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1987
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[1987] ZASCA 131
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S v Mthethwa and Another (192/87) [1987] ZASCA 131 (23 November 1987)
NPD 192/87
SIPHO MAHUNGELA MTHETHWA
1st APPELLANT
MVUSENI MANDLAKAYISE
MBUYAZI
...2nd APPELLANT
and
THE STATE RESPONDENT
J J F HEFER JA
.
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
SIPHO MAHUNGELA MTHETHWA
FIRST APPELLANT
MVUSENI MANDLAKAYISE MBUYAZI
SECOND APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, HEFER et JACOBS JJA.
HEARD
: 13 NOVEMBER 1987.
DELIVERED
:23 NOVEMBER 1987.
JUDGMENT
HEFER JA
:
During 1986 the appellants committed a series
of 2
2. of robberies in
the Kwambonambi area in northern Natal. Their
modus operandi
was to steal
into private dwellings early in the evening where they subdued the inhabitants
with a pistol which second appellant
produced on eachoc-casion and robbed them
of whatever the appellants could lay their hands on. On the evening of 21 August
1986,
intent on committing yet another such a robbery, they en-tered the
farmhouse of Mr Ronald Wiseman through a back door. Producing
the pistol as
usual, second appellant entered first, closely followed by first appellant. They
encountered the Wisemans' cook, Mthembu,
in the kitchen. Mthembu immediately
started shouting, which drew Mr Wise-man (who had been in the lounge with his
wife)towards the
kitchen 3
3. kitchen. Near the kitchen door second appellant shot him to
death. The same fate befell Mthembu. There-upon the appellants fled
from the
house.
These events in due course led to the appel-lants' appearance in the
court a quo where they faced a number of charges arising from
the robberies, and
two counts of murder arising from Mr Wiseman and Mthembu's death. They were
convicted of the two murders and on
most of the other charges. No extenuating
circumstan-ces having been found, they were sentenced to death for each of the
murders.
The learned judge, however, granted them leave to appeal to this court,
in the case of first appellant, against his convlction on
the two counts of
murder 4
4. murder and, in the case of both appellants, against the death
sentences pursuant to the finding that there were no extenuating
circumstances.
At the trial it wás conceded by the defence that the appellants had
entered the Wiseman dwelling with the common intention
to rob. It was common
cause, more-over, that the two deceased had died as a result of shots fired by
second appellant. As far as
first appellant is concerned the only material issue
was the foreseeability to him pf the deceased's death. His case was that,
al-though
he was aware that second appellant carried a loaded pistol which he
would use to subdue the occupants, he did not foresee that it
would be used to
kill any of them.
In 5
5.
In the past, so his evidence went, their victims had
al-
ways heeded the silent threat of the firearm and had al-
ways
surrendered their belongings without offering the
slightest resistence. This
is what he expected of the
occupants of the Wiseman dwelling too. The court
found,
however, that
"(he) knew that No. 2 carried a loaded pis-tol, he knew that No. 2 was going
to men-ace the people with this pistol. He must have
foreseen and we find that
he did fore-see, this being the only reasonable infe-rence, that events might
turn in such a way as that
the pistol might be used and death of one of the
occupants might result. This, as I say, is the only reasonable inference that
can
be drawn from all the evidence a-gainst accused No. 1.
Armed robbery, use of a loaded fire-arm, people in their houses at night,
resistence 6
6.
resistence, retaliation, shooting, death, are all natural
consequences. They hap-pen all too often and the Court is satis-fied beyond
reasonable doubt that accused No. 1 subjectively must have appreciated when he
entered this house that night,that death might result.
He carried on, he was
party to the enterprise, he was reckless, he did not care what happened, he was
in it till the bitter end.
It is therefore a clear case against him of dolus
eventua-
lis---------
. This is to say that he sub-
jectively foresaw that death might result. It was part of the bargain that he
took into account and he carried on until the end."
The main submission by first appellant's coun-
sel in challenging this finding was that the court erred
in rejecting
first appellant.'s evidence and accepting
second appellant's version of the
sequence of events on
the occasion of the murders. No useful purpose can,
however, 7
7. however, be served by enquiring into the question whet-her
first appellant's rather than second appellant's version should have
been
accepted. It emerged at the trial that second appellant encountered Wiseman in
the dining room. It is reasonably. clear that
it was there that he started
shooting. First appellant who, as men-tioned earlier, had entered after second
appellant, got no further
than the kitchen. A scuffle developed there between
him and Mthembu and, according to his evidence, it was while this was going on
that the shooting started. He immediately fled from the house, he said, and hid
near the house until second appellant also emerged
and joined him. Second
appellant's version was that when
he 8
8. he fled first appellant must still have been in the house,
because, while he ran from the house, first appellant was behind him.
It makes
no difference, in my view, to the outcome of the appeal whether first appellant
fled after hearing the first shot or whether
he remained in the kit-chen until
all the shots had been fired. First appel-lant's counsel argued that first
appellant's evidence
sup-ports an inference that he disassociated himself from
the shooting immediately upon hearing the first shot and that, for this
reason,
the distinction is important. I do not agree. Assuming that he fled after the
first shot, the inference which counsel sought
us to draw, is not justi-fied.
Taking into account that first appellant did not
. know 9
9. know who was shooting he might equally probably have fled for
fear for his own safety. The sequence of events does not reflect
on and does not
assist in the determina-tion of the question of the foreseeability to first
appel-lant of the deaths, which, as mentioned
earlier, is the only issue as far
as first appellant is concerned. I am quite prepared to assume in his favour
that he fled at the
stage when he said he did and to examine the correctness of
thé trial court's finding as to foreseeability on that basis.
The
trial court's reasoning in the passages from the judgment quoted above is
obviously correct. Else-where in the judgment the learned
judge said:
"At 10
10.
"At the Wiseman house, when they were running away, he said, as I have
already mentioned, that he was afraid that Mrs Wiseman was
go-ing to shoot them,
the relevance of this be-ing, of course, that he recognised theh'and must have
appreciated at all material
times that retaliation was a reasonable possibility
and it does not require much foresight to re-cognise that if you are with a
person
armed with a loaded gun and if retaliation is en-countered and if the
people in the house start shooting, that accused No 2 would
shoot back; in other
words that it would degenerate into a shooting scene and there might be a loss
of life."
Much more need not be said. The fact that resistance was
not encountered in the appellants' previous raids makes
no difference. It is ludicrous to suggest that this
. could have expelled
the reasonable possibility of resis-
tance in all further ones. I am in full agreement with
the 11
11.
the trial court's conclusion. First appellant's appeal
against his conviction cannot succeed.
Nor can the appeal of either appellant against
the finding that there were no extenuating circumstances be upheld. I do not
propose entering upon a discussion of this aspect of
the matter. Every factor
mentioned to us was considered by the trial court and rejected. I have no reason
to differ.
The appeal is accordingly dismissed.
J J F HEFER JA.
VAN HEERDEN JA )
CONCUR. JACOBS JA )