About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1994
>>
[1994] ZASCA 34
|
|
S v Mhlongo (65/92) [1994] ZASCA 34 (25 March 1994)
\ihg
CASE NO 65/92
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ARTHUR WATERBOER MHLONGO
Appellant
and
THE STATE
Respondent
CORAM
: HEFER, EKSTEEN JJA et MAHOMED AJA
DATE OF HEARING:
1
MARCH 1994
DATE OF JUDGMENT:
25 MARCH 1994
JUDGMENT
MAHOMED, AJA:
2
The Appellant was indicted in the Transvaal Provincial Division of the Supreme
Court on five counts.
1) The first count was one of robbery. It was alleged that on or about the 7
June 1990 and at Brits the Appellant had wrongfully
and unlawfully assaulted one
Abel Molokoane and then forcibly removed from the possession of Abel Molokoane a
Toyota Minibus belonging
to one Stephens Molokoane, whilst that vehicle was in
the unlawful possession of Abel Molokoane.
2) On the second count he was charged with the murder of Abel Molokoane on the 7
June 1990 at or near Brits.
3) On the third count,
the Appellant was charged
with the offence of robbery, it being
alleged
that he had wrongfully and unlawfully
3
assaulted one Titus Mlangeni and removed from his possession a Datsun E 20
Minibus which belonged to Jenya Koos Ngwako, whilst that
Minibus was in the
lawful possession of Titus Mlangeni.
4) The allegation on count 4 was that the Appellant had been in wrongful and
unlawful
possession of a firearm consisting of a 7.65 mm
calibre pistol,
without having a licence to do
so.
5) On the fifth and last count, the Appellant was
charged with the offence
of being in unlawful
possession of certain ammunition.
The Appellant was convicted on all five counts by Van Dyk J sitting with two
assessors. On count 1, he was sentenced to twelve years
imprisonment and for the
murder in respect of count 2 he was sentenced to death. He was further sentenced
to twelve years imprisonment
in
4 respect of count 3 but four years of that
sentence was ordered to run concurrently with the sentence on counts 4 and 5.
Counts 4
and 5 were taken together for the purposes of sentence and the
Appellant was sentenced to three years imprisonment in respect of
these
counts.
An application for leave to appeal in respect of counts 1 and 3 was made to
and refused by the Trial Court but this Court is, in terms
of Section 316 A of
Act 51 of 1977, properly seized with an appeal against the Appellant's
conviction for murder in count 2 and the
sentence of death imposed in respect
thereof by the Trial Court.
THE APPEAL ON THE MERITS OF THE
CONVICTION
On the undisputed evidence of the witnesses for the State, the deceased Abel
Molokoane was last seen alive on the 7th June 1990. His
body was thereafter
found on the 10 June 1990 on the Brits-Letlhabile road some 3.6 kilometres south
of Letlhabile. From the
5 observations made by Sergeant Thomas of the South
African Police it had apparently been dragged in a westerly direction from the
Brits-Lethlabile road and left in the grass.
A post mortem examination was conducted on the 12 June 1990 by Dr. S.F.
Richards, the District Surgeon who established that the deceased
had died from
subarachnoid bleeding in the brain, in consequence of a bullet wound inflicted
at the back of his head. This was formally
admitted on behalf of the defence in
terms of Section 220 of Act 51 of 1977.
The most incriminating evidence against the Appellant and which directly
implicated him in the murder of the deceased consisted of
certain admissions
allegedly made by the Appellant to Lieutenant Bouwer ("Bouwer") on the 17th of
October 1990 while the Appellant
was said to be pointing out various spots in
the area in which the body of the deceased had been
6
found. These admissions were reduced to writing by
Bouwer. They were
confirmed by an interpreter and the
Appellant affixed his thumb print to the
written
statement which was then produced in evidence by
Bouwer. According to this statement the Appellant
pointed out the road to
Lethlabile and eventually
identified a spot to the west of the road in the
following terms -
"Op hierdie plek het ek aan die bestuurder van die taxi (gesê) dat hy
moet stop want ek wil afklim. Die bestuurder het toe gestop.
Op hierdie stadium
het ek 'n vuurwapen in my hand gehad, wat ek op die bestuurder gerig het. Ek het
voor langs die bestuurder gesit.
Ek het toe aan die bestuurder gesê hy
moet uitklim want ek wil die kar hê. Die bestuurder wou nie uitklim nie en
ek het
hom toe gestoot. Die bestuurder wou nie uitklim nie en ek het hom toe
geskiet. Terwyl die bestuurder besig was om uit te klim terwyl
ek hom stoot en
hy anderkant toe gekyk het het ek hom geskiet. Die bestuurder het toe buite die
kar geval. Ek het toe gesien dat
die man dood is. Ek het hom toe geneem en voor
om die
7
voertuig gesleep en ek het toe sy liggaam tussen die gras langs die draad gaan
wegsteek. Ek het toe in die kar geklim and toe na
my huis toe gegaan met die
kar".
It was conceded on behalf of the Appellant
that the Appeal against the conviction of the Appellant on count 2 had to fail,
if this
evidence was correctly admitted by the Trial Court. It was submitted
however, that this evidence was inadmissible.
It is clear that the evidence of the incriminating statements said to have
been made by the Appellant to Bouwer and the evidence of
what he pointed out to
the Lieutenant, is only admissible if the Appellant acted freely and voluntarily
in doing so, without having
been unduly influenced thereto and whilst he was in
his sound and sober senses. The onus was on the State to prove that the
Appellant
had indeed so acted. This was correctly conceded on behalf of the
8
State. [See Section 217 of Act 51 of 1977;
S v Sheehama
1991(2) SA 860
(A) at 879 (H - I);
S v Khumalo
1992(2) SACR 411 (N) at 415 f - g; ;
S
v Mjikwa
1993(1) SACR 507 (A) at 510 d - f].
The crucial issue which therefore has to be determined on appeal was whether
or not the State has discharged the onus of establishing
that the Appellant had
acted freely and voluntarily and without being unduly influenced to do so, in
allegedly pointing out various
spots to Bouwer and in making the statements
which were written down and produced in evidence.
The testimony of the Appellant was that he did not act freely and
voluntarily. He said that on the day of his arrest (this would appear
to be on
the 17th October 1990) he was on his way to his house at Orange Farm when he was
confronted by a man with whom he became
involved in a scuffle. (That man was
Koos Ngwako). He was arrested and taken to the police station at De Deur.
9
Later he was driven to Pretoria and Sergeant Mbatha, ("Mbatha") who was one of
the persons who accompanied him to Pretoria, asked
him what he knew about the
deceased. The Appellant's testimony was that he told Mbatha that he knew nothing
about the deceased and
that Mbatha thereupon said: "wil jy hê ons moet nou
kwaai vriende wees?" The Appellant said that he replied in the negative
and told
Mbatha that he could only confirm what he in fact knew. Mbatha thereon assaulted
the Appellant by hitting him on his knees
with a firearm and also by using his
fist on the left cheek of the Appellant. The Appellant stated that he bled from
this cheek because
a ring which Mbatha wore on one of his fingers caused a cut.
Mbatha then gave him some toilet paper to press against his cheek. Mbatha
thereafter asked the Appellant what he would say upon his arrival in Pretoria to
explain his injuries. The Appellant testified that
he was afraid of being
assaulted and he decided that in those circumstances he
10
would simply say that he had injured himself when he had fallen.
According
to the evidence of the Appellant he was taken to the office of Warrant Officer
Diedericks ("Diedericks") upon his arrival
in Pretoria. Diedericks asked him if
he knew where Brits was and then began to ask him about the deceased. The
Appellant said that
he denied any knowledge of the deceased. He said that
Diedericks then began to shout at him and then called Mbatha in for help. Mbatha
came in and reminded the Appellant of their previous conversation. He then
warned the Appellant that he should not give them any
problems because they
would injure him if he did. Mbatha told the Appellant that he should convey the
truth just as they had "discussed"
it during the journey to Pretoria. Some
difficulty thereafter arose about dates and the Appellant was asked when the
deceased was
killed. The Appellant said that he did not know. He said that
Diedericks then
11
began to assault him. He was hit twice with the open
hand and then
given four dates from which he had to
choose one day as being the date when the Deceased was
killed. The Appellant said that he chose Friday and he
was again smacked. He was told to choose a day between
Thursday and Saturday and he was advised to choose
Thursday. After that Diedericks just kept on writing and
then said to the Appellant that he should go to the scene
to show where he had killed the deceased. The Appellant
testified that Diedericks asked him whether he knew where Letlhabile was. The
Appellant replied that that was the first time that
he had heard of Letlhabile.
Diedericks then wanted to know how the Appellant knew where Brits was but did
not know where Letlhabile
was and the Appellant replied that he knew where Brits
was because he passed it on his way to his in-laws. Diedericks then informed
the
Appellant that some people would take him to the scene where the deceased had
been killed but he
12
warned the Appellant that he should co-operate and do exactly what he was
told.
The Appellant said that Diedericks had already written something out
and he asked the Appellant to sign. The Appellant refused and
Diedericks reacted
by saying that the Appellant thought that he was clever - he should just put his
thumb print on the paper. The
Appellant said that he complied with this demand
by affixing his thumb print although he was capable of signing his name.
The Appellant said that he was thereafter taken in a motor vehicle with
Bouwer and Sergeant Nhlanhla. He denied that he had made any
statements to
Bouwer about killing the deceased or that he had purported to identify or point
out the spots at which the deceased
was assaulted or killed. He said that he was
afraid of the police and although nobody assaulted him at the scene he simply
allowed
himself to be photographed pointing at
13
various spots in accordance with the prior instructions of Bouwer
without having any personal knowledge as to what the significance
was of any of
these places where which he was required to point out.
The State called Mbatha and Diedericks to rebut this evidence. They strongly
denied that they had assaulted the Appellant or used
any illegitimate pressure
to induce him to make any statements or to get him to identify or point out any
spots. The State also called
both Bouwer and Nhlanhla. They both maintained that
the Appellant had identified the spots referred to and made the statements
relied
upon the State, freely and voluntarily and they denied having instructed
the Appellant to point at various spots simply for the purposes
of being
photographed doing so.
The Trial Court accepted the evidence tendered on behalf of the State and
rejected the evidence of the Appellant as being false. Counsel
for the
Appellant
14 conceded that he could not offer any weighty criticism of the
evidence tendered by witnesses on behalf of the State but he submitted,
nevertheless, that the version deposed to by the Appellant had not been proved
to be false beyond reasonable doubt.
I have carefully examined the objective evidence and the inherent
probabilities with respect to the averments made by the Appellant.
Obviously
relevant in this respect was the recorded reaction of the Appellant when he was
asked by Bouwer on the 17 October 1990
whether he had any injuries and whether
such injuries were visible. The reaction of the Appellant was that he had an
abrasion on
his knee and a slight swelling on his left cheek. This was noted by
Bouwer.
How were these injuries caused? It was contended on behalf of the Appellant
that they were caused by the police officers who assaulted
him. The State
contends on the other hand that these injuries were
15 sustained by the
Appellant at the time of his original arrest when he became involved in a
scuffle with Koos Ngwako, (the owner
of the Datsun Minibus referred to in count
3 of the indictment against the Appellant), who testified that he had been so
incensed
when the Appellant had been identified by his brother as being the man
who had taken the Minibus belonging to him, that he. jumped
upon the Appellant
and became involved in the scuffle. Koos Ngwako said that in the course of this
scuffle the Appellant received
an abrasion on the side of his face as well as on
his knees.
Although the Trial Court was impressed by the quality of Ngwako as a witness
it is necessary to look at all the evidence in order
to decide whether the
injuries relied upon by the Appellant were sustained in consequence of the
scuffle with Ngwako as contended
by the State or whether those injuries were
sustained in consequence of assaults upon the Appellant as is alleged
16 by the Appellant.
There are several difficulties which present
themselves against the submissions advanced on behalf of the Appellant in this
regard.
In the first place, in the statement taken by Bouwer to which the
Appellant affixed his thumb print, the explanation which the Appellant
himself
gave for these injuries was that they had been sustained during the scuffle when
he was arrested. That evidence could perhaps
be explained on the basis that he
was afraid to tell Bouwer that the injuries had been caused by other police
officers but what is
not easy to explain is why the evidence of Koos Ngwako was
not put in issue when he testified that the Appellant has sustained injuries
in
the scuffle with Ngwako and why the assertion that he was not injured in the
scuffle was made by the Appellant for the first time
when he, himself, testified
in the trial within the trial after the testimony of Ngwako had been already
been completed. Moreover
on the
17
version deposed to by the Appellant eventually,
Mbatha
had been guilty of a gratuitous and aggressive assault
upon the
Appellant, which must have been a source of
considerable grievance for the
Appellant, but when Mbatha
first testified, this was never put to him in
cross
examination and when he was recalled again it was never
suggested to
him that he had caused a bleeding wound on
the face of the Appellant or that
he had given to the
Appellant toilet paper to suppress this bleeding.
Mbatha
was also not confronted with the allegation that at the
police
offices in Pretoria, Dieiericks had at some point
specifically harnessed the
assistance of Mbatha in order
to intimidate the Appellant. It was also not
suggested
to Diedericks that he had assaulted the Appellant on at
least
two occasions.
The objective fact that the Appellant did sustain some injuries does not in
these circumstances justify the inference that these injuries
were inflicted
18
upon him by the police or the inference that he was intimidated by the
police into making the statements referred to by Bouwer and
in identifying the
relevant spots in the area in which the body of the deceased was found. There is
on the evidence, a more acceptable
explanation for the injuries sustained by the
Appellant: these were injuries of a relatively minor nature which were caused to
the
Appellant during his scuffle with Koos Ngwako at Orange Farm at the time of
his arrest on the 17th October 1990.
It is not simply the failure of the Defence to canvass with the relevant
witnesses the version deposed to by the Appellant, which
justifies this
inference. The version deposed to by the Appellant is inherently improbable. Why
should Mbatha, who was a frail and
sickly person suffering from a form of
pulmonary infection, decide to act so aggressively in the presence of several
other persons
in the vehicle and proceed
19
immediately to take out his firearm and to assault
the
Appellant on his knees and on his face, simply because
the Appellant
had answered in the negative, a query as to
what he knew about the deceased.
There was, on this
version, no attempt by Mbatha to probe this reaction
from
the Appellant any further, or to persuade the Appellant
to depart from that response, or to confront him with
other information or evidence, or even to indulge in
some
real threats of violence, before becoming so aggressively
involved in
direct assaults on the Appellant. It is an
unconvincing version which understandably made a poor
impression on the Trial Court. It objectively
strengthens the inference that the most material parts of
the version of the Appellant were not put to the
relevant
State witnesses precisely because the Appellant was
improvising
and inventing evidence as he went on, to
explain away the damaging admissions
which he had made to
Bouwer. That impression is further fortified by his
20
attempt to blame his counsel when he could not explain why his counsel
had not canvassed with the State witnesses his version about
how he came to
sustain his injuries. The Appellant said that his counsel did not properly
canvass these matters in consultation.
He went further. He even suggested that
his counsel was colluding with the State by attempting to persuade him to accept
the version
of the State witnesses. The record and the objective circumstances
do not support any of these suggestions.
Even if, as I have found, the injuries sustained by the Appellant were not
inflicted by the police, the evidence of the state as to
what the Appellant
pointed out in the area in which the body of the deceased was found and as to
what he said to Bouwer, would remain
inadmissible, if the State had failed to
discharge the
onus
of proving that in making these statements and in
pointing out these spots the Appellant
21
had acted freely and voluntarily and without being unduly influenced to
do so. In my view however, the State did discharge that onus.
All the witnesses
called by the State who gave evidence on. this issue testified that the
Appellant was acting on his own volition
and without any compulsion from the
police. The Trial Court accepted that evidence. I am not persuaded that it was
wrong. Nothing
in the cross examination of the police witnesses or in the
objective circumstances disclosed by the evidence justifies a different
conclusion.
What the evidence of the Appellant eventually amounted to was that he had no
knowledge of the relevance of any of the spots he was
photographed pointing out.
He was simply obeying a prior instruction to point in certain directions so that
he could be photographed.
The Trial Court rejected that version. Again I am not
persuaded that it was wrong in doing so. Not only is the version of the
Appellant
entirely
22
contradicted by the evidence of Bouwer himself as well as by Sergeant
Nhlanhla who accompanied him but it is inherently of an improbable
nature. The
statement of the Appellant contains a wealth of circumstantial detail and
particulars pertaining to the Appellant which
could not reasonably have been
within the knowledge of Bouwer. or Nhlanhla. Bouwer did not even know where
Letlhabile was, let alone
the obscure spots within that area which were pointed
out by the Appellant according to the statement which Bouwer handed in and
on
which the Appellant had affixed his thumb print. Bouwer's evidence was that he
was simply asked by Diedericks to accompany the
interpreter and the Appellant in
order to witness certain identifications. He was from a totally different branch
of the police and
not connected in any way whatever with the investigations into
the murder of the deceased. There was no suggestion from the defence
that he
was. It would have been therefore quite impossible for Bouwer to
23
identify (as the statement purports to do) the place where the driver
of the taxi had originally stopped or the place at which the
deceased was shot
or the place to which his body was dragged or the place at which it was
abandoned.
Notwithstanding these considerations, I have kept alive in my mind the very
formidable difficulties which an accused person in custody
often has in trying
to show that incriminatory statements made by him to the police were induced by
compulsion or by undue influence.
For this reason I have given some thought to
the implications of the evidence on the record to the effect that when the
Appellant
was asked whether he wished to make a statement to a Magistrate he
declined to do so. Could it perhaps be argued, that if the Appellant
did not
wish to make a statement to a Magistrate there was no reason why he would
voluntarily wish to make one to Bouwer? This, however,
was not an argument
relied upon
24
by Counsel for the Appellant in his heads of argument and I am not satisfied
that it can properly be invoked to compel any conclusion
in favour of the
Appellant. The reason why the Appellant did not make a statement before a
Magistrate was never properly canvassed
in evidence and was not relied upon by
the Appellant during his testimony for the purposes of drawing the inference
that his statement
to Bouwer was not freely and voluntarily made. More facts
would be necessary before such an inference could be drawn. How far away
was
there a Magistrate at the time? Was he available? Mas the suggestion ever
revived later? If so what was the attitude of the Appellant
then? What reason,
if any, did he give for declining the invitation to make a statement to a
Magistrate? None of these issues were
canvassed. In these circumstances the mere
existence of evidence which suggested that the accused did at some point elect
not to
make a statement to a Magistrate is not of a sufficiently
25
cogent quality to negate the conclusion justified by the other evidence
before the Trial Court, which established clearly that the
statements made by
the Appellant to Bouwer were indeed freely and voluntarily made.
This finding
is a formidable barrier against any attack on the correctness of the conviction
of the Appellant on the charge of having
murdered the deceased. It is perfectly
true that there is a distinction between the admissibility of a confession and
the truth of
its contents and that it does not follow that because a confession
was freely and voluntarily made it was also true. But no reason
has been
suggested, in the circumstances of the present case, why the Appellant should
wish, freely and voluntarily, to make a statement
seriously incriminating
himself in the murder of the deceased, if this was not true. Moreover the truth
of the confession is also
corroborated by the fact that the vehicle of the
deceased which the Appellant took away
26 after the deceased had been killed,
was indeed later found in the possession of the Appellant on the day when he was
arrested.
In the result the Appeal against the conviction of the Appellant on the
charge of murdering the deceased must be dismissed.
THE SENTENCE.
The crucial issue which remains for determination, is whether the death
sentence imposed on the Appellant for the murder of the deceased
should be
upheld on appeal.
The death penalty is the ultimate and the most incomparably extreme form of
punishment which a Court may impose. It is the last, the
most devastating and
the most irreversible recourse of the criminal law involving as it necessarily
does, the planned and calculated
termination of life itself; the destruction of
the greatest and most precious gift which is bestowed on all
27 humankind. It
is authorized by Parliament in terms of the present state of the law but its
application must be confined to those
exceptional, extreme and imperative cases,
in which no other form of punishment - however severe, exemplary, or exacting,
can legitimately
be regarded as as acceptable or adequate. It must be the
only
proper sentence justified by the specially serious circumstances of
the case. [
S v Nkwanyana
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 745 A - G; ;
S v
Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727
(A) at 734 F - H;
S v J
1989 (1) SA 669
(A)
at 682 D - G; S v P
1991 (1) SA 517
(A) at 523 C - E;].
The question which therefore needs to be considered is whether the present is
such an extreme or imperative case. This involves an
examination of the relevant
aggravating and mitigating factors involved in the matter, the weight to be
attached to each of these
factors, the character and background of the offender
and his prospects of rehabilitation, the interest and
28
protection of the general community and its legitimate expectations and
inter alia the moral values and impulses of civilized society
sought to be
expressed in our system of criminal justice, regard being had to the deterrent,
preventive, reformative and retributive
ends of punishment.
The aggravating factors disclosed by the evidence in this matter, are indeed
serious. The Appellant shot and killed a taxi driver
in cold blood. He dragged
the body of the deceased into the bush and then stole the taxi of the deceased.
This was apparently the
only motive for the murder. He showed no visible remorse
at any time before or during the trial. It was clearly a heartless and brutal
crime.
On these facts alone it is difficult to resist the conclusion that the death
sentence is a suitable sentence which can be imposed
on the Appellant, but is it
the
only
suitable punishment for the Appellant? Will
29
nothing short of this incomparably extreme alternative be adequate?
Would a sentence of life imprisonment perhaps accommodate the
retributive,
deterrent, and reformative ends of punishment?
I think it is relevant in this regard to
examine who the
Appellant is and what his background is,
in order to decide whether he is a
man of such inherent
wickedness and brutality and so utterly beyond
redemption
as to justify an order directing the forfeiture of his
life as
the only course which would sufficiently protect
society and adequately
express its total revulsion of the
Appellant and his deed. [
S v Ngobeni en
'n Ander
1992
(1) SACR 628
(A) et 631 g - j;
S v Mamkeli
1992 (2)
SACR
5
at 13 b - e;
S v Ngcobo
1992 (2) SACR 515
(A) at 519
a - f;
S v Cele
1991 (2) SACR 246
(A) at 248 h - j;
S v
Mdau
[1990] ZASCA 126
;
1991 (1) SA 169
(A) at 175 C - 176 B;]. From the
record relevant to these
issues it would appear that the
Appellant was born in Sophiatown in 1952 and
was 38 years
30
old at the time of the commission of the offence. He
is
therefore in the full flower of his adulthood. He is
neither without
skills nor without a stable work record.
Although he lost his father when he
was only four years
old and was compelled to leave school after standard
five
because of the poverty in his family, he started working
as an
installer of television antennas and eventually
acquired expertise as a motor
mechanic which enabled him
to earn and income of some R700.00 per month. He
was
married at some stage and had four children whom he
supported.
Although his marriage broke down, the
children were left in his custody and
he later appears to
have developed a stable relationship with another
woman.
This record suggests a capacity for disciplined work, a
consistent
potential for self-improvement and
achievement, a sense of familial
responsibility and some
emotional commitment. It is a relatively
impressive
record, unfortunately blemished, but not substantially
31
destroyed by a previous conviction for housebreaking, when he was only
17 years old and convictions in 1984 and 1987 for assault.
Judging from the
sentences imposed on him none of these offences were very serious. For the house
breaking he received a sentence
of five strokes with a light cane, for the
assaults in 1984 he received a fine of R100.00 or 50 days imprisonment on each
of two
counts and for the assault in 1987 he received a fine of R90.00 or 90
days imprisonment. There were no further convictions after
1987, other than
those enumerated in the present indictment against him.
Regard being had to this history and background, I am not satisfied that the
Appellant has within him an "inherente boosheid" which
renders him beyond
redemption. [
S v Lehnberg en 'n Ander
1975 (4) SA 553
(A) at 561 F - G].
This conclusion, by itself, does not however, become decisive. It is still
necessary to have regard to the retributive
element in punishment and
32
to accommodate the legitimate feelings of revulsion felt by the general
community when offences of this kind are perpetrated.
How can such feelings of revulsion be properly accommodated on the facts of
the present case? I think it is a mistake to assume that
they can only be
accommodated by the sentence of death. Attributed to a civilized community must
not only be a strong sense of outrage
when a cruel and gratuitous murder is
committed, but also mixed and competing feelings of mercy for the perpetrator
and hope for
his reformation. Outrage and anger are seldom unalloyed.
Having agonized on these issues I have, after some considerable hesitation
come to the conclusion that serious consideration, has
to be given to a sentence
of life imprisonment for the Appellant in the present matter. It is a sentence
which would give strong
expression to the retributive element of punishment
33
without surrendering to the despair about the Appellant
which must
in some measure be inherent in the imposition
of the death sentence. A long term of imprisonment seems
prima facie to have been considered by the Trial Judge at
some point. In response to a plea by Counsel for the
Defence for a life imprisonment, the trial Judge remarked
"As ek geweet het dat as ek hom 'n vonnis oplê van 35 jaar en gelas dat
hy nie voor dit vrygelaat moet word nie en dat dit uitgevoer
sal word, dan het u
' n sterk argument gehad. Maar selfs vonnisse is deesdae nie meer in die howe se
hande nie. Ons breek ons koppe,
ons slaap sleg om te besluit was is 'n regte en
billike vonnis en more oormôre, net omdat die tronke vol is en oorvol is,
dan
word die mense vrygelaat net om weer misdade te pleeg".
If, on a careful consideration of all the circumstances of a case, a sentence
of life imprisonment can properly be imposed, it should
not be avoided simply
because the administrative machinery available to the executive allows for the
possibility that the offender
concerned may be released earlier. Even if a
death
34
sentence is imposed, the administrative machinery of the
executive
might and is often harnessed to commute such a
sentence, but that would be no
reason for avoiding the
imposition of such a sentence if it is otherwise
imperative in a particular case.
The legislature has been at pains in recent
years to give to the sentence of life imprisonment a
special focus so that it can be seriously considered as
an alternative punishment to the death sentence in
appropriate cases. The new section 277 of Act 51 of 1977
and the new section 64 of the Correctional Services Act
No 8 of 1959, both introduced by Act 107 of 1990, were
clearly intended to further that objective. The
provisions of Section 64 of the Correctional Services Act
thus amended
" hou dus in dat 'n Hof sy plig om die gemeenskap te beskerm teen die aanslae
van so 'n geweldenaar soos wat die appellant is, kan
nakom deur horn lewenslange
gevangenisstraf op te lê. Wat die Hof betref, sal so ' n
35
persoon finaal uit die gemeenskap geneem word en die res van sy natuurlike
lewe in gevangenisskap deurbring. Die enigste manier waarop
hy weer tot die
gemeenskap kan terugkeer is as die Minister die inisiatief neem en die
vrylatingsadvisiesraad vra om hom te adviseer
or sy moontlike vrylating. Die
Vrylatingsadviesraad moet dan 'met behoorlike inagneming van die belange van die
gemeenskap', sy vrylating
oorweeg.
Voor die wysiging van bogenoemde art 64 deur die nuwe Wet het die Met op
Gevangenisse bepaal dat:
'64(1) By ontvangs van 'n verslag van 'n gevangenisraad betreffende 'n
gevangenene op wie 'n lewenslange gevangenisstraf opgelê
is, en wat 'n
aanbeveling bevat vir die vrylating van bedoelde gevangene, lê die
Kommissaris die verslag aan die Minister voor.'
Die Minister kon dan, handelende op dié verslag, magtiging verleen vir
sy vrylating. Die inisiatief het dus by die 'gevangenisraad'
gelê, en nie
by die Minister nie. Hierdie bepaling is nou deur die nuwe Wet gewysig sodat die
inisiatief van die Minister self
moet uitgaan. Selfs al sou die raad sy
vrylating aanbeveel, bly die uiteindelike verantwoordelikheid vir vrylating die
van die Minister.
Die plig en die verantwoordelikheid om die gemeenskap teen so
'n moordenaar
36
te beskerm berus dus in die eerste en in die finale instansie
by die Minister.
Waar 'n Hof dus 'n vonnis van
lewenslange gevangenisstraf
oplê, is
dit die klaarblyklike bedoeling van
die Hof dat die
beskuldigde uit die
samelewing verwyder moet word en vir
die res van sy
lewe in the gevangenis
aangehou word. Hy kan dam slegs in
die
uitsonderlike omstandighede
hierbo uiteengesit, waar die Minister
vir hom
tussenbei tree, weer na die
samelewing terugkeer.
Lewenslange
gevangenisstraf is dus 'n vorm van
straf wat as ' n
alternatief vir die
doodvonnis oorweeg moet word waar die
beskerming van
die samelewing 'n
gebiedende oorweging is. Die
onderhawige saak is, na my
mening, so
'n saak en is lewenslange
gevangenisstraf ook 'n gepaste
straf.
Dit voldoen aan die afskrikkings-,
vergeldings- en
voorkomingselemente
van straftoemeting en gee ook gevolg
aan die bedoeling
van die Wetgewer
soos in die nuwe Wet vervat. Die
doodvonnis kan dus nie
as die
enigste gepaste straf beskou word
nie." [
Supra]
.
Save therefore in those exceptional circumstances where an Appellant
sentenced to life
37
imprisonment is for good and sufficient reasons released before the
termination of his natural life, a sentence of life imprisonment
would
effectively remove the offender concerned from the community at large. Such a
sentence would therefore effectively protect
that community against the
offender. It would also be a severe sentence giving very serious expression to
the retributive needs of
punishment.
A sentence of life imprisonment would however not protect the prison
community against the offender if there was any reasonable possibility
that the
Appellant would constitute a danger to other prisoners or the prison staff.
[
S v van Niekerk
1992 (1) SACR 1
(A);
S v Lawrence
1991 (2) SACR
57
(A)]. Regard being had to the analysis I have previously made of the
Appellant's background and history, I am not satisfied that
there is any
reasonable risk that the Appellant might constitute such a danger to the prison
community.
38
In the result and after considerable hesitation and agony I have come
to the conclusion that the sentence of death imposed on the
Appellant should not
be upheld.
I accordingly order that
1.
The appeal against the
conviction be dismissed and the conviction be
confirmed.
2.
The sentence of death imposed by
the Trial Court be set aside and substituted by a sentence of life imprisonment
on the Appellant.
I MAHOMED
ACTING JUDGE OF APPEAL
HEFER JA )
EKSTEEN JA ) CONCUR