S v Tloome
Jurisdiction | South Africa |
Citation | 1992 (3) SA 568 (A) |
S v Tloome
1992 (3) SA 568 (A) [*]
1992 (3) SA p568
Citation |
1992 (3) SA 568 (A) |
Court |
Appellate Division |
Judge |
Corbett CJ, Kumleben JA and Nicholas AJA |
Heard |
February 18, 1992 |
Judgment |
April 2, 1992 |
Flynote : Sleutelwoorde
Criminal law — Murder — Sentence — Death sentence — When the proper sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of Criminal Law Amendment Act 107 of 1990 — Application in terms of s C 19(12)(b)(iii) of Act 107 of 1990 for order setting aside death sentence and remitting matter to trial Court for hearing of further evidence on sentence — Procedure to be followed by applicant.
Criminal law — Murder — Sentence — Death sentence — When the proper sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of Criminal Law Amendment Act 107 of 1990 — Accused having first stabbed and D then, while she was still alive, throttled 67-year-old woman in her home and having throttled manually or strangled with ligature, or killed by combination of both, 66-year-old man in his home — Number of aggravating factors present — In each case murder committed in home of victim with robbery as obvious motive — Victims elderly people and therefore less E able to offer resistance — In each case appellant known in home concerned and inference that deceased killed to prevent future identification — In each case appellant gaining access to victim's home on untrue pretext — In each case appellant attacking victim ferociously and unexpectedly and without slightest suggestion of provocation — Each victim dying F relatively slow and cruel death — In each case dolus directus only reasonable inference — Appellant's criminal record, revealing him as hardened recidivist, further aggravating factor — In cases of murder of elderly victims in their own homes with robbery as motive, factors of retribution and deterrence tending to come to fore in determining whether G or not death sentence should be imposed — In accused's case prospects of rehabilitation and reform very poor — Aggravating factors many and serious and no mitigating factor of any substance suggested — Case one of extreme seriousness and death penalty only proper sentence.
Criminal law — Robbery — Sentence — Robbery with aggravating H circumstances — Death sentence — When the proper sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of Criminal Law Amendment Act 107 of 1990 — Accused having first stabbed and then, while she was still alive, throttled 67-year-old woman during course of robbery and having I throttled manually or strangled with a ligature, or killed by combination of both, 66-year-old man during course of another robbery — No suggestion of provocation by victim in either case — Accused's criminal record revealing him as hardened recidivist — Necessary to think away
1992 (3) SA p569
A fatal consequences of accused's attacks upon two deceased — Despite seriousness of robberies and their attendant circumstances, Appeal Court would not have imposed death sentence — Violence resorted to by accused clearly constituting aggravating factor, but it and accused's criminal record not calling imperatively for ultimate penalty — Sentence of 10 B years' imprisonment fitting punishment for each robbery.
Headnote : Kopnota
As a general rule, an applicant who applies to the Appellate Division for an order in terms of s 19(12)(b)(iii) of the Criminal Law Amendment Act 107 of 1990 setting aside the death sentence and remitting the matter to the trial Court for the hearing of further evidence, should make application to the Appeal Court on notice of motion, supported by C affidavits indicating the evidence which the applicant proposes to lead before the trial Court. It is an essential requirement that any witness whom the applicant intends to call, if and when further evidence is heard, should depose to an affidavit (to be annexed to the application) setting out the gist of his evidence or, where the witness has compiled a report which would constitute the basis of his evidence, that such report be verified by affidavit. The Appeal Court will not entertain or have regard D to unsworn statements or reports. The application must be served upon the State in accordance with usual procedures; and the State may, if it so wishes, file answering affidavits. Normally the Appeal Court will not exercise its powers under s 19(12)(b)(iii) mero motu. In the event of it appearing to that Court, from the record of appeal or other information properly before it or from information tendered by counsel from the Bar, that there is a reasonable possibility that additional evidence, relevant in the sense defined in S v Nofomela 1992 (1) SA 740 (A) (1992 (1) SACR E 277 (A)), exists and can be led, then the Appeal Court may, in its discretion, invite appellant's counsel to submit an application along the lines described above and postpone the hearing of the appeal to enable this to be done. In an exceptional case the Appeal Court may invite such an application for remittal in terms of s 19(12)(b)(iii) even where the basis for the possible existence of such evidence (as defined above) is lacking. In such a case the Appeal Court will spell out to appellant's counsel the lines of investigation to be undertaken in order to sustain a F proper application for remittal. Such a case may arise where there is a dearth of personal information about the applicant. In such a case the principles laid down in Nofomela's case will have to be borne in mind.
In the instant case the appellant had, in respect of three separate occurrences, pleaded guilty to and been convicted in a Local Division of two counts of murder (no extenuating circumstances being found), two counts of robbery with aggravating circumstances (each count of robbery G being related to a count of murder), and one count of theft, and had been sentenced to death on each of the counts of murder and of robbery and to six years' imprisonment in respect of the count of theft. At his trial the appellant had not given evidence nor called any witnesses on the merits but had testified briefly in regard to extenuating circumstances, merely stating in chief that he was 29 years old, that his only dependant was his sister, that he had given the police every co-operation, that he had admitted everything on the four counts of murder and of robbery and that H he was sorry for what he had done. Application for leave to appeal against the death sentences was refused by the trial Judge and a subsequent petition to the Chief Justice also failed. Thereafter the appellant's case was considered by the panel constituted in terms of s 19 of Act 107 of 1990, which decided that had s 277 of the Criminal Procedure Act 51 of 1977, as substituted by s 4 of Act 107 of 1990, been in operation at the time sentence was passed the sentences of death would probably have been imposed by the trial Court. Appellant's case was accordingly referred, in I terms of s 19(12) of Act 107 of 1990, to the Appellate Division on the question of sentence.
At the appeal two reports were attached to appellant's counsel's heads of argument. The reports had not been placed before the Court a quo but had been put before the panel. They were therefore not properly before the Court of Appeal and could not be taken into account in adjudicating the appeal. The first report was from a psychiatrist who had studied the J record of the trial and evaluated the appellant. It referred to the
1992 (3) SA p570
A appellant's history of anti-social conduct from an early age but stated that there was insufficient information to determine whether psychopathy could be diagnosed and for this purpose accordingly requested a full background report by a social worker. No other mental disorder whereby the appellant could possibly be held to be not responsible or his responsibility diminished, was suspected. The other report was a social background report by a probation officer which gave the usual information about the appellant's family background, school attendances, work record, B criminal record, social and cultural situation and so on, and included a statement to the effect that at an early age appellant had shown signs of being mentally disturbed and had been taken to witch-doctors.
During argument on appeal appellant's counsel, reacting to certain observations from the Bench, asked that the case be remitted to the trial Court (the sentence having been set aside) for the hearing of further C evidence incorporating the information contained in the reports and generally dealing with the appellant's personality. No application, with supporting documents, asking the Court to exercise its power of remittal under s 19(12)(b)(iii) of Act 107 of 1990 was made.
The Court held that upon a review of all the facts, this was not an appropriate case for the Court to invite an application for an order for remittal in terms of s 19(12)(b)(iii). The appellant had been charged in D the Court a quo not only with murder but also with robbery with aggravating circumstances and housebreaking with intent to steal and theft (a plea of guilty of theft having been accepted). Even if the kind of mitigating evidence vaguely suggested by the psychiatrist's report and the probation officer's report might not have been relevant as to extenuating circumstances on the murder charges (no finding being made in this regard), it would certainly have been relevant on the other charges. There was, however, no explanation as to why it was not presented to the trial Court. The Court could not, therefore, conclude that there was a E reasonable possibility that such evidence would have been led before the Court a quo if the law as to the death sentence had then been what it was now. Nor was the Court persuaded that there was a reasonable chance that such evidence, flimsy as it...
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...'n verdubbeling van straf te vermy. Dié riglyne is sedertdien gevolg. Vergelyk byvoorbeeld S v Witbooi 1982 (1) SA 30 (A); S v Tloome 1992 (3) SA 568 (A) op 578A – G (1992 (2) SASV 30 op 39i – 40e). Dit is I voor-die-hand-liggend dat, waar die doodstraf op een aanklag gelas word, dit ook ma......
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...'n verdubbeling van straf te vermy. Dié riglyne is sedertdien gevolg. Vergelyk byvoorbeeld S v Witbooi 1982 (1) SA 30 (A); S v Tloome 1992 (3) SA 568 (A) op 578A – G (1992 (2) SASV 30 op 39i – 40e). Dit is I voor-die-hand-liggend dat, waar die doodstraf op een aanklag gelas word, dit ook ma......
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S v Maraisana and Another
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