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1985
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[1985] ZASCA 98
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S v Zulu (124/85) [1985] ZASCA 98 (25 September 1985)
IN THE SUPREME COURT OK SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between
SIZUKULWANA ERNEST ZULU
appellant
and
THE STATE
respondent
Coram
: CORBETT, HOEXTER et HEFER, JJA
Date of hearing
: 23
September 1985
Date of judgment
: 25 September 1985.
J U D G M E N T CORBETT
, JA:
The appellant, a Zulu man, whose age
was found to be approximately 25 years, appeared before BROOME J and two
assessors in the Circuit
Local Division for the Southern District of Natal on
the charge of having murdered
/ Mantombi.
2
Mantombi Florence Zulu, a Zulu woman. Upon arraignment the appellant, who was
represented by counsel, pleaded not guilty to the charge
of murder, but tendered
a plea of guilty of culpable homicide. The State did not accept the tendered
plea and the dial proceeded
on the murder charge. The appellant was found guilty
of murder by the unanimous verdict of the Court. The trial Judge then addressed
the following remarks in open court to appellant's counsel:
"You will no doubt explain to him that the onus is on the Accused to establish
extenuating circumstances on a balance of probabilities;
that that onus is
discharged on an examination of all the evidence, but of course, in the peculiar
circumstances of this case, he
is in a better position than anybody to explain
why he did it and why it is morally less reprehensible than it might otherwise
appear
to be and as I say, he may well wish to place more information before the
Court on this extremely important
aspect."
The trial was then adjourned
to enable counsel to take
instructions. Upon the resumption appellant's
counsel
informed the Court that the appellant had elected not to
/ give
3
give any further evidence on the issue of extenuation. Having heard counsel's
submissions on the issue, the Court (by a majority formed
by the trial Judge and
one assessor) held that there were no extenuating circumstances. The appellant
was accordingly sentenced to
death. With the leave of the trial Judge, appellant
appeals to this Court against the finding of no extenuating circumstances and
the resulting death sentence.
There is Little dispute about the facts, which are also within a narrow
compass. Both the appellant and the deceased lived at the
Ingwangwane Location
in the district of Ixopo. On the evening of 25 August 1983 at about 8 p.m. the
deceased was lying on a mat inside
the hut which she occupied together with her
children. The hut, circular in shape, had a door and two small windows. The
deceased
was lying in the left-hand half of the hut as seen from the doorway
(described as "the women's side of the hut"), with
/ her
4
her head nearest to the door and about 4 paces from it. A rug covered the
deceased's body and part of her head, but not her face.
Her head faced towards
the door. The interior of the hut was dimly lit by a candle and a small fire.
The door was of the stable-door
variety and the upper half was open. There were
six others in the hut at the time, all of them children. They were listening to
the
radio. Suddenly and without warning a shot was fired from the open doorway.
The bullet struck the deceased in the upper chest and
she was killed
instantly.
Appellant admits that he fired the fatal shot from a ,303 Enfield rifle.
Appellant, a half-brother of the Chief of the area, had been
handed this rifle
by the Chief's wife some two months before with instructions to hand it over to
the police. The appellant did not
do so immediately and still had the rifle in
his possession on the night of the shooting. Thereafter he hid the rifle by
burying
it.
/ The
5
The police took possession of Che rifle more than a year later, after the
appellant's arrest on 18 September 1984.
The appellant's explanation in evidence for his conduct was that he had had
trouble with the deceased prior to the shooting. He had
been paying court to a
woman, Girlie Gumede, who stayed at the deceased's kraal. The deceased objected
to this relationship and,
according to appellant. attacked him on three
occasions. On the first occasion, while appellant was riding his bicycle past
the deceased's
kraal, she challenged his presence there, produced a "gun"
(presumably a pistol or a revolver) "from her breast" and fired at him.
The
bullet struck his bicycle. He fled, leaving the bicycle behind. On the second
occasion appellant was in the deceased's hut when
she pulled an assegai from the
thatched roof. As she was about to stab him, appellant fled. On the third
occasion appellant and the
deceased met on a road. She again took out her "gun"
and fired at appellant,
/ but
6
but missed. He ran away. These incidents occurred during a period of about a
month immediately prior to the death of the deceased.
The appellant stated further that on the night in question he went to the
deceased's kraal, armed with the rifle. He walked past the
hut and, glancing
through the window, saw that there were people inside. He looked in at the
doorway and saw what appeared to him
to be a pile of clothing, on the floor in
the left-hand half of the. hut. He fired the rifle at this pile and then ran
away. Later
that night he heard that the deceased had been killed. He did not
intend to kill the deceased. He simply wanted to "scare her off".
The trial Court found the appellant to be "an extremely poor witness" and
rejected his evidence in a number of respects. Firstly,
it found that
appellant's version of the trouble with the deceased, and in particular
/ his
7
his story of the three episodes recounted above, was "too far-fetched and
grossly improbable" to be acceptable. The judgment of BROOME
J advances what, in
my opinion, are good reasons for rejecting this version and on appeal this
finding of the Court was not challenged
by the appellant's counsel. The trial
Court nevertheless accepted that there must have been some reason (or appellant
to do what
he did. Secondly, the Court rejected the appellant's evidence
that
he fired at what appeared to be a pile of clothing and found
that he
was well aware that the object on the floor was the body of a human being. Here
again I do not think that the reasoning of
the trial Court can be faulted.
Although the hut was dimly lit, the State evidence indicates that one could see
that the deceased
was a reclining human and not a pile of clothing. Her face was
uncovered and only about 4 paces away from the doorway. Thirdly, the
trial Court
rejected appellant's assertion that he merely wished to scare the deceased, not
kill her. Here the appellant found
/ himself
8
himself in a logical cul-de-sac. He did nob reveal himself at the time
of the shooting and ran away immediately thereafter. Had the
deceased survived
she would not have known who had shot at her. Appellant was consequently unable
to explain how she would thus have
been "scared off" her aggression towards him.
Fourthly, during the course of his evidence the appellant alleged he did not
know that
the rifle was loaded and thought that "it explodes even if it is empty
and it has no ammunition in it". This is contrary to other
parts of his evidence
and to a statement made by the appellant to a magistrate shortly after his
arrest when he confessed to having
"fired a shot at her". It is implicit in the
reasons of the Court a
quo
that it rejected also this very far-fetched
profession of ignorance of the workings of a fire-arm.
The trial Court accordingly concluded that the appellant intentionally fired
the rifle at point-blank range at what he realised was
a human being and that it
was
/ "a very .. .
9
"a very clear case of
dolus eventual
is". The judgment on extenuating
circumstances reveals that one member of the Court was of the view that the
appellant's state of
mind had exhibited
dolus directus
. If it were
necessary to do so -which it is not - 1 would be inclined to hold that the
evidence established a case of
dolus directus
. The trial Court also made
no specific finding as to whether the appellant realised at the time of the
shooting that the recumbent
human form was the deceased. The inference that he
did seems inescapable. And indeed the postulate that he did not think that it
was the deceased could only blacken the case against the appellant as far as
extenuation is concerned.
In regard to the question of extenuation, the Court
emphasized the lack of
any credible evidence explaining
appellant's conduct. BROOME J stated:
"Now the Court accepts that there must have been something to have caused the
Accused to do what he did. It is not known what that
something is. In the
/ complete
10
complete absence of evidence as to what motivated the Accused to do this, the
Court cannot speculate that it was probably something
which would operate to
reduce his moral blameworthiness."
The Court also considered the argument that the shooting
was not premeditated and in this regard BROOME J said:
"The Accused did take the firearm, he did make his way after dusk to the
deceased's hut, he did look through the window of that hut
and saw that there
were persons inside. He did then proceed to the door, the top half of which was
open, and he did fire a shot at
what he much have known was a person lying on
the floor. It seems clear that the Accused left his home with the firearm
intending
to fire a shot. The use of the firearm was premeditated. Even if it
was only at the stage that he looked through the door and saw
what he did, that
he decided to shoot the person lying there, he still had sufficient time to
reflect. It was a conscious decision
to aim and fire at that person. This was
not an impulsive, spur of the moment or reflex act, but the limited time is
obviously a
factor to be weighed in the scales with all the other
evidence."
/ The
11
The views of the assessor who considered that
there
were extenuating circumstances were summed up
by the trial
Judge as follows:
"In the view of the other member of Che Court, extenuating circumstances do
exist because the Accused being an unsophisticated rural
man with Little
education, it is reasonable to infer that he probably had some grudge other than
that mentioned by him in his evidence.
It is felt that the Accused's evidence
that he went there to frighten the deceased cannot be rejected and that only on
reaching the
open door of the hut, did he make a spur of the moment decision to
fire at the person, and that all these factors combine to reduce
his moral
blameworthiness to the necessary
extent."
On appeal counsel for the
appellant has advanced the same arguments in favour of extenuation as were put
to the Court a
quo
. There is no suggestion that the majority of the trial
Court misdirected themselves on any point of substance or that their decision
was one which no reasonable Court could reach. Moreover, I am not persuaded that
the
/ majority
12
majority of the trial Court erred in concluding for the reasons stated by
BROOMK J that there were no extenuating circumstances. It
is true that appellant
probably had some grudge against the deceased, but without knowing what it was
and how exactly it arose, it
is not possible to evaluate it as a circumstance
reducing the appellant's moral blameworthiness. There is very little basis for
concluding
that appellant's decision to fire the rifle at the deceased was taken
on the spur of the moment, but even if it was, I agree with
BROOME J that he
still had sufficient time to reflect. Appellant was, on his own admission, sober
at the time, and was no longer
an immature youth. Unsophisticated, rural and
poorly educated he may have been, but this on its own cannot extenuate what the
trial
Judge rightly described as a "stealthy and cowardly" murder.
The appeal is dismissed.
M M CORBETT.