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Case No 426/90 /MC

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

ANDILE DAKUSE First Appellant
PETER MANDYOLI Second Appellant

LUYANDA KLAAS Third Appellant
- and -

THE STATE Respondent

CORAM: VAN HEERDEN, VIVIER JJA et VAN

COLLER AJA.

HEARD: 2 September 1991.

DELIVERED: 12 September 1991.

JUDGMENT

VIVIER JA.

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VIVIER JA:

The three appellants ("accused No's 1, 3 and 5" respectively), together with three others ("accused No's 2, 4 and 6" respectively) were charged in the South Eastern Cape Local Division before REIN AJ and assessors on nine counts including one count of murder (count 1), one count of attempted murder (count 2), one count of robbery (count 4) and one count of house = breaking with intent to steai and theft (count 5). Accused No 2 died before the trial commenced and accused No' s 4 and 6 were discharged at the close of the State case. At the conclusion of a lengthy trial accused No's 1, 3 and 5 were ail convicted on counts 4 and 5 and accused No 3 was in addition convicted on counts 1 and 2. They were found not guilty on the remaining charges. In respect of the conviction of

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accused No 3 on the charge of murder the trial Court found that there were no extenuating circumstances, and under the then prevailing law accused No 3 was consequently sentenced to death. On count 2 he was sentenced to 12 years' imprisonment, on count 4 to 14 years' imprisonment and on count 5 to 4 years' imprisonment. Six years of the sentence on count 4 and the whole of the sentence on count 5 were ordered to run concurrently with the sentence on count 2, so that he received an effective sentence in respect of these counts of 20 years' imprisonment. Accused No 1 was sentenced to 12 years' imprisonment on count 4 and 4 years' imprisonment on count 5. Accused No 5 was sentenced to 8 years' imprisonment on count 4 and 3 years' imprisonment on count 5. In the case of both accused No's 1 and 5 it was ordered that their sentences were to run concurrently, leaving accused No

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1 with an effective sentence of 12 years' imprisonment and accused No 5 with an effective sentence of 8 years' imprisonment. With the necessary leave accused No's 1, 3 and 5 appeal to this Court against their convictions and sentences.
The State case at the trial was that during the early evening of Sunday 25 May 1986 a gang of some six or seven men, including accused No's 1, 3 and 5, attacked the farmhouse of Mr and Mrs Cronje on their smallholding some 6 km from Cradock. During the course of the attack Mr Cronje ("the deceased") was shot and killed and Mrs Cronje was shot through the right shoulder, hit over the head with a hammer and then raped. After ransacking the house and unsuccess= fully attempting to set fire to it, the gang made their escape in the deceased's bakkie with a large quantity of stolen goods and an amount of R1 500 in cash which

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5. they had taken from the house. The bakkie was subsequently found burnt out and abandoned. The total value of all the stolen goods and the cash came to more than R19 000.
Mrs Cronje was the only eye-witness to testify on behalf of the State, and although she was unable to identify any member of the gang, she gave a clear and detailed account of the events of the fateful evening. The trial Court described her as a most remarkable and impressive woman and a completely reliable witness and accepted her evidence in toto. With the exception of her identification of three articles of bed linen and the number of gunshots she heard during the attack, this finding was not challenged on appeal. According to her evidence she and the deceased were watching television in the kitchen at about a quarter to eight that evening when she heard a noise outside the back door. When they went outside to investigate they found two motor car .

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tyre pumps lying on the ground outside the storeroom near the back door, where tools and other equípment were kept and which was not locked. They put the pumps in the storeroom and returned to the kitchen. The eight o'clock news had just started when their dogs started barking fiercely. Mrs Cronje turned on the outside lights in the backyard and they again went outside to investigate. This time the deceased was immediately attacked by three Black men. He tried to fight them off when a fourth Black man came up to the deceased and fired a shot at him from almost point-blank range. Mrs Cronje ran into the kitchen where someone - she could not say whether it was the same man who had shot the deceased - fired a shot at her and missed. She ran into the passage off the kitchen, followed by the man who had shot at her. He fired another shot at her which struck her in the right

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shoulder. She tried to get into one of the bedrooms but someone grabbed her hands behind her backwhile another man hit her over the head with a hammer. She collapsed on the floor in the passage and was left for dead by her assailants. After a while she managed to get up and went past the kitchen into the main bedroom. As she passed the kitchen she saw one of the intruders dragging the body of the deceased into the kitchen. She tried to use the telephone which is in the main bedroom but found that it was out of order. She locked the door of the bedroom from the inside and hid under the bed. The room was in darkness. The bedroom door was then kicked open and, peering from underneath the bed, she saw four men enter the room. They were using torches. They went through both wardrobes and took clothes and other belongings from it, including an amount of Rl 500 which was kept in a bottle in one of

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the wardrobes. Two of the men then left the room. Mrs Cronje was dragged from under the bed and raped by one of the remaining men. He thereafter tried to cút her throat but his companion told him to leave her alone as she was already dead. They then lef t the room. She either fell asleep or lost consciousness and when she came to again the intruders had left. She found the deceased lying dead in the kitchen. She left the house in search for help. It was then twenty minutes to ten. She was later that night taken to hospital and stayed there for ten days. She received psychiatric treatment for some months.

Constable Ralph of the Cradock police arrived at the scene shortly after ten o'clock that evening. In the passage he found a paraffin drum from which paraffin had been sprinkled onto the floor as well as another drum from which diesel oil had been poured in

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an apparent attempt to set fire to the house. Just outside the kitchen door he picked up a 9 millimetre spent cartridge. Warrant Officer Jordaan, who arrived at the scene a little later, found another 9 millimetre spent cartridge in the kitchen. He also found two bullet tips, one in the kitchen and one in the passage. The next morning the deceased's daughter, Mrs Swiegers, arrived and she discovered five more 9 millimetre spent cartridges in the lounge under the coffee table. She lost one and handed over the other four to the police. Altogether six 9 millimetre spent cartridges and three bullet tips were therefore recovered by the police (the third bullet tip was found in the deceased's body during the post mortem examination) all of which were later examined by a ballistics expert.

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It was not in issue on appeal that two weeks later on 7 June 1986, accused No 3 was foúnd in possession of a 9 millimetre pistol which had been used to fire three of the six 9 millimetre cartridges found in the house. The ballistic evidence was that the remaining three cartridges had all been fired by one gun which was not the 9 millimetre pistol found on accused No 3. It was not possible to determine whether any of the bullet tips had been f ired by the gun in question. According to the evidence of Constable Earl he and Warrant Officer Van Rensburg were on patrol duty in Port Elizabeth early on 7 June 1986 when they saw three Black men walking towards them. They stopped their police vehicle next to the three men, got out and started searching them. Earl identified two of the men as accused No's 3 and 5 respectively. A 6,35 millimetre pistol was found in accused No 5's jacket

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pocket and the 9 millimetre pistol in guestion was found tucked inside accused No 3's pants. There were seven rounds of ammunition in it and it was cocked. The third man escaped before he could be searched. Accused No's 3 and 5, who said that they were brothers and gave their surname as Makubela, were arrested and later charged with the illegal possession of firearms and ammunition.
Warrant Officer McLeod testified at the trial that he found the fingerprints of accused No's 1 and 3 inside the deceased's house the day after the attack. Accused No l's fingerprints were found on a wooden baton in the kitchen as well as on a Black Magic chocolate box and on one of the wardrobes in the main bedroom. Accused No 3's fingerprints were found on a plastic box used by Mrs Cronje for her needlework in one of the other bedrooms. It was put to McLeod in

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cross-examination by defence counsel that it would be denied that the fingerprints lifted by him were 'those of accused No's 1 and 3. In his evidence accused No 1 admittedy however, that he was in the house on the night in question. Accused No 3 denied in his evidence that he was ever inside the house. McLeod's evidence was accepted by the trial Court and this finding was not challenged on appeal.
Other State evidence which was not in issue on appeal was that of Elizabeth Malusi and Agnes Panziso to the effect that they had bought certain of the stolen goods from accused No 3. These items were later recovered by the police and identified by Mrs Cronje as her property. The police also found a sheet and two pillowcases in the house where accused No 5 was staying at the time, which Mrs Cronje later claimed as her property. In my view the trial Court

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erred in accepting her identification of these items as she was unable to mention any distinguishing náme or feature by which she could identify them, and merely relied upon their general appearance. The trial Court also erred, in my view, in admitting the evidence of Major Strauss to the effect that on 30 June 1986 accused No 5 had pointed out various points in the immediate vicinity of the farm house and inside the house to him. The trial Judge ruled, after a trial within a trial, that certain statements made by accused No 5 to Maj or Strauss on the same occasion were inadmissible as they had not been made freely and voluntarily. For the same reasons the evidence of the pointings out should also have been disallowed. (S v Sheehama 1991(2) SA 860(A)).

Accused No's 1, 3 and 5 all testified at the trial. According to accused No 1 he spent the afternoon of the day in question drinking at a shebeen

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in Cradock. He arrived at the shebeen at about 2:30 pm and was later joined by accused No 3 and then by accused No 5. After hearing from accused No 5 about a storeroom on a certain farm which was never locked it was decided to go to the farm to steal motor car tools from the storeroom. A little later accused No 2 arrived at the shebeen and he decided to go along with the others. They left the shebeen shortly before dusk. On their way to the farm they met two or three people who, after accused No 2 had spoken to them, turned around and joined them. When they came to the farm accused No 5 pointed out the store to him and he went into the store, took two motor car pumps and ran away, dropping one of the pumps as he did so. He jumped over a fence and lay down next to a tree. He heard two or three gunshots. Accused No 2 then came up to him and persuaded him to return to the farmhouse.

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Outside the kitchen door they met one Mongesi who threatened him with a gun and told him to help him carry goods from the house. He knew Mongesi to be a wanted criminal. Inside the kitchen he saw the deceased' s body on the f loor. He went into the main bedroom and removed some clothes from one of the wardrobes and picked up various articles from the floor which he put on the kitchen floor. He then ran home. The Court a quo found accused No 1 to be a lying witness and rejected his evidence. The trial Court found that accused No 1 had made common cause with the other accused to go to the deceased's farm in order to commit the offences of which he was found guilty.

Accused No 3 ' s evidence was also to the effect that on the afternoon in question he was drinking at Cooksie's shebeen in the company of accused No's 1 and 5 when they decided to go to the deceased's

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farm to steal motor car tools. On the way they were joined by accused No 2 and later by three óthers. When they reached the farm accused No 3 lost his shoe and when he finally managed to find it the others had gone ahead. He heard a gunshot. He eventually reached the store, took some spanners and went home. He at no stage entered the deceased's house. He was not armed when he went to the f arm and did not know whether any other member of the group carried a gun. Accused No 3 said that on 7 June 1986 he travelled to Port Elizabeth by train to visit his aunt. He met Mongesi on the train before it arrived at Cookhouse. He saw accused No 5 at Cookhouse station and asked him to accompany them to Port Elizabeth. Upon their arrival in Port Elizabeth all three of them left the station together. They were arrested a short distance from the station. The police found nothing on him

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but they found a gun on accused No 5 and one in Mongezi's bag. He said that both he and accused No 5 gave their correct names to the police and that they did not tell the police that they were brothers. He denied that he had sold any of the stolen goods to the state witnesses Elizabeth Maluzi and Agnes Panziso and said that on the occasions in question he had merely accompanied Mongezi who sold the goods to Elizabeth and Agnes.
The trial Court rejected accused No 3's evidence as false. It found that accused No 3 was inside the deceased's house on the night in question and that he left his fingerprints on the plastic container in the one bedroom as testified to by Warrant Officer McLeod. The trial Court accepted the evidence of Elizabeth Maluzi and Agnes Panziso that accused No 3 had sold Mrs Cronje's clothes to them.

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It also accepted the evidence of Constable Earl relating to the arrest of accused No's 3 and 5.

Accused No 5 testified that he told accused

No's 1 and 3 in the shebeen about the unlocked store and suggested that they go to the farm to steal certain equipment. On their way they were joined by f our other men. When they reached the farm he pointed out the store to the others, but when they came to the water canal near the farmhouse he decided to turn back and he went home. He further testified that he had supplied his correct name to the police when he was arrested in Port Elizabeth on 7 June 1986. That day he was visiting his sister in Cookhouse and had gone to the station to fetch someone who had come to stay with them. While looking for this person he came across accused No 3 who asked him to go with him to Port Elizabeth. Without informing his sister or fetching

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his spare clothing and other belongings he left for Port Elizabeth with accused No 3. There was no other person with accused No 3 on the train and when they alighted at Port Elizabeth it was only he and accused No 3. On the train he had picked up a jacket which he took with him and it was only when he was searched by the police that he discovered that there was a firearm in the pocket of this jacket.
The Court a quo found that the evidence of accused No 5 was so inconsistent, so improbable and so full of deliberate lies that it was without any substance whatsoever and should be rejected. It held that accused No's 3 and 5 were part of a well planned and well prepared expedition which set out on the evening in question for the deceased's farmhouse with the intention to rob the house of its contents and to overcome, if necessary, by force any resistance which

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might be offered by the occupiers of the house.
The trial Court accepted Mrs Cronje's evidence that only three shots were fired during the attack, namely the one which killed the deceased, the one which missed her and the one which hit her in the shoulder. The trial Court found that these three shots were fired by the pistol which was later found in possession of accused No 3, and that the only reasonable inference which could be drawn in all the circumstances was that it was accused No 3 who had fired the three shots. Accused No 3 was accordingly found guilty of murdering the deceased and of attempting to murder Mrs Cronje. The trial Court held that it had not been proved beyond reasonable doubt that accused No's 1 and 5 were aware that accused No 3 was armed or that they otherwise foresaw the possibility that the deceased might be killed or Mrs

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Cronje shot. As regards the charge of housebreaking
with intent to steal and theft (count 5), the trial Court held that all the members of the gang must have known that they required transport to convey the goods taken from the house so that the theft of the motor vehicle formed part of their plans.
Mr Fourie, who appeared on behalf of accused No's 1, 3 and 5 before us, submitted that the trial Judge committed an irregularity during the proceedings by questioning each of the accused, while he was testifying in his defence, in a manner which was impermissive or excessive. He also submitted that the trial Judge "descended into the arena" against the accused by showing bias towards each of them. Although it is true that the trial Judge often intervened and questioned each accused at length, I am unable to find that in doing so he exceeded the

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limitations upon judicial questioning laid down in decisions of this Court such as S v Rall 1982(1) SA 828(A) at 831H - 832H. I furthermore cannot agree with the submission that the trial Judge "descended into the arena". The passages relied upon for the submission that he did so by showing bias towards each of the accused, do not bear out the submission.
Mr Fourie was unable to attack the convictions of accused No's 1 and 3 on counts 4 and 5 on any other ground. In my view the tr ial Court correctly found that they had made common cause with the rest of the gang to go to the deceased's farm to commit the offences of housebreaking and robbery. Their fingerprints which were subsequently found in the house confirm that they actively participated in the commission of these offences. Their exculpatory evidence was rejected by the trial Court as false and

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it was not submitted before us that the trial Court
erred in rejecting their evidence. * .
I proceed to consider the conviction of accused No 3 on the murder charge. It will be recalled that two 9 millimetre cartridges were recovered by the police: one outside the kitchen door and one inside the kitchen. A further five 9 millimetre cartridges, of which one was subsequently lost, were found by the deceased's daughter in the lounge under the coffee table. The six cartridges which were dispatched for ballistic tests were not kept separate so that it was not possible to determine exactly which three of these cartridges had been fired by the 9 millimetre pistol later found on accused No 3. What is clear is that at least one of the cartridges which were fired by the pistol accused No 3 was found in possession of, must have been amongst those found

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under the coffee table in the lounge. The possibility that the remaining two cartridges which were fired by accused No 3's pistol were also amongst those found by the deceased's daughter cannot be excluded. This means that the two cartridges which were recovered by the police may well have been fired by another pistol. The reasonable possibility that Mrs Cronje was mistaken in her evidence that only three shots were fired, cannot be excluded. It was therefore not established beyond a reasonable doubt that the three shots fired at the deceased and Mrs Cronje were fired by the pistol later found on accused No 3. Without proof that accused No 3 fired the shots, his convictions on the murder and the attempted murder charges cannot stand in view of the concession by counsel for the State that accused No 3's liability for these offences on the basis of common purpose has not been established.

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I proceed to deal with accused No 5's conviction on counts 4 and 5. I have already said that the evidence relating to the pointing out to Major Strauss should have been excluded by the trial Judge. I have also said that the evidence relating to the recovery of the three items of bed linen was insufficient for it to be taken into account against accused No 5. There is thus no State evidence remaining to implicate him in the commission of the offences. His own evidence that he turned back and went home before the gang reached the deceased's house was rejected by the trial Court. Considering the fact that he was only 15 years old at the time, the reasonable possibility that he did turn back cannot, in my view, be excluded. He was accordingly wrongly convicted on counts 4 and 5.

That leaves the appeal by accused No's 1 and

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3 against the sentences imposed in respect of counts 4 and 5. On behalf of accused No 1 it was submitted before us that his sentences were grossly excessive in view of his age - he was 20 years and 8 months old at the time of the commission of the offences - and the fact that he had already spent approximately two and a half years in prison while awaiting trial. I cannot agree. After careful consideration of all the relevant circumstances, the very serious nature of the offences and the person of the accused, I am unable to find that the sentences are so severe that they justify interference on appeal. On behalf of accused No 3 it was submitted that the trial Judge failed to attach sufficient weight to the approximately two and a half years he had spent in prison awaiting trial as well as to his personal circumstances. I again cannot agree. In the judgment on sentence the fact that accused No 3

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had spent approximately two and a half years in prison awaiting trial is expressly referred to. There is also express reference to all his personal circumstances: his age (he was 20 years and 6 months old at the time of the commission of the offence); his lack of education; his illiteracy; his backward mental state and his three previous convictions for related offences. At the same time the nature of the offences cannot be overlooked, as the trial Judge points out in his judgment on sentence. In all the circumstances it cannot be said that the trial Judge misdirected himself or that the sentences are so severe that this Court would be justified to interfere.

In the result the following order is made: 1. The appeals of accused No's 1 and 3 against their convictions and sentences on counts 4 and 5 are dismissed.

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2. The appeal of accused No 3 against his convictions and sentences on counts 1 and 2 succeeds and the convictions and sentences on these counts are set aside.
3. The appeal of accused No 5 against his convictions and sentences on counts 4 and 5 succeeds and the convictions and sentences on these counts are set aside.
4. In the case of accused No 3 it is ordered
that the whole of the sentence on count 5
will run concurrently with the sentence on
count 4. His effective sentence on counts 4
and 5 is therefore 14 years' imprisonment.

W. VIVIER JA.

VAN HEERDEN JA)

VAN COLLER AJA) Concur.

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