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1992
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[1992] ZASCA 143
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S v Mquabasi and Others (283/91, 234/91) [1992] ZASCA 143 (15 September 1992)
Case nr 283/91 & 234/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
M. B. MQUABASI
First Appellant
A. E.
RABI
Second Appellant
M.S. QOWA
Third Appellant
E.M.
MALGAS
Fourth Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, EKSTEEN, F H GROSSKOPF, JJA
HEARD
: 21 August 1992
DELIVERED
: 15 September 1992
JUDGMENT
2
E M GROSSKOPF, JA
The four appellants were charged in
the South Eastern Cape Local Division on a number of charges. After a long trial
they were convicted
by JANSEN J and assessors of murder (count 1), attempted
robbery with aggravating circumstances (count 2), the unlawful possession
of a
firearm (count 3), and unlawful possession of ammunition (count 4). The third
and fourth appellants were also convicted of the
theft of a fire-arm, money and
an attache case (count 6). All four appellants were sentenced to death on the
murder charge and to
ten years' imprisonment for the attempted robbery. In
respect of the other offences various terms of imprisonment were imposed. In
terms of section 316 A of the
Criminal Procedure Act, no. 51 of 1977
, the
appellants have an automatic right of appeal in respect of the murder count
against conviction as well as against the sentence
of death. In addition the
Court
a quo
granted them leave to appeal against their convictions and
sentences on the count of
3
attempted robbery, and granted the second appellant leave to
appeal against his convictions and sentences on the counts of unlawful
possession of a firearm and ammunition. The latter appeal was not pursued before
us, and no more need be said about it.
The evidence may be summed up as follows.
It is common cause that on 21 October 1988 the third and fourth appellants
stole an attache case belonging to one Cloete. The attache
case contained
personal documents, cash, and a .38 special revolver, which later became exhibit
2 at the trial.
A witness Ninzinana testified that he knew the four
appellants, and was a particular friend of the second appellant. On Wednesday
afternoon 23 November 1988 he visited the second appellant. He found all four
appellants and one Nunu in the room of the second appellant.
When he arrived the
first appellant was saying that he needed money to undergo the circumcision
ceremony, and that they should
4
rob a service station at Threeways in New Brighton, Port
Elizabeth. The other appellants expressed their willingness to do so. The
first
appellant also suggested that they should take money from Brito's, a bakery in
the area. The third appellant was in possession
of a firearm similar to exhibit
2, which he took out and placed on the floor. The first appellant proposed that
the robbery should
take place on the following day. The three other appellants
were in apparent agreement with him. However, the witness Ninzinana told
the
others that it would be hard for him to join them in the robbery because he was
under treatment - some time previously he had
been stabbed in his neck and had
sustained an injury which affected his speech and the use of his hand. Ninzinana
left after about
ten minutes.
It is common cause that on the following
morning the four appellants went to the vicinity of a shop in New Brighton
called Pinkie's
Enterprise. Daily deliveries of bread and cake were made to this
shop by the delivery van of
5
Brito's bakery. William Ngana, a van assistant in the employ of
Brito's, testified that on that day he and one Nomnganga accompanied
the driver
of the van, one Mugabo, on their rounds. It was a part of the driver's duties to
take charge of money received. They arrived
at Pinkie's after 10 a.m. The two
assistants alighted from the van, delivered the bread to the shop, received the
money for it, and
returned to the van. During this period the driver stayed
behind the steering-wheel of the van. The two assistants climbed back into
the
van. Immediately thereafter a person (and it is common cause that this was the
first appellant) appeared at the driver's side
of the vehicle, pointed a
fire-arm (which was wrapped in a cloth) at the driver, and said "give money,
give money, give money". While
he was saying this, the person tried to open the
door, but it was locked, and then a shot rang out. The two assistants jumped out
and ran off, leaving the passenger's door of the van open. When he looked back
Ngana saw three people coming around to the passenger's
6
side of the vehicle. The door on that side was still open. One
of them got into the van and searched the driver. Two remained standing
at the
door. Thereafter the three of them ran away. When they entered Maguga Street,
about half a block away, a fourth person had
joined them.
The driver climbed
out of the van, stumbled to the back of it and collapsed there. He had been shot
in the mouth and neck and died
shortly after collapsing.
The events were also
described by one Bongani Blom. On the day of the robbery he went to a service
station situated next to Pinkie's
Enterprise to have a battery recharged. While
he was waiting for his receipt he heard a shot and went to look what had
happened.
He saw the two van assistants run across the street. Three Black men
were standing at the passenger side of the van. The door was
open. One of them
climbed in and looked around while the other two remained standing outside. The
one who had been inside, emerged,
and they ran away towards Maguga Street.
7
The driver of the van got out, walked towards the back of the
vehicle, and collapsed. Under cross-examination Blom said that one of
the three
persons who ran away had a gun in his possession. He did not see a fourth person
following them.
Evidence was also given by one Ndanele Siyaka, who
accompanied Blom on the day in question. He purported to identify appellants 3
and 4 as two of the persons on the scene. However, the trial court had a number
of reservations about the reliability of his evidence,
and decided to leave it
out of account.
At a fairly late stage in the proceedings, the court called
Pinkie Mtshanyana, the owner of Pinkie's Enterprise. He testified that
he was
busy washing himself in a room behind his shop when he heard the shot. The bread
from Brito's had already been delivered.
He hastily put on a shirt and went
outside where he found the driver lying on the ground.
Further State evidence related to events after
the
8
killing of the deceased. Tibo Kojabi is the mother of the
second appellant. She testified that the second appellant told her on a
Friday
some time before the trial that he and the other three appellants had robbed a
man who worked at Brito's, and that the first
appellant had shot this man. It
had been the first appellant's idea. She was shocked to hear this and took the
second appellant to
his father, where he was subsequently arrested. This
evidence was of course admissible only against the second appellant.
The last
State witness with whom it is necessary to deal, is Mtungwa Ngekazi. He
testified that the third and fourth appellants sold
the revolver, exhibit 2, and
two bullets to him in the first week of December 1988. This evidence was not
disputed.
The four appellants all gave evidence. The first appellant denied
that any discussion had taken place on Wednesday 23 November 1988
as testified
to by Ninzinana. On 24 November, he said, he and the others smoked dagga
9
together. The first and second appellants wanted to go to the
beach to practice for a forthcoming soccer game. The third and fourth
appellants
decided to accompany them. The third and fourth appellants suggested that they
should sell the gun, exhibit 2, to Pinkie
in order to obtain money to buy food
for their day on the beach. The gun was handed to the first appellant for this
purpose since
he was unknown in the area. The first appellant said that he
examined the gun and found that it was not loaded. When they arrived
at Pinkie's
Enterprise, the first appellant alone went inside with the gun. According to his
evidence, he did not find Pinkie in
the shop, and had been told not to sell the
gun to anybody else. He therefore left the shop. As he emerged, he saw Brito's
van arriving,
and decided on his own, and on the spur of the moment, to rob the
driver. He went to the driver's side of the van and demanded money.
He pointed
the gun at the driver, and it went off accidentally. In his fright he dropped
the gun and ran away.
10
In broad terms this version was supported by the other
appellants although there were a number of discrepancies. They all admitted
to
running away after the shot was fired, although the second and third appellants
said that they had not realized that it was the
first appellant who had fired
the shot. The fourth appellant said that he saw the first appellant drop the
fire-arm, and that he
picked it up before also running away.
After a thorough
examination of the evidence, the trial court accepted the evidence of Ninzinana,
Nguna, Blom, Kojabi and Pinkie.
The evidence of the appellants was rejected as a
version which could not reasonably be true. In particular the court rejected the
evidence that any of the appellants thought the fire-arm was unloaded, that they
intended to sell it to Pinkie, and that it went
off accidentally when the first
appellant tried to rob the deceased. The court's main findings on the facts were
stated as follows:
"Ons bevind dat die Staat bo redelike twyfel bewys
11
het dat die beskuldigdes die roofpoging op Brito's reeds die vorige dag
beplan het en tot uitvoering gebring het op 24 November 1988.
Ons is nie tevrede
dat dit bewys is dat daar wel geld buitgemaak is nie. Dit doen egter nie afbreuk
aan die feit dat die beskuldigdes
wel 'n poging aangewend het om die oorledene
en Brito's se voertuig te beroof nie. Ons is van oordeel dat die Staat bo
redelike twyfel
bewys het dat die beskuldigdes 'n gemeenskaplike doel gehad het
om met hierdie vuurwapen,
BEWYSSTUK 2
, die roof te pleeg. Al die
beskuldigdes het geweet dat hierdie vuurwapen gebruik sou word om die oorledene
te beweeg om afstand te
doen van sy geld. Al vier die beskuldigdes het geweet
dat daar ammunisie in hierdie vuurwapen was. Al vier hierdie beskuldigdes moes
geweet het, en ons bevind dat hulle wel geweet het, dat hierdie vuurwapen
dodelik kan wees indien hy gebruik word. Ons bevind dat
die afleiding
onvermydelik is, as die enigste redelike moontlike afleiding, dat elke
beskuldigde subjektief voorsien het dat in die
uitvoering van hierdie beplande
rooftog die vuurwapen gebruik kan word en dat 'n persoon met die afvuur van 'n
skoot daardeur gedood
kan word. Ons bevind ook dat elke een van hierdie
beskuldigdes roekeloos teenoor hierdie besef gestaan het. Beskuldigde nr. 1 het
die oorledene opsetlik geskiet. Daaroor kan geen
12
twyfel bestaan nie. Beskuldigdes nr. 2,3 en 4 net hulle geassosieer met hierdie
daad van beskuldigde nr. 1 en dit maak hulle ook
skuldig aan die misdaad van
moord."
The court consequently found all four the
appellants guilty of murder and also guilty of attempted robbery with
aggravating cicumstances.
On appeal before us neither Miss Weyer (for the
first appellant) nor Mr. Redpath (for the second, third and fourth appellants)
questioned
the correctness of the trial court's rejection of the appellants'
evidence. The only credibility findings which were attacked were
those relating
to Ninzinana and the mother of the second appellant. As far as Ninzinana was
concerned, the court considered his evidence
with particular caution because he
was the only witness who testified to the discussion on the Wednesday. However,
not only did he
make a good impression on the court, but his evidence was
supported in a number of respects, of which one was particularly important.
It
will be recalled that,
13
according to Ninzinana, the first appellant planned the
robbery so that he would have money to pay for his circumcision. The first
appellant not only denied that this discussion took place, but asserted that he
had in fact already been circumcised. This assertion
was maintained until a late
stage of the proceedings when the court proposed settling this issue by having
the appellant examined
by a district surgeon. When the court's proposal was
conveyed to the first appellant he recanted and admitted that he was still
uncircumcised.
This
volte face
not only tends to discredit the first
appellant's evidence, but tends positively to support the evidence of Ninzinana:
it was not
suggested that there was any way in which Ninzinana could have known
that the first appellant was still uncircumcised other than
as a result of the
conversation to which he deposed. It will be recalled that he did not know the
first appellant well - he was present
on the afternoon in question because of
his friendship with the second appellant.
14
In my view no reason has been shown for doubting the
correctness of the trial court's finding on the credibility and reliability of
Ninzinana's evidence. The same applies to the evidence of the mother of the
second appellant. And, in any event, even without her
evidence the case against
the second appellant would have been as strong as that against the three other
appellants.
If the trial court's findings on the evidence cannot successfully
be impugned, as I believe the position to be, then its conclusions
on the guilt
of the appellants are in my view clearly correct. The appeal against the
convictions of murder and attempted robbery
cannot therefore succeed.
That
brings me to the appeal against the sentences. In regard to the count of
attempted robbery, Mr. Redpath submitted, on the authority
of
S. v.
Moloto
1982 (1) SA 844
(A), that on the facts the court
a quo
should
not have found that aggravating circumstances were present. Of course, even
15
in the absence of a finding of aggravating circumstances the sentence
on the attempted robbery charge was a competent one, but I assume
for the sake
of argument that this court might interfere with the sentence if such a finding
was not justified. I do not, however,
think that the finding was incorrect. The
evidence is that the first appellant pointed the fire-arm at the deceased, and
demanded
money. Clearly there was an implied threat that the fire-arm would be
used if money was not furnished. This by itself would have
introduced the
element of aggravating circumstances, even if no shot had been fired. See
S.v. Moloto
(
supra
) at p. 853 D to H. Whether in the circumstances
the actual shot can also be regarded as an aggravating circumstance need not be
considered
(cf.
S.v. Moloto
(
supra
) at p. 853 G). I consider
therefore that the court correctly found that aggravating circumstances were
present, and in my view the
sentence imposed for the attempted robbery was a
suitable one.
I turn now to the death sentences. The principles
16
to be applied in imposing death sentences have been settled in
a number of cases by this court, and there is no need to repeat them
here. Our
first task is to determine what aggravating or mitigating factors are present. I
commence with aggravating factors.
On behalf of the State it was argued that
the attack on the deceased was premeditated. It is true that an armed robbery
was planned,
but the inference cannot be drawn beyond a reasonable doubt that
the appellants had decided in advance that the driver of the van
would be shot.
Nevertheless the pre-planning remains an aggravating factor. Then it is said
that the motive for the murder was robbery,
and that such crimes are on the
increase. This is an aggravating factor of some weight. The State further
pointed to the lack of
remorse on the part of the appellants. Finally reference
was made to the previous convictions of the appellants. I do not propose
analysing them in detail. None of the appellants has a clean record. The first
and fourth
17
appellants have previous convictions for housebreaking and
theft. The second and third appellants had more violent pasts. Their records
include offences of violence committed with knives.
Finally, there was the
gratuitous and cold-blooded way in which the deceased was shot even before he
had a chance of complying with
the first appellant's demand for money. This
factor applies particularly to the first appellant since it cannot be said that
the
second, third and fourth appellants should have foreseen, or did foresee,
such conduct on the part of the first appellant.
I now turn to mitigating
factors. First, there is the question of youth. The first appellant was 21 and a
half when the offence was
committed. The others were some years older. This is
not a factor of any great weight. Despite his youth the first appellant was
the
instigator and main perpetrator of the crime. There is no suggestion here that
he was influenced by others, or that other facets
of an
18
immature personality affected his behaviour, except perhaps
youthful lack of judgment.
Then there is the nature of the intent with which
the murder was committed. It is accepted that at least the second, third and
fourth
appellants acted without
dolus directus
. The position of the first
appellant is more questionable, but even in his case one cannot, in my view,
infer beyond a reasonable
doubt that he had the direct intention to kill the
deceased. No doubt every person must know that there is a strong possibility
that
a person who is shot at close range might die as a result thereof, and one
can infer that the first appellant subjectively realized
this, but in my view
this is the furthest that one can go.
A further possible mitigating factor is
the use of dagga. All the appellants testified that they smoked dagga on the
morning of the
offence, and there is no reason to reject their evidence in this
regard beyond a reasonable doubt. Indeed, the trial court accepted
this
evidence, but
19
did not regard this as a mitigating factor because there was
no evidence that the use of dagga had influenced the appellants in a
manner
which could extenuate their conduct. In so finding, the court proceeded on the
basis that "[W]aar daar ... aspekte is wat
aan 'n beskuldigde persoonlik kleef,
soos byvoorbeeld die effek wat een of ander faktor op sy gemoedstoestand gehad
net, sal dit
uit die aard van die saak van 'n beskuldigde verwag word om die Hof
te oortuig dat daardie invloed 'n strafversagtende faktor daarstel."
The
judgment in the court
a quo
was delivered before this court decided in
S. v. Nkwanyana and Others
1990(4) SA 735 (A) that the onus is on the
State to negative, beyond reasonable doubt, the existence of such mitigating
factors as
are relied on by an accused (at p. 744 B). In the light of
Nkwanyana's
case it was wrong of the trial court to place an
onus
on the accused, even in respect of matters peculiarly within the accused's own
knowledge. Applying the test laid down in
Nkwanyana
's case it seems to me
that the use of dagga may, as
a reasonable possibility, have had an effect on
the actions of the appellants. This applies particularly to the gratuitous act
of
the first appellant in shooting the deceased even before he had an
opportunity to hand over the money demanded from him.
When one weighs up the
aggravating and mitigating factors it seems to me that this case, although a
very serious one, is not of such
exceptional seriousness as to render the
imposition of the death sentence imperative. The appellants are young men, and,
despite
their records, may well be capable of rehabilitation. The requirements
of deterrence, prevention and retribution can, in my view,
be sufficiently
served by long periods of imprisonment.
The final question then is what sentences should be imposed. Although there
are differences between the circumstances of the appellants,
they tend to cancel
out. The first appellant is the youngest and he has no record of violence. On
the other hand, as I have already
said, he was
21
the instigator and main perpetrator of the offence. The fourth
appellant also has a less serious record, but he was one of the persons
who
supplied the fire-arm with which the offence was committed. Taking all factors
into consideration I do not consider that we should
distinguish between the
different appellants. A long term of imprisonment is clearly called for, and I
consider that 25 years will
be appropriate. In the result the following order is
made:
1. The appeals against the convictions of all the appellants on counts 1 and 2,
and of the second appellant on counts 3 and 4, are
dismissed.
2. The appeals of all the appellants against their sentences for attempted
robbery (count 2) and of the second appellant against
his sentences on counts 3
and 4, are dismissed.
3. (a) The appeals of all the appellants against their death sentences on the
count of murder (count 1) are allowed and a sentence
of 25 years'
imprisonment substituted in respect of each. (b) The commencement of this period
of 25 years is, in terms of
section 282
of the
Criminal Procedure Act, no. 51 of
1977
, antedated to the date of sentence in the court
a quo
, being 23
August 1990, and the sentence of 25 years is to run concurrently with the
sentences imposed on counts 1,2,3,4 and 6.
E M
GROSSKOPF, JA
EKSTEEN, JA
F H GROSSKOPF, JA Concur