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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
JOSIAH TSAWANE .. FIRST APPELLANT
DANIEL MALEKA SECOND APPELLANT
and

THE STATE RESPONDENT

CORAM : CORBETT, BOTHA, VAN HEERDEN, STEYN JJA e_t

VIJLOEN AJA

HEARD : 2 SEPTEMBER 1988

DELIVERED : 30 SEPTEMBER 1988

JUDGMENT

VILJOEN AJA

On the night of 31 August 1985 and at Sebokeng,

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2. Vanderbijlpark, Velaphi Philemon Letsele, a security policeman (hereinafter referred to as the deceased), smartly dressed in a Carducci suit and a pair of CD-shoes, visited the shebeen of one Hlapane to have a few drinks with a friend of his whose name and identity were never revealed. The two appellants who were also having drinks at the shebeen became aware of the presence of the deceased. After a brief discussion between the two of them the second appellant stood up from where he had been sitting next to the first appellant, went up to the deceased, addressed him by remarking: "You are a policeman. You arrest Cosas. You dont belong here," took one of the bottles of beer in front of the deceased and his companion and either squirted or poured it over the deceased. The deceased and his companion, having obviously decided that discretion was the better part of valour, got up and left the shebeen. As they were leaving the first appellant picked up an empty beer bottle from the floor and broke it on the head of the deceased's companion

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3. whereupon the latter f led , with the two appellants in hot pursuit. After having chased him for some distance they returned and followed the deceased who was making his own way presumably in the direction of his home. When the deceased looked back to see who was pursuing him the second appellant struck him a blow on the forehead with a small axe which caused him to fall down whereupon the first appellant closed in and delivered two stab blows with a knife to the chest of the deceased. While the deceased lay there fatally wounded the first appellant removed his suit and the second appellant took off his shoes. The two then walked off. The deceased was removed to hospital but died on the way there. Both appellants were convicted on a charge of having murdered the deceased as well as on a charge of robbery with aggravating circumstances. On the murder charge, the Court held that in neither accused's case did extenuating circumstances exist and notwithstanding a finding that the first appellant was under the age of 18 years at the time of the commission of

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4. the offence, the learned trial Judge sentenced both the appellants to death, exercising, in the case of the first appellant, his discretion in terms of s 277(2) of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the Act). Thereafter the learned Judge allowed an application in terms of s 316(3) of the Act for the leading of further evidence in extenuation. Such evidence was heard by the Court a quo and forms part of the record before us. The learned Judge also granted leave to the appellants to appeal to this Court against sentence. In the case of second appellant this comprehended the finding that there were no extenuating circumstances. This appeal has therefore to be decided on the record as supplemented by the further evidence. By reason of this further evidence, which is material, this Court is now at large to determine for itself the existence or non-existence of extenuating circumstances.

During the trial on the merits the grandmother of

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5. the first appellant gave evidence on his behalf. She deposed that she was present when her daughter gave birth to the first appellant, according to her, in May 1969. The date of his birth was entered on a house permit which was issued to her shortly after the birth. She undertook to bring this permit to Court.

On behalf of the second appellant his mother testified. She handed in an abridged birth certificate which reflected the date of the second appellant's birth as 9 October 1966.

At the stage when the existence or otherwise of extenuating circumstances was enquired into the grandmother of the first appellant was called to produce the house permit which she had undertaken to bring to Court, which she duly did. On this permit only the year of birth of the first appellant, to wit 1969, is reflected. On the issue of the age

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of the first appellant a report by a radiologist was handed
in by consent. According to this report, which was prepared

on 15 May 1986, the radiologist, Dr De Villiers came to the
following conclusion:

"Dit blyk dus uit bogenoemde waarnemings dat
hierdie pasient ouer is as 16 jaar maar dat dit
baie moeilik is om te bepaal of hierdie pasient net
oor of net onder 18 jarige ouderdom is."
For the second appellant his father testified on

his behalf that his son had passed standard 3 at school. The
second appellant, he said, has an elder brother, Tommy, who
was arrested by the deceased on a charge of having committed
some political offence ("dit het iets te doen met die
politiek"), was convicted and sentenced to serve a term of

imprisonment.

In the Court's judgment on extenuation the learned trial Judge referred to Dr De Villiers' report and remarked that the first appellant was probably under the age of 18 years on the date of the commission of the offences, The second appellant, the Court correctly found, was 18 years and

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7. 10 months old on that date. The Court did not agree with counsel that the cumulative effect of the liquor they had consumed and the youthfulness of the two appellants constituted extenuating circumstances. It held that the appellants' speech was normal and their movements when they chased the deceased's companion, when they went after the deceased himself, and the deftness with which they overpowered and robbed him of his clothes, were not the actions of people whose faculties had been impaired by the consumption of liquor. The Court rejected the argument that the motive of the second appellant "synde om wraak te neem op 'n polisiebeampte wat in die uitoefening van sy plig beskuldigde 2 gearresteer het" constituted extenuation. On the contrary, said the learned Judge, it was an aggravating feature:

"Dit behoef, myns insiens, geen verdere betoog dat dié feit, verre daarvan dat dit as versagting aangemerk kan word, eerder as verswarend aangemerk kan word. Soos dit is, is dit algemene kennis dat polisie 'n moeilike taak het om uit te voer in

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hierdie ongelukkige tyd waarin ons lewe. Hulle is die skyf onder andere van roekelose jeugdiges wat dikwels die reg in eie hande neem en dit is presies wat beskuldigde nr. 2 daardie aand gedoen het. Myns insiens was die gemoedstoestand van hom dié van 'n persoon wat wraak wou neem op 'n polisiebeampte en is sy daad, myns insiens, meer laakbaar as wat dit andersins moontlik die geval sou gewees het."

In the case of neither appellant was extenuation found.

Thereafter the two appellants' previous convictions were proved and counsel for the appellants addressed the Court on mitigation of sentence. In turn counsel for the State requested the Court to exercise its discretion in terms of s 277(2) of the Act and to impose the death sentence on the first appellant on the murder charge. To this request the Court a quo acceded as appears from the judgment which reads:

"Die Hof is geroepe om by 'n oorweging van 'n gepaste

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vonnis die volgende faktore pertinent in aanmerking te neem benewens ander relevante faktore, waarna ook verwys is, naamlik die soort van persoon wat die Hof voor hom het, sy persoonlike omstandighede en alles wat in sy guns kan tel of teen hom kan tel. Dan moet die Hof in gedagte hou die aard van die misdaad en die wyse waarop die misdaad gepleeg is en laastens die belange van die gemeenskap.

Wat die twee beskuldigdes betref, is dit vir die Hof duidelik dat veral wat beskuldigde nr. 1 betref, hy 'n persoon is wat net in een rigting afgestuur het in sy hele lewe, naamlik dié van 'n persoon wat geen ontsag vir ander mense het nie. As in gedagte gehou word dat hy twee. vorige veroordelings gehad het voordat hy hom aan hierdie moord en roof skuldig gemaak het, so lank terug as Februarie en Maart 1984 waarin 'n mes gebruik is, en as in gedagte gehou word dat toe hy in November 1985 in die sorg van sy moeder was met 'n aanklag van moord en roof met verswarende omstandighede bo sy hoof, gaan pleeg hy weer h roof en gebruik weer h skerp voorwerp waarmee sy slagoffer 'n steekwond toegedien word ooreenkomstig die dokumente wat ingedien is, bo aan sy linkerskouer op 'n kwesbare plek van sy liggaam. Dit is, myns insiens, 'n aanduiding van die tipe van persoon wat die Hof voor hom het en waarvan word die klaer in Streekhof Saak 764/85 beroof? Van h leerbaadjie, sy hemp, sy skoene en h horlosie en R20,00 kontant.

Beskuldigde nr. 2 het h aanklag van moord en roof oor sy kop en wat doen hy? Hy gaan saam met beskuldigde nr. 1 en neem deel aan hierdie aanranding en roof in hierdie Streekhof saak

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764/85. Ek weet nie wanneer hy uit die tronk

uitgekom het nie, want hy het agtien maande
gevangenisstraf gekry, terwyl beskuldigde nr. 1
drie jaar gekry het.

Daar is dus ten spyte van 'n dapper poging aan die kant van mnr Landman, namens hulle, eintlik niks te sê vir die twee beskuldigdes as persoon en of hulle enigsins 'n verantwoordelike plek in die samelewing kan inneem nie.

Wat die misdaad betref, wil die Hof volstaan deur daarop te wys dat roof en moord ernstige misdade is, maar dat moord die ernstigste misdaad is wat 'n mens kan pleeg omdat die Skepper vir ons as mense net een lewe gegee het en daardie lewe is die kosbaarste besitting wat enige mens het en die wyse waarop hierdie moord gepleeg is, naamlik n beplande gewelddadige wyse, deur die gebruik van 'n byl deur beskuldigde nr. 2 en beskuldigde nr. 1 weer 'n mes, kan tog sekerlik nie geduld word in enige beskaafde samelewing nie.

Die belange van die gemeenskap, myns insiens, soos aangedui deur advokaat Leonard namens die Staat vereis dat die swaarste straf in hierdie besondere geval op beide beskuldigdes opgelê moet word.

Die jeugdigheid van beskuldigde nr. 1 en die deernis wat dit wek by die Hof omdat ervaring vir ons synde die regter en twee assessore geleer het dat 'n jong mens sekerlik nie daardie rypheid bereik het wat uit 'n ouer persoon normaalweg blyk nie, dit verdwyn soos mis voor die son wanneer gekyk word na die persoonlikheid van beskuldigde nr. 1. Hy is 'n

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wanaangepaste wrede soort van persoon wat homself betoon het n gevaar vir die samelewing te wees en dit is volgens die Hof se mening so ernstig dat sy jeugdigheid nie daarteen in verrekening gebring kan word nie.
Wat die tweede klagte betref word beide beskuldigdes tot tien jaar gevangenisstraf gevonnis, veral omdat dit so veragtelik is waar 'n persoon sterwende op die grond lê, hy van 'n duur pak klere en nuwe skoene beroof word en die vernedering nog moet ondergaan dat hy half nakend, net in 'n hemp en 'n onderbroek en sokkies na 'n hospitaal vervoer moet word en ook in die besonder wanneer dit blyk dat dit 'n herhaling is van wat gebeur het in die Streekhof saak nr. 764/85 waaraan hulle albei deelgeneem het.
Wat klagte 1 betref, is die Hof van mening dat ten spyte daarvan dat hy 'n diskresionêre bevoegdheid het, hy sal faal as hy sy diskresie ten gunste van beskuldigde nr. 1 uitoefen en 'n ander straf as die hoogste straf oplê.
Gevolglik word beskuldigdes nrs. 1 en 2 op klagte 1 beide die doodstraf opgelê."

Subsequent to an application for leave to appeal

having been prepared by counsel who originally appeared for
the two appellants at the trial, but before the application
was heard, the services of another counsel were obtained who
advised that an application for the leading of further

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12. evidence should, in conjunction with the application for leave to appeal, be made. Such an application was duly prepared in support of which a number of affidavits, including a probation officer's report, were filed. It was not the appellants' contention that such evidence was not available during the trial. The ground advanced for the failure to call such evidence was the remissness of counsel who originally appeared to place such evidence before the trial Court. In the founding affidavit sworn to by the appellants' attorney, the nature of the evidence which had not been led and which was sought to be adduced was described as follows:

"The important evidence that needed to be placed before the trial court were that of the applicants' maturity, employment records and details with regard hereto, scholastic achievements and performances, family circumstances and emotional development."

It appears from the record that prior to the

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hearing of the application for leave to appeal, the learned
Judge a quo had granted the appellants leave to produce
further evidence in extenuation and, in first appellant's
case, mitigation of sentence on the murder charge. At the

time the learned Judge did not give a considered judgment on
the application for such leave. His reasons for having
granted leave appears, however, from the judgment he
delivered after having heard such further evidence and having
considered the addresses on the application for leave to
appeal, as follows:

"By way of introduction I am of the view that it should be placed on record that when leave was granted to lead further evidence in this matter, I was satisfied and came to the conclusion from a reading of the papers before me, firstly that a reasonable explanation was given why the evidence which was eventually tendered before me, was not tendered in the Court a quo; secondly, that such evidence is of such a nature that if believed, it could reasonably possibly lead to a different conclusion than the one that we have arrived at; and lastly, that the evidence as appeared from the affidavits before me, in actual fact was such that it would probably be accepted by the Appeal Court. As a result of that decision, the evidence was tendered verbally in Court and after the conclusion

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of the evidence, I now have to deal with the application for leave to appeal by the first appellant against the death sentence imposed upon him on 23 September 1987 in the Vereeniging Circuit Court by myself, sitting with two Learned Assessors, and by the Second Appellant against his conviction of murder without extenuating circumstances as well as against the death sentence which was imposed upon him on the same occasion."

In his judgment on the application for leave to appeal the learned trial Judge remarked that "on the record as it now stands, it cannot be ruled out that a reasonable possibility does exist that another Court might come to a different conclusion on the question of extenuation and consequently might possibly decide that a different sentence ought to be imposed." The learned Judge consequently granted leave to both the appellants to appeal against the death sentence which had been imposed upon them.

Whether the learned Judge was correct in granting

the appellant leave under s 316(3) of the Act to adduce

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15. further evidence (cf S v Swanepoel 1983(1) SA 434(A) 439 D -H) is not for this Court to decide. The result is nevertheless gratifying because, to echo the words of my Brother Corbett in S v Ngoma 1984(3) SA 666(A) 675 E, this is the type of case in which the trial Court could have profited from a report by a probation officer.

In terms of s 316(3) the Court which hears the further evidence, which may also include evidence in rebuttal by the prosecution and evidence which the Court may decide to call, is enjoined simply to receive such evidence for the purpose of passing it on to the court of appeal. There is no express provision that the Court hearing such evidence is required to comment thereon. I am of the view, nevertheless, that even though the Judge hearing the evidence is not competent to set aside the verdict or sentence of the trial Court (see S v Masinda 1981(3) SA 1157(A) 1164 in fine -1165) he would be entitled to express an opinion on the issue

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or issues affected by the new evidence and to furnish the court of appeal with the reasons for such opinion, including (which is very important) his comments on the demeanour of the witnesses. Such opinion and comment can be of great assistance to the court of appeal.

In the present case the supplementary evidence has (apart from the issue of the effect of liquor on the appellants) fortunately raised no factual disputes. The new evidence related solely to the background and the personal circumstances of the two appellants in respect of which there was almost a complete dearth of information before the trial Court. The only factual dispute related, as I have indicated above, to the state of intoxication of the two appellants when they committed the offences concerned. In this respect the probation officer stated in her report that "it is apparent that Daniel and his friend committed this murder

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17. under the influence of alcohol" - a statement which conflicts with the finding of the trial Court. To this aspect I shall return in due course. In view of the fact that the Court receiving the further evidence in terms of s 316(3) is, subject to what I have said above, a mere conduit pipe and is not competent to consider and resolve the disputed issues raised by the further evidence de novo or to review the trial Court's decision on the supplemented evidence (see Masinda's case supra 1165 C - F) it is, I consider, the function of this Court to consider and decide the matter in the light of the new evidence with due regard to whatever comments and opinions the Judge may have made on the evidence received by him.

This being the approach which in my view should be adopted, I now turn to the facts of the matter.

The trial Court found that the first appellant had

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18. not reached the age of 18 years on the date of the commission of the offences concerned. A perusal of the trial Court's judgment on extenuation creates the impression that the Court, relying on the radiologist's report, found that the first appellant was on the border line between 18 and 19 years. His mother Martha Tsawane subsequently deposed to his having been born on 13 May 1969 which made him only 16 years and 3 months old on 31 August 1985 being the date of the commission of the offences in question. This is a very young age.The younger an accused is, the more desirable it is to have evidence of his background, upbringing, the level of his intelligence and his mental faculties. See S v Mohlobane 1969(1) SA 561(A) 567G - 568B and S v Ngoma supra 674C.

Martha also gave evidence relating to the upbringing of the first appellant, his living conditions, his schooling, his personality and generally about his family life.The father of the second appellant, Petrus Maleka, gave

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similar evidence regarding the second appellant. Elizabeth Thebe, a social worker, gave evidence in regard to the back-ground of the appellants, their living conditions, their scholastic achievements, the locality where they grew up and the extent of their families. From Martha's evidence it appears that the first appellant was one of four children who lived in a four-roomed house in Sebokeng comprising a kitchen, dining room and two bedrooms. In addition to her four children her mother, grandmother, aunt and four brothers lived in the house. The first appellant's father died in 1974. As a result of the fact that Martha worked away from Sebokeng she used to come home only once a month over a week-end. During 1981 she started to work at Vaal Potteries in Meyerton which work necessitated her leaving home at 5h00 every morning to return at 21h00 at night as a result of which her children were cared for by her mother and grandmother. The first appellant started school at the age

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of 7 years but due to financial circumstances left school in standard 4. While at school he was disciplined and not aggressive. Martha noticed that after her son left school his temperament changed. He became increasingly frustrated because he was unable to find employment. He was easily influenced by his friends who were usually older and bigger than himself and who indulged in criminal activities. In her report the probation officer emphasized the fact that the first appellant never knew his father during his upbringing and thus had no model in life. She stated that his mother, owing to circumstances, never assumed full responsibility over her children. The fact that the first appellant made friends with older individuals can be attributed to his need for a sense of security. Josiah (the first appellant) was never orientated towards religion, she stated, and on leaving school he joined peer group members who introduced him to "shebeen life and sleep-outs." This was coupled with a lack of discipline from home, she concluded her report.

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Petrus Maleka, the father of the second appellant, testified that his family, comprising himself, his wife and six children lived in a four-roomed house. His son left school in standard 5 because of financial difficulties. His children were cared for by his eldest sister Grace while he and his wife were at work and he only saw his children in the evenings when he came home from work and on Sundays. The second appellant himself stated that after he left school in 1984 he worked as a labourer for a subcontractor at Escom for approximately 8 months after which he was retrenched and the only other work he could find was casual work over the weekends when he worked as a gardener. The probation officer's evaluation of the second appellant read as follows:

"1. Daniel spent his leisure time at shebeens.

2. He never had a responsible father figure to discipline him.
3. It is apparent that Daniel and his friend committed this murder under the influence of

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alcohol and influence from (of?) one another."

As I have said, the learned Judge was not prepared to accept the third proposition stated above. The State witnesses said that the two appellants "die aand gedrink was maar nie dronk nie." Fact is, they did consume some liquor and this might have affected, and probably did affect, their sense of responsibility. They were both still youngsters. The first appellant was only 16 years of age. It is true that he appears to be a hard-bitten sixteen-year-old but his cynical outlook on life is probably due to all the deprivations he had to suffer in his young life. The second appellant was eighteen years and ten months old on the date of the commission of the offences. His background is very similar to that of the first appellant. In his favour is a slightly better record than that of the first appellant. Add to that the motive which he had on account of his brother Tommy having been arrested by the deceased. The Court a quo

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regarded this as an aggravating feature. His attitude appears to have been motivated by a grievance against the deceased for having arrested his brother. Misguided though it might have been, this grievance which he harboured probably deeply affected his immature mind and in my view it did serve to reduce his moral culpability. Blood is, after all, thicker than water.

Regard being had to all the circumstances I have mentioned - the youthfulness of both appellants, the influence of liquor, their personal circumstances and the state of mind of the second appellant, I have come to the conclusion that extenuating circumstances were present. In any event, in the case of first appellant, I would not favour the imposition of the death sentence. Taking into account the aggravating features pointed out by the learned trial Judge, among which the seriousness of the offences weighs heavily, and the extenuating factors which I have found, a

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proper sentence to impose on the two appellants would, in my view, be one of twelve years imprisonment to be served by each appellant, the sentence of ten years imposed on the robbery charge to run concurrently with the sentence of twelve years.

The appeals of both appellants succeed. The death sentence imposed on each appellant is set aside and each is sentenced to imprisonment for a period of twelve years, the sentence of ten years imposed on the robbery charge to run concurrently with the twelve years sentence imposed in respect of the murder charge.

ACTING JUDGE OF APPEAL

CORBETT JA)
BOTHA JA) _ concur
VAN HEERDEN JA) concur
STEYN JA)

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