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[1991] ZASCA 120
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S v Majosi and Others (446/90) [1991] ZASCA 120 (26 September 1991)
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Case No. 446/90
IN THE SUPREME COURT OF SOUTH AFRICA Appellate Division
In the matter between:
SIMON BONGANI MAJOSI First Appellant
MICHAEL ZONDI Second
Appellant
MNGXOBENI SOKHELA Third Appellant
WILTON NOLZIMANDE Fourth
Appellant
THULANI Z M MAGUBANE Fifth Appellant
and
THE STATE Respondent
CORAM: SMALBERGER, NIENABER JA et KRIEGLER AJA HEARD: 9 SEPTEMBER 1991 DELIVERED: 26 SEPTEMBER 1991
1
JUDGMENT NIENABER JA:
On Sunday 29 May 1988 at about noon a robbery
occurred at the Checkers supermarket in Hillbrow, Johannesburg. Two of its
employees,
Mrs Byrne and Mr Botha, a security guard, collected the cash takings
of the morning from the various cashiers at the tills. The tills
are lined up at
street level and are open to the pavement outside. Mrs Byrne started collecting
the money at the one end, Botha at
the other. They moved from till to till. This
was a regular daily or twice-daily operation, visible to anyone inside or
outside the
store. As part of the routine the manager of the supermarket, Mr
Knight, and the assistant manager, Mr Glanz, had taken up positions
on the
pavement directly opposite the tills. When Mrs Byrne and Botha met in the middle
he placed all the takings in a sihgle yellow
bag. It was afterwards calculated
to have contained R28 600,00. They proceeded to the first floor. Botha was
carrying the bag with
the money. They had reached the top of a narrow
stairway,
2
out of sight of the public, and were entering a
security area when Mrs Byrne happened to glance back
and saw that Botha
was talking to two black men at the
security gate which she had just unlocked and passed
through. One of them was wearing a white dust-coat and
the other was dressed in brown. They were obstructing
Botha from closing
the gate. She was not alarmed,
believing them to be co-employees, but when
she heard a
noise she looked back again and saw that Botha was
being
pulled through the gate. It sounded to her as if
they were tumbling down the staircase.. She shouted to
another
co-employee, a Mr Azari, who was in the cash
office nearby, and he rushed
towards them. Botha was
holding on to the man in brown. The latter had a
gun.
The two of them were struggling. Botha called on Azari
to grab the gun but as Azari tried to do so the man in
brown managed to
toss it towards his companion who was
then standlng at the foot of the stairs. Azari
testified as follows:
"When they were down at that spot, was Mr Botha still holding onto one of the robbers? — Yes, he was.
What dld the other person who now had
the gun do? He then told me that he was
going to shoot.
3
That is now the man with the gun?
With the gun. I then lay down on the stairs.
Where were you at that stage? I was
.. (intervenes)
Were you still above the deceased, were
you then above the deceased? Yes, behind
the deceased.
Yes? And then the robbers, the guy
with the gun then went up two steps and shot Mr Nols Botha."
Botha, fatally wounded, released the other man. The two robbers then fled with the bag of money. They ran past Knight and Glanz, who were still stationed on the pavement outside the store, towards a Granada motor vehicle which was double-parked in a nearby side street some 100 to 250 metres away. Knight chased them but the car drove off as soon as the two of them entered it. Knight followed on foot for some distance. The car drove at high speed through several red traffic lights and eventually disappeared. from sight.
According to the medical evidence the deceased, Botha, was most likely killed by a single shot, fired into his head from above and to the right of him.
These events led to the trial, a year later,
4
of the five appellants in the Witwatersrand Local Division, before Smit J and
two assessors, on four counts - count 1, the murder
of Botha, count 2, robbery
with aggravating circumstances as defined in section 1 of the Crimrnal Procedure
Act No. 51 of 1977; counts
3 and 4, the unlawful possession of a firearm and
ammunition in contravention of the relevant sections of the Arms and Ammunition
Act No. 75 of 1969.
None of the eyewitnesses to the robbery and the murder
was able to identify any of the malefactors. All five appellants were
nonetheless
convicted, on one or more of the various counts. The conviction of
each rested on a confession he had made to a justice of the peace.
The
admissibility of all of these statements was strenuously but unsuccessfully
challenged in the court a quo. Largely on the basis
of what was thus admitted
three of them, appellants Nos. 2, 4 and 5, were convicted of murder, all of them
were convicted of robbery
with aggravating circumstances and two, Nos. 1 and 5,
were in addition convicted of the firearm offences. The court furthermore found,
applying the law as it then stood, that the three appellants
5
convicted of murder had not discharged the onus of proving that there were extenuating circumstances. The appellants were accordingly sentenced as follows:
The first appellant:
Count 2:
Robbery with aggravating circum-
stances: sentenced to imprisonment for
14
years.
Count 3: Unlawful possession of a firearm:
sentenced to imprisonment for
one year, which
it was directed was to run concurrently with
the sentence on count 2.
The second appellant:
Count 1: Murder: sentenced to death.
Count 2: Robbery with
aggravating circum-
stances: sentenced to imprisonment for 14
years.
The third appellant:
Count 2:
Robbery with aggravating circum-
stances: sentenced to imprisonment for
14
years.
The fourth appellant:
Count 1: Murder: sentenced to death.
6
Count 2: Robbery with aggravating circum-stances: sentenced to imprisonment for 14 years.
The fifth appellant:
Count 1: Murder: sentenced to death. Count 2: Robbery with aggravating circum-stances: sentenced to imprisonment for 14 years.
Count 3: Unlawful possession of a firearm: sentenced to imprisonment for one year, which it was directed was to run concurrently with the sentence on count 2.
Count 4: Unlawful
possession of ammunition:
sentenced to imprisonment for one year, which
lt
was likewise directed was to run
concurrently with the sentence on count
2.
All five appellants were granted leave to
appeal by the court a quo:
appellants Nos. 2 and 4
(but not appellant No. 5) against their convictions
for
murder; appellants Nos. 2, 4 and 5 agalnst their
sentences of death;
and all five of them against the
sentence of 14 years imprisonment imposed in
respect of
7
the robbery charge.
In this court, unlike in the court a quo, the
admissibility of the confessions made by each of the appellants was not ih
issue. What
was strenuously disputed on behalf. of appellants Nos. 2 and 4 was
whether the statement of each contained sufficient admissions
to render him
criminally liable in terms of the so-called doctrine of common purpose. It was
on that basis that the court a quo approached
the matter.
I commence with the
convictions of appellants Nos. 2 and 4 on the count of murder. The conviction
of appellant No. 2 of murder.
His statement, exhibit J, reads as follows
(for the sake of convenience I insert a reference to
the appellant
concerned whenever a name is mentioned):
"Dit was op 'n Sondag, ek kan nie die datum onthou nie. Dit was ek (appellant No.2), Mgxobeni (appellant No.3), Xolani (appellant No.4), Bongani (appellant No.l) en Mbamsela (appellant No.5). Ons het 'n Ford Granada gery na Hillbrow. Ons het na 'n swartman Bheki toe gegaan. Ons het die vuurwapen van Bheki af geleen, en hy het die vuurwapen aan Bongani (appellant No.l) gegee.. Ons het vandaar na Checkers toe gegaan. Ek en Mgxobeni (appellant No.3) het te voet gestap. Die ander drie, Xolani (appellant No.4), Bongani (appellant No.l) en Mbamsela
8
(appellant No.5), het met die Granada gery na Checkers toe. Ek en Mgxobeni (appellant' No.3) het buitekant die winkel gestaan. Xolani (appellant No.4) en Mbamsela (appellant No.5) het binne in Checkers ingegaan. Hulle was lank binne in dié winkel. Ek het verskuif van waar ek gestaan het na die oorkant van die straat. Terwyl ek oorkant die straat was ek het 'n skoot van die' vuurwapen gehoor.
Na die skoot ek het gesien Xolani (appellant No.4) en Mbamsela (appeilant No.5) hardloop by Checkers uit. Hulle het uit sig verdwyn. Ek het na Noordstraat toe gegaan waar ek 'n taxi na Diepkloof gehaal het. By Diepkloof het ek 'n ander taxi gehaal na Dube hostel toe. Ek het Xolani (appellant No.4), Bongani (appellant No.l) en Mbamsela (appellant No.5) by die hostel gekry. Mgxobeni (appellant No.3) was nog nie daar nie. Hy het na my daar aangekom. Die tyd wat ek by Dube hostel kom ek het gemerk dat daar was 'n plastieksak van Checkers met geld daarin. Ons het daai geld tussen ons verdeel. Ek het R1200 ontvang. Ons het toe uitmekaar gebreek. Ek het by my woonplek gegaan by Mafolo."
What the statement, taking it at face
value, shows, either expressly or by implication, is that:
(a) the five
appellants hatched the plan and formed the common purpose to rob the Checkers
supermarket at Hillbrow;
9
(b) they borrowed a firearm which was patently to be used in the furtherance of that common purpose should the need arise to do so - which would be to threaten or intimidate their victims, to overcome any resistance or to engineer an escape;
(c) appellant No. 2 accompanied his assoc-iates on foot to Checkers; (d) he took up a position in the street outside the building but within sight of the tills. It is fair to infer that he was assigned the function of keeping watch; (e) appellant No. 2 did not personally participate in or witness the actual murder of the deceased. He did, however, hear a shot being fired whlch, belng the only shot referred to by the eye-witnesses, must have been the one which fatally wounded the deceased; (f) appellant No. 2 joined his companions afterwards and shared in the spoils of their joint enterprise.
What the statement does not reveal is a prior agreement or common purpose between the five appellants
10
to murder, as opposed to rob, anyone. (S v Yelani 1989
(2) SA 43 (A) at 46E-G.) Accordingly the murder of the
deceased by
appellant No. 2' s associates can only be
imputed to appellant No. 2 if his
situation corresponds
to paragraph' (c) of the oft-quoted dictum of Holmes
JA
in S v Madlala 1969 (2) SA 637 (A) at 640F-H:
"Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof -
(a) that he individually killed the deceased, with the required dolus, e.g. by shooting him; or
(b) that he was a party to a common purpose to murder, and one or both of them did the deed; or
(c) that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequences, and it occurred; see S v Malinga and Others, 1963 (1) SA 692 (AD) at p.694F-H and p.695; or
(d) that the accused must fall within (a) or (b) or (c) - it does not matter which, for in each event he would be guilty of murder."
(See, too, S v Petersen 1989 (3) SA 420 (A) at 425E-F; S v Nzo and Another 1990 (3) SA 1 (A) at 7C-D.)
That appellant No. 2 was a party to a common
11
purpose to commit armed robbery is undisputed. The real issue, therefore, is
whether appellant No. 2 foresaw and reconciled himself
with the risk that any of
his associates, in the course of the execution of their plan to rob, might cause
the death of someone -in
which case he would be guilty of murder - or, if he
did'not, that he ought reasonably to have foreseen that consequence - in which
case he would be guilty of culpable homicide. (S v Nkwenja en 'n Ander 1985 (2)
SA 560 (A); S v Mbatha en Andere 1987 (2) SA 272 (A) at 283B.) The enquiry is
dlrected to the state of mind of appellant No. 2 at the time he embarked on the
venture (S v Shaik
1983 (4) SA 57 (A) at 62G-H), although his act of
association, for the purpose of his common purpose to rob, must exist at the
time of the offence.
(S v Nzo supra at 11H.)
It was argued on behalf of
appellant No. 2 that he cannot be said to have foreseen death as a possible
consequence of the planned
robbery, firstly, because the State failed to prove
that he knew that the firearm which was to be used in the robbery was in a
working
condition, secondly, because it was reasonably
12
possible that he may have thought that appellant No. 1, who, like himself,
had not entered the premises, retained possession of the
firearm, and thirdly,
because he may have believed it to be a mere "smash and grab" operation in which
the need to use a gun would
never árise.
The difficulty with this
argument is that appellant No. 2 never said so - neither in his confession nor
in evidence.
The probabilities, moreover, count heavily against the points
which counsel sought to make on his behalf. The five appellants, quite
plainly,
banded together as a gang. The robbery was discussed and carefully planned. This
was no rash, impulsive, amateurish exploit.
The hold-up was to take place in
broad daylight, in a densely populated area, at one of the busiest supermarkets
in Johannesburg,
at one of the busiest times on one of the busiest days, when it
could be expected that the spoils, on the one hand, would be most
lucrative but
the security personnel, on the other, would be most alert. Banditry on such a
scale would not likely have been undertaken
unless the gang
13
equipped themselves in advance with the means to pull it off. A firearm or
firearms with which to threaten or terrorize others or
protect themselves, would
have been virtually indispensable. The appellants went to the trouble of
borrowing one. In the absence
of evidence from any one of them as to his
contrary belief at the time, it is inconceivable that all of them would not have
appreciated
that it might have to be used. Each member of the gang was assigned
a specific and presumably vital role during the robbery. Not
all of them would
handle the gun. Appellant No. 2 was one of those who would not do so: his
function was to keep watch outside. But
that does not mean that he was not aware
of the gun or its purpose. He mentions the gun in his statement. On the
overwhelmlng probabilities
all of them must have contemplated and reconciled
themselves with the possibility that the gun might have to be used, not only to
intimidate but to subdue, and that someone might be injured, even fatally, in
the process.
That this is so as far as appellant No. 2 is concerned emerges
further from his conduct after the
14
event. He heard a shot being fired inside the
building. Yet he met up with
his companions afterwards
at the Dube hostel. There is nothing in his
statement
to indicate that he enquired whether the shot had been
fired by
a confederate or that he expressed surprise or
outrage or that he dissociated
himself in any way with
the shooting that had taken place earlier. On
the
contrary, he accepted his share of the plunder. The
conduct of a man
after the event may well serve as an
indication of his state of mind at the
time. In S v
Petersen supra at 425E-F it was said:
"Nou is dit so dat, in gevalle waar twee persone deelneem aan 'n roof, en die een van hulle in die loop van die aanranding die slagoffer dodelik verwond, en die ander daarna optree op 'n wyse wat daarop dui dat hy hom vereenselwig met wat gebeur het, sodanige latere optrede dikwels aangewend kan word as die grondslag van 'n afleiding dat hy die moontlikheid voorsien het dat die slagoffer gedood kon word en onverskillig daarteenoor gestaan het."
Appellant No. 2, knowing that the gun had been fired, shared in the spoils. That fact reinforces the impression' that what had happened earlier was not at odds with what might have been expected to happen when
15
the robbery was planned, namely, that resistance could lead to violence. (S v Goosen 1989 (4) SA 1013 (A) a.t 1021A-B.) Appellant No. 2 was not present during the actual shooting. Even so, on a fair reading of his statement, and in the absence of a contrary explanation from him, appellant No. 2 must subjectively have foréseen, when he participated in the robbery, that someone might be killed in the course thereof. Appellant No. 2 was accordingly correctly convicted of murder. (S v Mbatha en Andere supra 284B-C; 284J-285C; S v Mthembu and Others 1988 (1) SA 145 (A) at 152E.) His appeal against his conviction on count 1 must fail. The conviction of appellant No. 4 of murder.
Appellant No. 4's statement was exhibit L. It reads as follows, again with the interpolation of references to the various appellants:
"Ek werk daar by Dube saam met my vader. Hy verkoop medisyne. Zondi (appellant No.2) het daar by my aangekom en my versoek om met Gwala te praat om 'n vuurwapen vir my te leen aangesien daar mense is wie hom pla by die besigheid. Zondi het my meegedeel dat ons geld in die dorp moet gaan kry en dat ek ook 'n deel sal kry indien ek saamgaan.
Ek
het na Gwala toe gegaan en die
16
vuurwapen gekry en dit na Zondi geneem.
Ek het teruggekeer na my vader se
besig-heid en weer teruggekeer. na Zondi se plek. Met my aankoms by Zondi se
plek het ek hom (appellant
No.2), Bongani (appellant No.l), Themba (appellant
No.3) en Mbasela (appellant No.5) daar aangetref.
Ons het met Themba
(appellant No.3) se motorkar, 'n Granada, dorp toe gery. Met ons aankoms in die
dorp het Bongani (appellant No.l)
gesê dat hy 'n ander vuurwapen by sy
broer wil gaan haal. Met sy terugkoms het myself (appellant No.4), Mbasela
(appellant
No.5) en Zondi (appellant No.2) Checkers winkel ingegaan. Zondi
(appellant No.2) het voorgeloop, Mbasela (appellant No.5) het tweede
geloop en
ek was derde. Met my inkoms by die winkel het ek gesien dat Zondi (appellant
no.2) 'n blanke man aanhou met 'n vuurwapen.
Die blanke man het vir Zondi
gegryp. Zondi het die vuurwapen na Mbasela gegooi en Mbasela het 'n skoot
afgevuur.
Ek kon nie sê wat daar gebeur het nie maar ons is daar uit.
Toe ons buitekant kom het ek gesien dat Mbasela (appellant No.5)
'n vuurwapen in
sy regterhand het en geld in sy linkerhand.
Ons het teruggehardloop na die
kar en terug gereis na Dube. Themba (appellant no. 3) was nie saam met ons nie.
Hulle het gesê
dat hy per taxi sal terugkeer. Zondi (appellant No.2) het
gesê dat ons die aand moet terugkeer sodat ons ons 'share' kan kry
van die
geld.
Ek het daar weggegaan en die aand teruggekeer en hulle almal daar gekry. Zondi
17
het my R1000 (een duisend rand) gegee. Dit is al."
This statement must be read in the context of the evidence as a whole, without regard to any material contained in any of the statements of any of the other appellants which may incriminate him. It reveals, either expressly or by implicatlon,
(a) that appellant No. 4 agreed to partici-pate in an armed robbery together with the other appellants, for which they obtalned two guns; (b) that appellant No. 4 entered the premises of Checkers with appellants Nos. 2 and 5; (c) that appellant No. 4 was present during the entire incident when one of them (identified by appellant No. 4 as appellant No. 2) confronted the deceased with a gun, and who, when the deceased grabbed him, tossed the gun to appellant No. 5 who fired a shot; (d) that he was with appellant No. 5 when they left the premises; (e) that appellant No. 5 had the gun in his one hand and the money in the other;
18
(f) that he escaped together with. appellant
No. 5
in the car;
(g) that they all met that evening when he
was given R1000 as
his share of the spoils.
According to the statement appellant No.2
accompanied them into Checkers. This is in conflict with the statement of
appellant No.
2 which, of course, is irrelevant for the purpose of assessing
appellant No. 4's own involvement. What is, however, telling is that
appellant
No. 4's statement is inconsistent, in this single respect, with the evidence of
Byrne and Azari. According to their uncontested
evidence the incldent took place
inside a narrow corridor, out of sight of the public and, what is of particular
significance, only
two robbers were involved. Knight and Glanz saw only two
robbers emerge from the shop. One of them, on all accounts, was the man
in the
white dust-coat who fled with the money and the gun. Counsel who appeared for
both appellants Nos. 4 and 5 rightly conceded,
on the basis of what appellant
No. 5 admitted in his statement, that appellant No. 5 must have been the man in
the white dust-coat.
On appellant No. 4's
19
version, as contained in his statement, the other man must therefore have been either himself or appellant No. 2. Appellant No. 4 places himself on the scene. He describes the entire incident in such detail that he must have witnessed it. His description accords almost exactly with that of the eyewitnesses, save of course for the interposition of a third gangster. But there was no third gangster who entered the building with the other two. It was never even remotely suggested to any of the State witnesses that there was or might have been such a person; and it is idle to speculate, on the basis of what appellant No. 4 said in his statement, but was not prepared to repeat in evidence, that appellant No. 2 was the other man involved in the murder, and that appellant No. 4 may have been a mere spectator lurking somewhere in a corner. The fact is that only two men fled from the building, ran past Knight and Glanz, and were followed by Knight until they reached the car and escaped. In his statement appellant No. 4 admits "Ons het teruggehardloop na die kar". He was accordingly one of them. The other was the man in the white dust-coat. Appellant No. 4 was
20
therefore the man in brown. What appellant No. 4 had to say about the
presence of appellant No. 2 is pure fiction and a transparent
attempt to
exculpate himself at the expense of the latter.
The court a quo, applying the
guidelines itemized in S v Mgedezi and Others 1989 (1) SA 687 (A) at 705I-706C,
convicted appellant No. 4 on the.basis of the doctrine of common purpose. But of
course if appellant No. 4 was
the man in brown, as he must be found to have
been, the doctrine of common purpose is irrelevant. If appellant No. 4 was the
man
in brown he was a co-perpetrator who passed the gun to appellant No. 5 when
he was being held by the deceased to enable appellant
No. 5 to shoot the
deceased. Appellant No. 4's actions contributed causally to the death of the
deceased. His liability is direct,
not imputed. His appeal against his
conviction must fail. The sentences of appellants No. 2, 4 and 5 on the
murder count.
All three these appellants were sentenced to death by the court a quo. This was on 6 December 1989.
21
Since then the law relating to the imposition of the death penalty has
undergone a radical transformation, the creation of the Criminal
Law Amendment
Act 107 of 1990. Its impact and implications have been discussed in divers
recent decisions of this court and need
not be re-stated. The onus is now on the
State to prove aggravating and to disprove mitigating factors.
Certain
aggravating features are common to all three appellants. All of them were active
participants in the robbery which led to
the death of the deceased. It was a
carefully planned and executed operation. They armed themselves in advance and
each of them,
whatever his allotted role, appreciated that the firearm which
they had jointly procured might have to be used in the execution of
the robbery,
possibly with fatal consequences to others. What eventually happened, the death
of the deceased, fell well within the
compass of their contemplation.
Turning
to the indlvidual appellants, appellant No. 2's situation differs markedly from
that of the other two in that, perhaps fortuitously,
he was the man deputed to
keep watch outside and
22
accordingly did not accompany the other two into the building where the
killlng took place. Consequently he was unaware of what actually
happened when
his associates confronted the deceased. His involvement in the killing of the
deceased was therefore more remote and
less immediate than in the case of the
other two. His form of intent was dolus eventualis. Those are reasons enough, in
my view,
for not imposlng the death sentence on him.
Appellant No. 4, unlike
appellant No. 2, was present in the passageway where the deceased was killed.
His involvement in the death
of the deceased was dlrect. The deceased was busy
holding him. He managed to fling the gun towards appellant No. 5, evidently to
enable appellant No. 5 to extricate him from the deceased' s grip and so to make
good their escape. Clearly he expected appellant
No. 5 to use the gun. But can
it be said with certainty that appellant No. 4 must have realised that appellant
No. 5 would necessarily
shoot to kill? The evidence does not suggest that the
deceased was armed and that he might therefore be expected to retaliate, at
the
risk of
23
their lives, as soon as he released appellant No. 4. To shoot to kill was not appellant No. 5's only or even most obvious option. He could as readily have been expected to point the gun at the deceased with the threat that he would shoot if the deceased should refuse to release appellant No. 4. Only then, on the deceased's refusal to do so, would appellant No. 5 have been left with little choice other than to shoot. But instead of doing so appellant No. 5 announced generally that he was going to shoot, causing Azari to lie down. He then marched up to the deceased and despatched him with a single shot to the head. That appellant No. 5 might have done just that was of course always a possibility, and one with which appellant No. 4 identified, but I am not convinced that one can confidently assert that he must have regarded it as inevitable that the deceased would be killed by his confederate. Although this is certainly a border-line case appellant No. 4's form of intent, I believe, could be dolus eventualis rather than dolus directus. That is not necessarily a reason for declining to impose the death sentence. It all depends on the circumstances.
24
In this case, if one takes into account that appellant No. 4 did not pull the
trigger and that he did not have dolus directus, his
situation falls just short
of the point where the death sentence is imperatively called for.
That brings
me to appellant No. 5. He pulled the trigger. He did so gratuitously, in cold
blood and at point-blank range. According
to the evidence he bluntly announced
that he was going to shoot. He did not allow the deceased a real opportunity of
releasing appellant
No. 4. He simply shot him. Nor did he shoot to incapacitate
- he shot to kill. He was not in a state of panic when he did so. His
actions
were cool and deliberate. ' What prompted him to act was not an unforeseen
eventuality with which he had to cope on the spur
of the moment. The gun was
taken along for precisely that reason, to overcome resistance or to facilitate
an escape. The risk that
it might have to be used, perhaps with fatal
consequences, was always a high one. It matters not, in my opinion, that it was
appellant
No. 4 and not appellant No. 5 who had the gun in his possession
initially; nor that appellant No. 5
25
shot the deceased not to obtain the money but to escape with it. All of this
fell within their prior design. The difference between
the two of them, the only
one, lies in the ruthless and brutal manner in which appellant No. 5 disposed of
the deceased.
Appellant No. 5 was 23 years old at the time. No 'previous
convictions have been proved against him. The absence of previous convictions
is
not in itself a bar to the imposition of the death sentence; recidivism is not a
prerequisite for the death penalty. An unblemished
record is nevertheless an
important mitigating factor (S v Ndinisa en Andere 1991 (2) SACR 117 (A) at
127f) and a fair indication of reasonable prospects of rehabilitation. (S v
Makie 1991 (2) SACR 139 (A) at 143e.) But, once again, that factor, weighty as
it undoubtedly is, must yield to considerations of retribution and deterrence
when the horror of the crime, the callousness of the criminal, and the frequency
of its recurrence generally, are such that the perceptions,
sensibilities and
interests of the community demand nothing less than the extreme penalty.
26
It was submitted that appellant No. 5 is uneducated, a man of rural values, and that those are sufficiently cogent mitigating factors to rule out the necesslty for imposing the death sentence. But one does not have to be learned and sophisticated to appreciate that a murder which is committed during and as part of an armed robbery is particularly reprehensible. Appellant No. 5 had been living in the Johannesburg area for five years prior to the commission of this crime. His participation in a carefully planned robbery, involving the use of a gun and a get-away car, is not the act of an artless rustic whose behaviour is ruled by impulse. He has shown no signs of remorse. In my view this is one of those extreme cases where a long term of imprisonment, even one for life, would be inadequate and hence inappropriate, and where the imposition of the death sentence is imperatively called for as the only proper sentence. I would accordingly confirm the sentence of death imposed on appellant No. 5.
That leaves the question of the sentences of appellants Nos. 2 and 4 in respect of the murder count.
27
Appellant No. 2 was 27 years old at the time of the offence. He has no
previous convictions involvlng crimes of violence. He has been
unemployed since
1985 and apparently earned his living by selling liquor. Mone of this is
particularly helpful when it comes to the
sentence for a crime as serlous as
this murder. The circumstanc.es of his
involvement in the murder have been detailed earlier in this judgment. Having
regard to all the relevant factors a sentence
of imprisonment of 15 years would
in my view be appropriate.
Similar considerations apply to appellant No. 4.
He was 27 years old at the time, a first offender, with little schooling, who
assisted
his father in the latter's business as a medicine man. His involvement
in the killing of the deceased was more direct than that of
appellant No. 2. For
that reason a more severe sentence is justifled. Such a sentence, in my view,
should be 18 years imprisonment.
Sentences of all the appellants in respects
of the count of robbery
The court a quo treated all five appellants
28
on the same footing and sentenced each to 14 years imprisonment. It has
not been shown, notwithstanding the argument of counsel for
the appellants, that
the court a quo committed any misdirections in doing so. The issue, therefore,
is simply whether the sentences
are so disproportionately harsh as to justify an
adjustment on appeal. Fourteen years imprisonment is a severe sentence for
robbery,
especially when the death of the deceased is deliberately to be
disregarded - in the case of appellants Nos. 2, 4 and 5 because they
have been
sentenced for it, in the case of appellants Nos. 1 and 3 because they have
somehow been acquitted of it. The offence, as
the court a quo emphasized, was an
extremely serious one involving a substantial amount of money, and the frequency
with which armed
robberies of this sort occur nowadays is a matter for alarm.
These are considerations against which the personal circumstances of
the various
appellants pale into insignificance. Even so, the court a quo took them into
account. It also had regard to the period
each appellant spent in custody
awaiting trial. I agree with the court a quo that there is insufficient
reason
29
to differentiate between the various appellants as far as the sentence for the robbery is concerned. Nor do I think that it would be appropriate, in the circumstances of this particular case, to suspend any portion of any of the sentences. There should, however, be a measure of concurrence between the sentences of imprisonment imposed in respect of the murder and the robbery convictions. Although, as I have said, the sentences are severe, doubtless more so than the sentence I would have imposed as a judge of first instance, I do not believe the disparity is such as to warrant interference on appeal. The appeals of the appellants against their sentences on count 2 are accordingly dismissed.
The following orders are accordingly made:
(1) The first appellant's appeal against his sentence on count 2 is dismissed. (2) The second appellant's appeal against his conviction on count 1 is dismissed. His appeal against the imposition of the death sentence is upheld. A sentence of 15 years imprisonment is substituted for it. His appeal against his sentence on count 2 is
30
dismissed but it is directed that a period of 8 years thereof is to run concurrently with the sentence on count 1.
(3) The third appellant's appeal against his
sentence on count 2 is
dismissed.
(4) The fourth appellant's appeal against
his conviction
on count 1 is dismissed. His appeal
against the imposition of the death
sentence is upheld.
A sentence of 18 years imprisonment is substituted
for
it. His appeal against his sentence on count 2 is
dismissed but it is
directed that a period of 8 years
thereof is to run concurrently with the
sentence on
count 1.
(5) The fifth appellant's appeal against
the
imposition of the death sehtence is dismissed. His
appeal against the
sentence on count 2 is likewise
dismissed.
NIENABER JA
Smalberger JA)
CONCUR Kriegler AJA )