About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1986
>>
[1986] ZASCA 150
|
|
S v Mkhize and Another (248/86/av) [1986] ZASCA 150 (28 November 1986)
248/86/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
F T
MKHIZE
1st Appellant
S MZILA
2nd Appellant
AND
THE
STATE
Respondent |
CORAM
: CORBETT, GROSSKOPF,SMALBERGER, JJA
HEARD
: 21 November 1986
DELIVERED
: 28 November 1986
J U D G M E N T GROSSKOPF, JA
The two appellants were convicted in the Natal Pro-vincial Division on a
count of murder and one of attempted
murder
2 murder. The trial court (LAW J and assessors) found no
extenuating circumstances in respect of the count of murder, and the appellants
were accordingly sentenced to death. On the count of attempted murder they were
sentenced to terms of imprisonment. With the leave
of the trial judge they now
appeal against the finding that there were no extenuating circumstances.
The facts found by the trial court were briefly as follows. The second
appellant and some other persons, in-cluding one Vuzi Mkhize,
had been charged
with a robbery allegedly committed in March 1985 on one Mdubeni Magubane and his
wife Julia Molo. Magubane was the
deceased in the present case and Julia the
complainant in the count of at-tempted murder. The second appellant had been a
policeman
at
3 at the time of the robbery. He said in evidence that he had
became.involved in the robbery through Vuzi, and that he had lost his
work as a
result thereof.
Towards the beginning of May 1985 Vuzi approached the second
appellant. At the time they were both out on bail. He told the second
appellant
that he would arrange that the second appellant could get his work back, and in
addition "claim from the State for being
arrested". Vuzi stated that he would
achieve these objects by having the deceased murdered by, hired assassins. This
would cause
the prosecution of the robbery charge to collapse because the
deceased's evidence was vital to the State case. Since the second appellant
did
not have any money to pay the assassins, his task would be to accompany the
assassins to show them
where
4 where the deceased and Julia lived. The persons whom he was to
accompany were one Mbambeni Mzila,one Mdletshe and the first appellant.
Mdletshe
was the owner of the car in which they were to travel.
During the evening of
18 May 1985 this plan was executed. Mbambeni, Mdletshe and the two appellants
travel-led to the Lilani location,
also known as Ematimatolo, where Julia and
the deceased lived. During the journey the first appellant, Mbambeni and
Mdletshe discussed
what they were going to do, and in the words of the second
appellant, "they said no mistake must happen; Vuzi must have the money
to pay
them because they are going to commit a very serious offence". When they arrived
at Ematimatolo, the second appel-lant showed
them the house where the deceased
and Julia lived.
He
5
He took no further part in the proceedings.
The further
events of the evening were recounted by Julia, whose evidence was accepted by
the trial court. At about 9 p.m., when she
and the deceased were already in bed,
she heard people knocking at the window and calling the de-ceased's name. she
got up, but did
not recognize the people. They kicked the door, called upon the
deceased to open up, swore at him and said: "We're going to see with
whom you
are
going to try this case". The deceased did not open but
armed himself with sticks and a cane knife and stood at the
door which the attackers were kicking. Subsequently the
attackers also kicked at a second door. One of the doors
was kicked in and
some of the attackers entered. Julia saw
a flash of fire and at the same time heard the report of a shot.
A
6 A bullet struck her in the leg. She fell down and covered
herself with a blanket. Thereafter she remained quiet. She heard one of
the
attackers telling another to come in, and heard one shouting: "The dog has hit
me". This was apparently the first appellant,
who, it appeared later, had
sustained a large, deep scalp wound at the hands of the de-ceased. Other persons
came in and many shots
were fired inside the house. Julia thought that there
were at least four attackers. Afterwards everything was quiet. The deceased
was
dead. An autopsy revealed that he had sustain-ed four gunshot wounds, one of
which had penetrated his skull and underlying brain.
The facts as set out above clearly demonstrate the guilt of the appellants on
the charge of murder of the deceased,
and
7 and, as I have indicated, the only issue on appeal is
whether the trial court erred in finding that there were no ex-tenuating
circumstances.
The case of the first appellant on this aspect was that the court
should have found that the consumption of liquor by the appellant
on the day in
question, combined with. the lesser role which, so it was contended, he played
in the attack on the deceased, constituted
extenuating circumstances. The first
difficulty with this submission is to ascertain what the facts relating to this
issue are. The
first appellant did not testify during the trial on the merits.
At that stage his version of the events appeared only from a statement
made to a
magistrate and explanations of pleá presented pursuant to
section 115
of
the
Criminal Pro-cedure Act, No 51 of 1977
. The effect of these statements
was
8 was, briefly, that the appellant had consumed a great
deal of liquor on the day in question. and had been persuaded by Mbambeni
to
accompany him and the others to Ematim atolo on the pretext that they were going
to fetch a roof carrier for the car. On arriving
at the house of the deceased,
the first appellant, so he said, entered the house in all inno-ccnce with the
others and was wounded
by the deceased when the appellant put out his hand to
greet him. This version was rejected by the trial court when convicting the
first appellant. After conviction he gave evidence in extenuation in which he
repeated the same version.
In considering whether the first appellant's evi-dence relating to
intoxication should be accepted for the pur-poses of extenuation,
the court a
quo
said the following:
"The
9
"The evidence that he gave was that he consumed a considerable quantity
of al-cohol on that day and was substantially under the influence
of liquor. The
difficulty which confronts the Court in deciding whether or not his version is
true lies in the persistence of Accused
No 1 to deny his complicity in the
crime. He was clearly untruthful in that respect and it may well be that he was
untruthful in
respect of his consumption of alcohol. I did mention in the main
Judgment that we regarded it as unlikely that even if Accused No
1 had consumed
alcohol, that he was as much under the influence of liquor as he would have the
Court believe. A person who was under
the influence of liquor to such an extent
would not be able to remember the events which occurred in the minute detail
with which
the Accused professed to be able to remember those events. We are
accordingly of the view that Accused No 1 in his evidence and in
the statement
which he made to the Magis-trate greatly exaggerated the extent to which his
faculties were impaired by liquor."
Later
10
Later the court dealt specifically with the
question
whether intoxication was an extenuating circumstance in re-
spect
of the first appellant. The court said:
"I have already mentioned that we are not satisfied that Accused No 1 was as
intoxi-cated as he would have the Court believe. However,
that is not an end to
the matter. The overwhelming probabilities are in ac-cordance with the evidence
of Accused No 2 that the assistance
of Accused No 1 in the murder of the
deceased was solicited some time before the day in question. We regard it as
probable that he
agreed to assist in the murder of the deceased before the day
on which the crime was committed. There is no direct evidence as to
the
motivation of Accused No 1 in participating in the crime. However, in view of
the fact that. the deceased presented no problem
to him personally, the
probabilities are that he agreed to participate for gain.
In these circumstances, if his faculties were impaired by the
consumption of intoxi-
cating
11
cating liquor on the day in question, that circumstance has no
bearing upon his participation."
Mr. Seegobin, who appeared for this appellant, did not
contend that the
court had misdirected itself in any way,
and in my view rightly so. Moreover,
the finding of the
trial court is, in my view, fully supported by the
evidence.
Apart from the first appellant's own unreliable evidence
there was nothing to suggest that he was under the influence
of alcohol.
The only other witness to testify on this aspect
was the second appellant,
who did not take notice on that day
to see whether the first appellant had been drinking. And
the finding on the probabilities that the first appellant had
agreed to assist in the murder of the deceased before the
day
12
day on which the crime was committed also accords, in my view,
with the evidence mentioned by the court a
quo
, which I have summarized
above. In all these circumstances I agree with the finding of the court a
guo
that the first ap-pellant has not shown that consumption of liquor by
him amounted to an extenuating circumstance.
Mr. Seegobin also contended that the lesser role played by the first
appellant constituted an extenuabing circumstance. This contention
cannot
prevail. It is trite law that the onus of establishing extenuating circumstances
upon a balance of probabilities is upon the
accused. In this case it is clear
that the appellant participated in the fatal attack upon the deceased with
sufficient vigour
to
13 to sustain an injury at the hands of the deceased. It is also
probable, as I have said, that the appellant agreed before the time
to assi'st
in the murder, and, judging from the discussion en
route
to the
deceased's home, that he was to do so for reward. Everything therefore points to
a sub-stantial degree of participation on
his part, and there is nothing to
gainsay this. All that the first appellant placed before the court were lying
denials that he participated
in the attack at all.
In the result the court a quo was, in my view, fully entitled to hold that no
extenuating circumstances had been shown in relation
to the first appellant.
On behalf of the second appellant Mr. Bezuidenhout
contended
14 contended that the influence which Vuzi exerted on the
appel-lant, together with the minor role played by the appellant, constituted
extenuating circumstances. Vuzi's influence could hardly be regarded as
extenuating. The appellant was a man of 27 who had had been
a policeman for four
years. He was consequently not young or inexperienced. Vuzi exerted no pressure
on him but only pointed out
that he would benefit by the death of the deceased.
In addition Vuzi arranged the means for disposing of the deceased. There is
nothing
to suggesti.that the second appellant was in any way reluctant to take
part in the murder and to enjoy the benefits ex-pected to
flow therefrom.
The second point raised by Mr. Bezuidenhout was the
limited
15
limited degree of participation of the second
appellant.
The same contention was advanced in the trial court, and
in
that court counsel relied on certain
dicta
in the judgments
in
State v Smith and Others
1984 (1) SA 583
(A), particu-
larly that of
SMUTS AJA at p. 617 F. The court a
quo
dealt
with this aspect by first
quoting certain extracts from the
judgment of SMUTS AJA including the following at p. 617H-618B:
"In the present case the act of the second appellant in luring the deceased
out of the house to a spot where he knew the hired killer
was waiting, was so
closely connected with the death of the deceased that his degree of moral
blameworthiness is practically indistinguishable
from that of third appel-lant.
I see no difference worth mentioning between the man who stabs and the man who
places a knife in the
hand of the killer with knowledge that it will inevitably
and immediately be used to kill the victim.
Second
16
Second appellant's position in regard to third appellant and the deceased was
for all practical purposes the same as the supplier
of the knife in the above
example. The fact that second appellant did nob do the actual killing
accordingly does not, in the circumstances
of the case, constitute an
extenuating circumstance."
The court a
quo
then said the following:
"The situation and participation of Accused No 2 in this case is to all intents
and purposes the same as that of the second Appellant
in the passage which I
have just quoted. He was one of the people who stood to benefit most from the
death of the deceased. He took
the people who actually did the killing of the
deceased to the deceased's house which he pointed out to them. He knew that they
were
armed with guns and he knew that their intention was to immediately kill
the deceased.
In these circumstances, I am of the
view that no extenuating circumstances exist in the case of Accused No 2."
Mr
17 Mr. Bezuidenhout contended that the court a
quo
erred in
applying the judgment of SMUTS AJA, which was a minority one, rather than that
of the majority in
Smith's
case (
supra
) which found that there
were extenuating circumstances in re-spect of the second appellant in that case.
This argument seems to me
to be misconceived. The
Smi
th case was
impor-tant for the principles which it applied; and the facts of that case were
relevant only to the extent to which they
illustrated these principles. The
correctness of the judg-ment of the court a
quo
depends likewise on the
manner in which it applied legal principles (including those discussed in the
Smith case) to the facts of
the instant case. The comparison which the court
made between the facts of the
present
18 present case and those in the
Smith
case could
consequently assist the appellant only if such comparison caused the court a
quo
to apply a wrong principle or to commit some other misdirection. This
has not happened - in truth the court's reasons for holding
that the second
appellant's degree of participation in the offence was not such as to amount to
an extenuating circumstance seem
to me to be per-suasive and convincing, and I
agree with them.
In the result I agree with the finding of the court a
quo
that no
extenuating circumstances were shown by either appellant. The appeal of both
appellants is dismissed.
CORBETT, JA
SMALBERGER, JA Concur E M GROSSKOPF, JA