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[2023] ZAKZPHC 152
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Ntshaba and Others v S (AR322/2022) [2023] ZAKZPHC 152 (18 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR322/2022
In
the matter between:
MADAKANE
NTSHABA
FIRST APPELLANT
SIBUSISO
MADONDO
SECOND APPELLANT
BONGINKOSI
MPUNGOSE
THIRD APPELLANT
THABANI
MPUNGOSE
FOURTH APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Mossop J and Marimuthu AJ
Heard
:
25 August 2023
Delivered
:
18 December 2023
ORDER
On
appeal from:
Greytown Regional Court (sitting as the court of
first instance):
1.
The appeal against the
convictions of the appellants is dismissed.
2.
The appeal against the sentences
imposed on each of the appellants is upheld. The sentence
of life
imprisonment is set aside and substituted with a sentence of 14
years’ imprisonment in respect of each appellant.
3.
The sentence is antedated, in
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, to 28
February 2022.
JUDGMENT
MARIMUTHU
AJ (MOSSOP J concurring)
Introduction
[1]
The appellants stood trial in the Greytown Regional Court on a charge
of murdering a Mr Mduduzi Nxongo (the deceased). The charge of murder
was read with section 258 of the Criminal Procedure Act 51
of 1977
(the Act) and the provisions of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 (the CLAA) as the State alleged
that the
appellants acted with common purpose in the furtherance of the
murder.
[2]
The
appellants were legally represented throughout the proceedings in the
court
a
quo
. On
10 February 2022, they all pleaded not guilty to the charge and
elected to not disclose the basis of their defence. They later
each
testified in their own defence but on 28 February 2022, they were all
convicted as charged, and the court
a
quo
proceeded to sentence each of them to life imprisonment. This appeal
is before us by virtue of their automatic right of appeal
which they
have exercised in respect of both their convictions and sentences.
[1]
The
cause of death of the deceased
[3]
A Dr Neethiananthan Naidoo (Dr Naidoo) performed the post-mortem
examination
of the deceased’s body. His findings were not
controversial and were handed in with the consent of the defence, as
was his
affidavit prepared in accordance with section 212(4) of the
Act. Dr Naidoo found the body of the deceased to have sustained the
following injuries:
(a)
Multiple linear abrasions, consequent upon allegedly being hit with a
stick all over the
right side of the head and body;
(b)
A sutured wound to the forehead;
(c)
A lacerated wound to the left lower jaw;
(d)
A lacerated upper jaw and right lower jaw;
(e)
A fractured skull; and
(f)
An intracranial haemorrhage.
[4]
Dr Naidoo determined that the cause of death of the deceased was the
skull
fracture and intracranial haemorrhage. This is of some
significance given the facts that were later found to have been
established
by the court
a quo
.
The
State’s case
[5]
The events
in question all occurred on Christmas Day in 2019. The first State
witness, Mr Mduduzi Lembethe (Mr Lembethe), testified
that he knew
the appellants and the deceased as they all resided in the same area
of KwaNgubo. At 14h00 on Christmas Day, he was
at his homestead in
the company of his family and friends, celebrating the day and
consuming alcohol. He estimated that there were
ten people present,
amongst whom were his younger brother, Mr Ncembeseni Lembethe
(Ncembeseni),
[2]
his friend, Mr
Philangaye Hadebe (Mr Hadebe) and the fourth appellant.
[6]
In the midst of the celebrations, the deceased arrived at Mr
Lembethe’s
homestead and stated that he had assaulted a Mr
Bongani Ntshaba (Mr Ntshaba), who was the first, third and fourth
appellants’
brother. Approximately 20 minutes after the arrival
of the deceased, the first and third appellants arrived, armed with a
stick
and a knobkerrie, although Mr Lembethe was uncertain as to
which weapon each appellant possessed. The first appellant requested
Mr Lembethe’s permission to take the deceased outside to talk
to him. Mr Lembethe testified that the first and third appellants
were angry in addition to being armed, and so he refused to permit
this to occur. Whilst they were conversing, the first appellant
unexpectedly struck the deceased on his head with the weapon in his
possession. The deceased retaliated and a commotion ensued.
Those
present intervened and they managed to diffuse the situation. Mr
Lembethe then requested Ncembeseni and the fourth appellant
to
accompany the deceased to the deceased’s home. They agreed to
do so.
[7]
On their way to the deceased’s home which was located a short
distance
away from Mr Lembethe’s home, the fourth appellant and
the deceased became embroiled in a fist fight. Ncembeseni tried to
intervene to stop the fight. Mr Lembethe and others ran out to assist
Ncembeseni and they succeeded in stopping the fight. The
fourth
appellant then left in the company of the first and third appellants.
Mr Lembethe requested another person to accompany
Ncembeseni and the
deceased to the deceased’s home and he and those remaining in
his company then returned to his homestead.
[8]
The festivities resumed at the Lembethe homestead, but a short while
later
screams were heard. Upon investigating, Mr Lembethe observed
that the deceased was now in a fight with the first, third
and
fourth appellants. He testified that he witnessed the deceased being
assaulted with sticks. He was unsure whether the fourth
appellant
possessed any weapon, but he was certain that both the first and
third appellants possessed sticks. He and the others
then made their
way to where the deceased was being assaulted. On their arrival, the
deceased was still and quiet, lying on the
ground.
[9]
The second appellant then arrived whilst the deceased was already
lying
prone on the ground, and he forcefully took the stick from the
third appellant and struck the deceased once across his ribs. Mr
Lembethe testified that he intervened and dispossessed the second
appellant of the stick and then struck him once behind his ear
with
the stick, causing the second appellant to ‘faint’ and
fall unconscious to the ground. He remained unconscious
for between
15 to 20 minutes. Mr Lembethe sent for his motor vehicle and
transported the deceased to the local Church of Scotland
Hospital. He
was later informed that the deceased had passed away.
[10]
Under cross-examination, Mr Lembethe denied the appellants’
version that the assault
of the deceased took place at the same spot
where Mr Ntshaba was earlier assaulted and also denied that it was
members of the public
who had dispossessed the deceased of his
weapons and assaulted him. Mr Lembethe was adamant that Mr Ntshaba
was not at the scene
where the deceased was assaulted. He, however,
agreed with the appellants’ version that all four appellants
were present
at the scene where the deceased was assaulted.
[11]
The second
State witness, Ms Ntombifikile Ngubane (Ms Ngubane), was married to
the deceased. She testified that on 25 December 2019,
as far as she
was concerned, the deceased had been assaulted twice.
[3]
The first assault occurred when she and her mother-in-law had
investigated a noise that they heard coming from outside their home
and observed the first, third
and
fourth appellants assaulting the deceased with sticks. The deceased
managed to escape this assault and he was taken home by
Ms Ngubane.
The second assault was the assault that led to the deceased’s
death.
[12]
She agreed that the deceased had been drinking and when she got him
home, she pleaded with
him to go to bed. He paid no attention to what
she said: after having gone into the bedroom, he climbed out the
bedroom window
and proceeded to his mother’s dwelling, and
armed himself with two sticks. Ms Ngubane discovered this and
followed the deceased
as he made his way back to the first, third and
fourth appellants as they continued to proceed in the direction of
their respective
homes.
[13]
The first, third and fourth appellants noticed the deceased return
and turned around and
advanced towards him. According to the evidence
of Ms Ngubane, when they reached the deceased, these appellants
immediately started
assaulting him with sticks. Their assault of the
deceased caused him to lose possession of his sticks and to fall to
the ground,
where they then repeatedly struck him.
[14]
Ms Ngubane testified that as she witnessed the assault on the
deceased, she began to cry,
and walked away as she could not bear to
watch the assault. Before walking away, she observed the mother of
the deceased who was
also present, crying and pleading with the
appellants to stop assaulting the deceased. They did not heed her
pleas.
[15]
After a short while, Ms Ngubane returned to the scene, and noticed
that Mr Lembethe, Mr
Hadebe and others were now present and had
intervened and were placing the deceased into a motor vehicle. She
saw the appellants,
inclusive of the second appellant, leaving the
scene. She accompanied the deceased to the Church of Scotland
Hospital and noticed
that he had sustained injuries and had an open
wound to his head, and that he was bleeding. The deceased passed away
later that
night.
[16]
Ms Ngubane stated that after the funeral of the deceased, all of the
appellants came to
their homestead on two separate occasions. They
called allegedly with the view of paying damages. On the first
occasion, nothing
was discussed in this regard as the mother of the
deceased advised them that she needed to first speak to the family.
On the second
occasion, the appellants were informed that they would
need to pay the costs of the funeral and pay for the costs associated
with
a cleansing ritual that had to take place. Nothing, however, was
paid by the appellants to the family of the deceased.
[17]
Under cross-examination, Ms Ngubane stated that she did not see Mr
Ntshaba at the scene
where the deceased was assaulted. She confirmed
that the first, third and fourth appellants were armed with sticks
and that they
had used these sticks to assault the deceased. She
denied the suggestion by the appellants that it was the community
that had assaulted
the deceased.
[18]
The third State witness, Mr Hadebe, testified that on Christmas Day
2019, he was at the
home of his cousin, Mr Lembethe. He knew the
appellants as they were related to him on his paternal side and were
his neighbours.
The deceased arrived at Mr Lembethe’s homestead
and informed those present that he had ‘stamped’ Mr
Ntshaba.
A short while later, the first and third appellants, armed
with sticks, came to the homestead and requested to speak to the
deceased.
Mr Lembethe asked them to leave as he noticed that they
were angry. The first appellant struck the deceased with a stick, and
the
first and third appellants thereafter left. Mr Lembethe then
instructed his younger brother, Ncembeseni, to accompany the deceased
to his home.
[19]
The fourth appellant, who was present at Mr Lembethe’s
homestead, followed the deceased
and Ncembeseni as they left the
homestead. Just outside Mr Lembethe’s yard, the fourth
appellant started assaulting the deceased
by hitting him with his
fists. Ncembeseni intervened and separated them.
[20]
Mr Hadebe later observed the deceased returning with two sticks. The
deceased was approaching
the first, third and fourth appellants who,
upon realizing this, turned around and advanced towards him. He
witnessed the first,
third and fourth appellants striking the
deceased with sticks. They all struck the deceased simultaneously and
repeatedly. The
deceased failed to strike the appellants as they
outnumbered him. The first appellant dispossessed the deceased of one
of his sticks,
and the deceased’s other stick fell to the
ground. The first, third and fourth appellants struck the deceased
countless times
and he, too, ultimately fell to the ground. The
assault on the deceased continued unabated as he lay on the ground.
The deceased’s
wife, his mother and several other people from
the surrounding homes also witnessed the assault and they reprimanded
the first,
third and fourth appellants, shouting at them to stop
their assault, but they did not.
[21]
Mr Hadebe observed the second appellant arriving at the scene and
witnessed him assaulting
the deceased by using a stone to strike the
deceased’s head. Mr Lembethe then dispossessed one of the
appellants of a stick
and he used it to strike the second appellant
behind his ear, causing him to fall to the ground. This caused the
appellants to
cease their assault.
[22]
The witness noticed that the deceased was lying on the ground face
up. He had injuries
to his head and was not moving. He helped with
transporting the deceased to the hospital. He noticed the appellants
leaving the
scene when the deceased was being transported to
hospital. He did not see Mr Ntshaba at the scene and he did not
witness any other
persons assault the deceased, apart from the
appellants. He learnt later that night that the deceased had passed
away.
[23]
Mr Hadebe testified that after the incident, a meeting was called at
which the appellants
and the men of the community gathered to discuss
the events that had resulted in the death of the deceased. The
appellants informed
the gathering that the whole situation was simply
‘bad luck’. The appellants explained that they assaulted
the deceased
as they were incorrectly informed that their brother, Mr
Ntshaba, had died and that the deceased was responsible for his
death.
The men at the meeting resolved that the appellants must be
placed before a court of law.
[24]
The final witness for the State was the investigating officer,
Warrant Officer Sikhumbuzo
Kwenzakuni Emmanuel Khanyile, who simply
explained the efforts that he had made to locate Ncembeseni and why
he was unable to secure
his attendance at court.
The
appellants’ case in the court
a quo
[25]
All of the appellants testified in their defence. The first, second
and third appellants
admitted that they individually received reports
that Mr Ntshaba had been assaulted and that the deceased was
responsible for the
assault. They further admitted that they called
at Mr Lembethe’s home seeking out the deceased, ostensibly for
the purpose
of compelling him to arrange transport to take the
injured Mr Ntshaba to hospital.
[26]
The first appellant testified that he had received a report that the
deceased had proceeded
to Mr Lembethe’s premises after he had
assaulted Mr Ntshaba. He claimed that he was not angry about these
events and that
he did not possess a weapon when he arrived at Mr
Lembethe’s homestead. Present there were Mr Lembethe, Mr
Hadebe, the deceased,
the fourth appellant and other individuals. He
tried to speak to the deceased but he became aggressive, so he
decided to leave
and return to the injured Mr Ntshaba. He met the
third appellant outside the home of Mr Lembethe and they then made
their way to
Mr Ntshaba. He initially stated under cross-examination
that he and the third appellant came across the second appellant as
they
made their way to Mr Ntshaba. He later changed his evidence and
stated that the second appellant had arrived when Mr Ntshaba was
being loaded into a vehicle to be transported to hospital. According
to him, the second appellant arrived at the scene after the
fourth
appellant.
[27]
The second appellant testified that he had received news of Mr
Ntshaba’s assault
and proceeded to the scene of the assault,
where he met the third appellant. He and the third appellant decided
to seek out the
deceased as they were advised that he had been the
person who had assaulted Mr Ntshaba and they wanted him to arrange
transport
to take Mr Ntshaba to hospital. They proceeded to Mr
Lembethe’s homestead, where they, inter alia, found the first
and fourth
appellants. The first appellant was about to leave, so
they also left with him. Also present at Mr Lembethe’s
homestead were
Mr Lembethe, Mr Hadebe, the deceased, and many others.
He joined the first and third appellant and they left the homestead
to return
to Mr Ntshaba.
[28]
The third appellant testified that he was at home when he received
the news that Mr Ntshaba
had been assaulted. He proceeded to the
scene of the assault and found the first appellant already present
there. A short while
later, the second appellant arrived. The three
of them decided to seek out the deceased. The first appellant moved
quicker than
them and he reached Mr Lembethe’s homestead before
them. When they arrived at the homestead, the first appellant was
about
to leave and they joined him and left. As they were returning
to Mr Ntshaba, the fourth appellant left Mr Lembethe’s
homestead
and caught up with them.
[29]
The fourth appellant confirmed that he was at Mr Lembethe’s
homestead when the other
appellants arrived. He stated that he
accompanied the deceased home as the deceased was drunk and was
causing a commotion. He denied
that he had assaulted the deceased by
hitting him with his fists outside Mr Lembethe’s yard, and
stated that it was the deceased
who had started assaulting him. He
left to join his co–accused after he was assaulted by the
deceased.
[30]
The appellants all placed themselves at the scene where the deceased
was injured. They,
however, denied having assaulted the deceased and
indicated that he had been assaulted by members of the community who
were allegedly
angry with him for assaulting Mr Ntshaba. They
testified that the deceased was armed with a pick handle, stick and a
knife when
he confronted them.
[31]
As a general proposition, the appellants denied the versions of Mr
Lembethe, Mr Hadebe
and Ms Ngubane insofar as the assault of the
deceased was concerned. They further denied that Mr Lembethe
assaulted the second
appellant at the scene causing him to ‘faint’.
They admitted that they called on the family of the deceased after
his
passing but denied that they did so with the view of making
compensation, maintaining that they called on the family purely to
pay their respects.
Evaluation
of the evidence
[32]
In
S
v Hadebe and others
,
[4]
Marais JA stated:
‘…
in
the absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong.’
[33]
The court
a quo
potentially had two issues to determine. The
first was whether the appellants had assaulted the deceased, thereby
causing his death.
If that was established, then the second issue to
be determined was whether the appellants had acted with common
purpose when the
said assault was perpetrated.
[34]
The court
a
quo
was
alive to the evidentiary burden that rested upon the State. In
determining whether the burden was discharged, it considered
various
Supreme Court of Appeal decisions which all provided a useful
guideline to the evaluation of evidence.
[5]
[35]
Nugent J in
S v Van
der Meyden
stated:
[6]
‘
The
onus
of
proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent..
.’
The
learned judge went on to state in the same judgment that:
‘
A
court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond
reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation in order to determine whether it is reasonably
possible that it might be true.’
[7]
[36]
Thus
the basic approach to adopt in the evaluation of evidence is that all
the evidence must be weighed in its totality. Navsa JA
in
S
v Trainor
stated:
[8]
‘
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the
onus
on
any particular issue or in respect of the case in its entirety. The
compartmentalised and fragmented approach of the magistrate
is
illogical and wrong.’
[37]
The
circumstances that gave rise to the appellants seeking out the
deceased must be considered. The appellants received news that
their
sibling had been assaulted by the deceased and they went in search of
him. The evidence of Mr Lembethe was that when the
first and third
appellants arrived at his homestead, they were both armed and angry.
In my view, this was highly probable. The
evidence of Mr Lembethe and
Mr Hadebe was that the fourth appellant was present at Mr Lembethe’s
homestead when news reached
them that the deceased had assaulted Mr
Ntshaba, and he was present when the first and third appellants
arrived seeking the deceased.
Mr Lembethe’s evidence was clear
that he would not allow them to speak to the deceased because he
could observe that they
were angry. The fourth appellant started a
fist fight with the deceased after he had heard about the assault of
Mr Ntshaba. This
too, in my view, was highly probable.
[38]
The
court
a
quo
considered the merits and demerits of all the evidence that was
placed before it. It correctly found, in my view, that such
contradictions
as may have occurred in the evidence of the State
witnesses were not material.
[39]
When
evaluating the version of the appellants, the court
a
quo
was alive to the fact that the version put to the State witnesses
differed significantly from their
viva
voce
evidence. The appellants were simply unable to explain why the
version put to the State witnesses was different to their evidence
in
chief and it became evident that the appellants were tailoring their
evidence to corroborate each other.
[40]
The
admitted medical reports detailed lacerated wounds and multiple
linear abrasions which are consistent with injuries inflicted
using
sticks. Mr Lembethe, Ms Ngubane and Mr Hadebe all testified that they
had witnessed the appellants assaulting the deceased
with sticks. Mr
Hadebe stated that he had witnessed the second appellant strike the
deceased with a stone on his head. I am also
mindful that the
admitted affidavits of the medical staff at the Church of Scotland
Hospital record that the deceased presented
to them with a history of
being assaulted with sticks and stones.
[41]
Ms
Ngubane appears to have been an impressive witness. She spoke
candidly about the deceased being intoxicated, arming himself and
pursing the appellants. Being the wife of the deceased, she could
have tailored her evidence to paint the deceased’s conduct
in a
more favourable light, yet she did not do so. She also candidly
testified that she did not witness the entire assault of the
deceased
as the actions of the
first,
third and fourth appellants
became
too unbearable for her to watch. This, too, has the ring of truth to
it, considering her relationship with the deceased.
Ms Ngubane does
not identify or implicate the second appellant as being one of the
perpetrators who had assaulted the deceased,
despite her testimony
that he presented himself together with the other appellants at their
homestead to discuss the issue of damages.
She was, in my view,
correctly found to be an honest and reliable witness.
[42]
The
appellants maintain that despite seeking out the deceased and being
unsuccessful in convincing him to arrange transportation
for the
injured Mr Ntshaba, they all walked away from the deceased after he
had armed himself, pursued them and struck the first
appellant. This
version is highly improbable when it is weighed against the
established facts and all the evidence presented by
the State. I am
of the view that the court
a
quo
was correct to reject same as false.
[43]
The
court
a
quo
fairly and accurately summarised all the evidence in its judgment.
The criticisms of the witnesses who testified for the State
were
evaluated against the entire body of evidence that was placed before
the court
a
quo
.
I can find no fault or misdirection in the evaluation of that
evidence and the findings arrived at by the court
a
quo
.
I am consequently satisfied that the court correctly concluded that
the appellants inflicted the injuries upon the deceased and
that
those injuries caused his death.
[44]
Having
reached this conclusion, the next issue for determination is whether
the court
a
quo
was correct in finding that the appellants acted with common purpose
to cause the death of the deceased.
[45]
The
Constitutional Court in
S
v
Thebus
[9]
recognized that common purpose (‘a joint criminal enterprise’)
has two forms:
‘
The
first arises where there is a prior agreement, express or implied, to
commit a common offence. In the second category, no such
prior
agreement exists or is proved. The liability arises from an
active association and participation in a common criminal
design with
the requisite blameworthy state of mind.’
Thebus
,
[10]
with approval, referred to the following two definitions of the
doctrine of common purpose:
‘
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from their
“common
purpose” to commit the crime.’
[11]
and
‘
The
essence of the doctrine is that if two or more people, having a
common purpose to commit a crime, act together in order to achieve
that purpose, the conduct of each of them in the execution of that
purpose is imputed to the others.’
[12]
[46]
In
S
v Tilayi
,
Van Zyl DJP stated that:
[13]
‘
In
the absence of an agreement, express or implied, a common purpose may
arise from an act of association if the requirements constituting
an
active association have been individually satisfied. The requirements
for this form of common purpose were determined in
S
v Mgedezi and others
[14]
and confirmed in
Thebus
.
They are the following:
(a)
P
resence at the scene where the ultimate
unlawful consequence was being committed;
(b)
a
wareness of the ultimate unlawful
consequence;
(c)
i
ntention to make common cause with
those who were actually perpetrating the ultimate unlawful
consequence;
(d)
m
anifestation of a sharing of a common
purpose with the perpetrators of the ultimate unlawful consequence by
performing some act
of association with the conduct of the others;
and
(e)
t
he requisite fault.’
[47]
In
S
v Munonjo en ‘n ander
,
[15]
Nestadt JA dealt with the issue of subject foreseeability. He found
that the liability of persons who are alleged to have a common
purpose depends on whether they should have foreseen the consequence
of their actions.
[48]
In
S
v Makhubela and another
,
[16]
the application of the doctrine of common purpose was once again
addressed and the decisions in
Mgedezi,
Thebus
and
Dewnath
v S
[17]
found support. In
Dewnath
,
Mocumie AJA stated:
[18]
‘
Current
jurisprudence, premised on a proper application of
S
v Mgedezi and others
,
makes it clear that (i) there must be a close proximity in fact
between the conduct considered to be active association and the
result; and (ii) such active association must be significant and not
a limited participation removed from the actual execution
of the
crime.’
[49]
In this matter, the evidence supports the finding that the appellants
resorted to the use
of violence and that they simultaneously, and
repeatedly, struck the deceased on his head, face, and body. They
must have foreseen
the possibility of death ensuing, and nonetheless
stood reckless to the eventuation thereof and continued to act in
accordance
with the common design. They actively associated in the
assault on the deceased, which resulted in his death, although there
was
no prior agreement. I accordingly cannot fault the finding of the
court
a quo
that the appellants had the necessary
mens rea
in the form of
dolus eventualis
in respect of the murder
conviction.
[50]
I am of the
view that the facts of this case also satisfy the requirements for
common purpose in its active association form. The
accepted evidence
conclusively shows that the appellants were present at the scene
where the assault of the deceased took place.
They intended to make
common cause with each other at that time and they manifested that
intention by each performing an act of
association with their conduct
by assaulting the deceased. The deceased was still alive when the
ultimate fatal blow of the rock
being dropped on his head
occurred.
[19]
I also point out
that the appellants only stopped the assault on the deceased when Mr
Lembethe and others intervened and after
the second appellant was
struck by Mr Lembethe.
[51]
I accordingly find that the court
a quo
was correct in its
finding that the appellants should have foreseen that their common
intention to assault the deceased, would
cause his death, in the form
of
dolus eventualis
. The appellants were correctly convicted
of murder read with section 51(1) of the CLAA.
Sentence
[52]
I now turn to the issue of sentence. Section 51(1) of the CLAA
prescribes the imposition
of a sentence of life imprisonment unless
the court finds that there are substantial and compelling
circumstances that warrant
a deviation from that minimum sentence.
The court
a quo
concluded that there were no substantial and
compelling circumstances in the matter and proceeded to impose the
mandatory minimum
sentence of life imprisonment.
[53]
In
S
v Malgas,
Marais
JA stated that:
[20]
‘
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the
question of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers
it. To do so would be to
usurp the sentencing discretion of the trial court. Where material
misdirection by the trial court
vitiates its exercise of that
discretion, an appellate Court is of course entitled to consider the
question of sentence afresh.
In doing so, it assesses sentence as if
it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”.
It must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is at large in
the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord
with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have mentioned.’
[54]
In
S
v SM and others
,
[21]
Le Grange J (in the majority decision), held the view that a
subjective test and a proportionality test must be conducted to
determine
whether substantial and compelling circumstances exist or
not. He quoted, with approval,
[22]
the following guidelines from
S
v
Thonga
:
[23]
‘
In
my view the punishment must firstly be reasonable, i.e. it should
reflect the degree of moral blameworthiness attaching to the
offender, as well as the degree of reprehensibleness or seriousness
of the offence. Punishment therefore should ideally be in keeping
with the particular offence and the specific offender. It is
necessary, secondly, for the punishment to clearly reflect the
balanced
process of careful and objective consideration of all
relevant facts, mitigating and aggravating. The sentence should,
thirdly,
reflect consistency, as far as is humanly possible, with
previous sentences imposed on similar offenders committing similar
offences,
lest society should believe that justice was not seen to be
done. Lastly, the penal discretion is to be exercised afresh in each
case, taking the facts of each case and the personality of each
offender into account. To all this I would add that the trial Court
does not impose sentence
in vacuo
. It, to the contrary,
certainly does so within a certain time frame and at a certain stage
in the development of the people(s)
of a district, or a province, or
a country, or even a continent. The criminal court is also an
instrument in the hands of society,
applying its laws, reflecting its
values and its moral indignation at unlawful conduct, as well as the
negative or harmful effect
thereof on third parties or society
itself. But in a civilised society punishment reflects also the
interests of the offender himself.
The trial court, in a criminal
matter then, functions not in a technical laboratory, but as a living
instrument, a vital component
of the fabric of society, serving the
interests of society and all of its law-abiding members. The criminal
court primarily seeks
to establish and maintain peaceful co-existence
among the members of society within a territory, offering protection
to life,
limb and property by dispensing criminal justice.
Furthermore, during the imposition of punishment, the trial court
jealously guards
the fine line between raw revenge or emotional
punishment and the judicial, reasonable and objectively balanced
(effective) exercise
of its penal discretion.’
[55]
Life imprisonment is the harshest sentence that can legally be
imposed upon an accused
person, and it should be reserved for those
individuals that are incapable of advancing factors that constitute
substantial and
compelling reasons to warrant a deviation from the
intent of the Legislature.
[56]
All murders are serious as society rightly values human life. When a
life is unlawfully
and intentionally taken, a severe custodial
sentence is generally warranted. The Legislature itself, however,
contemplated that
there may be instances when the ultimate sentence
of life imprisonment should not be imposed, and to this extent it
included Part
II to Schedule 2 of the CLAA. In this matter, the court
a quo
found that the appellants did not possess direct
intention to cause the death of the deceased. They did not form part
of a gang
or syndicate or mob, they did not conspire to commit
murder, nor was the death of the deceased caused while the appellants
were
committing another offence. The conduct of the appellants and
the deceased on the day in question are unique to this case only,
and
it is of particular relevance in determining the appropriate sentence
to be imposed in the circumstances.
[57]
The court
a quo
found that the appellants acted in anger and
were intent on revenge in assaulting the deceased. This finding,
while generally correct,
must be viewed in its proper context. The
appellants were returning to their home when the deceased armed
himself and followed
them. The deceased transformed himself into the
aggressor and unfortunately contributed to his ultimate death. On the
presented
evidence, the appellants were no longer in pursuit of the
deceased - the converse was true. In my view, the court
a quo
committed a misdirection by failing to consider the conduct of the
deceased that commenced with the assault on Mr Ntshaba (of which
the
deceased openly bragged at Mr Lembethe’s homestead) and
escalated to the deceased climbing out of his bedroom window,
arming
himself and again approaching the first, third and fourth appellants
in an aggressive manner, foolishly fuelled by the effects
of alcohol.
There is every possibility that nothing further would have happened
had the deceased remained at his homestead, as
instructed by his
wife. But he did not listen and his conduct in again pursuing the
first, third and fourth appellants undoubtedly
provoked a response
from them.
[58]
Having found that the court
a quo
misdirected itself, this
court is at large to consider the sentence afresh. At the time of
sentencing, the first appellant was
40 years old and the sole
breadwinner of the family and had been gainfully employed as a taxi
driver for a period of 17 years,
and earned an income of R2 000 per
month. He lived with his common law wife and two minor children, had
completed grade 11, was
a first offender and suffered from a
life-threatening medical condition which requires him to receive
chronic medication.
[59]
The second appellant was 44 years old and the sole breadwinner of the
family, was gainfully
employed in the construction industry, and
earned an income of R4 000 per month. He lived with his common
law wife and three
minor children, had completed grade 6, had two
unrelated previous convictions and also suffers from a
life-threatening medical
condition which requires him to receive
chronic medication.
[60]
The third appellant was 27 years old, was self-employed as a car
washer. He earned an income
of R1 500 per month, had no previous
convictions or pending cases and had completed grade 11.
[61]
The fourth appellant was 24 years old, was gainfully employed as a
taxi conductor, and
earned an income of R1 500 per month. He
lived with his common law wife and minor child, had completed grade
10, and had no
previous convictions or pending cases.
[62]
Ms Ngubane testified that the deceased was assaulted twice on
Christmas Day. I previously
indicated that in this she was incorrect:
he was, in fact, assaulted four times. The first assault occurred at
Mr Lembethe’s
home when he was struck with a stick by the first
appellant; the second occurred when the fourth appellant started a
fist fight
with him outside Mr Lembethe’s homestead; the third
occurred when the first, third and fourth appellants assaulted him
with
sticks; and the fourth, and final time, occurred when he armed
himself and pursued the appellants as they were making their way
home
with the view to engage them in a further confrontation.
[63]
I agree with the finding of the court
a quo
that the
appellants were angry on the day in question, and that their assault
of the deceased was both vicious and brutal. I also
agree that a
custodial sentence is the only appropriate sentence in this matter.
[64]
Mbatha J in
S v Xaba
and others
stated
that:
[24]
‘
In
this matter, the accused attended the meeting called by the induna,
armed with dangerous weapons such as cane knives, knobkerries
and
other weapons, which were used to kill the deceased. They failed
to heed the induna's call to put the dangerous weapons
away. The
deceased was killed in the most brutal, barbaric and horrific way by
members of his community. He was stoned, hacked
with cane knives and
an attempt was even made to burn him whilst he was alive. The trauma
suffered by the deceased's family
was palpable when the
deceased's mother testified in this court. The court vividly recalls
the haunting wails of the deceased's
mother as she testified about
the effect the killing of the deceased has had on her entire family.
The deceased was killed by people
who lived with him, for no apparent
reason. This was vigilantism in its worst form.
’
Despite
the aggravating features of that matter, the court found substantial
and compelling circumstances to exist and none of the
accused were
sentenced to life imprisonment. The accused that were found to be
directly responsible for the injuries that caused
the death of the
deceased were sentenced to an effective term of 12 years’
imprisonment.
[65]
In
Francis
and others v S
,
[25]
the three appellants were convicted
of
murder read with the provisions of section 51(1) of the CLAA. The
court
a
quo
had found that the appellants acted with common purpose when
committing the murder and that
dolus
eventualis
found applicability. The court found that the:
‘
evidence
established that those who perpetrated the assault, applied blunt
force to the deceased’s head, that heavy blunt
force was
applied to the deceased’s chest resulting in the deceased
sustaining fractures to his ribs and to the abdomen,
resulting in the
tearing and laceration of his liver, mesentery and kidneys. Further,
that the sub-arachnoid haemorrhaging in the
brain and the multiple
haemorrhages found on the deceased’s head were all indicative
of the infliction of heavy pressure…’
[26]
The
court found that the deceased ‘was brutally assaulted and
subsequently died as a result of multiple blunt force injuries
to his
head, chest and abdomen’.
[27]
The court
a
quo
found that a sentence of ten years’ imprisonment, five years of
which was suspended on certain conditions, was an appropriate
term to
be served by the appellants. The Supreme Court of Appeal did not
interfere with the sentence but remarked that the sentence
‘is
far too lenient’.
[28]
[66]
Having considered all the personal mitigating factors of the
appellants, the circumstances
that gave rise to the untimely death of
the deceased, the appellants being driven by anger and the
provocation on the part of the
deceased, I find that there are
substantial and compelling circumstances to deviate from the
prescribed sentence of life imprisonment.
[67]
In
determining an appropriate sentence, I have considered the triad of
factors alluded to in
S
v
Zinn
[29]
namely, the crime, the offender, and the interests of society. I have
further applied the subjective and proportionality tests
to the
matter. The facts of this matter are distinguishable from those cases
wherein accused persons acted in common purpose with
a mob or a
vigilante group, or where they set out with a direct or premeditated
intent to attack or in the instance where the deceased
was a helpless
and defenceless victim. I am of the view that a sentence of 14 years’
imprisonment will suffice in the circumstances.
Order
[68]
I would accordingly propose the following order:
1.
The appeal against the
convictions of the appellants is dismissed.
2.
The appeal against the
sentences imposed on each of the appellants is upheld. The
sentence
of life imprisonment is set aside and substituted with a sentence of
14 years’ imprisonment in respect of each appellant.
3.
The sentence is antedated,
in terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, to
28 February 2022.
MARIMUTHU
AJ
I
agree and it is so ordered:
MOSSOP
J
APPEARANCES
Counsel
for the appellants:
Ms A
Hulley
Instructed
by:
Legal
Aid South Africa
Pietermaritzburg
Counsel
for the respondent:
Mr X
Sindane
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Date
of argument:
25
August 2023
Date
of judgment:
18
December 2023
[1]
This right of appeal arises from the provisions of
s 309(1)
of the Act.
[2]
This
witness is referred to by his first name, as if he were to be
referred to by his surname, there would be two Mr Lembethes,
which
would simply cause confusion. No disrespect is intended by such
reference.
[3]
In
this she was incorrect. See paragraph 62 of this judgment. Given
that she had not been present at all the assaults, this error
is
understandable.
[4]
S v
Hadebe and others
1997
(2) SACR 641
(SCA) at 645e-f
.
[5]
These judgments were:
S
v Jackson
1998
(1) SACR 470
(SCA);
[1998] 2 All SA 267
(A)
;
S
v Ntsele
1998
(2) SACR 178
(SCA);
[1998] 3 All SA 517
(A);
S
v Shackell
2001
(2) SACR 185
(SCA);
[2001] 4 All SA 279
(A)
;
and
S
v Chabalala
2003
(1) SACR 134 (SCA).
[6]
S
v Van der Meyden
1999
(1) SACR 447
(W) at 448f-g.
[7]
Ibid
at
448h-i.
[8]
S
v Trainor
2003
(1) SACR 35
(SCA);
[2003] 1 All SA 435
(SCA) para 9.
[9]
S v
Thebus
and another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) para 19.
[10]
Ibid
para 18.
[11]
Burchell
and Milton
Principles
of Criminal Law
2
ed (1997) at 393.
[12]
C R
Snyman
Criminal
Law
4
ed (2002) at 261.
[13]
S
v Tilayi
2021
(2) SACR 350
(ECM) para 23.
[14]
S v
Mgedezi and others
1989 (1) SA 687
(A) at 705I-706C.
[15]
S v
Munonjo en ‘n ander
1990
(1) SACR 360 (A).
[16]
S v
Makhubela and another
[2017]
ZACC 36
;
2017 (2) SACR 665
(CC) paras 35-38.
[17]
Dewnath
v S
[2014]
ZASCA 57.
[18]
Ibid para 15.
[19]
All
the witnesses stated that the accused only died later that evening.
[20]
S v
Malgas
2001
(1) SACR 469
(SCA) para 12.
[21]
S v SM
and others
2010
(1) SACR 504
(WCC) paras 10-14.
[22]
Ibid
para 12.
[23]
S v
Thonga
1993
(1) SACR 365
(V) at 370d-i.
[24]
S v
Xaba and others
2018
(2) SACR 387
(KZP) para 25.
[25]
Francis
and others v S
[2019] ZASCA 177.
[26]
Ibid
para 7.
[27]
Ibid
para 2.
[28]
Ibid
para 13.
[29]
S v
Zinn
1969
(2) SA 537
(A).