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[1994] ZASCA 157
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S v Smith (26/94) [1994] ZASCA 157 (17 November 1994)
26/94
/mg
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between
PETER SMITH
FIRST APPELLANT
BONGANI MJWARA
SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HEFER, VIVIER JJA et NICHOLAS AJA
HEARD
: 7 NOVEMBER 1994
DELIVERED
: 17
NOVEMBER 1994.
JUDGMENT
HEFER JA/
...
2
HEFER JA:
The appellants were convicted of murder and sentenced to death. Their
appeals in terms of
sec 316A
of the
Criminal Procedure Act 51 of 1977
as amended
are directed at the convictions and sentences. Two co-accused who were arraigned
and convicted on the same charge did
not receive the death sentence and are not
parties to the appeals.
A brief resume of the facts appears in the State's summary of substantial
facts which is to the following effect:
" 1 The accused and the deceased were inmates of Waterval Prison,
Utrecht. All the accused were members of the '28' gang.
2.
A few days prior
to the day in question there had been an attack by the members of the ' 26' gang
on a member of the '28' gang. [It
emerged at the trial that several members of
the latter gang, including the appellants, were
attacked.]
3.
On the day in
question the
accused,
3
deceased and others were in the Hospital Control Yard of the
Prison.
4. The four accused confronted the deceased in cell no. 1, where they
proceeded to assault him, stabbing him with sharpened metal
spoons. Each of the
accused was armed with such a spoon, and each took part in stabbing the
deceased.
5. The deceased sustained 37 stab wounds and the cause of death was found to
be consistent with exsanguination following multiple
penetrating
wounds."
At the trial the
appellants and their co-accused conducted their own defence after declining to
avail themselves of the services of
pro deo
counsel. In cross-examining
the State witnesses they did not seriously dispute that four prisoners attacked
the deceased in cell No
1 on the day in question nor that the latter was
repeatedly stabbed with sharpened metal spoons and died of his injuries later
that
day after his removal to hospital. What was in issue was the identity
of
4
his assailants. It was suggested to the State witnesses in
cross-examination that the accused were all locked up in their own cells
at the
relevant time and could not possibly have been involved in the assault in cell
No 1. But none of the accused saw fit to confirm
the suggestion by testifying
under oath. The result was that they were convicted on the uncontradicted
evidence of the State witnesses,
I have no doubt that the appellants were rightly convicted. The first
State witness, sergeant Mjiyako, actually saw them stabbing
the deceased in cell
No 1 and shortly afterwards three other warders who rushed to the scene when
Mjiyako called for assistance observed
them holding blood-stained sharpened
spoons in their similarly stained hands in the corridor near the door leading to
cell No 1.
They were conducted to their own cells
5
where they surrendered the spoons. This was
the
uncontradicted evidence of the State
witnesses.
Admittedly, as counsel who represented
the
appellants in this court indicated, there are
discrepancies in the
evidence of the State
witnesses but of these the trial court was
well
aware and yet found the evidence to be credible.
I
have not been persuaded that there is any reason
for
coming to a different conclusion. Admittedly
too the trial court did
not specifically deal with
the reliability of sergeant
Mjiyako's
identification of the assailants whilst
observing
the attack through the window of cell No 1.
But,
taking into account that the witness knew
the
appellants and their co-accused well, and that
the
incident occurred in broad daylight at a distance
of
no more than a few metres, it is obvious that he
required only a
glance to recognise them before he
6
went for assistance. And, of course, his identification receives very
material support from the other warders who arrived on the scene
shortly
afterwards. In these circumstances there is no room for an argument based on the
possibility of an honest but erroneous identification.
I turn to consider the sentence.
In terms of
sec 322
(2A) (6) read with
sec 277(2)
of the
Criminal
Procedure Act as
amended this court is enjoined to consider the propriety of the
death sentence in any particular case with due regard to the mitigating
and
aggravating factors found to be present. In his judgment on sentence in the
instant case the trial judge refers by way of mitigation
to the fact that the
deceased was killed "in the course of gang warfare which is apparently endemic
in prisons" and that the appellants
had been attacked earlier by the gang
to
7
which the deceased belonged and to the fact that "they caused no further
trouble within the prison" after the murder.
Despite the lack of direct evidence to that effect the conclusion that
the deceased was killed in the course of "gang warfare" is
the only reasonable
one on the available information. He belonged to the 26 gang whose members had
attacked the appellants and other
members of the 28 gang the previous week in A
section of the prison. The appellants were high ranking "officers" in their gang
and
in order to avoid reprisals for the attack they were transferred to the
hospital section. To be isolated from their companions did
not please them in
the least but the prison authorities refused to budge. How the deceased - an
elderly man who served as a cook
in the kitchen - came to their attention is not
known. But they were aware
8
of his presence and of his membership of the 26 gang for, in what the
authorities regarded as a desperate attempt to achieve their
return to A
section, they complained that he might poison them. In the absence of evidence
one can only speculate on the reason for
the killing. He might have been killed
in vengeance or retaliation for the previous attack or as a result of a
suspicion that he
might harm them or in an attempt to create a situation which
would bring about their return to A section or simply because he was
a member of
a rival gang and an easy victim.
What is abundantly clear, however, is that this is not a case (eg like
S v Masuku and Others
1985(3) SA 908 (A)) where murder was committed by
gang members of subordinate rank on the instructions of their superiors. The
appellants
were no underlings; as mentioned
9
earlier they were high ranking "officers"
(indeed
"generals") in the 28 gang. They were not
called
upon to follow orders or face the
consequences
but were free to take their own decisions. It
must
be accepted that they personally took the
decision
to terminate the deceased's life and
carefully
planned his demise. Having done so they
contrived
somehow to isolate him in cell No 1 (a
hospital
ward for prisoners) and set about slaying him
with
cold deliberation. That they may have been
and
probably were influenced by the culture of
violence
which permeates life in prison (cf
S v
Bradbury
1967(1) SA 387 (A) at 404H;
S v Monqesi en
Andere
1981(3) SA 204 (A) at 212 B-C) is in all
the
circumstances of the case not a
weighty
consideration. Taking into account the
obvious
brutality of the murder, which is evidenced by
the
fact that they inflicted no less than 37
10
penetrating and incised wounds on the body of their victim, I agree with
the trial court that the aggravating factors far outweigh
the mitigating
ones.
In order to decide whether the death sentence is the only proper one
reference must further be made to the appellants' lists of previous
convictions.
First appellant's record commences with a conviction during 1965 of
housebreaking and theft. Since then no less than
13 similar convictions are
recorded. In addition there are 3 convictions of theft, 4 of escaping from
custody, 1 of assault (committed
in gaol), 1 of assault with intent to do
grievous bodily harm, 2 of robbery with aggravating circumstances, 1 of the
unlawful possession
of a firearm and finally one of murder. Prior to 1970 he was
sentenced to varying periods of imprisonment In 1973 to
11
imprisonment for the prevention of crime.
During
1975 he was declared an habitual criminal.
The
robberies and the murder referred to earlier
were
committed after his release on parole. He
was
sentenced to death for the murder but on appeal to
this court the sentence was reduced to one of life !
imprisonment. This occurred less than a year
before he
committed the present murder. Second
appellant has an equally lamentable record of
convictions for housebreaking and theft (5), theft
(3), escaping from custody (2), assault with intent
to do grievous bodily harm (2), (one of which was
committed in prison), robbery (1). During 1991 he
was convicted of a murder which he committed in
gaol while serving a 10 year sentence for robbery.
For that murder he was sentenced during February
1991 to 12 years' imprisonment. During April 1992
he was again convicted of assault with intent to do
12
grievous bodily harm committed with a sharp instrument and declared an
habitual criminal. Three months later he committed the present
murder.
Both the appellants are obviously hardened criminals and beyond
redemption. They pose a threat to society generally and to fellow
prisoners in
particular. The only proper way to deal with them is to impose the death
sentence. However, since the constitutional
validity of that sentence is
presently an issue in the Constitutional Court, I propose making an order
similar to the one made in
S v Makwanyane en 'n Ander
1994(2) SACR 159
(A) at 162e-i. The following order is made:
(a)
The appeals
against the convictions are
dismissed.
(b)
The appeals
against the
sentences
13
are postponed to a date to be
arranged by the registrar in
consultation with the Chief
Justice.
J J F HEFER JA
VIVIER JA )
CONCUR NICHOLAS AJA)