About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1987
>>
[1987] ZASCA 138
|
|
S v Ngidi and Another (139/87) [1987] ZASCA 138 (26 November 1987)
VINCENT MUZIKAYIFANI YEDWA
NGIDI
1st Appellant
SIKUMBUZO
PHILLIP CELE
2nd Appellant
and
THE STATE
Respondent
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
VINCENT MUZIKAYIFANI YEDWA NGIDI
Ist
Appellant
SIKUMBUZO PHILLIP CELE
2nd Appellant
and
THE
STATE
Respondent
Coram
: RABIE, A CJ, HEFER, J A et BOSHOFF, A J
A
Heard
: 6 November 1987
Delivered
: 26 November 1987
JUDGMENT BOSHOFF, A J A
:
The two appellants were accused 2 and 5 when they were convicted in the
Durban and Coast Local
Division /2
-2-
Division on three counts of murder.
The trial court found extenuating circum-stances on count 1 in respect of the
death of Idah Dlamini and on count 3 in respect of the
death of Mbongiseni
Dlamini and they were both sentenced to 12 Years imprisonment on each of these
two counts. The sentences on count
3 were ordered to run concurrently with the
sentences on count 1. The trial court found no extenuating circumstances on
count 2 in
respect of the death of Siba
Dlamini /3
-3-Dlamini and both the appellants were sentenced to death.
The trial judge allowed the appellants leave to appeal against the finding of
the trial court that no extenuating circumstances were
established and this is
the only question to be considered by this court.
The circumstances and the spirit in which the abovementioned crimes were
committed appear to stem from the unsatisfactory state of
affairs which existed
in the Engonyameni Reserve, a location which is under the control of Chief Cele
and which adjoins the Umlazi
township, a part of a Durban Black residential
area. The kraals of 5 families (the Dlaminis, Msomis, Sibisis,
Gumedes /4
-4-Gumedes (also known as the Quabes) and Phalagos) are in
close proximity to one another and there is a lot of ill-feeling between
the
young men which in the past had led to attacks on individuals and the respective
kraals. One night two young men and a young
woman of the Phalago family,
Mfankithi, Ndlekevu and Manu, returned from a celebration and were waylaid by
young men of one or more
of the other families and seriously assaulted. Both
Mfankithi and Ndlekevu were in hospital for some time and eventually a leg of
Mfankithi had to be amputated. Mahu was stabbed with an assegai. Thereafter in
September 1983 a group of young men, apparently Msomis
and Dlaminis, attacked
and burnt down the Phalago kraal and killed the daughter Doda
A /5
-5-A week later Chief Cele called a meeting to find out who the
culprits were. He had no success and announced that the matter would
be left in
the hands of the law.
In November 1983 the Dlamini kraal was attacked. Julia Dlamini was injured in
the eyes and on the mouth and both her mother and sister-in-law
sustained stab
wounds. Julia was then afraid of staying there in the reserve and moved to the
family house in Umlazi.
These violent instances of hostility regrettably did not receive proper and
efficient attention from the Isipingo Police who were
responsible for the
policing of that area. The police were evidently
too /6
-6-
too scared to enter the area orreluctant to involve themselves in these
family disputes.
On the afternoon of the 4th March 1984 a group of about 30 men armed with
assegais, shields, sticks and a gun were near the Dlamini
kraal when Victor
Msomi, the son of Phumzile Msomi, an elderly woman who lives near the kraal of
Phillip Dlamini, alighted from a
bus. He saw the armed men and started to run
away. They chased him but he managed to elude them. The armed men then went to
the Dlamini
kraal. The two sons, Nhlanhla and Mbongiseni fled from the kraal
with the armed men in pursuit of them. They outran the armed men
and the armed
men then again returned to the Dlamini
kraal /7
-7-kraal . In the meantime Phillip Dlamini had gone to the
Isipingo Police for assistance and returned with two policemen to find
the armed
men sitting approximately 200 metres away from the kraal.
Phumzile and Julia had been visiting Phillip's wife, Idah, at that time and
they had noticed the armed men near the kraal. The three
of them went to where
Bhillip was standing with the two policemen to warn them about the presence of
the armed men. When the police-men
saw the armed men they immediately left to
fetch reinforcements. The armed men then moved towards Phillip and the three
women. Idah
and Phillip
fled /8
-8-fled in different directions and the armed men broke up into
two groups, the one following Idah and the other Phillip. The one
group which
inclúded the two appellants stabbed Idah to death and the other group
seriously assaulted Phillip. Idah is the
deceased in count 1.
When Phumzile arrived back at her home she
found
that her dogs had been stabbed, that all the doors
of the house had been opened and that :a window had been
broken.
When Phillip came out of hospital he moved with his family to his house in
Umlazi.
After dark on 18 March 1984, Thandi,the
twin
sister /9
-9-sister of Julia, looked through
the bathroom window and saw armed men outside the house. She raised the alarm
and took her ailing
father, her drunk brother Themba and Julia into the bathroom
and locked the door. Nhlanhla fled into the main bedroom and hid behind
the door
next to the wardrobe. His brothers Siba and Mbongiseni and his 8 or 9 year old
niece Philisiwe hid under the bed. The armed
men broke window panes and forced
the kitchen door. A number of them including the two appellants entered the main
bedroom and pulled
Mbongiseni from under the bed. Makhanya, who was accused 1 in
the trial court, chopped Mbongiseni with an axe. The appellants and
other
persons stabbed him with assegais. He is the deceased
in /10
-10-in count 3. He was 26 years old and had been in trouble with
young men of the other families before. One witness described him
as a
trouble-maker in the reserve.
However, after they had finished him off they pulled Siba from under the bed.
He was 14 years old and at first tried to get away from
them and pleaded with
accused 1 that he was still in his childhood and should not be killed. Accused 1
chopped him on the head with
the axe. The others including the two appellants
proceeded to stab him with assegais. He is the deceased in count 2.
Mbongiseni died of multiple injuries. He
had /11
-11-
had 28 clean cut wounds on his face and body.. He had a 3cm x 3cm
cross-shaped laceration on the top of his head, a 4 cm laceration
6 cm above his
right ear and 7 overlaying lacerations in the upper right occipital scalp.
Under-lying these wounds he had fragmented
depressed fractures in the right
parietal area.
Siba also died of multiple injuries. He had 10 clean cut wounds on his body
and legs, 2 puncture wounds on his body, a small depressed
fracture under the
penetrating- wound on the top of his head and fragmented depressed fractures in
the occipital bone.
The trial court found that although accused
1
was /12
-12-was the leader of the armed group
which attacked the Dlaminis and played a prominent part in the attack on the
deceased persons,
there was no evidence that the younger members of the group
feared him or were under his direction. The trial court also found that
every
one who took part in the attack on the Dlaminis did so with a common purpose and
with knowledge of the weapons carried by the
others in the group and
subjectively knew that death was likely to result and that they were thus all
equally guilty of murder.
On the question of extenuating circumstances the trial court viewed the
murder on Siba (count 2) against the background of the two
appellants having
had /13
-13-had two weeks previously participated in the murder of Idah
(count 1). There was no evidence of recent or previous provocation
by members of
the Dlamini family which after the lastmentioned murder had fled from their
kraal at Engonyameni to seek refuge at
Umlazi. There was in addition no evidence
that Siba had ever in any way behaved in such a way as to cause anyone to have
any personal
animosity against him. When he was attacked he as a child of 14
years pleaded in vain for his life. The trial court on this reasoning
found that
there were no extenuating circumstances. In the case of the murder on Mbongiseni
(count 3) the trial court accepted that
there were a number of people who bore a
grudge against
him /14
-14-him and that the cause of the attack on him was rooted in the
previous trouble and was influenced by the previous attacks on the
Phalagos.
This in the view of the trial court was sufficient to reduce the moral
blameworthiness of the appellants and to justify
a finding of extenuating
circumstances.
Mr McIntosh
on behalf of the appellants con-cedes that this court
cannot interfere with the finding of the trial court on extenuating
circumstances
unless such finding is vitiated by misdirection or irregularity or
is one which no reasonable court could have come to. He contends
that the trial
court misdirected itself by incorrectly drawing a distinction between counts
2
and /15
-15-and 3 in finding no extenuating circumstances in count 2. According
to him, because the two murders were committed within minutes
of each other ,
the factors affecting moral blameworthiness which justified the finding of
extenuating circumstances in count 3 were
necessarily also present in count 2.
He referred the court to the fact that the trial court had granted the
appellants leave to appeal
because of the possibility that another court might
hold that in distinguishing between counts 2 and 3 its approach was academic.
It
is not clear what the trial court had meant by the word "academic" in this
context. Mrs
Steyn
for the State suggests that the trial court could have
intended to convey
that /16
-16-that its approach may possibly be seen as somewhat of an
"armchair" assessment of the evidence.
However, it appears from the judgment in
the
application for leave to appeal that the trial
court
also said:
"It was the view of the Trial Court that a distinction could and should be
drawn between the murder of the troublemaker, Mbongiseni,
and the slaughtering
of the innocent child Siba Dlamini. We came to this conclusion, particularly in
the light of the evidence that
he pleaded for his life. It was the view of the
Trial Court that this in itself should have brought these people to their senses
and that their act in thereafter continuing with the killing, distinguished the
killing of Siba from that of Mbon-giseni."
It /17
-17-It is reasonably clear from the reasons of the trial court that
in the case of Mbongiseni it had regard to the fact that the attack
on him could
be related to the part he had in the past in the hostilities that existed in the
reserve. This was a consideration which
clearly did not apply in the case of
Siba. The attack on him was nothing less than cold blooded.
I am of the view that the approach of the trial court was perfectly regular
and proper and it was fully entitled to draw the distinction.
I am not pursuaded that the trial court mis-directed itself in this respect
or in any other respects.
In /18
-18-In the result the appeal is
dismissed.
ACTING JUDGE OF APPEAL
RABIE, A CJ)
concur HEFER, JA)