Case Number 643/93 IN THE SUPREME COURT OF SOUTH AFRICA (APPELATE DIVISION) In the matter between:
MKANGELI RASMENI Appellant
and
THE STATE Respondent
CORAM: E M GROSSKOPF, VIVIER, VAN DEN HEEVER, JJA
DATE OF HEARING: 6 MARCH 1995 DATE OF DELIVERY: 27 MARCH 1995
JUDGMENT E M GROSSKOPF, JA
2
The appellant was convicted of murder in the
Eastern Cape Division (Leach J and assessors) and was sentenced to death. He now appeals against this conviction and sentence. At his trial he was also convicted on a number of additional counts which are not subject to appeal. For the purposes of this appeal it is necessary to have regard to the full ambit of the criminal conduct proved against him at his trial.
On 11 January 1993 the appellant entered, through the bathroom window, the farmhouse of Mr S P Holtzhausen in the district of Alexandria. The appellant stole a .357 revolver and three rounds of ammunition.
About a week later, on 17 January 1993, the appellant returned to the farm of Mr. Holtzhausen, broke in through a window, and stole food, drink, jewellery, cash and other items to a value of at least R3 500.
The next number of offences were committed on 29
3 January 1993 at Vengrove Farm in Alexandria, the home
of Mrs. M J Scott. On the evening in question Mrs
Scott, who was a woman in her early 70's, was alone at
home. The house was locked. At approximately a quarter
to seven she was busy cleaning her teeth at a wash
stand. On turning around from the wash stand she was
confronted by a man (who, it was established at the
trial, was the appellant) holding a pistol in his left
hand pointing at her. His face was smeared with paint
and partly covered by a handkerchief. He screamed at
her demanding money, which she said she did not have.
He then demanded the keys of the safe. She said she did
not have them. Thereupon he produced a large knife with
a blade of approximately 30 cm in length. Mrs Scott
maintained that she had no money. However, she found
some small change on a table which she gave to the
appellant. He then took her to her son's bedroom where
there was a wall-safe. The appellant made various
attempts to open the safe but without success. He then
4 directed Mrs Scott to go to the dining room, and from
there to the bathroom. She tried to slam the bathroom
door and lock it. However, the appellant forced open
the door, removed the key from the inside, and locked
her in. While he was doing this Mrs Scott escaped
through the bathroom window. She made her way to a
neighbour who lived about four kilometres from her.
When she returned home she found that some articles of
no great value had been stolen.
This then brings me to the final series of offences. These were committed on the night of 16 to 17 February 1993 at Forest Hill Farm in the district of Alexandria. This was the home of Mr and Mrs Purdon. The trial court accepted the State evidence in regard to these charges and this finding was rightly not challenged before us. The facts as found were as follows.
On the night in question Mr and Mrs Purdon, who were both in their 50's, were at home together with
5 their 30 year old daughter Katherine and her nine year
old son Tyrone. Mr Purdon's pick-up truck was parked
outside the house. In the truck were some bottles of
liquor, cool drinks, a glass, cigarettes and a
butcher's knife. The knife was exhibit 1 at the trial.
The appellant came to the farm and removed these
articles from the pick-up truck. Save for the knife, he
placed the articles on a nearby lawn, apparently with
the intention of retrieving them later. The knife,
which had a fixed blade, some 20 cm in length, he took
with him. He was also armed with another knife and a 9
mm pistol. The pistol was loaded with a single round
(this is the appellant's version and it is supported to
some extent by police evidence).
Some time after midnight the appellant took a
ladder which was in the vicinity of the house and used
it to enter the Purdons' bedroom. Their bedroom window
was ajar, and the appellant had to open it further to
gain access. All the inhabitants of the house were
6 asleep. The appellant walked through the bedroom, a
passage and some further rooms to the kitchen.
What happened thereafter was recounted by Mr and
Mrs Purdon. At about 1 a m, Mr Purdon said, he awoke
and decided to go to the kitchen to get a glass of
water. On reaching the door leading from the lounge
into an entrance hall and from there to the kitchen, he
turned on outside lights which shone into the kitchen.
He saw the appellant standing in the kitchen with his
hands over the kitchen table. The appellant says he was
eating and this is not disputed. The distance between
the appellant and Mr Purdon at that stage was
approximately 9 metres. Mr Purdon asked the appellant
what he was doing, to which the appellant replied that
he was hungry. The next moment the appellant launched
a violent attack on Mr Purdon with the knife, exhibit
1. The first blow which the appellant struck missed Mr
Purdon and caused an indentation in the steel
doorframe, which is an indication of the force with
7 which it was delivered. The appellant then directed a
hail of blows with the knife at Mr Purdon. Mr Purdon
put up his left arm in an attempt to ward these off. He
sustained stab wounds on his arm, his chest and his
hand, his thumb being almost severed. On turning away
from the appellant, he was stabbed in the back.
Eventually he fell to the ground with air escaping out
of a wound in his chest which he tried to stop with his
fingers. In the course of the attack he heard his
daughter Katherine shouting "leave him, leave him." On
looking around he saw the appellant grab hold of his
daughter. He also heard his wife, who had awoken,
asking what was wrong and he shouted, "fetch my gun".
After that, while he was lying immobile on the ground,
he heard several shots being fired. When the shooting
had ended he heard movement in the house and shouted at
his wife to give the appellant money. He knew that he
had R960 in a wallet in a trouser pocket. What happened
after that appears from the evidence of Mrs Purdon, to
8 which I now turn.
Mrs Purdon was awakened by shouts. She got out of
bed and went into the passage. She saw her husband
being attacked in the doorway with her daughter,
Katherine, attempting to pull the appellant off him.
Katherine was shouting to the appellant to leave her
father alone. Mrs Purdon returned to the bedroom to
fetch her husband's pistol and then went back to the
passage. As she went down the passage the appellant
left her husband who collapsed on the floor. The
appellant came at her. He had a firearm in one hand and
a knife in the other. She fired the eight rounds which
were in the pistol at the appellant. Although she
struck the appellant four times, twice in one leg, once
in the other, and one shot in the abdomen, he gave no
indication of having been hit. He went up to her,
stabbing furiously. She tried to protect herself by
raising her hand in front of her. At the same time
Katherine approached the appellant from the rear and
9
tried to pull him away from Mrs Purdon. The appellant
then stabbed vigorously at both of them and Katharine collapsed to the floor. During the course of this attack on her, Mrs Purdon sustained a stab wound extending from her left shoulder penetrating for nine and a half inches under her left breast. There were also stab wounds on the dorsum of the left hand, on the palm of the left hand, on the left forearm, the left elbow, and on both the left and the right sides of her back.
After Katherine had collapsed, the appellant went to the main bedroom. Mrs Purdon followed him. As she entered the room, the appellant was in the vicinity of the window through which he had entered. He picked up a plastic chair with steel legs, and attacked her with it, striking her over the head. While she was still recovering from the blow, he attacked her again with the knife, laying open her left ear and the left side of her neck. Had this wound been a few millimetres
10 deeper it would have been fatal. This wound bled
profusely and she sat down on her bed. She then heard
her husband shouting, telling her to offer the
appellant money. She asked him whether he wanted money
and he said yes. She took the money from her husband's
trouser pocket and added about R40 of her own. She gave
this money to the appellant. He then picked up
something from the floor and made his escape through
the window. It later appeared that he had taken Mr
Purdon's firearm, which had fallen to the ground.
It is not necessary to set out how Mrs Purdon ultimately obtained help.
As a result of her injuries Katherine bled to death. Mrs Purdon spent a short while in hospital while her husband was in hospital for several months and suffered permanent disability and weakness in the left leg.
Arising from the above events the appellant was convicted as follows. He was convicted of theft of the
11
firearm and three rounds of ammunition from Mr. Holtzhausen on 11 January 1993 (count 1). In respect of the second incident at Mr. Holtzhausen's home, i e, that of 17 January 1993, he was found guilty of housebreaking with intent to steal and theft (count 2). The events at Mrs Scott's home gave rise to convictions of housebreaking with the intent to rob (count 3) and robbery with aggravating circumstances (count 4).
In respect of the Purdons, the appellant was convicted of theft of the articles removed from the pick-up truck (count 5); housebreaking with intent to rob (count 6); robbery with aggravating circumstances of Mr Purdon's pistol and of the money which Mrs Purdon handed to the appellant (count 7); the attempted murder of Mr Purdon (count 8); the attempted murder of Mrs Purdon (count 9); and the murder of Katherine Purdon (count 10). Finally the appellant was also convicted of the illegal possession of two firearms (count 11).
As I have stated above, the only count which is
12 before us on appeal is count 10 relating to the murder
of Katherine Purdon. On this count the appellant was
sentenced to death. On the other counts various terms
of imprisonment were imposed, some of which were
ordered to run concurrently, resulting in an effective
term of imprisonment of 25 years.
Although the present appeal was said to be against I
conviction and sentence, the only point taken in
respect of the conviction was that the trial court had
erred in holding that the appellant had killed the
deceased with dolus directus proved. This was
consistent with the appellant's attitude in the court
a quo. There he had pleaded guilty to murder on the
basis of dolus eventualis, but this plea was not
accepted and the court found dolus directus. The
appellant's counsel in this appeal asked therefore that
the conviction for murder be maintained but that the
finding in regard to the nature of the appellant's
intent be changed to one of dolus eventualis. It is
13 clear, therefore, that there is not, in truth, an
appeal against the conviction. It is common cause that
the conviction must stand. The nature of the intent
with which the appellant killed the deceased can be
relevant only to sentence.
The crux of the argument presented to us was that
the appellant was surprised in the kitchen by Mr
Purdon, that a scuffle started between the two of them,
and that the appellant wanted to escape by the same way
as he had come, i e, through the bedroom window.
However, first Mr Purdon, and later Katherine and Mrs
Purdon, were between him and the window. This caused
him to stab wildly in an attempt to escape. He was also
shot by Mrs Purdon before he stabbed the deceased, and
before he could get away. These circumstances, it was
suggested, cast doubt on whether the appellant ever
entertained the direct intent to kill any of the
Purdons.
In my view this argument is refuted by the facts.
14 When Mr Purdon first saw the appellant they were about
9 metres apart. The appellant immediately launched a
violent attack on Mr Purdon, using such force that an
indentation was made in the steel door frame. If the
appellant had merely wanted to get away, he could
easily have done so, Mr Purdon had just got out of bed.
The appellant was armed to the teeth. If the appellant
had threatened Mr Purdon with his firearm (or, for that
matter, one of his knives) Mr Purdon would hardly have
tried to prevent his escape, and would, no doubt, have
opened the front door if asked to do so.
A further important pointer to the appellant's
intent may be found in his conduct after he had
returned to the bedroom. At that stage he was at the
window, all the inhabitants of the house had been
subdued, and nothing prevented his escape. However, he
turned around and launched a fresh attack on Mrs
Purdon. He did not desist until she had given him
money.
15 It seems clear, therefore, that the appellant's
motive in attacking the Purdon's was not solely to
escape. He wanted to get them out of the way in order
to plunder the home. To that end he entered the house
armed, and even took with him the highly effective
knife, exhibit 1, which he had stolen from the pick-up
truck. No doubt he would not have used these weapons if
none of the Purdons had woken up. But once they did, he
immediately went over to the attack. And when one looks
at the wounds which he inflicted, the inference is
irresistible that he had the direct intent to kill
them, as was found by the trial court. As regards the
deceased, Katherine Purdon, the trial court said the
following:
"Again the issue here is whether the accused had the actual intention to kill Katherine Purdon when he attacked and stabbed her or whether he only realised that she might die and persisted with his attack upon her notwithstanding his appreciation of that risk. Again on this count there are two wounds of great significance. The first was a 5 cm laceration above the left ear, deeper towards the rear, indicative of a stab at the head. The
16
second was the fatal wound. It penetrated from a point 15 cm from the mid sternum on the upper part of her body near the shoulder through the pectoralis major muscle between the first and second ribs in the mid clavicular line to reach the second thoracic vertebra of the spine. To put that more simply, the knife was buried in her body from near her shoulder until it touched her spine. In its passage the knife severed the subclavicular veins and arteries which in turn resulted in massive bleeding and ultimately death. The medical evidence was that this wound could only have been caused by a blow delivered with considerable force. The accused, who according to what he demonstrated in court is right handed and used the knife with that hand, must have been facing the deceased when he delivered the blow that caused this wound. He was undoubtedly also facing her when he directed a blow towards the head. In the light of this, the force which was required to deliver the fatal wound in particular, the nature of the weapon used and the parts of the body at which the accused directed his blows, we feel that the only reasonable inference which can be drawn is that he must have had the actual intention to kill her when he stabbed her."
I agree with this finding.
It was also argued before us that, if the
appellant had intended to kill the Purdons, he would
have used his firearm rather than the knife. At best
this seems a very speculative contention. The knife was
17 a deadly and efficient weapon. There may be many
reasons why a murderer would prefer it to a firearm.
But, be that as it may, in the present case we know
that the appellant had only a single round of
ammunition. This would hardly have sufficed to put all
the Purdons out of action.
For the reasons given I accordingly agree with the trial court that it was proved beyond reasonable doubt that the appellant had the direct intent to kill the deceased.
I turn now to the appeal against the death sentence. It is trite law that this court has an independent discretion to decide, after considering all mitigating and aggravating factors and any other relevant circumstances, whether the death sentence is the only proper sentence in this case.
There are substantial aggravating factors. The appellant entered the isolated farmhouse of the Purdons in the middle of the night when everybody was asleep.
18
The raid was pre-planned. The appellant foresaw the
possibility of resistance, and was armed to deal with
it. When the occupiers of the house woke up, he
attacked them with the direct intention of killing
them. More particularly, he had the direct intention of
killing the deceased.
The appellant was not a first offender. Apart from
an irrelevant previous conviction for theft while still
a youth, he was found guilty of assault with the intent
to do grievous bodily harm in 1990. This does not
appear to have been a serious matter. He was sentenced
only to a suspended fine. Then he was convicted (again
in 1990) of dealing in dagga. He was sentenced to a
partially suspended term of imprisonment. These
previous convictions are not of any great importance
for present purposes. What is more important is the
course of conduct revealed by the evidence in the
present matter. In little more than a month the
appellant unlawfully entered three farmhouses for the
19 purposes of theft or robbery. In all these cases there
was a potential of injury or death to the occupiers. At
least on the last two occasions (those involving Mrs
Scott and the Purdons) the appellant was armed with a
firearm and a knife. This background is seriously
aggravating. I turn now to mitigating factors. The
appellant was 23 years old when he was sentenced (12
November 1993). There is nothing to suggest that he was
immature for his years. Nor can it be said that the
offence flowed from youthful impetuosity or any other
attribute of immaturity. The appellant's mother gave
evidence in mitigation in which she described his youth
and upbringing. He clearly came from a deprived
background and had received an inadequate education.
Prior to the appellant's arrest, his mother said, he
had been doing piece work on a chicory farm. The
appellant, on the other hand, testified that he had
been out of work for some years. Whatever the true
position may be, I think we must accept that his
20
employment was, at best, sporadic. Although his age and
personal background may be regarded as mitigating to
some degree it cannot in my view be accorded any
substantial weight.
If one weighs up the aggravating factors against
the mitigating ones, the balance comes down heavily on
the side of the aggravating ones. Looking at the
purposes of punishment I consider that this is a case
where deterrence should receive the greatest emphasis.
I do not have to expand on the need to protect farmers
and their families against murderous assaults like that
in the present case. At the same time the natural anger
of the public at such deeds also deserves some
recognition. I agree with the learned trial judge that
it is impossible to say that the appellant is entirely
incapable of rehabilitation, but that the prospects
thereof are clearly extremely slim in view of the
nature of the offences and his previous history of
crime. Taking everything into account I consider that
21
this is a case calling for the most severe punishment
for which the law makes provision.
My above conclusion would, as the law now stands, lead to a confirmation of the sentence. However, the constitutionality of the death sentence is at present being considered by the Constitutional Court. In these circumstances it is appropriate to postpone the final decision of this appeal until after the Constitutional Court has given its ruling.
The following order is made:
The appeal against the conviction is dismissed.
Further consideration of the appeal against the sentence is postponed to a date to be fixed by the Registrar of this Court in consultation with the Chief Justice.
E M GROSSKOPF, JA
VIVIER, JA
VAN DEN HEEVER, JA
Concur