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1994
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[1994] ZASCA 90
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S v Nogqala (19/93) [1994] ZASCA 90 (30 May 1994)
CASE NO : 19/93 N v H
IN THE SUPREME COURT OF
SOUTH AFRICA
(
APPELLATE DIVISION
) In the matter between:
GEORGE MONTI NOGQALA
APPELLANT
and
THE STATE
RESPONDENT
SMALBERGER, JA :-
Case No : 19/93 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter
between:
GEORGE MONTI
NOGQALA
Appellant
and
THE
STATE
Respondent
CORAM
: SMALBERGER, HOWIE, JJA,
et OLIVIER, AJA
HEARD
: 13 MAY
1994
DELIVERED
: 30 MAY 1994
JUDGMENT
SMALBERGER, JA :-
The appellant and a co-accused were arraigned before MYBURGH, J and
assessors in the Circuit Court (Transvaal Provincial Division)
at Springs on
charges of murder (count 1) and robbery with aggravating circumstances (count
2). The charges arose from
2
certain events which took place on 17 September 1991 on the farm
"Syferfontein" ("the farm") and gave rise to the death of Johan Godfried
van der
Merwe ("the deceased"). The appellant was convicted on both counts. He was
sentenced to death on count 1 and to 15 years
imprisonment on count 2. His
co-accused was convicted of being an accessory after the fact to the crime of
murder, and theft, and
sentenced to periods of imprisonment in respect of each
offence. The present appeal, in terms of sec 316 A of Act 51 of 1977, is
directed only against the death sentence on count 1.
The following relevant facts were found proved at the trial. The
deceased, a 65 year old man in poor health, lived on the farm with
his wife and
two children. During weekdays he was alone on the farm while his wife (who was
the family bread-winner) and children
were away at work and school respectively.
On 13 September 1991 the appellant sought, and was given.
3
employment by the deceased as a general labourer. When seeking employment
the appellant gave a false name and produced a false identity
document. On 17
September 1991 (a Tuesday) the deceased and the appellant were alone on the
farm. In the course of the morning the
appellant brutally assaulted the
deceased, bound his hands and feet with wire and tied him, critically injured,
to a fence. The appellant's
co-accused arrived on the scene after the deceased
had died. He assisted the appellant in placing the deceased's body in a trough
in a shed and covering it with large rocks and old tyres. The appellant and his
co-accused then proceeded to ransack the farmhouse
and remove certain items
belonging to the deceased and his family. The deceased's body was discovered in
the shed the following day.
At the later post-mortem examination the cause of the deceased's death
was found to be complicated
4
depressed fractures of the skull with resultant extensive brain damage.
Multiple bruises, abrasions and cuts were found on the deceased's
body. The
district surgeon described the assault upon the deceased as a very severe one.
The fatal injuries were said to be the result
of "taamlike erge geweld". From
the evidence it appears that the deceased suffered a slow and cruel
death.
The aggravating factors are many and manifest. Everything points to the
attack on the deceased having been pre-planned rather than
a spur of the moment
decision. The deceased was an elderly, sickly man incapable of offering any
significant resistance. He was brutally
assaulted and callously treated. He died
a lingering, cruel death. There was direct intent to kill. Robbery, in pursuit
of personal
gain, was the obvious motive for the attack upon him. There was no
need for the appellant to have killed the deceased in
5
order to rob him. The conclusion is inevitable that
he was
killed to prevent later identification. The
appellant has shown no
remorse for his conduct.
Furthermore, as stated by the learned judge
a
quo
:
"This kind of crime is prevalent in South Africa. Elderly people living on
farms where they are particularly vulnerable to attack
are often the victims of
cowardly assaults of this kind."
The
appellant was 30 years old at the time of the commission of the offence. He is a
first offender, and the prospect of his rehabilitation
cannot be ruled out. This
is a significant mitigating factor, but the only one. The appellant admittedly
comes from an economically
deprived and domestically unsettled background. He
has had only a rudimentary education and limited employment prospects. These are
largely neutral factors, although they are relevant to the question of
sentence.
6
This Court has repeatedly emphasized of late that in matters such as the
present the deterrent and retributive aspects of punishment
must necessarily
come to the fore. This has resulted in death sentences being confirmed even in
cases of first offenders with prospects
of rehabilitation (see
S v Khiba
1993(2) SACR 1(A) at 4c-i). The ultimate test, as our law stands at present, is
still whether, on a proper conspectus of all aggravating
and mitigating factors
and other relevant considerations, the death sentence in the present instance is
the only proper one. In my
view it is. In passing it may be mentioned that
counsel for the appellant sought to rely upon the so-called "moratorium" in
respect
of the execution of death sentences as a matter relevant to the
propriety of the death sentence. This Court has already rejected
such argument
for cogent reasons (
S v W
1993(2) SACR 74(A) at 76h-77c).
But for the provisions of the Constitution of
7
the Republic of South Africa 200 of 1993 ("the Constitution") the death
sentence imposed upon the appellant would be confirmed. Sections
9 and 11(2) of
the Constitution, however, cast doubt on the constitutionality of such a
sentence. The Constitutional Court has sole
jurisdiction to interpret these
sections. While the provisions of section 241(8) of the Constitution may require
this Court to decide
the question of the death sentence as if the Constitution
had not been passed, they could also be held to be restricted to procedural
and
jurisdictional aspects of pending proceedings. The proper interpretation of that
section may also be a matter for the Constitutional
Court to decide. It would
consequently be inappropriate to dispose of the present appeal until the
Constitutional Court is able to
pronounce upon these questions. The proper
course to adopt would therefore be to postpone the present appeal pending the
decision
8
of the Constitutional Court.
It is accordingly ordered that
the appeal be postponed to a date to be determined by the Registrar of this
Court in consultation with
the Chief Justice pending a decision of the
Constitutional Court on whether the confirmation of the death sentence imposed
in the
present matter would be constitutional.
J W SMALBERGER JUDGE OF APPEAL
HOWIE, AJA) OLIVIER, AJA) Concur