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Case No 522/90 /wlb

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between:

PETER SMITH Appellant
and
THE STATE Respondent

CORAM: SMALBERGER, MILNE et GOLDSTONE JJA
DATE OF HEARING: 30 August 1991 DATE OF JUDGMENT: 6 September 1991

JUDGMENT

MILNE JA/.....

MILNE JA:

The appellant was convicted on four counts by the court a guo. On count one he was convicted of murdering Leslie Harold Small (whom I shall call the deceased) at Umbulwane on 10 September 1988. On count two he was convicted of robbing the deceased of a sum of money, an identity book, credit cards, a savings bank book and a Mazda motor car, Registration No NKR 12041. On count three he was convicted of robbing the deceased's wife, Grace Small, of a television set, a high-fidelity set, a video casette recorder, R225 in cash and some bedding. The robberies are alleged to have been committed on the same day and in the same district as the murder. On count four the appellant was convicted of unlawfui possession of a fire-arm in contravention of section 2 of Act No 75 of 1969.

On counts two and three the appellant was sentenced to 9 years' and 15 years' imprisonment respectively, the

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sentences to run concurrently. On count 4 he was sentenced to 2 years' imprisonment.

Within 21 days of the passing of these sentences, the appellant personally caused to be filed with the Registrar of the court a quo, a handwritten document in which he questioned the veracity of various State witnesses and raised various other points of criticism against the judgment of the trial court. This document was obviously not drawn up by a person with legal knowledge but the trial Judge, the Registrar of the trial court and of this Division, and the appellant's counsel have, correctly in my view, proceeded on the basis that this document is a notice of appeal in terms of section 316A of the Criminal Procedure Act, No 51 of 1477, against the conviction and sentence oq the murder charge only.

The trial court's findings of fact insofar as they
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are relevant to the appeal were as follows:
The deceased and his wife lived at Umbulwane. The appellant had, for some time, been a frequent visitor to their house. He was in the habit of going about dressed in a uniform which resembled that of a policeman or security guard. During the morning of 10 September 1989, a Sunday, the appellant requested Grace to wash and iron his uniform. He had at the time a suitcase with him. He told Grace that the suitcase contained dagga and that he had "confiscated" it from a man and a woman whom he had surprised in a park and that he was going to hand the dagga over to the police. That af ternoon a red car drove into the premises of the deceased's house. In it were two Black men. The appellant went out to the car and put the suitcase into it and the car left leaving the appellant behind.

In the late afternoon of the same day the deceased
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and the appellant left the deceased's house in the deceased's Mazda motor car, Registration No NKR 12041. The appellant had (falsely) told the deceased that he wanted to see one Van Zyl in Ladysmith. The deceased apparently accepted this and also wanted to obtain diesel oil for his lighting plant and to buy a few other things. Grace gave him about R200 to make such purchases. The deceased had this sum of money on his person. At about dusk the appellant returned alone in the Mazda to the deceased's home. On entering the kitchen of the home the appellant told Grace that the deceased would presently be arriving in a van in the company of the Van Zyl who has already been referred to. The appellant then pushed Constance Sithole, the Small's servant, out of the house and told her to leave. Shortly after the appellant's arrival two Black men arrived in a red car. They pushed Grace Small into the house and bound and gagged her. Before she was gagged she asked where

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her husband was. A voice, which she recognized as that of the appellant, replied from an adjoining room "You will never see him again." The robbery then took place and the articles referred to in count three were removed. The appellant left in the deceased's Mazda and at the same time the two Black men left in the red car.

The deceased was not seen again alive after 10 September 1989. On 17 September his body was discovered in the veld on a farm just outside Ladysmith. He had been dead f or some days and decomposition had set in. About sixty yards from where the body was found and spread over an area, the following articles belonging to the deceased were found: his shirt heavily blood-stained, his shoes, belt and socks (scattered over a distance of about twenty paces) and a number of letters torn up but subsequently put together by the police as an exhibit. These letters and the documents that formed part of the subject of count two, had been in

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the cubby-hole of the deceased's Mazda vehicle the day
before the robbery. The cause of death was a depressed
fracture of the right tempero-frontal area. The trial Judge
comments as follows:

"The doctor found four lacerations of the scalp distributed from the right frontal area to the occipital area. The depressed fracture was circular in appearance and was consistent with having been inflicted by a blunt object such as the head of a hammer. It would appear that at least two different objects had been used to inflict the wounds, one of which caused linear wounds and the other a blunt instrument which caused the depressed fracture with the circular appearance. These were the only injuries which the District Surgeon noted down. I digress here to state that in a statement made by the Accused to the Magistrate, the Accused mentioned that many more blows than four were inflicted on the deceased. The District Surgeon conceded that it is possible that he might have missed contusions or bruises which had been inflicted shortly before death and which owing to the state of putrefaction were not easily visible."

The place where the deceased met his death is 15 km from his house. The day after the robbery Grace

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discovered a hammer behind the couch in the diningroom of her house. This hammer did not belong in the house.

Nothing was seen of the appellant until 5 October

1989. The judgment of the trial court sets out what
occurred on that day as follows:

"On the morning of the 5th Constable Zuma of the Elandslaagte police was investigating a theft case at a Black township outside Dannhauser. In the course of this investigation Zuma visited the house of a certain Mazibuko. He there found the Accused. It had been reported to Zuma that the Accused's name was Boy Shabalala and that he would be able to assist in the investigation of the theft case. According to Constable Zuma, he approached the Accused but the Accused denied that his name was Boy Shabalala. According to him, the Accused claimed that his name was Lawrence Mazibuko. Constable Zuma then requested the Accused to produce proof of his indentity. The Accused entered a room and in the room took from on top of a wardrobe an identity book, Exhibit 8. Zuma noticed that the book was made out in the name of Leslie Harold Small and pointed this out to the Accused. The Accused's explanation was that he had obtained this book by using the name by which he was known as a Coloured. The

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photograph in the book was that of the Accused but it appeared that the book had been tampered with and that the photograph had been substituted. The Accused confirmed that this is what had happened but he explained that the original photograph in the book had also been his and that Ladysmith policeman, one Constable Sithebe, had put the new photograph in the book. Constable Zuma decided that this was a matter which required further investigation and consequently decided to take the Accused along with him. There was a motor vehicle there at the kraal, which according to Zuma was a yellow Mazda bearing registration number NN 21118. It is common cause that this vehicle which Constable Zuma found at Mazibuko's kraal is in fact the vehicle of the deceased. Constable Zuma enquired f rom the Accused who the owner of the vehicle was and the Ac cused said that he was the owner. Zuma then instructed the Accused to drive the vehicle back to Elandslaagte. I should mention that Constable Zuma was stationed at Elandslaagte which is about 25 km from Ladysmith.
According to Constable Zuma, he also took possession of the identity book, Exhibit 8. On arrival at Elandslaagte the Mazda was parked and Zuma took the Accused into the charge office and discussed with the Station Commander the possibility that Exhibit 8 had been tampered with. While he was still thus engaged, Sergeant Potgieter of the Ladysmith police arrived there. Sergeant Potgieter was attached at that time to the stock theft unit at Ladysmith and it so happened that he was routinely calling in at

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Elandslaagte in the course of his duties.
According to Detective Sergeant Potgieter, he saw the Accused and the Accused's face appeared familiar to him, but he was not able to place the Accused. However, Constable Zuma handed to him the identity book, Exhibit 8, and when he saw the name Leslie Harold Small in the book, he remembered that a person by that name had been killed at Ladysmith in September. He also noticed that the photograph in the book had been. tampered with. He remembered that a person by the name of Peter Smith was said to be suspected of having killed the deceased. Detective Sergeant Potgieter then confronted the Accused and told him that his name was Peter Smith and not Leslie Harold Small. The Accused remained quiet for a short time and then admitted that his name was indeed Peter Smith. According to Detective Sergeant Potgieter, he searched the Accused and found the purse, Exhibit 10, in the Accused's back trouser pocket. Exhibit 10 bears a police star on the outside.
Detective Sergeant Potgieter also searched the Mazda and in the cubby-hole of the Mazda he found the revolver, Exhibit 9. Detective Sergeant Potgieter confirms that the Mazda was now bearing registration number NN 21118."

At the proceedings held in terms of section 119 of the Criminal Procedure Act, the appellant was reguired to

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plead to counts one and two, and a third count of theft of

the Mazda motor vehicle. He pleaded guilty to all three of
these counts. The magistrate then questioned the appellant
to ascertain whether he was in fact guilty. The appellant
then made a long rambling statement in which he gave a
circumstantial account of, inter alia, how and why he killed

the deceased. In it he mentioned that he had taken with him
in the deceased's motor. car the jack-handle and a hammer
ostensibly because they were going to a farm and there would
be "dogs there". The relevant part of the statement was
recorded by the magistrate as follows:

"Meneer Small het bestuur ons het gery na die Plaas toe. Ons is by twee plase verby toe draai hy links op die derde plaas se pad. Meneer Small het in pad gaan stil hou ek hom gevra waarvoor gaan staan hy in die pad. Hy het gesê ons moet die Induna gaan haal. Ek en meneer Small het die Induna gaan haal. Ek h yster geneem vanuit die voertuig en afgeklim. Meneer Small het h okapi mes voor by die 'windscreen' vanuit die voertuig geneem. Hy het voor geloop ek het hom agtervolg toe het hy tussen die bome gaan staan. Hy het

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gesê hy vind nie die pad wat lei na die Induna se huis nie. Ek hom gevra hoekom kan hy nie die Induna se huis sien nie. 'n Woordewisseling het toe tussen ek en meneer Small ontstaan. Hy het toe sy mes oopgemaak wat hy in sy hand gedra het. Ek hom toe met 'n stuk yster aan sy hand geslaan wat die mes gehou het dit was sy regterhand. Toe slaan ek hom orals op sy kop, bene en lyf ek hom orals op sy liggaam met die stuk yster geslaan. Hy het toe geval. Toe gaan ek terug na sy voertuig wat in die bos gestaan het ek probeer die 'boot' oop te maak dit was egter gesluit ek toe na meneer Small teruggeloop waar hy gelê het. Ek meneer Small gevra vir die voertuig se sleutel maar hy wou my die sleutel nie gee nie toe slaan ek hom weer orals op sy lyf met die stuk yster terwyl hy daar gelê het, hy wou my egter nie die sleutel gee nie. Ek hom toe visinteer toe kry ek h vuurwapen in sy agterste broeksak tesame met die voertuig sleutel. Toe stap ek terug na die voertuig in die bos tesame met die vuurwapen en die sleutel ek toe die voertuig 'boot' (kattebak) met die sleutel oopgesluit en 'n hammer daaruit geneem. Ek terug gegaan na meneer Small waar hy gelê het toe kap ek hom op sy lyf orals en op sy kop met die yster hammer. Ek hom gelos. Ek terug gestap na die voertuig. Ek die voertuig bestuur terug na die dorp te Ladysmith(N) toe ry ek Umbulwane toe na meneer Small se huis waar ons almal gebly het."

The magistrate entered a plea of not guilty to all

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At the trial the appellant denied that he had participated in any way or had any knowledge of the offences with which he was charged - even to the extent of denying that the fire-arm was found in the cubby-hole of the Mazda as testified to by the police. The trial court described the appellant's statement at the section 119 proceedings as "... a strange mixture of fact and fantasy" and referred to certain details in the statement which confirmed part of the evidence of Grace Small and Constance Sithole. The trial court also considered the exculpatory part of this statement but rejected it as false.

Mr Fuller appeared pro deo for the appellant and submitted that there were certain factors which rendered it

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improbable that the appellant had murdered the deceased. However, nothing that was submitted on behalf of the appellant has persuaded me that the trial court erred in convicting the appellant on the murder charge as well as on the other charges. In fact I am satisfied that the appellant was correctly convicted on all four counts.

I deal now with the question of sentence. The amendments effected by Act No 107 of 1990 had already come into operation when the appellant was convicted. The trial court was accordingly obliged to apply the amended section 277 of the Criminal Procedure Act. The correct approach in this regard has been laid down in a number of decisions in this Court. One of them is S v Nkwanyana & Others 1990(4) SA 735 (A). See also S v Makie 1991(2) SACR 139 (A) at 142g -j, where Vivier JA said the following:

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"Voordat die doodvonnis ingevolge die nuwe art 277 opgelê word, moet die Verhoorhof 'n bevinding uitbring oor die aan- of afwesigheid van enige strafversagtende of -verswarende faktore en slegs indien die voorsittende Regter, met inagneming van daardie bevinding, oortuig is dat die doodvonnis die gepaste vonnis is, word die doodvonnis opgelê. Ingevolge art 13(b) van die nuwe Wet kan hierdie Hof, indien hy 'van oordeel is dat hy self nie die doodvonnis sou opgelê het nie, die vonnis tersyde stel en die straf oplê wat na sy oordeel gepas is'. Die posisie is as volg deur E M Grosskopf AR in S v Senonohi 1990(4) SA 727 (A) op 733C-D saamgevat:

'By h appel teen 'n doodvonnis oefen die Appelhof dus nou 'n onafhanklike diskresie uit. Hy moet self oordeel of, met inagneming van die strafversagtende en -verswarende faktore wat uit die oorkonde blyk, die doodvonnis "die gepaste vonnis" ingevolge die nuwe art 277(2)(b) is.'

Die uitdrukking 'strafversagtende faktore' behels 'n wyer begrip as wat voorheen onder 'versagtende omstandighede' verstaan was, en 'strafversagtende of -verswarende faktore' sluit alle f aktore in wat behoorlik deur h Hof inaggeneem kan word ter versagting of verswaring van vonnis. Sien S v Masina and Others 1990(4) SA 709 (A) op 714A-D en S v Senonohi (supra op 732F-H). Aan die hand van hierdie maatstawwe moet daar gevolglik beslis word of die feite en omstandighede van die huidige saak sodanig is dat die doodvonnis 'die gepaste vonnis' ingevolge die

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nuwe art 277(2)(b) is."

The trial court's judgment is not as helpful as it could have been in this regard. It does not, in so many words, make findings concerning the presence or absence of the mitigating or aggravating factors which were taken into account and the weight which was respectively attributed to those factors. It appears, however, from the record that reference was made in the argument of counsel to Nkwanyana's case supra cit and one must therefore assume that the factors there referred to were present to the mind of the trial judge. In fact, it is apparent that in considering the appellant's previous convictions the fact that only two of them were crimes of violence, that one was very long ago and neither was very serious, were taken into account in the appellant's favour. On the other hand, it was, correctly, taken into account that the appellant had on no less than

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sixteen occasions been convicted of housebreaking and that he had already served a sentence of imprisonment.

The main factor relied upon both in the court a quo and this Court as mitigating was the suggestion that the appellant and the deceased had had an argument and that the deceased opened his knife with the intention of using it to attack the appellant. This argument was carefully considered by the trial court but rejected on the ground that there was no factual basis in the evidence which would justify a conclusion that it was "probably some conduct on the part of the deceased which sparked off the killing." The only evidential basis for such a suggestion is the passage quoted above from the appellant's statement to the magistrate at the proceedings in terms of section 119. The trial court pointed out that this suggestion was so unconvincingly made that it could hardly be taken seriously

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and

"... is disposed of by the fact that the accused did not in this court rely on it."

In fact, in his evidence the appellant said that he was
never involved in any argument with the deceased and that he
had had nothing to do with his death. The matter does not,
however, end there. The trial court found that when the
appellant left the deceased's house on the Sunday afternoon
with the deceased he had already formed the intention of, at

least, robbing him. The trial court also concluded that the

robbery which is the subject of count three, the robbery at
the deceased's home, was planned beforehand which I
understand to mean before the appellant left with the
deceased in the Mazda. To achieve this object, so it was
held,

"... the accused would at least have had to see to it that the deceased would not have returned with him in the Mazda to the house and this would have necessitated disabling the deceased at least."

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Nothing that has been said on behalf of the appellant persuades me that the trial court erred in this regard. It is, however, not a necessary consequence of this finding that the appellant planned in advance to murder the deceased nor is it necessarily inconsistent with some disagreement between the appellant and the deceased having occurred which led to the appellant killing the deceased instead of merely disabling him.

Indeed the evidence would not have justified a finding that the appellant planned the murder in advance. One has no reliable evidence as to what occurred immediately before the appellant killed the deceased. The evidence, taken as a whole, justifies the conclusion that the appellant struck the deceased one blow with a hammer and four blows with the "yster" of the motor car jack. This was

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a metal rod approximately 1 cm thick and .75 m long. The blow with the hammer killed the deceased and was, according to the District Surgeon's evidence, struck with considerable force. It follows that the appellant must, in the circumstances (in which I include his lying evidence) have appreciated and therefore did appreciate that there was a risk that his attack might cause the death of the deceased. He nevertheless carried out that attack recklessly without caring whether or not death in fact ensued. Dolus eventualis was therefore proved. Dolus directus is, of course, an aggravating factor and it was, therefore, for the State to prove it. It did not. In fact there are certain probabilities against the appellant having decided to murder the deceased in advance. If he killed the deceased in order to avoid identification as the robber of the deceased and as the culprit in the robbery of Grace which he intended to carry out, it seems almost inconceivable that he would have

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revealed to Grace and Constance that he had returned to the deceased's home in the deceased's motor car without the deceased, without making any attempt to kill both of them. Yet that is what happened. It was argued on behalf of the State that the reason why the appellant had allowed these two women to go, as it were, unscathed, was his belief that neither would attempt to inform the police. This is highly improbable. The Smalls were a relatively sophisticated couple, living in a house with television, high fidelity eguipment and a telephone. The telephone wires were cut at the time when Grace was robbed and it is virtually certain that the appellant, as the person familiar with the house, was the one who cut the wires himself in order to prevent Grace from telephoning the police until he had made good his escape after robbing her.

In the light of the fact that the appellant's

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guilt is based on dolus eventualis it becomes important to determine his degree of subjective foresight of the possibility of death to the victim. The onus was on the State to prove that the appellant subjectively foresaw the risk of death as a strong possibility. S v Mabizela & Another 1991(2) SACR 129 (A) at 132d-e. I have already referred to the absence of proof that when the appellant set out with the deceased he intended to kill him. There is, furthermore, no proof that the appellant subjectively foresaw the risk of death as a strong possibility. The appellant was described as a robustly built man and he was 36 years old at the time when he committed this offence as compared with the deceased who was 52. There is no reliable evidence that he believed the deceased was armed. He may well have thought that it would be a comparatively easy matter to disable the deceased without risk to the deceased's life. The four blows with the jack-handle were

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not shown to have contributed to the death of the deceased nor to have been likely to have caused death and they may well have been the initial blows. The evidence does not exclude this as a reasonable possibility. The fact therefore that the appellant's guilt is based on dolus eventualis is, in the circumstances of this case, a mitigating factor.

There are, however, aggravating factors present. Firstly, the appellant has a string of convictions which make it quite apparent that he is, both in the technical and in the ordinary sense, an habitual criminal. Most of these offences are for housebreaking and, as already pointed out, only two of his convictions are for crimes of violence, one of these is very old and neither was a serious offence. What does weigh heavily against him is his stony-hearted behaviour towards the deceased and Grace with whom he was,

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according to Grace, on ostensibly good terms until he committed these crimes. Having, on the basis already mentioned, killed the deceased without having anticipated the need to do so, he removed the money from the deceased's body, ransacked the cubby-hole of his car and then drove off in it to the deceased' s home where he proceeded with the assistance of the two Black men to rob Grace. He then altered the deceased's identity book and the number plate on his car, clearly intending to keep both as his own.

We do not have the benefit of the trial judge's reasons for having regarded the death penalty as opposed to imprisonment as the proper sentence. There is no reference in his reasons to the matter. If life imprisonment would be a proper sentence, then clearly the death sentence cannot be said to be the only proper sentence. In all the circumstances of this case, in particular the long list of

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his previous convictions, it would be appropriate for the appellant to spend the rest of his life in prison. The amendments to section 64 of the Prisons Act 107 of 1990 effected by section 18 of Act 107 of 1990 make life imprisonment a much more effective means of removing a dangerous criminal from society than was formerly the case. S v Mdau 1991(1) SA 169 (A) at 176D - 177C.

The appeal against the conviction fails but the appeal against the sentence is upheld. The sentence of death is set aside and there is substituted a sentence of imprisonment for life. In terms of the second proviso to section 32(2) of the Prisons Act the sentences imposed in respect of the other convictions will run concurrently with the sentence of imprisonment for life.

A J MILNE

Judge of Appeal

SMALBERGER JA ]

] CONCUR
GOLDSTONE JA ]

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