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 182
|
|
S v Swartbooi and Another (682/92, 460/93) [1994] ZASCA 182 (29 November 1994)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
CASE NO. 682/92 460/93
MABULA MICHAEL SWARTBOOI
1st APPELLANT
WISEMAN SAKATYA
2nd APPELLANT
VERSUS
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, VIVIER JJA et NICHOLAS AJA
DATE HEARD
: 2 NOVEMBER 1994
DATE DELIVERED
: 29 NOVEMBER 1994
NICHOLAS AJA
2
JUDGMENT
NICHOLAS AJA
:
The farm named The Ruins (which is also
known to the local population as Freddie's Farm) lies about 10 kilometres west
of the town
of Bedford in the Eastern Cape.
The late George Wienand, a 77-year old retired farmer, lived there with
his 74-year old wife, Mrs Josephine Wienand. On the evening
of 3 July 1991 the
couple were sitting in front of the fire in the lounge of the farm house. In the
kitchen a maid, Present Kula,
who was born on the farm and had lived her 42
years there, was preparing the evening meal. Another maid, Gladys Mentoor, was
busy
in the bedroom.
3
At about 7 o' clock this scene of domestic tranquility was disturbed by
two men pushing open the kitchen door and entering the house.
One of them caught
hold of Present Kula's dress in front of her chest. The other held a gun against
her head and threatened to crack
her skull if she screamed. They demanded,
"Where are the white people?" Present Kula replied that they were away from
home. They
escorted her through the kitchen door to the back of the house,
saying that they wanted money. She took them to the office, the doors
to which
were found to be locked. There were other people outside ("two or so"). Two of
the group, one of whom was holding the gun,
went into the house through a side
door. Another two, who were holding Present Kula, led her away through a small
gate to a tree
where they stood at some distance from the
4
house. After a while the man who had been holding her on her right side
left and ran towards the house.
Meanwhile Gladys Mentoor, who was
preparing Mrs Wienand's bed for the night, heard the side door to the house
being opened. She paid
no attention, thinking that it must be Present Kula. Then
she felt a hand at the back of her neck and another across her eyes. She
heard
the voices of two people. They pulled her down and strangled her. They wanted to
know where the white people were. She replied
that they were not there. She was
lying on the floor and they kicked her in the stomach. One of them left the
room, and he was followed
by the other. She went out of the bedroom, and when
she got to the kitchen, found the door open. She ran outside,
screaming,
5
towards the farm labourers' houses. She reported that there was something
going on at the farm.
When the two men left Gladys Mentoor, they
went to the lounge. There Mrs Wienand and her husband were listening to the news
on the
radio. One of the men, who was wearing a balaclava, went towards Wienand;
the other came towards Mrs Wienand. They were aggressively
demanding, "Where's
money, where's money . . ." They pulled the Wienands from their chairs and
pushed and kicked them down the passage
towards the bedroom, saying repeatedly
"Where's money, where's money ..." Mrs Wienand went to her cupboard from which
she took a
purse containing about R80-00, which she gave to one of the men. The
other man took Wienand's wallet from a drawer. He started kicking
6
Wienand, who had a disability from the effects of an old rugby injury. As
Mrs Wienand moved towards her husband in order to help him,
one of the men
kicked her in the stomach. Wienand pulled himself up from the floor and said,
"Just don't be so rough, I will find
the keys and I will give you the money." At
that moment a shot went off and Wienand slumped to the floor, dead. After the
shot was
fired, all the intruders ran away. The Bedford police were
summoned.
On post mortem examination, the cause of Wienand's death was found to be
a gunshot wound on the front of the chest lacerating the
oesophagus and
aorta.
Arising out of this occurrence, four men were arraigned in the Eastern
Cape Division of the Supreme Court before a court consisting
of
7
Zietsman JP and two assessors. They were:
Accused No 1: Mabulu Michael Swartbooi;
Accused No 2: William Meyi Slatsha;
Accused No 3: Wiseman Sakatya; and
Accused No 4:
Shedi Nezile Dyantyi. Seven counts were laid to their charge, namely -
Count 1: murder of George Wienand;
Count 2: robbery with aggravating circumstances;
Count 3: house breaking with intent to rob;
Count 4:
kidnapping of Present Kula, alternatively assaulting Present Kula inside the
house inside the house;
Count 5: unlawfully pointing a firearm in contravention of
s.
8
39(1)(i) of Act 75 of 1969;
Count 6: assaulting Present Kula outside the house;
and
Count 7: assaulting Gladys Mentoor. All of the
accused pleaded not guilty on all counts. Their counsel informed the court, and
the
accused confirmed, that they denied all the allegations against them and
denied that they were at The Ruins on the evening in question.
The case against No 4 accused was never completed. He escaped from
custody during an adjournment and did not again appear at the trial.
Zietsman JP
directed that the case against him be deemed to have been separated from the
case against accused Nos 1, 2 and 3. In
regard to accused No 2, the trial court
considered that although there was a strong
9
suspicion that he was involved in the commission of the offences, there
was insufficient evidence to prove this. No 2 accused was
accordingly
acquitted on all counts.
The trial court convicted accused Nos 1 and 3 on counts 1, 2, 3, 5, 6 and
7 as charged, but acquitted them of the kidnapping charged
in count 4. The
alternative charge in count 4 of common assault fell away because the charge of
assault on count 6, was regarded
as encompassing the assaults on Present Kula
both inside and outside the house.
Accused No 1 was sentenced as follows:
Count 1, murder, 15 years' imprisonment;
Count 2, robbery with aggravating circumstances, 5 years'
imprisonment;
10
Count 3, housebreaking with intent to commit robbery, 2 years'
imprisonment; Count 5, unlawfully pointing a firearm, 6 months'
imprisonment;
and Counts 6 & 7, common assault, 3
months' imprisonment on each count. It was directed that all the sentences run
concurrently,
with the result that the effective sentence on No.l was 15 years'
imprisonment. Accused No 3 was sentenced as follows: Count 1, sentence
of death;
Count 2, 5 years' imprisonment; Count 3, 4 years' imprisonment;
11
Count 5, 6 months' imprisonment; and
Counts 6 & 7, 3
months' imprisonment on each count.
It was directed that the
sentences on counts 2, 3, 5, 6 & 7 should run
concurrently with the result that the effective sentence in respect of
these
counts was 5 years' imprisonment.
Accused Nos 1 & 2 were granted leave, where this was
necessary,
to appeal against all the convictions and sentences. At
the beginning of
the hearing, however, their counsel informed the
court that they were not
proceeding with the appeal against the
sentences on counts 2, 3, 5, 6 &
7.
Josephine Wienand, Present Kula and Gladys Mentoor were
the
first witnesses for the State. The account with
which this judgment
12
begins is a conflation of their evidence. None of them was able to
identify any of their assailants. The convictions of accused Nos
1 & 3
rested entirely on circumstantial evidence, and on respective statements which
they made - to a magistrate and a police
officer in the case of No.l; and to a
state witness named Thembisile Njobe in the case of No. 3. It will be convenient
to give separate
consideration to the case against each of them.
The case
against accused No.l
Accused No 1 said in his evidence that at the beginning of July 1991, he
was living and working on a farm named Albertvale. (This
lies about 10
kilometres to the south of Bedford.) On 3 July 1991 the accused left his house
at about 1 p m to go to a farm named
Vleiplaas,
13
in order to return to his sister who lived there a blanket, a sheet and a
bag which he had borrowed from her at the beginning of 1991.
Vleiplaas is a farm
situated about 2 kilometres from The Ruins. Walking and hitch hiking, he arrived
at Vleiplaas at about sunset.
After the shooting, a group of policemen from the Port Elizabeth murder
and robbery unit arrived at The Ruins to investigate the murder.
They included
W/O Pieter Joubert and L/Sgt de Beer.
On Thursday 4 July Joubert drove to Vleiplaas, where he noticed a group
of people standing in the sun. One of them appeared to be
frightened. It was
accused No.1. In answer to a question where he came from, No. 1 told Joubert
that he came from a farm on the other
side of Bedford and was just there on a
visit. Joubert took the accused to
14
Bedford police station for interrogation.
De Beer was the
investigating officer. He detained No 1 in connection with the murder at 16hl5
on Thursday 4 July 1991. Early on the
Friday the accused was taken from the
police station in order to point out suspects, and was then taken to Port
Elizabeth. There
he was interviewed by Col. Jonker, who was in command of the
murder and robbery unit there. The accused indicated that he wished
to make a
statement, and he made what the police called "a warning statement". At its
conclusion he said that he was willing to repeat
his statement to a magistrate,
and to point out the places which he had just mentioned.
At 2.45 p m on 5 July 1991, accused No 1 appeared before Mr C. E.
Schutte, a magistrate, in his office in Port Elizabeth. After answering
15
the usual preliminary questions, he made a statement which was produced
in evidence at the trial by the State. The admissibility of
the statement was
disputed by the defence and there followed a trial within the trial in the
presence of the assessors. At its conclusion
the trial judge ruled that the
statement to Mr Schutte was admissible in evidence beyond reasonable
doubt.
The body of the statement reads as follows:
"Op Woensdag so ongeveer 8:30 was ek oppad na Vleiplaas vanaf Bedford. Toe
ek naby die huise was het ek 2 manne ontmoet - ek was oppad
na my suster se
huis. Voor ek by die huis kon kom het die twee manne gesê ons moet terug
draai en na 'n ander plaas toe gaan.
Die plaas is bekend as Freddie se plaas.
Die twee manne se name was Meyana en Shelete. Ek via toe wat moet ons gaan doen
by Freddie
se plaas. Hulle het gesê ons gaan soek geld by
16
die oubaas by Freddie se plaas. Ons net toe so
gestap en daar is
'n voertuig pad en 'n grond pad en toe ons by die
grondpad kom
net ons ander twee manne ontmoet. Een van die manne net
toe 'n
haelgeweer gedra en die geweer net 'n verkyker. Ek het toe
agter
gekom dat Meyana en Shelete bekend is aan hierdie manne. Die
twee mansmense het toe aan my gesê dat hulle woonagtig is
te
P.E. Ons het toe gestap na die plaaseienaar se huis.
Ons 5 het toe daar gekom en om gegaan na die kombuis se kant.
Daar is toe twee werknemers daar - hulle is vroumense. Die 2
manne wat ons ontmoet het het toe gevra waar is oubaas. Die
vrouwerknemer se toe hy sit en T.V. kyk. Shelete en die 2
mansmense wat ons ontmoet het het toe binne gegaan en ons is toe
beveel om die vrouwerknemer te neem oorkant die huis sodat sy
nie kan bel nie. Toe ons die vrou daar moes gehou het het sy nie
gehuil nie - haar voorkoms was asof sy geskrik het. Toe ons die
vroumens nog daar hou het Meyana 'n mes by my geleen. Ek het
toe die mes gegee en hy het weg gegaan en ek het agter gebly by
die vroumens. Toe ek nog so staan daar buite het ek 'n skoot van
17
die huis af gehoor. Hierdie 3 manne het toe uit die huis
uit
gehardloop en Meyana was ook tussen hulle. Hulle het toe
verby
my gehardloop en toe los ek ook sommer die vroumens en
ek
hardloop toe ook. Shelete het my vertel dat hulle geld gekry
het
so ongeveer R5000, maar ek is nie heeltemal seker nie. Ons
het
so langs die rivier gehardloop en dis gesê dat ons die
geld gaan
deel. Een van hulle het toe gesê dat hulle die
oubaas geskiet het.
Ek het toe na Vleiplaas gehardloop en met my
aankoms het ek
sommer geslaap. Ek het Shelete en Meyana die volgende
oggend
gesien. Die speurders het daar gekom en gevra of ek daar
werk
toe sê ek nee en hulle laai my toe op die voertuig en
hulle is toe
weg met my. Die gebeure wat gebeur het met die oubaas
pla my
want hy was 'n goeie man. Toe ek by die gevangenis kom het
ek
ook die polisie vertel. Na ek hulle vertel het het hulle
na
Vleiplaas gery om die manne te kry maar hulle het hulle nie
gekry
nie. Hulle het ook die helikopter gebruik. Hulle is
vroeg
vanoggend gevind deur die polisie. Daar die ander 2 manne
wat
gese het hulle is van P.E. het ek nog nie gesien nie en ek
ken
18
hulle nie. Die geld het ons ook nog nie gekry nie. Mense wat hulle kan ken
is Shelete en Meyana want Meyana kom van die P.E. af. Die
is al wat ek gesien
het."
On the morning of Monday 8 July 1991 No 1 accused
was brought before Capt JG du Plessis of the South African Police in his office
at Port Elizabeth. In the course of questioning he told the captain that he
wished to point out "waar ek die 'girl' gevang het."
The two left Port Elizabeth
at llhOO accompanied by an interpreter. On the directions of the accused they
drove to Bedford. The accused
then directed Capt du Plessis to "The Ruins." The
following contemporaneous notes by Du Plessis record what then
occurred.
"Besk. dui aan dat ons met 'n pad agter die huis verby ry. Besk.
19
wys 'n klein hekkie aan die agterkant van die huis uit. Deel mee dat ons
na die huis moet gaan, neem ons na die agterdeur en binne
die kombuis wys hy die
plek uit waar hy en Meyana die vrou gegryp het en haar uit die huis uit geruk
net. Hulle het die vrou gevat
tot by die hek - klein hekkie aan agterkant van
huis. Hulle het haar geneem tot in bosse anderkant die hekkie. Haar daar
vasgehou.
Thelete en die 2 mans van die Baai het toe die huis ingegaan, na 'n
ruk het ek 'n vuurwapen skoot gehoor. Terwyl besk. en Moyana
in die bos die vrou
vasgehou het, het Meyana 'n mes gevra en besk, het sy mes aan Meyana gegee wat
met die mes ook na die huis gegaan
het. Besk. deel mee dat een van die swart
vroue wat nou by die huis werk is die vrou wat hy die aand
20
vasgehou het. Besk. wys 'n vet swart vrou uit as die vrou wat hy die aand in
die kombuis gegryp het. . .
NS Die vrou wat besk. op die
plaas uitgewys het was tussen 4 ander swart vroue. Stel vas dat haar naam
Present Kula is." The admissibility
of these notes in evidence was not
challenged. Indeed, they were put in by the defence, and accused No.l agreed in
answer to a question
by his counsel that he was not forced to do the pointing
out, and admitted that the notes recorded what he had said to the police.
But
when asked whether he told the police what actually happened, he
replied:
"I was not really serious, I just took it for granted. I did not really know
that it was in fact what actually
happened."
21
He said that the source of what the statement contained was Maswili, a
sergeant in the South African Police who assisted in the investigation.
Maswili
related this while they were on their way to Vleiplaas to look for suspects. "He
was talking to other policemen who were
in the combi, I was listening."
This story is unacceptable. There were details in the statement which
could not have come from Maswili - for example his journey to
Vleiplaas; his
arrival there; his meeting with Mayana and Sheleti; their walk to Freddie's
farm; and his identification of Present
Kula. Apart from its fatuity, the story
leaves it unexplained why he should have felt impelled to want to point out
"waar ek 'die
girl' gevang net," or why he, an innocent man, should enmesh
himself in the web which was being
22
revealed.
The thai judge's rinding that No.l's confession was admissible in
evidence was not challenged on appeal. What was argued was that
the confession
could not safely be relied on because there were statements in the confession
which were clearly incorrect.
It is plain that where the case against an accused is the
single
evidence of a confession the court must, before
it can satisGed that the
accused is guilty beyond reasonable doubt, examine whether the
confession is reliable. In
S v Kumalo
1983(2( SA 379(A) Botha JA
said
at 383 G - H:
"In general, the danger of an innocent person freely and voluntarily
confessing to a crime he did not commit is no doubt slight
(R v Sikosana
1960(4) SA 723(A) at 729C), but it is
23
nevertheless real: and, when once it appears that a purported confession
contains a material untruth, as is the position here, the
need for the Court to
be on its guard against the danger of the confession being false in its essence,
ie as to guilt of the 'confessor',
is immediately more compelling. Experience in
the administration of justice has shown that people occasionally do make false
confessions,
for a variety of reasons."
It was argued on behalf of accused No 1 that the confession was not
reliable by reason of the evidence of three witnesses, namely,
Moxolo Kwetha,
Shelete Simon Joni, and Poni April, who were called by the defence in an attempt
to show that at the time of the occurrence
accused No 1 was at farm Vleiplaas,
and so could not then have been at The Ruins.
In evaluating this evidence, the time of the occurrence is of
crucial
24
importance. The evidence of Mrs. Wienand, which was not disputed and was
accepted by the trial court, was that the occurrence took
place at ten minutes
past seven, when she and her husband were listening to the weather report on the
radio. At Bedford in July it
is quite dark by 6 p m, and the evidence of Present
Kula was that it was already dark when the intruders entered the kitchen of the
Wienand home.
Moxolo Kwetha is a girl who lived with her mother, the accused's sister,
at Vleiplaas. She knew accused No 1 and accused No 2, whose
name she gave as
Mayana. She said in her evidence that No.l had passed the home at dusk on the
Wednesday the day before he was arrested.
It was not dark. He was going to visit
Sheleti Joni. Later that night he came back from Sheleti Joni and it was then
that they were
told
25
by Poni April that the white man had been killed at Freddie's farm. It
was then dark.
Shelete Simon Joni said that when accused No 1
arrived at his house "definitely it was dusk, it was really not dark, but it was
twilight."
He said that No 1 was there for a short time ("less than an hour")
before Poni arrived. When Poni arrived there, 'it was just after
twilight'. . .
but definitely not late ..."
Poni April said that on his return from work at about 5.15 p.m on the
Wednesday of the occurrence, he went to fetch wood in the company
of Mayana
(accused No.2) because it was winter it was already a little bit dark when a
police van appeared. The van stopped and the
police informed them that five
people wearing balaclavas had shot baas
26
George Wienand. The time was about 7 o'clock. He was wearing a watch.
When it was put to the witness during cross examination by the
State that it
must have been 9 or 10 o'clock at night when the police spoke to them. Poni
replied -
"No at that time at night, what can you do on the road, at this time, late
at night, what can you do on the road."
This evidence
does not prove an alibi for No.l even as a reasonable possibility.
Moxolo Kwetha saw the accused passing her mother's home at dusk, and she
did not see him again until Poni April reported that Wienand
had been murdered.
Thus she had no knowledge of what accused No.l did in the interval.
27
According to Sheleti Simon Joni, when Poni April arrived with news of the
murder,
after the occurrence
, it was just after twilight. This cannot be
true.
Similarly Pom's evidence that he was told by the police at about 7 p.m
that Wienand been murdered cannot be correct.
In the result the evidence of the alibi witnesses did not throw any doubt
on the correctness of No.l's statement.
Counsel for the appellant submitted that there were other discrepancies
which pointed to the conclusion that the statement was not
reliable.
Some point was sought to be made of the fact that whereas Present Kula
said that she saw four intruders at the scene, the confession
refers
28
to five participants. This is not a real contradiction. Present Kula saw
two men in the kitchen and a group outside ("two or so").
Then reference was made to the first sentence in the confession. "Op
Woensdag so ongeveer 8.30 was ek op pad na VIeiplaas vanaf Bedford."
(See also
the record of the preliminary questioning of the accused: "18. Wat is die datum
van die gebeurtenis in verband waarmee
u die verklaring wil aflê: Woensdag
- eergisteraand ongeveer 8.30/)
The time 8.30 was obviously incorrect, but the error is not such as to
suggest that the confession was false in its essence.
There are other differences between what is contained in the statement
and the evidence given by Present Kula. In answer to the
29
question "Where are the white people?, her evidence was that she said
that they were away from home, while No.l said in his statement
that she said
that they were watching TV. No.l referred to the fact that one of the two men
they met was carrying "'n haelgeweer...
en die geweer net 'n verkyker." I do not
think that these difference were material or throw any doubt on the
trustworthiness of the
confession.
In my opinion there is so much correspondence on points of detail between
Present Kula's evidence and what is contained in the accused's
statements and
between the statement to Schutte and what was said to Du Plessis during the
pointing out, that there is no reason
to doubt the truth of these documents in
all essential particulars.
On the evidence it is clear that it was not accused No.l who
fired
30
the fatal shot, and that he was not present when it was fired in the
bedroom. Nevertheless it is equally clear that he was a full
participant in the
robbery in the course of which Wienand met his death. Accused No.l knew that one
or more of the other participants
was armed, and he must have realised that one
or more of the people in the house might be killed in the course of the robbery,
and
was reckless whether that occurred or not. In my view the trial Court was
correct in its finding that No.l was guilty of murder and
that his
mens
rea
was in the form of
dolus eventualis
, and that he was also guilty
(subject to what is said later in regard to counts 2 and 3) on the remaining
counts.
The case against accused No.3
The main witness against accused No 3 was Thembisile Njobe,
31
who described himself as a witchdoctor. He is a practitioner in Xhosa
medicine, using plant material collected in the forest. In 1991
he lived with
his wife at New Tims township in Fort Beaufort, which is about 40 kilometres
east of Bedford. Accused No 3, whom he
knew as "Wiseman", was a family
connection of Njobe's wife.
On Tuesday 2 July Njobe was at his house in New Tinis. With him was a man
named Bonani Mentoor, who used to visit him, and who had
apparently at some
stage lived at The Ruins. No.3 accused arrived at the house together with a man
named Dyantyi (accused No 4) and
Dyantyi's brother. No.3 said to Bonani, "Don't
you want money?" When Bonani said that he did, No. 3 said "Fine, lets go to the
farm
where you lived." He asked, "Who stays at the farm?" Bonani answered,
"The
32
people who stay there, it's the missus and the oubaas. I know the money,
where the money is there, I know where the money is." Njobi
noticed that No.3
had a gun protruding from the waistband of his trousers.
On the following morning 3 July 1991, No 3 borrowed R30 from Njobe's
father in law, and said that they were going to Bedford. He,
Bonani, and the two
Dyantyi's, left in the afternoon.
On the next day, the Thursday, Njobe returned to his house at about 8
p.m. He found No 3 and Bonani there. No 3 was complaining of
an injury to his
left knee and of scratches on the shin of his left leg, which he said had been
caused by thorns. He explained that
they had gone to Baas George Wienand to look
for money, and but they had only got R50. He sustained his injuries when they
ran away
from a patrolling
33
helicopter.
Njobe overheard Bonani and No 3 talking to each
other about the , wrong thing they had done. No 3 said, "If you people had tied
that
white woman and that white man and those girls, we would have got the money
then." Bonani said to No 3, " You shouldn't have shot
because I know where money
is, because I used to work there." No 3 then said, "I had to shoot him because
you did not tie him."
Njobe said that he did not then believe that No 3 had shot Wienand. But
he did believe it on the Friday when he went to Bedford to
work in the location
there and heard that there were people who had shot Mr George Wienand, and that
people had been arrested. He
then went to a policeman called Maswili and told
him that the people who
34
shot the white man were at his place. He gave the names of Bonani and
Wiseman (No 3 accused) as the people who shot the white man.
When he
got home from Bedford, Njobe found No 3 there. He saw him taking a gun, which he
identified as exhibit 2, from a hole in tile
ceiling. No 3 said that he was
going to hide the gun.
On 26 July 1991 accused No 3 was arrested at Fort Beaufort. In his
possession was found a gun, exhibit 2. It was established by the
ballistics
evidence that this was the gun with which Wienand was killed.
It was submitted on behalf of No 3 accused that Njobe was a single
witness to whom the cautionary rule applied, and that his evidence
was not
truthful and reliable.
The trial court considered that there was ground for criticism
of
35
Njobe as a witness in some respects. As was pointed out in the judgment,
however, much of what Njobe says he heard from accused No
3, and much of what he
observed on 2, 3 and 4 July 1991, was shown by other evidence to be true. The
pistol exhibit 2 which Njobe
saw in the accused's possession on 4 July 1991, and
with which Wienand was shot, was found in the possession of No 3 on 26 July
1991.
Accused No 4 was one of the group which on 2 July planned the attack on
the Wienand home and his palm-print was found on the side
door of the house
through which access was obtained to the passage leading to the bedroom and the
lounge. No 3 told Njobe that his
left leg was injured by thorns on 4 July, while
he was running away from a helicopter. According to police evidence, a
helicopter
was patrolling the Bedford
36
area in a search for suspects on 4 July.
I agree with the
rinding of the trial court that there is no doubt on the evidence that No 3
accused participated in the operation
and that it was accused No 3 who fired the
shot which killed Wienand.
The conclusion is that No 1 and No 3 accused were both properly convicted
of murder. It follows that, subject to what will be said
in regard to counts 2
and 3, they were correctly convicted also on the remaining counts.
Appeals
against sentence in respect of count 1.
The trial court found the following to be aggravating factors
which
applied to both accused:
"The attack by the accused and the persons who accompanied them upon the
deceased and his wife, with the intention of robbing
37
them, was premeditated and planned. The evidence shows that
they went to the farm with the intention of obtaining money by
robbing the occupants of the house. The offences included an
attack on elderly people at night, in their own home on an
isolated
farm. This type of offence is very much on the increase
throughout the country and particularly within the area of
jurisdiction of this Court. The shooting and killing of the
deceased
was senseless and entirely unnecessary. The deceased and his
wife
were helpless victims who put up no resistance but were prepared
to hand over to their attackers whatever they wanted. Despite
their
complete submission to their attackers they were struck, and
kicked and treated roughly before the unnecessary, senseless and
brutal shooting and killing of the
deceased."
Subject to my reservation on the question:
whether the killing of the deceased was with
dolus directus
. I entirely
agree.
In passing sentence on accused No 1, the learned trial
judge
38
referred to his personal circumstances. He is about 32 years old, is
un-married and has no children. He is unsophisticated and illiterate.
He has
spent almost his whole life on a farm, and in July 1991 was earning R300 per
month as a kudu herder. He did not play a leading
role in the commission of the
crimes. On the other hand he associated himself with
and assisted in its perpetration. He accompanied the other robbers,
knowing what their purpose was, and knowing that at least one of them had
a firearm. He himself had a knife which he gave to one of
his fellow attackers
before the other ran off to enter the house. However, the trial judge considered
that the sentence of death
was not the proper sentence in his case - because he
did not play a leading role, because of his personal circumstances, because
he
had only one previous conviction
39
(for theft of poultry, in October 1985) and because he can probably be
rehabilitated. (Added to this, it may be mentioned that he
appears to have
experienced some remorse. He made a full confession within two days of the
murder and told Mr Schutte, the magistrate,
that he did so for |
the reason that "Die gebeure wat gebeur het met die oubaas pla my
want
hy was 'n goeie man." Nevertheless, the trial judge said, accused No 1
had been convicted of extremely serious offences. "Attacks on
helpless
elderly people in their own isolated homes constitute particularly
serious
offences and society demands that they be treated as such."
No l's counsel submitted that the trial court failed to consider how and
when he joined his companions - there was no evidence to
gainsay what he said in
his confession, which indicated that he was never part of
40
the planning of the robbery; and that his role was relatively
minor.
In the circumstances the sentence of 15 years' imprisonment
was
excessive.
In my view there is doubt as to the truth of No 1's assertion in his
confession, that it was while he was on his way to his sister's
house that he
fortuitously met Meyane and Shelete who said they must turn around and go to
Freddie's farm to look for money. The
accused did not live in the area, and the
reason he gave for undertaking the four-hour journey from Allanvale was
unconvincing.
As to his allegedly minor role, it was nevertheless an essential one. His
task was to neutralise Present Kula and to ensure that she
did not frustrate the
proceedings by giving the alarm.
41 I am not persuaded that the sentence of 15 years' imprisonment
in
respect of count 1 was inappropriate.
In respect of accused No 3 the trial judge said that he was 27
years
old. He did not grow up with his own parents, but
was looked after by
his paternal grandparents. According to a psychiatric report, his
intellectual level was at the lower end of normality. He had little,
if any,
education. He played a leading role, if not the leading role, in committing the
offence. He had previous convictions including
several for housebreaking with
intent to steal and theft. A little more than three weeks after this occurrence,
he used exhibit 2
in committing the offence of attempted murder.
It was submitted on behalf of No 3 that the trial court was in
error
42
in fiding that he was the person who fired the fatal shot: this was not
the only reasonable inference from the proved facts. I do
not agree. He admitted
in the presence of Njobe that he fired the shot. Njobe's evidence was that he
saw a firearm in the possession
of No 3 on 2 July. He saw No. 3 take exhibit 2
from a hole in the ceiling on 4 July. No 3 was in possession of exhibit 2 on 26
July.
In the judgment on sentence, Zietsman JP said that the third accused was
the one who "deliberately" fired the shot which killed Wienand,
and that his
intention was in the form of
dolus directus
. What it was which caused
No.3 to fire the shot does not appear from the evidence, but I am not sure that
the finding was justified
that No.3 fired deliberately in order to kill Wienand.
The shooting took place at a time
43
when Wienand was ready to cooperate with the robbers, and it is unlikely
that No 3 would in such circumstances have fired with a direct
intention
to kill him. Nevertheless, I do not think in the circumstances that
it
would be a mitigating factor that the form of intention was
dolus
eventualis
.
In my opinion the sentence of death in the case of accused No 3 was the
proper sentence. However, in view of the fact that the constitutional
court is
to pronounce on the question whether the death sentence is constitutional, this
aspect of the appeal will not be disposed
of at this stage. See
S v
Makwanvaneen 'n Ander
1994(3) SA 868(A) at 873 C-F.)
Counts 2 and
3
.
44
Counts 2 and 3, should not have been charged separately. The
rule
is stated in
Burchell and Hunt
. SA Criminal Law and
Procedure, Vol II,
2nd ed. 724:
"Where the crime for the purpose of committing which the housebreaking
takes place is actually perpetrated, the two crimes, viz. housebreaking
with
intent to commit the crime in question and that crime, are chargeable in one
count of an indictment, and should not be prosecuted
separately." See the cases
cited in note 216 on p. 724.
Consequently the convictions on counts 2 and 3 cannot both stand. It may
be that the convictions on count 2 could be set aside and
that count 3 be
amended to allege housebreaking with intent to rob and
45
housebreaking with intent to rob and robbery with aggravating
circumstances. However, no practical purpose would be served by an amendment,
because of the directions of the trial court in regard to the concurrent viewing
of sentences. The convictions and sentences on count
3 will therefore be set
aside.
The following order is made:
1. In respect of
accused No 1:
(a) The conviction and sentence in respect of count 3 are
set
aside.
(b) The appeal against the convictions and sentences in
respect
of counts 1, 2, 5, 6 and 7 is
dismissed.
2. In respect of accused No
3:
46
(a)
The conviction
and sentence in respect of count 3 are set
aside.
(b)
The appeal against
the conviction in respect of count 1 is
dismissed.
(c) The disposal of the appeal against the death sentence
on
count 1 is postponed to a date to be arranged by
the
Registrar in consultation with the Chief Justice.
(d) The appeal against the convictions and sentences in
respect
of counts 2, 5, 6 and 7 is
dismissed.
ACTING JUDGE OF APPEAL VAN
HEERDEN JA)
CONCUR VIVIER JA)