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1994
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[1994] ZASCA 37
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S v Ntuli and Others (574/92,582/92,590/92,608/92) [1994] ZASCA 37 (25 March 1994)
Case Nos: 574/92 582/92 590/92 608/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
STHEMBISO GOODENOUGH NTULI
First Appellant
PHILANI
ZONDO
Second Appellant
MFANA HILLARIUS
DLAMINI
Third Appellant
THULANI WELCOME
KHUMALO
Fourth Appellant
MPOPOZI ELLIS NTULI
Fifth Appellant
and
THE STATE
Respondent
CORAM:
HEFER, EKSTEEN et HOWIE JJA
HEARD:
21 February 1994
DELIVERED:
25 March 1994
JUDGMENT
HOWIE, JA......
2
HOWIE JA,
The five appellants stood trial in the Natal Provincial
Division (Levinsohn J and assessors) with two other men (accused nos 6 and
7) on
one count each of murder and robbery with aggravating circumstances. On both
counts accused no 6 was acquitted and accused
no 7 was convicted as an accessory
after the fact. Appellants were all convicted as charged. They were sentenced to
death for the
murder and to 15 years' imprisonment for the robbery.
The appeal is brought in terms of
s 316A
of the
Criminal Procedure Act, 51 of
1977
. All the appellants appeal against the death sentence and fourth and fifth
appellants also noted an appeal against their convictions
for the murder.
Counsel for fourth appellant did not pursue the matter of his client's murder
conviction, however.
3
The offences were committed when an armed gang robbed the Kingscliffe Spar
Store at Appelsbosch in the New Hanover district in the
early evening of Friday
30 August 1991. In the course of the robbery the manager of the store, Peter
Hailstones, was fatally shot.
The plea tendered by first appellant was one of
guilty to the robbery but not guilty to the murder. Second appellant pleaded
guilty
on both counts. Their co-appellants and erstwhile co-accused all pleaded
not guilty on both charges.
As regards the relevant facts, one may begin with the evidence which was not
in dispute, the evidence which was established beyond
reasonable doubt and
defence evidence which was reasonably possibly true.
Accused no 6 was a herbalist. His kraal was at Appelsbosch about 5 kilometres
from the store. He ministered to his patients there
and at Umlazi among
other
4
places. Appellants and accused no 7 were residents of Umlazi. First appellant
was stationed there as a detective constable in the
Kwazulu Police. Second
appellant was employed in Durban. Third and fourth appellants were out of work
at the time. Fifth appellant
operated a taxi business. Accused no 7, the
youngest accused, was then 20 years old and still at school.
On Thursday 29 August 1991 accused no 6 had been treating patients at the
house of fifth appellant, his close friend. Afterwards he
and his wife were
given a lift by fifth appellant from Umlazi to Appelsbosch. Also in the car were
third and fourth appellants. They
all slept overnight at the kraal of accused no
6. During the following afternoon first appellant arrived in a van belonging to
the
Kwazulu Police. He was accompanied by second appellant and accused no 7.
First appellant, who had brought his 9 mm service pistol
with him was
already
5
armed. Second, third and fourth appellants were respectively provided with a
Star 9 mm pistol, a 6,35 mm pistol and a 7,65 mm pistol.
All but accused no 6 set off at dusk in the police van bound for the store.
After some reconnoitring the van was parked some hundreds
of metres from the
premises. By this time the store was closed. Fifth appellant, who was a
well-known customer of the store (as was
accused no 6) remained at the van with
accused no 7.
The first four appellants proceeded to the house adjoining the store where
the deceased lived with his wife and children. On their
imminent entry into the
kitchen Mrs Hailstones saw them at the door and raised the alarm. The deceased
came into the kitchen from
inside the house and rushed towards the men. As he
did so he was shot dead. Some of the gang then forced Mrs Hailstones at gunpoint
to take them to the store, demanding money.
6
One corner of the store consisted of a partitioned office. In it was a locked
safe. They told her to open it. She said she did not
have the safe key and that
only the deceased had known the number of the combination lock. She also said
that the only available
money was in the various tills positioned about the
store. Some of the four appellants in question started searching various drawers
for money. Others looked unsuccessfully for the safe key. In this process Mrs
Hailstones was heavily slapped several times by second
appellant in order to
make her open the tills and reveal the whereabouts of the safe key. She
eventually said that the woman shop
assistant who lived in the servants'
quarters alongside the store would know where the key was. She was then forced
to lead some
of her assailants to the assistant's room. There, the latter was
woken, assaulted and marched to the office. She was also unable
to produce the
key or
7
to operate the lock. However, she could and did open the tills, which were
then rifled.
In the meanwhile the nightwatchman and a young male shop
assistant had been brought into the office and forced to lie on the floor.
At a
stage when Mrs Hailstones and the woman assistant had served their usefulness
and were also being held at gunpoint in the office
while the money search
continued, the former precipitated the end of the raid. She located a nearby
spray container of teargas with
which her police reservist husband had been
supplied. She lunged towards second appellant who,with third appellant, was
keeping them
captive, and discharged the gas at him. The two appellants
immediately responded by firing their pistols before retreating out of
the
office and into the store. They were speedily joined by the other two and the
foursome then fled the premises and made for the
van
8
carrying between R6 000 and R7 000 in cash and sundry cheques.
Having
rejoined fifth appellant and accused no 7 at the police van, the six men set off
for Umlazi. There, after dividing the money
and burning the cheques they
dispersed.
Members of the South African Police were summoned to the store the same
evening. In their investigations that night and the next morning
they found 3
empty 9 mm shells and one spent 7,65 mm bullet on the kitchen floor. Three empty
shells, 2 of 9 mm and one of 6,35 mm,
were found in the store. All 5 9 mm shells
were ballistically proved to have been fired in the Star pistol carried by
second appellant.
The police also found 3 bullet marks in the office. Two were on a bookshelf
in front of which Mrs Hailstones had been standing just
before the teargas
9
incident. The other was on a cabinet very close to where the woman assistant
had stood at that same time. There was also a hole in
the cement floor of the
kitchen apparently made by a bullet. The hole did not coincide with the spot
where the deceased had lain.
Acting on information received, one of the investigating officers arrested
appellants and their co-accused during the week following
the killing. In the
process he recovered all 4 firearms. Soon after his arrest each of the first
four appellants made a statement
to a magistrate in which he described the
robbery and confessed his participation in its commission. The admissibility of
their statements
was not in issue.
The autopsy conducted on the deceased's body revealed that he had been struck
by 5 bullets. Three of the shots were in the fatal category.
One to the chest
caused the most damage. The marks surrounding its
10
entrance wound indicated that it was discharged probably within a metre of
the victim. The bullet which caused it was recovered from
the body. So was
another. They were both of 9 mm calibre.
Turning to the contested evidence, Mrs Hailstones testified that she was not
only assaulted by second appellant but also by third
appellant. They were then
in the store and the safe key was being sought. She said that he came up and
said he was looking for the
key of the Hailstones' car which was parked
alongside the store. She told him the key was in the kitchen. He grabbed her by
the arm
and forced her outside with his pistol at her back. There, in very
aggressive fashion, he ordered her to undress. When she refused
he swore at her
repeatedly and attempted to wrench off her skirt. She resisted and he pulled
even harder. She pleaded with him to
desist but to no avail. She then
11
protestated that she was menstruating. He simply disbelieved her and went on
at her. She produced her sanitary pad and pushed it into
his face. This enraged
him. He put away his pistol, took out a knife and tried to stab her, saying he
would kill her. However, she
succeeded in pushing his hand away and he was only
diverted by the appearance of second appellant who came up demanding the key of
the safe. It was at that juncture that she told her assailants that the woman
assistant might know where the safe key was and the
action then switched to the
servants' quarters.
Mrs Hailstones clearly conveyed in her description of the events that all
four appellants who went to her house entered the kitchen.
The assertion was put
to her a number of times on behalf of first appellant that he had not gone into
the kitchen. This she adamantly
refuted. She also denied the allegation put
to
12
her in cross-examination that the deceased was shot only when he had got
right up to the intruders. She said that he was still well
short of them when he
finally fell.
The police officer who arrested appellants said he searched the house of
fifth appellant and found two plastic bank bags containing
R25 worth of coins
hidden between the headboard of his bed and the adjacent wall.
All the appellants gave evidence in their defence except second appellant. He
only testified in mitigation of sentence.
First appellant said he was short of money at the time and therefore
surrendered to fifth appellant's persuasion to take part in the
robbery. He also
agreed to use a police van for the purpose. It was envisaged that a police
vehicle would not arouse suspicion in
the vicinity of the store and would
facilitate their getaway.
13
He testified that he knew such crimes usually involved violence but was
encouraged by fifth appellant's assurance that they would
be provided with
"muthi" to aid in the execution of the project. The arrangement was that first
appellant would take second appellant
and accused no 7 to the kraal of accused
no 6 on the Friday in question where everybody would assemble prior to the
raid.
Neither fifth appellant nor accused no 6 was there when first appellant and
his passengers arrived. Despite that, the remaining participants
discussed the
robbery with the aid of a sketch plan of the store premises which third
appellant had in his possession. Time passed
without any sign of fifth appellant
and accused no 6. Apprehensive that the store would close without the
opportunity to stage the
proposed hold-up, the first four appellants and accused
no 7 decided to get on with it by themselves. They climbed into the police
van
14
and left. On the way they met fifth appellant and accused no 6 in the
former's car, driving towards the kraal. The two vehicles stopped.
Fifth
appellant said it was still too early and that in any event he wanted accused no
6 to give them "muthi". Accordingly they all
proceeded to the kraal. There,
"muthi" was administered by accused no 6 to the first four appellants and also
applied to their firearems.
In due course everyone except accused no 6 went off
in the police van with fifth appellant driving.
First appellant denied entering the kitchen at any time or firing his pistol.
However, he did peer into the kitchen and saw the deceased
being shot when he
set upon third appellant. His own contribution was confined to taking cash from
the tills. Having done so, he
waited for his companions outside the store. When
the spoils were divided back in Umlazi, appellants each
15
received about R600 to R800 while Accused no 7 received far less. It was
agreed that accused no 6 would receive R100 per person for
the "muthi" he had
supplied.
Under cross-examination by second appellant's counsel, first appellant
immediately agreed with the proposition that when they set
off from the kraal
before fifth appellant's return they were going not to the store but home to
Umlazi. It was also under cross-examination
that first appellant came up with
the allegation, not made by him in evidence before or in his confession, chat he
believed that
the "muthi" would render their victims so passive and compliant
that no violence would occur.
The defence advanced by third appellant was that he took part in the robbery
under compulsion. Having gone with fifth appellant to
Appelsbosch just for the
ride, the latter told him after they had got there that he wanted him to go with
first appellant to rob
the store,
16
failing which he (fifth appellant) would shoot him. In addition, accused no 6
said that he would administer "muthi" to them and that
anyone unwilling to
participate would be bewitched and go mad. "Muthi" was duly applied to them and
their firearms to fortify their
resolve. When they drove to the store fifth
appellant was at the wheel and it was he who gave the orders.
Third appellant admitted that he was in possession of the 6,35 mm pistol when
he entered the kitchen but said that it was in his pocket.
He said the deceased
came up and pushed him. As a result he fell. The deceased was then shot by one
or more of the other appellants.
He denied assaulting Mrs Hailstones but
admitted slapping the woman assistant. When the teargas incident took place he
said he drew
his firearm and "shot into space." He could not give any reason for
doing so. He, too, alleged that when they left the kraal prior
to
17
the return of fifth appellant and accused no 6 it was for the purpose of
going to Umlazi, not to commit robbery.
During cross-examination third
appellant was confronted with his confession in which he admitted pointing his
pistol at the deceased's
wife. He could not deny that he had either said that or
in fact done it.
It was also pointed out to him that his statement contained no allegation of
compulsion of any kind. His only explanation was that
when he made the statement
he had no legal representation and that the magistrate's interpreter told him to
limit himself to what
happened at the shop. Asked why he slapped the woman
assistant, he said the "muthi" influenced him to do so and he did not realise
it
was wrong.
Fourth appellant said that some days prior to 30 August fifth appellant told
him he wanted him to take part in an armed robbery. This
was repeated on 29
August.
18
When fourth appellant said he was unwilling to do so, fifth appellant
threatened that he would shoot him. This intimidated fourth
appellant and he
agreed.
On the afternoon in question "muthi" was administered by accused no 6 to the
participants which it was said would cause thunder to
occur when they met up
with the deceased. Like the previous two appellants, he said fifth appellant
drove the van to Kingscliffe
and was the leader of the expedition.
Referring to his role at the scene itself, fourth appellant said that what he
did was done out of fear not only of fifth appellant
but also of first appellant
seeing that the latter "could have executed his duties as a policeman in the
process." He said that from
his knowledge he maintained that he did not shoot
inside the house. Asked what this meant, he said it was a denial. He went on to
say that he was in the office when
19
the teargas was released. It affected his vision. As he staggered about he
heard his firearm go off but could not say in which direction
the shot
went.
Under cross-examination he admitted saying nothing in his confession
about compulsion. His explanation was that he had been frightened
when he made
that statement. Asked whether he had fired a shot in the kitchen, he said he
could not deny it, but maintained that
where he fired a shot was outside, after
the teargas incident. He might, he said, even have been outside the gate when he
fired it.
Fifth appellant denied all the incriminating allegations made against him by
the other appellants. His evidence was that he was on
his way to take accused no
6 back to Appelsbosch on the Thursday preceding the robbery when he happened to
call in at the house of
third appellant to look for the latter's sister.
Third
20
appellant, who was at home in the company of fourth appellant, said they had
nothing to do and wondered if they could go along for
the drive. Fifth appellant
in any case intended returning to Umlazi the same day, and therefore agreed.
However, on the way to Appelsbosch
the car's radiator gave trouble and they were
all forced to spend the night at the kraal of accused no 6.
In the morning the radiator problem was
rectified but then accused no 6
asked to be taken to the
Greytown area to see patients. Fifth appellant
consented
and he and accused no 6 departed. On the way back to Appelsbosch that
afternoon they came across the police van driven by first appellant.
It turned
and followed them to the kraal. When they alighted there first appellant said he
had come to fetch third and fourth appellants
to take them back to Umlazi. By
this stage fifth appellant was in a hurry to get home himself but wanted to
leave
21
his car for the use of accused no 6 who was due to return to Umlazi later
that evening. Fifth appellant therefore asked first appellant
if he could travel
back to Umlazi in the police van. First appellant agreed but said he wanted to
go via the Kingscliffe store. In
due course they left.
When the van stopped some time later the first four appellants got out and
said they were going to walk to the store. Only then was
fifth appellant aware
that third and fourth appellants had all along been in the back of the van. As
fifth appellant and accused
no 7 were waiting for the other appellants to come
back, accused no 6 drove up. He offered to drive fifth appellant to Umlazi but
the offer was declined, fifth appellant saying he wanted to get home soon
whereas accused no 6 would still be some while yet with
his patients.
After a substantial time the first four appellants
22
returned carrying a cardboard box and some packets. When fifth appellant
asked why they had been so long, first appellant said they
had gone to rob the
store and in the process the white man had been injured. Fifth appellant was
then driven home to Umlazi. He had
barely reached his house when accused no 6
arrived to stay overnight.
Fifth appellant denied having had anything at all to do with the planning or
execution of the robbery or having received any of the
stolen money. He
contended that he had been falsely implicated by first, third and fourth
appellants because he had told the police
about them and thereby led to their
arrest. He also denied the finding of money behind his bed.
Under cross-examination fifth appellant was unable satisfactorily to explain
how first appellant could have known that third and fourth
appellants were at
Appelsbosch, why first appellant should have wanted to
23
make a special trip to take them back to Umlazi in a police vehicle, or what
possible urgency made him (fifth appellant) want to travel
home in the police
van and not his own car. Fifth appellant was equally in difficulty in trying to
explain the other remarkable,
and obvious, coincidences and improbabilities in
his story.
Accused nos 6 and 7 also testified. I have not detailed the incriminating
evidence which first, third and fourth appellants gave against
them because it
is unnecessary for present purposes to do so. Suffice it to say that they denied
that evidence. In particular, accused
no 6 denied administering "muthi".
In its evaluation of the disputed evidence the trial Court found Mrs
.Hailstones to be an entirely truthful and reliable witness.
As regards first, third and fourth appellants, strongly adverse findings were
made in respect of those
24
portions of their evidence which conflicted with the testimony of Mrs
Hailstones and those portions in which they sought to exculpate
themselves or to
minimise their respective roles.
The only evidence against accused nos 6 and
7 was that of those three appellants. The Court did not criticise the evidence
of accused
no 6 and was unable to find beyond reasonable doubt that he had given
the robbers "muthi" or in any other respect been linked to
crimes committed. He
was therefore acquitted. Accused no 7 was convicted (albeit of lesser offences)
solely on the strength of his
own evidence.
When it came to the case of fifth appellant, however, the trial Court
considered that he was in an entirely different position. Quite
apart from the
incriminating evidence given by his three co-appellants referred to (the
shortcomings in whose evidence were, as I
25
have indicated, fully borne in mind by the Court a quo) he was found to have
been a very bad witness. His evidence was found to have
been vague, extremely
improbable, in conflict with a statement he made to a magistrate soon after his
arrest and, all in all, essentially
untruthful. In the circumstances the damning
evidence of his co-appellants was held to have been consistent with all the
probabilities
and to have been strengthened by his own mendacity. On that basis
fifth appellant was, on the ground of common purpose, not only
guilty of the
robbery but he must, in the trial Court's opinion, have foreseen the possibility
of a fatal shooting in the course
of the robbery. He was therefore held to have
been guilty in respect of the murder as well.
It is unnecessary to discuss the evidence relative to fifth appellant's
murder conviction in any detail. In my view the trial Court
has not been shown
to
26
have misdirected itself in any respect relative to the case against him. In
fact I am satisfied that the findings it made regarding
his credibility, his
role in the salient events and his consequent guilt were amply
warranted.
Turning to the question of sentence, there is, firstly the matter
of second appellant's evidence in mitigation. Leaving aside his
personal
details, which I shall deal with in due course, and focusing on his account of
the incidents in issue, he said third and
fifth appellants came to him one day
saying that they had all to proceed to Appelsbosch to commit a robbery. When he
said he did
not agree with this, fifth appellant threatened him that if the
robbery succeeded but it became known who had committed it, he would
know that
it was second appellant who had given the game away. Thus pressured, second
appellant fell in with the plan. Just before
the raid "muthi" was administered
to him which he said made him so
27
fearless that he felt "like a lion". Despite that, he was in dread of fifth
appellant the whole time and did just as the latter ordered.
Spurred on by these
two apparently paradoxical influences, he went ahead and in the course of the
robbery shot at the deceased and
later slapped the deceased's wife. He testified
that he had since come to regret that conduct to such an extent that it pervaded
his thinking and his attitude to life generally. As to the role of violence in
the execution of the plan, he said that fifth appellant
told them that if
anything occurred which could possibly foil the mission they were to use their
firearms. However, when asked why
he fired when the teargas was used, he said he
could not give any reason for doing so.
As regards the individual circumstances of the other appellants, their
respective counsel advanced the relevant factual material by
way of
uncontested
28
submissions from the Bar.
The trial Court recorded the various mitigating
and aggravating factors found by it and concluded, with reference to the passage
in
S v Shabalala and Others 1991(2) SACR 478 (A) at 483 c-e, that the death
sentence was the only proper sentence in respect of each
appellant. The
mitigating and aggravating factors found will be referred to in what
follows.
It was not seriously contended on appeal that in its comparative evaluation
of the mitigating and aggravating factors the Court a
quo had overlooked any
relevant facts. The essence of each argument was that allegedly mitigating
factors had been accorded insufficient
weight and certain aggravating factors
ought not to have been found.
In so far as mitigating factors are concerned there are certain
considerations which are of general
29
application or apply to several of the appellants.
Firstly, the first four
appellants had no
previous convictions. Fifth appellant had two of a
minor
nature but he was, fairly and rightly, treated as a first
offender
for the purposes of this case. In the
circumstances all of them were regarded as susceptible of rehabilitation.
Secondly, as regards those appellants who claimed to have been "doctored" by
accused no 6, the Court found, notwithstanding his acquittal,
that it was
reasonably possible that he had administered "muthi" to the first four
appellants and that they were naive or gullible
enough to think that it would
have some advantageous effect upon them and upon the outcome of their efforts.
The trial Court held
that this was not a mitigating factor and that the purpose
of this ritual was to fortify the frontline participants so as to ensure
the
30
success of the enterprise. This finding is unquestionably correct. The motive
and the intention to rob (and if necessary to use violence)
were not engendered
by the effects of the "muthi". They were formed beforehand. The "muthi" was
merely aimed at the successful attainment
of the pre-conceived venture.
Significantly, none of the first four appellants referred to the effect of
"muthi" in their confessions
and they were prepared to embark on the raid before
the "muthi" was given.
Thirdly, it was suggested in argument that the appellants' belief in the
effect of "muthi" pointed to the existence on their part
of an extenuating
ingenuousness and exploitable lack of intelligence. The evidence shows that at
the time that the crimes were committed
the ages of the appellants - taking them
in numerical order - were respectively 24, 26, 24, 26 and 35.
31
First appellant, a matriculant, had been in the Kwazulu Police for 5 years.
Second appellant, whose education had been cut short at
the Standard 2 stage by
his parents' impecuniosity, had for 6 years been in the employ of Gama Panel
Switch Boards in Durban. Third
appellant had been to school until Standard 7. He
was not working at the time in question but had previously been employed in
Umbilo
and Umbogintwini. Fourth appellant left school after Standard 8 at a
technical school. He had served his bricklayer's apprenticeship
with the LTA
company but had since been retrenched. Fifth appellant had a Standard 7
education and earned his living as a taxi operator.
Although the trial Court was
prepared to hold that second, third and fourth appellants were unsophisticated
it does not follow, nor
does it emerge from the evidence, that any of them can
be labelled as ignorant rustics or unintelligent.
32
Although the first four appellants were, I accept, under fifth appellant's
leadership, the evidence does not show that their submission
to his command
meant that they were unduly under his influence. Still less does it show that
they acted under compulsion - there
is not a word of that in their confessions.
And even if they did believe in the beneficial properties of "muthi", the facts
warrant
the inference that they were, even before its administration, ready and
willing not only to be treated with it, but also to carry
out their criminal
purpose.
In the fourth instance it was urged as a mitigating circumstance that - as
found by the trial Court - all but second appellant acted
with dolus eventualis.
In this regard reliance was placed on the decision in S v Mthembu 1991(2) SACR
144(A). At147 d-f the following
passage appears:
33
"In determining whether, on a conviction of
murder, an accused's conduct is so serious that
the death sentence 'is imperatively called for'
one must have regard primarily to the
circumstances of the offence, the extent of
actual participation therein and the form of
intent present. Where a person by his own act,
and
with direct intent to kill (dolus directus),
causes the death of another, then the greater
the premeditation that preceded his conduct,
the
more base his motive, the more brutal,
heinous
or callous the crime, the greater will society's
resultant indignation and revulsion be, and the
more readily can the conclusion be reached that
such person's deed 'is so shocking, so clamant
for extreme retribution, that society would
demand his destruction as the only expiation for
his wrongdoing' (S v Matthee
1971 (3) SA 769
(A)
at 771D). However, when dealing with an
accused convicted of murder who was not a
perpetrator or co-perpetrator, and whose mens
rea was not in the form of dolus directus,
a
sentence of death will rarely be
imperatively
called for. This is the situation which
pertains in the present matter."
In
that case the evidence established that the
appellant and his accomplices were prepared, in the
execution of a
proposed robbery, to overcome resistance
with murder. His own evidence
suggested that this was
34
in fact agreed. The Court held, however, (147 h-148a) that death, even if
anticipated as a strong possibility, was not a foregone
conclusion; that the
deceased in that case was shot when he was defenceless and before he offered any
resistance; that the perpetrator's
conduct therefore went further than the
agreement; and that the appellant had not been proved to have acted with more
than dolus
eventualis.
In the present instance, however, as stressed by counsel for the State, the
evidence goes further. The four appellants entrusted with
the task of carrying
out the attack were all armed. They had been instructed to shoot if anything
occurred which looked as if it
might frustrate their plan. They knew the
deceased was at home. They went straight to his house. Conduct which they would
have regarded
as obstructive on his part must have been envisaged as inevitable
- in defence either of
35
his family or the store. The chance of meek submission was sufficiently
remote to warrant its being ignored: no appellant gave evidence
(which was
reasonably possibly true) that such submission was expected. The killing
occurred at the very outset. The moment the deceased
emerged he rushed towards
the four intruders and was shot without further ado. No attempt was made to
ascertain if he was armed or
to overcome him by other means. There were, after
all, four against one. The robbery then proceeded with every indication that the
elimination of the deceased was expected.
Although the trial Court's conclusion as to mens rea was merely that the
appellants concerned must have foreseen resistance and a
resultant fatal
shooting as a possibility the only reasonable inference, in my view, is that the
deceased's death was in advance
regarded by all the appellants as not only a
possibility but a
36
substantial or virtual certainty.
Although this finding goes further than
that of the trial Court, appellate substitution of the appropriate conclusion to
be drawn
from evidence at a trial is permissible where this does not involve
completely overturning the trial Court's essential findings of
fact, its
assessment of credibility or its assessment of the basic probabilities: S v
Morgan and Others 1993(2) SACR 134(A) at 162
d-g. In the present case the
inference to be substituted is one founded upon the self-same facts as those on
which the trial Court
based its inference, having assessed credibility and the
basic probabilities. A recent example of such a substitution is to be found
in S
v Khiba 1993(2) SACR 1 (A) at 3 e-g where the trial Court's finding of dolus
eventualis was held to have been unwarranted on
the evidence and was replaced by
a finding of dolus directus. In the circumstances the case of the
37
appellants concerned must be decided on the basis that they foresaw death as
a substantial or virtual certainty.
On that footing it could well have been
found that their mens rea amounted to a form of actual intent referred to in
the textbooks as dolus indirectus (Burchell and Hunt,
South African Criminal Law
and Procedure, Vol I, 2nd ed. at 137), "opset by noodwendigheidsbewussyn" (de
Wet en Swanepoel, Strafreg,
4th ed, at 138 and Snyman, Strafreg, 3rd ed at
189-190) or oblique intent (Glanville Williams, The Textbook of Criminal Law,
2nd
ed, at 84-5). However, because this aspect was not argued in the Court below
or on appeal, it is not appropriate to make a finding
that this type of mens rea
was indeed present. Nor is it necessary. It suffices for present purposes to say
that the appellants concerned
foresaw death as more than a strong possibility.
This case is therefore distinguishable from that of
38
Mthembu on the facts.
In addition, whatever reconsideration the quoted
dictum in Mthembu's case may in due course receive, it is plain from the context
in which it appears that it was not the Court' s intention in that matter to lay
down an approach applicable in all circumstances
in which an accused's mens rea
is not dolus directus.
My conclusion, therefore, is that Mthembu's case does not support the
submission under consideration and that it is not a mitigating
factor on these
facts that some of the appellants did not act with dolus directus.
Turning to the considerations applicable to individual appellants, it was
alleged from the Bar, and accepted by the prosecution, that
first appellant was,
according to his Branch Commander, very able, reliable and extremely
conscientious in his police work; that
he was highly rated and trusted by this
officer; and that he had
39
given 5 years' unblemished service. This record clearly constitutes a
mitigating factor and the trial Court found so.
On appeal, first appellant's
counsel contended that the Court a quo should have found that his client played
a lesser role than the
others in that he did not enter the kitchen, fire a shot
or commit any assaults. The evidence of Mrs Hailstones shows quite clearly
that
he indeed entered the kitchen. Not only were all four assailants inside before
the shooting but after it occurred two went to
the deceased and two went to her.
Accepting that this appellant fired no shots, it was obviously neither
practicable nor safe for
the four men, standing close by one another, all to
shoot. The fact that first appellant did not assault anyone is merely neutral.
He knew full well what the plan was beforehand, he had seen the deceased killed
at the very start of
40
proceedings and he thereafter participated - according to Mrs Hailstones -
with as much apparent relish as his companions. His contribution
of the vital
conveyance, his role in the lead-up stages, and his possession of his service
pistol show adequately enough in the overall
picture that he was comprehensively
committed. And the fact that he knew that armed robberies were generally
accompanied by violence
reveals a highly blameworthy state of mind.
In so far as it was stressed in argument presented to the trial Court that
first appellant had confessed to the robbery soon after
his arrest, that he had
co-operated with the police and that he had pleaded guilty to the robbery
charge, the Court accepted that
these features demonstrated some remorse. One
should remark that the appellant gave no evidence that he was remorseful. He
merely
said in his plea statement that he
41
was extremely sorry because of what happened and that he was foolish to have
taken part. In my view it is not apparent to what extent,
if any, his possible
remorse pertained not to his crimes but rather his predicament in the dock.
However, accepting the trial Court's
finding that first appellant has shown some
remorse, it is in his case a factor of extremely little weight.
Turning to second appellant, he did give evidence expressing his remorse and
this was not challenged by the State. It is also in his
favour that he pleaded
guilty to both charges and did not take up the trial Court's time with a false
defence. On the other hand
the evidence which he gave in mitigation renders it
doubtful whether he was in fact being frank and open. Like some of his
colleagues,
he sought refuge behind the already discredited allegations as to
the effect of "muthi" and a vague sort of compulsion exercised
by fifth
42
appellant. That the "muthi" he received eliminated all
his fear but not
his fear of fifth appellant, is specious.
In the end result, therefore, his professed remorse is
also of minimal worth.
On behalf of third appellant it was submitted that the deceased's conduct
contributed to his being killed. The fact that, as I have
said earlier, the
deceased was shot the moment he appeared and rushed towards this appellant and
his companions cannot possibly be
a mitigating factor. His conduct was not only
understandable but, by necessary inference, exactly what the appellants
foresaw.
As regards fourth appellant, it was submitted by his counsel on appeal that
he did not fire a shot in the kitchen. This, in my view,
flies in the face of
the police evidence that a spent 7,65 mm bullet head was found there. The trial
Court did not consider, for
the purposes
43
of its judgment on the merits, the significance of the calibre of this
bullet, namely, that fourth appellant carried the 7,65 mm pistol.
In its
judgment on sentence, the Court said that it was not conclusively proved that
anyone but second appellant fired a shot. That
was in the context, however, of
determining the nature of each appellant's mens rea, and there the question, no
doubt, was whether
anyone other than second appellant had shot the deceased. I
agree that it was not conclusively proved that anyone other than he had
shot the
deceased but that does not mean that no one other than second appellant fired a
shot in the kitchen. To find now that fourth
appellant did fire such a shot
(even if it did not strike the deceased and even if it was not aimed at him)
would not, on a proper
analysis, run counter to the trial Court's findings of
fact or its assessment of credibility and the probabilities; it would merely
supplement
44
those findings. But even if it were, properly construed,
a finding
contrary to that of the trial Court, it is open
to this Court to make a
contrary finding where to do so
would be to find upon undisputed evidence
and/or on an
appellant's own evidence: see Morgan's case, supra,
loc.cit.
In the present case fourth appellant said that if it were proved that he
fired a shot in the kitchen he would not deny it. In my view
there was such
proof. The submission that the extent of his role falls to be considered on the
basis that he did not fire such a
shot therefore cannot be accepted. As to his
mens rea, however, there was inconclusive evidence of the direction or fate of
his shot.
It could, conceivably, have been the one that caused the hole in the
kitchen floor. And fourth appellant's generally unsatisfactory
evidence as to
his own participation cannot really assist
45
the State to the extent that it can be found beyond reasonable doubt that he
acted at any stage with dolus directus.
Before coming to the question of mitigation in
the
case of fifth appellant, it remains to say, as regards
second, third and
fourth appellants, that the trial Court
considered that they had, prior to
these offences, been
productive members of society. There is no reason
to
differ from that finding.
Counsel for fifth appellant urged that his client had shown remorse by
co-operating with the police in their investigations. In the
light of his
mendacious defence, however, the possibility of genuine remorse for his actions
is not a reasonable one. Then, it was
argued that it was a mitigating factor
that he had not been present when the crimes were committed. That factor is
worthless. He
was well-known at the store and obviously
46
intended to avoid recognition.
Turning to the aggravating factors, and
once again taking first the considerations that apply to all or several of the
appellants,
the trial Court rightly found it aggravating that the murder was
committed in the execution of a crime of greed and gain; that the
expedition was
well-planned; that a police van and firearms were used; that the unfortunate
deceased was gunned down in front of
his wife, without warning, in the course of
a violent invasion of the sanctity of his home; and that the killing in no way
deterred
the criminals concerned from persisting in their objective of raiding
the store.
As regards the individual appellants, first appellant was sternly condemned
for a particularly shocking breach of the public's trust
in having used a police
van and police firearm. In the trial Court's view
47
this overshadowed his work record. Of that view his counsel was critical. In
my opinion the trial Court balanced these two features
and concluded that the
one comprehensively outweighed the other. I cannot fault that reasoning.
The obvious aggravating factors present in the case of second appellant
consist in his having shot the deceased at very close range
with dolus directus
- no doubt the coup de grâce - and his repeated assaults upon Mrs
Hailstones. In addition one must not
lose sight of the implications inherent in
the site of the bullet marks found in the office. Second appellant fired twice
there.
The direction of fire in respect of each of the three marks indicated the
intention to fire either at or very near Mrs Hailstones
and the woman assistant.
It is difficult to avoid the conclusion that this appellant and third appellant,
who also fired at that
stage, intended at
48
the very least to harm the two women.
Third appellant persistently and
violently molested Mrs Hailstones in a manner which compels the inference that
he had it in mind
to rape her. His thuggery and murderous threats were only
stalled by second appellant's intervention in guest of the money.
Fourth appellant's counsel criticised the trial Court's finding that his
client had played a prominent role in the execution of the
plan and argued that
such role had been minor. "Prominent" does not mean major; it means conspicuous.
And all the appellants played
conspicuous roles at one time or another. In this
appellant's case he so acted when he used his firearm in the kitchen when in the
vanguard.
The aggravation attaching to fifth appellant's complicity was rightly found
to consist in his having planned and co-ordinated the
operation. The
evidence
49
shows that he first began mustering his forces some days before the event.
Thereafter he organised the transport to and fro, the firearms,
the application
of the "muthi" and the attack itself. For the reason already stated, he could
not risk entering the store premises.
Having weighed the competing mitigating and aggravating factors present in
this case the conclusion is inescapable that the former
are far outweighed by
the latter. While it is trite that this does not by itself mean that the death
sentence is the only proper
sentence, it requires no emphasis that the
prevalence of armed robberies involving the victim's death is now a crime of
such alarmingly
widespread occurrence in this country that deterrence and
retribution must necessarily weigh extremely heavily in the assessment
of a
proper sentence.
Accordingly, in so far as counsel urged that the trial Court's reliance upon
Shabalala's case, supra, was
50
misplaced, I do not agree. Whether the victim of a raid like the present is a
recluse on an outlying farm or the occupant of an urban
apartment, a suburban
residence, or a township dwelling, it is a crime of the utmost gravity when a
wantonly murderous, planned and
unprovoked attack is launched upon anyone in the
sanctity of his own home. The reasoning in Shabalala's case, and others like it,
is to the effect that society's understandable feeling of outrage in response to
that type of crime warrants a sentence with profoundly
deterrent and retributive
effect. As stated in S v Khiba, supra, at 4 h - i, the reasoning in Shabalala's
case "is compelling and
commends itself to any reasonable mind."
One is not justified in regarding murder in the course of a planned armed
robbery as having fallen outside the category of crimes
of extreme seriousness
simply because it has become so commonplace. If anything, this
51
places it even more firmly within that category.
Giving anxious
consideration, and attaching all due significance, to the mitigating factors,
especially appellants' clean records
and the fact that some were described by
the trial Court as productive members of society, it nonetheless seems to me to
be critically
important to remember the degree of their commitment to the
execution of their criminal purpose. This was not a plan conceived on
the spur
of the moment and executed forthwith in hot-headed impetuosity. The compelling
inference is that all of them knew of the
plot, and agreed to participate, by
some time on the preceding Thursday at the latest. On their own say so, some
knew much earlier
than that. In all that time, with the raid and its attendant
implications necessarily on his mind, each had ample opportunity to
withdraw but
chose to remain involved.
52
The facts of this matter are such that there is, in my assessment, no
material distinction between appellants' respective individual
cases, seen in
the overall conspectus, such as warrants the imposition of a sentence on one
which differs from the sentence on the
others.
The deterrent and retributive elements of an appropriate punishment in the
instant case so comprehensively overshadow the element
of reformation that the
death sentence is the only proper sentence in the case of all the
appellants.
Fifth appellant's appeal against his conviction for murder and all the
appellants' appeals against the death sentence are dismissed.
C T HOW
IE JA
Hefer JA, ) Concur
Eksteen, JA )