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IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

MAPELO CECIL SISILANA APPELLANT

and

THE STATE RESPONDENT

CORAM: JOUBERT, SMALBERGER et KUMLEBEN JJA

HEARD: 23 MAY 1990

DELIVERED: 30 MAY 1990

JUDGMENT

KUMLEBEN JA/....
1.
KUMLEBEN JA:

This appeal is restricted to the question whether the trial court was correct in finding that there were no extenuating circumstances.

The appellant was convicted of murder in the Witwatersrand Local Division of the Supreme Court (Irving Steyn AJ sitting with two assessors). He was sentenced to death. Leave to appeal against the finding that there were no extenuating circumstances was refused in the court a quo but granted by this court.

It is common ground that the appellant shot

the deceased in the chest at close range with a 12
bore repeater shotgun. Death was instantaneous or

virtually so. The appellant's defence was that the gun
had been accidentally discharged during a scuffle as he

2/...
2. tried to wrest it from the deceased. This story was with good reason rejected. The conviction was based on
the evidence of the State witness, Mr Joseph Phalandwa,

who was the sole eye witness to the incident. Briefly,

his evidence was to the following effect.

The three of them - the appellant, the

deceased and Phalandwa - were members of a special
unit of the S A Police. On the morning in question he
was on guard duty at a gate. The other two were with
him. The appellant left them to cadge a cigarette.
Before doing so, he placed his shotgun against some

sand bags. It was loaded with cartridges in the

chamber and magazine and its safety catch was off.

The deceased decided to render it safe. He removed all

the cartridges and put them on a drum next to the sand

bags. As he was doing so, the appellant returned. He

asked the deceased what he thought he was

3/...
3. doing with his fire-arm, told him that he did not know how to use a gun and swore at him saying - indelicately and ungrammatically - "Die is die stront wat ek nie daarvan hou nie". With that the appellant reloaded the gun, cocked it and aimed at him (Phalandwa). He took avoiding action by diving to one side. The appellant then aimed at the deceased and shot him. He fell down. The witness ran away to report the matter. (According to the regulations one special constable is not permitted to handle or use another's fire-arm.)

The evidence of the appellant, as I have

said, fell to be rejected where it was contradicted by
other evidence. Nevertheless, certain facts testified
to by him, which stand uncontroverted and are unrelated
to his bogus defence, are acceptable and to an extent
relevant. To become a special constable in the

"Reaction Unit" he underwent a six week course intended

4/...
4. to train him to combat civil unrest. He was not, one infers, an experienced or well trained policeman. After the deceased had fallen, face down and fatally wounded, the appellant turned him over onto his back and took off the shoes that the deceased was wearing. The appellant made no attempt to run away from the scene but waited until the ambulance arrived. He had known the deceased for about three months before the incident " and there had been no bad blood or próblems between them.

In the main judgment on the merits the court, after accepting the evidence of Phalandwa, and in the course of recounting it, said the appellant:

"shouted as he was approaching them: 'Wat maak julle met my wapen?' Joseph stated that they did not reply and the accused then said: 'Dié is die stront waarvan ek nie hou nie' which indicated that he was very anqry that the deceased was 'fiddling' with his gun."

5/...

5. (My underlining.) Later in the judgment, as regards the reason for shooting, the court observed:

"According to his (Phalandwa's) evidence it is clear that the accused lost his temper because the deceased had unloaded the accused's gun, exhibit 1, and he, the accused, was not prepared to stand for that, so he picked up the cartridge from the drum and loaded the gun and shot the deceased." (My underlining.)

The conclusion that the appellant in a fit of

anger lost his power of self-control is fully borne out
by the evidence. There can. be no other reasonable
explanation for his actions and choice of language.
There was, as mentioned, no animosity between them and
no other motive for killing him. The appellant did not
attempt to run away or avoid detection. The most
plausible explanation for his turning the deceased onto
his back and taking off his shoes was that at that

stage, that is, immediately after the shot was fired,

6/...
6. is that he was concerned about his victim. This suggests - and I put it no higher than that - that his anger was short-lived, and was followed by regret, if not contrition. Moreover, the fact that he first aimed the gun at Phalandwa, who was in no way involved with the handling of it, indicates that, though he was plainly accountable for his actions, he was, as a result of anger, not behaving rationally. I should add that the appellant, when giving evidence, denied that he was angry with the deceased. This is understandable bearing in mind his (false) defence that the shot was fired accidentally. The court, guite correctly, was not swayed by the appellant's ipse dixit from making a positive finding to the contrary despite his denial.

After conviction counsel for the defence

predictably urged that the appellant's state of mind

7/...
7. and lack of motive ought to be taken into account as an extenuating factor. The court, however, in its judgment on extenuating circumstances, held that it was precluded from doing so. The reason for this volte-face being, so it was said, that the appellant had failed to give evidence after conviction, retracting his denial and confirming that he was in fact angry. This reasoning is, with respect, unsound. All the grounds "for initially - and correctly - finding that anger prompted his action, still held: no further evidence was led to refute or cast any doubt on that finding. In the circumstances for "the appellant to have re-entered the witness-box to state that he acted in anger would have been an act of supererogation. To discard the earlier finding because he failed to do so amounted to a misdirection.

Miss Marlow, who appeared for the appellant

8/...
8. at the trial and on appeal before us, again relied on the fact that appellant's anger accounted for his conduct and that, so she submitted, reduced his moral blameworthiness. Since the court a quo misdirected itself in this regard, this court is entitled - and in fact obliged - to make its own assessment of the significance of this factor. Bearing in mind all the cónsiderations to which I have referred, I consider
that this submission is well-founded. His temporary
lapse of self-control, notwithstanding its fatal consequences, is in marked contrast to a case in which the killing is planned; is done for a self ish or reprehensible motive, or is callously executed.

In deciding on the sentence of imprisonment

to be substituted, particularly three factors are to be
taken into account. The appellant has no previous

convictions, was apparently a conscientious and good

9/...

9. worker up until the time of this occurrence and has been in custody for over two years. Mr van Vuuren, who appeared for the respondent, when invited to do so,_ indicated that in the circumstances a sentence in the region of 12 to 15 years' imprisonment would be appropriate. Bearing in mind the time he has spent in prison, in my view, the ends of justice will be served if a 10 year term of imprisonment is imposed.

The appeal succeeds. The finding that there were no extenuating circumstances is reversed and the sentence is altered to one of 10 years' imprisonment.

M E KUMLEBEN JUDGE OF APPEAL
JOUBERT JA) - Agree
SMALBERGER JA)

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