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1984
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[1984] ZASCA 84
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S v Ndlovu (59/84) [1984] ZASCA 84; ; 1984 (3) SA 23 (A) (1 September 1984)
Case number : 59/84 WHN
EDWIN NDLOVU
Appellant
and
THE STATE
Respondent
JOUBERT
, J.A.
2
The appellant was charged in the Witwatersrand Local Division
before GOLDSTONE J. and two assessors with having murdered the deceased
Phahlane
Cliff Modiba on 25 March 1983 at or near Dube Railway Station in the district of
Johannesburg (count 1). He was also charged
with attempted robbery of the
deceased on the same date and at the same place (count 2). He was found not
guilty in respect of count
2 because the trial Court held that the fact that the
pockets of the deceased were found turned inside out did not prove attempted
robbery beyond a reasonable doubt. With leave of the trial Judge the appellant
now appeals to this Court against his conviction and
the imposition of the death
sentence.
/The
3
The relevant circumstances relating to the perpetration of the
murder may be briefly summarized as follows. At approximately 7 p.m.
on Friday,
25 March 1983, the local train from Johannesburg to Soweto arrived at Dube
Station. Passengers who alighted in disorderly
commotion from a particular coach
screamed and shouted for the police. Constables Ramotsei and Dlomo who testified
on behalf of the
State boarded the train as it was already in motion on its way
to Ikwezi Station. They could not, however, proceed to the coach in
question
because an engine placed between the coaches barred their way. At that stage the
witness Phekinkosi Ntshangase was
/a
4
a passenger in a coach where he noticed at the other end
thereof two persons stabbing with knives at a person who was seated and who
wore
blue overalls. He was unable to identify the two assailants or the victim. It
could not be gathered from his evidence whether
that was the coach in question.
He alighted hurriedly from the coach at Ikwezi station. As the train started to
pull away from this
station constables Ramotsei and Dlomo managed to enter the
coach in question. They noticed that the deceased was lying inside the
coach
while the appellant and his companion stood about 3 paces from him. Both the
appellant and his companion had knives in their
hands
/which
5
which they were holding in a stabbing position. There were no
other people in the coach. Dlomo drew his service revolver and ordered
them to
drop their knives and to raise their hands. The appellant obeyed his commands.
The appellant's companion who stood behind
the appellant next to an open window
jumped out of the window onto the platform with his knife. Ramotsei handcuffed
the appellant
while Dlomo picked up his bloodstained knife. The appellant made
an exculpatory statement that he had been assisting his companion
during a
fight. The deceased was unable to speak. At Inhlazane Station they removed the
deceased, who was unable to walk, and
/the
6
the appellant from the coach. They then returned with them in
another train to Dube Station. As they passed Ikwezi Station on their
return
trip Dlomo and Ramotsei noticed a person lying on the platform. They
subsequently identified the dead person (Philip Sipiwe
Zwane)from photographs of
him as the companion of the appellant who had escaped through a window of the
coach. At Dube Station they
alighted from the train. The deceased died and was
removed to the Government Mortuary.
According to the evidence of Dr Steenekamp who on 28 March 1983 performed a
post mortem examination on the body of the deceased the
latter sustained 23 stab
wounds.
/The
7
The penetrating incised wounds on his neck, chest and abdomen
collectively caused the death of the deceased.
The evidence of the appellant bristled with contradictions. The tenor of his
version was that he was travelling alone in the train
on 25 March 1983. When the
train moved from Dube Station to Ikwezi Station a general fight developed in the
coach in which he was
travelling. He was beaten up by a mob despite the fact
that he had done nothing wrong. He did not carry a knife on his person. At
Ikwezi Station the police came to his assistance but the assault on him
continued until they arrived at Inhlazane Station. He alleged
that the
police
/arrested
8 arrested him at Ikwezi Station. He also claimed that he only
realised afterwards that he had been arrested when he was in hospital.
He never
saw the deceased and he never saw an injured person on the train. He never saw a
firearm. Philip Sipiwe Zwane was unknown
to him. The police also arrested
another person who was unknown to him.
The trial Court without hesitation rejected the evidence of the appellant as
unreliable, ridiculous and false beyond a reasonable
doubt. On appeal before
this Court appellant's counsel, rightly in my opinion, conceded the correctness
of this finding. Before
/this
9
this Court appellant's counsel, rightly in my opinion, did not
challenge the following matters :
1. the correctness of the approach by the trial Court
in its adjudication
of the case, viz. to decide
the case on the evidence of the State witnesses
in
conjunction with the false evidence of the appellant, and
2. the correctness and veracity of the evidence of the
State witnesses as
accepted by the trial Court.
In the absence of direct and positive testimony of eyewitnesses concerning
the attack on the deceased the trial Court had to decide
the question of the
appellant's participation in the perpetration of the murder by
/reasonable
10
reasonable inference from the accepted circumstantial evidence as a
whole. When the two constables came on the scene of the crime
the appellant
stood in the immediate proximity of the deceased with a bloodstained knife which
he held in a stabbing position. His
exculpa= tory statement was that he assisted
his friend. The two constables in their evidence made the concession that the
appellant
and his friend had no reason to remain on the scene of the crime after
they had attacked the deceased. Dlomo suggested that the appellant
and his
friend feared the angry mob of passengers who alighted from the coach at Ikwezi
Station. The trial Court regarded that as
a partial
/explanation
11
explanation since nothing prevented the appellant and his
friend from escaping from the off-side of the coach, i.e. the side of the
coach
away from the platform,while the train was stationary at Ikwazi Station, as
Dlomo conceded in reply to questions put to him
by the Court. The trial Court
considered the fact that the appellant and his friend waited in the coach after
the deceased had been
stabbed as a
prima facie
improbability in the
version of the State but it found that such improbability did not amount to a
reasonable doubt. The 23 wounds
which the deceased sustained are, in my opinion,
indicative
/of
12
of a prolonged, vicious attack upon the deceased. There is no
evidence when the attack on the deceased commenced. It is possible,
as the trial
Court found, that the appellant and his friend had not yet completed their
attack upon the deceased when the two constables
appeared on the scene of the
crime. The proved facts are, in my opinion, such as to exclude every reasonable
inference save the one
sought to be drawn from them by the trial Court, viz. the
participation of the appellant in the perpetration of the murder. The trial
Court found that the appellant and his friend "acted together with common
purpose in their attack upon the deceased and that they
intended to kill
him".
/In
13
In his argument before this Court the appellant's counsel, in
my opinion rightly, conceded that there was common purpose as found
by the trial
Court.
It is clear from the accepted evidence as a whole that the trial Court
did not misdirect itself on fact. Nor am I convinced on the
accepted evidence as
a whole that the trial Court was wrong in coming to the conclusion that the
State had proved the guilt of the
appellant on the charge of murder beyond
reasonable doubt.
The question of extenuation remains to be dealt with. The
onus is on the appellant to establish the existence of extenuating circumstances
on a balance
/of
14
of probabilities. In order to do this, there must be a factual
basis from which the existence of extenuating circumstances can be
deduced. In
my opinion there is no factual basis from which the trial Court could have
deduced the existence of extenuating circumstances
as contended for by the
appellant's counsel. His contention that the appellant did not attempt to leave
the scene of the crime and
avoid apprehension when he could have done so lacks a
factual basis inasmuch as there is no evidence when the attack on the deceased
commenced. It is possible, as the trial Court found, that the attack had not
completed when the two constables appeared on the
/scene
15
scene of the crime. At that stage the appellant held his
bloodstained knife in a stabbing position in the immediate presence of the
deceased. His other con= tention was that if the motive of the appellant and his
friend was robbery then it was unlikely that they
would inflict 23 stab wounds
upon the deceased. This is a conjectural contention which is wholly devoid of a
factual basis. The trial
Court correctly found that there was insufficient
evidence to substantiate a finding that the motive was robbery. Moreover, the
trial
Court's finding of the absence of extenuating circumstances is not
vitiated by misdirection or irregularity, nor is it one to which
no reasonable
court could have come in the
/circumstances ....
16
circumstances of the present matter.
Application for leave
to appeal was sought only against the imposition of the death sentence as
appears from the judgment of the trial
Judge. The main grounds on which the
application was brought were twofold, viz. (1) that the appellant did not
attempt to make a
get-away from the scene of the crime at the time when he could
have done so, and (2) that one would not expect the deceased to have
been
stabbed 23 times if the only motive for the attack was one of robbery. I may
interpose here to state that I have dealt with
these aspects
supra
in
considering the
/question
17
question of extenuation. The trial Judge in
deciding to
grant leave to appeal against the conviction
and the death sentence
approached the matter along the
following lines:
"I must confess that if this was not a matter in which a death sentence was
imposed, I would not feel constrained to grant leave to
appeal. However there
are these difficulties, to which I have referred in the judgment, and it is as
well for another court to reconsider
the matter."
The difficulties to which the trial Judge referred are the aforementioned two
main grounds on which the application for leave to appeal
was brought.
/The
18
The attention of the trial Judge is directed to the fact that
where an accused has been convicted of murder with or without extenuation
the
Legislature has not granted an appeal as of right but has empowered a trial
Judge to grant leave to appeal. That power should
always be exercised judicially
and leave to appeal on facts should not be granted as a matter of course. The
test to be applied in
considering an application for leave to appeal to this
Court on facts, as in the present matter, has repeatedly been stated to be
whether the trial Judge is satisfied that the applicant has a reasonable
prospect of success on
/appeal
19
appeal or not. Leave to appeal should therefore not be granted
unless the trial Judge is satisfied that the applicant will have a
reasonable
prospect of success on appeal. See
Rex v Ngubane & Other
s
1945 A.D.
185
at p. 186,
Rex v Baloi
1949(1) SA 523 (AD) at p. 523-524,
S.v
Ackerman & 'n Ander
1973(1) SA 745 (AD) at p. 766-767. It should also be
borne in mind that a trial Judge's refusal to grant leave to appeal against
a
conviction of murder and/or the death sentence is not final because an accused
has a right to apply to this Court for leave to
appeal in terms of
section 316
of the
Criminal Procedure Act No. 51 of 1977
.
/In
20
In the result the appeal against the conviction of murder and the death
sentence is dismissed.
C.P. JOUBERT, J.A.
HOEXTER, J.A. )
concur. SMALBERGER, A.J.A.
)