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1988
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[1988] ZASCA 100
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S v Mampa and Others (51/88) [1988] ZASCA 100 (20 September 1988)
51/88
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IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
DITABE ALFRED MAMPA
FIRST
APPELLANT
DIBATE JOHN THOBEJANE
SECOND APPELLANT
SIBASA IVIN
THOBEJANE
THIRD APPELLANT
and
THE STATE
. RESPONDENT
CORAM
:RABIE ACJ, BOTHA,
MILNE, KUMLEBEN JJA et
NICHOLAS AJA
HEARD
: 30 AUGUST 1988
DELIVERED
: 20 SEPTEMBER 1988
JUDGMENT
KUMLEBEN
, JA
The three appellants stood trial in the Northern
2/....
2. Circuit Local Division of the Supreme Court on a charge
of murder. The indictment alleged that on 20 January 1986 and at Mafete
in the
district of Thabamoopo they wrongfully and unlawfullý killed Kate Mokone
("the deceased"). In a second count they were
charged with a contravention of
sec l(a) of the Witchcraft Suppression Act, 3 of 1957, in that, at the same time
and place "the accused
did wrongfully and unlawfully indicate Kate Mokone as a
Wizard." On this count the third appellant was convicted and the other two
acquitted. No further reference need be made to it. One notes though, in
passing, that in terms of sec l(c) of that Act a person
who "employs or solicits
any witchdoctor, witch-finder or any other person to name or indicate any person
as a wizard" also commits
an offence.
On the murder charge the appellants initially pleaded not guilty. The State
called two witnesses, Mabatane Thobejane and Nakgale Mokone,
the mother of
the
3/....
3. deceased. In addition, as part of the State case, an
extra-curial statement made by first appellant, and recorded by a magistrate
on
27 January 1986, was handed in by consent. In it, first appellant thus described
what had taken place:
"My brother-in-law, Tilla Thobejane, got lost when he was coming from the
football ground. I was awoken up by his brother Willy Thobejane
and we started
looking for him. We looked for him high and low without success. The snack
(snag) is all the time we were looking
he saw us. Even the people who abducted
him saw us but whenever we looked their way we only saw donkeys instead of them.
The boy
was found at 09h00. We took him to our home where he was made to sneeze
so that the magic or evil charms could leave him. He then
told us the people who
abducted him. He said he was abducted by Masehlodi Thobejane, Mokone and the
mother to the person we burnt
to death. We took the matter to the induna's
place. These suspects told induna that they wanted witchdoctors to settle this
matter
but before it could be settled that way this boy's parents should be
killed first by muti. We tried to remonstrate with them but
in vain. Willy
called me and the football group and we went to look for the culprits. There was
a girl who was seen pulling at the
boy who was abducted. We grabbed this girl,
doused her with paraffin and my wife's cousin Dibata Thobejane set her alight
after we
4/....
4.
piled her with dry wood. The person who doused her with paraffin is Willy
Thobejane. We burnt her because we requested our chief
to give these people a
trek-pass as they are troublesome and he refused. That is
all."
At the close of the State case the appellants
altered their plea on the murder charge to one of guilty and the case of each
was closed
without any evidence being adduced. They were found guilty of murder
as charged. Thereafter, on the subject of extenuation, two men,
Masepe Maphoru
and Lucas Thobejane, and each of the appellants, gave evidence in amplification
of what first appellant had said in
his statement. The Court held that there
were no extenuating circumstances proved and each appellant was sentenced to
death. Leave
was, however, granted by the Court a
quo
to challenge this
finding on appeal.
A feature of this case is that - apart from one
5/
5.
aspect to be discussed in due course - there were no material
disputes of fact. It would appear that all the witnesses gave an honest
and
reliable accounts of what they saw, heard and remembered. In particular, Mr van
Wyk, who appeared for the State, did not submit
that the evidence given by the
defence witnesses was false or that it should be rejected for any other reason.
In recounting the
facts, which bear upon the question of extenuation, it is
therefore unnecessary to refer to the evidence of each witness individually.
All the persons involved in this case were members of a rural community,
living in a kraal or a number of kraals in Sekukuniland,
Northern Transvaal. The
appellants are related to Lucas Thobejane ("Lucas"). First appellant is his
brother-in-law, second appellant
his cousin or nephew and third appellant his
elder brother.
6/....
6.
On the afternoon of Friday 17 January 1986, Lucas, who at that
time was about 23 years old, had been playing football with some of
his friends.
On their way home he left them to visit his uncle's kraal, intending to catch up
with them later. He remembers leaving
his uncle's home but has no recollection
of what thereafter took place until he found himself at a spot beyond his own
kraal with
the deceased standing in front of him. He passed her and she followed
him. She ordered him to sit under a tree, which he did. She
had cast a spell on
him. He was unable to exercise any free will and return to his home. Whilst
seated there, he could see the appellants
searching for him with torches but he
was powerless to hail or join them. As they came closer to him, the deceased
took him further
away from them.They again sat under a tree. There they were
joined by another woman, Masehludi, and a tall man with long hair. Lucas
did not
recognise him and was there-fore not able to say whether he was a real person.
Lucas
7/....
7. took a cigarette from his pocket. When he had finished
smoking it, the three of them instructed him to accompany them to a donga.
On
arrival there, the tall man took a match from Lucas and told him to sit on the
ground. He apparently lay down. The deceased gave
him what he took to be herbs
to eat and the tall man lit a fire near his head. They left after telling him to
remain there until
they returned to fetch him. He tried to stand up but found
that he had lost the use of his limbs. He was unable to talk. He lay there
for
the rest of the night. The next morning he was found by first and second
appellants. At that stage he could walk but still could
not talk.
When he reached home, the family consulted an aunt, who was a herbalist. She
gave him some substance to inhale and he was able to
speak again. He recounted
his experience of the previous night to the appellants. They summoned the
deceased, her mother and Masehludi
that same
8/....
8. morning. Lucas repeated his story in their presence.
The mother denied that any of them were implicated. It was agreed that the
matter should be placed before the "Kgoro". This is a tribal court or assembly
to which disputes are referred and at which the "Induna"
or headman presides.
The hearing took place the next day, that is, on Sunday 19 January. According to
the witness Maphoru, there
were so many people present that he had to stand
outside the yard in which the meeting was being held. The appellants accused the
three women of being wizards or witch-doctors. To substantiate this Lucas told
the assembly what had befallen him on the Friday night.
At the suggestion of the
opposing parties, and with the general approval of the meeting, it was decided
that a witch-doctor from
elsewhere be consulted to determine whether the
appellants' accusations were well founded. The headman was requested to seek
permission
from the magistrate for this course to be followed.
9/....
9.
At the resumed meeting the next day the magistrate was
present, presumably because the matter was considered sufficiently serious
to
warrant his attendance. It is not entirely clear whether a police officer was
also present and, if so , whether it was the magistrate
or the policeman who
addressed the assembly. Nothing turns on this. The speaker pointed out that it
was against the law to consult
a witch-doctor for the proposed purpose and
-though this hardly needed stressing - to burn to death people said to be
wizards. According
to the first appellant, as they were being thus admonished by
the official, he was interrupted by protests from the assembled crowd.
This
caused him to walk away saying, in effect, that they would no doubt resolve the
matter in their own customary way. Both first
and second appellants said that
they had requested the headman to remove the deceased and
10/....
10.
her mother from the area in order to avert further trouble
but that he had refused to do so. This is confirmed by the witness Maphoru
whose
evidence suggests that this request was made at the "Kgoro."
That night a large crowd went to the house of the sister of the deceased.
According to first appellant, all the members of the local
community ("die
stam") were present and involved. Initially some 29 persons featured as accused
in this case. One may thus conclude
that at least that number were present. At
the house they found the deceased and took her to the same donga where Lucas had
spent
part of the Friday night. Third appellant was the one who actually had
hold of her as they abducted her. At the donga he poured paraffin
over her and
second appellant set it alight. First appellant placed firewood on her. Whilst
she was still burning to death, the crowd
dispersed.
11/....
11.
It is against the background of these facts that the reasons
for finding no extenuation must be examined.
The main ground of extenuation relied upon by the defence was in substance
that, in the light of what had happened to Lucas, the appellants
were convinced
that the deceased was a sorceress and that their lives, and those of their
family, were endangered by the occult powers
she possessed and was exercising.
For this reason, so it was submitted, they decided that she had to be killed.
This submission was
rejected by the trial Court on two main grounds. (The
relevant extracts from the judgment are quoted in parenthesis.) Firstly, it
was
held not to have been proved that the appellants genuinely believed the deceased
to be a witch. ("Dit het ons ook getref na aanhoor
van al die getuienis dat
hulle geen werklike vrese gekoester het dat 'n veertienjarige meisie 'n towenaar
kan wees.") Secondly, the
Court was of the view that the
12/...
12. grounds for such belief, if held, were insubstantial
and for that reason their moral blameworthiness in deciding to kill the deceased
was not reduced. ("Daar is 'n verdere probleem wat die Hof het en dit is die
volgende. Die werklike vrees moet nie 'n vrees wees
vir 'n nietige gebeurlikheid
nie, en in dié opsig het hierdie kind maar 'n nietigheid daar laat
plaasvind. Lucas het alleen
sy stem verloor, verder het hy niks oorgekom nie.
Dit kan seker wees om dié rede dat die 'indoena' en die ander persone
geweier
het dat hulle na 'n toordokter gaan want al was dit bevind dat dit so
is, maak 'n mens nie 'n persoon dood omdat hy so 'n nietigheid
begaan het
nie.")
These two crucial findings of the Court are not borne out by the
evidence.
The mother of the deceased, in her evidence in
chief, said
that she and her daughter were generally known
13/....
13. to be witches. First appellant said that he believed
in witchcraft and that the deceased was the leader of the sorcerers. According
to second appellant, the deceased was killed because they had to protect
themselves. Third appellant stated that if a person practises
witchcraft one has
no choice in the matter, such person must be killed. He also said that he was
convinced that the deceased intended
killing Lucas. ("Sy het nie met Lucas gaan
speel in die veld nie. Sy was van plan om vir Lucas te gaan doodmaak.")
According to the
witness Maphoru, from his youth he had always regarded the
deceased as a sorceress. This direct evidence is conf irmed by the fact
that the
killing took place with the tacit acquiescence, if not the active participation,
of a large number of people. There is no
reason to doubt the evidence of Lucas.
It is not possible to determine to what extent his story was based on fact. What
is important
is that he, and those members of his family to whom he related his
experience, believed that
14/....
14. a spell had been cast on him by the deceased. His
loss of speech was to them convincing proof of this. The episode must have been
awesome to those who believe in the occult. In the course of the reasoning in
the judgment on extenuation the Court asked rhetorically
why all three were not
killed, if they thought that the deceased, her mother and the other woman were
witches. The evidence did not
prove or suggest that her mother or Masehludi was
at the sister's house, or accessible, at the time the deceased was abducted. But
the more cogent answer is that it was the
deceased
who had played the
leading role in the events of that Friday night.
The Court observed that "Lucas het alleen sy stem verloor, verder het hy niks
oorgekom nie." This is simply not so. The evidence makes
it plain that his
ordeal that night, which must have been terrifying, was not restricted to a mere
temporary loss of the power of
speech. Moreover,
15/....
15.
it was interpreted, understandably in the circumstances, as a
threat to his family as well. In his statement first appellant said
that when
they were searching for Lucas that night those who were abducting him were
transfigured and took on the appearance of donkeys.
Thus at that time appellants
too, according to his evidence, were being subjected to these occult influences.
At some later stage,
first appellant said the mother threatened them by saying
"ons gaan voort, ons gaan ons werk voortsit om julle klaar te maak." According
to the witness Maphoru, it was at the "Kgoro" that she said, referring to Lucas
and his family, "ons gaan vir julle toor". This alleged
threat was canvassed in
the cross-examination of the mother of the deceased, as appears from this
question and answer:
"En ek stel dit aan u hulle het daar gekom op instruksies van die indoena omdat
u op die vergadering van die stam gedreig het om
Lucas
en
16/....
16.
sy familie dood te maak en daarom is die polisie en die magistraat deur die
indoena ingeroep om daar te kom? — Ek weet niks
daarvan
nie."
One would have expected an emphatic denial
from her had no such threat been made. If this answer is to be construed as an
contradiction
of the evidence of the two witnesses for the defence, I consider
that their testimony on this issue is in thé circumstances
to be
preferred.
The Court misdirected itself in a further respect. There was evidence that
the headman, when he addressed the appellants, asked them
whether they thought
these people would practise witchcraft on them. This question was construed by
the Court, with reliance upon
supposed voice intonation, to mean that the
headman did not consider that the appellants' concern and complaint ought to be
taken
seriously. Apart from the fact that this is not the only reasonable
interpretation to be placed on his
17/....
17.
question, other evidence, to which I have referred, shows
that others, indeed all involved, also viewed the matter in a very serious
light. Further criticism was levelled in argument at the reasoning of the Court
a
quo
. I find it unnecessary to deal with those submissions. From what
has been said it is, I trust, plain that the Court misdirected itself
in
reaching the conclusions on which its finding was based.
It is acknowledged that a belief in witchcraft can, and in appropriate
circumstances should, operate as an
extenuating circumstance. As this Court
affirmed in S v
Nxele
1973(3) SA 753(A) 757:
"... a belief in witchcraft, if genuinely held by an accused and directly
associated with the crime which he has committed, remains
a factor to be taken
into account in assessing an appropriate sentence. That it should so be taken
into account is inherent in the
subjective approach. The degree of mitigation,
if any, flowing from
18/...
18.
this factor naturally vitally depends upon thé particular circumstances
of the case. The genuineness of the belief in witchcraft
must of course always
be a condition precedent. Postulating such genuineness, action taken by an
accused against an individual whom
he believes already to have caused the death
of the accused's relatives by the exercise of occult powers which are now
directed against
such accused himself may sometimes be viewed in a less serious
light than if, under similar circumstances, the accused has taken
indiscriminate
action involving, not merely the particular individual concerned, but others as
well. On the other hand, in a certain,
relatively rare, type of case a severe
sentence upon an accused may be susceptible of being interpreted by the
credulous believers
in witchcraft in the particular community concerned as
affording confirmation of the alleged wizard's ability to injure those who
question his vaunted powers. As already indicated, the particular circumstances
of the particular case are a vital
consideration."
To my mind in the present case the
facts convincingly
proved that the appellants' belief in the occult powers of
the deceased was genuine, as was their fear that she
presented a real threat to their livés and to the lives of
members
of their family. In the circumstances the Court
ought to have found that
there were extenuating
19/....
19.
circumstances.
The question then is, what would be appropriate sentences?
In a case such as the present, this is a particularly difficult question.
None of the accused had previous convictions, although they
had reached the ages
of 36, 27 and 33 years respectively. One of them was employed at the time and
the others had previously been
employed. It can be assumed that apart from this
crime they were law-abiding members of their community. Their conduct was
prompted
by deeply-held beliefs and genuine fear, and it was not regarded by
themselves, or by the community in which they lived, as morally
reprehensible.
They are not criminals in the ordinary sense and imprisonment could not
therefore be reformative. On the other hand,
the fact that the deceased, a
comparatively young girl, was killed in a particularly dreadful manner must also
be given due
20/....
20.
weight. Moreover, as pointed out in
S v Nxele
(supra)
at 758A:
"the Courts must guard against undue leniency when such belief has manifested
itself in conduct which is criminally punishable. For
the effect of undue
leniency in relation to possible repetition of such conduct must always be borne
in mind. Unlawful acts, even
if committed under genuine belief of justification,
cannot lightly be countenanced."
Taking all these
considerations into account, a sentence of ten years' imprisonment would seem to
be appropriate.
The appeal against the sentences imposed on count 1 a.re upheld. In the case
of each appellant the death sentence is set aside and
a sentence of 10 years'
imprisonment substituted. (The sentence of imprisonment imposed on the third
appellant in respect of the
second
21/
21.
count is to run concurrently with his sentence on the first
count.)
M E KUMLEBEN
JUDGE OF APPEAL
RABIE ACJ)
BOTHA JA) _ concur
MILNE JA)
NICHOLAS AJA)