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[1994] ZASCA 18
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S v Roman (228, 230, 232/93) [1994] ZASCA 18; [1994] 4 All SA 161 (A) (21 March 1994)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
Case number 228, 230, 232/93
/al
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
CASSIMA ROMAN
Appellant
1
JAMES ARNOLDS
Appellant
2
KLAAS TIETIES
Appellant
3
and
THE STATE
Respondent
CORAM
:
NESTADT, F.H. GROSSKOPF JJA et KANNEMEYER AJA
DATE OF HEARING
: 18 FEBRUARY 1994
DATE OF JUDGMENT
:
JUDGMENT
KANNEMEYER AJA/
2 KANMEMEYER AJA :
The three appellants, together
with two other accused, were charged with sodomy and murder. The
offences were alleged to have been
committed in the St Alban's
Prison, Port Elizabeth on 12 March 1991. The victim in respect of
both counts was one B.F.. The three
appellants were accused numbers
2, 3 and 4 respectively before the trial court. Accused number 1,
Hendrik Louwskieter, absconded
before the trial commenced, and it
accordingly proceeded against the remaining four accused only. The
appellants and accused number
5, George Kiewiets, tendered pleas of
not guilty on both counts. At the end of the State case the three
appellants and Kiewiets
were found not guilty and discharged on the
count of sodomy. However the three appellants and Kiewiets were
subsequently all found
guilty of murder on count two. The three
appellants were
3
sentenced to death while Kiewiets
was sentenced to 20 years' imprisonment.
The three appellants now appeal to
this Court in terms of
section 316A(1)
of the
Criminal Procedure Act
No 51 of 1977
, as inserted by section
11
of
Act No 107 of 1990, against both their conviction and sentences.
Kiewiets is not on
appeal before us.
The evidence discloses that the
three appellants, Louwskieter, Kiewiets and the deceased were
prisoners serving sentences in the
St Alban's Prison, Port Elizabeth.
They, and other prisoners, were detained in cell 2C. When, at about 6
a.m. on
12
March
1991, Sergeant April of the Correctional Services opened the outer
door of cell 2C he found
the body of the deceased in the ablution
area. It appears that, from the outer door one passes
through this
area to reach the cell itself. April noticed that there was a prison
uniform belt
4
fastened round the deceased's neck
and that his tongue was protruding. There was blood on his neck. He
tested the deceased's pulse
and concluded that he was dead. He called
Major Gouws and the two of them entered the cell itself. What then
transpired will be
mentioned later.
A post mortem examination of the
deceased's body was carried out by Dr. J.R. Lang, the Chief District
Surgeon of Port Elizabeth
on 14 March 1991. He found that death had
been caused by a "constricting force applied around the neck
causing hypoxia."
i.e. the force of the belt seen by April. Dr.
Lang also found numerous incised wounds on the deceased's neck and
face.
The case against the appellants
was based primarily on the evidence of Willem Dickers, Hendrik
Williams and Dumile Majola, fellow
cell mates of the appellants and
the evidence as to what occurred when Major Gouws and Sergeant April
5
entered the cell. The State also
called a fourth inmate of the cell, Mark Anthony Ruiters, but his
evidence was rejected by the
trial Court with good reason.
The trial Court made strong
credibility findings in respect of Major Gouws, Dickers and Majola.
The credibility finding in respect
of Williams, while not adverse,
was more qualified than that of the other witnesses mentioned above.
The State' s evidence is that on
the night of the occurrence, just before the lights in the cell were
extinguished for the night,
the three appellants, together with
Louwskieter and Kiewiets, were sitting together in a circle in the
cell, talking softly to
each other. Both Williams and Majola depose
to this fact and both say that those in the circle, including the
three appellants,
then stood up and went to the ablution area or
bathroom, as it was referred to in the evidence. The
6
deceased was then called to join
them. According to Williams he was called by Louwskieter while Majola
says he was called by the
first appellant. Be that as it may, the
evidence is that the deceased went into the bathroom where the three
appellants, Louwskieter
and Kiewiets were together. The appellants,
Louwskieter and Kiewiets were all members of the prison gang known as
"the twenty
eights". There is evidence that, when a group
of members of this gang gather and hold a conversation in the manner
observed
by the State witnesses, they are usually planning some
unlawful activity.
According to Majola, when Kiewiets
entered the bathroom he had a razor blade in his possession. He and
the second appellant then
proceeded to cut the deceased's cheeks with
this blade. The deceased later returned from the bathroom to the
cell, bleeding from
his cheeks. He walked to his bed and took a face
cloth which he used to staunch
7
the bleeding from the cuts on his
face. Kiewiets ordered the deceased back to the bathroom and kicked
the witness Dickers awake,
ordering him to clean up the blood which
was on the floor in the area between the beds and which was referred
to in evidence as
the "pitch".
The deceased then returned to the
bathroom. What happened there is not clear, but the appellants,
Louwskieter and Kiewiets later
came back to the cell, leaving the
deceased in the bathroom. When back in the cell the third appellant,
according to Majola, removed
his uniform belt and handed it to the
second appellant. They, that is appellants number 2 and 3, then went
back to the bathroom
accompanied by Louwskieter and Kiewiets. Only
Williams says that appellant number 1 went back to the bathroom on
this occasion.
Certain of Williams' evidence,
which was accepted by the trial Court, must be mentioned.
8
Although the appellants and
Kiewiets were acquitted on the sodomy charge, it is clear that
members of the 28-gang use younger prisoners
for purposes of sexual
gratification. The deceased was 21 years old at the time of his
death. Williams says that when the appellants,
Louwskieter and
Kiewiets came back to the cell from the bathroom, Louwskieter said
that his "cherry" was dead. All five
of them then gathered
at the beds of appellants number 1 and 3 and Kiewiets who slept next
to each other. Williams says that at
this stage he heard a snorting
kind of noise in the bathroom where the deceased still was, whereupon
the third appellant said "die
naaier is nog nie dood nie".
It was at this stage that the third appellant removed his belt and
went with the others back
to the bathroom. It must have been then
that the deceased was strangled.
Thus, on the evidence of the State
witnesses,
9
the whole episode on the night in
question can be divided into three parts. First the deceased was
ordered to the bathroom and his
face was cut. Secondly, after he had
gone to his bed to staunch the blood caused by these cuts, he was
ordered back to the bathroom.
What then happened there one does not
know but it is apparent from Williams' evidence as to what
Louwskieter said on coming back
to the cell on this occasion and what
the third appellant said when the snort-like noise was heard, that it
was thought that the
deceased was then dead. What had been done to
him to lead to this assumption is not established since the only
injury of a fatal
nature found by Dr. Lang was the strangulation.
There was some suggestion that the deceased had been stabbed with a
home made awl
which was subsequently found in the bathroom but Dr.
Lang discounts the possibility of this having happened. The third
stage was
that when, after the snort-like
10
noise was heard, the deceased's
assailants returned to the bathroom with the belt and administered
the coup de grâce.
The appellants gave evidence.
Appellant number 1 testified that he had gone to sleep shortly after
8 p.m. and woke again on the
following morning when the bell was
rung. Appellant number 2 said that he went to the bathroom to
urinate. While he was there the
deceased entered with a wild look and
pushed him aside. He had a razor blade with him and, assuming that
the deceased was about
to attack him, he cut him with the blade. He
returned to the cell but later again went to the bathroom to talk to
appellant number
1 who was there at the time and then returned to the
cell. He denies knowing anything about the death of the deceased.
Appellant
number 3 gave evidence at considerable length. He attempted
to incriminate the other
11
accused while exonerating himself.
The trial Court came to the
conclusion that the three appellants were bad witnesses and, on what
appear to be substantial grounds,
the evidence given by them was
rejected
in toto
as being not only not reasonably possibly
true but also as being false.
It is necessary next to consider
events that took place after the deceased had been killed. Evidence
for the State is that when
the three appellants, Louwskieter and
Kiewiets were together in the cell, they proceeded to pack their
personal belongings. This,
according to the evidence, is indicative
of the fact that they appreciated that they would be moved from cell
2C to single cells
when the crime was discovered and its perpetrators
identified. However, appellant number 1 denied that he had packed his
belongings
and said that, after he had been removed to a single cell,
he had
12
to ask to be taken back to 2C to
get his belongings. In this he is supported to some extent by Warrant
Officer Barnard of the Department
of Correctional Services who was
stationed at St Alban's Prison at the time. He was the official in
charge of the single cell division
and he says that the appellants
and Kiewiets were placed in these cells. He confirms that a prisoner,
on being confined to a single
cell, normally brings his personal
effects with him. However, he says that appellant number 1 later
asked to be taken back to cell
2C to collect some of his belongings
which had been left behind in that cell. This request was complied
with and other prisoners
in the cell handed him his clothes and
toilet requisites through a window. He is unable to say whether
appellant number 1 brought
any of his personal belongings with him
when he originally came to the single cells.
13
The next evidence of events which
occurred after the murder is that of Major Gouws and Sergeant April.
After Sergeant April had
found the deceased's body and raised the
alarm Major Gouws of the Correctional Services, who was then on duty,
went to cell 2C.
After having seen the body of the deceased in the
bathroom he then proceeded to the cell itself in which the inmates
were still
present. He ordered all the prisoners to move to the back
of the cell. He then asked them who the people were who had killed
the
deceased, whereupon Louwskieter stepped forward to where Major
Gouws was and four other prisoners followed him. Louwskieter then
said that he and the other four were responsible for the death of the
deceased. The other four were the three appellants and Kiewiets.
They
must have heard what Louwskieter said but according to Major Gouws,
none of them said anything - there was no denial of
14
Louwskieter's allegation that
they, with him were responsible for the deceased's death. He then
established that those who had come
forward were members of the
28-gang and that the deceased was not a member of a gang. The three
appellants, Louwskieter and Kiewiets
were then removed to the single
cells. April substantially confirms Major Gouws' evidence as does
Olckers. Williams, while confirming
Major Gouws' evidence adds to it
by saying that not only did Louwskieter say that they, the five who
stepped forward, had committed
the murder but that each one of them
confirmed this. He also said that the five showed their prison cards
to the major who looked
at them and then returned them. Majola
confirms Major Gouws' evidence that, when the latter asked who was
responsible for the murder
the five mentioned above stepped forward.
However he says that none of them said anything to Gouws.
15
In giving evidence the first
appellant admitted stepping forward but says he did this because
Major Gouws asked who the cell monitor
was and that he held that
position. The second appellant admitted coming forward but says he
did this because Major Gouws asked
the members of the 28-gang to do
so. The third appellant was to the same effect. Major Gouws admits
that, after establishing that
the appellants and the other two
accused were 28-gang members, he asked whether any others in the cell
were members of this gang
whereupon some prisoners raised their hands
but he denies that any came forward as a result of this question.
Major Gouws' evidence is relied
upon by counsel for the State first to prove an admission of guilt by
conduct on the part of the
three appellants by stepping forward as
they did and secondly to establish an admission of guilt by
16
silence when they did not react to
Louwskieter's statement that they had been a party to the murder of
the deceased.
In argument before us, counsel for
appellants numbers 1 and 2 abandoned the stand the appellants had
adopted in giving evidence
and submitted that an alternative
hypothesis could be deduced from the facts of the case viewed as a
whole, namely that they had
done something to the deceased, whether
by sodomising him or cutting him with blades but that his eventual
death was caused by
someone else. In the circumstances, so the
submission went, these two appellants thought that they had killed
the deceased and
that this explains their behaviour when Major Gouws
asked who was responsible for the deceased's death. This submission
cannot
be accepted if the evidence of the State witnesses is taken
into consideration that these two appellants were in the bathroom
during
the second stage and
17
that appellant number 2 went back
during the third stage. Even accepting in the first appellant's
favour that there is doubt as
to whether he was in the bathroom when
the actual strangling took place, he was clearly there during the
first and second stages.
During the second stage the evidence
mentioned above establishes that when the appellants and the other
two accused returned to
the cell at the end of this stage it was
thought that the deceased was dead. Whatever had been done to him in
the bathroom during
this stage, all three appellants and the other
two accused were there in concert. Appellant number 1, even if he did
not return
for the final stage, associated with the others
throughout. When he came forward and remained silent notwithstanding
Louwskieter's
statement he confirmed his association with the others
in encompassing the death of the deceased. During argument it was
also submitted
that the
18
evidence that Louwskieter said
that the appellants were party to the death of the deceased was
hearsay. This is not so. The evidence
of what Louwskieter said was
not tendered to prove the truth of what he said but to show the
appellants' reaction thereto, when
it was said. Finally it was argued
that the evidence should be excluded as being prejudicial to the
appellants and insufficiently
relevant; however the substantial
relevance of this evidence is beyond doubt.
In Schmidt :
Bewysreg
, 3rd
edition at pages 473 - 474 under the heading "Erkenning deur
gedrag", the learned author deals with the case of
S v
Robertson en Andere
1981 (1) SA 460
(C) which involved a gang
murder in a prison. When the commanding officer entered the cell the
accused were standing near the body
of the deceased and made certain
admissions. The admissions and the position of the accused were not
admitted because
19
there was a reasonable possibility
that they were the result of duress exerted by other gang members.
However at page 474 the learned
author says:
"As die bevelvoerder in
Robertson
gesê het: 'Sal diegene wat verantwoordelik is,
vorentoe kom' en die beskuldigdes vorentoe getree het, sou dit wel
neergekom
het op erkenning deur gedrag."
Counsel for the three appellants
attacked the evidence of Olckers, Williams and Majola because of
discrepancies and contradictions
in it. Mr
Buchler
, for the State, in his full and well
reasoned heads of argument which have been of real assistance to us,
has dealt with the points
raised in the appellants' submissions and
we are satisfied that, notwithstanding the criticism levelled at
their evidence, the
trial Court has not been shown to have erred in
accepting it. The Court was conscious of these discrepancies and
contradictions
and, as mentioned above, accepted the evidence of the
State witnesses with the exception of that of
20
Ruiters.
The trial Court, in assessing the evidence of the inmates of cell 2C
who gave
evidence for the State,
appreciated that they were
deposing
to events which took place almost a year
before
the trial which, they had observed from
different
positions. In his judgment, Rein A.J.
also took cognizance of
the mentality and
background of
the witnesses concerned and the fact
that
they did not all observe the same incidents.
If one
thus rejects the evidence of the
appellants
and Kiewiets as false one is left with
the
evidence of the State witnesses which was
properly accepted by
the trial Court. On this
evidence
the guilt of the appellants is proved
beyond reasonable doubt.
Even if one does not
accept
Williams' evidence that appellant number 1
went into the
bathroom when the deceased was finally killed the evidence as a whole
is sufficient to establish that he was party
to the
21
agreement to kill the deceased and
took a part, during the second stage, in order to accomplish this
end.
Before passing from the conviction
of the appellants to the question of sentence there remains a matter
which must be considered
although it was not raised before us.
After the three appellants and
Kiewiets had been convicted the evidence of a psychologist was led in
respect of appellants number
2 and 3. Thereafter the Court called a
psychologist employed by the Department of Correctional Services.
When his evidence was
concluded counsel for the three appellants and
for Kiewiets addressed the Court in mitigation of sentence. When
these addresses
had been completed, counsel for Kiewiets called him
to give evidence. After his evidence in chief had proceeded for some
time certain
questions were put to him concerning the activities of
gangs in
22
prisons. He became ill at ease and
his evidence was scarcely audible. At this stage his counsel made an
application that the other
accused, i.e. the three appellants, should
be removed from the Court so that, as I understand it, Kiewiets would
feel free to talk
without fear of retribution. A discussion took
place between the learned Judge a
quo
and counsel who then
appeared for the State, who vehemently opposed the application. The
learned Judge then held that he had a
"discretion in these
matters" and ordered that "those three accused can be
accompanied down to the cells".
Counsel for the three appellants
stated that they had no objection to this procedure being adopted.
The learned Judge did not have
the discretion which he purported to
exercise and the question now arises as to what effect his ruling has
on the conviction of
the appellants.
Section 158 of Act No 51 of 1977
provides
23
that:
"Except as otherwise
expressly provided by
this Act or any other law, all
criminal proceedings in any court shall take place in the presence of
the accused."
Section 159 of the Act provides
the circumstances in which criminal proceedings may take place in the
absence of the accused. The
fact that a witness, be he an accused or
not, is inhibited by fear from giving evidence in the hearing of the
accused or other
accused is not one of the circumstances provided for
by this section. Section 158 is peremptory. Neither an accused nor
his legal
representative can waive this fundamental right. Even if
the accused's legal representative is present throughout the
accused's
absence, the irregularity remains. The requirement that the
accused should be present is applicable until the
trial is completed. See: Hiemstra :
Suid-
Afrikaanse
Strafproses
5th edition page 408 and the
24
cases there cited. However section
322(1) of Act No 51 of 1977, dealing with the powers of a court of
appeal, provides that:
"notwithstanding that the
court of appeal is of opinion that any point raised might be decided
in favour of the accused, no
conviction or sentence shall be set
aside or altered by reason of any irregularity or defect in the
record of proceedings, unless
it appears to the court of appeal that
a failure of justice has in fact resulted from such irregularity or
defect."
In my view the irregularity
committed by the Judge
a quo
has not resulted in a failure of
justice. It occurred after the appellants' counsel had pleaded in
mitigation on their behalf.
Their counsel were present throughout and
had the evidence of Kiewiets required any reply or comment by them
the Court would, doubtless,
have allowed them to be called as
Kiewiets was called, after his counsel had pleaded in mitigation. The
evidence given in mitigation
by Kiewiets could not have had any
prejudicial effect on the appellants, who had
25
already been convicted when it was
given.
Thus the irregularity is not fatal
to the conviction of the three appellants on the count of murder, and
the convictions must thus
be confirmed.
I
turn now to the question of the death
sentences imposed on all
three appellants. Mr
Spruyt
for the first and second
appellants, submitted that the learned Judge
a quo
was guilty
of a serious misdirection in respect of sentence by sentencing
Kiewiets to twenty years' imprisonment and the appellants
to death
when their co-accused was no less blameworthy than they were. He
referred to
S v Goldman
1990 (1) SACR 1
(A) in support of this
submission. In that case, at page 3d-e, Smalberger J.A. said:
"Although it is trite that
sentences should be individualized, our courts generally strive for
uniformity of sentences in cases
where there has been a more or less
equal degree of participation in the same offence or offences by
participants with roughly
comparable
26
personal circumstances."
and at page 4d-e he said:
"Despite the serious nature
of the crimes committed the sentence imposed upon accused No 1 cannot
be said to be unreasonable
or clearly inappropriate. Having regard to
their relatively equal degrees of participation and moral
blameworthiness and their
comparable personal circumstances, the
sentence imposed upon the appellant, compared with that of accused No
1, is disturbingly
inappropriate and interference therewith is fully
justified (
S v Marx
1989 (1) SA 222
(A)). A comparison with
the sentence imposed on accused number 3 leads to the same
conclusion."
However, in
S v Marx
(
supra
) at page 226 A - B
Smalberger J.A. remarked:
"Waar die ligter vonnis egter
as onredelik of duidelik onvanpas aangemerk kan word, en die swaarder
vonnis in al die omstandighede
'n gepaste een is, sou ingryping met,
en versagting van, laasgenoemde vonnis nie geoorloofd wees nie,
desondanks die wanbalans
wat die vonnisse betref. Geregtigheid vereis
dat gepaste strawwe opgele moet word."
In the unreported case of
Meshack
May and three others v The State
heard in this Court on 15 May
1993, (Case No 594/92), F.H. Grosskopf J.A.
27
reiterated the above approach and
continued, at page 21 of the typed judgment:
"In die onderhawige geval is
die doodvonnis na my oordeel die enigste gepaste vonnis vir
appellants 1 en 3. Waar appellants
2 en 4 in gelyke mate aan
dieselfde moord deelgeneem net, was die doodvonnis na my mening ook
in hulle geval die enigste gepaste
vonnis, nieteenstaande die feit
dat hulle geen vorige veroordelings net nie. Na my oordeel was die
vonnisse van gevangenisstraf
wat appellante 2 en 4 opgelê is,
dus nie die gepaste vonnisse nie. Hierdie hof is egter nie bevoeg om
in te meng met appellante
2 en 4 se vonnisse nie. Waar hierdie hof
eenmaal bevind dat die doodvonnis die
enigste
gepaste straf
vir appellante 1 en 3 is - en dit is 'n bevinding wat nie ligtelik
gemaak word nie - volg dit dat enige ander vonnis
inderdaad nie die
gepaste vonnis vir hulle is nie. In die omstandighede sou enige
inmenging met die vonnisse van appellante 1 en
3 myns insiens nie
geregverdig wees nie. Dit sou trouens in stryd wees met die basiese
beginsel dat geregtigheid die oplegging
van gepaste strawwe vereis.
Gelykberegtiging beteken immers nie dat misplaaste toegeeflikheid
teenoor een mededader ook die ander
mededader moet bevoordeel waar sy
vonnis in alle opsigte 'n billike en gepaste vonnis is nie. In al die
omstandighede van hierdie
saak is daar na my mening ook geen
billikheidsoorwegings wat vereis dat daar met die doodvonnisse van
appellante 1 en 3 ingemeng
word nie."
28
Accordingly, if it should be found
that, in respect of the three appellants, the death sentence is the
only proper sentence, their
sentences must be confirmed. The fact
that a lighter sentence was imposed on Kiewiets who was as morally
blameworthy as they were
cannot affect their sentences. One must thus
determine whether the death sentence is indeed the only proper
sentence in respect
of the three appellants. If this Court would not
itself have imposed the death sentence, the death sentence imposed by
the Court
a quo
must be set aside but not otherwise.
The trial Court found intention,
in the form of
dolus directus
present in respect of all three
appellants. Its finding in respect of the second and third appellants
is manifestly correct but
as far as the first appellant is concerned
different considerations arise. In view of the fact that Williams is
the only State
witness who says that
29
appellant number 1 went to the
bathroom during the third stage of the occurrence and in the light of
the credibility findings in
respect of this witness, number 1
appellant's position should be approached on the basis that he did
not go to the bathroom during
that stage and thus is not proved to
have taken part in the actual killing of the deceased. In the result
his intention was that
of
dolus eventualis
. This, however,
does not mean that the lesser intention which he had constitutes a
mitigating factor. In May's case (
supra
) F.H. Grosskopf J.A.
referred to the judgment of Smalberger J.A. in the unreported case of
S v
Francis
, delivered on 18 May 1993 where the learned Judge
found "that the appellant foresaw the death
of one or both of the victims as a
strong probability - one almost bordering on certainty". In view
of this finding the Court
concluded that:
"Because of the appellant's
high degree of foresight the absence of
dolus directus
cannot
30
constitute a mitigating factor."
In my view similar considerations
apply to the first appellant in the present case. When appellants
number 2 and 3 went to the bathroom
with the belt he must have
foreseen what was about to happen and must have realized that the
unsuccessful attempt to which he was
a party was now to be
consummated. He associated himself therewith.
The evidence in mitigation of the
psychologist Minnaar was not accepted by the trial Court. He based
his conclusions on what the
two appellants he interviewed told him,
without in any way attempting to verify this information. The record
of the proceedings
was available but he did not read it. The
appellants concerned did not confirm the facts allegedly conveyed by
them to Minnaar
under oath. In my view the trial Court correctly
found that Minnaar's evidence did not establish any mitigating
factors.
31
Then it was submitted that the
prison subculture of gangs with codes of behaviour to which
members are subjected constituted
a mitigating factor. It has
repeatedly been held by this Court that the presence of a prison
sub-culture is, in respect of sentence,
a neutral factor. It is only
when that sub-culture so affects the motives and behaviour of the
prisoner that his moral blameworthiness
is reduced thereby, that it
becomes a mitigating factor. See:
S v Mongesi en Andere
1981
(3) SA 204
(A) at 212 A - E;
S v Masuku and Others
1985 (3) SA
908
(A) at 915 B - G; S v
Malqas en Andere
1991 (1) SA SACR
284 (A) at 293h -
294b.
In
S v Malgas
(
supra
)
F.H. Grosskopf J.A.remarked at pages 293j to 294b:
"Anders as wat die geval by
die bewys van versagtende omstandighede was, rus daar geen bewyslas
op 'n beskuldigde om strafversagtende
faktore te bewys nie. (Vgl
Nkwanyana
se saak
supra
.) 'n Beskuldigde moet egter
daardie strafversagtende faktore waarop hy wll steun,
32
opper, en hy moet 'n behoorlike
feitebasis daarvoor lê deur al die getuienis waaroor hy op die
betrokke faktor beskik, aan
te bied -tensy dit natuurlik reeds uit
die getuienis blyk (Vgl weer
Nkwanyana
se saak,
supra
).
Dit
net die appellants in die onderhawige saak nie gedoen nie. Die Staat
was gevolglik nooit geroepe om weerleggende getuienis met
betrekking
tot die nadelige invloed van die sogenaamde gevangenis-subkultuur op
die geestesvermoens of gemoedere van die appellant
aan te bied nie."
In the present case the appellants
failed to establish any factual basis for a finding that their
behaviour was influenced by such
a subculture. As mentioned
above, Minnaar's evidence based on what the second and third
appellants told him was not accepted,
correctly in my view, by the
trial Court. The appellants themselves did not give evidence in
mitigation of sentence and nothing
emerges from their evidence on the
merits which constitutes a factual basis to suggest that their
blameworthiness was reduced by
reason of this subculture. It,
therefore, cannot constitute a
33
mitigating factor.
All three of the appellants have
bad records. The first appellant has nine previous convictions of
housebreaking with the intent
to steal and theft and one each of
assault with intent to do grievous bodily harm, theft, possession of
a dangerous weapon and
robbery. Appellant number 2 has two previous
convictions of housebreaking with the intent to steal and theft, five
of theft, three
of robbery, three of assault with the intent to do
grievous bodily harm and one each of possession of a dangerous
weapon, malicious
injury to property and rape. The third appellant
has seven previous convictions of assault with intent to do grievous
bodily harm,
three of theft, two of housebreaking with the intent to
steal and theft and one each of culpable homicide and sodomy. In view
of
the above records and their present convictions, there is no real
prospect of the rehabilitation of any of the
34
appellants.
This was, in any event a brutal
murder. It was premeditated and when, during the second stage, the
deceased's assailants failed
to achieve their object, they returned
to complete it. It was an attack on a young man who had given them no
cause to assault him.
He had no chance of defending himself against a
group of men determined to kill him. The appellants have shown no
remorse; indeed
when April found the deceased' s body and ran to
report the matter, the appellants, Louwskieter and Kiewiets according
to Williams,
laughed and made a joke of the incident. One said of
April "Kyk hoe hardloop die vark, hy is ook bang."
In my view there are no mitigating
factors present in this case and the aggravating factors are
overwhelming. This does not, of
course, in itself mean that the death
sentence is the only proper one. However this is a case in which the
35
interests of society play a
predominant role. In the M
algas
case (
supra
) at 296d
F.H. Grosskopf J.A.
said:
"In die lig van die vorige
veroordelings van die appellante, en gesien die gedrag van die
appellante ten tyde van, en direk
na, die moord op die oorledene, is
daar na my oordeel geen redelike vooruitsig van hervorming nie. 'n
Verdere termyn van gevangenisstraf
skep trouens die wesenlike gevaar
dat die appellante nog dergelike moorde in die gevangenis sal pleeg."
In
S v Eiman
1989 (2) SA
863
(A) at 873 A - B Steyn
J.A. said:
"Ons Howe het alte dikwels te
doen met sogenaamde 'tronkmoorde', by vele waarvan gewelddadige
psigopate betrokke is. Die gevangenisgemeenskap
is ook geregtig om
teen sulke gevare beskerm te word. Die geleerde Verhoorregter het
hierdie aspek tereg in ag geneem."
In the light of the above the
death sentence
is the only proper sentence in
respect of all three
appellants.
36
The appeals of all three
appellants against their convictions and sentences of death are
dismissed.
D D
V
KANNEMEYER
ACTING JUDGE OF APPEAL
NESTADT JA
]
] CONCUR
F H GROSSKOPF JA ]