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Case number 228, 230, 232/93
/al IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In
the matter between:
CASSIMA ROMAN Appellant 1
JAMES
ARNOLDS Appellant 2
KLAAS TIETIES Appellant
3
and
THE STATE Respondent
CORAM : NESTADT, F.H. GROSSKOPF JJA et
KANNEMEYER AJA
DATE OF HEARING : 18 FEBRUARY 1994
DATE OF JUDGMENT
:
JUDGMENT
KANNEMEYER AJA/
2 KANMEMEYER AJA :
The three
appellants, together with two other accused, were charged with sodomy and
murder. The offences were alleged to have been
committed in the St Alban's
Prison, Port Elizabeth on 12 March 1991. The victim in respect of both counts
was one Brian Februarie.
The three appellants were accused numbers 2, 3 and 4
respectively before the trial court. Accused number 1, Hendrik Louwskieter,
absconded before the trial commenced, and it accordingly proceeded against the
remaining four accused only. The appellants and accused
number 5, George
Kiewiets, tendered pleas of not guilty on both counts. At the end of the State
case the three appellants and Kiewiets
were found not guilty and discharged on
the count of sodomy. However the three appellants and Kiewiets were subsequently
all found
guilty of murder on count two. The three appellants were
3
sentenced to death while Kiewiets was sentenced to 20 years'
imprisonment.
The three appellants now appeal to this Court in terms
of section 316A(1) of the Criminal Procedure Act No 51 of 1977, as inserted
by
section
11 of Act No 107 of 1990, against both
their
conviction and sentences. Kiewiets is not
on
appeal before us.
The evidence discloses that the
three appellants, Louwskieter, Kiewiets and the deceased were prisoners serving
sentences in the St
Alban's Prison, Port Elizabeth. They, and other prisoners,
were detained in cell 2C. When, at about 6 a.m. on
12 March 1991,
Sergeant April of the Correctional
Services opened the outer door of
cell 2C he found
the body of the deceased in the ablution area.
It
appears that, from the outer door one passes
through
this area to reach the cell itself. April
noticed that there was a
prison uniform belt
4 fastened round the deceased's neck and that
his tongue was protruding. There was blood on his neck. He tested the deceased's
pulse
and concluded that he was dead. He called Major Gouws and the two of them
entered the cell itself. What then transpired will be mentioned
later.
A post mortem examination of the deceased's body was carried
out by Dr. J.R. Lang, the Chief District Surgeon of Port Elizabeth on
14 March
1991. He found that death had been caused by a "constricting force applied
around the neck causing hypoxia." i.e. the force
of the belt seen by April. Dr.
Lang also found numerous incised wounds on the deceased's neck and
face.
The case against the appellants was based primarily on the
evidence of Willem Dickers, Hendrik Williams and Dumile Majola, fellow
cell
mates of the appellants and the evidence as to what occurred when Major Gouws
and Sergeant April
5 entered the cell. The State also called a fourth inmate of the cell,
Mark Anthony Ruiters, but his evidence was rejected by the
trial Court with good
reason.
The trial Court made strong credibility findings in respect
of Major Gouws, Dickers and Majola. The credibility finding in respect
of
Williams, while not adverse, was more qualified than that of the other witnesses
mentioned above.
The State' s evidence is that on the night of the
occurrence, just before the lights in the cell were extinguished for the night,
the three appellants, together with Louwskieter and Kiewiets, were sitting
together in a circle in the cell, talking softly to each
other. Both Williams
and Majola depose to this fact and both say that those in the circle, including
the three appellants, then stood
up and went to the ablution area or bathroom,
as it was referred to in the evidence. The
6 deceased was then
called to join them. According to Williams he was called by Louwskieter while
Majola says he was called by the
first appellant. Be that as it may, the
evidence is that the deceased went into the bathroom where the three appellants,
Louwskieter
and Kiewiets were together. The appellants, Louwskieter and Kiewiets
were all members of the prison gang known as "the twenty eights".
There is
evidence that, when a group of members of this gang gather and hold a
conversation in the manner observed by the State witnesses,
they are usually
planning some unlawful activity.
According to Majola, when Kiewiets
entered the bathroom he had a razor blade in his possession. He and the second
appellant then proceeded
to cut the deceased's cheeks with this blade. The
deceased later returned from the bathroom to the cell, bleeding from his cheeks.
He walked to his bed and took a face cloth which he used to
staunch
7 the bleeding from the cuts on his face. Kiewiets ordered
the deceased back to the bathroom and kicked the witness Dickers awake,
ordering
him to clean up the blood which was on the floor in the area between the beds
and which was referred to in evidence as the
"pitch".
The deceased
then returned to the bathroom. What happened there is not clear, but the
appellants, Louwskieter and Kiewiets later came
back to the cell, leaving the
deceased in the bathroom. When back in the cell the third appellant, according
to Majola, removed his
uniform belt and handed it to the second appellant. They,
that is appellants number 2 and 3, then went back to the bathroom accompanied
by
Louwskieter and Kiewiets. Only Williams says that appellant number 1 went back
to the bathroom on this occasion.
Certain of Williams' evidence,
which was accepted by the trial Court, must be mentioned.
8 Although
the appellants and Kiewiets were acquitted on the sodomy charge, it is clear
that members of the 28-gang use younger prisoners
for purposes of sexual
gratification. The deceased was 21 years old at the time of his death. Williams
says that when the appellants,
Louwskieter and Kiewiets came back to the cell
from the bathroom, Louwskieter said that his "cherry" was dead. All five of them
then
gathered at the beds of appellants number 1 and 3 and Kiewiets who slept
next to each other. Williams says that at this stage he
heard a snorting kind of
noise in the bathroom where the deceased still was, whereupon the third
appellant said "die naaier is nog
nie dood nie". It was at this stage that the
third appellant removed his belt and went with the others back to the bathroom.
It must
have been then that the deceased was strangled.
Thus, on the evidence of the State witnesses,
9 the
whole episode on the night in question can be divided into three parts. First
the deceased was ordered to the bathroom and his
face was cut. Secondly, after
he had gone to his bed to staunch the blood caused by these cuts, he was ordered
back to the bathroom.
What then happened there one does not know but it is
apparent from Williams' evidence as to what Louwskieter said on coming back
to
the cell on this occasion and what the third appellant said when the snort-like
noise was heard, that it was thought that the
deceased was then dead. What had
been done to him to lead to this assumption is not established since the only
injury of a fatal
nature found by Dr. Lang was the strangulation. There was some
suggestion that the deceased had been stabbed with a home made awl
which was
subsequently found in the bathroom but Dr. Lang discounts the possibility of
this having happened. The third stage was
that when, after the
snort-like
10 noise was heard, the deceased's assailants returned to
the bathroom with the belt and administered the coup de
grâce.
The appellants gave evidence. Appellant number 1
testified that he had gone to sleep shortly after 8 p.m. and woke again on the
following
morning when the bell was rung. Appellant number 2 said that he went
to the bathroom to urinate. While he was there the deceased
entered with a wild
look and pushed him aside. He had a razor blade with him and, assuming that the
deceased was about to attack
him, he cut him with the blade. He returned to the
cell but later again went to the bathroom to talk to appellant number 1 who was
there at the time and then returned to the cell. He denies knowing anything
about the death of the deceased. Appellant number 3 gave
evidence at
considerable length. He attempted to incriminate the other
11
accused while exonerating
himself.
The trial Court came to the conclusion that the three
appellants were bad witnesses and, on what appear to be substantial grounds,
the
evidence given by them was rejected in toto as being not only not
reasonably possibly true but also as being false.
It is necessary
next to consider events that took place after the deceased had been killed.
Evidence for the State is that when the
three appellants, Louwskieter and
Kiewiets were together in the cell, they proceeded to pack their personal
belongings. This, according
to the evidence, is indicative of the fact that they
appreciated that they would be moved from cell 2C to single cells when the crime
was discovered and its perpetrators identified. However, appellant number 1
denied that he had packed his belongings and said that,
after he had been
removed to a single cell, he had
12 to ask to be taken back to 2C to
get his belongings. In this he is supported to some extent by Warrant Officer
Barnard of the Department
of Correctional Services who was stationed at St
Alban's Prison at the time. He was the official in charge of the single cell
division
and he says that the appellants and Kiewiets were placed in these
cells. He confirms that a prisoner, on being confined to a single
cell, normally
brings his personal effects with him. However, he says that appellant number 1
later asked to be taken back to cell
2C to collect some of his belongings which
had been left behind in that cell. This request was complied with and other
prisoners
in the cell handed him his clothes and toilet requisites through a
window. He is unable to say whether appellant number 1 brought
any of his
personal belongings with him when he originally came to the single
cells.
13 The next evidence of events which occurred after the
murder is that of Major Gouws and Sergeant April. After Sergeant April had
found
the deceased's body and raised the alarm Major Gouws of the Correctional
Services, who was then on duty, went to cell 2C. After
having seen the body of
the deceased in the bathroom he then proceeded to the cell itself in which the
inmates were still present.
He ordered all the prisoners to move to the back of
the cell. He then asked them who the people were who had killed the deceased,
whereupon Louwskieter stepped forward to where Major Gouws was and four other
prisoners followed him. Louwskieter then said that
he and the other four were
responsible for the death of the deceased. The other four were the three
appellants and Kiewiets. They
must have heard what Louwskieter said but
according to Major Gouws, none of them said anything - there was no denial
of
14
Louwskieter's allegation that they, with him were
responsible for the deceased's death. He then established that those who had
come
forward were members of the 28-gang and that the deceased was not a member
of a gang. The three appellants, Louwskieter and Kiewiets
were then removed to
the single cells. April substantially confirms Major Gouws' evidence as does
Olckers. Williams, while confirming
Major Gouws' evidence adds to it by saying
that not only did Louwskieter say that they, the five who stepped forward, had
committed
the murder but that each one of them confirmed this. He also said that
the five showed their prison cards to the major who looked
at them and then
returned them. Majola confirms Major Gouws' evidence that, when the latter asked
who was responsible for the murder
the five mentioned above stepped forward.
However he says that none of them said anything to Gouws.
15 In
giving evidence the first appellant admitted stepping forward but says he did
this because Major Gouws asked who the cell monitor
was and that he held that
position. The second appellant admitted coming forward but says he did this
because Major Gouws asked the
members of the 28-gang to do so. The third
appellant was to the same effect. Major Gouws admits that, after establishing
that the
appellants and the other two accused were 28-gang members, he asked
whether any others in the cell were members of this gang whereupon
some
prisoners raised their hands but he denies that any came forward as a result of
this question.
Major Gouws' evidence is relied upon by counsel for the State first to
prove an admission of guilt by conduct on the part of the three
appellants by
stepping forward as they did and secondly to establish an admission of guilt
by
16 silence when they did not react to Louwskieter's statement
that they had been a party to the murder of the deceased.
In
argument before us, counsel for appellants numbers 1 and 2 abandoned the stand
the appellants had adopted in giving evidence and
submitted that an alternative
hypothesis could be deduced from the facts of the case viewed as a whole, namely
that they had done
something to the deceased, whether by sodomising him or
cutting him with blades but that his eventual death was caused by someone
else.
In the circumstances, so the submission went, these two appellants thought that
they had killed the deceased and that this
explains their behaviour when Major
Gouws asked who was responsible for the deceased's death. This submission cannot
be accepted
if the evidence of the State witnesses is taken into consideration
that these two appellants were in the bathroom during the second
stage
and
17 that appellant number 2 went back during the third stage.
Even accepting in the first appellant's favour that there is doubt as
to whether
he was in the bathroom when the actual strangling took place, he was clearly
there during the first and second stages.
During the second stage the evidence
mentioned above establishes that when the appellants and the other two accused
returned to the
cell at the end of this stage it was thought that the deceased
was dead. Whatever had been done to him in the bathroom during this
stage, all
three appellants and the other two accused were there in concert. Appellant
number 1, even if he did not return for the
final stage, associated with the
others throughout. When he came forward and remained silent notwithstanding
Louwskieter's statement
he confirmed his association with the others in
encompassing the death of the deceased. During argument it was also submitted
that
the
18 evidence that Louwskieter said that the appellants were
party to the death of the deceased was hearsay. This is not so. The evidence
of
what Louwskieter said was not tendered to prove the truth of what he said but to
show the appellants' reaction thereto, when it
was said. Finally it was argued
that the evidence should be excluded as being prejudicial to the appellants and
insufficiently relevant;
however the substantial relevance of this evidence is
beyond doubt.
In Schmidt : Bewysreg, 3rd edition at pages 473
- 474 under the heading "Erkenning deur gedrag", the learned author deals with
the case of S v Robertson en Andere 1981 (1) SA 460 (C) which involved a
gang murder in a prison. When the commanding officer entered the cell the
accused were standing
near the body of the deceased and made certain admissions.
The admissions and the position of the accused were not admitted
because
19
there was a reasonable possibility that they
were
the result of duress exerted by other gang members.
However at page 474 the learned author says:
"As die bevelvoerder in Robertson gesê het: 'Sal diegene wat verantwoordelik is, vorentoe kom' en die beskuldigdes vorentoe getree het, sou dit wel neergekom het op erkenning deur gedrag."
Counsel for the three appellants attacked the
evidence of Olckers, Williams and Majola because
of
discrepancies and contradictions in it.
Mr
Buchler, for the State, in his full and
well
reasoned heads of argument which have been of
real
assistance to us, has dealt with the points raised
in the appellants' submissions and we are satisfied
that, notwithstanding the criticism levelled at
their evidence, the trial Court has not been shown
to have
erred in accepting it. The Court was
conscious of these
discrepancies and contradictions
and, as mentioned above, accepted
the evidence of
the State witnesses with the exception of that of
20 Ruiters.
The trial Court, in assessing the evidence of the inmates of cell 2C who gave
evidence for the State, appreciated that
they were deposing to events which took
place almost a year before the trial which, they had observed from different
positions. In
his judgment, Rein A.J. also took cognizance of the mentality and
background of the witnesses concerned and the fact that they did
not all observe
the same incidents.
If one thus rejects the evidence of the
appellants and Kiewiets as false one is left with the evidence of the State
witnesses which
was properly accepted by the trial Court. On this evidence the
guilt of the appellants is proved beyond reasonable doubt. Even if
one does not
accept Williams' evidence that appellant number 1 went into the bathroom when
the deceased was finally killed the evidence
as a whole is sufficient to
establish that he was party to the
21 agreement to kill the deceased
and took a part, during the second stage, in order to accomplish this
end.
Before passing from the conviction of the appellants to the
question of sentence there remains a matter which must be considered although
it
was not raised before us.
After the three appellants and Kiewiets
had been convicted the evidence of a psychologist was led in respect of
appellants number
2 and 3. Thereafter the Court called a psychologist employed
by the Department of Correctional Services. When his evidence was concluded
counsel for the three appellants and for Kiewiets addressed the Court in
mitigation of sentence. When these addresses had been completed,
counsel for
Kiewiets called him to give evidence. After his evidence in chief had proceeded
for some time certain questions were
put to him concerning the activities of
gangs in
22
prisons. He became ill at ease and his evidence was scarcely audible. At this stage his counsel made an application that the other accused, i.e. the three appellants, should be removed from the Court so that, as I understand it, Kiewiets would feel free to talk without fear of retribution. A discussion took place between the learned Judge a quo and counsel who then appeared for the State, who vehemently opposed the application. The learned Judge then held that he had a "discretion in these matters" and ordered that "those three accused can be accompanied down to the cells". Counsel for the three appellants stated that they had no objection to this procedure being adopted. The learned Judge did not have the discretion which he purported to exercise and the question now arises as to what effect his ruling has on the conviction of the appellants.
Section 158 of Act No 51 of 1977 provides
23
that:
"Except as otherwise expressly provided by
this Act or any other law, all criminal proceedings in any court shall take place in the presence of the accused."
Section 159 of the Act provides the circumstances
in which criminal proceedings may take place in the
absence of the accused. The fact that a witness,
be he an
accused or not, is inhibited by fear from
giving evidence in the hearing of the accused or
other
accused is not one of the circumstances
provided for by this
section. Section 158 is
peremptory. Neither an accused nor his
legal
representative can waive this fundamental right.
Even if the
accused's legal representative is
present throughout the accused's
absence, the
irregularity remains. The requirement that the
accused should
be present is applicable until the
trial is completed. See: Hiemstra :
Suid-
Afrikaanse Strafproses 5th edition page 408 and
the
24
cases there cited. However section 322(1) of
Act
No 51 of 1977, dealing with the powers of a court
of appeal, provides that:
"notwithstanding that the court of appeal is of opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record of proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect."
In my view the irregularity committed by the
Judge a quo has not resulted in a failure of
justice. It occurred after the appellants' counsel
had
pleaded in mitigation on their behalf. Their
counsel were present
throughout and had the
evidence of Kiewiets required any reply or
comment
by them the Court would, doubtless, have
allowed
them to be called as Kiewiets was called, after
his
counsel had pleaded in mitigation. The
evidence
given in mitigation by Kiewiets could not have
had
any prejudicial effect on the appellants, who had
25
already been convicted when it was
given.
Thus the irregularity is not fatal to the conviction of the
three appellants on the count of murder, and the convictions must thus
be
confirmed.
I turn now to the question of the death
sentences imposed on all three appellants. Mr
Spruyt for the first and second appellants,
submitted that the learned Judge a quo was guilty
of a
serious misdirection in respect of sentence by
sentencing Kiewiets to twenty years' imprisonment
and the
appellants to death when their co-accused
was no less blameworthy
than they were. He
referred to S v Goldman 1990 (1) SACR 1
(A) in
support of this submission. In that case, at page
3d-e, Smalberger J.A. said:
"Although it is trite that sentences should be individualized, our courts generally strive for uniformity of sentences in cases where there has been a more or less equal degree of participation in the same offence or offences by participants with roughly comparable
26
personal circumstances."
and at page 4d-e he said:
"Despite the serious nature of the crimes committed the sentence imposed upon accused No 1 cannot be said to be unreasonable or clearly inappropriate. Having regard to their relatively equal degrees of participation and moral blameworthiness and their comparable personal circumstances, the sentence imposed upon the appellant, compared with that of accused No 1, is disturbingly inappropriate and interference therewith is fully justified (S v Marx 1989 (1) SA 222 (A)). A comparison with the sentence imposed on accused number 3 leads to the same conclusion."
However, in S v Marx (supra) at page 226 A - B
Smalberger J.A. remarked:
"Waar die ligter vonnis egter as onredelik of duidelik onvanpas aangemerk kan word, en die swaarder vonnis in al die omstandighede 'n gepaste een is, sou ingryping met, en versagting van, laasgenoemde vonnis nie geoorloofd wees nie, desondanks die wanbalans wat die vonnisse betref. Geregtigheid vereis dat gepaste strawwe opgele moet word."
In the unreported case of Meshack May and
three others v The State heard in this
Court on 15
May 1993, (Case No 594/92), F.H. Grosskopf J.A.
27
reiterated the above approach and continued,
at
page 21 of the typed judgment:
"In die onderhawige geval is die doodvonnis na my oordeel die enigste gepaste vonnis vir appellants 1 en 3. Waar appellants 2 en 4 in gelyke mate aan dieselfde moord deelgeneem net, was die doodvonnis na my mening ook in hulle geval die enigste gepaste vonnis, nieteenstaande die feit dat hulle geen vorige veroordelings net nie. Na my oordeel was die vonnisse van gevangenisstraf wat appellante 2 en 4 opgelê is, dus nie die gepaste vonnisse nie. Hierdie hof is egter nie bevoeg om in te meng met appellante 2 en 4 se vonnisse nie. Waar hierdie hof eenmaal bevind dat die doodvonnis die enigste gepaste straf vir appellante 1 en 3 is - en dit is 'n bevinding wat nie ligtelik gemaak word nie - volg dit dat enige ander vonnis inderdaad nie die gepaste vonnis vir hulle is nie. In die omstandighede sou enige inmenging met die vonnisse van appellante 1 en 3 myns insiens nie geregverdig wees nie. Dit sou trouens in stryd wees met die basiese beginsel dat geregtigheid die oplegging van gepaste strawwe vereis. Gelykberegtiging beteken immers nie dat misplaaste toegeeflikheid teenoor een mededader ook die ander mededader moet bevoordeel waar sy vonnis in alle opsigte 'n billike en gepaste vonnis is nie. In al die omstandighede van hierdie saak is daar na my mening ook geen billikheidsoorwegings wat vereis dat daar met die doodvonnisse van appellante 1 en 3 ingemeng word nie."
28 Accordingly, if it should be found that, in
respect of the three appellants, the death sentence is the only proper sentence,
their
sentences must be confirmed. The fact that a lighter sentence was imposed
on Kiewiets who was as morally blameworthy as they were
cannot affect their
sentences. One must thus determine whether the death sentence is indeed the only
proper sentence in respect of
the three appellants. If this Court would not
itself have imposed the death sentence, the death sentence imposed by the Court
a quo must be set aside but not otherwise.
The trial Court
found intention, in the form of dolus directus present in respect of all
three appellants. Its finding in respect of the second and third appellants is
manifestly correct but as
far as the first appellant is concerned different
considerations arise. In view of the fact that Williams is the only State
witness
who says that
29
appellant number 1 went to the bathroom during the
third stage of the occurrence and in the light of
the credibility findings in respect of this
witness, number 1
appellant's position should be
approached on the basis that he did
not go to the
bathroom during that stage and thus is not
proved
to have taken part in the actual killing of
the
deceased. In the result his intention was that
of
dolus eventualis. This, however, does not
mean
that the lesser intention which he had
constitutes
a mitigating factor. In May's case (supra)
F.H.
Grosskopf J.A. referred to the judgment
of
Smalberger J.A. in the unreported case of S
v
Francis, delivered on 18 May 1993 where the
learned
Judge found "that the appellant foresaw the
death
of one or both of the victims as a
strong
probability - one almost bordering on certainty".
In view of this finding the Court concluded that:
"Because of the appellant's high degree of foresight the absence of dolus directus cannot
30
constitute a mitigating factor."
In my view similar
considerations apply to the first appellant in the present case. When appellants
number 2 and 3 went to the bathroom
with the belt he must have foreseen what was
about to happen and must have realized that the unsuccessful attempt to which he
was
a party was now to be consummated. He associated himself
therewith.
The evidence in mitigation of the psychologist Minnaar
was not accepted by the trial Court. He based his conclusions on what the two
appellants he interviewed told him, without in any way attempting to verify this
information. The record of the proceedings was available
but he did not read it.
The appellants concerned did not confirm the facts allegedly conveyed by them to
Minnaar under oath. In my
view the trial Court correctly found that Minnaar's
evidence did not establish any mitigating factors.
31 Then it was
submitted that the prison subculture of gangs with codes of behaviour to which
members are subjected constituted a
mitigating factor. It has repeatedly been
held by this Court that the presence of a prison sub-culture is, in respect of
sentence,
a neutral factor. It is only when that sub-culture so affects the
motives and behaviour of the prisoner that his moral blameworthiness
is reduced
thereby, that it becomes a mitigating factor. See: S v Mongesi en Andere
1981 (3) SA 204 (A) at 212 A - E; S v Masuku and
Others 1985 (3) SA 908 (A) at 915 B - G; S v
Malqas
en Andere 1991 (1) SA SACR 284 (A) at 293h -
294b.
In S v Malgas (supra) F.H. Grosskopf J.A.
remarked at pages 293j to 294b:
"Anders as wat die geval by die bewys van versagtende omstandighede was, rus daar geen bewyslas op 'n beskuldigde om strafversagtende faktore te bewys nie. (Vgl Nkwanyana se saak supra.) 'n Beskuldigde moet egter daardie strafversagtende faktore waarop hy wll steun,
32
opper, en hy moet 'n behoorlike feitebasis daarvoor lê deur al die getuienis waaroor hy op die betrokke faktor beskik, aan te bied -tensy dit natuurlik reeds uit die getuienis blyk (Vgl weer Nkwanyana se saak, supra). Dit net die appellants in die onderhawige saak nie gedoen nie. Die Staat was gevolglik nooit geroepe om weerleggende getuienis met betrekking tot die nadelige invloed van die sogenaamde gevangenis-subkultuur op die geestesvermoens of gemoedere van die appellant aan te bied nie."
In the present case the appellants failed to establish any factual basis for a finding that their behaviour was influenced by such a subculture. As mentioned above, Minnaar's evidence based on what the second and third appellants told him was not accepted, correctly in my view, by the trial Court. The appellants themselves did not give evidence in mitigation of sentence and nothing emerges from their evidence on the merits which constitutes a factual basis to suggest that their blameworthiness was reduced by reason of this subculture. It, therefore, cannot constitute a
33
mitigating factor.
All three of the
appellants have bad records. The first appellant has nine previous convictions
of housebreaking with the intent to
steal and theft and one each of assault with
intent to do grievous bodily harm, theft, possession of a dangerous weapon and
robbery.
Appellant number 2 has two previous convictions of housebreaking with
the intent to steal and theft, five of theft, three of robbery,
three of assault
with the intent to do grievous bodily harm and one each of possession of a
dangerous weapon, malicious injury to
property and rape. The third appellant has
seven previous convictions of assault with intent to do grievous bodily harm,
three of
theft, two of housebreaking with the intent to steal and theft and one
each of culpable homicide and sodomy. In view of the above
records and their
present convictions, there is no real prospect of the rehabilitation of any of
the
34
appellants.
This was, in any event a
brutal murder. It was premeditated and when, during the second stage, the
deceased's assailants failed to
achieve their object, they returned to complete
it. It was an attack on a young man who had given them no cause to assault him.
He
had no chance of defending himself against a group of men determined to kill
him. The appellants have shown no remorse; indeed when
April found the deceased'
s body and ran to report the matter, the appellants, Louwskieter and Kiewiets
according to Williams, laughed
and made a joke of the incident. One said of
April "Kyk hoe hardloop die vark, hy is ook bang."
In my view there
are no mitigating factors present in this case and the aggravating factors are
overwhelming. This does not, of course,
in itself mean that the death sentence
is the only proper one. However this is a case in which the
35
interests of society play a predominant role. In
the Malgas case (supra) at 296d F.H. Grosskopf
J.A.
said:
"In die lig van die vorige veroordelings van die appellante, en gesien die gedrag van die appellante ten tyde van, en direk na, die moord op die oorledene, is daar na my oordeel geen redelike vooruitsig van hervorming nie. 'n Verdere termyn van gevangenisstraf skep trouens die wesenlike gevaar dat die appellante nog dergelike moorde in die gevangenis sal pleeg."
In S v Eiman 1989 (2) SA 863 (A) at 873 A - B Steyn
J.A. said:
"Ons Howe het alte dikwels te doen met sogenaamde 'tronkmoorde', by vele waarvan gewelddadige psigopate betrokke is. Die gevangenisgemeenskap is ook geregtig om teen sulke gevare beskerm te word. Die geleerde Verhoorregter het hierdie aspek tereg in ag geneem."
In the light of the above the death sentence
is the
only proper sentence in respect of all
three
appellants.
36 The appeals of all three appellants
against their convictions and sentences of death are dismissed.
D D V KANNEMEYER ACTING JUDGE OF APPEAL
NESTADT JA ]
] CONCUR F H GROSSKOPF JA ]
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