About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1989
>>
[1989] ZASCA 31
|
|
S v Mvelase and Another (347/88) [1989] ZASCA 31 (30 March 1989)
Case No 347/88 /MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
ERIC BONGANI MVELASE
FIRST APPELLANT
JABULANE MSWANE
SECOND APPELLANT
- and -
THE STATE
RESPONDENT
CORAM
: JOUBERT, VIVIER et STEYN JJA.
HEARD:
10 March 1989.
DELIVERED:
30 March 1989.
JUDGMENT
VIVIER JA.
/...
2.
VIVIER JA:
The two appellants, to whom I shall refer as accused no's 1 and 2
respectively, and one Vusumuzi Lucas Miya, to whom I shall refer
as|accused no
3, were convicted by THIRION J and two assessors in the Circuit Court at
Ladysmith on one count of murder and one count
of attempted murder. Accused no 1
was also found guilty of the theft of a motor vehicle. In respect of the count
of murder no extenuating
circumstances were found either in the case of accused
no I or accused no 2 and they were both sentehced to death. In respect of
the
count of attempted murder accused no's 1 and 2 were each sentenced to 3 years'
imprisonment. For the theft of the motor vehicle
accused no 1 was sentenced to
one year's imprisonment which was
ordered / ....
3.
ordered to run concurrently with the sentence imposed for
the
attempted murder. Accused no 3, a youth of under 18 years
of age, was
sentenced to 9 years' imprisonment for the murder
and the attempted murder,
those counts taken together for the
purposes of sentence. With the leave of
the trial Judge
accused no's 1 and 2 appeal to this Court against the
findings
that there were no extenuating circumstances and the
consequent
sentences of death imposed on them. There is no appeal
by
accused no 3.
According to the facts found by the trial Court
the
events which led to the murder and the attempted
murder were
the following. Cyril Zondi ("the deceased") was a taxi
driver
and was employed by one Bongani Malunga, who was assisted in
running/...
4.
running the taxi business by his brother Eric
Malunga.
During the afternoon of 25 November 1986 accused no 1
approached
the deceased at a taxi rank in Durban and asked to be
conveyed
to Ladysmith. The deceased referred him to Eric Malunga and
he
told the latter that he required a taxi to convey wedding guests
from
Ladysmith to Ntuzuma at KwaMashu for his brother's wedding
which was to take
place the next day. After the wedding the
guests would have to be taken back
to Ladysmith. They agreed
on a fare of R800-00 which was to be paid to the
deceased after
the completion of the journey. Later that afternoon
the
deceased and accused no 1 left for Ladysmith in the deceased's
taxi, a
Kombi, which was the vehicle subsequently stolen by
accused no 1. They were
accompanied by one Sithembiso Phewa,
a friend of the deceased, who often used
to accompany the
deceased/....
5.
deceased on his journeys.
Late that evening they arrived in
the Mziyonke rural area beyond Ladysmith where accused no 1 told the deceased to
stop at a certain
kraal. He left the other two waiting in the Kombi and returned
after about an hour, accompanied by three men: accused no's 2 and
3 and one
Mafotho Mkhonza ("Mkhonza"). The four of them were wearing balaclava caps which
covered their faces. They boarded the taxi
and accused no 1 told the deceased to
drive to a certain place where, he said, they would pick up some girls. It was
then about midnight.
After they had travelled for some distance,accused no 1
told the deceased to stop as he wanted to relieve himself. He also told the
deceased to switch off the Kombi's engine.
The / ...
6. The three accused and Mkhonza got out of the
Kombi and when Phewa looked back from his seat in the front of the Kombi he saw
accused
no 1 standing next to the Kombi with a gun in his hand. Phewa bent down
to change a cassette in the cassette player and at that moment
a shot was fired
from behind which struck him a glancing blow at the back of his head. At the
same time he saw the deceased slumped
over the steering wheel. The next moment
Phewa was pulled from the Kombi, dragged into
a bush and left there. From
what one of the others said he gathered that they thought that he was dead. From
where he lay he heard
several more gunshots being fired. The Kombi then drove
off and after a while Phewa made his escape and eventually managed to notify
the
police.
At/....
7. At about ten o'clock the next morning accused no 1
reported to an unsuspecting Sergeant Mhlaba at the Ezakheni police station that
he had earlier that morning come across the body of a dead man lying next to the
road in the Mziyonke area. He told the policeman
that it appeared as if the man
had been killed in a fight. Secgeant Mhlaba took a statement from accused no 1
and then allowed him
to go. Half anhour later Detective Constable Ndlela found
the body of the deceased lying in a bush about 30 metres off the road between
Ezakheni and Helpmekaar in the Mziyonke area. From blood and drag marks which he
observed on the road it appeared to him as if the
body had been dragged from the
road to where it was found. The
post mortem
examination revealed that the
deceased had been
shot/....
8.
shot in the head twice: one bullet struck him just above
the right eye and one just above the left eye. The cause
of death was a brain injury due to the first-mentioned wound.
The following day Detective Sergeant Collins
and
other members of the police force observed
accused no 1 driving
the Kombi on the road between Helpmekaar and Ladysmith.
A chase at high
speed followed and after the police had opened
fire on the Kombi it left the
road and accused no 1 managed to
escape into the bush. He was only arrested
on 10 February 1987.
Mkhonza was arrested on the same day but he subsequently
escaped
and was still at large at the time of the trial. Accused no's
2
and 3 were arrested shortly afterwards. Two revolvers which
had been
used in the murder were recovered from accused no's
2 and 3 respectively.
At/...
9.
At the trial all three accused gave evidence
before
they were convicted. Accused no 1 later again
testified on
the issue of extenuating circumstances, and he then gave a
version of the
events which was completely different from the
one which he had previously
given and which the trial Court
had rejected. The trial Court accepted the
later version
for the purpose of extenuation. That version is as follows.
Accused no 1
said that his father was killed during 1984.
He subsequently heard from one
Mgaga that a policeman, who
was in love with his stepmother, had shot his
father. Mgaga
told him that he knew the identity of the policeman and he
suggested that, since they could do nothing to him as he was always armed,
they should kill his son, who was the deceased. Mgaga
suggested/....
10. suggested that they get Mkhonza to do the
killing. Accused no 1 agreed. Mgaga then took accused no 1 to a taxi rank in
Durban
where he pointed out the deceased and he proceeded to make the necessary
arrangements with Mkhonza. He also gave him money. Accused
no 1 testified that
when he arrived at Mkhonza's house on the evening in question the latter was
expecting him. Mkhonza told him
that his own gun had been confiscated by the
police. They approached accused no's 2 and 3 who both had guns and they agreed
to do
the killing. Accused no 1 testified that before they boarded the taxi they
arranged that after reaching a certain spot accused no
1 would ask the deceased
to stop. Accused no's 2 and 3 would then shoot the deceasêd. Everything
went according to plan
except/...
11.
except that Phewa was accidentally shot.
Accused no 2
admitted in his evidence that he had shot the deceased. He said that he fired
once and that when he pulled the trigger
a second time the gun did not fire. He
denied that he and accused no 3 were promised anything as a reward for killing
the deceased.
Accused no 2 said that he had picked up the revolver with which he
shot the deceased a week or two before. On the evening in question
he was
already asleep at home when he was awakened by Mkhonza and accused no's 1 and 3,
all of whom were well-known to him. Mkhonza
told him that certain people from
Durban, who had arrived with accused no 1, had to be killed since they had
killed the latter's
father. Accused no 2's evidence that Mkhonza forced him
to
accompany / ....
12. accompany them and to shoot the deceased,
was rejected by the trial Court. The Court held that he voluntarily partici=
pated in
the perpetration of the murder. Accused no 2's evidence that Mkhonza
supplied the ammunition for his revolver and that Mkhonza had
to show him how to
use the revolver, was rejected by the trial Court, As far as accused no 3 is
con= cerned, he admitted that he
fired twice at Phewa after accused no 2 had
shot the deceased. His evidence that he had acted under duress was rejected by
the trial
Court.
In his judgment on extenuation the trial Judge
said
that accused no l's desire for revenge could
not be regarded
as an extenuating circumstance. The learned Judge pointed
out that accused
no l's father had been killed as long ago as
1984 and that accused no 1 had
no firm evidence that the
deceased's / ....
13. deceased's father was responsible for the death of his own father. The
learned Judge also emphasised that an innocent victim had
been chosen simply
because it was easier to kill him than his father.
Dealing with the
submission made on behalf of accused no 1 that he had acted under the influence
of Mgaga, the trial Judge said that
Mgaga's influence did not appear to have
been a strong one. He pointed out that accused no 1 was employed in Johannesburg
and was
no longer living in the tribal and family environment of his home. While
it was true that Mgaga had first planted the seed in the
mind of accused no 1,
the latter had acted independently and with a will of his own in planning and
executing the killing. He also
had enough time
for / ....
14.
for reflection and must have realised that the deceased's
only sin wasthat his father was suspected of having killed accused no l's
father. In view of the fact that accused no 1 was employed and had shown that he
could act independently and with a will of his own,
his age (he was just under
21 years of age when the murder was committed) was not regarded as an
extenuating circumstance by the
trial Court.
In the case of accused no 2 the
trial judge said the following in his judgment on extenuation:-
"In considering the case against Accused No 2, the Court has to bear in mind
his youthfulness, the fact that at the time of the commission
of the crime he
was not yet 20. Counsel stressed this consideration and also the fact that as he
has submitted, Accused No 2 was
probably influenced by the older man Mafotho
Mkhonza. Now Accused No 2 was the best person to have
told/....
15.
told us the strength of the influence, if any, which Mafotho
exercised over him but he has chosen not to take the Court into his confidence.
His youthfulness is no doubt an important consideration. It is, however, also
relevant to consider Accused No 2's conduct during
the commission of the
offence. The manner in which he participated indicates that he was
able to play in a forceful manner the role allotted to him.| He was at least
sufficiently mature to consider the seriousness of the
undertaking. There is no
evidence of any period of employment but it seems as if Accused No 2 has moved
around. He has been to Johannesburg.
Accused No 2 also was not emotionally
affected at all. The probabilities are that he was influenced by the expectation
of a monetary
award."
It is well settled that this Court will not interfere with a trial Court's
finding that no extenuating ciccumstances exist, unless
such finding is vitiated
by misdirection or irregularity, or is one to which no reasonable court
could
have/
16.
have come. See
S v Ndlovu
1970(1) SA 430 (A) at
433
in
fine
and
S v Mongesi en Andere
1981(3) SA 204 (A) at 207 H
-
208 A.
Counsel for accused no 1 submitted before this
Court
that the trial Court misdirected itself in
over-emphasising
the fact that accused no l's father had been killed some
years
before the deceased was killed. I do not agree. In consi=
dering how
strong the sense of grievance was which accused no 1
harboured against the
deceased's father,the trial Court was
perfectly entitled, in my view, to have
regard to aspects such
as the time which had elapsed since the death of
accused no
l's father and how certain he was that the deceased's
father
was the man responsible. In my view the trial Court did not
over-emphasise /....
17. over-emphasise these aspects. In any event,
however strong accused no l's sense of grievance was, it did not, in my view,
reduce
his moral blameworthiness in killing an innocent man who had done him no
harm and who was killed merely because he was an easy target.
It was further
submitted that the trial Court did not attach sufficient weight to Mgaga's
influence over accused no 1. Although, as
the trial Judge has pointed out, the
idea was first mooted by Mgaga, accused no 1 needed no persuasion. He . readily
and fully accepted
the idea and acted entirely on his own in carrying out the
plan to kill the deceased. He alone was responsible for luring the deceased
to
the deserted spot where he was killed. There was no evidence to the effect
that / ...
18. that accused no 1 held Mgaga in awe or that he
revered him.
Nor was Mgaga present during the fateful journey. Accused no 1 alone made the
final arrangements with Mkhonza and saw to it that the
hired killers did what
was expected of them. In my view the trial Court's assessment of accused no 1 as
an intelligent person who
could act independently and with a will of his own,
seems entirely justified on the evidence. It was submitted that accused no 1
was
immature at the time of the murder. In my view his conduct throughout the events
shows the opposite.
On behalf of accused no 2 it was submitted before this
Court that he was influenced by Mkhonza and by his feelings of sympathy for
accused no 1. There is no factual
basis/....
19. basis for this submission. In his evidence before he was convicted
accused no 2 said that he had acted under duress, but this
evidence was rejected
by the trial Court. He did not use the opportunity to testify on the question of
extenuation in order to explain
why he participated in the murder or whether he
was in any way influenced thereto. Although he denied in his evidence before his
conviction that he had been promised any payment for his part in the killing,
his statement to the police does indicate that he expected
to be paid. Whatever
his reason or motive for the killing, the calculated, cold-blooded way in which
he shot the decêased who
was a total stranger to him, showed such
callousness and total disregard of human life that his moral blameworthiness was
not lessened.
Reliance/....
20. Reliance was placed on the fact that accused no
2 was roused from his sleep as indicating an absence of prior planning. On all
the evidence it is quite clear, however, that the murder had been planned some
time before the evening in guestion. Obviously accused
no 2 could not have known
of the exact time of arrival of accused no 1. The fact that he went to bed is
therefore no indication that
he was not expecting the others.
It was finally
submitted that the youthfulness of accused no 2 should be regarded as an
extenuating circumstance. The trial Court
carefully considered this aspect and
concluded that accused no 2 was not immature. The trial Court did not misdirect
itself in arriving
at this finding nor is it a finding
to / ....
21. to which no reasonable Court could have come.
In
the result the appeals of both accused no's 1 and 2 against the findings that
there were no extenuating circumstances and the conseguent
sentences of death
are dismissed.
W. VIVIER JA.
JOUBERT JA)
Concur. STEYN JA)