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1984
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[1984] ZASCA 55
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S v Mchunu and Another (389/83) [1984] ZASCA 55 (24 May 1984)
Saaknommer: 389/83
WHN
WILSON MCHUNU
First Appellant
CHRISTOPHER MCHUNU
Second
Appellant
and
THE STATE
Respondent
JOUBERT
, J.A.
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
WILSON MCHUNU
First Appellant
CHRISTOPHER MCHUNU
Second
Appellant
and
THE STATE
Respondent
Coram: JOUBERT, TRENGOVE,
JJA et GROSSKOPF AJA.
Heard
: 11 May 1984
Delivered
: 24 May 1984
JUDGMENT JOUBERT
, JA. :
/Appellant
2
Appellant no. 1 and appellant no.
2 were charged in the Witwatersrand Local Division before HUMAN J. and two
assessors with having
murdered the deceased Joseph Mahlangu on 14 March 1982 at
Pimville in the district of Johannesburg (count 5). They were also charged
with
other offences which are, however, not relevant to the present appeal. They were
convicted of murder without extenuating circumstances
and were sentenced to
death. They were granted special leave to appeal to this Court only in respect
of their death sentences. The
sole question which arises on this appeal is
whether the trial Court should have found
/that
3
that extenuating circumstances existed.
The relevant
circumstances relating to the perpetration of the murder may be briefly
summarized as follows. The appellants, who are
half-brothers, on Saturday
afternoon, 13 March 1982, visited a shebeen in Zone 6 of Pimville where they
drank some beer. I shall
revert to this aspect again later. At one stage
appellant no. 2 went outside the shebeen where he was assaulted by two Black men
(Boy and Jabulani) who robbed him of his reference book and money. He ran back
to appellant no. 1 in the shebeen. The appellants
left the shebeen together
early in the evening
/at
4
at approximately 8 p.m. While they were walking in a street
Jabulani from near by shouted at appellant no.2 to come to fetch his reference
book. When appellant no.2 endeavoured to recover his reference book he was again
assaulted by them. Appellant no. 1 struck one of
the assailants with a
broomstick and unsuccessfully chased the other one (Jabulani). From the accepted
evidence of the State witnesses
it appears that after midnight the appellants
were assisted by several other Black men as a group. They were all armed with
deadly
weapons such as pangas, kieries or iron bars. The
/appellants ....
5
The appellants accompanied by their associates embarked upon a
house to house search for Boy and Jabulani. Their
modus operandi
followed
virtually the same pattern in regard to three houses. The appellants would wake
the occupants of a house by the breaking
of windows. They would then loudly
demand access to the house for the purpose of finding Boy and/or Jabulani.
Despite assurances
from the occupants that Boy and/or Jabulani were not there
the appellants would persist in conducting their search of the house in
question. Their associates would either wait outside the house or some of them
would
/assist ...
6
assist the appellants in searching the house. Having failed to
find either Boy or Jabulani the appellants, accompanied by their associates,
would depart and proceed to the next house. In this manner the appellants with
the support of their associates searched two houses.
At about 1 a.m. the
appellants and their associates reached the third house where Betty Nakutsi and
her daughter Eugenia Nakutsi
were sleeping with the children in the big bedroom
while the deceased and Shawell were sleeping in the dining-room and the kitchen
respectively. The appellants again adopted the same procedure. After the
/initial
7
initial breaking of windows four Black men gained entry into
the house. They claimed that they were looking for Jabulani. The deceased
ran
from the kitchen into a small bedroom. They started to assault the deceased with
their pangas in the small bedroom. The deceased
told them that he was not the
wanted man. Eugenia also told them that the deceased was not Jabulani. They took
no heed of the warning
regarding the identity of the deceased and they proceeded
to chop him with their pangas. Having executed their vicious attack on
him they
departed from the house.
/According
8
According to the evidence of Dr Holden who con= ducted on 17
March 1982 a post-mortem examination on the body of the deceased the
latter
sustained about 13 incised wounds. These wounds were mainly directed at the head
of the deceased. His skull was severely fractured
with underlying brain damage
which was the cause of his death. A great deal of force must have been used in
inflicting the compound
fractures of the skull. The wounds could have been
caused by a chopper or a panga. They were indicative of a prolonged attack upon
the deceased who probably died within 15 minutes after the wounds had . been
inflicted.
/The
9
The trial Court found that the appellants had a common purpose
to find Boy and/or Jabulani. In the execution of their common purpose
they had
armed themselves with deadly weapons with which they launched a prolonged and
vicious attack on the deceased with the clear
intent of killing him (
dolus
directus
).
It was submitted on behalf of the appellants that the trial Court had
misdirected itself on the issue of extenuating circumstances
by its failure to
consider the cumulative effect of the following factors viz.
1.
The appellants consumed
liquor which impaired their mental faculties.
2.
The appellants were provoked by Boy and/or
Jabulani
/3. the
10
3.
The motive of
the appellants was to recover the reference book of appellant no.
2.
4.
There was no premeditation on the part
of the appellants to murder the deceased.
The onus
is on the appellants to establish the existence of extenuating circumstances on
a balance of probabilities. In order to do
this, there must be a factual basis
for the trial Court from which the existence of the extenuating circumstances
can be deduced.
In his defence on the merits appellant no. 1 gave the following
evidence under cross-examination as to his state of mind after he
encountered
Boy and Jabulani:
/"And
11
"And you were very annoyed because of the fact that these
robbers took your brother's reference book and money? - - - I was not annoyed,
there was nothing I could do, it was the first time I had run away. Were you not
annoyed at all? - - - I was not because being annoyed
wouldn't have helped
anything there is nothing I could have done."
Appellant no. 1 testified that from 5 p.m. to 8 p.m.
they drank beer at
the shebeen. Under cross-examination
he testified as follows:
"After eight you had no other drink? - - - No. You said in your evidence that
you were 'just all right'? - - - Yes, I had consumed
beer, I was just all
right.
You weren't affected by the liquor? - - - I was not affected so that I could
do wrong to
/people
12
people because I did nothing to the people who were sitting
with me."
When appellant no. 2 testified on extenuation he claimed
that he had
shared four beers with other men at the
shebeen. As to how the intake of the
beer affected him
he testified as follows:
"What was the state of your sobriety? - - -I cannot say I did not feel how I
was, because I went out to go and pass water."
And:
"
COURT
; Were you affected by liquor at all? - - - No. I did not feel
that yet, because I was still thinking about the money that I brought.
So the liquor did'nt affect you? - - - I did not notice that."
/Appellant
13
Appellant no. 2 also testified that after he had been
assaulted by Boy and Jabulani he did not drink again. He claimed that he was
upset because they had robbed and assaulted him but he was not annoyed with them
although he was eager to recover his reference book.
From the aforementioned
evidence of the appellants it is clear, contrary to what their counsel contended
for, that their mental faculties
were not impaired by the intake of liquor. Nor
can the submission prevail that they were provoked by Boy and Jabulani. It
should
also be borne in mind that a period of approximately 4 hours
/elapsed .
14
elapsed; after the departure of the appellants from the
shebeen and the commencement of their search for Boy and Jabulani. On a balance
of probabilities this time factor of approximately 4 hours should have been
conducive to further a more self-controlled and level-headed
approach by the
appellants in the circumstances. Their reaction, however, was to seek revenge by
arming themselves and by enlisting
the support of their armed associates in
their house to house search for Boy and Jabulani. Moreover, they deliberately
proceeded
with their murderous attack on the deceased despite
/the
16
The appeals of the appellants against the death sentences
passed on them in respect of the murder (count 5) are dismissed.
C.P. JOUBERT, J.A.
TRENGOVE, J.A. )
Concur. GROSSKOPF, A.J.A. )