S v Felix and Another

• Jurisdiction: South Africa
• Judge: Wessels JA, Miller JA and Diemont JA
• Judgment Date: 11 September 1980
• Citation: 1980 (4) SA 604 (A)
• Hearing Date: 22 August 1980
• Court: Appellate Division

Diemont, JA.:

On Thursday evening, 17 August 1978, a young man, timothy Thomas Booysen, was set upon in a street in Port Elizabeth and stabbed to H death. In due course his three assailants were brought to book and tried a year later on a charge of murder. Three pleas of not guilty were recorded, the defence being an alibi in each case. The trial Judge and assessors accepted the evidence of the State witnesses, disbelieved the accused and found them all guilty of murder. The Court held that there were no extenuating circumstances and the three men were sentenced to death. Their application for leave to appeal was dismissed but the CHIEF JUSTICE was petitioned by two of the convicted men and leave was

Diemont JA

granted to appeal against the death sentence. The appeal now before this Court is accordingly, not against the convictions, but only against the A finding that there were no extenuating circumstances and it concerns only two of the three men charged. It is nevertheless necessary to give a short review of the facts.

[The learned Judge then dealt with the evidence and proceeded.]

The accused, Terblanche, and the two appellants all gave evidence. Each B denied all knowledge of the crime with which they were charged and each gave evidence of an alibi, but the Court a quo did not believe their evidence. The trial Judge said that he found the story told by Felix unconvincing and said that it was not corroborated. Aspeling's alibi was also "wholly unsupported" and, as both the appellants had lied unintelligently, their evidence was rejected, as was also the evidence C given by Terblanche. The evidence of the State witnesses was accepted; in particular the eye-witness, Mrs Makwetu, was found to be "a completely honest and reliable witness".

The three men were accordingly found guilty as charged.

Counsel for the appellant, John Felix, called no evidence but addressed D the Court in mitigation. He made three points in argument: Firstly, that the appellant was young, he was only 18 years of age when the offence was committed. Secondly, that he had had little education and that he had a poor intelligence and was in a sense "a pathetic case". Thirdly, that he was to some extent under the influence of liquor on the night when Booysen was killed.

E Counsel for the appellant, Patrick Aspeling, called no evidence and, for reasons which I find quite incomprehensible, said that he had no submissions to make in regard to mitigation. The trial Judge then gave a short judgment on mitigation which reads as follows:

"We have considered the question of extenuation in this case. The defence F which the three accused raised was an alibi. In those circumstances it is not possible for them to suggest that they were influenced in any way by consumption of liquor or by anything else.

Insofar as accused No 2 is concerned, it is suggested that his age may be a factor, but the Courts have said, and I personally have remarked in cases of this kind, that, if a young man commits a vicious adult crime, then he must be prepared to accept the punishment which an adult would G receive. The wounds inflicted on the deceased in this case indicate that it was a brutal and sustained attack which caused his death. No less than 12 wounds were inflicted, and it is clear from the evidence of Mrs Makwetu, and of the deceased's companion, that the deceased and his companion were at the corner of the two streets minding their own business, doing no harm to anybody, when they were attacked for no reason H whatever, except that the three accused came upon them and decided for no reason to do them a serious injury.

The circumstances of this murder make it abundantly clear that there are no facts whatever which can be taken in extenuation. In the circumstances you are all three found guilty of murder without extenuating circumstances."

The first question which arises is whether the trial Judge misdirected himself in the reasons which he gave for finding that there were no extenuating circumstances. Both counsel for the appellants contended that it was a serious misdirection for the Court to hold that, since the defence which the three accused raised was an alibi, it was in the circumstances

Diemont JA

"not...