S v Bapela and Another

• Jurisdiction: South Africa
• Citation: 1985 (1) SA 236 (A)

S v Bapela and Another
1985 (1) SA 236 (A)

1985 (1) SA p236

Citation	1985 (1) SA 236 (A)
Court	Appellate Division
Judge	Kotzé JA, Miller JA, Cillié JA, Viljoen JA and Eloff AJA
Heard	September 14, 1984
Judgment	September 28, 1984

Flynote : Sleutelwoorde

Criminal procedure — Trial — Co-accused — Separation I of trials — Application for — Court to be very cautious before deciding such applications in a summary fashion — Sentence — Death sentence — Imposition of in discretionary cases — Should only be resorted to where it is the only appropriate sentence to be imposed — Court to consider whether an alternative sentence, short of the death sentence, would sufficiently

1985 (1) SA p237

satisfy the deterrent, punitive and reformative aspects of A punishment.

Headnote : Kopnota

A trial Court should, in deciding an application for the separation of the trials of co-accused, be very cautious before deciding it in a summary fashion.

Subject to the considerations stated in cases such as S v Sithole en Andere 1983 (3) SA 610 (A) at 614 in fine and 615C and S v Tshomi en 'n Ander 1983 (3) SA 662 (A) at 666F, the broad principle remains that the death penalty should only be resorted to where, having regard to all the relevant B considerations, it is the only appropriate sentence to be imposed. The consideration should always be that which was expressed in S v Letsolo 1970 (3) SA 476 (A) at 476 in fine -477B, ie "whether some alternative, short of this incomparably utter extreme, would sufficiently satisfy the deterrent, punitive and reformative aspects of punishment". C

Case Information

Appeal from death sentences imposed in the Witwatersrand Local Division (VERMOOTEN J). The facts appear from the judgment of VILJOEN JA.

F Z Krynauw for the first appellant (at the request of the Court) referred to the following authorities: Hiemstra SA Strafproses 3rd ed at 707, 708; S v Giannoulis 1975 (4) SA 867 (A) D at 873; S v Rabie 1975 (4) SA 855 (A); R v S 1958 (3) SA 102 (A); S v Fazzie 1964 (4) SA 673 (A); S v Zinn 1969 (2) SA 537 (A) at 540; S v Pillay 1977 (4) SA 531 (A); S v Robyn 1972 (2) PH H150 (A); Lansdown and Campbell South African Criminal Law and Procedure vol V 1st ed at 596, 597, 599; S v Ivanisevic E 1967 (4) SA 572 (A); S v Hlapezula 1965 (4) SA 439 (A) at 444; S v Whitehead 1970 (4) SA 424 (A) at 436; S v Anderson 1964 (3) SA 494 (A); S v Ntuli 1978 (1) SA 523 (A); Du Toit Straf in Suid-Afrika at 234 - 5; S v Reddy 1975 (3) SA 757 (A).

Mrs K I Foulkes-Jones for the second appellant (at the request of the Court) referred to the following authorities: S v Rabie 1975 (4) SA 855 (A); Lansdown and Campbell South African F Criminal Law and Procedure vol V 1st ed at 595, 596, 597, 598, 599, 600; S v Robyn 1972 (2) PH H150 (A); R v Freddy 1963 (2) SA 128 (RA); R v Zulu 1951 (1) SA 489 (N) at 494; S v Anderson 1964 (3) SA 494 (A) at 495; R v Rowesayi 1969 (2) SA 578 (RA); S v Morgan 1972 (2) PH H137 (A); S v M 1976 (3) SA 644 (A); S v G Pillay 1977 (4) SA 531 (A); S v Giannoulis 1975 (4) SA 867 (A) at 873; S v Jackson 1976 (1) SA 437 (A); S v Kumalo 1973 (3) SA 697 (A) at 698A; S v V 1972 (3) SA 611 (A) at 614F; S v Sithole en Andere 1983 (3) SA 610 (A) at 614H, 615A; S v Tshomi en 'n Ander 1983 (3) SA 662 (A) at 666E.

J L Oberholzer for the State referred to the following authorities; R v Mapumulo and Others 1920 AD 56 at 57; R v H Ramanka 1949 (1) SA 417 (A) at 420; R v Von Zell 1953 (4) SA 552 (A); R v S 1958 (3) SA 102 (A) at 104; R v Cain 1959 (3) SA 376 (A); S v Ndhlovu 1965 (4) SA 692 (A); S v Maseko and Others 1972 (3) SA 348 (T) at 351; S v Kok 1974 (1) PH H2 (A); S v Reddy 1975 (3) SA 757 (A) at 760; S v Giannoulis 1975 (4) SA 867 (A) I at 873; S v M 1976 (3) SA 644 (A); S v Pillay 1977 (4) SA 531 (A); S v Moloto 1982 (1) SA 844 (A); S v Knoop 1982 (2) PH H120 (A); S v Mthambamba (AD) 19 May 1983, unreported; S v Sithole en Andere 1983 (3) SA 610 (A) at 614 - 5; S v Tshomi en 'n Ander 1983 (3) SA 662 (A) (1983 (2) PH H116); Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 572 - 3.

1985 (1) SA p238

Cur adv vult. A

Postea (September 28).

Judgment

Viljoen JA:

The two appellants appeared as accused 1 and 2 with B one Harry Dire, as accused 3 (hereinafter referred to as Dire), before VERMOOTEN J and two assessors in the Court a quo on various charges, all arising from the same event, namely a robbery committed on Saturday 2 July 1983 at Jazz Stores, a smallish supermarket in Industria, Johannesburg.

The charges and the allegations in respect of each charge were C the following:

1.

Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977 in that the three accused robbed Gordon James Fleetwood, Michael John Cooper and Simon Lekaba of R3962,07 in cash, a wrist watch and a D wallet, aggravating circumstances being present.

2.

Attempted murder in that they attempted to murder Simon Lekaba.

3.

Assault with intent to do grievous bodily harm in that they assaulted Gordon James Fleetwood by hitting him E with a steel rod with intent thereby to inflict grievous bodily harm.

4.

Assault with intent to do grievous bodily harm in that they assaulted Michael John Cooper by hitting him with a steel rod and kicking him with booted feet with intent thereby to inflict grievous bodily harm.

5.

F Unlawful possession of firearms, to wit one 9 mm pistol and one.38 revolver, without being the holders of licences in terms of Act 75 of 1969 to possess such arms.

6.

Unlawful possession of ammunition while they were not in the lawful possession of firearms capable of firing that ammunition.

G The first appellant pleaded guilty to counts 1 and 3 and not guilty to counts 2, 4, 5 and 6. The second appellant pleaded guilty to count 1 and not guilty to counts 2, 3, 4, 5 and 6. Dire pleaded not guilty to all counts. Counsel for Dire applied for a separation of trials which the trial Judge, without hearing full argument, granted on the sole ground, it seems, H that Dire had pleaded not guilty while each of the other two accused pleaded guilty to one or more charges. Judging from his comments during the brief exchanges between himself and counsel for the State the learned Judge considered that Dire might be prejudiced. He said:

"Nouja hy kan mos nou benadeel word as hy moet nou oor, ten I minste die getuienis wat aangebied word, of wat die geval ookal mag wees, as hy nou as een wat onskuldig pleit, in ander woorde, wat met die Staat in geding tree terwyl die ander twee nie, dan kon hy benadeel word."

(Italics by me.)

Another remark by the learned Judge was:

"Maar ek is begaan met die benadeling of potensiële benadeling van nr 3, as hy hier staan as 'n man wat in geding getree het met die Staat en die

1985 (1) SA p239

Viljoen JA

ander twee blameer hom. En hulle het nie 'n geding met die A Staat nie. Nou ek gaan dit toestaan tensy u my kan gesag gee waarom ek dit nie moet doen nie."

Counsel for the State had no authority available and contented himself with remarking that he left the matter to the Court's discretion. Had the learned Judge only taken the trouble to consult decisions such as R v Nzuza and Another 1952 (4) SA 376 (A), R v McMillan and Another 1958 (3) SA 800 (E) and R v B Mfuduka and Another 1960 (4) SA 770 (C), or if he had only afforded counsel for the State, who was obviously caught by surprise, a proper opportunity to consult authority and to argue the matter, he might have been more cautious before deciding, in so summary a fashion, to grant the application for a separation of trials. I point out that, even though the two C appellants each pleaded guilty to one or more of the charges, a conviction did not follow there and then on those charges but the Court heard all the evidence before convicting the two appellants. The first appellant was eventually convicted on counts 1, 2, 3 and 4 and was found not guilty on counts 5 and D 6. The second appellant was convicted on all six counts. The first appellant was sentenced as follows:

Count 1: The death penalty was imposed.

Count 2: Five years' imprisonment.

Count 3: Two years' imprisonment.

Count 4: Two years' imprisonment. E

The second appellant received similar sentences on counts 1 - 4 and on counts 5 and 6, which were taken together for the purpose of sentence, a term of two years' imprisonment was imposed. Dire, who was separately tried before MARGO J and assessors, was convicted on similar charges and was sentenced F as follows:

1.

On the charge of robbery with aggravating circumstances he was sentenced to 20 years' imprisonment.

2.

On the charge of attempted murder, involving the shooting of Simon Lekaba, a sentence of five years' imprisonment was imposed.

3.

On count 3, involving the charge of assault with G intent to do grievous bodily harm on Fleetwood, a sentence of two years' imprisonment was imposed.

4.

On count 4, involving the charge of assault with intent to do grievous bodily harm on Cooper, the learned Judge and assessors considered that part of H the assault was aimed at inducing Cooper to submit to being robbed which "factor had been given account" in the sentence of 20 years' imprisonment on count 1. For this reason the sentence imposed on count 4 was only one year's imprisonment.

5.

On counts 5 and 6, the statutory counts of unlawful possession of the revolver and ammunition, two years' I imprisonment was imposed.

The Court ordered the sentences on counts 2, 3, 4, 5 and 6 to run concurrently with the sentence of 20 years' imprisonment on count 1.

An application for leave to appeal before the trial Judge having failed, both appellants petitioned the Chief Justice for leave to appeal

1985 (1) SA p240

Viljoen JA

A against the convictions on counts 1 - 4 on the ground that there was an improper multiplication...