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 61
|
|
S v Mabaso and Others (412/88) [1989] ZASCA 61 (24 May 1989)
CG CASE NUMBER: 412/88
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PHINE
MICHAEL MABASO
Appellant no 1
MVAYISA SIPHAMANDLA
SITHOLE
Appellant no 2
B
H
EKIS
ITHA NZUZA
Appellant
no 3
MFILUSWA BHACILE ZUMA
Appellant no 4
and
THE STATE
Respondent
CORAM
: JOUBERT, VAN HEERDEN, VIVIER, STEYN, JJA.
et
NICHOLAS,
AJA.
HEARD
: 5 MAY 1989
DELIVERED
: 24
MAY 1989
JUDGMENT
STEYN, JA.
2
The appellants and John Benghu were convicted of murder by Law, J. and
assessors in the Zululand Circuit Local Division. Appellants
were respectively
accused no's 1, 2, 3 and 5. Benghu was accused no 4. In Benghu's case
extenuating circumstances were found to have
existed and he was sentenced to 7
years' imprisonment. None were found in respect of appellants and they were all
sentenced to death.
Law, J. gave appellants I , 2, and 4 leave to appeal against
their convictions and all four appellants leave to appeal against the
aforementioned finding and death sentences. The appellants were also convicted
of having been in unlawful possession of a 7,65 mm
Llama pistol and .38 Special
Astra revolver and sentenced to imprisonment for 18 months, but there is no
appeal against these convictions
and sentences.
The appeals of appellants 1
and 2 against their convictions were abandoned by Mr Suhr who appeared on
3
their behalf. He was correct in doing so. Those appeals had no
merit.
Initially all the accused pleaded not guilty on both counts. First and
second appellants pleaded duress. At the close of the State's
case third
appellant changed his plea on the murder count to one of guilty. He did not
testify on the merits. Neither did the fourth
accused, Bhengu. The others did
so. First appellant admitted that he was present when the deceased was shot and
that he was then
armed with a pistol but denied shooting the deceased. Second
appellant admitted shooting the deceased with a revolver but said that
he was
coerced by 1st, 3rd and 4th appellants to do so. Appellants 1 and 2 denied that
they had been paid to kill the deceased. The
Court rejected their allegations of
duress and found, inter alia on the evidence of passengers in the bus, that
first appellant had
also fired at the deceased. The other evidence accepted by
the trial Court proved that at least
4
three shots had been f ired in the bus, one with a 7,65 pistol and two with a
. 38 revolver. The deceased had three wounds, the fatal
one being a head wound.
The Court further found that first and second appellants had been paid to kill
the deceased and that they
were in fact hired assassins.
Fourth appellant
denied having had anything to do with the murder and maintained that he was
neither present at nor in any way involved
in its preparation or commission. In
effect his defence was akin to an alibi. Except in certaih respects pertaining
to his conviction,
which will be dealt with later, the facts relevant on the
merits to the commission of the murder, as found by the trial Court, are
consequently no longer in issue in this appeal. They are briefly as
follows.
The deceased was Simon Mthembu, a bus driver in the service of the
Washesha Bus Company at the time of his death. He was shot and
killed in the bus
he was
5
driving by appellants 1 and 2 on the 8th October 1987 near the bus stop in
the Mangete Reserve north of the Tugela river in Natal.
They had been recruited,
inter alios by third appellant, to murder the deceased for gain. At the time of
the murder appellants 1
and 2 were "taxi touts" employed at the taxi rank near
the Durban railway station. Appellants 3 and 4 were owners of taxis operating
from that rank. For an appreciable period before June 1987 taxis belonging to
third appellant had been operating on the route between
Durban and Eshowe. The
Washesha Bus Company was formed during June 1987 and commenced operating on the
same route during July at
a fare of R6,00 per passenger. The taxi fare was
R10,00 per person. Third appellant's taxis lost custom. This distressed him. A
few
days after the bus service commenced on that route a bus conductor in
service of the company, Velaphi Mhlongo, was confronted by
third appellant who
was accompanied by a group of people.
6
Third appellant addressed Mholongo, objected to the bus service and told him
to inform his employer that the employees of the bus
company would be killed if
the buses continued operating on that route. Whilst speaking to Mhlongo third
appellant grabbed his jacket
collar, shook him and repeatedly tapped him lightly
on the side of his head with an object which Mhlongo took to be a firearm. As
a
result of this incident Mhlongo refused to work again on the Eshowe route but
the bus company persisted with its service. The deceased
was a bus driver on
that route. On the 26th August 1987 he was in his bus which was parked at the
Berea Road railway station in Durban.
He was approached by a group of about 12
people, all armed with sticks. Third appellant was their leader and spokesman.
They forced
the conductor and passengers to leave the bus. Fourth appellant was
also a member of the group. They attempted to assault the deceased
but he
successfully repelled their onslaught by standing in the
7
narrow entrance of the bus and parrying their blows with the lifting-rod of a
jack. During the fracas third appellant swore at the
deceased and said to him
that although he thought he was a formidable fighter they would be the eventual
winners. One member of the
group wore a balaclava cap which covered his face.
During the course of the assault the deceased sustained an injury to his right
eyebrow and shin. Both injuries bled slightly. The bus was also damaged; one of
the door windows was broken.
On the day of the murder third appellant took
first and second appellants to the Mangete bus stop area in his red "Skyline"
motor
car and indicated to them that the deceased had to be shot there. He then
returned with them to Durban and took them to the terminus
from where the bus
driven by the deceased was waiting to depart for Eshowe. (The Court found on
evidence admissible only against
accused no 4, Bhengu, including a confession
by
8
him, that at third appellant's request he had recruited appellants 1 and 2 at
Estcourt for the purpose of killing the deceased and
had taken them to third
Appellant at the Durban railway station.) First and second appellants boarded
the bus and travelled in it
to the pre-determined killing area, followed by
third appellant in his aforementioned motor car. On arrival at the Mangete
Reserve
they requested the deceased to stop so that they could alight. He did
so. Whilst leaving the bus both of them fired at the deceased
and then made off
and escaped in third appellant's car which had stopped some distance behind the
bus. Third appellant returned with
them to Durban. The firearms were returned to
him and first and second appellants paid. (As already stated, the Court rejected
their
evidence that they had been compelled by third and fourth appellants under
threats of death, to kill the deceased. First appellant's
evidence that he had
merely to see to it that second appellant killed the
9
deceased and to shoot him should he refuse to do so and that he could not
recall having also fired a shot, was likewise rejected.
So also their denials
that they were paid for the killing.)
On October 10, 1987, police came to the
taxi rank in Durban and enquired from one of the taxi owners, Mbongeni Ntuli,
after the driver
of a red "Skyline" motor car, giving a description of the
person they were looking for. Before 8 October third appellant had told
Ntuli of
the contemplated murder and of the reason therefor. On the 9th October he told
Ntuli what had happened on the previous day.
Ntuli realised that it was third
appellant the police were looking for and warned him thereof on the same day.
That same afternoon
third appellant handed Ntuli four firearms including the two
used in the killing and told Ntuli he was leaving for Eshowe. Ntuli
hid the
firearms together with two of his own in a cushion cover at his home where they
were found
10
11 pm on the 16th October 1987 after Ntuli's dwelling had been pointed out to
them by third appellant who had been arrested earlier
that day.
I turn now to
the evidence implicating fourth appellant. He admitted having been a member of
the armed group which confronted the
deceased on August 26, 1987, as aforesaid,
and that he then also had a stick which, so he said, he merely carried because
of the
Zulu custom to do so. He said that he and the other members of the group
had been hectored by third appellant into accompanying him
to the deceased, that
a "stupid mob spirit" moved them to do so and that he was unaware of the purpose
of or reason for the confrontation
with the deceased. He did not hear what third
appellant said to the deceased but admitted gaining the impression that third
appellant
tried to intimidate him.
Ntuli was a state witness who was warned
as an accomplice by Law, J. in terms of sec 204(1) of the
11
Criminai Procedure Act, no 51 of 1977, at the request of
the State. He denied having in way been party to the
murder but was on his
own admission at least an accessory
after the fact to the murder. His
evidence was correctly
summed up as follows by Law, J. in the judgment on
the
merits:
"His evidence was, in summary, as follows. By occupation he is a taxi-operator
working from a rank at the Durban Railway Station.
He was on friendly terms with
accused no' s 3 and 5 who both operated taxis from the same rank, plying the
route between Durban and
Eshowe. After the Washesha Bus Company started
operating on the same route both accused no's 3 and 5 complained to him that as
a
result of the introduction of the bus service they had lost many passengers.
He too operated one of his four taxis on the same route
and also experienced a
loss of business. He was not too perturbed about this because he was able to
transfer his taxi to one of his
other routes. The reason for the decline in
business was that the bus fare was R6,00 whereas the fare charged by the taxis
was R10,00.
Shortly after the inception of the bus service accused no's 3 and 5
informed him that they had spoken to the driver of the Washesha
bus and told him
that the bus should not take on passengers in Durban for transportation to
Eshowe because that would kill the
taxi
12
drivers' business. Accused no's 3 and 5 complained that the bus driver had
not heeded their warning.
it appeared from Ntuli's evidence that he was charged with the task of
supervising the rank from which his taxis and those of accused
no's 3 and 5
operated. Early in September 1987 accused no's 3 and 5 again complained to him
about the effect of the bus service on
their businesses. Accused no 3 told him
that despite having assaulted the bus driver with a stick he still would not
listen to them.
Later accused no 3 informed him that he and accused no 5 had
decided to hire people to kill the bus driver. Accused no 5 confirmed
what
accused no 3 had said and assured him that their intentions were serious.
Accused no 3 informed him that they had already hired
people to do the job, they
would supply the people with firearms and the driver would be killed the
following day.
On the following day Ntuli travelled to Ladysmith to attend a meeting of taxi
operators, returning to Durban later the same day. He
did not see accused no's 3
and 5 again until about 9.00 am on the day after his return from Ladysmith.
Accused no 3 informed him
that everything had gone well and accused no 5 said
that they would be able to work well now, there would be a lot of work for them.
He inquired whether they had really killed the driver and no 5 confirmed that
they had. They all moved away from the spot where they
had been standing to a
more private place. Accused no 3 then
13
related that he and accused no 5 had taken the people who were going to do
the deed to the bus stop where the hirelings had boarded
the bus. They then
followed the bus in accused no 3' s red Skyline motor-car. After the bus crossed
the Tugela it stopped. When the
hirelings were alighting they heard reports of
the guns. They then ran to the motor-car, got in and accused no 3 drove back to
Durban.
Accused no 5 told him that the people they had hired were from Estcourt
and that they were each to be paid R600,00. ...
Under cross-examination by counsel for accused no 5 Ntuli said that accused
no's 3 and 5 had told him of the plan to kill the deceased
because they were
good friends and wanted his advice. Despite his warning that they would be
arrested they did not heed his advice
and persisted with their intentions. He
said that they came and reported that the deceased had been killed because he
was their friend
and they trusted him. He explained that he had agreed to keep
the firearms on behalf of accused no 3 because they were friends and
he wanted
to help accused no 3. It was put to Ntuli that he was falsely implicating
accused no 5 because in September 1987 he had
accused no 5 of having a
relationship with his wife. He brushed this suggestion aside as ridiculous and
challenged accused no 5 to
tell him what his wife's name is."
Appellants 1 and 2 testified as follows. They
14
were approached at the taxi rank in Durban on the morning of 8 October by
third appellant who was driving his red Skyline motor car.
Fourth appellant was
with him in the car. Third appellant told them to get into the car. They did so.
He then asked them to shoot
the driver of the bus plying between Durban and
Eshowe and offered them R1 200,00 to do so. They were to share the money equally
between them. They were unwilling to do so. Fourth appellant, who was armed with
a "big gun" (rifle), then threatened to kill them
should they refuse. They were
cowed into submission by this threat and agreed to do the killing. Fourth
appellant then instructed
third appellant to drive off and show them the bus
stop where the bus driver was to be killed. The four of them drove to the
Mangete
reserve where they were shown the bus stop. They then returned to Durban
where the bus in question was pointed out to them. On fourth
appellant's
instructions first appellant was given the pistol and
15
second appellant the revolver by third appellant. Fourth appellant then told
appellant no 1 to shoot the driver and appellant no 2
to shoot and kill first
appellant should he refuse to do so and threatened to kill first appellant
should he refuse to obey those
instructions. They were then given the bus fare
by third appellant and boarded the bus. After the deceased had been shot they
fled
the scene in the red Skyline driven by third appellant. Fourth appellant
was also in the car. Back at Durban they waited at the station
while third and
fourth appellants went off to hide the firearm. They were then taken back to
Estcourt in the Skyline. On the way
they were threatened by appellants 3 and 4
that they would be killed should they divulge to anybody what had happened.
Because they
feared being killed they told no one.
In testifying, fourth
appellant denied that the bus service had caused him to lose any custom on
his
16
taxis and maintained that he was unaware of any dissatisfaction or resentment
amongst the taxi operators caused by the introduction
of that service. He also
maintained that first and second appellants falsely implicated him because he
had refused to give them a
free lift from Estcourt to Durban on October 5, 1987
and they had then threatened to take revenge, saying "we will get you one day.
You will come back to Estcourt". When it was put to fourth appellant during
cross-examination on behalf of third appellant that he
(appellant no 4), had
played the leading role in organising the murder of the deceased, he replied
that third appellant was attempting
to implicate him falsely due to an enmity
between the two tribal factions to which they respectively belonged and also
because of
friction between them which was caused when he insisted, whilst third
appellant was still operating pirate taxis, that he had priority
above him in
picking up passengers at the taxi rank. He admitted,
17
however, that third appellant's brother was one of hls taxi drivers. He also
admitted that he went to Johannesburg on October 12 and
only returned on
November 25 when he surrendered himself to the police after consulting his
attorney. He alleged that he remained
in Transvaal with relatives for "about two
weeks" and that on his way back to Durban he was stranded "at a certain place"
en route
for longer than his Transvaal visit due to "motor car trouble". He
could not, however, remember the name of that place. And he could
not say what
the name of Ntuli's wife was.
Ntuli made several statements to the police
after his arrest but his main statement as a witness was only made after the
case against
him had been withdrawn. In his initial statement, exhibit M, which
he made on October 17, he denied all knowledge of the murder and
gave a false
account of his possession of the aforementioned firearms. He also gave
conflicting
18
accounts regarding the number of statements he had made.
The trial Court warned itself of the dangers
inherent in accomplice evidence, approached Ntuli's
version pertaining to
appellants on that basis and
accepted it. The Court dealt with him as
follows:
"The major criticism which was levelled at Ntuli by counsel for accused no 5 was
that he had given a totally false explanation for
his possession of the firearms
in his statement of the I7th October and had falsely denied any knowledge of or
involvement in the
murder of the deceased. This is a valid criticism and it
indicates that Ntuli is prepared to lie when it suits him to do so. However,
Ntuli had been arrested on the charge of murder and was in possession of
firearms which he knew had been used in the murder. He was
an accessory after
the fact to murder as he was assisting accused no 3 to avoid detection. This is
a more serious offence than unlawful
possession of firearms. In the
circumstances we find it understandable that his first reaction would be to make
a statement dissociating
himself from the actions of accused no's 3 and 5.
Ntuli's evidence concerning the number of statements he had made to the police
and the stage at which he had involved accused no's
3 and 5 is confused and not
very satisfactory, but he eventually conceded that it was
not
19
until some days later that he involved no's 3 and 5 in an oral statement to
Lieutenant Engelbrecht and not until the charges against
him had been withdrawn
that he had made a written statement implicating them. The version upon which he
finally settled was materially
corroborated by the evidence of Lieutenant
Engelbrecht.
Lieutenant Engelbrecht testified that no inducement had been offered to Ntuli
to make a statement implicating accused no's 3 and 5
and thát the case
against him had been withdrawn before he was asked and agreed to make a written
statement. In the circumstances
Ntuli had nothing to gain by implicating accused
no's 3 and 5. We unreservedly accept the evidence of Lieutenant Engelbrecht in
this
regard.
While Ntuli's evidence concerning the statements was not completely
satisfactory, his evidence concerning his dealings with accused
no's 3 and 5
before and after the killing of the deceased was of a totally different calibre.
This evidence was lucid and coherent
and in agreement with other proved facts,
such as the confrontation with the deceased on the 26th August and the earlier
warning
to the bus driver, the fact that people other than accused no's 3 and 5
had killed the deceased and the sequence of events which
occurred on the day in
question. Despite searching cross-examination by counsel for accused no 5 this
aspect of Ntuli's evidence
was not shaken in any material respect. It was not
suggested, even by accused
20
no 5, that it was Ntuli who accompanied accused no 3 when the bus was
followed. In this regard it is significant that accused no 5
agreed that Ntuli
had in fact been in Ladysmith on the day that the deceased was killed. There is
no apparent reason for Ntuli to
have falsely implicated accused no's 3 and 5 in
the commission of the offence. The reason advanced by accused no 5 is plainly
disingenuous.
It must also be borne in mind that Ntuli's statement implicating
accused no's 3 and 5 was made before accused no 5 was arrested.
A factor which lends credence to Ntuli's evidence is that no other
explanation was ever suggested as to how he could have obtained
knowledge of the
commission of the offence if accused no's 3 and 5 had not told him. There is no
suggestion that he knew accused
no' s 1 and 2 before his arrest and it is clear
from the evidence that he was not brought into sufficient contact with accused
no's
1, 2 or 3 before he made his oral and written statements to Lieutenant
Engelbrecht to enable him to concoct a story with them.
A safeguard which reduces a wrong conviction of accused no's 3 and 5 on the
evidence of Ntuli is provided by the corroboration afforded
by the evidence of
accused no's 1 and 2. Proof that their evidence in this regard is not a recent
fabrication is provided by the
confession of accused no I and the statements
made by both at the Section 119 Proceedings, all of which were made before the
arrest
of
21
accused no 5 and very shortly after their own arrest. On all the evidence of
accused no 5 accused no's 1 and 2 did not know him except
by sight and
accordingly there was no reason for them to falsely implicate him and accused no
3. Here again accused no 5's explanation
as to why they should implicate him is
clearly disingenuous. Although accused no's 1 and 2 were clearly untruthful
concerning the
question of duress there is no basis on which to suspect that
they had any personal motive to kill the deceased. They were clearly
not alone
in the execution of the killing of the deceased.
I
can f ind no fault with this approach or evaluation.
The Court did not
believe fourth appellant. In rejecting
his evidence and convicting him Law,
J. had this to say:
"Accused no 5 was a totally unsatisfactory and unreliable witness. He was
patently ill at ease on the witness stand and answered
questions put to him in
cross-examination obliquely and evasively. Apart from his naive reasons for his
implication by Ntuli and
accused no's 1 and 2 he was untruthful in his denial
that he was unconcerned about the introduction of the bus service. This is
demonstrated
by his counsel's suggestion to Ntuli that most of the taxi
operators were unhappy about the bus service and by his presence in the
group
which confronted the deceased on the 26th August. His explanation for his
presence on that occasion was
totally
22
unconvincing.
The reasons advanced by accused no 5 for his departure and long absence from
Durban shortly after the police started asking questions
at the taxi rank are
specious, and his evidence about spending more than two weeks at a place he
could not identify after his car
had allegedly broken down is patently untrue.
These circumstances give rise to the strong suspicion that accused no 5's
departure
from Durban was occasioned by a guilty mind in relation to the death
of the deceased.
In our view sufficient safeguards against wrong convictions of accused no's 3
and 5 based on the evidence of the accomplice Ntuli
are provided by the
corroborating evidence of accused no's 1 and 2, the failure of accused no 3 to
give evidence coupled with his
admissions and by accused no 5' s mendacity as a
witness. We are satisfied that the evidence of Ntuli concerning his dealings
with
accused no's 3 and 5 is the truth and we accept it, together with the
evidence of accused no's 1 and 2, that accused no's 3 and 5
were in the
motor-car which transported them to the scene of the murder on the morning of
the 8th October and which transported them
away from the scene after the
deceased had been killed.
We are accordingly satisfied on a conspectus of the evidence as a whole,
viewed against the background of the surrounding probabilities,
that the State
has proved beyond reasonable
23
doubt that accused no's 3 and 5 engaged the services of accused no' s 1 and 2 to
kill the deceased. Their intention was clearly that
the deceased should be
killed and there was no lawful justification
therefor."
I am satisfied that the trial Court's
evaluation and rejection of fourth appellant's evidence is sound and that he was
rightly convicted.
The appeal against his conviction must consequently
fail.
I now turn to consider the question of extenuation.
The following
persons gave evidence during the investigation regarding extenuating
circumstances: Appellants 1, 2 and 3; a middle-aged
female faith healer, Lefina
Mzimela who testified on third appellant's behalf; a practising psychiatrist, Dr
Berthold Lind of Pietermaritzburg,
who also testified on behalf of third
appellant; and two further psychiatrists, Dr Adriana Loen, who is in service of
the State and
a member of the staff of Weskoppies Mental Hospital, Pretoria; and
Dr
24
J P Verster, who is in private practice. Both of
them were called by the
State.
Appeliants 1 and 2 in essence merely repeated
the evidence they had given on the merits and reproached
the Court for its
rejection thereof. There was
nevertheless an investigation by the Court
regarding any
factors which might have had an extentuating effect in
their
cases. None were found. Law, J. said the
following in announcing that
finding:
"Although accused no's 1 and 2 did enter the witness stand after the verdict of
the Court was pronounced they did not give evidence
bearing on the question of
extenuation. Such evidence as they gave was merely to reiterate their innocence
and to question the Court's
findings in regard to their guilt.
Mr
Suhr
, who appeared for both accused no's 1 and 2, advanced five
circumstances which he submitted constituted extenuating circumstances.
They
were:
1.
Both accused are relatively young, accused no 1 being twenty-four
years old and accused no 2 twenty-five years old.
2.
They are both products of a rural
environment.
25
3.
They are both
ill-educated.
4.
Both were employed in the
humble status of taxi touts earning low wages.
5.
Accused no's 3 and 5 are both considerably older and more affluent
and influential than accused no's 1 and 2 and were in a position
to bring
influence to bear upon accused no's 1 and 2. Accused no's 3 and 5 were the
masterminds and accused no's 1 and 2 were their
mere
catspaws.
We did not get the impression during the
course of hearing their evidence that these two accused were immature. Although
they come
from a rural environment they were, at the time of their recruitment
to kill the deceased, working in Durban in the competitive taxi
business. There
is no suggestion in the acceptable evidence before the Court that any degree of
persuasion was required to secure
their agreement to murder the deceased.
Accused no's 3 and 5 were known to them only by sight and were not in any
position of authority
over them which enabled any improper influence to be
exercised.
There is no evidence before the Court which goes anywhere along the road to
establishing that any of the factors advanced by Mr
Suhr
probably
influenced their participation in the murder of the deceased. On the contrary
the evidence points overwhelmingly to the conclusion
that their participation in
this coldblooded and callous murder was procured
26
solely by the promise of financial reward.
We are satisfied that accused no's 1 and 2 have not established the existence of
extenuating circumstances."
It is unnecessary for me
to add anything thereto. It is
clearly correct.
Third appellant testified at length. His
evidence
was to the following effect. He is suffering
from a long-standing condition
of anxiety which becomes
acute at times. He received periodic treatment
therefor
from the faith healer, Lephina Mzimela, inter alia
with
"Isiwasho" (holy water), and from several medical doctors
- all to no
avail as the condition persisted and the
acute attacks kept recurring about
three times a year.
The last such attack prior to the murder was during
July
1987 when he was again treated by Lephina Mzimela. (She
corroborated his
evidence as to his condition and her
treatment of him and confirmed that he had had a very
acute anxiety attack
during July 1987, which caused him
27
to tremble and sweat profusely and to f all down in a fainting fit. His
condition was so serious that he had to remain in her kraal
overnight. She did
not see him again before the 8th October.) Third appellant alleged that this
attack had been brought on by a second
attempt by the deceased to run him down
with the bus. Both attempts were made during 1987: the f irst when he was
returning home
in one of his taxis and the second whilst he was driving home
with his family "nearing July or so". On October 22, 1987, appellants
1-3, Ntuli
and Benghu appeared before the magistrate at Mtunzini on the charge of murder,
as accused no's 1-5 respectively, in terms
of
sec 119
of the
Criminal Procedure
Act, no 51 of 1977
. The charge against Ntuli was then withdrawn. The rest were
asked to plead to the charge. Third appellant pleaded guilty. When asked
whether
he had been influenced by anyone to plead guilty he answered that he had been
assaulted by the police but that he was aware
of
28
the charge against him and that he was pleading guilty of
his own free
will. In elucidation of his plea an
exchange between him and the presiding
magistrate then
followed, inter alia in these terms:
"
COURT
Now accused, please tell the Court in your own words what gave
rise to this charge against you to which you plead guilty today?
ACCUSED NO
3
This is how it happened that led to me facing this charge, I fought with
Simon Mthembu, the deceased. After we had fought, on a certain
day I was riding
in my motor vehicle going home he then drove the bus towards me. That is when it
occurred in my mind that this person
wanted to kill me. I then went and spoke to
these two men ...
INTERPRETER
Accused no 3 is referring to accused no 1 and 2.
ACCUSED NO 3
.... and spoke to them that the
person wanted to kill me. I asked them whether
they could not shoot him for me - they then
said they could shoot him.
COURT
Is this now accused 1 and 2 you're
referring to?
ACCUSED NO 3
Accused no 1 and 2.
COURT
Yes?
ACCUSED NO 3
After they shot him, I took them
with the motor vehicle and we all went back to
Durban. If I had let him live I would not
be
safe because he had brought the bus
towards my
motor vehicle. My motor car is smaller
than
the bus. He would have collided
with my motor
29
car and I would have died. I have also
witnesses who are also Kombi
drivers to whom
this Mthembu did the same thing as he did to
me.
COURT
Anything
else?
ACCUSED NO 3
That is what occurred in my mind
that I should say to these men, accused no 1
and 2, in order that Simon
Mthembu be killed,
because they would kill me and my children, my
children
are innocent, they did not know
anything between us. Those are the
reasons
which caused me to be tempted and to go and buy
some people to kill him.
COURT
Did you hire accused 1 and 2 to go
and
kill the deceased Simon ...
ACCUSED NO 3
Yes.
COURT
... Mthembu.
ACCUSED NO 3
Yes.
COURT
Were you present at the
killing of Simon
Mthembu on the 8th of October?
ACCUSED NO 3
I was
not inside the bus. I was
a distance away from the bus stop where
accused
no 1 and 2 alighted.
COURT
Did you instruct accused 1 and 2
to go
and kill the deceased in this matter?
ACCUSED NO 3
Yes, I'm
the one who spoke to
them.
COURT
Did you provide them with an arm, or
arms or
weapons?
ACCUSED NO 3
Yes, they took the weapon f
rom
me.
COURT
Did you provide them with the weapon?
ACCUSED
NO 3
Yes.
COURT
And did you instruct them to go and kill
Simon
Mthembu?
30
ACCUSED NO 3
Yes.
COURT
Was it your intention to instruct and to
hire accused 1 and 2 to go and kill Simon
Mthembu?
ACCUSED NO 3
Yes.
COURT
Did you point out the deceased to
accused 1 and 2?
ACCUSED NO 3
I did not point him out, I said
they were going to see the bus driver who
drives the bus.
COURT
And what did you tell them, what must
they go and do?
ACCUSED NO 3
I said the bus driver would be
the person, they should then shoot him.
COURT
What type of weapons did you provide
accused no 1 and 2 with?
ACCUSED NO 3
I gave them firearms.
COURT
What kind of firearms?
ACCUSED NO 3
They were a certain make
firearms.
COURT
But pistols, revolvers, rifles or what?
ACCUSED NO 3
There were two firearms, the one
a revolver, the one a pistol.
COURT
Did you provide accused 1 and 2 with the
firearms?
ACCUSED NO 3
Yes.
COURT
It is correct that this was your idea of
hiring accused 1 and 2 to go and kill the
deceased in this matter, Simon Mthembu?
ACCUSED NO 3
Yes."
When testifying in
extenuation third appellant however
maintained that Ntuli and fourth appellant had planned
31
the murder, and initially alleged that he became aware of
the plot only on the day of the killing and in the
following manner (I guote from his evidence-in-chief):
"Whilst I was at the rank cleaning my motor vehicle, accused no 5 and Mr Ntuli
came to me and stated that we should go to the bus.
Yes? - Thereafter accused no 5 and Ntuli
talked to each other, planning the killing of the
deceased."
Fourth appellant then brought appellants
1 and 2 to him,
introduced them as the persons who were going to shoot
the deceased and instructed him to take them to Mangete
in his car, which he did. Fourth appellant also went
along and explained
the plot to him on the way. When
they returned to Durban third appellant supplied
appellants 1 and 2 with
the firearms on the instructions
of fourth appellant. He also initially
maintained that
he was "at no stage" aware that appellants 1 and 2 were
paid for the murder and that he never gave them any
money. He did lend
fourth appellant R700,00 but was not
32
told by him why he wanted the money. Later, however, he admitted that fourth
appellant had in fact told him that appellants 1 and
2 were to be paid R1 000,00
each for killing the deceased but added that he "did not witness the paying
out". Thereafter, whilst
under cross-examination by counsel for the State, he
admitted that he had himself paid appellants 1 and 2 R400,00 each on the
instructions
of fourth appellant, from whom he had received the money. He also
admitted that on the day before the murder, a Monday, fourth appellant
had
introduced appellants 1 and 2 to him and had then told him about the
contemplated killing. He added, however, that he "did not
believe that this
thing was going to materialise". Third appellant also maintianed, in answer to
questions by Law, J., that he was
obliged to obey fourth appellant because he
was an Induna in the area where their taxis were operating. The further exchange
between
them then proceeded as follows:
33
"Did you comply with that because he told you to? Did you break the law because
he told you
do so? - Certainly so. Because I did comply
with what he said there, and the very person whom he said must be hit or shot,
that person was my enemy.
Will you tell me some thing ? Was the rea son that you went along with what no 5
was saying, what was your reason for agreeing that
the
deceased should be killed? - It was because
the deceased also wanted to bring about my death, so I could not try and rescue
such a person. If he came across me in the road he
would not leave me alive, he
would kill me. That is why I did not disobey the instructions.
Any other reason? - And also that we had lost
quite a lot of work or business. But if he did not come to me and instructed me
as I have already stated, perhaps I would not have
done anything about losing
business."
During cross-examination by counsel for
fourth
appellant he explained that his failure to
implicate
appellant no 4 in his statement to the magistrate during
the
sec
119
proceedings was due to a confused state of
mind caused by an acute attack
of anxiety which he then
experienced. (The presiding magistrate, the
34
investigating officer, lieut. Engelbrecht, and the Court interpreter were
later called by the State with consent of the Court to testify
about that
incident. Their evidence was that third appellant appeared to be very nervous
and sat down after pleading. The Court adjourned
for a short period to enable
him to recover. He drank a glass of water and recovered quickly. When he gave
his aforementioned explanation
of plea, i.a. by way of questions from the bench,
he was normal. The magistrate presiding was a senior magistrate with 35 years'
service.) Third appellant also alleged during cross-examination by prosecuting
counsel that his
sec 119
statement was untrue in many respects. Parts of it were
what lieut Engelbrecht had told him to say and certain others he simply
invented.
He did so through fear of further assaults by the police. He added
that he told the magistrate that lieut Engelbrecht had threatened
to take him to
the bush and to "assault or kill" him there,
35
to which the magistrate had replied "yes, he ought to
take you there and hit you". (The magistrate denied this
incident. The court interpreter supported him.) Third
appellant admitted
that, as stated by him to the
magistrate, he had handed the firearms to
appellants 1
and 2 and added that he had done so on the morning of
the
murder on the instructions of Ntuli who had given him the
firearms
that morning "when he was on his way to
Ladysmith". Ntuli did not, however,
tell him why he was
giving him the weapons.
The Court did not believe third appellant.
Law, J.,
dealt with his evidence as follows:
"A reading of accused no 3's evidence makes it apparent that he was in most
important aspects an abject liar. He was evasive, fabricated
evidence to suit
his case and gave the impression of a scheming and dishonest witness who was
eventually caught in the web of his
own deceit. To catalogue all the lies,
improbabilities and contradictions in his evidence will serve little purpose but
I mention
a few glaring examples: (i) The evidence that Ntuli left the
two
36
firearms with him on the morning before the murder without telling him what
they were to be used for, is not only highly improbable
but clearly
false.
(ii) His evidence that he handed the firearms to accused no's 1 and 2
only because he was instructed by accused no 5 without knowing
what they were to
be used for and did so only because he had to obey accused no 5 because he was
an older man and in charge of the
taxi operations is clearly false, especially
in view of his later evidence that accused no's 1 and 2 were already introduced
to him
as the killers of the deceased on the preceding Monday. (iii) His
evidence that he first learned about the plot to kill the deceased
en route to
Mangete in the motor-car is flatly contradicted by his later evidence that
accused no's 1 and 2 were introduced to him
as the killers on the preceding
Monday.
(iv) His evidence that he did not know that accused no's 1 and 2 were to be
paid for killing the deceased is flatly contradicted by
the statement that he
made in the proceedings in the Magistrate's Court when he admitted that they
were to be paid R1 000,00. His
evidence that he gave accused no 5 R700,00 but
only as a loan is clearly a fabrication. His evidence that he gave accused no's
1
and 2 R400,00 on instructions of accused no 5 without knowing what it was for
is also clearly false, as is his evidence that
37
they were paid R400,00 each when dropped off at Estcourt by himself and accused
no 5 without his knowing what was being handed over.
(v) His evidence that his
statement to the Magistrate at Mtunzini was induced by assaults on him by
Lieutenant Engelbrecht and encouraged
by the Magistrate himself is an obvious
and patent untruth. It was never suggested in cross-examination to Lieutenant
Engelbrecht
that such assaults had taken place and the record of the proceedings
before the Magistrate went in with the consent of accused no
3' s counsel.
There are numerous other aspects of his evidence which are not only contradicted
by acceptable, unguestioned evidence of the State
witnesses, but are also
self-contradictory and in clear conflict with instructions given. to his
counsel. We have no hesitation in
rejecting the evidence of accused no 3 as
false, except possibly to the extent that it may be corroborated by other
reliable witnesses.
In particular we reject as a deliberate fabrication this
accused's evidence that the deceased made two attempts on his life by attempting
to run him down with his bus."
The
evidence relating to third appellant's
state of health must now be considered. I have already
dealt sufficiently
with Lefina Mzimela. Dr Lind was of
38
the opinion that third appellant suffered from an underlying state of anxiety
with recurring episodes of acute anxiety which could
be described as episodes of
"a panic type of disorder", during which he would be in a state of diminished
responsibility. Such acute
episodes would be precipitated by stressful
conditions. During the periods between such acute episodes third appellant
would, however,
to all intents and purposes be normal. Drs Loen and Verster, who
had kept third appellant under observation for considerably longer
periods than
Dr Lind, did not agree with him. They were of the opinion that third appellant
suffered only from a neurotic condition
which could periodically result in
phases of hysteria, which was the condition described by the faith healer,
Lefina Mzimela. There
were, however, no indications of such a condition at the
time of the murder, and their joint conclusion was that third appellant
was not
then in a state of diminished responsibility. It is not
39
necessary to decide between these conflicting views. Dr
Lind conceded that
if third appellant was in an acute
state of anxiety he would have been
incapable of driving
his car to and from Mangete as he admittedly did twice
on
the day of the murder. He conceded that third appellant
must then have
been in a normal state and consequently
not suffering from any diminished
responsibility. This
is what the Court also in fact found, as is apparent
from
the following passages in the judgment on extenuation:
"Even if we were to have found on a balance of probability that the accused
suffered from the mental illness described by Doctor
Lind, it would not in our
view have been established on a balance of probabilities that such
cóndition influenced his participation
in the murder of the deceased. It
will be recalled that Doctor Lind's opinion was that the accused's condition was
one of acute recurrences
from time to time without a chronic underlying
disorder, and that it was only during one of the acute phases that the condition
would
cause a diminished capacity to resist impulses.
The accused's evidence was that he had his last acute attack in August, some two
months before the murder of the deceased. There
is
no
40
evidence to suggest that his condition was in an acute phase at the time when
the murder was planned and executed. Doctor Lind also
expressed the opinion that
the accused could not have driven the getaway vehicle if he had been in an acute
state of anxiety at the
time.
On Doctor Lind's own diagnosis, therefore, it is unlikely that the accused's
anxiety state could have influenced his participation
in the
crime."
The Court found that it had not been proved
that there were any extenuating circumstances in the case of third appellant. I
agree
with that finding. The facts sadly speak for themselves.
Fourth appellant did not testify in
extenuation. The
position in his case was summed up as
follows by Law, J.:
"Accepting the validity of the points made by Mr
Roberts
the evidence
nevertheless discloses that the role played by accused no 5 was by no means an
insignificant one. On the contrary it
was on a par with that of accused no 3. He
was present when the group of taxi people attemptéd to assault the
deceased. He
was present on each of the occasions when accused no 3 complained
to Ntuli and also when their
plans
41
and the result of their deeds were reported to Ntuli. Although it may have been
accused no 3 who spoke first on each occasion, he
confirmed what no 3 said and
in no way disassociated himself or displayed any reluctance to go along with
accused no 3. He also accompanied
no 3 on the day the deceased was murdered,
both to show accused no's 1 and 2 what was to be done and to spirit them from
the scene
after their task was accomplished. There is no evidence on record
which suggests that accused no 5 was anything but a willing participant
in the
murder or that any coercion was brought to bear upon him to participate. The
only evidence which accused no 5 placed before
the Court was an untruthful
denial of any participation in the murder.
On the probabilities it is unlikely that accused no 5 would have been influenced
by accused no 3 to participate against his will.
He is an older, more mature man
and our impression was that he is probably a stronger character than accused no
3.
The evidence as a whole points to the conclusion that accused no 5's sole
motivation for the murder was the elimination of lawful
competition. We are
satisfied that it has not been shown that there are any extenuating
circumstances present which reduce the moral
culpability of accused no
5."
I agree with this finding and have nothing to
add.
The result is that fourth appellant was
rightly
42
convicted and that the trial Court correctly found that there were no
extenuating circumstances in his case or in respect of any of
the other
appellants.
The appeals of all the appellants are dismissed.
M T STEYN. JA.
JOUBERT, JA.)
VAN HEERDEN,
JA.)
VIVIER, JA.)
NICHOLAS, JA.)