S v Robinson and Others

• Jurisdiction: South Africa

S v Robinson and Others
1968 (1) SA 666 (A)

1968 (1) SA p666

Citation	1968 (1) SA 666 (A)
Court	Appellate Division
Judge	Steyn CJ, Holmes JA and Potgieter JA
Heard	November 27, 1967
Judgment	December 8, 1967

Flynote : Sleutelwoorde

Criminal law — Murder — Agreement by deceased that he be shot — Retraction prior to act being committed — Effect.

Headnote : Kopnota

Because of dire financial distress and for the purposes of insurance gain to his widow and the avoidance of the prospect of imprisonment for fraud, the deceased had conspired with the second and third appellants F that he be shot and for the shooting the third appellant had, for a reward, procured the first appellant to do the act. The deceased undertook to go on with this plan 'no matter what happens'. But, prior to the shooting, the deceased had said to the first appellant that 'he could not go through with it at all'. The first appellant, however, shot the deceased. In a trial on a charge of murder there was no evidence to show, or from which it could be inferred with any certainty, that the second and third appellants foresaw the possibility that the first G appellant might kill the deceased even if he withdrew his consent and that they had been reckless whether or not he did so kill him. All the appellants were convicted of murder and, no extenuating circumstances having been found, they were sentenced to death. In an appeal, in which the appeal of the first appellant was restricted to the finding of no extenuating circumstances and the resultant sentence.

Held, HOLMES, J.A., dissenting, that, by shooting the deceased after he had retracted his consent, the first appellant had acted outside the common purpose.

H Held, further, that the facts disclosed the existence of extenuating circumstances.

Held, further, that the second and third appellants were guilty of attempted murder.

Held, further, that the first appellant should be imprisoned for 15 years and the second and third appellants for 10 years each.

Case Information

Appeal from a conviction on a charge of murder in the Witwatersrand Local Division (CILLIÉ, J., and assessors). Facts not material to this report have been omitted.

1968 (1) SA p667

P. J. Hare (with him H. Ellison), both at the request of the Court, for the first appellant: The Court has jurisdiction to interfere with the trial Court's finding as to the non-existence of extenuating circumstances, if such finding is vitiated by misdirection, irregularity or one to which no reasonable Court could have come. See S v Malinga, A 1963 (1) SA 692 at p. 695. The trial Court erred in finding that the attitude of the deceased was not overbearing in the circumstances. In the mind of the appellant the deceased was persistent in his desire to be shot, especially in view of the two previous attempts. Evidence that the deceased changed his mind is not acceptable in view of the fact that B it is not corroborated by any other evidence. Alternatively, should the Court find that the evidence of Kleynhans is acceptable in this regard, the request 'no matter what happens, we must go through with it' must have impressed upon the appellant the insistence of the deceased to have himself murdered. The deceased drove the appellant to the scene of the murder as the appellant was unable to drive a motor vehicle. This C shows the seriousness of the deceased's intention. The Court erred in finding financial gain was uppermost in the appellant's mind. The fraud on the insurance company is of no relevance in assessing the guilt of the appellant for the following reasons, viz.: 1. The deceased was D the prime mover in his own murder. This factor motivated the appellant and the fraud on the insurance company was of secondary importance. 2. There was a close relationship between the deceased and the appellant. In view of this relationship the inference can clearly be drawn that the deceased communicated his troubles to the appellant and this, together with the fact that the deceased persistently asked to be shot, E influenced the appellant a great deal. The finding of the non-existence of extenuating circumstances is one to which no reasonable Court could come in view of the peculiar features of this case. When taking into account the factors already mentioned the motives of the appellant were mixed. On the one hand the appellant was tempted by the reward money, F and on the other hand he was acting on the instructions of the deceased and even in the interests of the deceased. The trial Court erred in not approaching the question of extenuating circumstances in this way and it erred in assessing the moral blameworthiness of the appellant as if this was the usual case of killing for reward. The unusual features of the case per se subjectively reduce the moral guilt of the appellant. See G Rex v Fundakubi and Others, 1948 (3) SA 810 at p. 818. The deceased's conduct in this case was akin to suicide. And suicide is no longer a crime in modern South African law. See Rex v Peverett, 1940 AD 213. Likewise, the person who assists another to commit suicide is not guilty of an offence. See S v Gordon, 1962 (4) SA 727; R. v. H Nbakwa, 1956 (2) SA 557. Hence the appellant's moral blameworthiness must be reduced in view of the deceased's own conduct.

F. Zwarenstein, S.C. (with him G. Gordon), for the second appellant: While it is conceded that there may have been unsatisfactory features in the evidence of the second appellant, Mrs. Jackson, it should not be overlooked that she was a woman who was subjected to very severe cross-examination while labouring under a heavy strain. See the remarks of DAVIS, A.J.A., in R v du Plessis, 1944 AD 314 at p. 323. She

1968 (1) SA p668

was subjected to certain improper legal questioning, which must inevitably have been prejudicial to her. As a matter of law, the witness was an accessory after the fact and her evidence was therefore subject A to the same test as the evidence of an accomplice. If corroboration was required for her evidence, such corroboration should have been of the type that would implicate the second appellant. Such corroboration was lacking. See R v Nhleko, 1960 (4) SA 712; S v Mhlabathi and Another, 1967 (2) P.H. H324. The Court a quo should not have admitted B the burglary evidence as its evidential value was negligible and its prejudice material. R v Katz and Another, 1946 AD 71; R v Solomons, 1959 (2) AD 352 at pp. 361, 362; R v Roets, 1954 (3) SA 512 at p. 521. The Court a quo found that the third appellant (Esterhuizen) had received an amount of £100 from the second appellant. See North Australian Territory Co v Goldsborough, Mort & Co., 1893 (2) C Ch. D. 381 at pp. 385 - 6; Phipson on Evidence, 10th ed., para. 1552, p. 600; R v A., 1959 (3) SA 498 at pp. 502F - H, 503A. It is impossible to determine the effect of this type of questioning and the resultant answers upon the two assessors however experienced they may be. See R v Matsego and Others, 1956 (3) SA 411; S v Apolis, 1965 (4) SA 178; S v Gcaba, 1965 (4) SA 325 at pp. 332 - 3. The offence should be regarded as one midway between suicide and D premeditated murder. See R v Nbakwa, 1956 (2) SA 557 at p. 559; S v Gordon, 1962 (4) SA 727. In the course of the cross-examination of the second appellant the State endeavoured to establish that she was a very badly treated woman. If this is so, then of course, there was an E additional factor which reduced the moral blameworthiness of the second appellant. The approach of English law to the killing of a person by a third party in terms of a suicide pact may be of some guidance. The matter is dealt with in Russel on Crime, 12th ed., vol. 1, p. 559. The State failed to prove that the second appellant must have foreseen that F the first appellant would have killed the deceased despite a request +by the deceased that he should not be killed. The State failed to prove that the death of the deceased, as brought about by the first appellant, fell within the mandate created by the alleged conspiracy. See Rex v Hezi, 1948 (2) SA 119; R v Hercules, 1954 (3) SA 826 at p. 831A - C; R v Nsele, 1945 (2) SA 145 at p. 151A - B; R v Bergstedt, 1955 (4) SA 186; S v Malinga and Others, 1963 (1) SA 692.

G C S Lessing (with him H Husted), both at the request of the Court, for the third appellant: In so far as this appellant is concerned Isabella Kleynhans, who was a single witness, was not clear and satisfactory in every material respect. See Rex v Mokoena, 1932 OPD 79; Rex v Mokoena, 1956 (3) SA 81; R v Pladla and Others, 1961 (2) P.H. H130. With regard to certain aspects of this witness' character H insufficient weight was attached thereto by the trial Court and particularly to certain false denials and unsatisfactory explanations on these aspects. See also R v George, 1953 (1) SA at p. 389; R v Christo, 1917 T.P.D. 420. The trial Court misdirected itself in that it faled to appreciate, as fully as it should have done, the temptation and motive that existed for this witness to lie. S v Xoswa and Others, 1965 (1) SA 267 at p. 270. There were important inherent improbabilities in the version of this witness. See Cilliers v Rex, 1937 AD 278. The common

1968 (1) SA p669

object of the appellants and the deceased was to kill the deceased as long as he was a willing party. This is borne out by the fact that, on two occasions when consent was withdrawn, the shooting was not proceeded with and further the third appellant and first appellant specifically A agreed that 'if it failed a third time then we must leave it'. Despite this understanding, when on the fatal night the deceased instructed the first appellant that - 'no matter what happens we must go through with it', - and thereafter stated he could not 'go through with it' the first appellant nonetheless shot him. The evidence of the entire...