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1988
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[1988] ZASCA 15
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S v Mchunu (414/87) [1988] ZASCA 15 (18 March 1988)
KHETHOKUHLE STEPHEN MCHUNU
Appellant
and
THE STATE
Respondent
Case No. 414/87
mp
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
KHETHOKUHLE STEPHEN MCHUNU
Appellant
(Accused No 1 in Court
a quo
)(In custody)
and
THE STATE
Respondent
CORAM:
RABIE, ACJ, JANSEN et STEYN,
JJA
HEARD:
26 February 1988
DELIVERED
: 18 March 1988
JUDGMENT
STEYN,
JA
2.
STEYN, JA,
Appellant was condemned to death on February 13, 1987 by WILSON, J sitting
with assessors in the Durban and Coast Local Division,
for the murder of
Zithulele Antony Ngcobo, (the deceased) at Ezinyathini Reserve in the district
of Umbumbulu, the Court having found
that there were no extenuating
circumstances. Appellant now appeals with leave of the learned trial Judge
against that finding and
also against the death sentence imposed in consequence
thereof. Leave to appeal against the conviction was refused.
At the trial appellant was the first accused and one Vincent Skotshi Shozi,
the second. They were jointly charged on two counts with
having respectively
robbed and murdered the deceased at the aforementioned place on June 27, 1986.
On the first count it was alleged
that they robbed the deceased of approximately
R154,00 in cash,
and
3.
and of meat, groceries and cigarettes, under aggravating circumstances. Both
pleaded not guilty on both counts and each was represented
by
pro deo
counsel. At the conclusion of the trial accused no 1 was convicted on the murder
count and accused no 2 acquitted, but both were
con= victed on the robbery count
as charged and sentenced thereon to 10 years' imprisonment each. Neither of them
sought leave to
appeal against the robbery convictions or sentences.
The trial Court's findings of fact upon which appellant's conviction was
based are not in issue in this appeal and can be summarised
as follows:
On the 27th June 1986 both accused were 26 years of age and unemployed. They
were assisted in the robbery by a then 18 year old youth,
Michael Nkomo
(Michael), who gave evidence for the State at the trial. He was then also
unemployed. The three of them and the deceased
lived in the same area within the
reserve and were known to each
other
4.
other. To the knowledge of both accused the deceased was employed by the
South African Transport Services. He was so employed at Rossburgh
at a monthly
salary of R305.12 and was paid on the aforementioned date, a Friday. For some or
other reason he was nicknamed "the
Plumber" although that was not the capacity
in which he was employed.
A tarred main road passes through the Ezinyathini Reserve. There is a bus
service along that road with a number of stops in the reserve
for the benefit of
the travelling public. The deceased used that service to come home from work for
week-ends and it was his wont
to alight at the nearest bus-stop and to walk home
along an untarred side-road branching off from the main road at or close to that
stop.
At about llhOO on Friday the 27th June 1986 the witness Michael arrived at a
shebeen in the reserve. There he found appellant and
Vincent Shozi (accused no
2).
The
5.
The shebeen is at a place called Dayimani. The three of them lived nearby. At
the request of the shebeen's owner they assisted in
the slaughtering and
skinning of four head of cattle and in the cutting-up of the meat. They were so
engaged from about 12 noon to
about 5 pm at the shebeen owner's dwelling which
shares a common yard with the shebeen. He provided them with a container of Zulu
beer to drink and a quantity of meat to roast and eat. They did so at intervals
throughout the day. At about 6 pm they left the shebeen
and went to appellant's
kraal. Despite the beer they had imbided during the course of the day, none of
them was to any marked extent
under the influence of liquor.
At appellant's kraal the three of them listened to music from cassettes.
After a while appellant, who is
a strikingly tall and obviously very strong man, said to his two companions
that he knew deceased was paid on the 27th of each month
and suggested that they
waylay him near the
bus-stop
6. bus-stop where he usually alights and rob him. Accused no 2
and Michael were willing to do so and appellant then armed them with
a plain
stick and a knobstick respectively. Appellant was not visibly armed and when
asked about that by Michael, replied "no, I
am allright". Appellant did not say
how the deceased was to be robbed but when asked by Michael replied that they
would grab him
and take his money away from him.
The three of them then went to the vicinity of the aforementioned bus-stop
and hid in the long grass next to the side-road. At about
7.15 pm, when it was
already dark, the bus arrived at the stop and only the deceased alighted
therefrom. He was carrying a plastic
bag and an empty beer bottle. He then
proceeded along the side road. Appellant and his fellow malefactors allowed him
to walk past
themand then pounced upon him from behind. The deceased resisted
but appellant and accused no 2 held him and Michael removed money
from
his
7.
his back trouser pocket. Having done so Michael said to his
companions "here is the money; I have taken it out; let us run away."
He then
ran away followed by accused no 2. Appellant remained behind. As they were
running away Michael heard the deceased say "Stephan,
what are you doing to me?
Stephan, it is me, the Plumber". Stephan is a name by which appellant is known.
Michael did not, however,
see what was happening between appellant and deceased.
He and accused no 2 ran into a canefield next to the side-road and hid there.
Shortly thereafter Michael heard appellant whistling at the spot where they had
robbed the deceased. He and accused no 2 then left
the cane field and went in
the direction of that spot. On the way they met appellant who had in his turn
moved towards them. He then
had an open and bloodstained Okapi clasp knife in
one hand and the deceased's plastic bag in the other. When asked by Michael
where
he had been all the time, appellant replied "Brothers, I have killed
Zithulele because he
called
8.
called me by my name. He would have had me arrested at any time, that is why
I chose to kill him." When then asked by Michael and
accused no 2 why he killed
deceased as they had already taken the money from him, appellant explained
"there was nothing I could
do about it, he had already called me by my
name."
They then returned to appellant's home where they divided the money, each
receiving R49.00. There remained a balance of R7.00 which
they used to buy
liquor for themselves. They also examined the plastic bag for its contents. It
was found to contain, bread, Rama
margarine, meat and two twenty-cigarette
packets of Peter Stuyvesant. The three of them spent the night at appellant.'s
place. They
consumed the edible contents of the plastic bag, the meat being
eaten the next morning by the three of them and appellant's brothers.
Michael
left appellant's kraal at 09h30 next morning. He was arrested during July
1986.
Deceased's
9. Deceased's body was discovered shortly after he had been
murdered. His brother was on his way home and found the corpse lying in
the
side-road about 50 - 60 metres from the main road. It was then about 7.30 pm.
The deceased lay about 200 metres from.his home.
At the post mortem examination, the report whereof was admitted, deceased's
corpse was found to have 24 penetrating stab wounds, most
of which were
concentrated around the left nipple. Four of them penetrated the heart and
caused the death.
Accused no 2 was acquitted of the murder because it was found that no common
purpose to kill had been proved and that it was clear
that neither he nor
Michael had anticipated such a consequence.
The finding of the trial Court that there were no extenuating circumstances
was set out by
WILSON, J in these terms:
"WILSON, J
10.
"
WILSON J
Accused No 1 has been convicted of the crime of murder. Your
counsel has contended that there are extenuating circumstances present
on two
bases. The first is your consumption of liquor, and the second is that you only
killed the deceased after he recognised you,
and if he had not said he
recognised you, you would not have done it.
As regards the consumption of liquor, three of the persons who were there
gave evidence - the witness, Michael, yourself, and accused
no 2. None of you
suggested that your judgment was influenced or clouded by the consumption of
liquor. We accept the fact that you
had been drinking liquor that afternoon at
the beer hall,
that you had been drinking Zulu beer. We are
aware of the fact that this is an intoxicating liquor, and it is likely that
you would have
consumed a fair quantity having regard to the
time that was
spent there. We are aware of the effect that liquor may have on a
person's
self-control. But we are not satisfied that the
consumption of
liquor on the day in question in any way affected your judgment, your
appreciation of the factual position, or could
in any way constitute a factor
which reduces your moral
blameworthiness.
You and the other accused deliberately planned to rob an acquaintance, a
person who lived in the same neighbourhood as you, as he
returned from work.
This in itself is a despicable act, but the moral aspects of that do not concern
us at
the moment.
What
11.
What does concern us is that as soon as it became clear that this man had
recognised you, even though it was along a dark path, with
no lighting, you took
steps to shut his mouth forever. Apparently without any hesitation or scruples
you immediately decided to kill
him, and did so. This was to save your skin. And
we do not think that your decision to do this was in any way as a result of the
liquor you had consumed. We accept that the reason why you killed the deceased
was because he had recognised you. This does not,
in our view, constitute an
extenuating circumstance. We recognise that it was a decision that you came to
at the time. You did not
have time to consider or ponder over it. It was not
premeditated. But nevertheless, it showed a total disregard for the life of a
fellow human being, a complete callousness. And we do not accept that the fact
that you killed a man to save your own skin can in
itself constitute extenuating
circumstances.
You are a man of twenty six. There is no suggestion that you were provoked in
any way by the deceased. There is no suggestion, in
our view, of any other
factors being present which could constitute extenuating circumstances.
Your conduct after the event does not indicate any remorse on your part for
what you had done. This strengthens our belief that your
decision to kill him
was a deliberate decision, firmly made by you.
We are accordingly unanimously of the decision
that there are no extenuating circumstances present".
In
12.
In arguing the appeal on appellant's behalf Mr Rand, who also
represented him at the trial, again con= tended that the appellant was
"strongly
under the influence of liquor on the day he stabbed the deceased", and, as I
understand the real intention of counsel,
clearly also at the time of the
stabbing.
Mr Rand relied upon the following facts as indications thereof. (I quote from
his heads of argument):
"(a) appellant was drinking intoxicating liquor off and on from about llhOO to
about 18h00;
(b) he stated that he stabbed the deceased once with a
knife;
(c) he stated that he stabbed
the deceased once
with a knife on the stomach in the vicinity of the
navel."
Counsel contended that the location and number
of
wounds found on the deceased at the post-mortem
examination clearly prove that appellant was "mistaken as to the number of stab
wounds
inflicted and the position of the stab wounds"
and
13.
and that "these circumstances indicate that the appellant was strongly
affected by the liquor he had consumed."
This is not, however, borne out by the evidence. There is in fact no
indication thereof. The trial Court accepted Michael's evidence
that they were
not heavily under the influence of liquor and appellant himself tellingly
refuted any suggestion that he was so affected.
He did this during
cross-examination by counsel for accused no 2. (I give both question and answer
):
"Mr Mchunu, you told the Court that during
that morning you were drinking?
Yes. We drank very little though"
Counsel referred
to "that morning", but from further exchanges it is clear that appellant was
referring to his consumption of liquor
at Dayimani during the slaughtering of
the cattle, of which he was aware but denied participating in.
Faced with these difficulties, Mr Rand adopted a more modest line of approach
and contended during oral
argument .
14.
argument that appellant bungled the operation by bad planning in not
realising that they should have been masked in order to prevent
recognition by
the deceased and that this ineptness must have been due to his being then at
least "to an extent under the influence
of liquor." There is no merit in this
contention. Appellant never said so and there is nothing in the evidence
justifying such an
inference. Being cloaked in darkness when assailing the
deceased appellant could very well have thought that he was thereby sufficiently
protected against recognition.
Appellant's "mistakes" in describing the way he stabbed the deceased acquire
a particular significance when regarded in the context
of his evidence as a
whole. He in fact sought to exculpate himself at the expense of his colleagues.
His version of the occurrence
(which was rejected by the trial Court) was that
deceased, with whom he had had serious trouble in the past, attacked him with
a
knife
15.
knife as he was hurrying on his way along the side-road to
catch a bus; that he disarmed the deceased by kicking the knife out of
his hand
and then stabbed him once only, and in the stomach, in self-defence. Accused no
2 and Michael, who incidentally happened
to be close behind appellant when he
repulsed the deceased and who were each carrying a stick, then grabbed the
deceased, whom he
heard screaming whilst rushing off to the bus. On the
following morning accused no 2 told him "we killed that man yesterday because
he
recognised us. I wanted money so as to support my children; I am unemployed and
I have been unemployed for a long time." Accused
no 2 and Michael brought
appellant some meat that morning and laughed at him when he asked where they had
obtained it. Accused no
2 then also gave him R45.00 and later that day told him
the money came from the deceased whom they had robbed and killed. Appellant
nevertheless used the money. He apparently thought he could not extricate
himself entirely from the occurrence, and clearly strove
to satisfy ........
16.
satisfy the trial Court that it was not he but
accused no 2 and Michael who fatally wounded the deceased and that all the
injuries
but one had been inflicted by them. Why appellant chose to say that he
had stabbed the deceased in the stomach is unclear. There
may be various reasons
therefor. But to my mind it is quite clear that appellant's version and
so-called "mistakes" are not the products
of a recollection clouded by alcohol
but of a sharply perceptive mind seeking to extricate itself from grave trouble
by the device
of transferring the blame for the murder to accomplices in the
robbery.
The suggestion by Mr Rand that the robbery and the murder so closely
interwoven therewith, had been the result of hardship and dire
financial need
suffered by the appellant and his two associates as a result of being unemployed
and that such hardship and need constitute
an extenuating circumstance has no
foundation of fact. The
only
17.
only mention thereof is by appellant in recounting what
accused no 2 allegedly said to him on Saturday morning, the 28th of June.
But
the trial Court did not believe him and he did not say that he himself suffered
any such hardship or need. There is,therefore,
no merit in this contention.
The only other fact from which Mr Rand sought to extract extenuation is the
excessive wounding of the deceased, which, so he contended,
indicates that
appellant was so shocked at being unexpectedly recognised by the deceased that
he lost all control of himself and
impulsively "embarked upon a frenzy of
unnecessary excessive stabbing", thus killing the deceased without any
premeditation. There
is also no merit in this contention. I have nothing to add
to what was said by the learned Judge in this respect except to say that
appellant's report to his accomplices immediately after the murder was clear,
concise
and
18. and to the point and contained no indication of any loss of
control or frenzy, and that the gross wounding of deceased was, if
anything, an
indication of appellant's determination to kill him at all costs.
The finding of the trial Court cannot be faulted in any way.
The appeal is dismissed.
M T STEYN, JA
RABIE, ACJ ) CONCUR JANSEN, JA )