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1985
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[1985] ZASCA 9
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S v Ndwalane (354/84) [1985] ZASCA 9 (28 March 1985)
34/85
354/84
/mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
AMOS NDWALANE
APPELLANT
and
THE STATE
RESPONDENT
Coram
: VILJOEN, BOTHA, JJA et* VIVIER, AJA
Heard
: 15 MARCH
1985
Delivered
: 28 MARCH 1985
JUDGMENT
VILJOEN, JA
With the leave of this Court, the appellant,
who was
convicted ia on a charge of murder in the
Durban/
2. Durban and Coast Local Division before Howard J and assessors, appeals
against the finding of that Court that there were no extenuating
circumstances
present and the consequent death sentence.
On 27 May 1983 and at Lamontville,
Durban, the appellant shot and killed one Aubrey Masheshisa Mahlaba (hereinafter
referred to as
Mahlaba) under the following circumstances. Mahlaba was a
prominent and leading figure in the township of Lamontville. So was one
Dube.
They both served on the Council of Lamontville and each conducted a taxi service
in the township. During a bus boycott a disagreement
arose between Dube on the
one side and Mahlaba
and a number of his supporters on the other side.
As the/
3.
As the witness Masango, who was called to give
evidence in extenuation, put it:
"M'Lord, people started boycotting buses at Lamontville. Mr Dube supported the
fact that there must be taxis operating from Lamontville
to assist the members
of the public, the commuters. Members of the public liked Dube because he came
to their aid during the time
of the bus
boycott."
For this reason Mahlaba and a number of
his henchmen
decided to kill Dube, to which decision
they gave effect by hiring an
assassin to do the
killing. To a question put by the prosecutor why
Dube
was killed, the witness Masango replied:
"M'Lord Mahlaba and Ebenezer Mngadi were against the introduction of taxis who
were supposed to come and assist commuters at Lamontville.
That
is/.....
4.
That is why he was killed."
Nobody was arrested immediately after the
death of
Dube but rumours were rife in the township
that Mahlaba and his supporters were responsible
for the death of Dube. Some time after the death
of Dube the appellant waylaid Mahlaba at a taxi
rank and while Mahlaba was seated in his taxi
talking to a young girl the
appellant walked up
to the taxi and shot Mahlaba in the head at
close
range with a fire-arm which he had borrowed from
an acquaintance of
his. It is common cause that
some time after the death of Mahlaba a number
of
people were arrested and charged before another
Court on a charge of
having murdered Dube. From
extracts/
5.
extracts from the judgment delivered in that
Court which were introduced into the record of
this case it appears that the Court who heard
the matter found that Mahlaba had been one of
the conspirators to kill Dube.
Dube was a great benefactor and friend
of the
appellant. The latter's state of mind and
the reason why he killed Mahlaba
appears from two
statements he made, one before a magistrate and
another
in court during proceedings under s 119
of Act 51 of 1977. Before the
magistrate he stated:
"Gedurende April 1983 is Msizi Dube wat
'n Raadslid was van die Lamontville Swartdorp
doodgeskiet deur onbekende persone. Terwyl
die polisie ondersoek aan die gang was in verband met die dood van Dube het ek
in-
ligting/
6.
ligting ontvang dat Mahlaba, Nhlangulela en Gaza laasgenoemde ook 'n raadslid
van Lamontville saamgesweer net om Dube te vermoor.
Maar as gevolg van 'n gebrek
aan getuienis kon die polisie nie een van die drie genoemde persone
arresteer.
Ek het toe 'n plan beraam om een van die drie persone te kry. Ek wou een of
al drie doodskiet omdat hulle vir die dood van Dube verantwoordelik
was.
Ek het toe gedink hoe ek 'n vuurwapen in die hande kon kry. Op 'n sekere
Saterdag het ek 'n jong seun in Lamontville gesien met 'n
rewolwer.Ek het horn
toe genader en daar-voor gevra. Hy het dit toe aan my gegee. Ek het die seun
meegedeel dat hy die rewolwer weer
by my kan kry nadat ek dit gebruik het. Met
die rewolwer in my besit het ek toe begin soek na die drie mense wat Dube se
dood veroorsaak
het. Ongeveer 2 weke later een oggend vroeg het ek na die plek
gegaan waar die huurmotors parkeer in Lamontville naby die begraafplaas.
Mahlaba
het toe daar aangekom met die huur-motor. Mahlaba het eers gedraai. 'n Swart
meisie het horn genader en hy het stilgehou.
Ek het agter die huurmotor aan
geloop terwyl
hy/
7.
hy besig was met die swartmeisie. Mahlaba het toe net sy venster oopgemaak aan
die bestuurder se kant om met die meisie te praat.
Ek het die kar toe genader
aan die bestuurder se kant en ongeveer drie tree van horn af het ek een skoot
afgevuur na Mahlaba waar
hy nog in sy motor gesit het. Ek het gesien dat ek horn
in sy kop geskiet het. Mahlaba het toe in sy kar omgeval met sy kop op die
sitplek. Ek het toe weggeloop in die begrafplaas in. In die begrafplaas het ek
gebid en gesê "baie dankie Dube ek het een van
die persone gekry". Ek was
ook gelukkig dat die swartmeisie Mahlaba laat stilhou het anders sou ek horn nie
in die hande gekry het
nie. Ek is toe na my huis toe om die vuurwapen te gaan
bére.
Ek het Mahlaba geskiet ek was kwaad vir die drie mense omdat hulle vir Dube dood
gemaak het. Ek was baie hartseer daarom het ek Mahlaba
doodgeskiet. Ek was baie
lief vir Dube. Ek dra ook 'n skipper hemp met Dube se gesig
daarop."
His statement during the s 119
proceedings
contains somewhat more detail. It reads:
"
Accused
/
8.
"
Accused
I'd like to make a statement. I would like to tell the court
that I shot Mahlaba.
Court
Is that now the deceased, Aubrie Masheshisa Mahlaba?
Accused
That is correct. I shot him because I heard from rumours that
he was one of the people who killed Dube. That worried me because I
had seen
Dube the previous Saturday. On that Saturday I had taken Dube with my car to his
wife at Mtwalume.
Accused
We then promised that we would see each other on Monday the
following Monday.
Court
You and Dube now?
Accused
Yes. And on Monday night, I think it was about 12 a neighbour
girl knocked on my door and informed me that Dube had died.
Court
/
9.
Court
Where were you then? You say at your door. Where is your home
where you were?
Accused
At Lamontville.. I then got up, got into my car and I went to
Dube's house. When I arrived there Dube was no longer there and they
showed me a
place where he was lying. I then asked whom they have contacted, his relatives,
or whether they had contacted his brother
at Umlazi, and they told me that they
had contacted nobody and that they did not know the number of his brother who
stays in Umlazi.
Because I knew his brother's house I got into my car and I
proceeded there. I then informed his brother that his brother, that is
Dube, had
been shot and he was dead and he would not see him any more. I then went back
into that place and made a report that I
had informed his brother. I then went
home and I did not sleep that night. The following morning I went back to Dube's
place. I then
asked where these people who shot Dube were and I was informed
that they
were/
10.
were people who were seen around there near his house who were speaking
Xhosa. I then went home and thought what was happening. In
fact, my business is
doing pirate taxi operating there at Lamontville and during those days I did not
proceed with my work. I just
stayed home because I could not work. I then left
my big car at home, did not use it and I used a small one just to drive around,
and we made some arrangements for Dube's funeral. And on a certain day I took my
Kombi and went to the taxi rank, and I was approached
by the deceased, that is
Mahlaba, and he had a note.
Accused
And he had a note in his hand and he informed me that he was
collecting some donations for Dube and that each operator, taxi operator
had to
pay R10. I then informed Mahlaba or the deceased that I would not pay that R10
because I had already paid R10 at Dube's house
and that I had paid another R1O
in the community hall during the funeral service.
I then/
11.
I then left and went away. After he had collected this money from other taxi
operators a person was then needed to take that money
to Dube's house. The
deceased then approached me and asked me to take this money to Dube's house.
Court
Why did he collect money for Dube, the late Dube?
Accused
I think it was just a donation because the late Dube was a
councillor. I then approached - but 1 refused to take that money to Dube's
house
because I did not contribute anything of that money. 1 then do not know who
later took that money to Dube's house and whether
it was taken there or not. The
late Dube was then buried and the matter was then handed to the or it was
collected by the police.
Days went on without anybody being arrested for the
death of Dube but the rumours were spreading that these were the people who
killed
him.
Accused
/
12.
Accused
Yes. I then thought how was I going to get a firearm, and one
day whilst driving in my car I met another boy and he had a firearm
with him and
I knew him. I then asked him to give that firearm to me.
Court
Was this now a hand gun or a proper gun?
Accused
It was a revolver. He then gave it to me and I told him if he
needed it he would come to take it from me. I then looked for all these
people
that were being suspected and one day early in the morning I woke up and I went
to Gijima and that is where all the taxis
are turning. Mahlaba in his car came
there and he turned his
car/....
13.
car and a child came there and went to speak to him. I do not know what this
child was saying to him, and I leaned against his car
on the driver's side.
Court
So you also went to his car? So did you go to his car then?
Accused
Yes, I went to his car
while he was still busy speaking to this child.
Court
Yes, and you leaned against it?
Accused
Yes, 1 then came nearer to him. I then shot him.
Court
When he was sitting in his car?
14.
Accused
Yes, he was sitting in his car. His head protruded through the
window as he was speaking to this child. I then left, went towards
the
cemetry.
Court
You?
Accused
Yes. I then went to
pray. I then prayed saying
"Thank you,
Dube and Ndwalane
families, for helping me ful
filling my wish." I
then
went home. I did not tell
anybody. I just kept my
revolver in a
safe place.
Thereafter I took the firearm
and went to hide it at
my
girlfriend's place, and I just sat at home and nobody knew
except
me."
The judgment on the question of
extenuating
circumstances reads as follows:
"The/....
15. "The question is whether, in the opinion of the Court, there
are extenuating circumstances present in this case, that is any facts
bearing on
the commission of the crime of murder which reduce the moral blameworthiness of
the accused. In the judgment culminating
in the verdict I have already traced,
in broad outline, the background to the murder of Mahlaba. We have since heard
the evidence
of Mr Masango, which confirms and adds to what we have already
found to be the circumstances leading up to this crime. He has described
the
accused as an obedient and respected member of a quiet and respectable family.
The accused himself has testified that he is thirty-five
years old. He is
married and has five children. Mahlaba, by contrast, associated with persons
whom Masango described as rogues and
was guilty of provocative and violent
conduct, particularly provocative and cynical was his action in collecting money
after Dube's
death, ostensibly for Dube's family, as described by the accused in
his statement during the proceedings in the Magistrate's Court,
Exh E
.
Masango testified to the community's distress at the death of Dube and its
jubilation when Mahlaba was killed. whilst conceding
that the accused should be
punished for the murder of Mahlaba, he claimed that his
community/
16.
community would not regard the death sentence as an appropriate penalty.
Mr
Kuny
submits that in considering the question of extenuating
circumstances we should look at the accused's subjective state of mind in
the
context of his community and its
mores
, his very close relationship with
Dube, his distress at the killing of Dube, his conviction that Mahlaba was one
of those responsible
and his frustration at the fact that Mahlaba, whose conduct
was brazen and provocative, appeared to be going unpunished. The evidence
justifies the conclusion that these factors were present and we accept that they
subjectively influenced the accused in the commission
of the crime. They
influenced him to take the law into his own hands and exact revenge for Dube's
death by killing Mahlaba. To that
end he acquired a firearm and spent the next
two weeks or so looking for the suspect. When he found Mahlaba he approached his
victim
unawares and deliberately shot and killed him in cold blood.
It is true that the accused did not stand to gain any tangible reward for the
killing and that he probably thought that he was performing
a public service in
ridding the community of
Mahlaba,/
17.
Mahlaba, but it was nevertheless a premeditated and coldblooded assassination
executed in furtherance of a plan which was formulated
some two weeks
previously.
Under the circumstances we do not think that the various factors relied upon as
extenuation, whether considered singly or cumulatively,
serve to reduce the
accused's moral blameworthiness. In our opinion, which is unanimous, there are
no extenuating circumstances in
this case."
It is trite that the
jurisdiction of a
court of appeal to interfere with a finding that
no extenuating
circumstances exist, is strictly
limited. It can only do so if it is shown that there
was a misdirection or
that the finding, viewed in the
light of all the evidence, is of such a
nature that
it could not reasonably have been arrived at.
S v
Mkonza
1981(1) SA 959 (A) at 963 F - G.
It is/
18. It is not clear from the learned Judge's
reasoning whether he
prima
facie found the factors relied upon by
counsel as extenuating circumstances to be such. All he said was that the
evidence justified
the conclusion that the factors were present and that they
subjectively did exercise the mind of the accused in the commission of
the
crime. I assume that the Court did regard the factors referred to, by
themselves, without being affected by any aggravating features,
as extenuatory.
As I read the judgment it would appear that the Court found that, because the
factors which otherwise would have
been extenuating,influenced the appellant to
take the law into his own hands and, by a carefully planned stratagem, exact
revenge
for Dube's death, any extenuation was wiped out or neutralised. Such
reasoning postulates
a weighing/
19. a weighing up of, or a comparison between the
extenuating circumstances and the nature of the crime. In so doing the Court
a
quo
, in my view, misdirected itself. The inquiry is whether the factors
which subjectively influenced the mind of the offender to commit
the murder are
extenuating or not; the manner in which he committed the murder is irrelevant.
As Steyn CJ pointed out in
S v Petrus
1969(4) SA 85(A) at 90 E - G every
murder is a reprehensible crime. He calls this basic reprehensibility. Botha JA
said in
S v Van der Berg
1968(3) SA 250 at 252 in
fin
to 253 :
"Daar dien in ieder geval opgemerk te word dat die erns van die moord in die
onderhawige geval, die wreedheid daarvan en die onnodigheid
van
die/
20.
van die geweld wat gebruik is, nie verskil van die erns of die wreedheid van of
die onnodigheid van die geweld by enige ander moord
nie, veral nie 'n moord wat,
soos in die onderhawige geval, by wyse van die toediening van 'n steekwond met
'n mes gepleeg word nie."
At 252 F - G of the
Van der Berg
case,
supra,
Botha JA said:
"Dit is voor-die-hand-liggend dat, ofskoon in die aard van die wandaad 'n
aanduiding van die gemoedstoestand van die dader gevind
mag word, die vraag of
'n bepaalde omstandigheid as 'n versagtende omstandigheid aangemerk behoort te
word, wat 'n subjektiewe ondersoek
na die gemoedstoestand van die wandader verg,
nie aan die aard van die wandaad getoets kan word nie. So kan provokasie bv. 'n
dader
se gemoed so beinvloed dat dit aanleiding kan gee tot die pleging van 'n
afskuwelike daad, maar die afskuwelikheid van die daad kan
die provokasie nie as
'n versagtende omstandigheid uitwis nie."
The last sentence in the passage quoted
above/
21 above was approved by Steyn CJ in the matter of
Petrus
,
supra
,at 92A. In the latter case Steyn CJ
explains
at 92 D - G to what extent and to which
effect the nature of the offence may
be taken into
account in the inquiry.
"Dit beteken egter nie dat die aard van die wandaad, in die sin van die moord en
die wyse waarop dit uitgevoer is, by die beoordeling
van versagtende
omstandighede buite rekening gelaat moet word nie. vir sover feite wat met die
moord in verband staan, by bedoelde
beoordeling ter sake is, kan hulle
vanself-sprekend nie uitgesluit word nie. Die manier waarop die dader te werk
gegaan het sou kan
aantoon dat hy bv nie so dronk was as wat hy voorgee nie, of
dat beweerde voorafgaande provokasie geen noemenswaardige nawerking
by die daad
gehad het nie. By 'n vooruit beplande moord sou uit die omstandighede met
volkome sekerheid afgelei kan word dat 'n be-wese
hoe graad van dronkenskap
tydens die daad, geen aanleiding hoegenaamd tot die daad gegee het nie, dat dit
die dader glad
nie/
22.
nie beinvloed het nie, en daarom nie as versagting gereken kan word nie. Die
feit dat dergelike aspekte van 'n moord medebepalend
kan wees vir die bestaan of
andersins van versag-tende omstandighede, bring egter nie mee dat beweerde
versagting buite bevinding
gestel kan word bloot deur die wreedaardigheid of
snoodheid van die daad nie."
Rumpff JA expresses his view at 95 G - 96 B as follows:
"Om vas te stel of daar versagtende omstandighede is of nie, spreek dit m i
vanself dat die feite van die misdaad sowel as die moontlike
omstandighede wat
as versagting sou kon dien oorweeg moet word. Die erns of afskuwelik-heid van
die misdaad, as sodanig, kan nie
die moontlikheid van versagtende omstandighede
uitsluit nie. En ek dink nie iemand sou dit ooit wil beweer nie. Wat wel kan
gebeur
is dat wanneer die versagtende omstandighede oorweeg word in die lig van
die feite van die misdaad, 'n Verhoorhof sou kon bevind
dat die beweerde
omstandighede in die besondere geval nie volgens sy mening as versagting kan
geld nie. So sou 'n jeugdige van 17
jaar oud, wat reeds werk en betreklik
volwasse is, en wat sy oom en tante
vergiftig / .
23.
vergiftig om 'n groot som geld in die hande te kry, horn miskien tevergeefs mag
beroep op sy jeugdigheid as sodanig, sonder meer.
In hierdie lig moet ook gelees
word wat ver-skyn in
S v Mohlobane
,
1969 (1) S A 561
(A A) te bl 568,
waar melding gemaak word van die noodsaaklikheid om die agtergrond van 'n
jeug-dige te ondersoek met die oog op
sy graad van volwassenheid. Die bedoeling
van wat daar staan, is nie om te beweer dat die hoogs laak-bare aard van 'n
misdaad die
bestaan van versagtende omstandighede
per
se uitsluit nie,
maar dat al die feite van 'n misdaad so kan wees dat 'n Verhoorhof sou kon
besluit dat 'n spesiale ondersoek in
verband met die jeugdige se graad van
volwassenheid onnodig is en dat sy jeugdigheid (en dus moontlike verbetering)
nie as versagting
kan dien nie."
The inquiry
therefore is whether the
circumstances are such that they are truly extenuating
and, if so, whether
they did influence the mind of
the offender to commit the crime. The youth
who out
of sheer/
24. of sheer wickedness kills his father and mother
will rely on his youthful age in vain. The plea
of having been under the influence of liquor when
he committed the murder
will not avail an accused
who commits a premeditated murder. And if
there
was provocation but the provocation did not really
influence the
accused to commit the murder it will
not assist him to rely thereon as an
extenuating
circumstance. I am therefore of the view that the
Court a
quo
erred in concluding that the nature
of the crime neutralised the
extenuating circumstances.
But if I am wrong in the assumption that the Court
a
quo
did regard the factors referred to as extenuation it, in any event,
in my view, misdirected itself. The Court should have found those
circumstances/....
25. circumstances to be extenuating. In
R v Biyana
1938 EDL 310
at 311 Lansdown JP said:
"In our view an extenuating circumstance in this connection is a fact associated
with a crime which serves in the minds of reasonable
men to diminish, morally
albeit not legally, the degree of the prisoner's guilt."
It is
therefore essentially a moral judgment.
In my view the circumstances were
clearly, from this point of view, extenuating. Dube was close friend of the
appellant's. He loved
and respected him. He looked upon him as a father. When
Dube was assassinated he was overcome with grief. He could not sleep and,
it is
clear, he
suffered excruciating anguish at this cowardly
deed
committed/....
6.
committed by the conspirators. In his mind Dube
was a benefactor of the
community. He was beset by feelings of outrage and frustration because the
people responsible were not brought
to book. He felt he owed it to Dube to
avenge this terribly grievous wrong done to Dube, his family and himself and a
touching illustration
of his relief at having been able to avenge the death of
his great benefactor and friend was the moving prayer he said in the cemetery
after the killing of Mahlaba. His overriding thought was not so much, as I see
it, that he was performing a public service in ridding
the community of Mahlaba;
it was a feeling of satisfaction at having been able to bring just
retribution
upon/
27.
upon Mahlaba.
The appeal accordingly succeeds. The death sentence is set aside. The
appellant is sentenced to ten years imprisonment.
JUDGE OF APPEAL
Botha JA)
) - concur Vivier AJA)