaan. . .dit was
'n poging dat ek moet erken
wat ek glad nie gedoen het nie. Ek het dit toe
erken".
In view of this the magistrate declined to take any
statement from the appellant (though unfortunately he
did not note whether the appellant had any injuries).
17
And finally there is the evidence that on the second day of the trial (9
March 1993) the appellant was examined by a district surgeon.
The doctor found
that the appellant had signs of old injuries, namely (i) on his back and left
arm and (ii) on his left ankle and
right leg. He was of the opinion that they
could have been caused "deur skerp trauma (of rottang met metaal in)" and "derde
graadse
brandwonde of ander penetrerende trauma" respectively.
Before us, counsel for the appellant rightly stressed the factors
referred to in support of his attack on the judgment a quo. They
have given me
cause for anxious consideration more particularly seeing that the convictions
primarily rest on the appellant's incriminating
statements made during the
pointing out. Yet I have come to the conclusion that the attack cannot
18
prevail. The trial judge made strong credibility findings. He was
impressed with the State witnesses. In particular he regarded Colonel
Alberts as
"a good witness". On the other hand, the appellant was classified as "a very bad
witness". It is true that this assessment
was partly based on the appellant's
assertion that he never pointed out or said anything to Colonel Alberts. With
justification this
was rejected. But, for the reasons mentioned by KUMLEBEN JA
in the unreported judgment of this Court in
Potwana and Others vs S
delivered on 30 November 1993 (case no 189/93) at pp 30-32, one has to guard
against attaching undue importance to this feature.
So to this extent the
credibility findings of CURLEWIS DJP may be flawed. Even so, however, due weight
must be given to them. Moreover,
there are, judging from the record,
other
19
reasons for finding the appellant's evidence to be unsatisfactory and
that of the State acceptable.
Despite certain contradictions in the
respective descriptions of Vuma, Nxumalo and Magakoa as to how and where the
appellant was hiding
just prior to his arrest, there is no warrant for differing
from the trial court's acceptance of their evidence in this regard. The
inconsistencies relied on by Mr
Pio
on behalf of the appellant are not
material; they are understandable; and CURLEWIS DJP was alive to them. The
allegation that the
appellant was hiding in a box has the ring of truth. The
same cannot be said of the appellant's evidence. I find it improbable that
the
police would, for no apparent reason, arrest him as he stood outside accused 2's
room. Moreover, this was not the version that
was put to the State witnesses
in
20
cross-examination. It was unequivocally and repeatedly stated that the
appellant would say that he was arrested at a quite different
place, namely on
the farm where he stayed.
One proceeds then on the basis that Vuma, Nxumalo and Magakoa are telling
the truth about the circumstances of the appellant's arrest.
This must bear
positively on their credibility generally. But it goes further than that. The
appellant (who did not testify to having
been assaulted on his arrest) was
obviously prepared initially to co-operate with the police. Nxumalo says so
expressly. His evidence
was that on emerging from the box the appellant
(possibly because, having seen that the police had recovered the one firearm, he
realised the game was up) said "hy alles sal vertel...en gaan uitwys". This
lends support to the
21
State version that the appellant subsequently acted voluntarily in his
dealings with Colonel Alberts.
To what extent, if any, does the
evidence concerning the appellant's injuries detract from this conclusion? On
the appellant's version
Colonel Alberts was a party to a gross impropriety; a
fabrication of evidence against the appellant (on a capital charge). Were this
so, I regard it as improbable that Colonel Alberts would have noted (I should
say admitted) that the appellant complained of an assault
and that he was
injured. He would rather have suppressed this fact. That he did not do so is an
indication of his honesty. So too,
I think, is the absence of any allegation by
him that the appellant disclosed where he had obtained the Astra firearm from.
This
would have been damning evidence against the appellant; and the
allegation
22
would have been easily made. Is it not similarly unlikely that Vorster
would arrange for the appellant, albeit belatedly, to be taken
to a magistrate -
had he been instrumental in assaulting the appellant as the appellant alleges? I
think so. Why take the risk of
a complaint by the appellant to the magistrate?
That Vorster did so, tends to show an innocent state of mind on his part
too.
In assessing the cogency of the State case that the appellant was not
assaulted, there is this further consideration. It involves
a comparison of the
nature of the assault alleged by the appellant (ie electric shocks, suffocation
and a beating with a sjambok)
with the complaints he made thereanent and his
injuries (ie to his legs, back and upper left arm) . I leave aside the nature of
the
report that the appellant
23
supposedly made to the magistrate. As will have been seen, it is confined
to an allegation that he was subjected to electric shocks.
According to the
appellant, however, he also said that "die polisie slaan vir my...en hulle trek
'n binneband oor my gesig". He was
not cross-examined about this discrepancy.
Nor did the magistrate testify. But what is indisputable is that the appellant
gave conflicting
evidence as to what he told Colonel Alberts. At first, he
suggests that he made no report to him about having been assaulted. This
is
almost immediately followed by "Ja, ek het aan die Kolonel vertel". What he says
he complained about was that "ek deur die polisie
geslaan is met a sjambok. Dit
is al". He therefore concedes that he made no mention of electric shocks or of
any injuries to his
legs. He was unable to satisfactorily explain the
24
omission. It is a significant one and must seriously detract from his
credibility. More particularly is this so seeing that Colonel
Alberts (on his
recall by the court) denied that the appellant mentioned that he had been
assaulted with a sjambok. And, so he further
testified, he saw no injuries which
could have been caused by a sjambok. Nor did he observe any marks on the
appellant's ankles.
Had they existed "sou ek dit absoluut opgemerk net". As to
the scars on his back which the appellant showed the court "geen van daardie
merke het hy (my) gewys nie". The same applied to the one on his left upper
arm.
The fact remains, of course, that the appellant (i) had, prior to the
pointing out, certain injuries; (ii) complained to a magistrate
that he had been
coerced into making a statement by the
25
administration of electric shocks; and (iii) at the trial bore scars
which could have been caused by him having been electrically
shocked and beaten
with a sjambok. In my opinion, however, neither individually nor cumulatively
are they sufficient to detract from
the acceptability of the State case that the
appellant was not assaulted. There is no reason to think that the injuries ((i)
above)
were part of an assault that was in any way related to the voluntariness
of the pointing out. The appellant himself connects them
to his arrest. The
impression of Colonel Alberts was that the one on the appellant's left arm
(being near the wrist) was caused by
a handcuff; and that the injuries on the
appellant's back (or two of them) were small stab wounds. Obviously these could
have been
inflicted before his arrest. By the time the appellant complained to
the
26
magistrate ((ii) above), more than three weeks
had
gone by since the pointing out. It is not unknown
that
with the passage of time, especially where it is
spent
in prison (as was the case with the appellant),
accused
persons regret having confessed; they seek to undo
this
by for example falsely making allegations that
would
make the confession inadmissible. This leaves
for
consideration the marks which the appellant displayed
at
the trial and which the doctor observed ((iii)
above).
As I have already indicated, they do not accord
with
what Colonel Alberts saw at the time. And there
was
ample opportunity for the appellant to have
sustained
the wounds that caused them during the
approximate
fifteen month period that had elapsed.
In the result, I remain unpersuaded that the appellant was wrongly
convicted. His defence
27
necessarily involved the proposition that there was a conspiracy on the
part of the police (ie Colonel Alberts, Mdluli, Vorster, Vuma,
Nxumalo and
Magakoa) to manufacture a case against him. In my opinion the evidence as a
whole negatived this. It established that
the appellant showed the police where
he had hidden the deceased's firearm and that he later voluntarily pointed out
the places and
made the statements that Colonel Alberts said he did. This part
of the appeal must therefore fail.
Our task, in relation to sentence, is to determine whether, having due
regard to the presence or absence of any mitigating or aggravating
factors as
also the purposes of punishment, the death sentence is the only proper sentence.
The aggravating factors are manifest.
The appellant was part of a gang which
had
28
planned to rob the deceased. The deceased was attempting to flee when the
appellant callously shot him. This was obviously done in
order to facilitate his
nefarious purpose. The only reasonable inference is that the appellant acted
with
dolus directus
. He fired three times at the deceased, the fatal one
at his head from close range. In these circumstances one cannot disagree with
CURLEWIS DJP's description of what happened as "a bad case...(a) cold-blooded
murder". Moreover, as the learned judge also observed,
this type of crime is "of
the order of the day". It is alarmingly prevalent. It is a threat to ordered
society. The interests of
the community require that it be severely punished.
Often (though compare
S vs Mabizela and Another
1991(2) SACR 129(A)) the
death sentence is imposed in this kind of case.
29
Notwithstanding these considerations, however, I have come to the
conclusion that the death penalty is not merited in
casu
. The State
sought to prove one previous conviction against the appellant, namely for stock
theft. However, the judge a
quo
, apparently on the basis that there was a
doubt whether it had properly been proved (the appellant denied having the
previous conviction)
treated him as a first offender. Obviously this is an
important factor in his favour. But of even greater significance is the
appellant's
age. He was born on 3 February 1972. This would have made him not
quite 20 at the time of the crime. So he was still a teenager.
The tendency of
our courts is, save in exceptional cases, not to impose the death sentence on
persons of this age (
S vs Lehnberg en 'n Ander
1975(4) SA 553(A) at 561
A-C;
S vs Dlamini
1991(2) SACR 655(A)
30
at 666-8;
S vs Mofokeng
1992(2) SACR 710(A)). Perhaps the view of
Seneca
, Troades, 259 that "(i)t is the fault of youth not to be able to
restrain its own violent impulse" is too pessimistic. But certainly
young
persons are regarded, in the absence of contrary indications, as emotionally and
intellectually immature (
S vs Lehnberg
,
supra
;
S vs Cotton
1992(1) SACR 531(A) at 536 c) . Even where an accused's actions are not solely
attributable to his youthfulness, his age can be mitigating
(
S vs Lenqane
1990(1) SACR 214(A) at 220 c-d). Unfortunately we do not have a pre-sentencing
report. Even so, and although he left school in 1985
(whilst in standard three),
there is no reason to think that the appellant had a maturity beyond his years.
It will be apparent from
what has already been said that I do not underestimate
the seriousness of the crime which
31
the appellant committed. But in my opinion it does not fall within the
type of case where the death sentence would be justified on
so young a person. I
think a long term of imprisonment would satisfy the retributive and deterrent
purposes of punishment.
The appeal against the convictions is dismissed. However, the appeal
against the death sentence succeeds. This sentence is set aside.
There is
substituted therefor one of 21 years imprisonment. It is to run concurrently
with the sentence of 12 years imprisonment
imposed on counts 2, 3, 4 and
5.
H H NESTADT, JA
BOTHA, JA )
) CONCUR NICHOLAS, AJA )