S v Masemeni (304/95) [1997] ZASCA 34 (2 May 1997)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Murder — Conviction and sentence — Appellant convicted of murder and other charges arising from armed robbery — Appellant's appeal against conviction for murder — Evidence presented at trial included eyewitness accounts and appellant's own statement — Trial court found appellant's testimony unreliable and rejected claims of coercion — Appeal dismissed, conviction upheld as evidence supported trial court's findings and appellant's guilt established beyond reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal to the Supreme Court of Appeal against a conviction and sentence arising from a violent armed robbery at a farmhouse, during which an elderly man was fatally shot. The appeal was brought in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977.

The parties were Amos Malesela Masemeni (the appellant, described at trial as “accused 2”) and the State (the respondent). The appellant had been tried in the Transvaal Provincial Division before Els J and assessors together with two co-accused. Charges against “accused 1” were withdrawn at the commencement of the trial because that accused had disappeared. “Accused 3” was acquitted on all counts. The appellant was convicted on multiple counts, including murder, and was sentenced to death on the murder count under the law as it stood at the time.

On appeal, counsel for the appellant did not persist with the appeal against conviction on the murder charge when the matter was argued in the Supreme Court of Appeal. The judgment nonetheless outlined the factual background briefly because it was considered relevant to the sentencing issue. The primary focus of the appeal outcome became the validity and replacement of the death sentence in light of subsequent constitutional developments.

The general subject-matter of the dispute was therefore twofold: the appellant’s criminal liability for murder (in the context of joint participation in a robbery) and, more centrally for purposes of the appeal’s disposition, the proper consequence of the Constitutional Court’s invalidation of the death penalty for an already-imposed death sentence.

2. Material Facts

The court treated as undisputed the core events described by Mrs Valerie Alice Engels, the surviving victim, regarding the home invasion and shooting. During the early hours of 12 April 1992, she and her husband, Kennith Engels (the deceased), were awakened first by a loud blow inside their house and later by continuing noises. They moved down the passage toward the living area to investigate. The deceased carried a firearm. Mrs Engels turned back to fetch a torch; before she could return, she heard shots. She found the deceased near the glass door between the passage and the living area, and he told her he had been shot; she observed he had been hit in the stomach.

It was accepted that an attempt to summon help failed because the telephone line was dead, although it had worked earlier that evening. Mrs Engels decided to drive the deceased to hospital. Outside the house she was confronted by a man who ordered her to stop and threatened to shoot her. A second attacker then appeared and struck her twice on the back with a piece of wood. Mrs Engels managed to turn and tackle her attacker with her handbag, causing him to fall. The deceased came outside and fired two shots. The attackers fled into the bushes.

As Mrs Engels drove the deceased to hospital, shots were fired at the vehicle, one striking the left rear window and another striking the windscreen on the driver’s side. The deceased died shortly after arrival at hospital. When Mrs Engels returned home later that morning, she found various items missing; those items were later recovered by the police.

The medical evidence accepted by the court was that the deceased died from a gunshot wound to the stomach that penetrated the liver and caused fatal haemorrhaging, and that there was also a second superficial gunshot wound to the stomach.

The evidence of the police officers who arrived early that morning established the manner of entry and certain objective features of the scene. The perpetrators gained entry by breaking a large living-room window using a brick and stones that had been thrown through the window, which the police found on the floor. The court highlighted this as indicative that the intruders did not act with concern about being heard. Two bullet holes were present in the door leading from the living room to the passage, one passing through the door. In the passage opposite the bullet hole there were wood splinters, but no bullet mark or bullet was found, which was treated as suggesting that the bullet struck something in the passage. The police also found that the telephone wires had been cut at the pole outside the house.

The appellant was arrested on 14 April 1992. Later that day he led police to his room where one of the stolen items was recovered. On 15 April 1992, he made a statement before a magistrate. After a trial-within-a-trial, the statement was admitted against him. In that statement, the appellant described participation in the planned robbery, acknowledged knowledge that one participant had a firearm, described the shooting of the deceased by the armed participant, and described further events including the confrontation with Mrs Engels and shots fired at the departing vehicle. The statement also included an admission that the appellant struck Mrs Engels with a stick and that he fired a shot in the direction of the vehicle (even if, on the statement’s version, he did not successfully hit the wheel as intended).

The appellant’s trial testimony materially departed from his magistrate’s statement. He claimed that he had not known beforehand that a robbery would be committed, that accused 1 forced him at gunpoint to participate, and that certain incriminating aspects of the magistrate’s statement were false and were said on the instruction of accused 1. He also suggested that striking Mrs Engels occurred accidentally while attempting to prevent her being shot.

The trial court rejected the appellant’s evidence of compulsion and found that he was a willing participant who had prior knowledge that the victims were an elderly couple and that robbery was intended. The Supreme Court of Appeal, in addressing the factual background relevant to sentence, recorded that the trial court considered the appellant a poor witness whose evidence was riddled with improbabilities, and that there was no indication of compulsion in the magistrate’s statement.

3. Legal Issues

The court was required to determine, first, the fate of the appeal against conviction on the murder charge in circumstances where the appellant’s counsel did not pursue it at the hearing. Although the appeal against conviction was not argued, the court still had to make an order disposing of it.

Second, and decisively, the court had to determine the appropriate appellate response to a sentence of death imposed before the Interim Constitution came into force, given that the Constitutional Court had subsequently held the death penalty invalid and ordered that already-imposed death sentences could not be carried out.

The issues largely concerned the application of constitutional and sentencing consequences to established facts and procedural posture, rather than the resolution of new factual disputes on appeal. To the extent that the judgment touched on culpability, it did so at the level of confirming that the conviction rested on murder with “possibility awareness” (dolus eventualis), based on the appellant’s knowledge of the firearm and reconciliation with the risk of fatal consequences during the robbery.

4. Court’s Reasoning

The court noted that the appellant’s counsel did not proceed with argument on conviction, but the judgment nonetheless summarised the factual matrix insofar as it bore on sentence. It accepted the trial court’s rejection of the appellant’s compulsion defence and recorded that the appellant’s trial evidence was properly rejected as improbable and inconsistent with his earlier magistrate’s statement. The judgment emphasised that it was common cause that the appellant knew, before entering the house, that the armed participant had a firearm, and in the circumstances it was clear that the appellant foresaw that the firearm could be used during the robbery with potentially fatal consequences and nevertheless continued. On that basis, the conviction was described as correctly resting on murder with dolus eventualis.

On sentence, the court treated the constitutional position as determinative. The death sentence had been imposed and the trial concluded before the Constitution of the Republic of South Africa 200 of 1993 came into operation. Thereafter, the Constitutional Court in S v Makwanyane and Another 1995(6) BCLR 665 (CC) held that from the date of the order in that case the death sentence was not a valid sentence and that death sentences already imposed could not be executed. The court reasoned that, as a direct consequence, the death sentence imposed on the appellant could not stand and had to be set aside and replaced with another sentence.

As to the mechanism for replacement, the court concluded that the appropriate course in the circumstances was not for the Supreme Court of Appeal itself to impose a substituted sentence on the murder conviction, but rather to refer the matter back to the trial court for resentencing. The judgment thus reflects an evaluative choice about procedure and institutional role: given the circumstances of the case, resentencing by the original trial court was considered the fitting course.

5. Outcome and Relief

The court made an order that the appellant’s appeal against conviction on the murder charge was dismissed. The court upheld the appeal against sentence to the extent that the death sentence was set aside.

The matter was remitted to the trial court for the imposition of an appropriate sentence on the murder charge in substitution for the invalid death sentence. The judgment did not record a distinct costs order.

Cases Cited

S v Makwanyane and Another 1995(6) BCLR 665 (CC)

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 316A(1))

Constitution of the Republic of South Africa 200 of 1993

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the appellant’s murder conviction remained in place and the appeal against conviction was dismissed. It held further that, because the Constitutional Court had declared the death penalty invalid and prohibited the execution of previously imposed death sentences, the death sentence in the present case could not be carried out and had to be set aside. The case was therefore referred back to the trial court for the imposition of a fresh, lawful sentence on the murder count.

LEGAL PRINCIPLES

A conviction for murder may be sustained on the basis of dolus eventualis where an accused, participating in a robbery, foresees that a co-perpetrator armed with a firearm may use it with potentially fatal consequences and the accused nevertheless reconciles themself with that risk and continues with the enterprise.

Following S v Makwanyane and Another 1995(6) BCLR 665 (CC), the death penalty is not a competent sentence, and death sentences imposed prior to that decision may not be executed. Where a death sentence has been imposed, an appellate court must set it aside and ensure its replacement by a lawful sentence, which may include remittal to the trial court for resentencing where appropriate.