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1987
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[1987] ZASCA 1
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S v Dlamini (1/87) [1987] ZASCA 1 (26 February 1987)
JOHN DLAMINI
Appellant
and
THE STATE
Respondent
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
) In
the matter between:
JOHN DLAMINI Appellant
and
THE
STATE
Respondent
Coram: JOUBERT, SMALBERGER, JJ A et BOSHOFF, A J A
Heard
: 20 February 1987
Delivered
: 26 February 1987
JUDGMENT
BOSHOFF, A J A
:
The appellant was convicted of murder by
Nienaber, J sitting with two assessors in the Durban and Coast
Local /2
-2-Local Division, and extenuating circumstances not having been
found, sentenced to death.
Mr Rand for the appellant is now challenging the correctness of the
conviction mainly on the ground that, having regard to the scene
of the killing
and the persons involved, the trial court should not have convicted the
appellant on the evidence of the single witness
Bongani Ngcongo. He also raised
several ques-tions about the conduct of Ngcongo at the time when he is alleged
to have seen the appellant
kill the deceased, questions which he should have put
but did not put to Ngcongo in cross-examination.
The /3
-3-The deceased, sergeant Nicholas Mbhekeni Ntshangase, was a
warder at the Durban Central Prison and his duties included the locking
and
unlocking and the inspection of the cells in block E of the prison where the
awaiting trial prisoners were housed. Block E comprises
cells on the ground
floor and 6 cells along a passage about two to three metres wide on the first
floor. The staircase to the first
floor leads to the one end of the passage and
on looking down the passage from that end cells nos 8, 9 and 10 are on the left
side
of the passage and cells nos 13, 12 and 11 in that order, on the right side
of the passage. The doors on the right side of the passage
are opposite the
doors
on /4
-4-on the left side of the passage with the result that cell no 10
is opposite cell no 11 at the bottom end of the passage. About
120 prisoners
were housed in the cells along the passage. The prisoners, being awaiting trial
prisoners, were allowed to move freely
from one cell to another on that floor
when the cells were unlocked. They were also allowed to leave their cells to
fetch their food
at mealtimes.
The prisoners had organised themselves into gangs and in block E most of the
prisoners belonged to a gang known as "26".
Ngcongo was an awaiting trial prisoner in cell
9 /5
-5-9 and a member of the gang known as "Big Five". The appellant was
an awaiting trial prisoner in cell 8 and an important member
of "26". According
to sergeant Cronje, who was also a warder in block E, the appellant had the rank
of a general. The appellant in
cross-examination denied that he was a general
and stated that he was a "moundan"; it was his function to search all the new
arrivals
in prison for money and watches. It does however appear from his
statement to the magistrate in the section 119 proceedings that
he was a general
and it also appears from his own evidence that he was regarded by the prison
authorities as a leader amongst the
prisoners. In fact he was employed by the
prison
authorities /6
-6-authorities as a cleaner in the passage on the first
floor in block E.
According to Ngcongo there was no animosity between the Big Five's and the
26's. According to Cronje however there was hostility but
there were no signs of
it,whatever that may mean.
It is now necessary to refer to the acts and circumstances which have some
bearing on the killing of the deceased and which appear
Erom the evidence of
Ngcongo and Cronje.
On Saturday morning, 13 July 1985, the deceased was on his rounds and
unlocked the cells. According
to /7
-7-to Ngcongo he asked why the blankets of the prisoners in cells 9
and 10 were not properly arranged. Awaiting trial prisoner Somnyama
replied that
the blankets were arranged as they always had been arranged before. The deceased
left and returned with Cronje. According
to Cronje he found that cells 9 and 10
were dirty and gave the inmates 5 minutes to clean up if they wanted to avoid
being deprived
of their three meals that day. Cronje locked the cells and left.
When he returned a little later he found that the cells were clean
and told them
that they could go and have their food. They went to where the food was but did
not help themselves to any by way of
a silent protest.
In /8
-8-
In the meantime,after Cronje had locked the cells the appellant who
was a cleaner in the passage, came to cell 9 and called Somnyama,
who was also a
member of the 26 gang, to the door to ask him why the cells were locked.
Somnyama replied that it was because the
prisoners had not arranged the blankets
in the prescribed order and asked the appellant what they were to do. The
appellant replied
that the warder, evidently referring to the deceased, was
insolent and that they should all grab him and hit him when he returned
to
unlock the cells and that Somnyama should tell all the other members of the 26
gang to do so. A little while later Nkosinathi,
who also was a member of the 26
gang, enquired from
Somnyama., /9
-9-
Somnyama what they intended doing about the matter. He replied that they had
decided to grab and hit the warder when he came there
again. Nkosinathi was not
satisfied with this decision and said that he wanted all the members of the 26
gang to meet in cell 11
the following day, that is to say, the Sunday. On Sunday
morning, 14 July 1985, Sergeant Sibisi visited the prisoners to hear complaints
from them. Ngcongo asked for permission to go to cell 2 in block D on the ground
floor and this was granted.
At about 12hl0 Cronje was on the first floor of block E and he noticed the
appellant sitting with other prisoners in a circle behind
the door in cell 11.
He called the appellant to the door and asked him as the
leader /10
-10-leader of the gang why they were all sitting in a circle.
He replied that they were only talking. He returned to the other prisoners
and
they all stood up, went to the centre of the cell where they stood in a circle
and gave the salute of the 26 gang by holding
up their hands with their thumbs
bent in the shape of a 6. A prisoner, one Bheki, stood in the centre of the
circle and the appellant
struck him 6 blows on the cheek. In reply to a question
by Cronje, the appellant said that he was being punished for something he
had
done wrong in the gang.
The cells on the ground floor were unlocked first to allow the prisoners out
to collect food. After Ngcongo had finished his meal
downstairs he went up
the
stairs /11
-11-
stairs to go to his cell 8 on the first floor. In the meantime the deceased
had gone upstairs to unlock the cells so that the prisoners
could fetch their
food. When Ngcongo got to the top of the stairs he saw a person in a warder's
uniform at the bottom end of the
passage being surrounded by about 20 to 30
prisoners. He could see that they were fighting and he saw the warder
brandishing his
baton and driving the prisoners towards the stairs where Ngcongo
was standing. Eventually the warder, who turned out to be the deceased,
fell
down and the prisoners fled to their cells. The appellant who was one of the
pri-soners involved in the fight with the deceased,
remained be-hind and called
upon Nkosinathi, who was also one of the
prisoners /12
-12-prisoners involved in the fight and who had an open
knife in his hand and was then running away, to come back. He remarked that
the
warder was not dead and would cause them to be arrested and that he should be
killed. Nkosi-nathi did not heed his call. The
appellant then took the
fire-extinguisher from its mounting on the wall and struck the deceased, who was
on his knees in the act
of getting up, on the head. The deceased fell down and
when he raised his head in order to get up again, the appellant struck him
another blow on the head. He left the fire-extinguisher next to the deceased and
ran into his cell.
This assault took place 6 metres away from Ngcongo where he was next to the
stairs. He was afraid
that /13
-13-that he might be involved if he remained on the first floor of block E
and immediately returned to the ground floor.
The prisoners on the first floor in block E then all ran downstairs. Somebody
blew a whistle. Cronje who was on the first floor in
block C heard the whistle
and ran down the stairs to the ground floor of block D, From there he ran up the
stairs to the first floor
of block D which adjoins block E. There is a
trellis-gate leading from the passage in block D into the passage in block E.
Cronje
went to this gate, looked into the passage in block E and saw the
deceased lying in the passage with the fire-extinguisher next to
him. Cronje
blew his
whistle /14
-14-whistle to summon assistance. At that stage all the
prisoners of the cells on the first floor of block E had gone downstairs and
had
started rioting. The assistance of the police was called in and they made use of
the authority which the appellant had over the
prison-ers to restore order.
The fire-extinguisher weighed 10 to 12 kg and the deceased died of a head
injury. He had a fractured skull, involving both parietal
bones, temporal and
occipital. He had 15 lesions to the head and face caused by blunt force. Blood
was found on bhe fire-extinguisher
and it is common cause that the head injury ,
which caused the death of the deseased was inflicted with the
fire-extinguisher.
The /15
-15-The appellant gave evidence in his defence and there is much
in his evidence that corroborates the ver-sions of Ngcongo and Cronje.
Much of
this evidence which is inconsistent with their evidence was not put to them in
cross-examination. As far as the attack on
the deceased was concerned, he denied
that he had any part in it. When cross-examining Ngcongo, the appellant's
counsel put to Ngcongo
that the appellant was there amongst the prisoners who
were attacking the deceased and did nothing. In the section 119 proceedings
before the magistrate he said:
"I had went to room number 11 to smoke dagga because I had heard that people
there had some dagga. We smoked
dagga /16
-16-
dagga and went to sleep for a short
while. I was lying on my back
on
my clothing and I had my hat covering my face, as I indicate by putting my
hand on the eyes . I then heard a noise. I heard people
calling out, saying
'Hebe usotho'. I got up and went outside and I saw all the prisoners coming
towards my direction, to a corner.
They went back again in
front. I joined
them.
I couldn't see what was really happen-ing because others were coming
down and others coming from the above -from the other side of
these premises and
the dishes were flying on the air -in the air. I then saw the sergeant lying
down, the same sergeant who had imposed
the sentence on us, telling us that we
will not receive our meals, the three meals. That was Sergeant Shangase. But he
did not sentence
me. I walked down after I have seen him lying down there. I
proceeded to E - to E section. Me all met at E section. They were blowing
their
whistles /17
-17-
whistles. We saw the warders approach-ing us. They were armed with
sticks."
In his evidence-in-chief he gave the following evidence:
"And then when did trouble start? --It was in the afternoon when we were
being taken out to fetch our food.
Where were you at that moment? -- I was in number 11.
Doing what? -- We were just sitting down and smoking dagga.
And what did you hear, and what did you see? -- I was lying down at a corner,
and there were others also lying down. I heard a noise.
I cannot remember
whether I had a hat or a towel over my eyes. I removed it, and discovered that
the door was open, and there was
a commotion, and there were dishes being thrown
inside. I saw them running down the flight of stairs, and the warder lying down.
I also went down with the others to
the /18
-18-
the lower floor. When we were on the
lower
floor, the other prison warders
arrived and tear-gassed us.
Now, to get back to this Sunday, when the trouble started whereabouts was the
deceased when you saw him? --He was lying down at the
steps leading down.
Was he moving, or did he appear to be unconscious or dead? -- He was just
lying down flat.
And when you went out of that cell, that passage, was he still lying there?
-- Yes, I was in the room when I heard the noise. When
I came out I saw people
running away. There were others in front and behind me. There was just a
commotion.
Now, did you see the prisoner who is now dead, Nkosinathi, there? No, I did
not see him.
Did you see the State witness, the prisoner there? -- No, I did not see
him."
Under cross-examination he gave the following
evidence /19
-19-
evidence:
"Did you have lunch before you heard the noise on the Sunday that led to you
running downstairs? -- Yes.
So this occurred after the luncheon meal? -- The afternoon, the last
meal.
What sort of noise attracted your attention? -- There were footsteps and
sounds of dishes, noise, people crying.
When you heard the noise what did you think was going on? -- I just took
fright, I had been sleeping there. I had been smoking dagga.
What did you think was happening?
I just thought a fight was taking place. This is the usual occurrence,
stabbings, fightings, inside and out-side.
When you came out of the cell, what did you see, what is the first thing you
perceivcd? -- I got to the crowd that was running away
and I
also /20
-20-
also ran away. I also ran down and saw the sergeant lying down.
Just a
minute. You came out of cell number 11 which is at the end of the corridor,
correct? -- Yes.
And when you came out of the cell did you see anything
happening besides people running away? -- I did not see anything else
happen.
Did you see anybody fighting when you came out? -- I did not see
anybody fighting.
Did you see anybody throwing dishes, plates, anything of
that nature?
That was the noise that frightened me, and also
footsteps.
Please listen to the question. I am asking you did you see anybody
throwing eating utensils around? I did not see anyone throw them,
but I did see
dishes and also food, like samp, being spilt there.
Why did you run after
these prison-ers? -- Just going to where they were going to.
Why? -- Why would I remain when
I /21
-21-
I saw a warder lying down there?
Dld you see the warder as soon as you
came out of the door? -- No.
You only saw him after you ran after the people
that were running away? -- Yes, when I came to the flight of stairs, and it is
narrow,
the passage is narrow, others were coming out of the other
rooms.
Yes, I will ask you again. Why did you run away when you came out of
cell number 11, what was the purpose?
I was running away with the people who
were running away.
What for? -- I saw the warder lying down there.
But you have just said
that you only saw the warder after you started to run away. So what was the
reason initially to run after these
people?
When I came out of the room I saw
people running, so when they ran away I also ran away with them. I would not
remain behind.
Why not? Why wouldn't you remain behind? -- (intervention)
NIENABER 22
-22-
NIENABER J
Just a moment, just a moment, I think the accused still
wanted to add something to his reply.
I would not remain there when I saw
people running away and a warder being dead there.
M
R HUTCHINSON
Mr
Dlamini, you said a few minutes ago that you only saw the warder lying down
after you had begun to run away when you got to the
steps. Is that correct? When
I came out of the cell when there was a noise. I saw people running away. I saw
the warder lying down
there, and I ran away with the people who were running
down.
So are you saying that before you ran away you already saw the warder lying
on the ground? Is that what you are saying? -- It was
the noise which made me
come out. How many times have I to explain to you?
NIENABER J
Yes, well
you still haven't answered the question. The question is quite simple. Did you
see the warder before you started running?
-- It /23
-23-
It was before I ran away. I ran out of the room when I heard a noise and came
up to the crowd. MR HUTCHINSON So before you decided
to flee down the lower
level you had already seen the warder, am I correct?
Yes, I saw him.
Well, you see, about five minutes ago you said exactly the
opposite. You said you only saw the warder after you began to run when
you
neared the steps. Now, which is the correct version? -- I say it was the noise
that made me come out of the room. I got to the
prisoners who were running away.
I looked and saw the warder lying down and I also ran away.
Then why earlier
did you say that you only saw the warder after you had begun to run away? --
When I got up I ran away. I got up,
ran out when I heard the noise.
Yes, I
understand that. But now my question is why did you earlier say that you only
saw the warder when you ran away and when you
were
approaching /24
-24-
approaching the stairs? — No, I stand by what I have told you."
The trial court accepted the evidence of Ngcongo. In the view of the trial
court he did not contradict himself in any material respect
and was not
contradicted by any of the other witnesses for the State. There were no inherent
improbabilities in his evidence and
he did not appear to endeavour to exaggerate
the appellant's role in the death of the deceased. The trial court regarded it
as unlikely
that Ngcongo would have fabricated a false story against the
appellant, a prominent member of the 26 gang which was in control of
block E. To
falsely impiicate the appellant could expose him to revenge
in /25
-25-
in a fairly violent form as appeared to have happened to Nkosinathi who was
subsequently murdered in prison.
The trial court appreciated that Ngcongo was a single witness as far as the
killing was concerned and that it had to approach his
evidence with caution and
to decide the guilt of the appellant on the totality of the evidence.
The trial court for good and sufficient reasons given by it had no hesitation
in accepting the evidence of Cronje in preference to
that of the appellant where
there was a conflict in their evidence.
The trial court dealt with the various aspects
of /26
-26-
of the appellant's evidence and for good and sufficient reasons came to the
conclusion that it was false where it conflicted with
that of Ngcongo and
Cronje. As far as the killing of the deceased was concerned, it discussed and
considered the contradictions and
inconsistencies in the evidence of the
appellant and concluded that he was an evasive and untruthful witness.
The trial court finally came to the conclusion that, looking at the evidence
as a whole and weighing up the performance of the State
witnesses against that
of the appellant, it had no hesitation in preferring the evidence of the State
witnesses to that of the appellant;
that there was no reasonable possibility
that the evidence
of /27
-27-of the appellant could be true and that he was guilty of
murder.
Mr Rand has not succeeded in persuading this court that the trial court had
in any way misdirected itself or that its judgment was
not correct. The appeal
against the conviction can consequently not succeed.
Mr Rand also contends that the trial court should have found extenuating
circumstances. His main argument is that the appellant acted
on the spur of the
moment. The learned trial court for good and valid reasons rejected this
argument and Mr Rand is unable to show
that the learned trial court misdirected
itself in
any /28
-28-any way or that no other court could reasonably have come to
the conclusion to which the trial court came as far as extenuating
circumstances
are concerned. The appeal on this ground can also not succeed.
In the final result the appeal is dismissed.
BOSHOFF, A J A
JOUBERT, J A )
concur SMALBERGER, J A )