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1990
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[1990] ZASCA 160
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S v Ntuli (22/90) [1990] ZASCA 160 (30 November 1990)
IN THE SUPREME COURT OF SQUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
SIBONGISENI NTULI
Appellant
AND
THE STATE
Respondent
Coram: JOUBERT, ACJ,
SMALBERGER et EKSTEEN, JJA
Heard
: 16 November 1990
Delivered:
30
November 1990
JUDGMENT
EKSTEEN
, JA :
The fourteen counts contained in the indict-
ment and the evidence led in support of them reflect
a saga of unbridled violence and terror stretching
over a period of more than a month. Seen chronologi-
cally the following picture emerges. Early on the
morning of 9 September
1988 three men wearing bala-
clavas burst into the premises of Coastal Traders at
Shakaskraal and demanded "money and the gun". While
one man pointed a heavy calibre revolver at the pro-
prietor, Mr. Singh, and another man threatened his
assistant with a long knife, the third man stole a
brown leather briefcase containing about R800 and a
9 m.m. parabellum pistol that belonged to Singh.
../2
2
(Count 1.)
Some eleven days later, on the morning of 20 September 1988,
four men walked into the home of Mrs. Ramdan at Buffelsdraai. They had
already
caught her young gardener, and brought him into the house as their captive. They
threatened Mrs. Ramdan with a pistol and
a cane knife, and demanded money and
guns. They assaulted her by hitting her on her head with the flat side of the
cane knife until
she lost conscious-ness. Eventually they made off with a
variety of clothing and household goods; R400 in cash; and a 12 bore shotgun
in
its gun-case with an ammunition belt containing 35 rounds of ammunition. (Count
14.)
Another ten days passed and then early on
../3
3
the morning of 30 September 1988 four men came to the house of Mrs. Govender
at Tea Estate, Inanda. Two stood outside the house, while
the other two, wearing
balaclavas, entered the house. One was armed with a pistol, and the other with a
knife. They threatened Mrs.
Govender, who was still in bed, and demanded money
and a gun. She told them to take what they could find. They took an air-gun and
a typewriter. When Mrs. Govender's domestic servants arrived for work the
robbers fled. As they ran off she heard two shots being
fired. The typewriter
was subse-quently found broken and abandoned in a sugar-cane field. (Count
2.)
Five days later on Wednesday 5 October
1988
../4
4
at about 6 o'clock in the morning while Mrs. Dhanmat-hee Singh was preparing
breakfast for her husband and her four young children
in their home at
Rietriver, near Verulam, three men wearing balaclavas walked in-to her house.
One was armed with a pistol, and ano-ther
one with a long knife. The first one
to notice them as they came in was her 15 year old son Divash. He immediately
ran into the kitchen
and told his mother that "there were rogues in the house".
She turned round and saw two men standing in the doorway. One of them
had a
fire-arm in his hand which he point-ed at her. Mrs. Singh got such a fright that
she just snatched up her baby and ran out
of the kitchen followed by young
Divash. As she ran she heard a
../5
5
shot being fired in the kitchen. The third intruder,
whom she describes
simply as "a black man" stood just
outside the kitchen door, and tried to
grab Mrs. Singh
as she ran out. She managed to break loose and rolled
down
an embankment with her baby still in her arms.
As she rolled down, she says,
she heard another shot
being fired. This shot seems to have been aimed at
young Divashwho was also running away. He was wound-
ed in his left shoulder, but managed to make good his
escape. In the meantime Mrs Singh's husband, Ramesh
Singh, had been busy making posters in his little work-
shop which was situated close to the main house and
near the kitchen door. Aroused by all the commotion,
he came out with his metre-stick in his hand. When
.... / 6
6
he saw what was happening he "became hysterical and started screaming" says
Divash, and he too tried to run away. Divash heard another
shot ring out and saw
two of the intruders chase after his father. They caught up with him. A struggle
ensued. Yet another shot ran
out. Ramesh Singh had been shot in his back. The
bullet passed through both lungs and emerged in the vicinity of his left
shoulder.
By the time his "neighbours and relatives" got to him he was dead.
Mrs. Singh's clothes had been thrown out of her ward-robe but
all she could
ascertain having been taken was some "0.K. Bazaars' money" i.e. paper tokens
resembling money issued by the O.K. Bazaars
to members of their
staff, and which could presumably be exchanged for goods
../7
7
acquired from their employer. The value of the to-kens taken by the robbers
was between R60 and R70. These events - the murder of
Ramesh Singh, the
attemp-ted murder of Divash, and the robbery on the Singh household - formed the
subject matter of Counts 3, 4
and 5.
The very next day, on 6 October 1988 this gang of robbers continued their
reign of terror. By way of a change they now struck at night,
and not early in
the morning as they had hitherto done. At about 10 o'clock that night while
Mavis Ngubane and her husband Johnny
Nene were asleep in their bed, they were
awakened by a knock on their window and bright torch light shining into their
room. A voice
from
.../ 8
8
outside told them to open up as they were policemen. Before Mavis could get
to the door, however, it was kicked open, and three men
came into the room. One
of them wore a balaclava. Another wore a widebrim-med hat. Mavis could not see
what the third one wore as
she was blinded by the light of the torch. One of
them was armed with a fire-arm which he pointed at her and demanded money. She
gave him R46. They were not satisfied with this, and after hitting her and
threatening to shoot her they induced her to give them
a further R300. They also
took two wrist-watches, an overcoat, a yellow torch and a pot of meat. Johnny
Nene was made to kneel on
the floor. They demanded of him to show them where he
kept his fire-arm. His
../9
9
reply that he did not possess one seemed to satisfy
them and they left.
(Count 7.) |
From Mavis Ngubane's house they proceeded
to the
nearby house of Sylvia Luthuli. She and her
daughter Khanyisele Dlamini were
awakened by a knock
on their door. A voice from outside announced that
they were the police. Before Sylvia could open the
door, it was kicked open. Five black men entered.
One was armed with a
"revolver", another had a knife,
and two of them had torches. They demanded money,
hit Sylvia with a stick, and forced her to open her
wardrobe. They threw everything out of the wardrobe
until they found R190 in cash which they took. They
then stabbed Sylvia in her chest, and turned their
.../ 10
10
attention to her daughter. Sylvia managed to jump out of the window and ran
to her neighbours for help. When she returned with her
neighbour the robbers had
fled. They found Khanyisele cowering under the bed. She had been stabbed in her
left buttock. (Count 8.)
The appellant in the Court a
quo
pleaded not
guilty to all the counts I have so far referred to and denied all knowledge of
the events, and consequently de-nied that
he had been present at any of them.The
Court however disbelieved him and convicted him on counts 2, 3, 4, 5, 7, 8 and
14. On count
1 he was acquitted on the ground that there was insufficient
identifying evidence.
Despite the fact that the Court a
quo
had
granted appellant leave to appeal against his
convict-
ions on all counts, Mrs.
Collett
, who appeared on his
../ 11
11
behalf before us, conceded that she was unable to ad-
vance any argument
against the convictions were not
justified on the evidence. This concession was, in
my view, wisely made.
There was cogent evidence
linking the appellant to each of the counts on which
he was convicted. .
The remaining counts on which
he was convicted viz. counts 10, 11, 12 and 13 fall
into a somewhat different category in that the ap-
pellant concedes that he was present at these events
but denies complicity on the ground that he was so
drunk that he did not know what was happening about
him. The events giving rise to these latter counts
are as follows.
On 18 October 1988 just before 7 p.m.
Stanford
../12
12
Nkonzo, the owner of the Zamukuzakha Store was relax-
ing in the kitchen rondavel of his residence after
having had his supper. His wife, Gretta,and his
daughter Thokozile were with him. Thokozile was busy
making tea for them
when the appellant burst into the
room with a fire-arm in his hand and said
"Yes Stan, here we are. Produce the money and also if you have a fire-arm bring
it along."
Thokozile says she recognized the appellant at
once.
She knew him well. In fact he was related to them.
She says he appeared to be perfectly sober.
Stanley's reaction to this challenge was to
get up and push the door to. Gretta helped him push.
It would appear that appellant retreated out of the
../13
13
rondavel but kept his foot in the doorway so that the
door could not be
closed. He and his companions tried
to push the door open. While this pushing
to and fro
was in progress a torch was thrust into the rondavel
through the opening and it shone into Gretta's eyes.
She grabbed the torch and tried to wrest it from the
person holding it. A shot was then fired which hit
her on the left side of her chest, causing her to fall.
The door was now forced open. Stanley Nkonzo was
grabbed by the attackers and pulled outside. Gretta
managed to get up and also ran out. So did Thokozile.
Thokozile says as she ran out she noticed that her
father had been forced down onto the ground next to
the door of the rondavel and was being shot at point-blank
../14
14
range as he sat. Stanley Nkonzo died of his inju-ries and at a post mortem
examination he was found to have been shot some 2 cm. from
the midline of the
sternum - the bullet passing through the 6th costal cartilage, the diaphragm,
the liver, stomach, small intestines
and emerging in the left flank. He had also
been stabbed in the right loin and in his back.
Thokozile says she just
noticed a number of men standing round her father and one of them shooting him.
She could not say who fired
the shot nor could she recognize any of the other
men. She ran to her sister's kraal which was close by. As she ran she saw a
motor
car parked near a water pump, and she noticed someone sitting in the car.
when
../ 15
15
she got to her sister's kraal and imparted the news,
her sister and her
sister's children came out and
started screaming. She then saw four or five
men
running away from her parents' home, getting into
the waiting car and
driving off.
Gretta says when she emerged from the
kitchen rondavel she also saw her husband being
shot. She was grabbed by two men and hustled into
a two-roomed structure comprising their diningroom
and bedroom. She says
that the men demanded that she
show them where the money was. When she did not re-
spond another shot was fired and she lost conscious-
ness. She later
regained consciousness when Thoko-
zile and her neighbours came to pick her up. Her
.../ 16
16
clothing had been thrown out of her wardrobe and an amount of about R100,
which had been on top of the wardrobe, had been stolen.
These events
comprised counts 10 (the attemp-ted murder of Gretta Nkonzo), 11 (the murder of
Stanley Nkonzo) and 12 (the armed robbery
of the Nkonzo house-hold).
Appellant and his companions drove off from Stanley Nkonzo's house along the
Deemount Ridge road in the direction of Port Shepstone.
After they had gone some
5 kilometres, at the Mbande bus stop, their car left the road and overturned.
None of the occu-pants seems
to have been injured in this mishap. Shortly
afterwards, at about 8 o'clock that night,
../17
17
one Cecil Mbotho happened to be passing this spot in his Toyota Corolla motor
car. He was accompanied by some friends. As they approached
the scene they
noticed people next to the road flashing a torch as if in distress. They stopped
and one of the men came to the car
and asked Mbotho whether they wouldn't take
an injured person to hospital. While this person was talking to Mbotho, another
man came
up to the driver's door. This man had a gun and he promptly fired a
shot into the car. At this stage there were five men standing
round the car.
They ordered Mbotho and his passengers to get out, and then, at gunpoint, took
them to a "trench" or culvert next
to the road where they were made to lie down.
The robbers then got
../18
18
into Mbotho's car and drove off with it. This robbery formed the subject
matter of count 13.
The appellant's defence of excessive drunken-ness was
rejected by the trial Court and he was convict-ed on all four counts. Again
the
correctness of these convictions was not contested before us.
The appellant
was sentenced to various terms of imprisonment in respect of all but two of
these offences. Leave was granted to appeal
against the sentences on all counts,
but once again no argument was addressed to us to suggest that any of these
sentences of imprisonment
was not appropriate. In my view they are, and there is
no need to refer to them any further. In respect of the two convictions of
../19
19
murder i.e. on count 3 (the murder of Ramesh Singh) and count 11 (the murder
of Stanley Nkonzo) no exten-uating circumstances were
found and the appellant
was consequently sentenced to death on each count. Argu-ment in this appeal was
directed solely at the senten-ces
on these two counts.
The requirement of a trial court having to consider whether extenuating
circumstances exist or not has fallen away by the promulgation
of Act 107 of
1990 ("the new Act"). In terms of section 4 of the new Act a trial court is
enjoined to make a finding "on the presence
or absence of any mitigating or
ag-gravating factors", and the presiding judge will then, "with due regard to
that finding", only
impose the
../20
20
sentence of death if he is satisfied that it is the proper sentence - i.e.
that it is the
only
proper sentence (
S. v. Nkwanyana and 2 Others
,
an unreported judgment of this Court delivered on 18.9.1990, and
S. v.
Mdau
, also an unreported judgment of this Court delivered on 28.9.1990)
Section 13(b) of the new Act gives this Court an unfettered discretion
on appeal
to set aside a death sentence if it is of the opinion that it would not itself
have imposed it, and to "im-pose such punishment
as it considers to be proper".
Furthermore section 20 requires us to consider the present appeal "as if
sections 4 and 13(b) had
at all relevant times been in operation".
We are therefore required to have regard
../21
21
to all the mitigating and aggravating factors which may emerge from the
evidence as a whole (
S. v. Seno
-
nohi
, an unreported judgment of
this Court delivered on 17.9.1990 and
S. v. Mdau
, supra). In this re-gard
it must be borne in mind that a "mitigating fact-or" has a wider connotation
than an extenuating cir-cumstance
(
S. v. Masina and Others
, an unreported
de-cision of this Court delivered on 13.9.1990).
In the course of her argument Mrs.
Collett
submitted that in the
present case the "mitigating features" outweigh the "aggravating features" and
that therefore the death sentence
was not the only proper sentence. Mr.
paver
, on behalf of the respondent, on the other hand submitted that the
"aggravating
../22
22
features" far outweigh "the mitigating features" and that therefore the death
sentence was the only proper sentence. I do not think
that the issue can be as
sim-plistically resolved as that. It is true that the new Act requires the trial
judge to have due regard
to the aggravating and mitigating factors found by the
court, and in considering an appeal against a death sentence this Court will
also have due regard to them. In this sense one may talk of a weighing up of the
one against the other. The ultimate exercise of
the discretion both of the trial
judge and of this Court, however, re-mains untrammelled. In addition to the
aggravating and mitigating
factors regard may also be had to other
considerations such as the interests of society.
.../23
23
The recognized purposes of punishment - i.e. the de-terrent, preventative,
reformative and retributive purposes - would also be relevant
considerations to
be weighed. So even if the aggravating factors do out-weigh the mitigating
factors when considered on their own,
it does not follow that the death sentence
would, in the circumstances of the case be the proper sentence. Other
considerations,
such as those that I have mentioned may well be not only
relevant, but decisive (
S. v. Nkwanyana
,
supra
).
The appellant
was initially charged together with one Boy Mthembu. At the commencement of the
trial, however, the prosecutor informed
the Court that Mthembu had escaped from
custody, and that he was still
../24
24
at large. The trial then proceeded against the appel-lant alone. An important
part of the evidence against him was a confession made
to a magistrate on 23
Novem-ber 1988. In this confession he admitted his compli-city in several of the
charges against him and he
named those who were with him on each occasion. Boy
was mentioned as having been present on each occasion. Ballistic evidence showed
that the pistol stolen from the complainant in count 1 (Mr. Singh) had been used
in several of the subsequent robberies and in both
the murder charges. This
pistol was subsequently re-covered by the police from one Leonard Sosibo to whom
Boy Mthembu had sold it
for R400. Boy Mthembu would therefore seem to have
played'an important part in the
../25
25
crimes referred to in the indictment.
With reference to the murder of
Ramesh Singh the appellant in his confession alleged that Boy had fired the shot
that killed Singh.
From the evidence of Mrs. Singh and her son Divash, three men
attacked their home that fateful morning of 5 October 1988. They were
unable to
recognize any of their assailants and could give no indication as to who had
shot Singh. The appellant's guilt on this
count before us rests on the doctrine
of common purpose. He clearly made common cause with his two companions, and is
as guilty of
the murder of Ramesh Singh as the man who fired the fatal shot.
Where, however, it cannot be shown that he actually fired the shot,
his
intention to kill must
../26
26
be seen as
dolus eventualis
. This would make no dif-ference to the
conviction but would be a relevant con-sideration when it comes to
sentence.
The appellant was a comparatively young man at the time the
offences were committed. On 8 December 1989 a district surgeon, after
examining
him, fixed his age at "between 22 years and 24 years and most probably 24
years". This would make him between 21 and 23
years old at the time of the
commission of the offences. He appears to have been a somewhat unsophisticated
per-son who worked as
a casual labourer. He only had one previous conviction
viz. for housebreaking with intent to steal and theft committed in 1983. He
was
treated as a juvenile at the time and was given corporal
../27
27
punishment.
In the light of these circumstances and in
view of the fact that his intention was in the form
of
dolus
eventualis I do not think that it can rightly
be said that the death sentence
is the only proper
sentence to be imposed. As was pointed out in
S
. v.
Nkwanyana
(
supra
) the death sentence will under
the new Act be
confined to exceptionally serious cases
where it is imperatively called for.
This does not
in the circumstances seem to me to be one of those
cases.
Taking all the relevant features into con-
sideration I consider a sentence
of 20 years' impri-
sonment a proper sentence.
As regards count 11 (the murder of
Stanley.
../28
28
Nkonzo) different considerations would seem to apply. The offence was a very
serious one in that Stanley Nkonzo was dragged from the
sanctity of his own
home, and shot in cold blood without any provocation at all. The sole motivation
for this brutal murder was greed
-the desire to rob the unfortunate Nkonzos
ofwhatever money they may have had in their possession. As it turned out this
was not
very much.
What makes it worse for the appellant is that he knew Nkonzo and was related
to him. He had often visited the Nkonzo home in the past,
and probably guid-ed
his fellow robbers to the scene. Having got there he played a leading role by
bursting into the kitchen rondavel
and threatening Stanley Nkonzo with a
fire-
../29
29
arm. The trial Court rejected his excuse that he was so drunk that he could
not remember what had happened or what he had done.
There was no direct
evidence as to who had fired the shot that killed Stanley Nkonzo, but in view of
the fact that the appellant was
seen shortly before in possession of a fire-arm
the probabilities would seem to point to him. In fact in the section 119
proceedings
before the magistrate when the appellant was asked what he had done
he replied -
"I killed Stanford Nkonzo with a fire-arm."
Thokozile says that she only
saw one fire-arm that evening, and that that was the one the appel-lant had.
Thokozile, however, did
not see the other
../30
30
people who were outside the rondavel until she herself
ran out. Then she
gave them no more than a cursory
glance as she ran off in terror. She was
unable to
say who the person was who shot her father. The trial
Judge
unfortunately refrained from making any positive
finding on this issue. Presumably because of the view
he took of the
appellant's guilt on the doctrine of
common purpose, he says in his
judgment:
"Despite what the accused said in his plea expla-nation in the Magistrate's
Court, we are prepared to assume for the purposes of
this judgment that it has
not been established beyond reasonable doubt by the evidence who fired the shots
which killed the deceased
in counts 3 and 11, or the shots which wounded the
complainants in counts 4 and 10."
As I have pointed out the trial Judge was
../31
31
perfectly entitled to take this view as far as the conviction was concerned,
but when one comes to a consideration of the proper sentence
to be imposed it is
of considerable importance to decide whether the
mens
reawas
dolus
directus
or
dolus
eventualis. In the present case the Court a quo
made no such find-ing, but expressly left the matter open despite what the
appellant
had said in the section 119 proceedings. On appeal therefore, despite
those indications to the contrary to which I have referred,
I am not disposed to
find against the appellant that he killed Stanley Nkonzo with
dolus
directus
, but must accept as the trial Court did, that it was
dolus
eventualis
. This, as I have already indicated, has an important
../32
32
bearing on sentence.
The offence, as I have said, is a serious one, and
had it been shown that the appellant had had the direct intention to kill this
may well have been one of those cases warranting a death sentence. Even on the
assumption that he acted with
dolus
event-
ualis
the offence
remains a serious one and it is only on a very careful consideration that I have
come to the conclusion that, in all
the circumstances of the case including the
personal circumstances of the appellantf it cannot be said that the death
sentence is
the only proper sentence. A sentence of 25 years' imprisonment seems
to me to be a proper sentence.
In the result the appeal against the
../33
33
convictions is dismissed. So too is the appeal against the sentences on
counts 2, 4, 5, 7, 8, 10, 12, 13 and 14. The appeal against
the death sentences
imposed in respect of counts 3 and 11 succeeds and a sentence of 20 years'
imprisonment is imposed in respect
of count 3, and a sentence of 25 years in
respect of count 11. It is ordered that both these sentences will run
concurrently with
each other and with the sentences imposed in respect of the
other counts on which the appellant was convicted.
J.P.G. EKSTEEN, JA
JOUBERT, ACJ )
concur
SMALBERGER, JA )