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1989
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[1989] ZASCA 26
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S v Nyide and Others (348/88) [1989] ZASCA 26 (23 March 1989)
Case no 348/88 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between
SIPHO EMMANUEL NYIDE
......... First Appellant
LUCKY CLERMENT
LUTHULI
.......... Second Appellant
JEFFREY BONGANI BHENGU
..........
Third Appellant
and
THE STATE
.... Respondent
CORAM:
HEFER, KUMLEBEN JJA et NICHOLAS AJA.
HEARD:
16 March
1989.
DELIVERED:
23 March 1989.
JUDGMENT
NICHOLAS AJA/...
2/...
2
NICHOLAS AJA
:-
In 1987 the South Western corner
of the intersection between Umgeni and Adrian Roads, Stamford Hill, Durban, was
the nightly haunt
of pimps and prostitutes. There 18-year old Gloria Gabela
plied her trade. But her youthful attractions were a dangerous snare for
the men
who came there in their motor cars. She habitually engaged in a variant of what
Americans call "the badger game". Her co-operators
were her pimp, Lucky Luthuli
(19), and his two friends, Sipho Nyide (22) and Bongani Bhengu (23). If she
successfully concluded a
deal with a white man whom she considered to be a
likely victim, she would, on getting into the car, make a signal to Lucky
Luthuli.
She would then direct the driver to the deserted yard of vacant
premises nearby, where the car would be parked. When Gloria and the
man were
engaged in what they had come to do, her co-operators would appear and confront
the man and demand money. He would, for
obvious reasons, ordinarily comply
readily with their demands,
3/...
3 and he would not complain to the police. There was evidence that
the game had been played almost nightly for about six months and
there had been
no police reaction.
At about 23h30 on 22 July 1987, Lucas Botha drove up to
the place in his red Sierra motorcar. He called Gloria to him. They had a
conversation, and agreed upon a fee of R10 for "a short time". She got into the
car. As she did so, she made a hand signal to Lucky
Luthuli, who was on a
verandah on the other side of the road with his two friends. Botha drove off
and, directed by Gloria, parked
the Sierra in the yard of a vacant property not
far away. The three co-operators came up to the car and opened a car door.
Gloria
got oút and ran away. Botha also got out, and tried to make an
escape. He did not succeed. He was brought down and the upper
part of the
tracksuit he was wearing was pulled off him. He was taken back to the premises
where his car was parked. There was a
struggle, in the course of which he was
stabbed. Then he was dragged into the
4/...
4 property. There he was found, lying dead behind his car,
some time later.
On
post mortem
examination he was found, in addition
to incidental wounds, to have a clean cut wound of the chest penetrating to the
apex of the
left ventricle; clean cut wounds of the pupils of both eyes;
fingernail-like abrasions on both sides of the throat; and a fracture
of the
left side of the hyoid bone. The forensic pathologist expressed the opinion that
death was caused by the stab-wound into the
heart, but he agreed in
cross-examination that it could have been caused by strangulation, as evidenced
by the fractured hyoid bone.
He could not say which of the two injuries was the
first one inflicted.
Arising out of this occurrence, four people appeared in
the Supreme Court in Durban before WILSON J and two assessors on two charges:
(1) murder, and (2) robbery with aggravating circumstances. They were Gloria
Gabela as accused
5/...
5 No 1; Sipho Nyide as accused No 2; Lucky Luthuli as
accused No 3; and Bongani Bhengu as accused No 4. All four of them pleaded not
guilty on both counts.
In his judgment WILSON J summarized the findings of
the trial court as follows :-
" we find that the four accused were all party
to a plot to rob any White client who appeared prosperous who engaged the
services of accused No 1 and whom she could induce to go
to the agreed spot. We
accept that in furtherance of this scheme accused No 1 did induce the deceased
to go to this spot and that
accused Nos 2, 3 and 4 proceeded independently to
it. We find that accused No 1 fled not from fear but to avoid embarrassment and
the possibility that the client might subsequently seek revenge against her if
she remained in the vicinity. We find that in the
circumstances the male accused
must have anticipated resistance and violence, but nevertheless proceed with
their plan. At that time
two of them at least were armed with knives. When the
deceased endeavoured to escape they pursued him and grappled with him. To
overcome
this resistance and to enable the search
of
6/...
6
the vehicle and the deceased to proceed and to enable them to carry out their
aim of robbery, accused No 2 stabbed the deceased.
In his wounded and bleeding
state, which was obvious to all of them, he was dragged back behind the car
where he collapsed. There
one of the three, or more than one, we do not know
precisely who played what part, finished him off by throttling him; thereafter
his eyes were stabbed and his shoes removed. We are satisfied that this was done
to ensure the safety of all three of them, that
is of all of those who had
participated in the previous assault and attempted robbery of the deceased with
the tacit or express approval
and support of each of them who was then present.
Thereafter the three of them left the scene to complete the evening's business
by apportioning out the goods they had stolen from the deceased's vehicie.
Accused No 2 then returned to the place of business whilst
3 and 4 got rid of
their bloodstained clothing."
Gloria Gabela was
convicted of robbery with aggravating circumstances but found not guilty of
murder. The other three accused were
convicted on both counts. The trial court
came to the unanimous conclusion that there were no extenuating
7/...
7
circumstances present in respect of any of the three male accused, and WILSON J
imposed sentences as follows :-
Accused No 1
. Count 1 - robbery with
aggravating
circumstances. 4 years' imprisonment.
half of which was conditionally suspended.
Accused Nos 2, 3 & 4
. In each case
-
Count 1 - robbery with aggravating circumstances.
7 years' imprisonment. Count 2 - murder. Sentence of death.
The learned judge granted leave tó accused Nos 2, 3 and 4 to appeal to
this court against the trial court's finding that there
were no extenuating
circumstances.
Discussing "the crime itself and the circumstances surrounding
it", WILSON J said in the judgment on extenuating circumstances:-
".... that the male accused were part of a gang determined to rob clients of
accused No 1, that in the present
8/...
8
instance when the client, that is the deceased, resisted, they grabbed and
searched him. When he endeavoured to escape they pursued
and grappled with him
and tried to return him forcibly to the vicinity of his car. This can only have
been done to ensure that they
were able to complete their planned robbery
without interference. By this stage all the accused were aware that violence had
been
used and each of them must (have foreseen) and did foresee the necessity
for further violence if they continued. Despite this they
did so and it was at
this stage, whilst accused Nos 3 and 4 were struggling with the deceased, that
accused No 2 stabbed him.
This was not something which could be laid at
accused No 2's door alone. It was part and parcel of the combined attack on the
deceased.
There can be no suggestion that any of the other accused were unaware
of what had been done by accused No 2. The stab-wound was in
the centre of the
chest above the heart in the direction of the heart, and the whole length of the
blade of the Okapi knife was plunged
into the chest of the deceased. All the
accused must have appreciated, and we are satisfied did appreciate, the
potentially lethal
nature of the injury inflicted.
Thereafter, whilst the deceased's blood was splattering onto accused 3 and
4's clothing, and whilst
9/...
9
he was still alive and able to speak, they dragged him back into the shadows
behind the car. When he collapsed to the ground, and
at a time when it was
obvious that he was grievously hurt, they ensured his silence by strangling
him.
It is impossible, on the medical evidence, to say
which of the two
wounds caused by the accused was the
proximate cause of death. Either of the
injuries could
have killed him. In all probability they both did.
Having
achieved their purpose they cut his eyes as a
further safety device and then
removed his shoes
Unperturbed by what they had done the accused continued
their search of the deceased's car, gathered up the stolen goods and departed
to
a nearby house to share out their spoils. This is yet further proof that they
expected no further interference from the deceased.
There is nothing in this
terrible saga to provide any shred of extenuation in our opinion. It was argued
that there was an absence
of premeditatión or a minimal participation by
some of the accused. This may have been true up till the time they encountered
the deceased standing outside his motor-car. Thereafter they pursued their aim,
that is to rob the deceased with a coldblooded and
single-minded ruthlessness.
It was argued on their behalf in this regard that there
10/...
10
had been no trouble in the past. This is true. Had they allowed the deceased to
flee on this occasion it is probable there would
have been no trouble then. They
were not prepared to do so. Even after the deceased had been stabbed they were
not deterred. Nothing,
including the life of the deceased, was to be allowed to
stand in their way, nor did it.
We are satisfied that no extenuation can be found in the offence, the
circumstances leading up to or surrounding it or the motives
for
it."
Counsel for the appellants criticized oniy two
statements in this part of the judgment: that dealing with absence of
premeditation;
and the characterization of the aim of the accused as being "to
rob the deceased with a coldblooded and single-minded ruthlessness."
They
submitted that the triai court erred in not giving more weight to the absence of
premeditation. I do not agree. It may well be
that when the accused left the
corner in Umgeni Road to go after Botha's car, it did not occur to any of them
that events would not
follow their normal course. But absence
11/...
11
of premeditation is a non-circumstance and is not in itself
extenuating. The important question in such a case is, what was it that
impelled
the accused all of a sudden to resort to violence? The answer in this case is
plain: it was a determination to prevent the
escape of their prey and to crush
his resistance in order that they might effectuate their purpose of robbery.
That is not extenuating.
It was submitted that the trial court
over-emphasized the brutality of the conduct of the accused and the gravity of
the crime - that
the circumstance do not necessarily indicate "a cold-blooded
and single-minded ruthlessness". In my opinion this characterization
was in no
way inaccurate. Botha was helpless and defenceless and no doubt terrified. The
three accused made a concerted attack upon
him, and they persisted in it until
he was dead.
The trial court experienced difficulty in dealing with the cases
of the accused individually, because none of them
12/...
12 elected to give evidence in extenuation and the court
had perforce to rely solely on the evidence already before it.
Dealing with the case of Sipho Nyide,
accused No 2
, WILSON J
said:-
Accused No 2, a man of twenty-one years of age at the time, appeared to us to be
a vicious gangster. He was an active participant
in the gang who made a living
robbing the clients of prostitutes who plied their trade in the area. On his own
evidence he had done
so in the past and willingly joined in again on the evening
in question. He stabbed the deceased deliberately at a time when there
was no
need to do so other than to ensure that the robbery could proceed.
He showed no sign of remorse in the witness box, nor did any emerge in the
reading of his Section 119 statement to the
Magistrate."
The word "gangster", with its emotional
overtones, may be unduly pejorative, but of the fact that he was vicious his
conduct left
no doubt. When Botha's arms were being held by one of the accused
on either side, accused No 2 walked up to him and
13/...
13 stabbed him in his naked chest.
No 2's counsel submitted that his age
(21) (having regard to his low level of education (Std IV) and the fact that
force had not previously
been used) required careful consideration. It is true
that the accused was a young man, but there is no indication that immaturity
had
any influence in the perpetration of the offence. Neither his standard of
education, nor the fact that he had not previously
used violence (another
non-circumstance) can serve to reduce his moral guilt.
Nor was it relevant
that he "was only casually employed, and his lifestyle was extremely basic" or
that "he had only one previous
conviction".
In regard to Lucky Luthuli,
accused No 3, WILSON J said :-
"Áccused No 3, despite his age, appeared to us to be a street-wise,
amoral thug. He was pimp to accused No 1, took her earnings
from her and preyed
upon her clients. He was, in addition, a gambler who
visited
14/...
14
the railway workers after pay day on each month to gamble with them. He was
anything but the immature, unsophisticated young man his
counsel tried to make
him hout. On the evidence it appears that he was probably the leader of the
gang. Accused No 4 certainly regarded
him as such and after the crime he sent
accused No 2 to carry a message to his girlfriend, accused No 1, at her place of
business
whilst he changed his bloodstained clothes. We are satisfied that his
youth played no part in the commission of the offence. He showed
no signs of
immaturity nor did the evidence as to his behaviour cisclose any. If he was
influenced by any other factor it was by
his own innate viciousness. He was
eighteen years ten months old when the offence was committed. In most cases
this, in itself, would
provide extenuating circumstances. However in this case
the personality of the accused, as it emerges from the evidence I have already
dealt with, and his behaviour are such that we are unable to come to this
conclusion. Although his mother was called as a witness
as to his age, and we
accept her evidence that he was born on the 29th of September 1968, she was not
asked to give any evidence
as to his past behaviour, conduct or personality. I
drew his counsel's attention to the fact that there was no evidence in this
regard
before us and he stated he was
15/...
15
aware of the fact and made no attempt to elucidate anything further from her. In
these circumstances, and in the light of the evidence
that accused No 2 had
given about accused No 3's past, I judged it wiser to be guided by counsel and
myself asked no further questions.
Counsel was, after all, aware of what
evidence the witness could have given and I certainly did not want to elucidate
anything from
her that might have prejudiced the
accused.
Apart from the fact that I do not think
that it is helpful to use a word like "thug", I do not consider that this
assessment of No
3 is to be faulted.
It was argued that the trial court did
not pay sufficient regard to the youthfulness and immaturity of this accused,
but it is apparent
from the judgment that the trial court had careful regard to
his age.
Counsel for this accused made a submission in regard to the onus of
proof in regard to age which I did not understand. The fact is
that his age was
proved by his mother and her
16/...
16
evidence was not challenged and it was accepted by the court.
It was also submitted that the trial judge should have called for the
report of
a probation officer. On the issue of extenuating circumstances the onus was on
the accused, and there was no suggestion
by his counsel at the trial that such a
report would have been useful.
Two other arguments were advanced on behalf of
this accused. Neither bears examination. The first was that the accused held the
superstitious
belief that the police are able to photograph the eyes of a dead
man to discover the identity of his murderer - this indicated subnormal
intelligence. There is no warrant for this conclusion. The other was that
"The deceased had placed himself in disgraceful circumstances of having to
procure prostitutes thus falling prey of the appellants
who wanted to capitalise
on the helpless situation of clients who did not want to be publicised by having
to lay charges against
the assailants."
17/...
17
That may be so, but it does not provide extenuation
for the
conduct of those who exploited his weakness.
In regard to Bongani
Bhengu, accused No 4, WILSON J said in the judgment on extenuating
circumstances:
"Accused No 4, on the face of it, played in some ways a lesser role than that of
the other two accused. There is, for example, no
evidence that he was armed.
Nevertheless he joined the others in the attack on the deceased and played his
part in it. This included
searching the deceased, pursuing him and holding him.
We are satisfied he played an active part throughout the attack or attacks
on
the deceased. Afterwards he provided accused No 3 with clean clothing and took
custody of his bloodstained clothes. It is true
he was perhaps a clumsy, stupid
and inept liar. This, however, does not show that he was either immature or of a
low average intelligence.
An ability to lie readily or consistently is neither a
sign of maturity nor intelligence. It may be that he was persuaded to join
the
planned robbery and did so reluctantly. He unfortunately, however, did not tell
us so after his attempts to exculpate himself
at the scene had been rejected by
us as untrue. It was open to him to give
18/...
18
evidence in extenuation. He did not do so."
Counsel urged that in the case of No 4 the following constituted extenuating
circumstances:-
(a)
The lesser role which he
played.
(b)
Absence of
premeditation.
(c)
Dolus
eventualis
.
(d) Youthfulness and immaturity - he is 23 years of age.
(e) Possibly he was influenced by No 3, whom he regarded as the
leader,
The trial court dealt with his
lesser role. An age of 23 is in itself not evidence of immaturity. Possible
influence by others was
not shown. In the circumstances of this case the fact
that he may not have had a direct intention to kill is not relevant to
extenuation.
The conclusion is that it has not been shown in the case of any
of the accused that there is any ground for
19/...
19
interfering with the findings of the trial court. The appeals are
dismissed.
H.C. NICHOLAS
AJA
.
HEFER JA )
KUMLEBEN JA) Concur.