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1992
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[1992] ZASCA 7
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S v Masondo and Another (81/88) [1992] ZASCA 7 (5 March 1992)
Case no 81/88
E du Plooy
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
HENRY MASONDO
First Appellant
SAMPIE MAJOLA
Second
Appellant
and
THE STATE
Respondent
Coram
: VAN HEERDEN, F H GROSSKOPF JJA et VAN COLLER AJA
Heard:
Delivered:
21 February 1992 5 March 1992
JUDGMENT
F H GROSSKOPF JA:
The appellants were both convicted on two counts of murder by Bristowe J and
two assessors at a sitting of the Circuit Local Division
for the Northern
District of Natal. The trial court found that the appel-lants had murdered
Andreas Madonsela ("Mr Madonsela") and
his wife Miya Madonsela ("Mrs Madonsela")
during the night of . 26-27 September 1987 on a farm near Vryheid. The first
appellant
("No 1") was also convicted of raping Mrs Madonsela that night. The
trial court found extenuating circumstances with regard to the
murder of Mr
Madonsela (count 1), but none in respect of the murder of Mrs Madonsela (count
2). The appellants were sentenced to
10 years' imprisonment on count 1, while
both of them were sentenced to death on count 2. No 1 received a further 8
years' imprisonment
on the rape charge (count 3). The trial judge granted both
of the appellants leave
3
to appeal to this court against the sentence of death imposed on each of
them on count 2. On 29 November 1989 this court dismissed
both those
appeals.
The Criminal Law Amendment Act 107 of 1990 ("the amending act") was
promulgated on 27 July 1990 and, save for certain sections which
are not
relevant to the present appeal, came into operation on the date of promulgation.
One of the main objects of the amending
act was to abolish the compulsory
imposition of the death sentence. Section 4 of the amending act provided for the
substitution of
section 277 of Act 51 of 1977. Section 277, as substituted by
section 4, introduced a new approach to the imposition of the death
sentence
which has been set out and explained by this court in a number of cases. (See,
for example,
S v Masina and Others
1990(4) SA 709(A) at 712J- 715A;
S
v Senonohi
1990(4) SA 727(A) at 731I- 733E, 734F-H;
S v Nkwanyana and
Others
1990(4) SA 735(A) at 742E-745G).
4
Section 19(1) of the amending act makes provision for the appointment of
a panel. In terms of section 19(8) the panel is obliged to
consider the case of
every person under sentence of death whose sentence was pronounced before the
date of commencement of the new
section 277 of Act 51 of 1977, and who has in
respect of that sentence exhausted all the recognized legal procedures
pertaining to
appeal or review. The appellants were not excluded by the
provisions of section 19(8)(i) or (ii) and their case was duly considered
by the
panel. On 15 August 1991 the panel made a finding in terms of section 19(10)(a)
that in its opinion the sentence of death
would probably have been imposed on
each of the appellants by the trial court had section 277 of Act 51 of 1977, as
substituted by
section 4 of the amending act, been in operation at the time
sentence was passed on them. As a result of that finding the case of
the two
appellants was submitted to the registrar for the consideration of this court in
terms of section 19(12)(a)
5
of the amending act. That subsection provides that this court shall consider
the case in the same manner as if it were an appeal by
the appellants against
their sentences, and as if the new section 277 of Act 51 of 1977 were in
operation at the time sentence was
passed by the trial court. In terms of
section 19(12)(b) of the amending act this court may confirm the sentence of
death; or, if
it is of the opinion that it would not itself have imposed the
sentence of death, set aside that sentence and impose such punishment
as it
considers to be proper; or set aside the sentence of death and remit the case to
the trial court with instructions to deal
with any matter, including the hearing
of evidence. I may mention that there was no application to remit this case to
the trial court
for the hearing of further evidence.
In considering the
present appeal this court exercises an independent discretion. With due regard
to the relevant mitigating and aggravating
factors, and bearing in mind the main
purposes of punishment, this
6
court must decide whether the death
sentence imposed on
each of the appellants was the proper sentence.
(S v
Bosman
1992(1) SACR 115(A) at 118d-f).
No 1 and his
girl-friend, Thuluzi Sibiya, as well as the second appellant ("No 2") and his
girl-friend, Constance Zungu, lived at
a place some distance from Vryheid. They
had been drinking on the night of 25-26 September 1987. The evidence as to what
happened
the next day and night is set out succinctly in the unreported judgment
of Nicholas AJA dismissing the previous appeal of the appellants.
I cannot
improve on the exposition of the facts contained in that judgment, and I quote
the following passages from it:
"Constance and No 2 were still in bed at about 8 a. m. [on 26 September 1987 ]
when a girl named Sidudla Sibiya arrived. She bore
a message from No 2's sister,
who lived near Vryheid, not far from Madonsela's hut: Andreas Madonsela had
informed the local white
farmer that No 2 had been stealing his sheep. The
sister said that No 2 should not come to her by day because the whites were
looking
for him and they were armed with guns; that money had been lef t with
her by No 2' s brothers, and no 2 should come at night and
collect it, so that
he could flee
7
to his home district. No 1 was f etched f rom his room and told the story.
The two accused were incensed and upset. No 2 'even stated
that he had
slaughtered white farmers' sheep and he was sup-porting Madonsela'. No 1 said to
No 2:
'Well, it's not going to help us in any way if we are going to sit down and not
conf ront Madonsela with this. Madonsela is aware
of our place of residence. He
might bring the police here and many things will be revealed.'
At
about 8 p.m. the two accused and their girl-friends took a taxi to Vryheid. From
there they took another taxi to Mondlo and went
to the house of No 2's sister.
They drank there for a while and then No 2 said, 'Let's go'. The sister said to
them, 'Do not kill
Madonsela. You must just hit him and take his money'.
The four of them walked to Madonsela's house. Each of the accused was in
possession of an Okapi knife. No 1 knocked at the door. He
said ' Please open
the door. It's me, Mduduzi. I am injured.' (This was a ruse. Mduduzi was a man
who often stayed at Madonsela's).
Madonsela replied, 'Mduduzi, go to bed. I will
see you in the morning.' No 2 then picked op a cement building block which was
lying
a short distance from Madonsela's house. He struck the door with it: the
bolt was bent and the door opened. No 1 went inside. There
were screams from the
room. A woman - it was Miya - came running out with No 1 in pursuit. He caught
her and brought her back to
the house. The four of them then left taking Miya
with them. They reached what the witness called 'the dirt road', when No 2
turned
and went back to the house. He returned carrying a radio and a 20 litre
plastic container full of liquor. No 2 poured half
8
the contents onto the ground and instructed Miya to carry the
container. No 1 told her to put it down and come to him. He walked with
her to a
point about 15 m away and then raped her in the view of the others. Afterwards
No 2 asked Miya whether she was married to
Madonsela. She replied that they were
not yet married. No 2 said to her -
Do you like to get married? I am going to
cause you to be married. You are going to have the last marriage!' And No 1 said
-
' Did you see that your husband is dead? He is dead. There is nothing you
can do. I have killed your husband'. Then the five set out
on a journey whose
route it is not easy to follow from the evidence and the meagre sketch plan
which was put in. Miya, on instructions,
was carrying the plastic container
which was half-full of sorghum beer. They walked along a footpath over the veld
which led to a
tarred road. This they crossed. They got onto a dirt road which
runs beside a plantation and past a school. Near there, No 1 said
that the woman
must be killed - he said that he had already killed the man and that No 2 should
kill the woman. No 2 said:-
' I am not going to stab her. I have never stabbed a person in my life. But I
will cut her throat because I am used to cut sheeps'
throats
.'
When they got to a point where the dirt road meets the tarred
road, No 2 ordered Miya to put down the plastic container. She did so
and No 2
led her into the tall grass. He was away for a long time. When he came back he
was carrying his open knife. The woman was
not with him. He said that he had
caused her to run away. He and No 1 spoke together and then asked their
girl-friends; 'If you are
asked what you saw, what are you going to say?'
They
9
replied, 'We will say we did not see anything.'
Miya was later found dead. She had indeed had her throat cut like a slaughtered
sheep. On
post mortem
examination it was found that she had sustained a
deep wound, 14cm by 5 cm, across her neck: the trachea, the oesophagus and both
carotid arteries had all been severed. In addition she had several other wounds
to the neck, shoulders, chest and wrist, (which was
superficial), and one wound
in the rib-cage which penetrated to the lung and up to the superior
venacava.
Next day Andreas was found dead on the floor of his house. He had sustained a
single stab wound just above the right clavicle which
penetrated to the apex of
the lung and cut the sub-clavian ar-tery."
Counsel for the
appellants pointed out that they had consumed intoxicating liquor at intervals
throughout the day on 26 February 1987,
and he submitted that this fact ought to
be taken into account as a mitigating feature in respect of the second
murder.
Constance Zungu and Thuluzi Sibiya were in the company of the
appellants from the afternoon of 26 September 1987 until the next morning.
According to the evidence of Constance Zungu they were walking in the rain that
night and No 1 later remarked that the rain had
10
caused him to sober up. She further testified that No 2 became
intoxicated only after he had killed Mrs Madonsela, and when he had
consumed the
beer in the container which Mrs Madonsela had to carry for him. Thuluzi Sibiya
confirmed that when Mrs Madonsela was
murdered neither of the appellants
appeared to have been affected by the liquor they had consumed during that day.
The possible effect
of intoxicating liquor on the appellants was also raised at
their previous appeal, and this court then dealt with that argument as
follows:
"There was, it is true, abundant evidence that both the accused consumed
intoxicating liquor from time to time during the course
of the day, the last
occasion being at the house of No 2's sister. This was recognized by the trial
court when finding extenuating
circumstances in respect of count 1 : the report
which had been conveyed to the accused through the medium of Sidudla obviously
incensed
them: the liquor they consumed had fanned the flame ignited by
Sidudla's report. But the killing of Miya was on a different footing.
Their
decision in this regard was taken cold-bloodedly and callously. Their actions do
not suggest that the effect of the alcohol
was of any significant order. They
had no quarrel with Miya which the alcohol might have inflamed. She was simply
an inconvenience
who might
11
testify against them and had therefore to be re-moved.
In my opinion there is no fault to be found with this view."
The
above finding of this court was made before the amending act came into
operation, and at a time when the appellants were still
obliged to establish
extenuating circumstances. The concept of extenuating circumstances has since
been abolished by the amending
act, and it is now for the state to disprove
mitigating factors. (
Nkwanyana's
case,
supra
, at 743F-745A). The
evidence shows that the consumption of alcohol by the appellants earlier that
day did not play a significant
role as far as the second murder was concerned,
and in my opinion the effect of the alcohol should not be regarded as a
mitigating
factor.
It was further contended on behalf of the appellants that
while they had the intention to punish Mr Madonsela they never planned to
harm
Mrs Madonsela. However, once Mr Madonsela had been killed they were
12
faced with a problem which, according to counsel,
they were incapable of handling: what to do with Mrs Madonsela. This problem
was,
of course, of their own making. The appellants must, in any event, have
foreseen as a distinct probability that Mrs Madonsela would
be at home that
night. She ran out of the house when her husband was stabbed, but No 1
immediately followed her and brought her back
to the house. When the appellants
and their girl-friends left the house they took Mrs Madonsela with them. The
probabilities are
that the appellants had already envisaged the killing of Mrs
Madonsela at that stage. That was indeed what this court found at the
previous
appeal: "Why else did they take her with them? What else would they do with an
eye-witness to the killing of Andreas?"
After leaving the house they walked a distance of approximately 3 km before
No 2 killed Mrs Madonsela. Counsel for the appellants
agreed that with all the
delays along the road it must have taken them about one
13
hour to cover those 3 km. The appellants
therefore had ample opportunity to reconsider their plan to kill Mrs Madonsela.
They certainly
did not kill her on the spur of the moment or in a sudden panic.
At the stage when she was eventually murdered it had become a premeditated
and
deliberate killing of an eye-witness to a previous murder. The appellants,
acting in concert, certainly had the direct intention
to kill her.
There are indeed serious aggravating features surrounding the murder of Mrs
Madonsela. At some stage during their journey the appellants
openly discussed
her fate in front of her. This was done in a calculated and most callous manner.
The appellants acted with total
disregard for human suffering. Their conduct was
not only inhuman, but also cruel and wicked. And when she was murdered she was
slaughtered
in cold blood.
Counsel contended that No 1 did not take part in the actual killing of Mrs
Madonsela. On the other hand, he was the one who first
suggested that Mrs
14
Madonsela be killed. No 2 was later delegated to
do the actual killing. When he committed the murder he did so in the execution
of
an explicit agreement. The one mitigating factor which applies to both of the
appellants is that neither of them has any previous
convictions involving
violence. In 1986 No 1 was convicted of theft of a motor vehicle and sentenced
to 2 years' imprisonment. No
2 has five previous convictions for stealing sheep
and chickens. For the last two convictions he was sentenced in 1983 to 3 years'
imprisonment and in 1986 to 18 months' imprisonment. Both the appellants have
therefore served terms of imprisonment in the past.
I would agree, nevertheless,
that the possibility of rehabilitation cannot be ruled out in respect of both of
them. But that does
not necessarily mean that their death sentences should be
set aside. The court must also consider the other main purposes of punishment,
and the interests of society, in particular, should not be overlooked in this
regard.
15
The trial court found extenuating circumstances
as far as the first murder was concerned, but not in respect of the second
murder.
The murder of Mrs Madonsela was indeed committed under entirely
different circumstances and for another reason. Mrs Madonsela was
a completely
innocent party who had done nothing to harm the appellants. The only reason why
she had to be eliminated was because
she happened to be an eye-witness to the
first murder. The cruel way in which she was treated by the appellants before
she was murdered,
was particularly reprehensible. It should also be borne in
mind that this was the second murder which the appellants had committed
that
night. In my judgment the death sentence is the only proper sentence for each of
the appellants on count 2.
Both appeals are accordingly dismissed, and the
death sentence of each of the appellants is confirmed in terms of section
19(12)(b)(i)
of Act 107 of 1990.
VAN HEERDEN JA
VAN COLLER AJA Concur
F H GROSSKOPF JA