S v Mooi and Another

• Jurisdiction: South Africa
• Judgment Date: 30 May 1990
• Citation: 1990 (1) SACR 592 (A)

S v Mooi and Another
1990 (1) SACR 592 (A)

1990 (1) SACR p592

Citation	1990 (1) SACR 592 (A)
Court	Appellate Division
Judge	Kumleben JA
Heard	May 14, 1990
Judgment	May 30, 1990
Counsel	D A Kuny SC (with him D Chetty) for the appellants; G J Bursey for the State

Flynote : Sleutelwoorde

Murder — Trial — Twofold enquiry: firstly, enquiry to determine guilt or innocence; secondly, enquiry into presence of extenuating circumstances — Two separate findings involved — No final verdict until latter finding on H extenuation — Evidence in extenuation cannot be relied upon to set aside, vary or substantiate finding on guilt — Converse not applicable — Court entitled to have regard to extenuating facts led before accused found guilty — In casu, Court on appeal finding that appellant's confession and statement incorrectly admitted by trial Court — Remaining evidence on merits not proving appellant's complicity in murder — Evidence on I extenuation, taken together with remaining evidence on merits, appearing to prove State case — Court holding that such evidence could not be taken into account — Appellant convicted of public violence on remaining evidence on merits.

Headnote : Kopnota

A murder trial is unique in that a twofold enquiry is involved: firstly, an enquiry to determine the guilt or innocence of the accused and, J secondly, if he is found guilty of murder, an enquiry into the question whether there are

1990 (1) SACR p593

A extenuating circumstances. There are two separate findings in such a case and no (final) verdict ensues before the latter finding.

It has to be recognised and affirmed that evidence given in extenuation cannot at any stage be relied upon to set aside, vary or substantiate the preceding finding on the guilt of a person on a murder charge. This conclusion does not affect the right to apply to lead further evidence in terms of s 316 of the Criminal Procedure Act 51 of 1977. It must also B be noted that the converse does not apply: the Court can have regard to extenuating facts emerging from the evidence led before an accused is found guilty. The acknowledgment of such an 'exception' is in the interests of an accused person and can cause no prejudice to the prosecution.

S v Mavhungu 1981 (1) SA 56 (A) not followed.

In casu, the appellant had been found guilty of murder by the trial C Court, and no extenuating circumstances having been found, had been sentenced to death. The deceased had been fetched from his home by a group of persons one afternoon, and his body had been found on the following evening approximately one kilometre away from his home in the bush on the outskirts of the town. The evidence against the appellant was (1) the D testimony of a witness to the removal of the deceased from his home, who had identified the appellant as being part of the group which had fetched the deceased; (2) a confession made to a magistrate; (3) a statement made by the appellant shortly thereafter to a captain in the South African Police; and (4) a pointing out by the appellant of the place where the deceased had been killed. The evidence in regard to (4) was that the E appellant had been unable to point to a precise spot, and eventually had pointed to a spot some 10 metres from where the deceased's body had been found. The trial Court had rejected the appellant's evidence on the merits and had convicted him.

In an appeal to the Appellate Division by the appellant against his conviction and sentence, the Court found that the trial Court had erred in admitting in evidence the appellant's confession to the magistrate F and his statement to the police captain. It found, further, that the evidence of the pointing out did not further the State case. As to the evidence of the witness to the removal of the deceased from his home, the Court held that it did not show (a) for how long the appellant had accompanied the group and had thus continued to associate himself with their actions; (b) what had been said, heard by the appellant, about the G intended purpose of the abduction; (c) whether the deceased had in fact been killed that afternoon, bearing in mind that the body had been found on the following evening; and (d), if so, at what stage and for what reason the deceased had been fatally assaulted. The Court held, further, that, in the absence of such evidence, or of proof that the appellant had been a party to a prior agreement to abduct the deceased in order to H kill him, the requirements for the doctrine of common purpose had in no way been satisfied. The appellant could not on such evidence have been convicted of murder.

The issue which then arose was whether he could have been convicted of murder if the evidence he had given in extenuation had been taken into account. At the trial the appellant had admitted, during cross-examination I on his evidence in extenuation, that what had been recorded in his (inadmissible) confession had been the truth. The confession included the following: 'Whitey (the deceased) smeek ons toe om hom nie te slaan en nie dood te maak nie. Ons het hom toe geslaan en S het hom toe met 'n byl gekap. V het toe petrol oor Whitey gegooi. Omdat ek nie geweet het dat Whitey doodgemaak sou word nie het ek weggehardloop.' He had also admitted J that he had seen one of the group carrying a can of petrol and had

1990 (1) SACR p594

A conceded that he had known that someone suspected of having been an informer (such as the deceased) would normally be killed or severely injured. It appeared that such evidence, taken together with the admissible evidence on the merits, would have proved the State case.

The Court on appeal held, however, that such evidence could not be taken into account in relation to the merits, and that on the admissible evidence on the merits the appellant should have been convicted of B public violence.

Case Information

Appeal from a conviction of murder without extenuating circumstances in the Eastern Cape Division (Van Rensburg J). The facts appear from the judgment of Kumleben JA.

D A Kuny SC (with him D Chetty) for the appellants referred to the C following authorities: R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Xolani Moses Stuurman (unreported AD case No 469/88, 22 May 1989); S v Mavhungu 1981 (1) SA 56 (A) at 64H; S v Mgedezi and Others 1989 (1) SA 687 (A); S v McBride 1988 (4) SA 10 (A) at 19A; S v Dikgale 1965 (1) SA 209 (A) at 214E; S v Smith and Others 1984 (1) SA 583 (A) at 596D, 617F-G.

G J Bursey for the State referred to the following authorities: S v D Sauls 1981 (3) SA 172 (A) at 182, 184 et seq; R v Wepener 1950 (1) PH H73 (GW); S v Mpumlo 1987 (2) SA 442 (E) at 451; Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 461, 472; S v Mphahlele and Another 1982 (4) SA 505 (A) at 522D-F; R v Mawaz Khan [1967] 1 AC 454 ([1967] 1 All ER 80); but contra see S v Mongalo 1978 (1) SA 414 (O) at 419; Viviers v E Kilian 1927 AD 449 at 454; S v Lebone 1965 (2) SA 837 (A); S v Motlhabakwe en Andere 1985 (3) SA 188 (NC); S v Talane 1986 (3) SA 196 (A) at 749; S v Gaba 1985 (4) SA 734 (A); S v Mkwanazi 1966 (1) SA 736 (A) at 743; S v Nyembe 1982 (1) SA 835 (A) at 842-3; S v Rama 1966 (2) SA 395 (A) at 400; S v Madlala 1969 (2) SA 637 (A) at 642; S v Letsoko and Others 1964 (4) SA 768 (A) at 776; S v Mthetwa 1972 (3) SA 766 (A) at 769; R v Ncanana 1948 F (4) SA 399 (A) at 405; Phadhla v R 1948 (1) PH H87 (A); S v Mgedezi and Others 1989 (1) SA 687 (A) at 705-6; S v Safatsa and Others 1988 (1) SA 868 (A) at 890-1, 893, 904G, 904I-J; S v Dambalaza and Others 1964 (2) SA 783 (A); R v Dladla 1962 (1) SA 307 (A) at 311; S v Malinga 1963 (1) SA 692 (A) at 694; R v Koglane and Others 1960 (1) PH H110 (A); S v X 1974 (1) SA 344 (RA) at 348; S v Mkaba and Others 1965 (1) SA 215 (A) at 217; S v P 1974 (4) SA 581 (RA); S v Kola 1966 (4) SA 322 (A) at 327G; R v G Deetlefs 1953 (1) SA 418 (A) at 422G; R v Mohr 1944 TPD 105 at 108; S v Goedhals (unreported, ECD, case No CA&R 560/86, 21 April 1988); S v Petrus 1969 (4) SA 85 (A) at 95; S v Stuurman and Others (unreported, ECD, case No CC 38/87, 22 February 1988).

Cur adv vult.

H Postea (30 May 1990).

Judgment

Kumleben JA:

The two appellants stood trial with 14 other accused in the Eastern Cape Division of the Supreme Court on a charge of murder. The first appellant was accused No 2 and the second appellant accused No 1: for convenience I shall continue to refer to them as such. Both were I convicted of murder. No extenuating circumstances having been found, the death penalty was imposed. The Court a quo, however, granted leave to accused No 2 to appeal to this Court against his conviction and sentence (the finding that there was no extenuation); and this Court gave leave to accused No 1 to appeal against sentence only.

The charge arose from the death of Thozamile Michael Dondashe in or near the Kwa Nobuhle township, Uitenhage district, on 24 October 1985. J The events

1990 (1) SACR p595

Kumleben JA

A leading to his death were described by his mother and his sister, Tozama Dondashe, who were State witnesses. Late that afternoon the deceased ran into his home injured. As he was washing his wounds his pursuers arrived. They demanded that he be released to them, alleging that he was a police informer. A crowd gathered outside the house. Eventually, after the house had been damaged, set alight by a petrol bomb and entered into by some of B the crowd, the deceased's father instructed him to accompany those who had come for him. The following evening his body was found about one kilometre from his home at a spot on the outskirts of Kwa Nobuhle. His skull had been crushed and his head, face and body burnt. The indications were that the head injury caused his death before the burning took place.

I turn to consider, first, whether accused No 2 was...