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IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION) In the matter between:
TOZAMILE CLIFF MOOI FIRST APPELLANT
MTHETHELELI LUCAS SECOND APPELLANT

THE STATE RESPONDENT

CORAM: BOTHA, E M GROSSKOPF

KUMLEBEN JJA
HEARD: 14 MAY 1990

DELIVERED: 30 MAY 1990

JUDGMENT

KUMLEBEN JA/....
1.
KUMLEBEN JA:
The two appellants stood trial with 14 other accused in the Eastern Cape Division of the Supreme Court on a charge of murder. The first appellant was accused no 2 and the second appellant accused no 1: for convenience I shall continue to refer to them as such. Both were convicted of murder. No extenuating circumstances having been found, the death penalty was imposed. The court a quo, however, granted leave to accused no 2 to appeal to this court against his conviction and sentence (the finding that there was no extenuation); and this court gave leave to accused no 1 to appeal against sentence only.

The charge arose from the death of Thozamile

Michael Dondashe in or near the Kwa Nobuhle township,
Uitenhage district, on 24 October 1985. The events

leading to his death were described by his mother and

2/...

2.
his sister, Tozama Dondashe, who were State witnesses. Late that afternoon the deceased ran into his home injured. As he was washing his wounds his pursuers arrived. They demanded that he be released to them, alleging that he was a police informer. A crowd gathered outside the house. Eventually, after the . house had been damaged, set alight by a petrol bomb and entered into by some of the crowd, the deceased's father instructed him to accompany those who had come for him. The following evening his body was found about 1 kilometre from his home at a spot on the outskirts of Kwa Nobuhle. His skull had been crushed and his head, face and body burnt. The indications were that the head injury caused his death before the burning took place.

I turn to consider, first, whether accused no

2 was correctly found guilty of murder.

3/...

3. The grounds for this conviction are thus stated in the judgment:

"According to Tozama he (accused no 2) too was one
of those who entered the home of the deceased and
removed him therefrom. In his confession to the
magistrate, EXHIBIT K, he describes how they went
into the home of the deceased and how he was taken
out of the house. He goes on to describe how the
deceased was taken to the spot where he was put to
death and how on the way to that spot he struck
the deceased over the back with a piece of copper
piping. He also describes how other members of
the group assaulted the deceased and how he was
set alight.
Accused No. 2's abbreviated statement to Captain Kohne EXHIBIT X.2, is much to the same effect as EXHIBIT K. What is more accused No. 2 pointed out to Captain Kohne on 14 February 1986 a spot which was only some 10 paces from the spot where the body of the deceased was found by Warrant Officer Meiring. His knowledge of the spot taken with the other evidence against him is a further factor pointing to the guilt of accused No. 2."

The conviction was thus based primarily on the confession to the magistrate (exhibit K) and a statement (exhibit X2) made to Captain Kohne. The

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4.
judgment, one notes, does not indicate whether, should these two statements be left out of account, the other two considerations (the pointing out per se and the evidence of Tozama Dondashe) were considered sufficient, jointly or severally, to justify the conviction.

The correctness of the reception of these two statements must in the first place be examined. In fact the enquiry can be further restricted to the question of the admissibility of the confession to the magistrate (exhibit K). I say this since, if it was admissible, the other statement to the police officer takes the matter no further; if it was not - for reasons which at this stage need not be given - exhibit X2 must also be held to have been incorrectly admitted. The admissibility of two similar statements made by

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5.

accused no 1 was also contested at the trial. The

court, quite correctly, decided that the admissibility

of all four statements should be considered at one

separate interim hearing, a trial within a trial, since

the evidence relating to each might interpenetrate. As

it happens, however, the evidence on the statements
made by accused no 1 does not bear upon the question
whether the confession and statement of accused no 2

were—correctly admitted. Such evidence may therefore
be left out of account and need not be referred to. (As
a matter of fact the statements made by accused no 1
were also held admissible.)

With this somewhat protracted prelude, I turn to consider whether exhibit K ought to have been received in evidence.

The following undisputed facts relate to this

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6.
enquiry. Accused no 2 was arrested on 21 November
1985. He was not questioned by the police until 17
December 1985 when W.O. Pentz interviewed him in his-
office at the Uitenhage police station. He made a
statement which was recorded by Pentz. The accused
that afternoon was taken before a magistrate, Mr Steyn,
at Uitenhage. He was accompanied by Det. Sgt. Masiba.
The magistrate put the customary preliminary questions
to the accused to satisfy himself that the accused was
acting freely and voluntarily. The questions and
answers included the following:

"Het die polisie of enige ander persoon u aangerand of gedreig om die verklaring af te lê? -
-- NEE.
Is u deur enige persoon beinvloed om die
verklaring te maak? NEE, MAAR HULLE HET GESe
EK MOET KOM Se WAT EK HULLE GESê HET. HULLE HET GESe HULLE SAL LEES WAT EK GEPRAAT HET EN AS EK NIE Sê WAT EK HULLE GESe HET NIE, GAAN EK KAK.
As hulle nie so gesê het nie, sou jy uit jou eie
wil 'n verklaring wou kom maak? NEE, DAN SOU EK

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7.

NIE GEKOM HET NIE, WANT DAAR WAS IEMAND WAT HULLE VOOR MY GESLAAN HET EN EK HET TOE BANG GEWORD, WANT EK WIL NIE SO GESLAAN WORD NIE.
Maar ek het jou mos nou verduidelik dat jy onder geen verpligting is om 'n verklaring te maak nie,
verstaan jy? JA, EK VERSTAAN, MAAR EK SAL MAAR
LIEWER PRAAT ANDERS WORD EK GESLAAN.
Het iemand gesê jy sal geslaan word as jy nie praat nie? JA, MNR. PENTZ HET SO GESê.
As jy nie bang is nie, sou jy 'n verklaring afgelê
het? NEE, EK SAL NIE. EK WIL PRAAT OMDAT EK
BANG IS.
Wil jy uit jou eie 'n verklaring aflê of net omdat
jy bang is? NEE, MAAR EK IS BANG.
Verklaarder meegedeel dat hy nie verplig is om 'n verklaring te maak nie en hy verkies om nie 'n verklaring te maak nie." .

In the light of these answers, no statement was made or recorded. The form (exhibit M), on which the preliminary questions and answers appear, was signed by the magistrate and given to Masiba. On his return to
the police station he handed it over to Pentz in the
presence of the accused. When Pentz read it he was

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8.

angry. He instructed Masiba to take the accused back to the cells.

The next morning, 18 December 1985, he was again taken by Masiba to the same magistrate. On this occasion Mr Steyn recorded inter alia the following on exhibit K, before the confession was taken down:

"Ek vra vervolgens die verklaarder om in sy eie
woorde aan my te vertel hoe dit gebeur het dat hy
na my kantoor gekom het om sy verhaal aan my te vertel. Die volgende was sy verduideliking
(neergeskryf in sy eie woorde) Ek het nou self
besluit om hierheen te kom en ek het die speurder gesê ek wil 'n verklaring kom doen by die landdros en toe sê hy, hy sal my afstuur toe bring hulle my."
"Het die polisie of enige ander persoon u
aangerand of gedreig om die verklaring af te lê?
NEE. Sien bladsy 4 en 3.
Is u deur enige persoon beinvloed om die
verklaring te maak? Nee.
Is u deur enige persoon aangemoedig om die
verklaring af te lê? Nee, maar ek het verlede

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9.

nag met my mede beskuldigde gesels en ons het nou besluit om die klagtes te erken."
"U het weliswaar aan my gesê dat u nie deur enigiemand aangerand, gedreig, aangemoedig, beinvloed of beloftes aan u voorgehou is nie ten einde u te oorreed om die verklaring te maak. Ek wil u egter nogtans vra om my in u vertroue te neem en as daar na u oordeel enigiets onbehoorlik gebeur het wat u beïnvloed het om na my toe te kom om die verklaring te maak, dit nou aan my te openbaar. Verstaan en begryp u wat ek so pas aan u
verduidelik het? Ek verstaan maar niks het
plaasgevind nie."

The confession proper follows. It was handed to Pentz on their return to the police station.

The admissibility of this confession was

disputed cm the ground that the accused was threatened
and that it was consequently not voluntarily made. The

court, relying on the provisions of sec 217(l)(b)(ii)
of the Criminal Procedure Act 51 of 1977 ("the Act"),
held that the accused had not discharged the

onus of proving that the confession was :

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10. induced by any threat and it was ruled admissible.

That he was threatened was as strenuously denied by Pentz as it was persistently asserted by the accused. Although a number of other witnesses were called on behalf of the State at the interim trial, the determination of this issue depends essentially on the evidence of these two key witnesses. For this reason it is hecessary to refer in some detail to each's account of the events leading up to the confession.

According to the accused, when he was brought

to Pentz's office by Masiba on 17 December 1985, Det.
Const. Faleni was also present. The accused was
questioned about the murder. Pentz opened the

interview by saying that he (the accused) was in his

(Pentz's) "stomach" and that he should do exactly as

Pentz instructed him. (This rather perplexing answer

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11.

was furnished through the interpreter. In the course
of the questioning which followed the accused stated
what was said to him in Afrikaans: "Jy moet weet jy is

in my maag en jy gaan doen wat ek wil hê jy moet doen."

It then transpired that there was a misunderstanding
and that "maag" should read "mag".) Pentz spoke
Afrikaans to him at this interview, but with Faleni
present to interpret if necessary. At a certain stage
Faleni and Pentz left the office, leaving him with
Masiba. They returned with a young man whose head was
bleeding. He was unknown to the accused and, more
particularly, was not one of the other accused in this
case. Pentz held this person' s head by his hair and
f orcibly drew his (Pentz' s) knee up into his f ace.
This caused him to fall down and his nose to bleed.

Pentz and Faleni then trampled on him. Pentz left him

lying on the floor and came over to the accused. He

said that he would be similarly assaulted if he did not

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12.

say what Pentz wanted him to say. This prompted the
accused to make a statement which Pentz recorded and
read over to him and which he signed. This person was
assaulted before the statement was taken down and
remained in the room, lying on the floor, until it was
completed. (At the interim trial the accused admitted
that he was the author of the statement, in the sense
that he was not told what to say, but denied that it
reflects the truth.) Pentz then said he must repeat
the statement before a magistrate and that,_ should he
refuse, he would receive the treatment meted out to
this other person. Pentz added that, if he deviated
from the statement made to him, he would "kak". He was
also told by Pentz not to disclose to the magistrate
that he had been instructed to confess to him. The
accused confirmed that he complained to the magistrate

that he had been threatened and, as we know, the
magistrate in the circumstances did not record a

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13. confession. Before they left to return to the police station Masiba read the statement. His comment was: "Kwedien (young man), what shit have you told that magistrate? This White man is going to 'moer' you." When Pentz read this document on their arrival at the police station he was angry and said "jy het my gebrand", implying that he had let him down or made a fool of him. The accused was dismissed and locked up in the cells for the night.

The next morning in due course he again found

himself in Pentz's office. The latter's opening remark
was: "What shit did you tell the magistrate
yesterday?" He went on to say that the accused was to

return to the magistrate and retract what he had said

about being threatened and that if he did not agree to

this, Pentz would shoot him and tell his parents that

he had been killed in attempting to escape. Pentz also

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14. said that he (the accused) should say that it was he who had approached Pentz with the request that he be sent again to the magistrate; that what he had said the previous day was untrue; and, finally, that he was to explain his change of mind by telling the magistrate that during discussions with his co-accused overnight it was decided that he should admit his guilt. Coerced by these threats he again accompanied Masiba to Mr Steyn before whom, acting in accordance with Pentz's instructions, exhibit K was executed. When it was later shown to Pentz he seemed satisfied.

Pentz tells a very different story. On 17

December 1985, after questioning the accused at the
cells, they proceeded to his office. There he was

interrogated for for about an hour. They spoke to each
other in Afrikaans, but Masiba was present to interpret

if necessary. The accused was in fact fluent in

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15.
Afrikaans. Without any persuasion or preliminaries,
the accused was prepared to make a statement to him.
As it was being recorded, they were interrupted by Sgt.
Bester and Const. Oosthuizen who brought accused no 7

into that office. They explained to Pentz that they
had arrested him and in doing so were obliged to apply
force. Pentz noticed some fresh blood under the nose.
of accused no 7, though it was not actually bleeding,
and that he was covered in dust. After they had made
this report to him, he asked the two policemen to wait
with accused no 7 in the adjoining front office until
he was through with accused no 2. On completion of the

statement, the accused on his own initiative asked to
be allowed to repeat it before a magistrate. On his

retum from the magistrate, he and Masiba rejoined

Pentz in the front office. As soon as the accused saw

Pentz, and before any other words were spoken, he said

"baas, neem my terug na die 'mandjie' (ie the

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magistrate) toe, ek wil my 'mistake' gaan regmaak."
This he repeated without explaining what the mistake
was. He (Pentz) realised something was wrong but did
not ask the accused to explain what had happened.
Instead he took the document (exhibit M) from Masiba
and read it. His reaction was one of extreme anger

("verskriklik kwaad") coupled with disappointment.
Though the accused was still pleading with him to be
allowed to return to thê magistrate to make amerids,
Pentz simply told Masiba to take him away: "vat hom
net uit, vat hom weg net voor my, gaan sit hom terug in
die selle." The next morning the accused was taken from
the cells and brought to Pentz. He took the accused to
collect other suspects. He did not at any stage raise

the question of yesterday's 'mistake'. During this

operation the accused frequently asked to be taken back

to the magistrate but Pentz paid no attention. On their

return to the police station, only because the accused

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17. was so persistent, Pentz telephoned Mr Steyn. He made it clear to the magistrate that he was not interested in sending the accused back to him but the magistrate said "as die man wil kom, bring hom na my toe". This prompted Pentz tó instruct Masiba to take the accused back to the magistrate. Pentz could not remember whether he read exhibit K on their return or whêther he guestioned the accused to make certain that no further 'mistake' had occurred.

Pentz's account of what is alleged to have

taken place is riddled with a number of improbabilities
and unsatisfactory features - in fact riven by them.
In chronological sequence, though not in order of

importance, they are the following. It is unlikely

that the accused, having completed his statement to
Pentz, would have asked of his own volition to repeat

it before a magistrate. It is as improbable that the

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accused, who had voluntarily decided to make a

confession to a magistrate, would within a

comparatively short space of time, and for no apparent

reason, change his mind and decide not to do so.

Moreover, he then falsely tells the magistrate that he

was threatened when, had he changed his mind, there was

no reason for him to furnish this or any other

explanation. He could simply have said on arrival that
"he no longer wished to make a statement. It is

obviously important to an investigating officer

(particularly if there are no eye witnesses to the

killing in a murder case) that a suspect, if willing

to confess to a magistrate, should do so. Yet when the

accused returned, Pentz did not ask him what the

"mistake" was all about, why he had made a false

allegation about being threatened or what had made him

decide against making a confession to the magistrate.

Pentz's explanation that he was so angry that he in

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19. effect lost the power of speech can only be described as ludicrous.

His behaviour the next morning borders on the

bizarre. The accused continues to plead with him to be
given another chance to confess before a magistrate but

Pentz has so lost interest that, but for the suggestion

or instruction on the part of the magistrate over the

telephone, no confession would have been forthcoming
with the assistance of pentz. If the accused had in

fact made a mistake that same afternoon, as Pentz

alleges the accused said, the change of mind could not

have arisen from a discussion with his co-accused that

night. In that event why does he furnish this as the

reason for deciding to make a cónfession? It all

points to Pentz's evidence about a mistake being false.

How likely is it, one may ask, in the light of what

happened when the accused went to the magistrate the

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first time, that Pentz would not have read exhibit K without delay to make certain that the accused was not again leading him a dance. Moreover, it is_ inconceivable, having regard to what the accused did when he went to the magistrate the previous day, that Pentz would not have asked him what he intended telling the magistrate before arranging for him to go a second time.
On Pentz's evidence, considered alone, one is driven to the inescapable conclusion that he has not given a truthful account of what took place: it has the unexpungable odour of misconduct.

His evidence is thus dealt with in the judgment:

"He was subjected to lengthy cross-examination and in our view did not falter in any respect under cross-examination. His evidence was consistent throughout and there is no reason in our view to

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reject his evidence. We are of the view that Pentz was a truthful witness and that we can place full reliance on his testimony. Admittedly it may be said to be improbable that accused No. 2, having been taken to a magistrate on the afternoon of 17 December 1985 and having informed the magistrate that he was there because he had been threatened and eventually having declined to make a statement, changed his mind that same afternoon immediately after being brought back from the magistrate and asked that he be taken back. However, accused persons do change their minds and it does not seem to us that the fact that accused No. 2 changed his mind is anymore improbable than accused No. 2's version of a strange man whose build and stature he was unable to describe, having been assaulted ih his presence and left lying on the floor whimpering and bleeding during the entire period that his statement was being recorded. If the probabilities of the two versions are weighed up against one another then, in our view, at the very best for accused No. 2 the probabilities can be said to be evenly balanced, in which event he will not have satisfied the onus which rests on him of proving his version on a balance of probabilities."

At the conclusion of his evidence Pentz had

been questioned by the trial judge. The nature of his
questions indicates that he was mindful of
certain of the unsatisfactory features of Pentz's

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evidence to which I have referred. Pentz was, for instance, asked: why he did not query the

"mistake"; why he did not question the accused's

assertion that he had been threatened (the question put

by the court inadvertently referred to an "assault" but
there was no misunderstanding about what was meant);
why the accused who had just come from the magistrate
would have been so anxious to return; and why the
accused, if he had wished to cúre the "mistaké" the
following day, would not have explained his mistake to

the magistrate, rather than offer the explanation that
a supervening discussion with his co-accused was the

reason for his reappearance before him. Pentz, one need
hardly say, was unable to answer these questions

satisfactorily. During this questioning one detects -

and this is in no way surprising - a note of

scepticism on the part of the court. However, as

appears from the extract from the judgment quoted

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above, these startling improbabilities in the evidence
of Pentz are hardly addressed in the judgment. The one
alluded to is that the accused (within a comparatively
short period of time) changed his mind when he went to
the magistrate on the first occasion. But in the
context of the evidence, this fact cannot simply be
dismissed with the observation that "accused persons do
change their minds", as said in the judgment. It is
true that persons not only accused persons - do so.
It must, however, be a rare.occurrence for a person,
who is moved to confess voluntarily, to change his mind
twice during the course of one afternoon: he was

initially prepared to confess, decided against doing
so, and then said that was a mistake and pleaded to go
back to the magistrate. Finally, with reference to the

reasons for the acceptance of Pentz's evidence, the

improbability in the accused's version - if such it be

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- relied upon in the judgment cannot, having regard to the nature and quality of Pentz's evidence, serve to make it reliable or worthy of belief.

In an attempt to reconcile the inconsistency in the behaviour of the accused with the evidence of Pentz, Mr Bursey, who appeared on behalf of the respondent, argued along theselines. Though not threatened by anybody, the accused feared that he would be assaulted if he did not volunteer a confession. He therefore decided falsely to state that he was threatened when he first came before the magistrate to enable him, when he later made a confession (to satisfy Pentz and prevent an assault), to successfully challenge in due course its admissibility in court. This intricate explanation for his conduct is fanciful

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beyond words. One need only say that, if he feared an assault at the hands of Pentz, a procedure calculated to provoke one would be to undertake to confess, fail to do so, and then falsely accuse Pentz of having threatened him. (Cf. Masiba's indelicate remark on reading exhibit M.)

Turning to the accused, in the judgment on the admissibility of the confessions, it was saidthat the accused was "a most unsatisfactory witness" and that "his evidence contains a number of contradictions and inconsistencies and is highly improbable in a number of respects." The judgment does go on to deal with one alleged shortcoming in his evidence.

It appears that the main ground for rejecting the evidence of accused no 2 was his denial that

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accused no 7 was brought in during the interrogation.
A number of State witnesses, in addition to Pentz, say
that he was. (On their evidence accused no 7 was
brought in to an office occupied by a number of
policemen for the period of time necessary for a brief
report to be made to Pentz on how he came to be
arrested.) It may well be that in this regard the
evidence of accused no 2 is incorrect. The indications
are that it was. This led the court to conclude that
the presence of accused no 7, slightly injured,
inspired the false story on the part of the accused
that another person had been assaulted in his presence.
It was for this reason, so it is said, that he denied
the presence of accused no 7 during that interview. The
court apparently decided that, because accused no 7 was

in fact in that office during the interrogation, no one

else could have been brought into that office and

assaulted as he alleges. This reasoning appears to me,

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27.

with respect, to be questionable. If the presence of

accused no 7 was the source of the accused's story, there was no reason for him not to have said that another person was also brought in and assaulted. It was unnecessary for him deliberately to deny that accused no 7 was there, an allegation which could easily be refuted by a number of State witnesses and, for all the accused knew, by accused no 7 himself. The accused who is described as an intelligent person would, one may suppose, have realised this. It simply does. not follow that someone, in addition to accused no 7, could not have been brought in.

There are other factors to be taken into

account in deciding whether as a probability the

accused was deliberately untruthful in saying that he
was threatened by way of the assault upon this other

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person:

(a) If one concludes - as I believe one must -that, on the undisputed evidence and that of Pentz, the accused was in fact threatened, and that this is the only logical explanation for both his conduct and that of Pentz as _ regards the two visits to the magistrate, then it appears highly unlikely that the accused would have contrived such an unusual story of how the threat came to be made rather than simply stating the form the threat or threats actually took. '
(b) Alternatively, if in fact he was not threatened in any way, one would have expected that a fabricated threat wouid have been a less involved and detailed one and one less susceptible to exposure as false: for instance, as he later averred, that Pentz threatened to kill him.
(c) The episode giving rise to, and in a sense constituting, the threat, on my reading of the record appears tb have been related in convincing detail both in evidence-in-chief and under cross-examination. Moreover, if fictitious, it was thought out in a comparatively short space of time. According to Pentz, his interrogation of the accused started at noon and it is recorded on exhibit M that at 3 p.m. he began his interview with the magistrate. At that interview, as appears from exhibit M, he spoke of this

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assault upon another person in his presence.

(d) The confusion about "maag" and "mag", though in itself insignificant, is rather revealing. The accused's misunderstanding of what was said to him puts the fact that he was thus admonished beyond doubt: "jy moet weet jy is in my maag (mag) en jy gaan doen wat ek wil hê jy moet doen". It follows that Pentz's denial that he said any such thing is false. On the accused's version this initial admonition is consistent with what subsequently took place.

In the result it cannot, in my view, be said

with certainty that the accused's evidence of the

assault is deliberately false. If, however, this is

assumed to be the case, two further comments are called

for: first, even if the accused was not threatened in

this manner, the evidence - as I trust I have indicated

- is overwhelming that a threat of some sort was made

before the first visit to the magistrate; second, the

threat made on the morning of 18 December, which led

directly to the confession, was not based on any

alleged assault on another person and, with Pentz

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30. discredited, stands uncontradicted.

Apart from relying on the evidence of the State witnesses De Lange, Bester and Oosthuizen on the question whether accused no 7 was brought in, the court, as I have said, relied principally on the evidence of Pentz. This is confirmed by the concluding passage of the judgment in the interim trial, which reads as follows:

"As I have already said, we accept the evidence of Pentz as being truthful. It follows that we are satisfied from the evidence of Warrant-Officer Pentz that accused No.2 made his statement to the magistrate on 18 December 1985 freely and voluntarily and without having been unduly influenced thereto. The evidence of Pentz in this regard is corroborated by the evidence of the magistrate, Mr Steyn, who saw accused No.2 both on 17 December 1985 when he did not take a statement from him and on 18 December 1985, when he recorded his statement. Mr Steyn questioned accused No.2 before taking his statement and he is satisfied that he was at ease and that he had not been unduly influenced into making a statement. We unreservedly accept the evidence of Mr Steyn."

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31.
"We have accordingly come to the conclusion that on the totality of the evidence accused No. 2 has failed to satisfy the onus which rests on him to establish on a balance of probabilities that the statement which he made to the magistrate, EXHIBIT K, was not freely and voluntarily made."

The above reasoning in the judgment calls for passing comment in two respects: If in fact Pentz ought to be believed, the question of onus of proof does not arise. And the fact that the accused on the second occasion appeared to Mr Steyn to be at ease and said that he had not been threatened does not materially corroborate Pentz's evidence: cf. S v Hoosain 1987(3) S.A. 1 (A) at 10 F - G. Be that as it may, it is correct to say, as has already been stressed, that his evidence was the corner-stone of the State case.

For this reason the evidence of other State witnesses was, with respect correctly, not relied

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upon or dealt with in any detail in the judgment or in
argument before us. Masiba and Faleni, the two
policemen who were closely involved in the

interrogation and other events involving the accused,
were found to be unsatisfactory witnesses. Having said
that, it is still somewhat surprising that they failed
to corroborate the evidence of Pentz on certain crucial
aspects of the case. Masiba, for instance, when asked
whether a person was brought in and assaulted in the
presence of the accused, said: "Perhaps I, if it
happened in my presence, perhaps I would remember
that". Masiba was described in the judgment as a

"shocking witness" and the same could be said of
Faleni. The other State witnesses, who have thus far
not been mentioned in this judgment (Det.Const. Smith,
Mr (formerly Sgt.) Bester, and W.O. Oelofse),
gave peripheral evidence and, although apparently
called to do so, could not for various reasons state

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33.

positively that the assault on this other person did not take place. They were not constantly in the office where Pentz normally works and there is some uncertainty about the office used, or used throughout, for the questioning on that day. In the circumstances further discussion of their evidence will serve no useful purpose.

In the result I cannot agree with the conclusion reached in the court a quo. Pentz's denial of a threat is to be rejected for the reasons stated. To my mind, on a proper appraisal of all the evidence, the accused has shown on a balance of probabilities that threats were made as alleged by him and that they induced the confession the second time round. It follows that exhibit K ought not to have been received as evidence in the trial.

34/...
34.

Accused no 2 explained how the statement,

exhibit X2, came to be made to Capt. Kohne. On 18
December 1985, after the accused had confessed, Pentz
told him that he was not finished with him yet and that

there was something else he would have to do. On 14
February 1986, before the accused set off with Capt.
Kohne, Pentz reminded him of this earlier instruction;
told him what to point out; said that whilst doing so,
he should - narrate to Kohne some details of what
happened when the deceased was killed; and added that

if he did not comply with these instructions he woulóL
be shot. Pentz denies all this. However, since he
has been shown to be a dishonest witness in the matter
of threatening the accused, his denial carries no
weight. In the circumstances, particularly since the
onus was on the respondent to prove that this statement
was voluntarily made, it too ought to have been
excluded.

35/...

35. Mr Bursey next submitted that the other evidence (apart from exhibits K and X2) tendered as
part of the State case proved the murder charge

against the accused. (After the statements had been

admitted, the accused did not give evidence on the
merits.) This argument was based on the evidence of
Tozama ccnsidered in conjunction with what the accused
pointed out to Kohne.

According to Tozama, when she arrived at her

house that afternoon, there were a crowd of people in

the street outside, some of whom were onlookers. She
noticed accused no 2 in the.yard next door. He held a

stone in each hand and another accused outside their

home was in possession of a two litre bottle of petrol.

Inside the house she came upon the deceased, who at

that stage had some head and other injuries. Stones

were being thrown at the house and its windows broken.

36/...
36.

The assailants wanted the deceased to be handed over to
them. Someone threw an iron bar at him which struck
him on the arm. Another said "Come out Whitey (the
deceased) so that we should go to the meeting". By

this time part of the house had been set alight. At a

later stage she saw accused no 2 with others trying to
pull the deceased out of the house whilst she and
others were trying to prevent this. A tug-of-war
ensued until the deceased's father told him to stop
resisting and go along with them. She said that
accused no 2 accompanied the deceased's escorts but
could not say whether and, if so, at what stage
accused no 2 left the group. Soon after she left the
house she was forced to turn back. Before she retraced
her steps she noticed that no 2 was one of the persons
who made her mother return to the house. (The evidence.

of the mother, Jane Nomisile Dondashe, confirms that of
her daughter on what took place at her house but

37/...

37. takes the matter no further.)

As regards the pointing out, which is now to

be considered without any reference to what the accused

said at the time to Kohne, the latter's evidence was
to the following effect. On 14 February 1986 he
accompanied the accused on a "pointing out" éxercise
arranged by Pentz. The accused guided him to the house
from which the deceased was taken and from there to the
area where he was killed. The accused was plainly
expected to point the actual spot where this took
place. Kohne's note in this regard reads: "Kon nie
presiese plek uitwys nie - dui slegs omgewing aan - ".
This Kohne confirmed in evidence: the accused was
unable to point out a precise place. In fact, he
wandered about for some time until he stopped and said:

"Dit moet hier rond wees." The accused maintained that
he was one of the crowd who saw the police carrying the

38/...
38. body of the deceased as they emerged from a bushy area. When he was obliged to point out a spot in the bush, he chose one at random.

Kohne in turn pointed out this spot to Pentz.

Meiring afterwards showed Pentz the place where the
deceased had been killed. (Meiring had seen the body

lying near a footpath in this bush before it was
removed.) Mr Bursey argued that his pointing out a
place some 10 metres from where the body was found,
cannot be co-incidence and therefore proves that he was
at the scene when the deceased was killed. This
submission is to be rejected for more than one reason.
The evidence on both sides indicates, at least as a
reasonable possibility, that the accused was genuinely
uncertain where the place was that he was required to
point out. Meiring did not explain how he marked or

fixed in his memory the spot from which the body had

39/...
39.

been removed, nor did Kohne say how he had taken note of the "omgewing" indicated by the accused: there was no reference to distinguishing features at either place. And, finally, Pentz was shown the two spots and it is his evidence that they were about ten metres apart. The unfavourable inference sought to be drawn therefore depends upon the evidence of Pentz. But he was shown to be an unreliable and untrustworthy
witness. In the result the pointing out does not

further the State case.

The question is then whether the evidence of

Tozama; standing alone, proves the complicity of the

accused in the murder of the deceased. There is a

passage in the main judgment which suggests that this
may well have been the view of the court. In dealing

generally with the liability of all the accused, it

reads:

40/...
40.
"(I)t cannot be said that the State has proved beyond a reasonable doubt that the intention to
kill had already been formed by all members of the mob by the time that they reached the home of the deceased.
We reached this decision due to the fact that there is evidence before us that at least certain of those who had gathered at the home of the deceased were at some stage or another intent on taking the deceased to a meeting presumably to enable the meeting to investigate the allegations against him that he was an 'impimpi' or informer.
In our view it would be safer to hold that the intention to kill the deceased was formed at the
stage when he was removed from the house for it is
apparent that he was taken from there directly to the place where he was put to death and we hold accordingly.
Having come to this conclusion it is in our view only acts of association with the actions of those who caused the death of the deceased which were perpetrated during his removal from the house and thereafter which can be relied on by the State for the conviction of any of the accused of murder on the basis of common purpose." (My underlining.)

It is not clear to what precise stage of the events the underlined words are intended to refer. Be that as it

41/...

41.

may, on Tozama's evidence accused no 2 actually
participated, in the manner described by her, at least
until the deceased was being escorted from the house
and she was told to return to it. But on her evidence
one cannot say: (i) for how long the accused
accompanied the group and thus continued to associate
himself with their actions; (ii) what was said, and
heard by the accused, about the intended purpose of the
abduction; (iii) whether the deceased was in fact
killed that afternoon, bearing in mind that the body
was discovered only on the evening of the following.
day; and (iv) if so, at what stage of the "meeting",

or for what reason, the accused was fatally assaulted.

In the absence of evidence in the above regard, or of
proof that the accused was a party to a prior

agreement to abduct the deceased in order to kill him,

the requirements for the application of the doctrine

of common purpose in a case such as this have in no

42/...
42.

way been satisfied: See S v Mgedezi and Others, 1989(1) S.A. 687(A) 705 I - 706 C; and S v Jama and Others 1989(3) S.A. 427(A) 436 D - I.

Mr Bursey's final argument in support of the murder conviction of accused no 2 was based upon evidence given by him in extenuation after the verdict of guilty. Counsel's submission was that such evidence

can be taken into account and, considered in

conjunction with that of Tozama, proved the accused's complicity in the murder.

In leading the accused's evidence in extenuation, his counsel referred him to exhibit K, which was of course at that stage evidence before court. The accused confirmed, and to an extent

explained, what he had said in that statement: that he

struck the deceased with a copper pipe on the way to

43/...
43.

the bush; that on arrival there the deceased was
questioned inter alia about his collaborating with the
police; and that he pleaded with them not to kill him.
He added - this allegation does not feature in exhibit
K - that the deceased was taken to this place in the
bush rather than to the place where the "courts" or
meetings were normally held because the sister of the
deceased might trace them there. The accused was

thereupon cross-examined at length on vital aspects of

the case. The questioning on the merits (as opposed to

facts which normally relate exclusively to extraneous
extenuating circumstances) fell into three categories:

(i) questions arising from what the accused had said in

exhibit K; (ii) those relating to the evidence of

Tozama; and (iii) various others.

Category (i)

At the outset of the cross-examination the

accused was asked whether what was recorded in exhibit

44/...
44.

K was in fact the truth. This he admitted. Although now held to be inadmissible, to appreciate the questions asked in this category it is necessary to quote what he said in exhibit K:

"Ek wou weet waarom hulle hom soek. Hulle sê toe hulle soek na wapens by Whitey. In dieselfde straat waar Whitey was sien ons toe 'n klomp mense by 'n huis. Ons is toe die huis binne. Ek sien toe vir Whitey in die huis en hy het h wond op sy kop gehad wat gebloei het. Denge en Vuyani het toe vir Whitey uit die huis gehaal. Ons loop toe saam met hom. Oppad het ek vir Whitey met 'n koperpyp in sy rug geslaan. Ons is toe na 'n bos toe. Ons het hom ondervra oor die wapens wat hy gehad het. Hy het ons vertel waar hulle is en gesê dat daar drie wapens was. Whitey smeek ons toe om hom nie-te slaan en nie dood te maak nie. Ons het hom toe geslaan en Stagga het hom toe met h byl gekap. Vuyani het toe petrol oor Whitey gegooi. Omdat ek nie geweet het dat Whitey doodgemaak sou word nie het ek weggehardloop. Toe ek terugkyk het ek gesien dat Whitey brand. Ek het toe huis toe gegaan en daar gaan wag. Dit is al." (My underlining.)

The accused was taxed on the underlined portion of his confession. He was highly evasive and was unable to

45/...

45.
explain away this incriminating statement.

Cateqory (ii)

It is not clear what purpose these questions

were intended to serve. The evidence of Tozama had
been accepted and certainly needed no confirmation from
the accused. (It, one may mention, was not refuted by
his answers.)

Category (iii)

Under this heading new evidence emerged from

the accused which was relevant to the merits and was to
the following effect. The deceased was abducted by the

"Comrades", a faction or gang operating in that .
township. Although the accused was not a member, he
sympathised with some of their aims. He was
disappointed and angry when he heard that the deceased
was said to have collaborated with the police. He

realised before this incident that when informers and

collaborators are tried by Comrades in their "courts"

46/...

46.

they are normally either killed or severely injured. He did, however, also say that in the instant case he did not suspect that the deceased would be killed: he thought that they would "merely hit him." A further question and answer on what he anticipated might happen to the deceased read as follows:

"You see Mr Mooi there is one further aspect I want to go into, once you reached the bush and the group was questioning and assaulting the deceased, the deceased had pieaded for mercy and that he not to be - that he should not be killed, what happened then? -— So the people who were questioning him as well as the grown-up people, those people were older than us, decided that he should merely be punished and be released. I was shocked to see Stager take an axe and chop the deceased and when accused No. 16, Vuyani, took petrol and poured it over him, I was shocked and I ran away because I did not know that he would be killed. Had I known that deceased would be killed I would not have followed up to the bush and I thought we were proceeding to the so-called court where the meeting would have been held."

In the course of being questioned by the court he

admitted that he noticed accused no 16 carrying a can

47/...

47. of petrol as they went from the house to the bush; that petrol is used f or "necklacing", that is, burning a person to death by placing a tyre around the neck and igniting it. He, however, said that he did not take particular note of the petrol and it did not occur to him for what purpose it would or might be used.

It is clear, as a general proposition, that

in a trial an inadmissible statement cannot be used for
any purpose against its.author and, in particular, he
cannot be cross-examined on it (cf: Rex v. Perkins 1920
A.D. 307 at 310 and Rex v. Gibixegu 1959 (4) S.A. 266

(E) 269 A - D). S. 217(3) of the Act creates an
exception to this general rule. How its provisions are

to be applied on appeal, if at all, in a case of this

nature is a question which need not be decided. I say

this, since, if it is permissible to take cognisance of

the evidence in category (iii), such (considered in

48/...

48.

conjunction with the other admissible evidence) would seem to prove the State case.

In his evidence falling within this

category the accused said he realised that a person in
the situation in which the deceased found himself could
be killed. Tozama, as has been mentioned, could not
take the evidence beyond the stage when she turned
back. The accused, however, acknowledged that he did
accompany the group to the place where the killing took
place; in fact, that he only left the group after the
deceased had been struck with an axe and petrol poured
over him. He admitted that he had seen one of the
group carrying petrol in a container as they proceeded

to this place. In the light of other evidence, his

statement that he did not know for what purpose the
petrol was being taken along with the deceased is
unacceptable. A reasonable inference is that he knew

49/...

49.

that it would or could be used to set f ire to the deceased and, with that knowledge, he remained with the group. These facts, amplifying as they do the evidence of Tozama, to my mind, may well justify the conclusion that the decision of the court a quo was correct, notwithstanding the fact that exhibits K and X2 were incorrectly admitted.

In the circumstances it becomes necessary to
address the legal question raised in argument: viz.
whether, when an accused person has been found guilty
of murder, evidence in extenuation can ever have any
bearing upon such finding. (I shall throughout refer to
this decision on guilt as a "finding" rather than a
"verdict".) .

In considering the question it is to

be noted that evidence in extenuation could include:

(i) evidence not only of the accused but alsoof other

50/...
50. witnesses called on his behalf and evidence led in rebuttal by the State; (ii) not only an admission of guilt on the part of the accused at that stage of the proceedings but also other evidence given by him, or for that matter by some other witness or witnesses, which cures a defect in the State case; (iii) evidence which establishes for the first time that, althóugh the accused was incorrectly found guilty of murder, he is guilty of some lesser "offence, of which he maybe competently convicted on an indictment for murder; or (iv) evidence which may be forthcoming - the converse of the situation now under consideration - which proves that the finding of guilt was wrong or casts doubt on its correctness.

To recognise that a finding of guilt on a murder

charge can be reconsidered by taking such subsequent

evidence into account, gives rise to a number of

51/...
51.

difficulties. They all stem from the fact that the
finding in that event cannot be regarded as final. To
mention some of them: (a) Such a conclusion would
enable the defence to cure a defect in its case,
perhaps revealed in the judgment, on the ground (or
pretext) that such evidence relates to extenuation.
The State could do likewise (despite the finding in its
favour), as indeed it did in the present case, whether
or not this was its objective. (b) Any further
evidence relating to the merits could to a greater or
lesser degree lead to the reopening of the case. (c)
In certain circumstances, when evidence is given in
extenuation, there may be no clear line of distinction
between that which pertains to extenuation and that
which relates to the merits. If the trial court
decides that the latter is to be taken into account to

alter the finding in favour of the accused, the

prosecution would no doubt be informed beforehand. But

52/...
52.

if such evidence is considered for the first time on
appeal, either to reverse or alter the finding in the

interests of the accused or to support a conviction
which otherwise could not stand, prejudice to one or
other party could result. The court on appeal could be
called upon to reassess the probabilities and findings
of credibility in the light of the further evidence
which the trial court could not have considered before

its finding on the merits and may not have considered
afterwards in reference to that finding. In that event
one would have the unsatisfactory result of a finding
of guilty being rescinded or a lesser "verdict"

substituted or a conviction upheld on evidence not
taken into account by the trial court. For instance,

in the present case, it might have been necessary to
decide whether Tozama's evidence before the finding

ought to stand in the light of the conflicting evidence

given by the accused after the finding. (d) The

53/...

53. difficulties which in certain instances arise from the fact that the onus of proof to secure a conviction
resting on the State differs from that which an

accused is required to discharge in order to prove

extenuation, are likely to be exacerbated if this
question is affirmatively answered.(Cf. S v Sephuti
1985(1) S.A. 9 (A) at 18 E - 19 B; and S v Shabalala
1966(2) S.A. 297 (A) at 300 A - C.) (e).Even the
relatively simple case of an accused admitting his
guilt after the finding (for instance, after a false
alibi has been rejected) is not without complications.
In such a case an accused is encouraged to make a clean
breast of it in order that he may place before the
court information on extenuation, if such exists, and

thus ensure that the court has a discretion in deciding
whether or not the death penalty ought to be imposed.
The merits of such a course, one knows, are invariably

explained to an accused by his counsel or, if

54/...
54. unrepresented, by the court. If his subsequent evidence in extenuation can be taken into account on appeal to justify the conviction, the explanation of_ his legal position, and his decision on the course to take, would both be extremely difficult. He, with or without the advice of counsel, would be required to weigh up the prospects of success on appeal against the dire consequences of not tendering evidence in
extenuation. This is an unsatisfactory situation,
particularly if one has regard to the fact that extenuating circumstances as a ground for not necessarily imposing the death sentence was introduced (in terms of s 61 of Act 46 of 1935) solely in the interests of the accused. (See Rex v Lembete 1947(2) S.A. 603 (A) at 609. )

With these observations on the effect of

upholding Mr Bursey's contention, I turn to

55/...

55.

our case law on the subject.

One knows that a murder trial is unique, and

differs from others, in that a twofold enquiry can be
involved: firstly, an enguiry to determine the guilt
or innocence of the accused and, secondly, if he is
found guilty of murder, an enquiry into the question
whether there are extenuating circumstances. There are
thus two separate findings involved in such a case and
no (final) verdict ensues before the latter finding.
This much is clear and has never been called into
question. (See for instance S v Sparks & Another

1972(3) S.A. 396 (A) at 404 E.) However, this
procedural dichotomy has been discussed and commented
on in a number of decisions of this court but - and

this is to be emphasised - in the particular context of

the different questions calling for decision in each

of those cases.

56/...

56. In S v Shabalala 1966(2) S.A. 297 (A) it was

held that, although there is one (overall) enquiry

("ondersoek") viz. whether the accused is guilty of

murder with or without extenuating circumstances, such

enquiry ought to be conducted in two separate and

successive phases. The point in issue was whether

previous convictions ought to be proved before or after

the finding on extenuating circumstances. S v Fisher
en 'n Ander 1969(2) S.A. 632(A) affirmed this two-phase

approach in reference to facts similar to those in the

present case. Three accused had been found guilty of

murder without extenuating circumstances and sentenced

to death. Before sentence was passed one of them gave

evidence in extenuation - in fact on behalf of the

others. He renounced his previous evidence and said

that he was solely responsible for the commission of

the offence. On appeal the other two accused, by way

of a special entry, contended that the trial court

57/...
57. ought to have had regard to this evidence since it was competent for the court, on the strength of such evidence, to set aside or alter the finding on the merits. The trial court (Corbett J) had rejected this argument. This court (Van Blerk JA with Holmes JA and Trollip JA concurring) confirmed this view, holding at page 636 A - B that:

"(W)aar die Verhoorhof eenmaal, soos hier aan die
einde van die eerste stadium van die verhoor, 'n
uitspraak van skuldig aan moord gedoen het, die
uitspraak finaal is en die Hof nie die bevoegdheid
het om dit te heroorweeg of te wysig nie, nog uit
hoofde van sy algemene inherente bevoegdheid, nog
kragtens art. 187 (2) van die Strafproseswet."
(s 187(2) has been replaced by s 176 of the Act).
(My underlining).

The court a quo in S v Shoba 1982(1) S.A. 36 (A) had ruled that the evidence. of an accused in extenuation could not be tested by cross-examination. In correcting this misdirection, this court said that the

58/...

58.

enquiry into the existence of extenuating circumstances was an integral part of the trial and for that reason a right exists to cross-examine during the second phase. of the enquiry.

It is against this background that the

decision in S v Mavhungu 1981(1) S.A. 56 (A) is to be
considered. The appellant was one of 4 accused charged
with murder. He pleaded guilty. Evidence was
nevertheless led by the State in view of the
possibility of the death sentence being imposed.
According to the only witness called to give evidence
on the incident itself, the appellant was the person
directly involved in the killing of the deceased. The

appellant elected not to testify and closed his case.

He was found guilty of murder and thereafter gave

evidence in extenuatlon. He told of his participation

in the crime and in doing so

59/...
59.

contradicted the State case in two important respects.
He denied that he took part or was present at the time
of the killing and said that in any event the deceased
was not the person they had conspired to kill: they had
another victim in mind. Although the trial court
accepted the evidence of the appellant in preference
to that of the State witness, it found no extenuation
and the appellant was sentenced to death.
Afterwards appellant's counsel had second thoughts
about the correctness of the plea of guilty and applied

to the trial judge (a) for leave to appeal and (b)
for the evidence in extenuation to be regarded as

evidence on the merits. Leave was granted as sought in

(a) but nothing was said about (b). On appeal it was

contended that this court could have regard to the

evidence in extenuation in considering the merits of

the conviction and that the verdict should be altered

to one of being an accessory after the fact to murder,

60/...
60.

Counsel for the respondent in his heads of argument accepted these contentions. The court, nevertheless, raised the question whether a remittal of the case to_ be tried afresh was not the best course to adopt. It, however, in the result decided against doing so for reasons set out in the following passage of the judgment at page 64 C - G:

"After due reflection I do not think that remittal is the appropriate course for the following reasons. The offence was committed and appellant was arrested more than two years ago. He was convicted and sentenced to death on 17 October 1979. So he has been awaiting the outcome of these proceedings for a considerable time. If the case were to be remitted for re-trial, its ultimate outcome would be further delayed. That delay may be appreciably prolonged by reason of a possible further appeal to this Court against the decision on the re-trial by appellant or even the State. Such an appeal is a real possibility since the legal problem now raised by appellant's counsel on the merits is not free from difficulty, as will presently appear. Moreover, since his arrest appellant has made a clean breast of his complicity in the commission of the offence; he has stood his trial; he there gave a full version of the part he had allegedly played in the
61/...

61 .

commission of the offence; it was accepted by the trial Court; and he was duly granted leave to appeal to this Court. In all those circumstances to subject him to a re-trial before another Court with the ensuing delay and uncertainty of its. outcome, instead of now disposing of the matter finally on the record of the proceedings before us, would be unduly prejudicial to appellant. After all, this is not a case where, if the present appeal succeeds, the appellant will go scot-free; a verdict of guilty of being an accessory after the fact in respect of the murder will then be substituted, for which he can be appropriately punished by us; so the ends of justice will still be adequately served."

The court next remarked on the fact that counsel for the appellant had sought to rely on the provisions of s 316(3) and (4) of the Act to have this evidence before the court on appeal but that the court a quo had made no order in this regard. It was against this background, which I deemed necessary to set out in some detail, that the court concluded "that theré is a simpler, better reason why we can on appeal in this case have regard to the evidence in extenuation in

62/...

62.

adjudicating on the correctness or otherwise of the Court a quo's verdict". (65 C - D).

These reasons follow:

"Section 330(1) of the prior, now repealed Criminal Procedure Act 56 of 1955, as amended, provided that, where the Court 'in convicting the accused of murder' was of the opinion that there were extenuating circumstances, it could impose any sentence other than the death sentence. In S v Shabalala 1966 (2) SA 297(A) this Court held
that the sub-section involved a twofold procedure:
first an inquiry into the accused's innocence or guilt of the alleged murder, and, if his guilt was found proved, then a further inquiry into the presence or absence of extenuating circumstances. But, despite that procedural dichotomy, this Court (through Rumpff JA) at 300B of that case, and through Holmes JA in S v Sparks and Another 1972 (3) SA 396(A) at 404E, affirmed that in reality, where the accused is convicted of murder, there is only one overall proceeding and a single, albeit composite, verdict of guilty of murder with or without extenuating circumstances, as the case may be. The trial only ends when such a verdict is delivered. That also applies now under the corresponding s 277(2) of the present Act, since its relevant wording remains substantially the same. It follows that, for the purpose of an appeal against that verdict, the record of the
63/...

63.

evidence of the entire proceedings must be laid before this Court for its consideration. And in considering whether the verdict was right or wrong this Court can also have regárd to the evidence adduced in extenuation. Thus where, for example, an issue on appeal is the identity of the murderer, it would be quite unrealistic and wrong for this Court in considering the verdict of guilty to ignore credible testimony given by the accused in extenuation admitting that he was the murderer. Similarly, there is no reason why that should not also be done where credible testimony is so given by the accused proving that he. was innocent. Hence, in the present case we can, I think, have regard to appellant's evidence given in extenuation in determining what offence he was guilty of." (65 D - I).

In reaching this conclusion there was no prepared and, one may therefore infer, no detailed argument presented on the correctness or suitability of the course adopted. And the implications and complications of such a course, to which I have referred, were apparently not raised or considered. It would appear that the special and unusual circumstances referred to in the first-quoted passage from the judgment weighed

64/...

64.
heavily with the court in reaching its decision.
Though Fisher's case is referred to in the judgment, at
page 64H, only that portion of that decision which held
that there was no "wrong judgment" delivered "by
mistake" appears to have been taken into account.
Fisher's case also decided that the court had no

inherent right to rely, with reference to the merits,
on the evidence given in extenuation. Finally, as
regards Mavhungu's case, it should be noted that,
although the court pertinently decided that evidence in
extenuation coúld be taken into account in favour of an
accused in deciding whether the first finding was
correct, the illustration in the judgment (of an
admission in extenuation proving the identity of the

accused) makes it clear that an even-handed operation

of this principle was intended and sanctioned. (In an

earlier unreported decision of this court in Themba

Nene v The State (No 86/76 : judgment delivered on 2

65/...

65.
September 1976) the same view was taken obiter with reliance upon what was said in Shabalala's case and Sparks's case.)
In S v Theron 1984(2) S.A. 868(A) it was contended that there was no onus on an accused person to prove extenuating circumstances. In rejecting this argument, which was based inter alia on Mavhungu's case, Rabie CJ (with the concurrence of the four other members of the court) questioned, at page 879 D - H, the correctness of Mavhunqu's case in these terms:

"Ek het, met eerbied gesê, bedenkinge oor die juistheid van die stelling in Mavhunqu se saak wat hierbo aangehaal is, anders as wat mag blyk uit S v Hlatswayo 1982(4) SA 744(A), waar ek met die uitspraak van Holmes AR saamgestem het. Waar h moordverhoor in twee fases, soos hierbo genoem, geskied, kom dit my as twyfelagtig voor of dit heeltemal juis is om te sê dat daar net een ondersoek en net een bevinding (of net een 'composite finding') is. In die twee fases van die verhoor is daar immers twee geskilpunte wat duidelik van mekaar te onderskei is: die een het betrekking op die vraag of die misdaad moord bewys is, en die tweede op die vraag of daar versagtende

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66.

omstandighede by die pleeg van die misdaad was.
Aan die einde van die eerste fase word die
beskuldigde, by behoorlike bewys van die elemente
van die misdaad moord, aan moord skuldig bevlnd,
en nadat daardie bevinding gemaak is, volg die
ondersoek na die vraag van versagtende
omstandighede - 'n ondersoek wat op die kwessie van
vonnis gerig is. Nadat 'n bevinding hieroor gemaak
is, word dan die toepaslike straf opgelê. Die Hof
maak derhalwe nie 'n bevinding soos 'skuldig aan
moord sonder versagtende omstandighede', of
'skuldig aan moord met versagtende omstandighede',
nie. Daar is in werklikheid twee afsonderlike
bevindinge, teen elkeen waarvan daar (met die
nodige verlof) geappelleer kan word. Daar dien
ook op gelet te word dat 'n beskuldigde wat op 'n
aanklag van moord teregstaan, in die klagstaat van
moord aangekla word, en nie van moord sonder
versagtende omstandighede, of moord met
versagtende omstandighede, nie. Daarbenewens moet
ook vermeld word dat ook in daardie sake waarin
daar gesê word dat daar by 'n moordverhoor net een
ondersoek en net een bevinding is, daar
terselfdertyd gesê, of aanvaar, word dat daar twee
geskilpunte is en dat die bewyslas met betrekking
tot daardie twee geskilpunte nie op dieselfde
party rus nie."

Thus, although there can be no doubt that

there is no final verdict until a ruling on
extenuation is given, this decision emphasises that
there are two separate findings, involving separate

67/...

67.
enquiries and supports the view for which the accused
contends.

In Mnyandu and Another v The State, an

unreported decision (No 528/87: judgment delivered on 1
June 1988) this court (Corbett and Smalberger JJA and
Nicholas AJA) expressed doubt about the correctness of

the conclusions reached in Mavhungu's case ahd said

that, in the light of Theron's case, it may have to be
reconsidered.

The facts of this case oblige one to do so

and for the reasons given, in my respectful view, it
ought not be followed. It is rather to be recognised
and affirmed that evidence given in extenuation cannot
at any stage be relied upon to set aside, vary or

substantiate the preceding finding on the guilt of a
person on a murder charge. This conclusion, one need

hardly add, does not affect the right to apply to lead

further evidence in terms of s 316 of the Act. It

68/...

68. must also be noted that the converse does not apply: the court can have regard to extenuating facts emerging from the evidence led before an accused is found guilty. The acknowledgement of this "exception" - if it is so to be regarded - is in the interests of an accused person and can cause no prejudice to the prosecution.

A conviction of public violence being a

competent verdict on a charge of murder, at the trial
some of the co-accused were convicted of this lesser
offence. Mr Kuny, who with Mr Chetty represented the
appellants, conceded that on the admissible evidence
accused no 2 was guilty of public violence. As regards
sentence, he submitted that we should be guided by the

sentences imposed on the other accused for this
offence, but with due regard to the particular facts

relating to this accused's complicity. This I have

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69.
done, and consider that a sentence of the order of four years' imprisonment with a further year conditionally suspended would be appropriate. However, the accused has been in custody since November 1985. S 282 of the Act does not authorise this court to antedate the sentence: S v Mqedzi & Others 1989(1) S.A. 687(A) at 716 G - 717 B. In the circumstances one can only impose a wholly suspended sentence to ensure that the punishment is in the result fair.

The appeal of accused no 1, though no less

important, can be more briefly dealt with. It is, as I
have saidU confined to the question whether the trial

court was correct in finding that there were no

extenuating circumstances. The court referred to the

gruesome nature of the deed; the fact that the accused

took the law into their own hands and in effect

executed the deceased; and that accused no 1 had not

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70.

actually delivered the fatal blow. The participation
of accused no 1 is thus summarised in the judgment on
extenuation:

(A)ccused No. 1 was one of those who held one of his arms as he was taken away towards the spot where he was put to death. As they proceeded on their way the deceased was repeatedly assaulted by members of the crowd. Accused No. 1 states in his confession, EXHIBIT J, that he also assaulted the deceased by striking him five times with a piece of steel piping which he had in his possession. He says further in his confession that the deceased was also stabbed along the way. In the statement which he made to Lieutenant Du Plessis, EXHIBIT Y.2,accused No. 1 goes on to describe how at the spot where the deceased was put to death he assisted in tying the deceased's feet together."

In the circumstances Van Rensburg J decided that the
accused had not played a subordinate role. Counsel's
argument to the contrary is not borne out by the
evidence. Mr Kuny was unable to advance any further
argument on the other alleged grounds for extenuation:
that accused no 1 was part of a group and did not act
as an individual; that the deceased was said to be an

71/...
71 . informer; and that the motive f or his death was a political one. Each of these possible grounds was considered by the court a quo and rejected. Mr Kuny did not submit that in doing so it had misdirected itself. I agree and, after examining the evidence in relation to them, cannot say that the court's finding on extenuation was wrong.

The appeal of the first appellant (accused no 2) succeeds partially. His conviction and sentence are set aside. In substitution the following order is made: "Accused no 2 is found guilty of public violence and sentenced to one year's imprisonment which is suspended for five years on condition that he is not found guilty of public violence committed during the period of suspension." The appeal of the second appellant (accused no 1) is dismissed.

M E KUMLEBEN
JUDGE OF APPEAL
BOTHA )

E M GROSSKOPF ) JJA - Agree

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