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1988
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[1988] ZASCA 103
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S v Ngidi (547/87) [1988] ZASCA 103 (22 September 1988)
CASE NO. 547/87 /CCC
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between
P B NGIDI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN JA et
VILJOEN, NICHOLAS AJJA
DATE HEARD
: . 23 AUGUST 1988
DATE DELIVERED
: 22 SEPTEMBER 1988
JUDGMENT NICHOLAS, AJA
:
2/
2. The appellant, Phillip Ngidi, was charged in the Witwatersrand
Local Division on three counts: (1) murder; (2) robbery; and (3)
malicious
injury to property. The
trial
court (consisting of
SPOELSTRA J and two assessors) found him (1) guilty of murder without
extenuating circumstances; (2) guilty
of theft of an Rl rifle; and (3) not
guilty on the third count. He was sentenced to death on the first count, and to
imprisonment
for one year on the second. With the leave of the trial judge he
now appeals against the finding that there were no extenuating circumstances
and
against the death sentence.
Before addressing the court on the merits, counsel for Ngidi moved an
application in terms of s.22 of the
Supreme Court Ac
t 59 of 1959, for the
hearing of further evidence, namely, that of Mr L Vogelman, a clinical
psychologist and lecturer on the staff
of the division of applied psychology at
the University of the Witwatersrand. This evidence related to a psychological
assessment
of Ngidi, who was about 18½
3/
3.
years old at the time of the commission of the crimes.
Such
an application is a competent one in terms of the majority
judgment in the case of
S v Swanepoel
1983(1) S A 434(A).
It is,
however, only in an exceptional case that it will be
granted,because it "is
clearly not in the interests of the
administration of justice that issues of
fact, once judicially
investigated and pronounced upon, should lightly be
reopened
and amplified." (
S v de Jager
, 1965(2) S A 612 (A) at
613
B
per
HOLMES JA). The requirements for success in such
an
application were stated in
de Jager's
case (at 613 C - D)
as
follows:
"(a) There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to lead was
not led at the trial.
(b)
There should be a
prima
facie
likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial.
In the affidavits filed in support. of the
present application,
there was no real explanation for omitting at the proper time to obtain the
evidence of a witness such as Vogelman, other
4/
4.
than that the legal representatives for the defence
were
content, at that time, to rely on the evidence of
another
psychologist, Prof Tyson. That explanation is not a
reasonably
sufficient one. Consequently the application must fail.
The victim of the murder was Mpedi
Mokhotlane. He belonged to the South
Afrian Police force,
and served in No. 3 riot squad, which was based in
Soweto,
and for this purpose he was equipped with an Rl rifle, a
Beretta
pistol and ammunition for these two weapons. His father,
Daniel
Mokhotlane, gave evidence for the State. He testified
that on 25 April 1986
he was doing some work at Mpedi's house
at Moletsane in Soweto. Mpedi, who
was on duty at the time,
looked in to see how the work was progressing. Upon his
departure, Daniel accompanied him to his car. What followed
is summarized in the following extract from the judgment
SPOELSTRA J:
"At that stage the deceased's car, which was parked in front of the house in the
street, was surrounded by a large group of people.
The deceased was
carrying
5/
5.
his rifle on a slíng over his shoulder and his pistol was in its
holster at his side. As the deceased was about to open the
door of the car, he
enquired from the people what was wrong. A member of the crowd said: 'For a long
time we have been looking for
you and for this car which we have seen in
Meadowlands', or words to this effect. The deceased then made an effort to get
into the
car, but before he could do so they attacked him with stones. He fired
a shot in the air with his rifle. The attack then increased
in violence and the
deceased was struck down. He managed to get up and fled across the street into
the yard of a house on the other
side of the street which was more or less
opposite his own. He was followed by the attacking mob. The last the witness saw
of his
son was when he disappeared behind a corner of the other house, still
firing shots in the air. A police vehicle soon arrived on the
scene. The police
fired from the vehicle and the crowd dispersed. The deceased's father was unable
to identify any of the persons
in this mob. From his evidence it is also clear
that there were a number of groups of persons consisting of school children of
varying
ages. One of the groups was in a yard adjoining the rear fence of the
deceased's property. These people jumped the dividing fence
or wall and joined
the group in the street. Other people also passed the deceased's car while he
was being attacked. After the deceased
had disappeared behind the house across
the street, Daniel heard no further shots. He also stated that the front
windscreen of the
deceased's car was smashed by one of the persons in the group
coming from the rear of the deceased's erf. Knives were produced by
some of the
members
6/
6.
of the group after the first shot had been
fired."
Evidence for the State was also given
by
Constable Lucas Macolo, who was at the time on patrol duty
ih a police
vehicle in Soweto. His testimony, as summarized
in the judgment, was
this:
"Constable Matolo stated that he heard shots being fired and went to investigate
the matter. He was accompanied by two other members
of the Force. After the
first of the three shots was fired he got out of his car in order to determine
the direction of the shots.
He could not establish this and then traversed a
number of streets. He saw children running in the street and proceeded in the
direction
from which they had come. He noticed a group of persons attacking a
car in the street and drove towards them. He fired teargas at
them from his car.
They drove some distance past this group and then did a U-turn. Upon returning,
they stopped at the vehicle. They
removed some paper burning in the car and
extinguished the fire. The car had not yet caught fire. A woman then arrived on
the scene
and asked them to look for her father. They found an assortment of
stones, shovels or spades, a pitchfork and a motor tyre. They
immediately took
the deceased, who was still alive, to their vehicle and drove to a hospital.
After about a kilometre, he died and
they took the body to the Jabulani Police
Station nearby."
On
post mortem
examinatioin
it was
7/
7.
ascertained that the cause of Mpedi's death was
multiple
penetrating incised and lacerated wounds. SPOELSTRA J said
in the
judgment that it was clear from the medical and
photographic evidence that
the assault on Mpedi was undoubtedly
a vicious and serious one, and that the
wounds were inflicted
with deliberate cruelty and brutality.
"They displayed an intent, not only to kill the deceased, but also to make him
suffer. This was a shocking and horrid
killing."
There was no State witness who identified
Ngidi as one of Mpedi's assailants. His conviction was based entirely on a
statement which
he made a few days after the murder to Major Eagar of the South
African Police and which, despite challenge by the defence, was admitted
in
evidence. This statement, the learned trial judge said, placed Ngidi on the
scene of the crime; it showed his participation in
the attack on Mpedi; and it
put beyond dispute his common purpose with the crowd who attacked the
deceased.
The statement read as follows:
8/
8.
"Daar was 'n groep leerling kinders van agt skole wat bymekaar
gekom het by Moletsani op Vrydag laas week. Ek was een van die groep
wat
bymekaar gekom het. Ons doel was om die Azama mense en die Kabasas aan te val op
die rede dat hulle het 'n paar skool kinders
doodgemaak. Naby 'n sekere groot
huis by die hoek by Moletsane het 'n nie-blanke polisieman uitgekom voor ons kan
by die huis verbygaan.
Ons het aan die polisieman 'n verduideliking gegee dat
ons kom nie by hom nie. Die polisieman het niks gesê nie maar het begin
om
te skiet. Hy het agter uit geloop en geskiet tot hy in 'n sekere perseel ingaan.
Baie kinders het.op die polisieman met klippe
gegooi. Ek het ook klippe gegooi.
Toe sien ek dat ek hom op sy regter skouer getref het. Die polisieman het geval.
Hy was met die
klippe gegooi tot hy dood was. Daar is die ander swart meisiekind
wat die polisieman met 'n mes gesteek het. Ek ken hierdie swart
vrou met die
naam van Sheila maar ek ken nie waar sy bly nie. Daar was sekere goedere wat van
die polisieman weggevat was. Die ander
swart vrou van Meadowlands het die
kassette weggevat. Swartman Silo Phillip Kwela wat bly by Emdeni het die 9 mm
vuurwapen van die
polisieman weggevat. Dady het die Rl gevat. Ek het ook daardie
Rl met my hande gevat maar Dady het dit weggevat. So ek verstaan dat
Dady en
Silo is gearresteer. Ek kan nie sê of al die goed wat van die polisieman
weggevat is is teruggevind. Dit is al."
Ngidi gave evidence. He disavowed his
statement, and denied that he was at the scene, saying that
he was playing
football at the time.
9/
9.
In the judgment the trial court rejected Ngidi's evidence and
held that he had destroyed his own alibi. SPOELSTRA J said that although
there
were certain obvious flaws in his statement, it was clear that there was a
persistent and continuous onslaught on the deceased;
that Ngidi admitted that he
had thrown stones at Mpedi and hit him on the right shoulder; and that he not
only associated himself
with the attack but actually participated in it to the
bitter end. The Court was satisfied that the wounds sustained by Mpedi had
all
been inflicted by the mob who jointly attacked the deceased, with intent to kill
him. A common purpose was clearly established,
and accordingly Ngidi was liable
not only for his own conduct but also for the conduct of the other
participants.
Ngidi was accordingly found guilty of murder. On the robbery
count, the trial court found that after his rifle had been taken from
Mpedi,
Ngidi had on his own admission handled it and associated himself with the
theft
10/......
10. of it. He was accordingly found guilty of the theft
of the rifle.
Evidence in extenuation was given by Ngidi himself; by
Professor Tyson of the University of the Witwaters-rand, whose field of
specialisation
is social psychology, and who read into the record a memorandum
on mob violence which he had prepared; and Ngidi's grandmother, Evelyn
Ngidi,
who had brought him up after his mother had abandoned him when he was 18 months
old.
Ngidi said that he was born on 1 September 1967. He never knew his
father and he was brought up by his grandmother. He had attended
Sunday School
and was a church-going person. He had finished Std VII at school. He was one of
the "comrades" (which appears to be
a group or gang which was in violent
opposition to other groups called the Cabasas and Azazisms, to the Soweto
Students Congress
("Sosco") and also to the police.) He said "I just fight with
the police
11/
11.
at any time". At night comrades would come to his home and
wake him up and say they must throw stones at the police. This happened
many
times. On 25 April 1986 he was at school. At about 11 am, the pupils were
summoned to the assembly ground and told that there
had been a telephone call:
they were to go to Prudence School at Tladi. He explained why he. went along: "I
wanted to see because
we are all students ... We were all students so I could
not stay behind... I just went to see what happened". Students from many
schools
assembled there. They were told to go to Moletsane and look for the Cabasas: "I
knew that we were going to kill Cabasas and
do what they did to students". To
his knowledge the Cabasas kill students. He knew there was going to be a
killing, but when he went
out he had no idea of trouble with the police.
At Moletsane, someone shouted, "Here is the car that we have been looking for
in Meadowlands. Here is the policeman that must be assaulted".
People picked
up
12/
12.
stones. Ngidi also picked up a stone, "so that I must
do
what the others are doing". He said further:
"The policeman tried to get into the motor vehícle. The policeman fired
into the air. We went backwards. Then we moved forward
again. I also threw a
stone. It hit him on the hand. I did it because the group was doing it ... The
policeman then crossed the road
and entered another yard. We stood and looked
on. There were others with knives and they started stabbing him. We looked. He
died.
We did nothing. Then the other police arrived and threw teargas and we ran
away."
He said that he followed the policeman into
the yard "because
everybody there wanted to go on ... I only did this
because
they were doing it". He said, "The Comrades, what they do,
you
must do".
Ngidi's grandmother, Evelyn Ngidi, saíd
that she had looked after him from the age of 18 months. He
was a very
good boy, who loved school and church. He was
not a fighter. He helped in the house. There came a time
when he changed. People would come, sometimes by day and
sometimes by night, and he would go away with them. Sometimes
13/
13. he would stay away for as long as three days. When she
asked him what he had been doing, he would just laugh. At the time of Ngidi's
arrest, groups of children were going up and down in Soweto, She heard of people
being attacked and burned.
Prof Tyson gave important evidence on the
psychology of crowds and the behaviour of persons in a violent mob. In crowds
people seem
to act in irrational ways: they become barbarians, creatures of
instinct. He discussed the probable effects on Ngidi of the mob with
which he
was involved: pressurization to follow the group; and conformity pressures; and
heightened levels of arousal, leading to
aggression.
Prof Tyson's impression
of Ngidi was that "he seems very young..." "He certainly subjectively doesn't
appear very mature ... he did
seem very young for his age". Prof Tyson did not
see him as a leader.
The trial court accepted that Ngidi was born on 1 September 1967, and that at
the time of the commission
14/
14.
of the offence he was 18 years and 7 or 8 months old. It also accepted that,
according to the authorities, youthfulness connotes immaturity
(as in the case
of a teenager), a lack of experience and insight, and a greater susceptibility
to external influences. Youthfulness
is, accordingly,
prima facie
an
extenuating circumstance.
Nevertheless, the court found, by a majority, that there were in this case no
extenuating circumstances.
Counsel for Ngídi submitted that the
majority of the trial court misdirected themselves in a number of important
respects.
It is unnecessary for the purposes of this judgment to deal with all
the criticisms made. It will be sufficient to refer to some
passages in the
judgment which, in my opinion, reveal misdirections.
On the aspect of youthfulness, SPOELSTRA
J said:
"As I read the law, youthfulness
prima facie
constitutes an extenuating
circumstance, provided that the age of the accused has not been shown to have
been
15/
15.
irrelevant to the decisions he took, or that it
does not appear that the accused acted from an inherent
wickedness or vice.
The accused's age must be related to the commission
of the crime and it must have a bearing on his moral
blameworthiness in committing it. We all agree
in this case that the decision of this question
is not an easy one."
In regard to Ngidi's level of
maturity, the learned judge
said:
"Prof. Tyson has formed an opinion that the accused looks younger than his age
and that he does not appear to possess the qualities
of leadership. Speaking for
myself I do not share Prof. Tyson's impressions. My own impression is that the
accused may not be a particularly
intelligent person, but he is certainly no
weakling. He is well-built and seems physically strong, though perhaps slightly
under
average height. He has no boyish features. To me he presents himself as a
young man and certainly not as a boy of sixteen years.
Personally I would have
estimated his age at approximately twenty. He is obviously a keen sportsman and
a soccer player.
As far as one is able to form an opinion, after having observed him in the
witness box and in the dock for a number of days, I fail
to see any reason why
he cannot qualify as a leader of others, rather than being led himself or being
coerced into committing acts
against his own
will."
There are several observations to be made
about this passage.
16/
16.
In the first place it is manifest that the learned judge was
concerned to emphasize that he was expressing a personal opinion, and
not that
of the trial court. As a result, it does not appear that the court as such did
not accept Prof Tyson's evidence. Moreover,
the fact that Ngidi is no weakling,
that he is well-built and seems physically strong, has no bearing on the
question of his intellectual
or emotional maturity or his powers of judgment,
which were the matters of importance in the context of extenuating
circumstances.
N.or does the fact that he is obviously a keen sportsman and a
soccer player bear on these matters. In addition, it dpes not appear
from the
record that any of this was put to Prof Tyson, or that the defence was otherwise
alerted to the fact that this was the learned
judge's line of thinking. As a
result the defence was not in a position to attempt to meet it.
The trial court did not accept that Ngidi played a minor role in the
proceedings. Apart from that
17/
17.
of Ngidi himself, there was no "direct evidence on the
extent
of his participation and involvement in the commission of
the crime". "He
was a very unsatisfactory witness". "We
all agree that the accused has
minimised his role in the group
and the part he played in the activities of
that day". In
my opinion, the trial court was entitled to reject
Ngidi's
evidence as to the part he played, but there was no basis
for a
finding which was implicit in the judgment, that he
played a greater role
than he admitted.
SPOELSTRA J said again:
"We have concluded that the accused willingly joined the bloodthirsty group,
that they left with the intention to kill and that their
conduct as a whole
shows that they were activated by inner vice or wickedness and that they did not
commit indiscretions which may
be attributed to youthfulness, lack of experience
or immaturity."
This observation is wide of the
mark. What was important
was the psychological make-up and characteristics,
and the
conduct and state of mind of Ngidi. It was impermissible
to attribute to one individual the characteristics of an
18/
18,
anonymous "they".
The learned judge said too:
"The probabilities show that this sort of conduct was a way of life with which
the accused freely and voluntarily associated himself.
In our view a person
choosing to lead a life of violence and murder cannot rely on his age for
extenuation."
I do not think that it could fairly be
said on the evidence
that Ngidi chose to lead a life of violence or
murder.
Certainly there was no evidence of his leading a life of
murder.
VAN DEN HEEVER J observed in
Erasmus v R
1945 OPD 50
at
75:
"Unless we affect a judicial seclusion which may lead us into asking, like the
Judge in Punch: 'What is a doodlebug?", I consider
that we may take judicial
cognisance of the times in which we live."
For years
there has prevailed in Soweto and other black townships
in South Africa a climate of violence and a breakdown of law
and order.
There has ruled a sub-culture of violence, charac-
terized by armed clashes between rival gangs and attacks on
the police. Inevitably the young must have been influenced
by the prevailing climate and by the example which they find
19/
19. all about them. There is no reason why in their case age
should not be an extenuation.
In view of these misdirections, it is open to
this Court to reconsider the question of extenuating circumstances unfettered by
the
finding of the trial Court.
In my opinion there were extenuating
circumstances present in this case, having regard to the cumulative effect of
the following.
At the time of the commission of the crime, Ngidi was 18 years
and some months old.
Prima facie
he was immature and probably lacking in
experience and insight. The only evidence as to his appearance was that of Prof
Tyson, which
supported the
prima facie
position. There was no contrary
finding by the trial court as such.
As a teenager, Ngidi was probably more susceptible to external influences,
such as the prevailing climate of violence and lawlessness
in Soweto, and the
psychology of a violent mob, with its pressures and
stimuli
to
aggression.
There was an absence of aggravating features
20/
20. such as the playing of a leading or prominent part.
There was no evidence that he did any more than throw a few stones at Mpedi.
There was no plan to kill a policeman; the attack on Mpedi arose spontaneously
from a sortie against a rival gang.
Then there was the evidence from
Evelyn,Ngidi's grandmother, that until the year before the trial, he was
well-behaved and helpful
with the cooking, cleaning and washing. Then boys would
come and fetch him and he would go away with them and stay away, sometimes
for a
few days, during which, he, on his own admission, would go out on expeditions
against the police and the Cabasas and the Azazisms.
The picture one gets is of
a youth being initiated into a game which, though brutal and dangerous, could be
fascinating to a young
person growing up in the prevailing climate.
In my opinion this was not a case in which Ngidi should be sentenced to
death, and this court should impose what it conceives to be
an appropriate
sentence.
21/
21 .
Having regard to Ngidi's age and the circumstances
generally, I think that the sentence should be one of 10 years'
imprisonment.
The appeal is upheld. The death sentence is set aside, and
there is substituted therefor a sentence of imprisonment for 10 years.
It is
directed that the sentences on count 1 and count 2 shall run concurrently.
NICHOLAS, AJA
VAN HEERDEN, JA )
) CONCUR VILJOEN, AJA )