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1986
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[1986] ZASCA 96
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S v Xake and Another (242/85) [1986] ZASCA 96 (18 September 1986)
Case No.242/85 mp
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
HLUNGUHLANE NDLEBE XAKE
Appellant No. 1 (Acc 3 in Court a quo)
JULIUS MLAMBO
Appellant No. 2 (Ace 5 in Court
a quo)
and
THE STATE
Respondent
CORAM: HOEXTER, BOTHA, JJA et NESTADT AJA
HEARD:
1 September 1986
DELIVERED: 18 September 1986
JUDGMENT
HOEXTER, JA
2.
HOEXTER, JA
This criminal appeal is a sequal to certain
assaults and killings at or near the Thokoza men's hostel, Katlehong, in the
district of Alberton, in August 1983. On the premises
of the hostel there is a
coal-shed which provided sleeping accommodation for five ill-fated occupants.
One of them was a man called
Godola. Another was Mathews Sibanyoni, to whom
reference will hereafter be made as "the complainant." The precise identities of
the
remaining three men was never established, but they were known to the
complainant as "Eric" , "Shangise" and "Radebe" respectively.
The same names
will be used in this judgment, save that for the sake of brevity the three will
be referred to collectively as "the
deceased" . The complainant is a
Zulu-speaking Swazi. Godola was a member of the Bhaca tribe and the deceased
were Xhosas.
On the morning of Monday 14 August 1983 the
other occupants of the
coal-shed found Godola lying dead in
his
3.
his bed. Outwardly his body bore no visible injuries. It was the death of
Godola which set in train the further events which culminated
in the murder of
the deceased and an attempt on the life of the complainant. On the evening of
the same day the deceased and the
complainant were assaulted in room No 30 Block
4, of the Thokoza hostel. Wire taken from metal coat-hangers was used to bind
together
the wrists of each of the four men; and also to shackle the four men
together at their wrists. Thus bound the four men were marched
out of the hostel
and into the veld adjoining the hostel. There they were set upon with sharp
weapons and savagely assaulted until
they appeared to be dead. Believing that
all four victims had succumbed their assailants departed from the scene of the
slaughter.
The belief of the assailants that they had dispatched their victims
was in part a mistaken one. Although Eric, Shangise and Radebe
had in fact been
done to death, the complainant was merely feigning death. Following the
departure of the assailants the complainant
managed to
unshackle
4.
unshackle himself from the corpses of his unfortunate companions and,
with his own wrists still bound together, he went in search
of and found help.
Having received medical treatment in hospital for some weeks the complainant
lived to tell the gruesome tale.
Some fourteen months later, in November 1984,
seven male persons were
brought to trial in the Witwatersrand Local Division. In respect of the death of
the deceased the seven accused
were jointly charged with murder (counts 1, 2 and
3 of the indictment). In respect of the assault on the complainant the seven
accused
were jointly charged (count 4) with attempted murder. The matter came
before a Court consisting of ACKERMANN, J and two assessors.
The seven accused,
who were represented by counsel, pleaded not guilty. At the end of the State
case accused no 3 testified in his
own defence before closing his case. Each of
the remaining six accused closed his case without calling any
evidence
5.
evidence at all. The result of the trial in the Court below was as
follows. Accused nos 2 , 6 and 7 were acquitted on all four counts,
and
discharged; on all four counts accused nos 1 and 4 were convicted of common
assault; and accused nos 3 and 5 were each convicted
of murder on the first
three counts, and of attempted murder on count 4. In regard to the issue of
possible extenuating circumstances
affecting the convictions of accused nos 3
and 5 on the three murder counts, no evidence was adduced on behalf of either
accused
no 3 or accused no 5, On these three counts the unanimous finding of the
trial Court was that no extenuating circumstances were present.
Accordingly on
each of counts one, two and three both accused nos 3 and 5 were sentenced to
death. In respect of count 4 accused
nos 3 and 5 were each sentenced to
imprisonment for twelve years.
Accused nos 3 and 5 subsequently applied to the trial Judge for leave to
appeal against their convictions
and
6.
and sentences on all four counts. Accused no 3 was refused leave to
appeal against any of his convictions. Accused no 5 was granted
leave to appeal
against his convictions on all four counts. Both accused nos 3 and 5 were
granted leave to appeal (a) against the
findings in respect of the three murder
counts that there were no extenuating circumstances, and the death sentences
imposed consequent
thereon and (b) against the sentences in respect of count 4.
Hence the present appeal to this Court in which accused no 3 is the
first
appellant and accused no 5 the second appellant. For the sake of convenience I
shall in this judgment refer to the first appellant
as "accused no 3" and to the
second appellant as "accused no 5".
The trial was a protracted one involving the
testimony of many witnesses.
Inasmuch as the issues in the present appeal fall within a narrow compass a
recapitulation of all the
evidence adduced at the trial is here unnecessary.
I
7.
I would add that at the trial several important elements in the State
case were either common cause between the prosecution and the
defence, or, at
any rate, not the subject of serious challenge by the latter. Suffice it to say
that all the evidence adduced at
the trial was critically examined by the trial
Court in a thorough judgment notable for a very careful appraisal of the
probabilities
in the case. I should add the appeal was argued by counsel other
than the counsel who at the trial had appeared respectively for
the prosecution
and the defence. Before us Miss
Sidwell
appeared for accused no 3 and Mr
Jordan
for accused no 5. Mr
du Toit
argued the appeal on behalf of
the State. The Court is indebted to all three counsel for the able arguments
respectively advanced
by them.
In the course of its judgment the trial Court recorded certain central facts
which in its view had been established beyond dispute.
These may be summarised
as
follows:-
(a)
8.
(a) Following the death of Godola, the complainant
and at least two of the
deceased were on
14 August 1983 questioned by the police and then released.
(b) Thereafter, and during the afternoon of the
same day, the complainant
and at least two
of the deceased were at the Thokoza beer-hall where they were questioned in
an aggressive fashion by certain people who were dismayed
by Godola's death and
the fact that the police had released the surviving occupants of the
coal-shed.
(c)
The interrogators marched
the complainant and at least two of the deceased to room 30 where, at a later
stage, all three deceased
were present.
(d)
In
room 30 the complainant and the three deceased were questioned in connection
with
Godola's
9.
Godola's death; and they themselves were threatened with death.
(e)
In room 30 an assault "of
some nature" was committed on the complainant and the three
deceased.
(f)
Some of the persons present in
room 30 decided to avenge Godola's death by killing the complainant and the
deceased; and to this end
they tied them up, marched
them
to the veld behind the hostel, where with sharp
instruments they killed the deceased (two of whom had their throats cut
almost
from ear to ear) and they tried to kill the complainant by stabbing him.
(g) Although some or all of the persons re=
sponsible for the assault in
the veld upon
the deceased and the complainant might have
consumed sorghum
beer before shepherding
their
10.
their victims from room 30, there was no evidence to suggest
that the faculties of any one of them had been sufficiently clouded to
prevent
him from forming an intention to kill.
(h) The persons who marched the deceased and the complainant into the veld
shared a common purpose to kill their captives and it was
immaterial to their
guilt which of them did the actual stabbing of their victims.
The correctness of the above findings by the trial Court was not attacked in
argument before us. In addition counsel for accused no
5 conceded that the
issues had been correctly formulated by the learned Judge in the following
extract from his judgment:-
"The
11.
"The only substantial issue in this case, insofar as the
convictions on the charges of murder and the charge of attempted murder on
Count
4, are concerned, is the identity of those persons who joined in the march to
the veld. We limit the issue in this fashion
because we are of the view that it
cannot be found beyond reasonable doubt that the persons who questioned, and
even assaulted, the
victims in the room, necessarily had the fixed and settled
intention and common purpose to kill them. They might never have shared
such an
intention, or if they did they might have changed that intention and
disassociated themselves from contributing to the ultimate
chain of events which
led to the deceaseds' death and Sibanyoni's subsequent injuries."
In regard to the events in room 30 two witnesses were called on behalf of the
State: the complainant and a man called Ngqongo who
was 65 years old. Ngqongo
was a sanitary cleaner in the employ of the Alberton Municipality and he lived
in the hostel. His bed was
in room 30. As to what befell the victims after they
were marched out of room 30 the sole State witness was the complainant. It has
already been
mentioned
12.
mentioned that the only defence witness was accused no 3. He was
present at the assault in room 30, during the march of the victims
therefrom and
out of the hostel precincts; and he was also present at the assault upon the
victims in the veld behind the hostel.
It is necessary at this juncture to
indicate the gist of the evidence of each of these three eye-witnesses.
Of the seven accused arraigned at the trial only two had been known to the
complainant before 14 August 1983. These were accused nos
3 and 4. Accused no 3
has only one ear and according to the complainant he is known also by the
nickname "Ndlebe", the latter being
the Zulu word for "ear". After he and Eric
and Shangise had been questioned at the beer-hall by certain of the accused, so
testified
the complainant, they were marched to a room in the hostel which the
witness believed to be the room in which Ngqongo lived. According
to. the
complainant Ngqongo followed them thither
and
13.
and also entered the room. In the room five of
the accused, including accused nos 3 and 5, questioned the complainant, Eric and
Shangise.
While this questioning was in progress the remaining two accused
brought Radebe into the room. Ngqongo was also present during the
questioning.
The accused wanted to know who had killed Godola. The four victims were forced
to sit upon a bed whereafter all the
accused struck them with sticks and iron
pipes. Accused no 3 played the leading role in the interrogation and he told the
victims
that they were going to tell the truth. To this accused no 5 added that
they should die. A sorghum beer container stood on the floor
and accused nos 2,
3 and 5 refreshed themselves from it. Accused nos 3, 4 and 5 required the
victims to hand over their identity
books, explaining that in the event of their
death their identities would be unknown. Accused no 4 straightened out wire
hangers
and used the wire to the shackle the victims in the manner already
indicated. Thereupon five or six of the accused, including accused
nos 3
and
14.
and 5, produced clasp knives which they proceeded to sharpen.
Accused no 4 gave the order for the removal of the victims whereafter
six of the
accused marched the four victims from the room. Initially in his evidence the
witness said that it was accused no 1 who
stayed behind in the room. Later he
said that the accused person who remained in the room was accused no 7. The main
gate to the
hostel is manned by municipal policemen. The four victims were
removed from the precincts of the hostel through a hole in the wall
surrounding
the hostel. Once in the veld the procession was called to a halt by accused no 3
who started hitting the victims with
an iron pipe. The victims fell to the
ground and their assailants proceeded to stab them with the knives sharpened
earlier in the
room. The complainant was stabbed in the back and on both
shoulders by an unidentified assailant. Accused no 3 cut Eric's throat.
Accused
no 5 struck Radebe on the side of his head with an home-made axe which had been
in the possession of accused no 5 when they
left the room in
the
15.
the hostel . Thereafter the complainant heard the assailants pronounce all
four victims dead. Pretending death the complainant lay
motionless. When the
accused had gone the complainant untied himself from Eric and returned to the
hostel at the gate of which his
wrists were freed by a municipal' policeman who
conveyed him to hospital. The municipal policeman in question (Jeremiah Maduna)
was
called as a State witness. Upon his discharge from hospital the complainant
attended an identification parade at the Modderbee Prison
where he pointed out
four of the accused (including accused nos 3 and 5) as members of the group
which had assaulted him.
The witness Ngqongo told the trial Court that he shared room 30 with six
other men of whom three were accused nos 5, 6 and 7. At 12.30
pm on 14 November
1983 Ngqongo bought a four-litre can of sorghum beer and took it to room 30. By
5.30 pm he had consumed two litres
of the beer. He placed the half-empty can on
the floor and went to sleep. He was roused from his slumber at about 8.30 pm
by
16.
by the noise of fighting in the room. When he woke up he was
under the influence of the drink earlier consumed by him, but he said
that he
was not drunk. Numbers of people, many of whom lived in other rooms of the
hostel, were milling about in room 30. The electric
light in the room was on and
he saw the complainant and three other males being assaulted while they sat on a
bed some three or four
metres from his own bed. One of the assailants was
accused no 3. Ngqongo explained that although he had not seen accused no 3
before
he had heard of a man to whom reference was made as "Ndlebe"; and upon
observing the missing ear on accused no 3 he realised that
this was "Ndlebe". In
the assault upon the victims sitting on the bed accused no 3 used a length of
hosepipe folded double. This
hosepipe was the property of Ngqongo and was used
by him daily in the cleaning of lavatories. Also taking part in the assault was
accused no 5 who was wielding a long and rigid sjambok; and accused no 1 who was
using a short sjambok. According to Ngqongo accused
nos 6 and 7
were
17.
were also present in room 30 at the time. Accused no 7 did not take
part in the assault but accused no 6 had a knife which he sharpened
on a
grindstone. During the assault the four victims were questioned by their
assailants who asked them what had killed Godola. The
victims replied that they
did not know. According to Ngqongo he remonstrated with the assailants whereupon
accused no 5 said to him
"Old man, go to sleep" and the assault continued.
Ngqongo then went to sleep again. He saw nothing further of the four victims.
When
he woke up on the next morning accused no 7 was in room 30. According to
Ngqongo he did not see any of the accused entering room
30 before the assault
started or leaving it after the assault. He saw no drinking taking place during
the assault.
I deal next with the version given by
accused
no 3 in his evidence. He was
not an official resident of the hostel and he lived in an abandoned Combi motor
vehicle
standing
18.
standing in the yard of the hostel. Accused no 3 knew the complainant and the
deceased well, and during the early morning of 14 November
1983 these four
people had informed him of Godola's death. According to accused no 3 he went
with these four people to report Godola's
death to the Municipal Police. The
latter detained the said four persons but not accused no 3. During the afternoon
of the same day
accused no 3 was in the beer-hall when accused no 5 informed the
said four persons and accused no 3 that an explanation for Godola's
death was
required of them. Thereafter all five of them (the complainant, the deceased and
accused no 3) voluntarily accompanied
accused nos 1, 4 and 5 to room 30. There
they found some six or seven other persons, namely Ngqongo, accused nos 6 and 7
and other
men to accused no 3 unknown. Ngqongo was sitting on one of the beds
and accused no 5 ordered the complainant, the deceased and accused
no 3 to sit
down on the beds. Accused no 3 sat upon one unoccupied bed
and
19.
and the complainant and the deceased upon another.. Accused no 5 asked
Eric how Godola had died, and accused no 6 wanted to know for
what reason they
had killed Godola. Thereafter accused no 6 slapped Radebe on the face and
accused no 4 did likewise to Eric. According
to accused no 3 he enquired why
these people were being struck to which accused no 5 replied that they should
know how Godola died;
and that they would suffer a like fate. Offering the
complainant, the deceased and accused no 3 a scale of beer accused no 6 ordered
them to drink for the last time. Ngqongo was also drinking, but he was not
drunk. Accused no 5 took travel documents from Eric and
Radebe. Accused nos 1
and 4 fetched wire with which they and accused no 6 tied up the complainant and
the deceased. According to
accused no 3 he saw accused no 5 fetch an axe and a
sword from underneath a bed. After sunset accused nos 1 , 4, 5, 6 and 7 and the
four unknown men whom they had encountered in room 30 marched the complainant,
the deceased and accused no 3 into the veld behind
the hostel. Accused
no 3
20.
no 3 said that he was frightened and that he had no
opportunity to run away. As they were walking he heard Eric scream and he saw
accused no 1 pull a knife out of Eric's stomach. Accused no 4 stabbed Radebe
with a knife. The complainant and the deceased fell
to the ground. Accused no 5
was armed with an axe with which he struck accused no 3 on the head. Having
warded off a further blow
accused 3 fell to the ground whereupon accused no 5
struck him again with the axe, injuring his right hand between the thumb and
forefinger. Two of the unknown men remonstrated with accused no 5, pointing out
that accused no 3 had not stayed with Godola; and
they stopped accused no 5 from
further assaulting accused no 3. His protectors were armed with Okapi knives and
they stood guard
over accused no 3. Accused no 5 told accused no 3 that he would
not be allowed to sleep in his room because he might report the matter
to
others; and he was escorted back to room 30 by accused nos 1, 4, 5, 6 and 7 and
by the four
unknown
21.
unknown men. Upon their return to room 30 Ngqongo was found
to be awake. He was drinking with others. Accused nos 1, 4, 5, 6 and 7
and the
four unknown men washed the blood off accused no 3 and cleaned their knives.
They warned accused no 3 that if he betrayed
them he too would have his throat
cut. Drink was then consumed by all, including accused no 3, and he fell asleep.
On the following
morning accused nos 1, 4, 5 and two of the unknown men took
accused no 3 to a house in the location where they drank beer. Later
in the
morning accused nos 1, 3, 4 and 5 went to the beer-hall. There accused no 3
pleaded hunger and he left the party to return
to his own place.
Against the background of the above
brief
summary of the testimony of
Ngqongo
,
the complainant and accused no 3, it is convenient here to
notice what impressions the trial Court formed as to the credibility and
reliability of each of these three eye-witnesses. The trial Court was
favourably
22.
favourably impressed with Ngqongo. He struck the trial Court
as being quite impartial and it considered that there was nothing in
Ngqongo's
evidence to suggest that he was trying to implicate any of the accused falsely
or that he was given to exaggeration. An
argument advanced by defending counsel
at the trial to the effect that Ngqongo had been too drunk to make reliable
observations was,
in my opinion quite rightly, rejected by the trial Court. In
this connection the learned Judge called attention to the fact that
during the
cross-examination of Ngqongo it was put to him by counsel appearing for accused
no 5 that he had in fact not been drunk
at the time, to which proposition the
witness assented by saying that he had been "not drunk, just under the
influence". In regard
to Ngqongo's sobriety or otherwise and the possible
impairment of his powers of observation the trial Court recorded the following
finding:-
"It
23.
"It seems that, whatever his state of intoxication may have
been at 5.30 pm that afternoon, the worst of it must have worn off by
7.30 that
evening. In our view there is
no basis for finding that Ngqongo was
so under the influence that his testimony is rendered unreliable on that
ground alone."
On the other hand the trial Court considered that accused no 3 was quite
unworthy of credence. In its opinion accused no 3 was in
several material
respects an unsatisfactory witness whose whole version was riddled with
improbabilities. In regard to his testimony
the trial Court concluded that:-
" no reliance can be placed on the
evidence of accused no 3 to implicate the other accused."
For the sake of completeness I should here mention that having been refused
leave to appeal against his convictions by the trial Judge
accused no 3
petitioned this Court for leave so to appeal. That application was refused by
this Court.
The complainant was an uneducated man and in the estimation of the trial
Court he was not particularly intelligent. Throughout his
evidence the
complainant maintained that accused nos 3, 4 and 5 marched the victims
from
24.
from the beer-hall to room 30; and that accused nos 2, 3, 4,
5 and 6 were members of the party who marched the victims from room 30
to the
veld behind the hostel. But in a large number of other respects the evidence of
the complainant was somewhat inconsistent,
confused and contradictory. The chief
defects in his evidence are fully catalogued in the judgment of the trial
Court.. They relate
to matters such as (a) what persons accompanied him to the
beer-hall on 14 November 1983; (b) which of the accused were encountered
by the
complainant in the beer-hall; (c) at what juncture the complainant saw accused
nos 1, 2, 6 and 7 for the first time; (d) whether
accused nos 1 and 7 were
members of the party who marched the victims from room 30 to the veld; (e)
whether any of the accused left
the group on the way to the veld; (f) the exact
sequence of the stabbings and throat-cuttings in the veld; and (g) which of the
accused
the complainant pointed out at the identification parade at the
Modderbee prison.
A
25.
A further criticism of the complainant's
evidence made by the Court below was that the complainant's description of
the weapons used during the assault upon the four men in
room 30 (as, for
example, iron pipes) was inconsistent with the marks found upon the bodies of
the deceased at the post-mortem examinations
conducted upon them. In this
connection the trial Court expressed the opinion that in his evidence the
complainant had deliberately
exaggerated the severity of the said assault.
In assessing the complainant's trustworthiness as a witness the trial Court
also took into account apparent contradictions which emerged'
upon a comparison
of his testimony at the trial with the contents of a document embodying a
statement ("the prior statement") taken
from the complainant by a police
officer, Major Dlamini, on 16 November 1983. During the cross-examination of the
complainant counsel
for the State made copies of the prior statement available
both to
defending
26.
defending counsel and the trial Court; and thereafter the
complainant was cross-examined thereon. To the matter of the evidential worth
of the prior statement in all the circumstances of the
present case and to the
question to what extent its contents reflect adversely upon the credibility and
reliability of the complainant
as a witness, I shall later allude in considering
the argument advanced in this Court on behalf of accused no 5. Suffice it to say
at this stage that the apparent contradictions between the evidence of the
complainant and the contents of the prior statement are
likewise fully detailed
in the judgment of the Court below.
Having found that the evidence of the complainant was "unsatisfactory in many
material respects" the learned Judge nevertheless went
on to say:-
"Yet his evidence cannot, and ought not to be rejected in its entirety. It is
unquestionably true in very many respects either because
it was not challenged
in those respects, or because it is strongly
supported
27.
supported by the probabilities or because it is corroborated."
The judgment then cites examples of portions of the complainant's evidence
which were either unchallenged in cross-examination or
were corroborated by
other acceptable testimony. Thus the complainant's evidence to the effect that
he and the deceased had been
interrogated in the room by Black men about
Godola's death, and that he and the deceased had themselves been threatened with
death
by their interrogators, was not questioned in cross-examination. The
complainant's evidence to the effect that his hands had been
tied together with
wire and that he had sustained knife-wounds on his upper body was corroborated
by Jeremiah Maduna; and the complainant's
evidence that the hands of the three
deceased had been similarly bound was corroborated by the three police witnesses
who saw the
bodies in the veld on the next morning. Again, the complainant's
evidence that at least one of the three deceased
had
28.
had had his throat cut was corroborated by a police witness and likewise by
the results of the post-mortem examinations,
But although the trial Court did not entirely reject the evidence of the
complainant it treated it with much wariness. In the course
of his judgment the
learned Judge remarked:-
"I do not think it matters much whether
the discrepancies and unsatisfactory features in his evidence are all
ascribed to
bona fide
confusion or whether some are due to dishonest
exaggeration. They all relate to unreliability, particularly regarding the
presence
and actions of the accused.
It is tempting to argue that because Sibanyoni tells a fairly consistent
story regarding the central role played by accused 3, 4 and
5 from the beer hall
to the room and then to the veld, in particular in identifying them with
specific words and acts in the veld,
that his evidence is reliable in this
respect. This would, however, be an extremely dangerous approach because it is
clear that he
has been confused in many respects, even regarding particular
aspects of participation by accused 3, 4 and 5."
Accordingly.......
29.
Accordingly, so reasoned the trial Court, it would be unsafe
to rely upon the evidence of the complainant standing alone insofar as
it
implicated any accused. I quote again from the judgment of the Court below:-
"It is true that only accused No 3 testified in rebuttal of Sibanyoni's
evidence. On the facts of this case I do not think that the
mere silence of the
other accused can convert the unsatisfactory evidence of Sibanyoni into
satisfactory evidence against them. On
many incidents involving the accused,
incidents which fall outside the evidence and recollection of Ngqongo, Sibanyoni
is a single
witness. We are of the view that it would be unsafe to rely upon
Sibanyoni's evidence regarding the specific implication of any particular
accused with any particular event, unless such evidence is corroborated by other
evidence or is supported by probability or has some
other evidential safeguard
of reliability."
It is convenient to consider first the appeal by accused no 5 against his
convictions. The case against accused no 5 hinges not only
on the evidence of
Ngqongo and the complainant but together therewith the testimony of two
other
30.
other State witnesses. These were Det Sgt Sabeka and
Lieutenant Joubert, both of the South African Police. Sabeka was the
investigating
officer in the case and he was one of the three policemen who
found the bodies of the deceased in the veld behind the hostel on the
morning
after the slayings. Between 1 and 2 pm on Tuesday 15 November 1983 Sabeka went
to the room in the hostel in which the deceased
and the complainant had been
assaulted. He found accused no 5 in the room and told the latter that he was
looking for Godola's relatives.
Accused no 5 told Sabeka that he (accused no 5)
had known Godola; and he referred to Godola as "my home boy". Accused no 5
further
told Sabeka that Godola had been killed by his fellow-occupants of the
coal-shed at the hostel. At the request of Sabeka accused
no 5 pointed out his
bed in the room. Sabeka searched the bed and under the pillow and blankets he
found a knife which was handed
in at the trial as exh 3. Sabeka forthwith
examined exh 3 and found what appeared to be dried blood both on the blade of
the
knife
31.
knife and in the groove of the haft into which the blade folded. Sabeka asked
no 5 where the blood on the knife came from. Accused
no 5 replied that he had
bought some spleen and that in eating it he had used exhibit 3. Sabeka arrested
accused no 5 whereafter,
on the same day, accused no 5 pointed out to Sabeka
accused nos 1 and 2. During the night of 14 November 1983, and on the hostel
grounds, accused no 5 pointed out to Sabeka and another policeman the derelict
Combi from which, on the orders of the police, there
emerged accused no 3.
Sabeka then arrested accused no. 3.
During December 1983 Det Sgt Sabeka handed to Lieutenant Joubert (a) blood
samples taken from each of the bodies of the three deceased;
(b) a blood sample
taken from the complainant; and (c) the knife, exh 3. Joubert is a forensic
microbiologist. He subjected the aforesaid
four
blood
32.
blood samples and exh. 3 to scientific tests. Joubert was able to determine
that the substance on exh 3 was the blood of a primate,
that is to say, that it
was blood which came from a human or a member of the ape family. The further
effect of Joubert's findings
was that the blood on exh 3 could not have come
from the bodies of Eric or Shangise; but that it could have come either from
Radebe's
body or that of the complainant.
When Det Sgt Sabeka was cross-examined on behalf of accused no 5 his counsel
accepted that exh 3 was the knife of accused no 5. Sabeka's
evidence as to the
explanation given by accused no 5 to Sabeka in response to the latter's inquiry
concerning the blood on the knife
was in no way challenged during the
cross-examination of Sabeka.
In its judgment the trial Court summed up the case against accused no 5 as
follows:-
"In
33.
"In the light of accused no 5's failure to testify, the evidence of
Detective-Sergeant Sabeka must be accepted as true on this issue.
This means
that accused no 5 lied when he said that the blood stains came from cutting
spleen". He says that he had bought this spleen.
It is inconceivable that he
could have bought the spleen of a primate and therefore his reference to spleen
cannot reasonably possibly
be a reference to the spleen of a primate.
If that were the case, he could quite simply have given evidence to say so.
He did not give such evidence. The inference is unavoidable,
that he cannot give
an innocent explanation for the primate blood on the knife. He did not say to
Sabeka, nor did he give such evidence,
that someone had borrowed or taken his
knife in the past 18 hours or so. The absence of any explanation which could
reasonably possibly
be true as to how primate blood came to be on the knife,
gives rise to a strong inference that it was the blood of one of the victims
that had been killed or knifed the previous evening, and that such blood came
onto the knife as a result of accused no 5's use of
such knife.
When this is taken in conjunction with Matthews Sibanyoni's evidence, and
that of Ngqongo, together with the fact that accused did
not testify, then the
State has proved beyond reasonable doubt in our view that accused no 5 was one
of the persons who accompanied
Sibanyoni and his companions to the veld during
the evening of 15 November, and was one of the persons who
inflicted
34.
inflicted wounds on one or more of the victims with the intention of killing
them.
On this evidence, it is clear in our view, that accused No 5 acted with
common purpose and in concert with the other perpetrators
to kill the
victims."
In challenging the correctness of the trial 'Court's finding on the guilt of
accused no 5, Mr
Jordan
advanced two main submissions. The first was that
the evidence pertaining to the blood found on exh 3 did not sustain, as the only
reasonable inference, that accused no 5 was one of the persons who accompanied
the victims from room 30 of the hostel to the veld
and there took part in the
execution of the common design to massacre them. It was pointed out that accused
no 5 had been only one
of seven persons for whom room 30 served as a dormitory;
and, in any event, that on the night in question several strangers had been
present. In this sort of situation, so it was said, it was reasonably possible
that some person other than accused no 5 might have
taken
possession
35.
possession of the knife of accused no 5 and have
used it in the stabbing of some of the victims; and it was further reaso= nably
possible
that accused might have used his knife to eat a spleen before someone
else had so misappropriated the knife. Accordingly, so ran
the argument, it
could not be said that the falsity of the explanation given by accused no 5 to
Det Sgt Sabeka had been satisfactorily
demonstrated. That argument must, I
think, be rejected. Exhibit 3 was the property of accused no 5 and it was found,
only eighteen
hours after the stabbings, in the bed of accused no 5. The
particular place in the bed in which it was found points to deliberate
concealment on the part of the person who put it there. There is moreover
nothing whatever in the evidence to suggest that when the
knife was discovered
by Sabeka accused no 5 evinced surprise at its concealment under his bedding. In
these circumstances the suggestion
that someone other than accused no 5 might
have used it in the stabbing of the victims stands to be dismissed as fanciful
speculation
entirely
36.
entirely unsupported by any tangible
evidence.
Mr Jordan's second argument was based on a sentence which occurs in the prior
statement, to which sentence he sought to assign a particular
meaning in the
light of an answer given by the complainant during his cross-examination. The
prior statement mentions seven men as
having taken part in the interrogation of
and the assault upon the four victims. Of these seven men the prior statement
refers to
two only by name, and accused no 5 is not one of the two so mentioned
by name. The prior statement does, however, describe one of
the five unnamed men
by reference to the clothes worn by him at the time. There are in the prior
statement five separate references
to a man clad in a red overall. In paragraph
4 of the prior statement the deponent is recorded as having said:-
"One of the Black males ....who was wearing a red overall said we must all be
murdered because Godola was dead."
In......
37.
In paragraph 5 thereof the deponent is recorded as having said:-
"The Black male who was wearing a red overall, and who had said we must be
murdered also hit us with a sjambok."
In paragraph 6 thereof the deponent is recorded as having said:-
"Mzimkulu" - this being a reference to accused no 4 - "and the Black male in
a red overall went away and after a short while came
back having wire coat
hangers."
In paragraph 14 thereof the deponent is recorded to having said:-
"Mzimkulu was wearing a knitted wool hat - red in
colour on the head, brownish lumber jacket
I cannot remember or describe what the
others were wearing, except the one who was wearing a red overall. He is
employed by the Municipality I do not know the job he does
there."
And lastly, in paragraph 18 of the prior statement the deponent is recorded
as having said:-
"The
38.
"The Black male in a red overall remained in
room 3 (sic) with others when we were taken to the murder scene."
Mr
Jordan
's argument was directed towards showing that the reference
to the man in the red overall in paragraph 18 of the prior statement was
intended by the deponent as a reference to accused no 5; and in order to do so
Mr
Jordan
relied on a portion of the complainant's actual evidence at the
trial. Before dealing with the latter it is useful to see in what
way the
cross-examination of the complainant with reference to the contents of the prior
statement unfolded at the trial.
At the trial the seven accused were represented by counsel as follows: Miss
Laurent
appeared for accused nos 1, 4 and 5; Mr
Jones
appeared for
accused nos 2, 6 and 7; and Miss
French
appeared for accused no 3. The
prior statement was made available to counsel for the defence at a stage when
Miss
Laurent
had already completed
her
39.
her cross-examination of the complainant and when Mr
Jones
was
about to embark upon his cross-examination. After Mr
Jones
and Miss
French
had respectively cross-examined the complainant the trial Court
very properly afforded Miss
Laurent
a further opportunity of
cross-examining the complainant inasmuch as she had undertaken her earlier
cross-examination of the witness
without having seen the prior statement. Miss
Laurent
's further cross-examination of the witness was brief, but at the
outset thereof there came the answer from the witness on which Mr
Jordan
's argument depends. I quote from the record the opening portion of
the further cross-examination by Miss
Laurent:
-
"
MISS LAURENT:
My Lord, Miss French has taken
the witness over most of the points that
I was going to make. There may be one point
which I just feel on behalf of
number 5 I should
put
COURT:
Yes, you are at liberty to cross-examine on any matters that
you feel that you wish to.
FURTHER CROSS-EXAMINATION BY MISS LAURENT:
Mr Sibanyoni
40.
Mr Sibanyoni, in your statement you spoke
about a man in a red overall? ....... It is accused
number 5.
Mr Sibanyoni, on,behalf of number 5, he will
deny that he was wearing an
overall, a red
overall? He was wearing a red overall."
The thrust of Mr
Jordan's
argument is this. He seeks to impeach the
credit of the complainant by contending that whereas in his evidence before the
trial Court
the witness testified that accused no 5 was a member of the party
which marched the four victims from the room to the veld, paragraph
18 of the
prior statement - as elucidated by the witness himself - represents a previous
inconsistent statement to the clear effect
that accused no 5 remained behind in
the room. I proceed to consider the validity of this argument.
At the outset it should be borne in mind that when in the course of
investigation of a crime a statement is taken from a witness by
the police there
is an immanent risk
of
41.
of inaccurate reproduction in the statement as recorded by
the police of what the witness has in fact told the police. The extent
of the
risk of distortion obviously depends upon the circumstances in any given case;
and to the particular circumstances attendant
upon the present case I shall
shortly return. But a useful reminder that this risk is ever-present is to be
found in the decision
by this Court in
R v Steyn
1954(1) SA 324 (A). In
delivering the unanimous judgment of the Court GREENBERG JA remarked at 335
F/H):-
"It must be remembered that there is a substantial difference between the
record of the evidence given at a preparatory examination
and the statements
made by witnesses to the police in the course of investigation of a crime and
preparation for a prosecution, even
when these are statements made by witnesses
who are called at the trial. At the preparatory examination the evidence, when
given
in a language other than one of the official languages, is interpreted by
a qualified interpreter ? it is elicited by the prosecutor
under the supervision
of a magistrate, in the presence of the accused who is entitled to
cross-examine, is carefully recorded
and......
42.
and read over to the witness so that errors may be corrected. These
precautions conduce to an accurate representation of what the
witnesses wish to
say, but there is a serious possibility that statements made to the police,
which are made in entirely different
circumstances, may be far from constituting
this accurate representation and through inaccuracies may be a target for
cross-examination
which, instead of revealing the truth, may obscure it."
In the instant case it is important to notice the following facts. The prior
statement is a discursive one running into 26 manuscript
pages. The deponent was
an illiterate person whose language was Zulu. There is no evidence that he
understood English, in which language
the prior statement is penned. It is
unknown by whom the deponent's narrative was interpreted from Zulu to English.
The prior statement
concludes with a certificate under the illegible signature
of a person whose rank is designated as "Major". Presumably this was the
signature of Major Dlamini. The certificate is in the following terms:-
"I
43.
"I certify that the deponent has acknowledged that he knows
and understands the contents of this declaration which was sworn to/affirmed
before me and the deponent's signature Thumb print/mark was placed thereon in my
presence."
During his cross-examination the complainant insisted that the police officer
who took his statement did not thereafter read it over
to him. He further
testified:-
"They did not administer the oath. They just asked me questions."
An obvious question which suggests itself is whether on 16 November 1983 the
deponent, who two days before had sustained such serious
stab-wounds that his
assailants had left him for dead, was sound in body and mind when the prior
statement was taken. As to that
the complainant said that at the time he "was
not feeling well" and that he was "sore all over his body."
Having regard to these disquieting features it is, I consider, open to grave
doubt whether the circumstances in
which
44.
which the prior statement was taken were conducive to an
accurate representation of the complainant's actual version to the police.
However that may be, it seems to me that Mr Jordan's argument must fail on the
following simple grounds That a document alleged to
embody what was said by a
deponent to the scribe who recorded it in fact constitutes an accurate
representation of the deponent'
s actual narrative is a matter which requires
proper proof. There must be acceptable evidence that the scribe correctly
recorded
what the deponent said and, if the statement is recorded in a language
other than that used by deponent, there must further be proof
that what the
deponent said was correctly interpreted by an interpreter qualified in both
languages involved. In the instant case
proof of such matters is entirely
lacking. It is true, of course, that in the course of cross-examination the
correctness of certain
portions of the prior statement was admitted by the
complainant. But it is no less clear that his reliability and credibility cannot
be tested by
reference
45.
reference to other portions of the prior statement not canvassed in
cross-examination and as to the correctness whereof no admissions
were made by
the complainant. And while the complainant in response to a question by Miss
Laurent
told the trial Court that on the night in question the man
dressed in a red overall was accused no 5, the critical passage in paragraph
18
of the prior statement on which Mr Jordan seeks to rely was nowhere in the
cross-examination of the complainant canvassed with
the witness nor adopted by
him. What he would have said if this passage in the prior statement had been
explored with him is a matter
of complete uncertainty. It is interesting to
notice, however, that when the complainant was questioned by the Court in regard
to
what is recorded in paragraph 6 of the prior statement in relation to the man
in the red overall, the complainant repudiated the
correctness thereof: I quote
the relevant passage from the record:-
" in
46
"....in your statement as I read it, you
say here
'Mzimkulu and the Black male in a red
overall went away and after a short
while
came back, having coat
hangers? '
Mzimkulu went to fetch the
coat hangers.
What about the person in the red overall?
The one in the red overall was sharpening the
knife and was doing the hitting.
COURT:
So, did he not go and fetch the wire?
No, My Lord, the wires were fetched by
Mzimkulu."
For the above reasons what is contained in paragraph 18 of the prior
statement cannot, in my view, be used to confute the evidence
given by the
complainant at the trial to the effect that accused no 5 was one of the persons
who marched the four victims from room
30 to the veld where the stabbings took
place.
To sum up: here was evidence directly implicating accused no 5 in the
commission of all four crimes. That evidence was given by a
single witness whose
testimony in many material respects was unsatisfactory, but this fact was
fully
47.
fully appreciated by the trial Court; and the evidence of the
single witness implicating accused no 5 was corrobo= rated significantly
by
other credible evidence and supported by the probabilities. By the end of the
State case the prosecution had made out a strong
prima facie
case against
accused no 5 and in my view the trial Court was fully entitled to draw an
inference adverse to accused no 5 from his
failure to take the witness stand.
Far from being persuaded that any error of reasoning underlies the conviction of
accused no 5
the totality of the evidence in my opinion points to the clear
conclusion that the trial Court reached the correct verdict. It follows
that the
convictions of accused no 5 cannot be disturbed.
It remains to deal with the appeals against the trial Court's finding that in
respect of counts one, two and three there were no extenuating
circumstances;
and against the sentence of twelve years imprisonment imposed
in
48.
in respect of count 4. At the time of the trial accused no 3 was 43 years old
and accused no 5 was 25 years old. According to the
complainant Godola, accused
no 3 and accused no 5 were all fellow-members of the Bhaca tribe. At the time of
the killings accused
no 3 had but recently left the Transkei. He had come to
live in the Thokoza hostel only a fortnight before.
Counsel for both accused nos 3 and 5 urged upon us that, when viewed
cumulatively, the following three factors pointed to the existence
of
extenuating circumstances in relation to the murder of the deceased by their
respective clients: (a) the liquor consumed by them;
(b)
the provocation to which
they were subjected; and
(c)
their
considerable perturbation of mind induced by the sudden death of their kinsman
Godola. As to (b) , the provocation relied upon
was said to derive from the
repeated denials of the four victims that they had
killed
Godola ....
49.
Godola. Whether persistent protestations of innocence by someone suspected by
his accuser of having killed another amounts to provocation
of the accuser is a
question which may admit of some doubt. The trial Court seems to have accepted
that in this respect there was
a measure of provocation; and I shall deal with
the case on the same footing.
Somewhat similar arguments on the issue of
extenuation were addressed to
the trial Court. Concerning the possible role played by liquor the trial Court
made the following findings
-
" I think it must be accepted in favour or
accused No 3 and 5 that they had consumed some
liquor either at the Thokoza beer hall or
in room 30 itself, or possibly in both places. Sibonyani says, however, in
regard to the accused that they were not drunk, they were
just under
the influence In our unanimous view,
whatever liquor was consumed by accused 3 and 5 on that day did not influence
the accused's state of mind in doing what they did,
and even if there was some
influence it was minimal and certainly
insufficient
50.
insufficient in our view, to reduce the moral blameworthiness of the
accused."
In regard to the motive which impelled the
killers of the deceased the trial Court observed:-
"It seems clear on the evidence that this killing was a revenge killing, in
the sense that 3 and 5 and the other assailants were dissatisfied
with the fact
that the deceased and Sibanyoni had been released by the police. They were
clearly of the view that retribution had
to be exacted for the
death of Godola
We do not know whether there was any particular relationship by virtue of
family ties or
friendship between accused Nos 3 and 5 and
Godola, save that they may possibly have belonged to the same tribe."
Having considered the consumption of liquor by accused nos 3 and 5 in
conjunction with the fact that Godola had been "an acquaintance
or friend, of
some sort" and in conjunction further with the matter of provocation, and having
weighed these factors not singly but
collectively, the trial Court unanimously
concluded that in the case neither of accused no 3 nor of accused no 5 were
there any
extenuating circumstances.
Miss
51.
Miss
Sidwell
submitted that the trial Court had erred by
underemphasising the probable effects upon the mind and inhibitions of accused
no 3 of
the alcohol consumed by him. She called attention to the fact that in
its judgment on extenuation the trial Court had made specific
reference to the
evidence of accused no 3 to the effect that at the relevant time his head had
been perfectly clear. Since the trial
Court had found accused no 3 to be a
witness quite unworthy of credence, so the argument proceeded, the trial Court
should have looked
in this connection merely to the evidence of the State
witnesses; and that evidence, it was submitted, sufficiently established the
probability that alcohol had blurred the faculties of accused no 3. I am not at
all persuaded that the trial Court erred in the respect
here suggested. In.my
view it is clear that despite the evidence of accused no 3 given on the merits
of the case, the trial Court
accepted that both he and accused no 5 were to some
extent under the influence of liquor;
and
52,
and it correctly pointed out that:-
"....neither of the accused favoured the Court with their evidence, which would
have been of value in this enquiry, as to whether
they were intoxicated and what
the extent of their intoxication was."
However, the
factor on which both counsel chiefly relied as
diminishing the moral guilt of
accused nos 3 and 5 was their subjective state of mind - a condition described
by Miss
Sidwell
as one of "profound emotional involvement" -flowing from
their kinship with Godola. It was said that such emotional involvement was
sufficiently proclaimed by the essential facts of the case; and that despite the
silence of accused nos 3 and 5 it was a matter of
almost necessary inference. I
am unable to accept this submission, In my view the problem was properly
approached in the course of
the judgment of extenuation. In this connection the
learned Judge remarked:-
"No authority has been cited to us for the proposition that a desire for revenge
constitutes,
per se,
extenuating circumstances. There may
well
be.....
53.
be circumstances where the preceding events have influenced the accused's
mind or mental faculties to such an extent that extenuation
can be found to
exist. The extenuation would then be present, presumably, because of the extent
to which the accused's mind or mental
faculties have been influenced by the
preceding events, and not merely because the murder was one of revenge."
(And see further in this regard:
S v Mkhonza
1981(1) SA 959 (A);
S
v Ndwalane
1985(3) 213 (A).) In the instant case such evidence as there was
affecting the nature of the ties and the depth of the bonds between
Godola on
the one hand and accused nos 3 and 5 on the other, was of the scantiest.
Inasmuch as the accused preferred in this regard
not to take the Court into
their confidence, the trial Court was left merely to speculate as to the actual
nature of their subjective
feelings about the death of Godola and the extent to
which their criminal conduct was governed thereby.
A further argument advanced by Mr
Jordan
was that the moral
culpability of accused no 5 was less than that
of
54.
of accused no 3 because, so it was suggested, the former's role in the
killings was subordinate to that of the latter. Suffice it
to say that there is
nothing in the evidence which bears out this suggestion.
This Court has no jurisdiction to interfere with a trial Court's finding that
no extenuating circumstances have been established unless
such finding is
vitiated by some misdirection or irregularity; or is one which no reasonable
Court could have made. In the instant
case there was no misdirection or
irregularity. Having given careful con= sideration to the submissions advanced
by Miss
Sidwell
and Mr
Jordan
I am quite unable to hold that no
reasonable Court could have concluded that there were no extenuating
circumstances.
In regard to the sentence imposed on count 4 both counsel
advanced the argument that it represented a sentence so severe as to induce
a
sense of shock. I am unable to
agree
55.
agree. In my view the sentence imposed, though a heavy one,
was in no way inappropriate or manifestly dispropor= tionate to the gravity
of a
very serious crime.
For all the aforementioned reasons the appeals of the first appellant
(Hlunguhlane Ndlebe Xake) and of the second appellant (Julius
Mlambo) are
dismissed.
G G HOEXTER, JA
BOTHA, JA )
Concur
NESTADT, AJA )