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 94
|
|
S v Sindane (589/88) [1989] ZASCA 94 (5 September 1989)
/wlb
SUPREME COURT OF SOUTH AFRICA Case No 589/88
APPELLATE DIVISION
In the appeal of:
SIBUSISO BETHWELL
SINDANE
Appellant
versus
THE STATE
Respondent
CORAM: HEFER, MILNE et F H GROSSKOPF JJA
Date of Hearing
: 18 August
1989
Date of Judqment
: 5 September 1989
JUDGMENT
MILNE JA/
MILNE JA:
The appellant was convicted of murder and attempted murder in the Durban and
Coast Local Division. He was sentenced to death on the
murder charge and to 5
years' imprisonment for the attempted murder. The trial court granted him leave
to appeal against the finding
that there were no extenuating circumstances and
the sentence of death but refused leave to appeal against the convictions.
Thereafter,
this court cm petition, granted leave to appeal against both the
convictions.
The charges arose out of an attack which took place on the night of 1 January
7987 on the dwelling house of a councillor named Dlamini
(the deceased). The
evidence establishes that a number of persons, some of them armed with petrol
bombs, went to the house of the
deceased during
-2-
the night, that petrol bombs were thrown at and into the house, and that it
was set on fire as a result. At the time the deceased
and the complainants on
count 2 namely, the deceased's wife Joyce, and his daughter Rejoice, and one
Khulile Makhathini, were asleep
in the house. One of the bombs was thrown
through the window of the main bedroom where the deceased, his wife and daughter
were asleep.
Joyce Dlamini was awakened by a noise, and saw flames in the
vicinity of the bedroom window and the deceased on fire on his bed.
The deceased
managed to beat out the flames with his hands. Thereafter the deceased and the
other occupants of the house managed
to escape from it. The deceased was taken
to hospital, but died as a result of the burns which he sustained in the
fire.
All this is common cause and, in fact, it was not in dispute that the
deceased was killed by the person or persons who
-3-
set the house alight, and that the deceased's daughter suffered burns as a
result of this attack.
The only evidence connecting the appellant with the attack was a statement
which he made to a magistrate. The appellant contested
the admissibility of this
statement on the grounds that he made it as a result of duress in the form of
threats of physical violence,
and undue influence in the form of a promise by
the investigating officer that if he made the required confession he would be
released
from custody, pending his trial. Those questions were considered in the
course of a trial within a trial which culminated in the
admission of the
confession on the basis that the appellant had failed to discharge the
onus
of proving that it was not freely and voluntarily made, or was the
product of undue influence. Although it was submitted in the appellant's
heads
of argument that the trial court should
-4-
have found that proviso (b) to
s.217
of the
Criminal
Procedure Act No 51
of 1977
had not been complied with, this
submission was (rightly in my view) expressly abandoned by
the appellant's
counsel, and the admissibility of the
statement was attacked only on the
ground that the trial
court should have held that the appellant had
discharged the
onus
. The trial court heard the evidence of the
appellant,
and of the investigating officer Dt.W/O Mabaso, and
the
magistrate who took the statement, Mr G M Sithole. It was
found by the
trial court that:
"Not only was the accused's evidence riddled with inconsistencies,
contradictions and improbabilities; it was given with a patent
lack of
conviction, and if appearances are any guide he was clearly lying. As against
that we have the clear and consistent evidence
of the magistrate to the effect
that the accused was asked each of the seventeen questions, gave the replies
recorded on Exh G, and
gave every appearance at the time of making the statement
that he was doing so freely and voluntarily. There is also the clear, consistent
and satisfactory evidence of the investigating officer, Mr Mabaso, to the
effect
-5-
that no threats were made, no promises were made, and no influence was brought
to bear on the accused to make any statement to the
magistrate."
The judgment continues:
"Neither Mabaso nor Sithole were shaken in the slightest degree under
cross-examination. Indeed, the evidence against the accused
on the issues dealt
with at the trial within a trial was completely overwhelming, so much so that
counsel for the accused, rightly
in our view, found himself in the position
where he was unable to advance any argument in support of the contention that
the statement,
Exh G, was not freely and voluntarily made without undue
influence."
Despite some ingenious arguments
advanced by the appellant's
counsel I am quite unpersuaded that the trial
court erred in
finding that the appellant's evidence was riddled
with
inconsistencies, contradictions and improbabilities, and
that the
evidence of the witnesses who testified for the
State on this issue was clear
and satisfactory in all
material respects. The only aspect of the matter that
was
not referred to in the judgment of the trial court on this
-6-
issue is the fact that one of the grounds upon which the appellant contested
the admissibility of the statement was his allegation
that the investigating
officer promised that, if he made the reguired confession, he would be released
from custody pending his trial.
Reliance was also placed upon the fact that it
appears from the evidence that 8 days after making the statement to the
magistrate,
the appellant was "released on warning" by the court. It is clear
that the investigating officer was aware that the appellant had
made the
statement to the magistrate immediately after he had made it, but, nevertheless,
when the appellant appeared in court for
the first time two days later, and was
joined as an accused, he was not released. This is against the appellant.
Furthermore, while
the point was certainly not fully canvassed in
cross-examination of the investigating officer, such evidence as there is on
record
indicates that the release of the appellant occurred in the absence of
the
-7-
investigating officer and, in all probability, without his concurrence. In my
view there are no good grounds for interfering with
the finding of the trial
court that the appellant failed to establish that the statement was not made
freely and voluntarily, or
that he was unduly influenced thereto.
The next contention advanced on behalf of the appellant was that, even if the
statement was admissible, it did not establish beyond
reasonable doubt that the
appellant was guilty of any offence save, at worst for the appellant, a common
purpose to commit public
violence.
The statement reads as follows:
"On 1/1/87 Siphiwe Mzobe came to me at house No 788 KwaMakhutha Township. I
asked him the whereabouts of Mduduzi Mkhize. After he
had said that Mduduzi was
at his home he asked me whether I had heard that a certain boy had been shot by
a
-8-
certain councillor. He said he was going to the shops and he would return
with Mduduzi. On his return he came back with Mduduzi Mkhize
and Mduduzi Nkukhu.
They said we should pay revenge to the councillor who had shot that boy he
talked about earlier. I do not know
the name of that boy. We were not used to
each other. I then asked them whether they had firearm. They said they had no
firearms.
They requested R5,00 for petrol and I gave the R5,00. We were on
appointment to meet at
Section 24
at Siphiwe Mzobe's house at KwaMakhutha at
24h00 that day. But I was late. I came after they were not there. I was informed
by Mnati
of that house that they had left. I followed their direction and caught
up with them on the road.
At that time there was another male who had joined
us. He was a stranger to me. We were very close to Councillor Dlamini's house.
They informed me that they had constructed four petrol bombs. Mduduzi Mkhize and
that stranger went towards the back of the house.
I and Siphiwe Mzobe and
Mduduzi Nkukhu approached from the front of Dlamini's house. I did not have a
petrol bomb but all my companions
had one each. I was only watching in front of
the house. I was watching for a person who could possibly appear approaching
towards
the house. I was standing towards the gate. If any person came there I
would have warned them to run away.
Indeed after two explosions had taken
place a person approached and I whistled to my companions and we all ran away. I
did not see
who that
-9-
person was. I also did not see who had caused those explosions as there was no
lights. We ran away and separated. Councillor Dlamini's
first names are unknown
to me. I later understood that he died in hospital as a result of burns. His
house's property also was damaged
by fire. That is
all."
Some light is thrown on the reference in the
third sentence
of the statement to the fact that "... a certain boy
had
been shot by a certain Councillor" by the evidence of the State witness
Mzobe. This witness was discredited by counsel for the State
in the court below
with regard to his knowledge of the events on the day when the attack was made
on the house of the deceased. No
reliance can therefore be placed upon his
evidence (or lack of it) regarding the events of that day. It was submitted by
appellant's
counsel, however, that there was no reason not to accept Mzobe's
evidence about the events which had preceded, and, indeed, were
said to be the
cause of thé attack upon the
-10-
deceased's house. Mzobe's evidence on the ihcident which allegedly gave rise
to the attack was to the following effect: some time
in November 1986, there was
a meeting of "the youth" in
section 6
of KwaMakhutha Township about the shortage
of water in that section; the appellant and his two co-accused at the trial were
present
at the meeting; it was then agreed that they should go and see the
"Councillor of that section", who was the deceased, and about
50 of them then
went to the Councillor's house; when they wanted to tell the deceased about
their problem there were many other men
there, armed with sticks and assegais;
these men attacked the group who had gone to see the Councillor, and the
deceased fired shots
towards them, which caused a superficial wound on the
shoulder of one of them, named Zithulele Ncobo, and they then all ran away.
Counsel for the State agreed that there was no reason not to accept this part of
Mzobe's evidence. In fact, the summary of
-11-
substantial facts annexed to the indictment contained the
following
allegations which are in accordance with such
evidence:
"1. The deceased was a councillor in KwaMakhutha and a member of the Inkatha
Organisation.
2. During November 1986 the young men of KwaMakhutha, including the accused,
held a meeting concerning the water shortage which had
been experienced in
KwaMakhutha. It was resolved that the people present at the meeting would
proceed to the deceased's home, and
lodge their complaint with the deceased.
3. On arrival at the deceased's home the spokesman for the group spoke to the
deceased. However, whilst this was happening, a group
of armed men appeared, and
chased the protestors away.
4. The accused were aggrieved at the manner in which they had been treated, and
decided to petrol bomb the deceased's home as a form
of
revenge."
I turn now to consider the effect of the
appellant's statement. It was submitted that it was consistent with no more than
an intention
to join, to a limited extent, in an attack upon the deceased's
property, which might not even
-12-
involve an attack on the house itself; that it was not the only reasonable
inference from the statement either that (a) the appellant
intended to
participate in an attack on the deceased or (b) that the appellant foresaw that
an attack upon the deceased's house might
result in his death.
In my view, when considered against the background of Mzobe's evidence, it is
guite clear from the statement:
a. that the appellant agreed with Siphiwe
Mzobe,
Mduduzi Mkhize and Mduduzi Nkukhu to participate in an act of revenge upon the
deceased for his conduct in shooting at their group;
b. that this act of revenge would take the form of
petrol bombing the
deceased's house in KwaMakhutha
Township, shortly after midnight on 1
January
1987;
c. that the appellant did
participate in such an
-13-
attack because:
(i) he provided the R5,00 for the purchase of petrol for the petrol bombs;
(ii) when he arrived late at the appointed meeting place and found his
co-conspirators had already left, he made a successful effort
to catch up with
them (a further unknown man having joined them by that stage);
(iii) he knew that they had obtained the petrol, and had made four petrol
bombs;
(iv) he went with the other four to the deceased's house, and saw that each of
them had a petrol bomb, and that two of them were
stationed at the front of the
house and two at the rear of the house;
(v) he stood
guard in order to warn his
-14-
companions if any one approached the house, so that they could escape; (vi)
after two explosions had taken place, a person approached,
whereupon the
appellant warned his companions by whistling, and they all ran away.
The trial court viewed the statement as follows:
"It is clear from the statement that there was a common purpose among the
accused and his fellow attackers to attack and set fire
to the house of the
deceased in the middle of the night, with petrol bombs. It is clear that the
object of the attack was a dwelling,
not a garage or commercial property, the
attack taking place in the middle of the night. The accused and his companions
must have
foreseen, and the only reasonable inference is that they did foresee,
the possibility that there would be people occupying the house
at the time of
the attack, and that those people might succumb as a result of their setting the
house on fire over their heads. Notwithstanding
that they had the foresight that
I have adverted to, they persisted with the attack and set the house alight with
petrol bombs with
the fatal consequences
that
-15-
I have already described." I agree. In my view it is inescapable that the
appellant knew that at that time of night it was highly
probable that the
deceased and others would be present in the house, and that if petrol bombs were
thrown at the house it was, at
least, reasonably possible that the deceased
might be burned to death, and it is equally clear that the appellant acted with
a reckless
disregard of whether or not such death might ensue.
It follows that the appellant was, therefore, rightly convicted on both
counts.
I deal now with the question of extenuating circumstances. It is clear from
the record that the only grounds advanced in the court
below as constituting
extenuating circumstances were the following:
-16-
"1 . The fact that the accused was twenty five years old at the time he
committed the murder and (so we were informed from the Bar)
has no previous
convictions.
2.
An absence of
dolus
directus
, the accused having been found guilty on the basis that the
intention to kill took the form of
dolus
eventualis
.
3.
His relatively minor degree
of participation in the attack and assault which resulted in the death of the
deceased."
The learned trial judge dealt carefully
with each of these factors, and considered their cumulative effect. There are no
grounds for
saying that he misdirected himself in considering these aspects nor
can it be said that no reasonable court could have come to the
conclusion which
he did, namely, that the circumstances relied on did not, on the facts of this
particular case, constitute extenuation.
That is, however, not an end of the matter because, having
-17-
dealt with the circumstances referred to above the learned
trial judge
concluded his remarks on extenuating
circumstances as follows:
"We have considered whether there are any other facts which might be relevant to
extenuation, but there is no evidence to suggest
any. It is not suggested that
the accused was intoxicated or provoked or that any external influence of
emotional stress induced
him to participate in the murder. On the contrary, his
statement to the magistrate makes it clear that he did not know the boy whom
the
deceased had allegedly shot and was not personally involved in that incident.
With no personal axe to grind, and in cold blood,
he participated willingly and
deliberately in the planning and execution of an atrocious crime.
Notwithstanding the absence of proof
of
dolus directus
, and giving due
consideration to the nature and extent of the accused's participation in the
commission of the crime, we are unanimously
of the opinion that there are no
extenuating circumstances in this case."
It was
submitted that the trial court had misdirected itself
in this passage because
it failed to take into account that,
on the undisputed evidence of Mzobe, the
deceased had been
guilty of provocative and, indeed, criminal conduct in
-18-
shooting at the group (which included the appellant) instead of listening to
their complaints about the water supply in the township.
The court
a quo
,
so it was submitted, erred in finding that the appellant "... was not personally
involved in that incident." This refers, of course,
to the incident when the
deceased shot at the group of youths which included the appellant. There may be
circumstances when a murder,
committed in order to avenge what was believed to
be a wrongful act on the part of the deceased, will constitute extenuation. See
for example,
S v Ndwalane
1985(3) SA 222
(A). This will obviously not always be the case, see S v
Namane
1977(4) SA 240 (A). In the circumstances of this particular case the appellant
and his partners in crime were no doubt outraged by
what, on the undisputed
evidence, was the aggressive, high-handed and criminal conduct of the deceased
in causing and participating
in an attack on the people who had come to discuss
a legitimate grievance with
-19-
him, and who had every right to expect him, as their councillor, to at least
hear them out. It is true that it appears from the statement
that the appellant
did not know the boy whom the deceased had shot, but he was personally involved
in the incident in the sense that
he was one of those who went to see the
deceased, and who was chased away by the deceased's cohorts. It hardly needs to
be stated
that this conduct on the part of the deceased does not mean that the
appellant, or any one else, was entitled to take the law into
his own hands and
wreak revenge on the deceased - still less to participate in the petrol bombing
of the deceased's house late at
night, when the deceased and his family were in
all probability asleep inside the house. The fact that the appellant had a
legitimate
grievance against the deceased does, however, in my view, diminish
the moral blameworthiness of his conduct. It is reasonably clear
that this
aspect of the matter was not fully considered by the
-20-
trial court - no doubt because it was not even raised in argument by the
appellant's counsel (who was not the counsel who appeared
for him in the
appeal). In these circumstances there was a misdirection of a sufficiently
material nature to vitiate the finding
that there were no extenuating
circumstances. In my view there were such circumstances.
The trial court referred to the crime as an "atrocious" one. I have no doubt
that this is a correct description of it. It is clear
that the appellant
deserves a severe punishment. Taking into account his relative youthfulness, the
fact that he has a clean record
and that there was no proof of
dolus
directus
I have come to the conclusion that an appropriate sentence on the
murder charge would be one of 12 years' imprisonment. It was not
submitted that
there were any good grounds for disturbing the sentence of 5 years' imprisonment
imposed on the second count, and
it
-21-
accordingly stands.
In the result, the appeal against the convictions fails, but the appeal
against the sentence imposed on count 1 is set aside, and
the appellant is
sentenced to 12 years' imprisonment on that count. It is ordered that this
sentence will run concurrently with the
sentence imposed in respect of count
2.
A J MILNE
Judqe of Appeal
HEFER JA ]
] CONCUR
F H GROSSKOPF JA ]