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1990
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[1990] ZASCA 64
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S v Sindile and Others (583/89) [1990] ZASCA 64 (1 June 1990)
Case No. 583/89 E du P
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
KOKO SINDILE
First
Appellant
THAMSANQA VENA
Second
Appellant
NZALISEKO PIENKIE SHUMI
Third
Appellant
THE STATE
Respondent
Coram:
JOUBERT, KUMLEBEN
JJA et NICHOLAS AJA.
Heard:
Delivered
11 May 1990.
1
June 1990
2
JUDGMENT
NICHOLAS AJA:
In her lifetime
Mrs Ethel Ackerman, an elderly
widow, lived
with her son Mr Mervyn Ackerman in a detached house standing in its
own grounds at 51 Union Avenue, Walmer, Port Elizabeth.
The yard and
garden were surrounded by a vibracrete wall, through which steel
gates provided access
from the street.
These
were normally kept locked. The house
was well burglar-proofed, and it was
provided with a number of "panic-buttons". On the morning
of 5 January 1988 Ackerman
left the
house
in order to go to his video shop. His mother was at home. In the
course of the m
ó
rning
he had several telephone conversations with her. The last was at
about 12 noon. She cut that conversation short saying that
the
gardener was at the door asking for ice to put in his water. Ackerman
returned at about 21h00 that evening. The house was in
darkness.
Unlocking the door, he entered
3
and found a scene of disarray.
Cupboards were standing open in every room, and articles of clothing
and other objects were strewn
about the floor. Plainly, the house had
been ransacked. Going through to the kitchen, he found his mother
lying on the floor, apparently
dead. He summoned the police, who
quickly arrived and began their investigations.
At about 03h30 on 7 January 1988
Det W/0 Joubert and a group of policemen entered a shack in Weslian
St. in a black township near
Walmer. They found there four men and a
large guantity of goods and also two knives. The men were Koko
Sindile, Thamsanga Vena, Pienkie
Shumi and Boy Boy Tshali. The police
took possession of the goods and arrested the men.
A post mortem examination on Mrs
Ackerman was performed by Dr Krige. His conclusion was that the cause
of death was a stab wound into
the heart. Among the injuries which he
noted were a laceration and other injuries in the neck, all of which
he said were consistent
with having been
4
caused by a spade. And there were
stab wounds in the left and right lungs, in the left ventricle and
the pulmonary artery.
A spade was found in the kitchen
with blood on it. Another spade was found in the yard outside the
kitchen, also with blood on it.
Ackerman identified the spades as
his. They were normally kept either in the toilet or the servant's
room at the back of the house.
He also identified as having been
taken from the house some of the goods found at Weslian St. Their
value was about R5 000 in total.
They included a watch, a video
machine, two suitcases and numerous articles of men's clothing
(jackets, shirts, and pants) and sheets,
blankets and towels.
Arising out of this occurrênce
the men arrested by the police were charged in the South Eastern Cape
Local Division on three
counts including (1) the murder of Mrs
Ackerman, and (2) breaking into the house at 51 Union Road, Walmer
with intent to rob, and
robbery with aggravating
5
circumstances. Koko Sindile was
charged as accused No. 1, Thamsanga Vena as accused No 2, Pienkie
Shumi as accused No 3, and Boy Boy
Tshali as accused No 4. The trial
was heard by VAN REENEN AJ and two assessors. Accused Nos 1, 2 and 3
were each convicted on count
1 of murder without extenuating
circumstances and sentenced to death. On count 2 they were each
convicted of robbery, and sentenced
to 15 years imprisonment. No 4
was convicted on a third count, and acquitted on counts 1 and 2.
The learned
trial judge granted to Nos 1, 2 and 3 accused unrestricted leave to
appeal in respect of their convictions and sentences.
In this court
however counsel for accused Nos 1 and 2 addressed no argument in
support of their appeals against the convictions.
It is unnecessary
to say more than that the appeals were unarguable.
I
accordingly turn to accused No 3's appeal
against his convictions for murder and robbery.
All three of the appellants
admitted in their
6
evidence at the
trial that they took part in pillaging the house and removing the
stolen goods to No 2's shack in
Weslian St.
, where they were found by the police. Each of
them
denied, however, that he was a party to the killing of
Mrs
Ackerman. Apart from the accused, there was no witness who knew
anything about the circumstances of her death.
Each
of them sought to exculpate himself. None was a satisfactory witness.
In addition to their evidence, each
of them
had made a statement, the admissibility of which was
not
disputed.. It was largely on the basis of his statement
that
No 3 accused was convicted. Apart from this, the case
against
him was based on circumstantial evidence. It is to the circumstances
that
I
now turn.
On 5 January 1988 No. 3 was
working at Mrs Ackerman's as a gardener. Ackerman saw him weeding the
lawn at about 08h00. He had been
employed on a daily basis during the
preceding 4 years, but when he returned on that date, he had not
attended for about a month.
Upon arrival at the
7
home, it was his custom to ring
the bell at the front door. He would be given the key to an iron gate
and having unlocked it he would
enter the property.
Nos 1 and 2 accused said in their
evidence that they arrived at the iron gate at about 09h00 on 5
January. They were met by No. 3,
who informed them that Mrs Ackerman
had gone to the shop, and they were told to wait in the outside
servant's room, which was next
to a toilet. They did so. At some
stage during the morning, Mrs Ackerman returned to the house. She
gave bread to No. 3, who brought
it to Nos 1 and 2. Later, No 3 went
to the house and asked for cold water which he brought to them. After
some time, he came and
told them to go into the house. They found Mrs
Ackerman lying bleeding on the floor of the kitchen. In his evidence
No 3 said that
he was not aware that Nos 1 and 2 had entered the
premises or waited in the servant's room. He said that they did not
even know that
he was employed at the house.
None of this could reasonably
possibly be true. It would be
8
asking too much of coincidence
that Nos 1, and 2 who were his friends, would arrive at No 3's place
of employment without prior arrangement,
gain access to premises
which they had.not previously visited, and without his connivance
make their way to the servant's room and
stay there for more than
three hours. Moreover, after Mrs Ackerman was dead, No 3 left the
house in the company of Nos 1 and 2, taking
his share of carrying the
loot, and spent the night with them in the bush and went with them to
the shack in Weslian St. The inference
is irresistible that the
robbery was planned and that Nos 1 and 2 went to the house by
arrangement with No 3, and that they acted
in accordance with his
directions.
On the afternoon of his arrest
accused No 3 was taken to Capt. Oosthuizen, who gave evidence for the
State and handed in Exh "R".
In this he recorded that
accused No. 3 was brought to him at an office at Louis Le Grange
Square. Present as interpreter was Det.
Sgt Mngxekeza. After he had
been cautioned, No 3 told Oosthuizen that he wished to point
9
out certain places and things. The
following are the notes
made by Capt Oosthuizen of what
then occurred.
"
NOTAS
1988-01-07 15h18
Vraag: Waar is die huis wat u aan
my wil gaan
uitwys?
Antwoord: Die huis is by Walmer by
5de Laan.
Verklaarder word meegedeel dat ons
met voertuig sal
ry tot by Walmer en wanneer ons
daar arriveer hy
daarna aan ons moet sê hoe
om te ry om by die
toneel uit te kom.
Antwoord: Hy sê hy verstaan
en sal so maak.
Van Tygerkloof pad draai links in
6de Laan, Walmer.
Vanaf 6de laan links in Unionweg
uit wat geleë is
aan linkerkant van die pad.
Ons het by hierdie
motorhek,ingegaan. (Motorhek
geleë aan linkerkant van
erf.)-
Ons het deur hierdie staalhek
ingegaan. (Ook geleë
aan linkerkant van huis)
Ons het by hierdie deur ingegaan.
Hy wys 'n
houtdeur uit wat bestaan uit 'n
bo- en onderdeur.
Bodeur het 9 glasruite in aan
agterkant van huis.
Ons gaan 'n vertrek in. Toe ek
inkom in die
kombuis, het die oumiesies klaar
hier op die vloer
gelê. Hy wys na die vloer
voor die yskaste. Sy
het op haar rug gelê met
haar kop na die agterdeur
en haar voete na die gangdeur. Sy
het vir my gelyk
of sy dood is."
(There followed a sketch plan of
the kitchen)
10
"Ek was onder in die tuin. Ek
hoor dieoumiesies skreeu en het na die kombuis gehardloop om te kyk
wat gebeur. By die huis in
die kombuis kry ek die oumiesies lê
en
Koko en Tamsanga staan bo-op die miesies. Ek vra toe wat doen
julle. Kom maak ook haar klaar was hulle antwoord aan my. Ek het toe
ook my mes uitgehaal en die oumiesies een hou met die mes gesteek op
haar liggaam aan haar boonste gedeelte van haar liggaam
. Ek wys
nou verder uit waarna ek gegaan het vanaf die kombuis. Ons loop by
gangdeur uit en draai links in die voorhuis in en weer
links deur 'n
deur wat na h tweede sitkamer lei. Nadat ek ingekom het,
het ek op
die klavier gespeel en onder die bank se kussings geld gesoek. Ek het
nie geld gekry nie en gaan ek uit
. Ek het daarna in h slaapkamer
ingegaan. Hy wys aan my die eerste slaapkamer aan linkerkant uit,
maar sê dat hy niks gevat
het nie. Ons beweeg in die gang af
regs in nog h gang en links in by h slaapkamer. Hy sê dat
Tamsanga h video in die kamer
geneem.
Ek het mansklere uit die kas
geneem
. Hy wys h klerekas uit en maak self die deur van die kas
oop.
Ek het ook geld gesoek
ek het ook hierdie kas oopgemaak.
Hy wys h tweede kas uit. Hier het ek ook klere gevat. Dit is al."
(There follows a sketch plan of a
room)
"Daarna is ek saam met die
ander twee weer by die agterdeur uit op dieselfde roete wat
ons
by die huis ingskom het. Daarna is ons links in Unionweg af en het by
die stopstraat regs opgestap terug na Walmer Lokasie. (Geteken
M.E.
MNGXEKEZA (Geteken) J.OOSTHUIZEN
11
Regterduimafdruk van P.N.SHUMI
L.L. Grange Plein
1988.01.07
16h25"
(The underlining is mine)
No 3 formally
admitted that what he told Capt Oosthuizen was said freely and
voluntarily and without having
been unduly
influenced thereto. It was put to Oosthuizen in
cross-examination,
however, that the passages in Exh R which
I
have underlined in Exh "R" did
not emanate from accused No.
3, and that in
minor respects srrors had been made. Thus,
an
insertion should be made at the place indicated by a dagger, "en
ges
ê
, 'Dit
is die plek waar Thamboy klere uitgehaal het'"; and the
penultimate sentence should read, "Daarna is ek saam met
die
ander twee weer by die agterdeur uit op dieselfde roete wat ek by die
huis ingekom het."
Both Oosthuizen and the
interpreter were subjected to a searching cross-examination, and the
heads of argument filed on behalf of
No 3 contain a detailed analysis
of what
12
were said to be defects and
shortcomings in the evidence of Oosthuizen and the interpreter; in
summary, discrepancies between the
evidence of the two of them;
improbabilities on some points; the suggestion that the warning given
to the accused was inadequate;
the charge that the interpreter was
ill-qualified and possibly biased ; and the slips and ambiguities in
his notes which Oosthuizen
admitted.
It is not necessary to make a
detailed examination of counsel's submissions in this regard. The
reason is that Oosthuizen's record
is disputed only in regard to the
passages underlined, and the other two respects mentioned above.
If these passages did not come
from the accused, there would be no room for an honest mistake on the
part of Oosthuizen: these parts
must have been deliberately
fabricated by him. In this context the fact (if it be a fact) that
Oosthuizen, or the interpreter, was
guilty of honest error in parts
of his evidence would not be relevant to show
13
that he was guilty of fabrication
(Cf
S v Oosthuizen
1982(3) SA 571 (T) at 577 B-D).
The trial court
held that it could accept the statements made by No 1, 2 and 3 as
accounts of what they did respectively on 5 January
1988. Not only
did they not produce proof that the statements were wrong in any
respect,
but the facts as reflected therein
were consistent with the
independent
evidence and the probabilities. In the case of
No
3 accused, with whom
I
am
now concerned,
I
have
no doubt that the finding was correct.
In his evidence at the trial, No 3
said that he was acting under duress exercised by Nos 1 and 2 when he
assisted in pillaging the
house and when he accompanied them
afterwards. The trial court had no difficulty in rejecting this
evidence. In my view it was correct
in so doing. In the light of all
the circumstances, it is clear that the explanation for his admitted
conduct was fatuous.
In my opinion the inferences to be
drawn are clear.
14
No 3 participated in the robbery.
He enabled Nos 1 and 2 to gain access to the premises and to arm
themselves with spades. He provided
them with sustenance. He told
them when it was opportune for them to enter the house. He was the
only man in possession of a knife.
On his own admission he inflicted
upon Mrs Ackerman a stab wound in the chest.. The probabilities are
overwhelming that he inflicted
the other injuries to her heart and
lungs. He was well-known to Mrs Ackerman. He must have intended to
kill her - if she lived to
tell the tale he would have been a lost
man. He participated in the robbery.
His appeal against the convictions
must accordingly be dismissed.
In regard to the question of
extenuating circumstances there was little to be said for any of the
appellants.
In regard to Nos 1 and 2 accused
Mr Gess relied on a number of circumstances.
15
"There was
apparent a lack of planning and
premeditation."
On the contrary, it is clear that the
robbery
was planned. That is why the two accused went
to
the
house and the robbery was committed.
Having regard to the fact that their accomplice Pienkie was
well-known to Mrs Ackerman, they
must have foreseen that the death
was a necessary condition if they were to escape the consequences of
their acts.
"Nos 1 and 2 took a lesser
role". This is not so. It is probable that they were the first
to enter the house and make a
brutal attack on Mrs Ackerman with
spades.
"Both Nos 1 and 2 were in
their twenties at the time." There is nothing to suggest that
youth or immaturity played any part
in these crimes.
In the case of
No. 3, it was argued that the trial
court
misdirected itself in a number of respects.
I
do not
think that
the argument is well-founded. It is not necessary
to
go into detail, because even if had been anything in this
16
argument and this court were free
to make its own finding, there is no basis on which we could find
extenuating circumstances. No.
3 was probably the master-mind, and he
was the author of Mrs Ackerman's death. There was before the trial
court. nothing which could
tend to reduce his moral guilt.
The appeals are dismissed.
NICHOLAS AJA.
JOUBERT JA
KUMLEBEN JA Concur