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1985
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[1985] ZASCA 8
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S v Shezi (33/85) [1985] ZASCA 8 (28 March 1985)
33/85
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the
matter between:
ME
SHACK MZIWENKOSI SHEZI
Appellant
AND
THE STATE
Respondent
Coram
: CILLIé, HEFER, JJ A et GALGUT A J A Heard: 8 March 1985
Delivered
: 28 March 1985
JUDGMENT CILLIé
, J A :
The appellant was found guilty in
the
Zululand Circuit Local Division of
the Supreme Court
on a count of murdering Mhawukaleni Nzuzu on Saturday,
24 .... / 2
2
24 December 1983. The Court found that there were no extenuating
circumstances present in the commission of the crime and sentenced
the appellant
to death. He was given leave by the trial Judge to appeal against the sentence
imposed on him.
It is unnecessary to state or discuss the well-known rules
which apply when this Court is asked to interfere with a trial Court's
finding
that no extenuating circumstances were present in a particular case. In the
matter under consideration the question arises
whether the Court in scrutinizing
the evidence in search of extenuating circumstances should have regard to
certain facts which might
have been
extenuating but the existence and
influence of which
had .... / 3
3
had been denied by the appellant. The particular facts relate to a fatal
attack by the deceased some months before on a man connected
with the
appellant's family.
On arraignment in the Court a quo the appellant pleaded
not guilty; he admitted that he was responsible for the deceased's death but
said that he had acted in self-defence when the deceased had attacked him. This
statement is in accordance with what he said in the
magistrate's court when, in
terms of
sections 115
and
119
of the
Criminal Procedure Act, 51 of 1977
, he
pleaded to the charge and explained his defence. The explanation, which was
given three days after the killing of the deceased,
contains the following
sentence: "Deceased had killed another person
earlier .... / 4
4
earlier in 1983". There is no allegation that the killing by the deceased was
related to the later killing of the deceased. It may
be mentioned that the
matter is also referred to in the "Summary of substantial facts" annexed to the
charge sheet. The first paragraph
of the summary reads as follows:
"A few months prior to 24 December 1983 the deceased killed one Mjuju Majola who
was in love with the accused's sister."
The evidence
given at the trial about Mjuju and his death is meagre; it amounts to the
following. Mjuju was the lover of the appellant's
sister and he is referred to
in the record as the appellant's brother-in-law. During September 1983 the
deceased
stabbed him to death. It is possible that a radio-set .... / 5
5
set was taken from him when he was killed. The deceased was tried in the
Regional Court in Eshowe on a charge of culpable homicide;
he was acquitted. The
appellant did not attend the trial and it is not known whether he knew on 24
December 1983 of the trial or
of its result. It is also not known whether he had
seen the deceased at any time after the trial until the day of his
death.
During the Saturday on which the deceased died a number of people
congregated at the kraal of Basheshile Ntuli in the Mbongolweni
Reserve in the
district of Eshowe. A relative had died and Basheshile expected members of her
family and some of her friends
to come to her kraal. She therefor brewed what
was
called .... / 6
6
called "Zulu" beer for her visitors. The deceased who was her neighbour,
arrived during the morning and drank with the other guests.
At about midday the
appellant who lived quite a distance from this kraal, joined the guests. He was
the last arrival. He testified
that he bought "shimiyane" for forty cents at the
party and drank it. There was evidence, however, that only "Zulu" beer was
available
for the visitors and that it was supplied free of charge. Apparently
"shimiyane" is a potent drink and according to the appellant
the witnesses would
rather lie about his behaviour than admit that "shimiyane" was sold to the
guests.
One of the guests who testified at the
trial .... / 7
7
trial, Mhlekwa Sithole, said that the appellant had
two drinks and left the party. When he returned after
a short absence he "all of a sudden leapt and stabbed
the deceased" who was sitting at that moment. The
deceased jumped up and
fled but the accused followed,
intercepted him and stabbed him again. The witness
could see that the
appellant was speaking but could
not hear what he said. The appellant
threatened the
visitors and they ran away. One of them reported
the
stabbing to the hostess who was busy elsewhere in the
kraal. She went
to investigate and witnessed the
second part of the appellant's attack on the
deceased.
Basheshile saw the appellant
dragging
the deceased along the ground.
When she asked him
what .... / 8
8
what he was doing, he did not reply but stabbed the de- .
ceased again,
saying: "Where is Mjuju?" The witness
said that a "second stab was accompanied by the words
'Give me my brother's radio'". She spoke to the ap-
pellant again; he told
her to go home and added that
he was "killing a dog". She left the scene and
as
she entered the hut in which her kitchen was, she heard
the appellant
say: "Don't you want to listen to what
I have asked you to do? I said give me
my brother's
radio, and you must produce Mjuju."
The appellant told the trial Court
a
different story. He said that he was
sitting down and
having a drink when the deceased approached him and
drank
his, the appellant's, drink. When the appellant
asked .... / 9
9
asked him to buy some liquor for the two of them, the deceased refused and
became aggressive. He slapped the appellant in the face.
He took out a knife and
threatened the appellant. The latter kicked him on the chest and the knife fell
to the ground. The appellant's
evidence is that he then picked up the knife and
tried to escape but that the deceased prevented it. They struggled. He was
struck
at least three times and in his own defence he inflicted three knife
wounds on the deceased. He denied that he dragged the deceased
or injured him in
the manner described by the state witnesses.
The trial Court correctly rejected the
evidence of the appellant as false and found him
guilty .... / 10
10
guilty of murder on the evidence of the two state witnesses. In the next
stage of the trial when the Court investigated the probable
presence of
extenuating circumstances, the appellant declined to testify. The trial Court's
function and duty in such a case is set
out by HOLMES J A in S. v.
Ndlovu
,
1970 (1) S A 430
(A) as follows:
"The onus of establishing the existence of extenuating circumstances rests
upon the accused. This means that there must be a factual
foundation for a trial
Court's finding of such circumstances, on a preponderance of probability. This
does not necessarily mean that
the accused must give evidence: in a proper case
the trial Court may be able to find the required degree of probability from the
evidence as a whole or from so much thereof as it has accepted. But there must
always be a foundation of probability before the Court
can exercise what is in
effect a
moral .... / 11
11
moral judgment in the matter of extenuating
circumstances."
In accordance with that directive
this Court will examine all the proved and relevant facts in order to establish
whether the trial
Court's finding that there were no extenuating circumstances
is a misdirection. The following factors will be appraised, separately
and
collectively, in the investigation of such circumstances.
The first and most
important factor to consider is whether the killing of Mjuju by the deceased was
relevant to the killing of the
deceased by the appellant. The appellant's own
evidence is that he was not affected by the previous killing, that he was on
friendly
terms with the deceased and that, when he stabbed
the ..../12
12
the deceased, he did not use the words attributed to him. However, sight must
not be lost of the fact that he was, by the nature of
his defence, virtually
precluded from admitting the relevance of the previous killing. It is not
uncommon that an accused will under
oath deny a true fact or set of facts
because of a fear that an admission may lead to an assumption that he had a
motive for committing
the crime with which he is charged. In this case the
appellant may well have thought that an admission of relevance could affect
his
defence that he was attacked by the deceased. It is also not uncommon to find
that a convicted accused will, during the consideration
of extenuating
circumstances, refuse to admit that his evidence during the
first .... / 13
13
first part of the trial was untrue even where such evidence had been rejected
by the Court. On a consideration of all the relevant
issues I am of the opinion
that it has been proved on a balance of probability at least, that he used the
words as testified to by
Basheshile when he stabbed the deceased. It must
therefore be accepted, firstly, that when he stabbed the deceased he was well
aware
of the fact that his victim had killed his brother-in-law and, secondly,
that he was probably affected by that knowledge. The evidence
does, however, not
show that he had planned the murder.
It may well be asked whether revenge can
or should ever be regarded as an extenuating
factor .... / 14
14
factor. The answer depends, in my opinion, on the facts of each particular
case when all the relevant evidence, the inferences and
the probabilities are
considered as a whole. (See
S. v. Namane
1977 (4) S A 240
A.) In the
matter under consideration all the facts relating to and surrounding the
previous killing must form part of the "foundation"
on which a court's finding
that there are extenuating circumstances must rest.
Evidence about the amount
of liquor taken by the appellant before the stabbing was given by him and by the
witness Sithole. The latter
said that the appellant drank two "pots" of "Zulu"
beer.
There was no evidence about the size of the "pots".
The .... / 15
15
The appellant testified that he had two portions of a different kind of
liquor; he was not asked whether he had anything to drink
before he arrived at
the party. On the available evidence, it seems to me, the Court cannot come to a
definite conclusion about the
amount of liquor taken by the appellant before the
stabbing. The following facts are important on the question of the effect which
the liquor he did drink, had on him.
The witness Basheshile said in her
evidence in chief that the appellant appeared to her to be sober. She added:
"But he was so angry
that he did not want anything to come anywhere near
him."
This remark she confirmed under cross-examination but
added .... / 16
16
added, in answer to further questions, that he was not in a frenzy and gave
her the impression, when he spoke to her after the stabbing,
that he was very
angry but was thinking rationally. His actions before and during the stabbing
certainly do not appear to have been
rational at all. When he stabbed the
deceased he was excessively violent; he continued the stabbing even after his
victim was lying
on the ground and obviously dying. The
pos
t
mortem
report shows that he inflicted six serious stabwounds and numerous
incised wounds on the body of the deceased and not only the three
stabwounds
about which he testified. He kept the other visitors away from the scene and
threatened
to attack them. This evidence is an indication of
his .... / 17
17
his mental state and must also be taken into consideration in the present
investigation.
These are the factors which form the necessary "foundation of
probability" or "factual foundation" for a finding that extenuating
circumstances were present at the murder of the deceased. The appellant went to
the kraal of Basheshile to drink with other visitors.
He did not go there to
seek revenge for the killing of Mjuju by the deceased. He had some intoxicating
liquor to drink. He left the
gathering and when he returned he suddenly found
himself face to face with the person who had killed his brother-in-law and was
now
apparently a free man. He lost his temper.
Possibly because of the liquor
he had taken he became
extremely .... / 18
18
extremely angry. In these circumstances he lost control of himself; he
stabbed the deceased with a knife. His inability to restrain
himself is clear
from the excessive stabbing of the deceased and the threatening of all the
visitors and of his hostess. To come
to a final conclusion these factors must be
considered, not separately, but comprehensively. Such a consideration leads to
the following
conclusion.
The facts and circumstances existed at the time of
the commission of the crime, they influenced the appellant in his conduct, and
they are, in my opinion, when viewed as a whole, sufficient to make his actions
morally less blameworthy. In coming to a
different conclusion the trial Court
erred and committed
a.... / 19
19
a misdirection. The result is that the trial Court
finding and,
consequently, the trial Judge's sentenc
must be set aside.
It was suggested by counsel that in
the event of a conclusion such as that to which this
Court has come, this
Court should impose a proper sen-
tence. Both counsel were given the
opportunity of
addressing this Court on sentence. The Court has come
to
the conclusion that a prison sentence of 12 years
would be appropriate.
Therefor the Court makes the
following order.
The appeal is upheld.
The trial Court's finding and conviction
amended to read:
Guilty of murder with extenuating circum-
stances.
The...../20
20
The trial Judge's sentence is amended to The accused is sentenced to twelve
imprisonment.
P.M. CILLIé, J J
HEFER, J A )
concur GALGUT, A J A )