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1991
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[1991] ZASCA 22
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S v Ngidi and Others (No Case No) [1991] ZASCA 22 (22 March 1991)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
ALOIS NGIDI
First Appellant
SIPHO LILI NGCOBO
Second Appellant
MUSA PHUKU MTHIYA
Third Appellant
SIFISO WISEMAN DLAMINI
Fourth Appellant
AND
THE STATE
Respondent
Coram
: HEFER, VIVIER et EKSTEEN, JJ.A.
Heard
: 15 February 1991
Delivered
: 22 March 1991
JUDGMENT
EKSTEEN
, J.A. :
The four appellants were charged before the Durban and Coast Local Division
with four counts of murder and one of arson. All of them
were convicted on all
counts. They were each sentenced to two years' imprisonment on count 5, viz.
that of arson. Exten-uating circumstances
were found to be present in the case
of the third appellant in respect of each of the counts of murder, and he was
sentenced to 15
years' imprisonment on each count; the sentences on all counts
-including that of arson - to run concurrently. No extenuating circumstances
were found in respect of the
../2
2
other three appellants and they were consequently all sentenced to death on
each of the charges of murder. After an application to
the trial Judge he
granted the first, third and fourth appellants leave to appeal against their
convictions. The first, second and
fourth appellants were granted leave to
appeal against the Court's finding that there were no extenuating circumstances
in their
cases, and against their sen-tences. It is on this basis, therefore,
that the appeal comes before us.
All the charges arise from the burning down
of the hut of one Busisiwe Cele on the night of 30 July 1988. Busisiwe Cele
lived in a
one-roomed hut in the Msunduze area in the district of Ndwedwe in
../3
3
Natal. On the night of 30 July 1988 Busisiwewas at home in her hut with her
daughter, the 25 year old Sizakele Cele; her boyfriend
Mandla Khumalo; and
Sizakele's 4 year old daughter Duduzile Cele, and her 10 month old son
Siphamandla. At about 11 or 11.30 that
night her neighbour Khuzane Ngcobo, who
lived about 100 metres away, noticed that Busisiwe's hut was on fire. He woke up
another
neighbour, Qaphele, and the two of them went to see what was happening.
Out-side the burning hut they found the body of Duduzile
with little Siphamandla
crawling over it. The fire was too intense for them to enter the hut and it was
only the next day, after
the police had arrived, that the charred bodies of
Busisiwe, Mandla
.... /4
4
and Sizakele were recovered from the ashes inside the hut. All three had been
charred to such an extent that the district surgeon
was unable to determine the
cause of death. The body of Duduzile also had first degree burns over the
anterior aspect of the whole
of the left leg and over the right ankle.
Furthermore the district surgeon found an incised stabwound above the medial or
inner end
of the left clavicle. This wound incised the left subclavian artery
and vein, and penetrated the left lung causing it to collapse.
This, in the view
of the district surgeon, was the fatal wound which led to the death of Duduzile.
She also had a lesser incised
wound below the chin, and a bruise on the right
side of her forehead. ,The
.../5
5
intercranial contents showed a small subdural haemorr-age of the mid
occipital area - i.e. at the back of the head.
The evidence connecting the
appellants with the death of these four people and the burning of Bus-isiwe's
hut, was primarily that
of Thulani Ngcobo. He was 15 years old at the time of
the offence and had reached Standard IV at school. He was also the nephew of
the
second appellant and they both lived with Thulani's grandmother.
Thulani
deposed to having been in the com-pany of the four appellants on the afternoon
in quest-ion. While they were at the kraal
of the fourth appellant, one Babs
arrived and offered to buy them
.... / 6
6
some beer. They therefore accompanied Babs to Dixon's Store where Babs bought
a case of beer. From there they went to the home of
Babs' parents-in-law where
they consumed all the beer. Thulani, who was a mere boy in the company of the
adults, was onlý
given one quart of beer, and that was all he had to
drink. Later that night, at about 7 p.m., they left the kraal. Babs and the
appellants
were all under the influence of liquor by that time. They hadn't gone
too far when Babs picked a quarrel with the third appellant.
Knives were
produced and the second ap-pellant, while attempting to intervene, sustained a
cut to one of his fingers. This quarrel
seems to have been settled, but shortly
afterwards Babs and
../7
7
the fourth appellant were at loggerheads. Again knives were produced and the
fourth appellant stabbed Babs on the forehead. Babs then
turned back to the
kraal of his parents-in-law while the four appellants and Thu-lani proceeded on
their way. The road they were
fol-lowing passed close to an abandoned kraal
where Busisi-we had formely lived. At this spot the second appel-lant began
complaining
that Busisiwe had caused him to be arrested, and that he had been
"arrested for nothing". The first appellant expressed his agreement
with this
sentiment, whereupon second appellant reiterated that "Mamkazi (i.e. Busisiwe)
had laid a charge against him for nothing".
Again the first appellant concurred,
and so did the rest.
.... / 8
8
Further along the road they came to a path-way leading to the hut where
Busisiwe then lived. At this spot the first appellant said
to his co-appellants
"Let us go now". He then turned to Thulani and ordered him to carry on walking
"be-cause you are going to cause
the police to arrest us". All the appellants
then produced knives and proceded along the pathway leading to Busisiwe's kraal,
while
Thulani continued walking along the road. A short distance further on
curiosity got the better of him and he stopped to see what
was going to happen
at Busisiwe's kraal, and whether the appellants were in-deed going to stab "the
people there" as they had said
they were going to do. He says he heard the
.... /9
9
sound as of doors being kicked down, and then he heard people from the hut
screaming and crying out that "we are dying". When the
screaming and crying
stopped he saw that the hut was on fire. In the moonlight he saw the four
appellants running down the pathway
from the burning hut to the road, and heard
the sound of their running feet. They laughed as they ran and he recognized
their voices.
Realizing that they were coming towards him, he also began to run,
for fear that they might find him there and assault him for not
going away from
the scene as he was told to do. The last he saw of the appellants was while they
were walking towards a kraal where
they had said they were going in order to
gamble. Thulani says that he ran
../10
10
home and went to bed. He did not see his uncle, the second appellant, again
that night.
In fact the second appellant only got back home the next morning
when he came looking for some-thing to eat. Having had his breakfast
he left
again and returned at about 11 o'clock with the first appel-lant. They
immediately set off for Mngomezulu's . house where
some sangomas were going to
foregather and where a party was to ensue. Thulani says that he tagged along
behind them, and saw the
third appel-lant join the first and second appellants.
They seemed to be in a good mood and began "praising" them-selves. He heard
the
second appellant say "Gentle-men, do you realize that we might not have
managed
../11
11
to catch hold of these people, and that we caught hold of them because I
closed the door". Shortly after this self-commendatory remark
the three
appellants noticed Thulani following them, and they promptly chased him
away.
Thulani's evidence did not stand entirely alone but received some
corroboration from that of Manakazi Ngcobo, the sister of Khuzani
Ngcobo. She
told the court that late that night, after her brother Khuzani had returned home
and gone to bed, she heard people talking
outside. She says that whenever she
hears the dogs barking or people talking outside her house, she looks out to see
who they are
as a pre-caution in case her cattle or goats are stolen. So
../ 12
12
when she heard the people talking this night she open-ed her door and looked
out. There, in the moonlight, she saw the four appellants
and Thulani passing in
the road some 25 paces from where she stood. She knew them all well, - in fact
the second, third and fourth
appellants are all related to her. She also
recog-nized their voices, and from the way in which they were talking she came
to the
conclusion that they were under the influence of liquor. Seeing that they
were all local people whom she knew so well she paid no
further attention to
them.
Some short while later, her brother Khuzani got up and went outside to
answer a call of nature and she heard him calling out "What
is happening there
at
.../13
13
Mamthembu's (i.e. Busisiwe's) house? Is it burning there or what is
happening?" She then also got up and went outside in time to see
Khuzani and
their neighbour Qaphela going up the hill to Busisiwe's hut. She followed them
up, saw the hut burning, and heard Khuzani
and Qaphela remarking that the child
(Dudu-zile) was already dead. They picked up the baby Siphamandla, and took him
home with them.
The motive which Thulani deposed to as having been advanced
for the attack of Busisiwe's home, viz. that she had laid a charge against
the
second appellant and caused him to be arrested, finds confirma-ation in the
evidence of Detective Sergeant Shabalala. He was
the investigating officer in a
case in which
.../ 14
14
Busisiwe Cele was the complainant. He interviewed her on 30 December 1987 and
she showed him certain fresh injuries to her face. He
had her examined by a
doctor and received a report in this regard. In May 1988 the second appellant
was arrested in connect-ion with
this complaint and on 9 May he appeared in the
magistrates court at Verulam on a charge of having assaulted Busisiwe Cele with
the
intention of doing her grievous bodily harm. The matter was then postponed
on three occasions. On 30 July 1988, i.e the day on which
Busisiwe was killed,
second appellant again appeared in court in connection with this charge, and the
matter was again postponed
to 8 August. The reason for all these postponements,
says Sergeant
..../15
15
Shabalala, was because he was still looking for two further suspects to
charge with the same offence. One of these suspects was the
first appellant.
This latter fact tends to lend credence to Thulani's evi-dence that the first
appellant was so ready to agree with
the second appellant's expressed grievance
against Busisiwe, and the leading role that he subse-quently played in
instigating the
attack on Busisiwe's hut.
The four appellants each gave
evidence in which they conceded having been together on that af-ternoon with
Babs at Dixon's Store.
They conceded that Babs had bought a case of beer, and
that they had all gone to Babs' parents-in-law's home to consume
.../16
16
the beer. Thulani, they agree, was with them. They also concede that later
that night they left; that Babs picked a quarrel first
with the third appellant
and then with the fourth appellant, and that the fourth appellant stabbed Babs
on his forehead. Thereafter
they say Babs returned home, the fourth appellant
went off on his own, while the other three appellants made their way to
Mngomezulu's
kraal by a route which did not take them anywhere near Busisi-we's
hut. None of them know what happened to Thulani, but they say
that after Babs
had turned back Thulani was no longer in their company.
The trial court
accepted the State's evi-dence that I have referred to, and rejected the
evi-
.../17
17
dence of each of the four appellants. They were there-fore each found guilty
on the four counts of murder and on the arson count.
When it came to the
considera-tion of extenuating circumstances the second appellant returned to the
witness box. This time he told
the court that after returning home from
Mngomezulu's house on the night in question, he noticed - apparently for the
first time
- that Thulani was no longer with him. He therefore decided to go and
look for him. On his way he passed Busisiwe's hut, and remembered
that she had
laid a charge against him. He therefore went to her hut and opened the door. The
lamp was burning in the hut and all
the occupants were alseep. He says he first
looked around for a weapon to stab
..../18
18
Busisiwe with, but, being unable to find one, he deci-ded to set fire to the
hut. This he did. He closed and locked the door; and
went home. In
cross-examina-tion he continually shifted his ground, with the result that his
evidence was rejected as being patently
un-truthful.
He also called his
mother Alzina Ngcobo to give evidence. She told the court that when Thulani got
home that night he was very drunk.
She too ap-peared to the court to be unworthy
of credence and her evidence was rejected.
In argument before us it was
contended that the trial court ought not to have accepted the evidence of
Thulani and that of Manakazi
and that therefore
../19
19
the convictions of the first, third and fourth appel-lants could not stand.
It was submitted that Thulani was a single witness; that
because of his
youthful-ness the trial court ought to have treated his evidence with caution;
and, relying on the evidence of Alzina
Ngcobo, that Thulani was so drunk on the
night in quest-ion that his evidence of events could not be accepted. This
latter argument
loses sight of the fact that Al-zina's evidence was rejected by
the trial court. On a mere reading of her evidence it is apparent
that she is by
no means an impressive witness and that there is no reason to differ from the
trial court's rejection of her evidence.
As far as the alleged youthfulness of
Thulani is concerned, as though he
.../20
20
were a child of tender years, suffice it to say that he was a boy of 15 years
of age at the time of the offence, and 16 when he gave
evidence. He cannot
therefore be regarded as a young child of tender years in respect of whom the
cautionary rule would apply (
S. v. Artman and Another
1968 (3) SA 339
(A)
at p 341). Despite this fact, however, the court a
quo
, in assessing the
credibility and reliability of his evidence, did have regard to his youth and to
the fact that he was, to a large
extent, a single witness. It is clear from the
judgment that the-trial court went to great pains inanalyzing and testing
Thulani's
evidence. It came to the conclusion that he had given his evidence
well, in an unpretentious
.../21
21
manner, without overstating facts and with an appear-ance of naturalness. It
had no hesitation in accept-ing his evidence, and no
good reasons have been
ad-vanced for us to differ from this conclusion.
The trial court also
accepted the evidence of Manakazi and that of Sergeant Shabalala, and once again
no sufficient reasons have been
advanced to persuade us that it was wrong in the
conclusion to which it came.
It was not seriously contended before us that
the trial court was wrong in rejecting the evi-dence of the appellants. The
learned
Judge a
quo
has referred in his judgment to the unsatisfactory
features in their evidence, and we see no reason to
..../ 22
22
differ from him in this respect.
In the result therefore, the appeals of
the first, third and fourth appellants against their con-victions cannot be
sustained. As
I have indicated, the trial court found extenuating circumstances
in the case of the third appellant, and sentenced him to a term
of imprisonment.
There is no appeal against this sentence. We are, however, called upon to
consider the appeals against the sentences
of the other three appellants.
The
trial in this case took place prior to the promulgation of the Criminal Law
Amendment Act 107 of 1990. This Act amended the law
relating to the imposition
of the death sentence in several
.../ 23
23
important respects. The whole concept of extenuating circumstances as it
existed under the previous section 277 of the Criminal Procedure
Act has been
done away with. A trial court is now enjoined to consider the presence or
absence of mitigating or aggravating factors,
before the presiding Judge is
called upon to decide, having due re-gard to such finding by the court, whether
the sentence of death
is the proper sentence to pass. (See 4(2) of Act 107 of
1990.) Moreover in considering an appeal against the imposition of a death
sentence this court exercises an independent discretion of its own, in the sense
that if it is of the opinion that it would not itself
have imposed the death
sentence it may impose "such punishment as it considers to be proper".
..../24
24
(Sec. 13(b) of Act 107 of 1990, and see
S. v. Masina and Others
1990
(4) SA 709
(A) at p 712 I - 714 E;
S. v. Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727
(A) at
p 732 H - 733 E;
S. v. Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at p 742
I - 745 G and
S. v. Mdau
[1990] ZASCA 126
;
1991 (1) SA 169
(A) at p 173 H - 174 H.) We must
therefore consider, in the exercise of our own discretion, having due regard to
the findings of
the court a
quo
, and to such mitigating or aggravating
factors as appear from such findings, whether the sentence of death is the only
proper sentence
to pass.
In considering the circumstances of each of the
appellants in turn it is perhaps convenient to start with the fourth appellant.
He
told the trial
.../ 25
25
court that he was some 25 years of age at the time of the commission of the
offence. He admitted one pre-vious conviction when in
1981 he was convicted of
having been in possession of a dangerous weapon and sentenced to corporal
punishment. Like the third appellant
the fourth appellant did not, on the
evidence, have any personal grudge against Busisiwe, and would seem to have gone
along with
the other three appellants simply because he happened to be in their
company at the time. The fact that they had been drinking that
night and that
they were, on Manakazi's evidence, ob-viously under the influence of liquor,
tends to lend some substance to such
an inference. The trial court, too, found
that the appellants had consumed "a
..../26
26
considerable quantity of liquor" that day. He would therefore seem to have
been in very much the same po-sition as the third appellant
in this respect,
with the only real distinction being that whereas the third appellant was some
19 or 20 years old at the time, the
fourth appellant was 25. He ought therefore
to have possessed a greater strength of character to resist the suggestions of
the first
and second appel-lants to go and kill Busisiwe, than the third
appellant. Where essentially the same circumstances prompted the court
to find
that extenuating circumstances had been proved in the case of the third
appellant, it seems to me that the mitigating factors
present in the case of the
fourth appellant weigh so strongly that it cannot
../ 27
27
be said that the death sentence is the only proper sentence in his case, and
that a period of imprisonment would be a more appropriate
sentence. Having
regard to his age at the time, and the greater maturity that it brings, as well
as to the gruesomeness of the mur-ders
committedf it seems to me that a sentence
of 20 years' imprisonment on each of the four counts of murder would be
appropriate. As
in the case of the third appellant, however, the sentences on
all the counts on which he was convicted will be ordered to run
concurrently.
The first and second appellants were, on the evidence, the two
that were primarily responsible not only for the conception of the
plan to
attack Busisiwe's
../28
28
home, but also for seeing it through to its gruesome conclusion. On the
evidence it was the second appellant who first broached the
subject when the
four of them got to the place where Busisiwe had formely lived. The fact that he
had had to appear in court that
very day in connection with the charge she had
laid against him, would seem to have rankled in his mind, and made him so
readily
susceptible to the insidious encourage-ment of the first appellant. That
the second appellant also played a leading part in the actual
killing of the
occupants of Busisiwe's hut, is reflected in his boast-ing to the first and
third appellants the next day when he
commended his own initiative in preventing
their victims from escaping from the hut.
../29
29
In his evidence the second appellant told the court that he was 18 years old
having been born on 26 May 1971. His mother, in her evidence
said that he was 20
years old - and then added that he was born in 1966. If this were so then he
would have been 23 years old at
the time of the trial. By agreement between the
prosecutor and the second appellant's coun-sel a report by a senior radiologist
in
the Natal De-partment of Hospital Services of the results of an X-ray
examination of second appellant for the purpose of a bone age
assessment was
handed in. From the re-port it appears that all the epiphyses, except those of
the sterno-clavicular joints which
fuse at 25 years of age, had already fused.
These included the
.../ 30
30
epiphysis of the pelyis and hips which, according to the report, fuse between
the ages of 22 and 25 years. In the result, it was conceded
that the report
indica-ted that second appellant's age must be between 22 and 25 years. This
would accord with his mother's evidence
that he was born in 1966. He must
therefore have been about 22 years of age at the time of the commission of the
offence.
The second appellant admitted one previous conviction viz. of
assault with intent to do grie-vous bodily harm incurred on 25 April
1988 - i.e.
shortly before the commission of the present off-ence.
The aggravating factors that I have mentioned
.../
31
31
above - and particularly the brutal mercilessness of the killings and the
levity with which the second appellant seems to have treated
the whole matter,
must weigh very heavily against him.
The only mitigating factors to be taken
in-to account seem to me to be the degree of intoxication under which he
happened to be at
the time, and the insidious incitement of the first appellant
who was a good deal older than he was. To a lesser extent his comparative
youthfulness may also be borne in mind. After very careful consideration of all
these features I find myself unable to say that the
death sentence is the only
proper sentence in the case of this appel-lant. A sentence of 25 years'
imprisonment seems to
../32
32
be an equally appropriate sentence.
The first appellant however seems to fall
into an
entirely different category. He too, was
a suspect in the assault of Busisiwe
of which she
had complained to the police, and he was quick to
stir up the
fires of the second appellant's discon-
tent on the night in question. It was
he who drew
his knife and raised the final cry of "Let us go now"
when
they got to the pathway leading to Busisiwe's home.
The next day he was again
seen in the company of the
second and third appellants, and Thulani heard
them
"praising" themselves on the way in which they had
accomplished the
murders.
In his address to the court on extenuation
../33
33
the first appellant's counsel told the court that first appellant had been 24
years of age at the time of the commission of the offence.
However, when his
previous convictions were put to him he admitted that on 23 September 1977 he
had been sentenced to 12 months'
imprisonment for an assault with intent to do
grie-vous bodily harm and to a further 6 months' im-prisonment for robbery. If
he was
only 24 years old at the commission of the present offence, then this
would have made him no more that 13 years old in 1977 when
he was sentenced to
18 months' imprisonment. This seems to me to be so highly improbable as not to
be reasonably possible. He must
at least have been some 5 or 6 years older in
order to have had
../34
34
such a long term of imprisonment imposed on him. On this basis it seems to me
to be safe to assume that first appellant must have
been more or less 30 years
of age at the time of the commission of the offences in question.
The two
previous convictions I have refer-red to above were by no means the only ones
that first appellant admitted to. In 1981 he
was sen-tenced to 2 years'
imprisonment for theft, and in 1983 he was sentenced to 3 years' imprisonment
for robbery. Then on 23
August 1989 - i.e. after the commission of the present
offences - he was sentenced to 20 years' imprisonment for murder with
extenuating
circumstances. Although this latter conviction was
..../ 35
35
one which was incurred after the commission of the present offences, it is
nevertheless a relevant ag-gravating factor to be taken
into account in the
determination of a proper sentence (
R. v. Zonele and Others
1959 (3) SA
319
A at 330 D - 331 A).
Despite the degree of intoxication to which the
first appellant together with his co-appellants was subject, the aggravating
factors
which I have mentioned weigh so heavily that I have come to the
conclusion that the death sentence is the only pro-per sentence to
be imposed in
his case for so heinous a crime.
In the result: (a) the appeals of the first, third and
fourth
../36
36
appellants against their convictions are dismissed;
(b) the first appellant's appeal against the sentences imposed on him is
dismissed;
(c) the second appellant's appeal against the sentence on count 5 is dismissed.
His appeal against the sentences on counts 1, 2,
3 and 4 succeeds and for the
death sentence is substituted a sentence of 25 years' imprisonment on each
count. It is further ordered
that the sentences on all five counts will run
concurrently;
(d) the fourth appellant's appeal against the sentence on count 5 is
dismissed,but his
../37
37
appeal against the sentences on counts 1, 2, 3 and 4 succeeds and for the
death sen-tence a sentence of 20 years' imprisonment on
each of these counts is
substituted. It is further ordered that the sentences on all five counts will
run concurrently.
J.P.G. EKSTEEN, J.A.
HEFER, J.A. )
concur VIVIER, J.A. )