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Case no:8/88 E du P IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
LIPITSA RALEBATHE LESETLA First Appellant
MOTLALAPULA
MABETA Second Appellant
and
THE STATE
Respondent.
Coram: HOEXTER, STEYN JJA et F.H. GROSSKOPF
AJA
Heard: Delivered:
22 March 1988 31 March 1989
2
JUDGMENT F.H. GROSSKOPF AJA:
On 31 March 1987 two
young hikers, Phillip van Rensburg and Laurence Lombard, pitched camp on top of
the Drakensberg mountains at
a spot which has been referred to in the evidence
as the Valley of the Baboons. After darkness had fallen the two hikers entered
their small tent and lit a candle. While they were busy preparing a meal they
suddenly found themselves being pelted with stones
from outside. They left the
tent, but found that their assailants continued to attack them with stones. Both
young men were felled
by the stones when they tried to escape.
Lombard
regained consiousness during the night, but fell asleep again. When he woke up
the next morning there was no sign of his friend
van Rensburg or of their tent
and other belongings. Lombard was fairly badly injured, but managed to find his
way back to safety.
The mutilated body of van Rensburg was recovered
3
by helicopter a few days later at a point towards the bottom of
the escarpment and some 800 feet below the point where he and Lombard
had
pitched camp. The court a quo found that van Rensburg was thrown over the
edge of the escarpment by his assailants, but it could not be established
whether van
Rensburg had already been dead when this was done.
Lombard was
unable to identify any of their assailants. It was subseguently established that
the attack
on van Rensburg and Lombard had taken place hear the border of
Lesotho. The police investigations took them into Lesotho and this
led to the
arrest of four persons, two adult males (the appellants in this case) and two
young boys who were respectively about 16
and 13 years of age.
The youngest
member of this group, one Lebusetsa Khaloli, was used as a state witness. The
other three were charged with and convicted
of murder. They were also convicted
of attempted murder relating to the attack on Lombard, and of robbery with
aggravating circumstances
in
4
respect of the taking of the tent and other belongings of van
Rensburg and Lombard.
The court a quo found that there were no
extenuating circumstances present in the case of the two appellants and imposed
the death sentence on each
of them in respect of the murder count.
The court
a quo granted the two appellants leave to appeal to this court against
the finding that there were no extenuating circumstances present
in their case.
The appellants were accordingly also granted leave to appeal against their
sentences on the murder count.
The first appellant denied that he was present
when these crimes were committed, or that he had anything to do with the
commission
of these crimes. The second appellant admitted at the outset of the
trial that he was present when these crimes were committed. When
he came to give
evidence, however, he changed the whole basis of hls defence and relied on an
alibi. The court a quo for good reasons rejected the
5
evidence of both appellants as false.
In convicting the two
appellants the trial court relied on confessions which had been made by both
appellants before police officers,
and on statements by the appellants at the
section 119 proceedings in the magistrate's court. These confessions and
statements were
admitted by the court a quo after having heard evidence
on the question of their admissibility.
In deciding on the participation of
the appellants in the commission of the crimes the trial court also had regard
to the evidence
of the witness Khaloli in so far as it was corroborated by other
reliable evidence and by the inherent probabilities of the case.
Khaloli was the
13 year old youth who had been an accomplice in these crimes and whose evidence
the trial court found to be "entirely
unreliable".
After weighing all the
evidence the court a quo came to the following conclusion:
6
"Now there are some differences in detail between the confessions and subsequent statements of each of the Accused. We do not find these differences veryisurprising. They accord, in broad outline, more or less with what Khaloli has said, and the story given by each of the Accused is much the same as the story given by the other Accused. In broad outline, it corresponds also with the evidence of Lombard as to what occurred on the night in question. There can be no doubt from this evidence that all three Accused participated in the attack
on the deceased and on Lombard. They all threw stones, heavy stones apparently, at Lombard and van Rensburg in circumstances when they must have realised the likelihood or, at least, the possibility of causing them serious bodily harm, if not, death. In our view there is no doubt that all the Accused acted in common purpose."
The first appellant admitted in his confession that
he was the person who made the suggestion to the second
appellant that
they should go and rob the two hikers of their
money. The first appellant
further admitted that he took
part in the attack on the two hikers and that
he threw the
stone which struck the deceased on the back of his
head,
causing him to fall down. He further alleged in his
confession that
the second appellant was the person who
7
killed the deceased by dropping a rock on his head. (I may
mention that the second appellant in his confession in turn blamed the
first
appellant for dropping a rock on the head of the deceased). The first appellant
also admitted that he cut off some hair of
the deceased and that he removed R160
in cash from the deceased's pocket. He and the second appellant then tied the
hands of the
deceased together before throwing him over the cliff.
The first
appellant pleaded guilty to the murder charge when he appeared before the
magistrate at the section 119 proceedings. The
magistrate asked the first
appellant why he had killed the deceased, and he replied "I wanted money".
The second appellant admitted in his confession
that he took part in the attack on the deceased and the deceased's friend. That attack occurred after the first appellant had suggested that the four of them should go and kill the white men whom he had seen in the Valley of the
8
Baboons. On the second appellant's own version (which
is
admissible against him only) it was therefore their stated
intention to go and kill the two hikers. The second
appellant said that
they threw stones at the white men and
one of them fell down when he was
struck by a stone. He
alleged that the first appellant then dropped a big
stone on
the head of that white man. The second appellant's
confession proceeded as follows:
"The white man was lying down and he was not moving and Lephitsa (the first appellant) said that the white man is dead. We saw that we made a mistake by killing him. Then we decided to hide him. We then took him to a high cliff .... We turned him on his back and rolled him down the cliff."
It is the evidence of the witness Khaloli that all
four of them returned to the white man who had
fallen down
and that they further assaulted him by throwing stones at
him
and hitting him with sticks. Khaloli further testified as
follows:
"Well why were you hitting him with sticks and
stones? We were killing him.
9
Did you intend to kill him at that stage? --- Yes.
Was it part of the plan to kill him or did you just - was it your own idea to kill him?
Originally we intended just going to rob them
and get the money. We saw that he had fallen and we decided that we should finish him up.
Now are you able to say whether the deceased
was still alive at the stage that you took him to
the edge of the cliff? He was already dead."
Khaloli confirmed the version of the first
appellant that the
deceased's hands were tied together with a piece of
rope
before he was thrown over the edge of the cliff.
In the light of all the evidence the court a quo
found that it did not matter which of his
assailants in fact
caused the death of the deceased, or whether the deceased
was
killed before or after he was thrown over the edge of the
cliff. The
court a quo concluded that all the attackers
intended to bring about
the death of the deceased and that
they all participated in the acts which
brought about this
result. I respectfully agree with this conclusion of
the
trial court.
10
The court a quo considered the question of
extenuating circumstances against the background of these findings, but found
that there were no factors present which reduced the
moral blameworthiness of
the two appellants in relation to the crime of murder.
Mrs. Collett,
who appeared for the first appellant, conceded that it was no part of her case
that the trial court misdirected itself or committed
any irregularity in regard
to its finding on extenuating circumstances. The only remaining issue,
therefore, is whether the finding
that there were no extenuating circumstances
was one to which no court could reasonably have come. (See S. v. Ndlovu
1970(1) SA 430(A), at 435 A-B; S. v. Bowers 1971(4) SA 646(A), at 649
A-E; S.v. Mongesi en Andere 1981(3) S.A. 204(A), at 207 H-208 A).
Mr. Maharaj, for the second appellant, submitted
that the learned trial judge misdirected himself when he
observed in the concluding portion of his judgment on
11
extenuating circumstances that the appellants' lack of
intelligence, their background and their lack of education were circumstances
which did not "in law" amount to extenuating circumstances. The words "in law"
may not have been a happy phrase in the context, but
it seems to me to be clear
in the light of the judgment as a whole that the learned trial judge never
intended to lay down that circumstances
such as lack of intelligence, a
primitive background and lack of education are not relevant to extenuation. The
remarks of the learned
trial judge in his judgment on the application for leave
to appeal show that he
accepted that such circumstances may indeed serve to
constitute extenuation. It was found, however, that the probable influence of
these circumstances in the present case did not reduce the moral blameworthiness
of the appellants. The relevant passage in the judgment
on the application for
leave to appeal reads as follows:
"Of all the various factors referred to by counsel,
12
the one which is undoubtedly true, and which occasions one a great deal of thought, is the fact that the Accused were clearly not only unintelligent persons, but extremely primitive persons. We did not regard this factor as being sufficient, either in itself, or having to the other factors, as being sufficient to reduce their moral guilt."
Mr.
Maharaj did not contend that there were any other alleged misdirections
or irregularities on the part of the trial court.
It was submitted by counsel
for both appellants that the initial intention of the appellants and their two
co-perpetrators had been
to steal money and not to kill anybody, and that the
murder was therefore not premeditated. This argument was also raised in the
court a guo, but it was held that ultimately the intention was formed by
all four of the assailants to kill the deceased.
It appears from the
confessions of the two appellants and the evidence of Khaloli that all four of
them returned to the deceased,
who was then lying either dead or
13
in a state of unconciousness, and proceeded to assault him in
a most brutal manner. I agree with the learned trial judge that it does
not
matter whether one of them dropped a large stone on the head of the deceased (as
was admitted, at least in principle, by both
appellants in their respective
confessions), or whether all four of them further attacked and assaulted the
deceased with stones
and sticks (as was said by Khaloli).
At that stage, at
latest, all four of them had clearly formed the direct intention to kill the
deceased. This was manifested by their
conduct. Yet there was no reason to kill
the deceased; they could have taken his belongings without any fear of
resistance.
It should also be borne in mind that the second appellant
conceded in his confession that right from the outset it had been their
stated
intention to go and kill the white men in the Valley of the Baboons. It would,
therefore, be futile for the second appellant
to argue that the murder
14
was not premeditated as far as he was concerned.
To make
quite certain that the deceased would die they went even further and bound his
hands together and threw him down the cliff.
It was submitted by counsel for the
appellants that the fact that the appellants did not even bother to remove the
deceased's watch
from his arm, indicated that they were really in a state of
panic at that stage, and they only wanted to dispose of the body. The
observation may be made that they could not have been in too great a hurry if
they still found time to cut off a piece of the deceased's
hair and remove money
from his pocket.
When this same argument was raised in the court a guo
the learned judge pointed out that they would hardly have decided to tie the
deceased's hands together if they were simply trying
to get rid of what they
believed was a corpse.
There is, in any event, no evidence to support a
finding that the appellants were in a státe of panic when the deceased
was
thrown down the cliff.
15
The main argument which was advanced on behalf of both
appellants in regard to extenuation was that it was unreasonable for the court
a quo to find that the admitted facts relating to the appellants'
primitive background and their lack of intelligence and education did
not
constitute extenuating circumstances.
Reference was made to the case of S.
v. Tsankobeb 1981(4) SA 614(A), but the facts of that case are clearly
distinguishable.
The court a quo accepted that the appellants were
unintelligent, illiterate and uneducated persons "who have probably led the
greatest portion of
their lives acting as herdsmen in remote areas and somewhat
far removed from what we like to call civilisation." After dealing with
these
and other factors the learned trial judge concluded in his judgment on
extenuating circumstances that the members of the court
a quo were "far
from satisfied that there are present in this case any factors which reduce the
moral
16
blameworthiness" of the appellants in relation to the crime of
murder.
I have already referred to the other remarks of the learned trial
judge with regard to the lack of intelligence and education and
the general
background of the appellants.
The court a quo considered all these
factors, but found that they did not reduce the moral blameworthiness of the
appellants in relation to the murder.
In my judgment it cannot be said that such
a finding is unreasonable at all in the circumstances of this case. There is,
therefore,
no justification for this court to interfere with the finding of the
court a quo.
The appeals of both appellants are accordingly
dismissed.
HOEXTER JA F.H. GROSSKOPF
STEYN JA Concur Acting Judge of Appeal.
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