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1989
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[1989] ZASCA 139
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S v Ndabeni (139/89) [1989] ZASCA 139 (13 November 1989)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
) In
the matter between:
MSHIMANE JOHN NDABENI
Appellant
AND
THE STATE
Respondent
Coram:
HOEXTER, HEFER et EKSTEEN, JJ A
Heard
: 13 November 1989
Delivered
:
13 November 1989
TRANSCRIPT OP REASONS DELIVERED ORALLY IN OPEN COURT AT NOON ON 13 NOVEMBER
1989
EKSTEEN
, JA :
The appellant was convicted on
two counts of murder, one of attempted murder and one of robbery with
2
aggravating circumstances. No extenuating circumstances were
found on the first two counts and the appellant was sentenced to death.
He now
comes on appeal to us on his convictions on all counts. We are indebted to Mr.
Munks
for arguing his appeal before us
pro deo
.
The evidence
against the appellant was entirely circumstantial, and it was submitted to us
that it was insufficient to prove his guilt
beyond a reasonable doubt. I do not
agree. The evidence in my view is overwhelming and leads one to the inevitable
conclusion that
the appel-lant was indeed the perpetrator of these terrible
crimes.
In the first place the evidence discloses that a kist containing i.a.
3 blankets was removed from the deceased's hut on the night
she was murdered. It
was
3
found some small distance from her hut and the blankets had
been removed. The very next morning the appellant was proved to have been
in
possession of these 3 blankets when he left his paternal home - some 2 km. from
the de-ceased's home. Appellant readily conceded
his possession of the blankets
but claimed that they were his - bought at a shop in Matubatuba. On an
investigation of the evidence
he was shown to have been patently untruthful on
this score. The blankets were positively identified by the deceased's husband.
This
possession of the blankets taken from the deceased's home on the night she
was mur-dered, so soon after the event, in itself, taken
together with the
transparent untruthfulness of the appellant, seems to me to warrant his
conviction.
4
But that was not all. A few days after the murder a
bloodstained overall was found in a cardboard box in the appellant's room. His
father deposed to it having belonged to the appellant. Again he falsely denied
that it belonged to him. It was submitted to us that
the blood on the overall
may have come there in an innocent manner during the course of the appellant's
employment with the road
building contractor for whom he worked. But if this
were so then there would seem to have been no reason whatever for the appellant
to have told lies about it. His lies here again point strongly to the inference
that the overall became stained with the blood of
his victims on the night of
the murder.
Then finally it was proved. on the evidence
5
that some 2 weeks after the murder, when the
appellant was taken to his kraal by the police, he produced a cane knife from
among the
shrubs at his home. The crimes, on the district surgeon's evidence,
were probably, committed with just such an instrument.
On all the evidence it
seems to me that the trial Court was fully justified in coming to the
conclu-
sion that the guilt of the appellant had been proved be-
yond a reasonable doubt.
No extenuating circumstances have been shown to exist for this brutal
offence.
SEE ORIGINAL JUDGEMENT PAGE
In the result, therefore, the appeal is dismissed.