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[1992] ZASCA 53
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S v Ntaka (324/91) [1992] ZASCA 53 (30 March 1992)
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CASE
NO 324/91
/wlb
IN
THE SUPREME COURT OF SOUTH AFRICA
(A
PPELLATE DIVISION
)
In the
matter between:
MFANAFUTHI
NTAKA
Appellant
and
THE
STATE
Respondent
CORAM
:
HEFER,
VIVIER JJA et NICHOLAS AJA
DATE OF
HEARING
: 10 March 1992
DATE OF JUDGMENT
: 30 March 1992
JUDGMENT
/NICHOLAS
AJA
2
NICHOLAS
JA:
This
is an appeal against two sentences of
death.
The appellant is Mfanafuthi Ntaka ("Ntaka"). He
was
charged in the Durban and Coast Local Division of the
Supreme
Court on four counts: (1) murdering Feni
Makhosazane
Gumede ("Gumede"); (2) murdering V.K.
("K."); (3) raping J.M.H. ("H.");
and
(4) theft of clothing, a purse and cash belonging to
H.
or Gumede. All of the offences were alleged to
have
been committed on the evening of 4 January 1988 and
during
the night which followed at Madundube Reserve in
the district
of Umbumbulu, Natal.
When
arraigned Ntaka pleaded not guilty on each
of
the four counts and said that he had no knowledge of
the
events which gave rise to the charges - during 4 to
5
January 1988 he was at Mfolweni and not at or near
Madundube.
He was found guilty on all four counts.
3
The
action took place at Gumede's kraal at
Madundube.
This consists of a number of structures,
including the hut
where occurred the events to be
narrated
and which will be called "Gumede's hut", and
what
was referred to in the evidence as "the main hut"
which
consisted of a number of rooms.
The
dramatis personae were Gurnede, H., K. and Ntaka. Gumede, according
to the post-mortem
report,
was an obese, grey-haired, elderly female. She
was
aunt to both H. and Ntaka, who are cousins.
H.
was 24 at the time of the trial and Ntaka was
somewhat
older. K. was a teen-age herdboy.
The
main State witness was H., who was the
complainant in count 3
and the only eye-witness.
Evidence
was also given for the State by Mboniseni
Mthembu,
who lived not far from Gumede's kraal - "within
shouting
distance". The reports on the post-mortem
4
examination
held on Gumede and K. respectively were
received
in evidence by consent. The defence admitted
the
facts and findings contained in the reports, and made
specific
admissions that Gumede and K. each died on 4
January
1988 as a result of brain damage caused by
injuries suffered
on that date.
In
giving evidence prior to conviction Ntaka
persisted
in his alibi defence, but after the verdict he
again
entered the witness-box to give evidence in
extenuation.
He then admitted that he had committed the crimes laid to his charge.
Consequently there ceased to
be any serious dispute on the
facts.
The
trial court found that there were no
extenuating
circumstances on counts 1 and 2 and Booysen
J,
who presided, imposed the sentence of death on each of
these
counts, as he was obliged to under
s 277
of the
Criminal Procedure
Act 51 of 1977
as it then stood. On
5
count
3 (rape) and count 4 (theft) Ntaka was sentenced to
10
years' and 4 years' imprisonment respectively.
H.
said in evidence that she and her two
children
visited her aunt Gumede over the Christmas
holidays.
On the evening of 4 January 1988 they and
K.
were together in her hut with Gumede who appears to
have
been lying on a bed. Between 9 and 10 o'clock there
was
a knock on the door. It was Ntaka. He was admitted.
He
had with him a nutted stick, more than a half a meter
in
length, and about 2,5 cm in diameter. He sat on a
bench
near the door, and smoked a dagga cigarette. He
asked
for the key to the house of his parents: this was given to him. He
asked for a candle: a piece of candle
was
given to him. He asked for food, but Gumede told him
that
there was none: she had been away to have her teeth
extracted.
He then asked for money, but Gumede answered
that
she had no money - she had just paid her employees.
At
this stage she stood up and asked Ntaka to leave. He
6
replied
that he was still smoking. Eventually, he stood
up
and made as if to go, but closed the door and turned
and
struck Gumede on the head with his stick. She fell on to the bed. H.
cried out, and Ntaka came and
struck
her on the right forearm. K. stood up to open
the
door, presumably to get outside. Ntaka caught hold
of
him, saying that the boy wanted to be an informer and report him. He
struck K. on the head and when he fell to the floor, he
struck him
again on the head and on the
face.
He then turned to resume his interrupted business
with
Gumede, and struck her again and again. When she
was
lying still, he turned to H. and told her to take
off
her panties. When she did not respond, he took them
off
himself, dropped his trousers and had sexual
intercourse
with her. She did not consent, but submitted
because
she feared that if she did not, he would do to
her what he had
done to the others. When he had
finished,
he told her that they must go and look for
money
in the main hut. He took the keys from the table
7
and
they went together to Gumede's room in the main hut.
Ntaka
ransacked the place looking for money, which he did
not find.
He then collected clothing belonging to
Gumede,
which he packed into three bags. They returned to Gumede's hut. He
looked into the pots and, finding
food
there, said that the dog was stingy with food
although
there was food. He came back to H., who was sitting with her baby on
her lap and told her to put the
child
down. He had intercourse with her again. At about
4
a.m. on 5 January, he had intercourse with her once
more
and then asked her to help him carry the goods to
the
bus stop. He told her that if she mentioned what he had done, he
would kill her - that if she was asked who had done it, she
was to
say that two people had arrived
and
they had caused the damage. She left him at the bus
stop,
and on her way home entered Mthembu' s kraal and
made
a report in the terms which Ntaka had instructed.
On
the Friday, after Ntaka had been arrested, and she
felt "he
would not get me", she told the police the
8
truth.
Mthembu
said in evidence that he knew Ntaka
well:
they both lived at Madundube and had grown up
together.
At about 8.30 on the evening of Monday, 4
January
1988, Ntaka, whom he had not seen for some time,
came
to Mthembu's home. He asked for cigarettes, which were given to him.
He then asked for a stick because, he
said,
he was going to his girl friend and as it was
drizzling
he wanted a stick to sweep the dew from the
grass
in front of him as he walked to avoid getting his
trousers
wet. Mthembu said he did not have a stick to
lend
him, but Ntaka took a nutted stick from the floor.
Mthembu
indicated that it was about 0,75 m long and about
1,5
cm thick. Ntaka left at about 8.40 p.m. H. came
to
his house the following (Tuesday) morning and reported
that
criminals had come to Gumede's place and committed
murder.
In the
report of the post-mortem examination
9
held
on Gumede, it was recorded that she had sustained
multiple
extensive wounds on the face and the left side
of
the head and extensive fractures of the right maxilla and mandible,
the left maxilla and mandible and the left
frontal
bone. There was extensive brain damages under
fractures
in the frontal and temporal areas. The cause
of
death was given as brain damage. A note on the report
reads:
"Injuries caused by a sharp heavy instrument
applied with
great force e.g. an axe."
In
the report of the post-mortem examination
held
oh K., there were recorded a stellate-shaped
laceration
with a depressed fracture at the right
parietal
eminence, with underlying brain damage; a
laceration
on the left temple with a fracture of the
temporal bone and
underlying brain damage; and a
fracture
of the second vertebra of the cervical spine
with
destruction of the spinal cord. The cause of death
was
given as brain damage. A note on the report records:
10
"Head
injuries caused by a blunt instrument and applied
with great
force."
When
Ntaka gave evidence for the second time,
he
said that for six years before her death there had
been
on-going difficulties between Gumede and himself
about
a sum of R80,00 which belonged to him and which she
had
persistently refused to repay. In consequence his
"heart
became sore." buring the day of 4 January, he had
been
smoking dagga. The last occasion was in the
afternoon.
Asked how the dagga affected him in the
evenihg,
he said that he could feel he was drunk. When
Gumede
did not give him food or money, he was upset. He
thought about
the R80,00 and then struck her. He
intended
not to kill her, but just to strike her. K.,
he
said at first, was not killed by him and later he said
he
did not intend to kill K.. He picked up the stick
at
Mthembu's house because "it would assist me in hitting
her."
11
Under
cross-examination he said that he had
been
an habitual smoker of dagga for about seven years.
He
visited his aunt Gumede frequently to demand his
money.
They were not on friendly terms. When he struck
the
herd boy, he was trying to destroy evidence so that
he
would not give evidence in favour of Gumede.
In
answer to questions by the trial judge, he said that he took the
nutted stick from Mthembu because
he
was going to hit "these people" with it. When he
struck
Gumede on the head and she fell down, he decided
to
continue striking her and desisted only when he
noticed
that she was unconscious. He admitted that he
had
sexual intercourse with H., that he took clothing
from
the main hut, and that he slept in Gumede's hut. He
said
that the dagga he had smoked affected him just in
his mind.
The new
regime in regard to the sentence of
12
death
which was introduced by the Criminal Procedure
Amendment
Act 107 of 1990 has been considered in many cases in this court,
perhaps most compendiously in S v
Mlumbi
en 'n Ander, 1991(1) SACLR 235 (A) AT 248i - 250b.
No
purpose would be served by yet another discussion of
the
relevant principles. It is sufficient to say that in
considering
this appeal it behoves this court to make a finding as to the
presence or absence of any mitigating
or
aggravating factors, and then to consider with due regard to that
finding whether it is satisfied that
sentences
of death were the only proper sentences. If this court is so
satisfied, then it will confirm the
sentences.
In
arguing the appeal counsel for Ntaka
submitted
the following as mitigating factors:
The
on-going dispute between Ntaka and Gumede, and
his grudge
against her.
The
effect of the dagga which he had smoked on 4
13
January
1988.
He
did not intend to kill Gumede (whom he struck
"for
the money") or K. (whom he struck "to
destroy
evidence" and so that he would not tell
people that he
had struck them).
He
had only one previous conviction, i.e. on 11
January
1985, for assault with intent to do grievous
bodily
harm in respect of which the sentence was
R50.00 or 50 days
imprisonment.
In
the light of 4, he is not inherently violent and
is capable
of rehabilitation.
He was 22
years old at the date of the crimes.
He
lives at Madundube in a rural area and is
unsophisticated and
poorly educated.
Neither
of the murders was accompanied by any
additional
cruelty or humiliating torture.
Some
of these (viz Nos 1, 2 and 3) were advanced in the trial court and
were dealt with in Booysen J's judgment
on extenuating
circumstances:
14
"In
this matter the question arises now
whether there were any
extenuating
circumstances in
relation to the murder of the
deceased
on count one and the deceased on count
two.
Both
these people were beaten to death by
the
accused with a nutted stick. It has been
submitted
that he was under the influence of
dagga, that that was an
extenuating
circumstance, and
that he bore a grudge against
his
aunt, the deceased on count one, and that the offence was not
premeditated and it was
submitted
that either singly or cumulatively,
these
constituted extenuating circumstances.
The
accused has shown himself to be an
inveterate
liar. It is quite clear from his
conduct
that evening that whatever dagga he had
smoked,
did not affect either his performance physically or his reason. He
decided, even on
his own
evidence which he gave later in
extenuation,
at Mthembu's kraal, that he was
going
to strike his aunt with this nutted stick
which
he took with him. He had the presence of
mind
to give a false but plausible reason for
taking
this nutted stick. It is quite clear
that
he was annoyed because the deceased on
count
one did not give him food or money when
he
asked for it. It seems that he then decided
that
he would beat her with a nutted stick,
because
he then closed the door and then turned
and set about doing
so. Not content with
beating her
once, he carried on until she died.
This
was nothihg more than callous murder.
His
decision thereafter to kill the young boy to ensure that he should
not give evidence
against
him, was a rational but cold-blooded
and
callous decision. It was not premeditated
in
the sense that he decided before going there
15
to
do so, but it was a deliberate killing of an
innocent young
boy.
He
was then, obviously, physically and
mentally
quite fit enough and able enough to
remove
the complainant's panties and to rape
her.
He then,
quite cold-bloodedly and
rationally,
decided to steal the deceased's
belongings,
and, for good measure, to rape the
complainant
again, and also to devise this
story,
which he told her to tell the police.
When
he finally came to tell the truth in
this
case in extenuation, he remembered
everything
he did that night perfectly.
We
find, beyond all reasonable doubt, that
his
mental faculties were not affected by his consumption of dagga to any
material degree,
and
certainly
not to an extent which serves to
reduce
his moral blameworthiness to any
appreciable
extent. It is clear that he
suffers
from no mental defect. He is just a
cold-blooded
and vicious murderer.
He
is such a proven liar that we have no
doubt
that his evidence that the deceased owed
him
R80,00 and that he thought about that when
she
did not give him food or money, is as much
a
cock and bull story as the numerous other
lies he told us.
It
has been suggested that he was guilty
only
of dolus eventualis. He carried on with
these
brutal attacks with a dangerous weapon
and
it is just not so - he deliberately killed
these two people.
After
having told us earlier that he had been on good terms with the
deceased on count one, he tried to convince us in evidence
upon
extenuation, that he had
been on bad terms for
a
long time. It is true that the killing as
16
such
may not have been premeditated in the
sense
that he had already decided at Mthembu's
home,
that he was going to kill the deceased on
count
one, but these killings were nevertheless
deliberate and
intentional.
There
are no ciroumstances that we can find
lessening
the accused's moral blameworthiness in relation to these two murders,
and we find
no
extenuating circumstances in regard to
counts one and two."
I
entirely agree, and do not think that any
of these
three
items can be considered as mitigating factors.
I
deal
briefly with the remaining items:
His
comparatively offence-free record does not in my
view
provide any reason for mitigating the punishment
which
should be imposed for crimes of this enormity.
His
propensity for violence is demonstrated by the
crimes
of which he has been convicted. His conduct on
the
terrible night and his evident lack of any remorse show him to be a
man without conscience and any human
feeling
which might make him responsive to therapy.
I
do
not think his age to be a mitigating factor.
These
crimes are not to be ascribed to immaturity, lack
17
of
experience of life, youthful thoughtlessness or
influence by
others.
For
all that
I
know
Madundube may present a picture of peace and tranquility in contrast
to some strife-torn
areas
in Natal. Lack of sophistication and poverty of
education
áre not known as factors leading towards the
commission
of violent crimes.
I
do
not understand the meaning of the word
"additional"
in the context of these crimes. Ntaka
desisted
only when his victims had succumbed to the
injuries
he inflicted.
As to
aggravating factors, res ipsa loquitur.
Ntaka
went to Gumede's hut bent on robbery. He was armed
with
an ugly weapon. When asked to leave, he attacked
her,
felling her. He then struck H. and went on and felled K. to prevent
him escaping and setting up the
hue and cry. After that he
returned to Gumede to
complete
the unfinished job. He terrorized H., so
18
that she submitted to
sexual intercourse, and to helping him steal Gumede's clothes, and to
acting as a porter to
the bus stop the next morning.
When
one comes to consider whether the death
sentence for these two
crimes is the only proper
sentence,
the fact that there are no mitigating factors
is
not decisive. Rumpff JA said in S v Zinn 1969(2) SA
537
(A) at 540G that what has to be considered in
determining
sentence is the triad consisting of the
crime,
the offender, and the interests of society. Where
the
death sentence is being considered as a possible
sentence,
each of these elements must be anxiously
weighed.
In
this case the crimes are of such enormity
that
the death sentence must be regarded as eminently an
appropriate
punishment for them. It does not seem that
the interests of
society can be served by imposing
19
another
sentence. The offences clamantly call for
extreme
retribution, for the emphatic denunciation of the
crimes
as totally unacceptable in a civilized society and
to
give expression to society's sense of outrage. As to
the
offender, he stands revealed as a cruel and ruthless
killer,
and totally bereft of compassion and any human
feeling.
He had no compunction in sleeping in the same room as his murdered
victims, and one can only wonder
what
would have happened to H. if he had not required
her
as an object on which to slake his sexual urges, and
to
help carry his booty to the bus stop in the morning.
This
is a case absolutely without redeeming features.
The
appeal is dismissed. The sentences of death are
confirmed.
H
C
N
ICHOLAS
Actinq
Judqe of Appeal
HEFER JA ]
] CONCUR
VIVIER JA
]