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1991
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[1991] ZASCA 150
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S v Ngcobo (244/91) [1991] ZASCA 150; [1992] 1 All SA 358 (A) (15 November 1991)
Case No 244/91 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
HARRY MFANILE NGCOBO
Appellant
versus
THE
STATE
Respondent
CORAM: NESTADT, MILNE JJA et PREISS AJA
DATE OF HEARING: 5 November 1991 DELIVERY DATE: 15 November 1991
JUDGMENT
/MILNE JA
-1-
MILNE JA:
On 10 May 1988 the appellant was convicted of attempted housebreaking with
intent to steal, robbery with aggravating circumstances
as defined in section 1
of Act 51 of 1957, murder (no extenuating circumstances having been found), and
housebreaking with intent
to steal and theft of a radio, a television set, a
video casette recorder and blankets. He was sentenced to death on the murder
charge
and to various terms of imprisonment in respect of the other offences.
His application for leave to appeal against the conviction
and sentences was
refused by the trial judge. A similar petition to the Chief Justice for leave to
appeal was also unsuccessful.
In terms of section 19(8) of the Criminal Law
Amendment Act No 107 of 1990 ("the amending Act") the appellant's case was
considered
by the panel appointed in terms of section 19(1) of the amending
Act.
-2-
The panel found that the sentence of death would probably have been imposed
by the trial court had section 277 of Act 51 of 1957 as
substituted by section 4
of the amending Act been in operation at the time sentence was passed.
The matter now comes before us in terms of section 19(12) of the amending
Act. In terms of that section this court must consider the
case in the same
manner as if it were considering an appeal by the appellant against his sentence
and section 277 as substituted
by section 4 of the amending Act had been in
operation at the time sentence was passed by the trial court. Our powers in
respect
of such matters are set out in section 19(12)(b) of the amending
Act.
The effect of this is that there is before us an appeal against the death
sentence imposed in respect of the
-3-
murder charge and in considering that appeal we apply the same tests as this
court applies in appeals under section 316A of the Act,
as amended. Those tests
have been enunciated in a series of decisions of this court: briefly summarised
what this court is reguired
to do is to impose the sentence which it considers
the proper sentence taking into account all mitigating and aggravating factors
and having regard to the objects of sentence.
I deal firstly with the circumstances in which the crime was committed. The
deceased was a man of 80 who lived alone in a house in
a residential suburb of
Pinetown. The appellant, whose age is reflected in the indictment as 38, had
worked for him on a casual basis
as a gardener. There was no direct evidence as
to the precise circumstances of the murder other than certain statements made to
the
police by the appellant. It is accordingly necessary to consider
-4-
the content of and weight to be attributed to these
statements in some detail. The appellant contested the
admissibility of
these statements at the trial and gave
evidence alleging that he had been
forced to make them. The
trial court rejected the appellant's evidence and
held the
statements to be admissible. At the trial within a trial
the
appellant denied any knowledge of the killing of the
deceased. He did not
give evidence save at the trial within
a trial. The first of the statements
was made to Capt Le
Grange and is in the form of notes made by the latter in
his
notebook. These notes (Exh E) read as follows:
"15H15 Ondervra Ngcobo. Hy was behoorlik gewaarsku die klagte was behoorlik aan
hom gestel Pinetown MK 420/4/86. Sy regte was behoorlik
aan hom verduidelik. Hy
erken die misdaad en beweer dat hy om ongeveer 13H00 by die huis was. Hy het die
venster langs die voordeur
gebreek toe die oorledene daar aangekom het. Daar was
diefwering voor die venster. Ek was nog op die stoep toe ek gekonfronteer was
deur die oorledene. Hy het toe vir my gevra wat ek daar soek. Ek het vir hom
gesê ek soek werk. Hy het vir my gevra wie
het
-5-
die venster gebreek. Ek het gesê ek weet nie. Hy die (oorledene) het toe
'n yster opgetel wat op die stoep was. Hy was ongeveer
3 voet lank. Die
oorledene het toe na my geslaan. Ons het toe alreeds beweeg tot voor die Garage.
Ek het toe die hou ontduik en die
ou man die oorledene vas gegryp. Hy die
oorledene het my aan my tril gegryp. Ek het toe 'n klip wat daar gelê het
opgetel.
Hy wys hoe groot die klip is ongeveer 9 duim in deursnit. Ek het toe
die oorledene met die klip geslaan. Ek het hom 3 keer geslaan
op daardie stadium
was ons al binne in die Garage. Ek het hom toe in die Garage gelos. Hy het op
die vloer gelê. Ek het hom
toe binne in die Garage toegesluit. Ek het die
sleutel van hom gevat asook R15. Ek het na die huis gegaan die voordeur
oopgesluit
en in die slaapkamer het ek 'n radio gevat ek het toe die huis
verlaat en is terug na my plek waar ek die radio gelos het. Ek is
toe later weer
terug na die huis waar ek 'n TV 'n Video set en komberse gevat het. Ek het dit
by die voorhek gelos.
The second statement (Exh F)
was made in the usual form to
Major Earle. It reads as follows:
" Last Thursday it was the day the crime was committed, I boarded a taxi
proceeded to Pinetown. I went to Pinetown because I was
looking for a temporary
job as it was a holiday on Friday to Monday. I went to several houses in
Pinetown but I could not get a temporary
job. As I proceeded towards the
deceased's house, I saw him
driving
-6-
away in his car. I now was tempted to break into his house as I saw him
driving away. I entered the premises. I went to the front
security gate. I saw a
toolbox with tools near this gate. I took out a screwdriver and forced open the
padlock of this security gate.
I entered and tried to open the front door but I
found it to be locked. I then broke the window pane next to the front door.
There
was a burglar guard in front of the window, so I could not enter. At this
stage the deceased arrived back home. He opened the garage
doors and parked the
car in the garage. I now tried to escape but I noticed that the deceased had
already come out of the garage
and that he might have seen me. I could see that
the deceased noticed that the security gate was open. I tried to hide myself so
that he could not see me. As he was looking around, he saw me and asked me what
I want. I told him that I was looking for some work.
He asked me who broke the
window. I said that I do not know. He then picked up a piece of iron which was
next to the toolbox. He
attacked me with the iron. I saw three white males
walking in the street. I was scared to run away as I was thinking that they
might
shoot me should I run away. As the deceased tried to strike me with the
iron, he missed me and I then grabbed hold of him as I wanted
to push him out of
my way. The deceased then got hold of my private parts. He pulled me towards the
garage. He then pulled me into
the garage and tried to get hold of something to
hit me with. I then got hold of a piece of concrete block. I struck him with it
on his
-7-
forehead.
He then fell onto the garage floor. I left him there. I noticed that on the
floor was a keyholder with some keys. I took the keys
and locked the deceased
inside the garage. I then went back to Claremont with a taxi.
I went to my home. After a while I decided to go back to the deceased's place.
When I arrived at his place, I opened the front door
with the keys I found on
the garage floor. Inside the house, I took a TV, a video, a radio and two
blankets. The TV, video and radio
I took outside and left it, the TV and video,
in the garden. I covered it with the blankets. I took the portable radio with
me. Near
the garage I picked up fifteen rand in cash consisting of silver coins.
I went back to my place. I became afraid. That same night
I gave the radio to my
neighbour who I know as Ngcobo. I then again went back to the deceased's place.
When I now arrived there,
I saw a car on the premises of deceased. I then
decided to go back to my place. That is
all."
Thereafter Major Earle asked'the appellant
certain questions
and it is necessary to refer to only one of these
questions
and the answer thereto, which were as follows:
"Were you sober on the day that this crime was
committed? Myself and a friend of mine had
half a bottle of vodka and two cartons of iJuba to drink at about half past nine
that morning."
-8-
The confessions having been admitted in evidence the appellant was, despite
his repudiation of them, entitled to have any favourable
portions considered. It
does not follow, however, that the court must accept everything contained in
such a statement. It is the
duty of the court to weigh the credibility of the
portion in question and to give such weight to it as in its opinion it deserves.
Rex v Valachia & Ano
1945 AD 826
and S v Nkwanyana & Others 1990(4) SA
735 (A) at 745I. The fact that the statements were not made on oath and were not
subject
to cross-examination detracts very much from the weight to be given to
those portions of the statement favourable to its author as
compared with the
weight which would be given to them if he had made them under oath. Valachia's
case supra at p 835. In the light
of the fact that counsel for the appellant
sought to rely upon the passages in the
-9-
appellant's statements which suggested that the deceased had
"attacked"
the appellant it is perhaps relevant to refer to the following portion of the
appellant's testimony at the trial within
a trial:
"Did any of the policemen suggest to you that the
deceased in fact attacked you first? — They asked me the following
question, 'As you were coming out of the house what did
you do?' They then said,
' No, the deceased was not present when you broke in there. ' And the next
question was, 'At the time when
you killed the deceased how did you kill
him?'
My question is whether it was suggested to you that the deceased was the first -
that he actually struck a blow at you first. --
No, that came from me. I am the
one who said that. The police said to me, 'The deceased would not have fought
you for no reason.'
But why did you tell them that the deceased fought with you? -- It was merely to
satisfy them, because they would not have accepted
what I may have said.
BROOME J
How would that satisfy them, you making up this story about the
deceased attacking you first? — Well, when I explained it like
that,
M'Lord, they then said, 'Okay, we are proceeding or passing that.'
MRS STEYN
I fail to understand your reply. His Lordship wished to know
how would it satisfy the
-10-
police if you told them that the deceased fought
with you? -- M'Lord, they
asked me how I got into the house, I explained it to them. They had already told
me that the house had been
broken into, but they wanted to know from me how I
had gained entrance into the house.
BROOME J
No, you are not dealing
with the question. You have said that you volunteered, it came from you, it was
not something they suggested,
this statement that he, the deceased, attacked you
first. Is that correct? That came from you, not from them? -- As I said earlier,
M'Lord, I do not remember a lot of things that I said to them.
Well, did you
say that the deceased attacked you first? -- I can neither deny nor confirm that
I said this.
MRS STEYN
Then why did you tell us just now that it came
from you that the deceased fought with you? It was your idea? -- Yes, because
they
were questioning me. The question put to me was, 'You met the deceased
there. What happened to the deceased?' I then said, 'We fought.'
Why did you
give that reply? — I wanted to give them a satisfactory answer to their
question. The deceased was an old man. I
had worked for him. He would not have
been able or capable of fighting me in view of his age.
Then why did you give
that reply? -- Or they would have started from the beginning and hit me.
I
beg yours? -- They would have started from the beginning again and hit me.
BROOME J
We get back to this. Do you or do you
-11-
not remember telling the police that the deceased attacked you first? — As
I said earlier, I do not remember a lot of things.
Something that I personally
said I no longer remember, because it did not happen the way I was explaining
it. I was merely making
up a story, M'Lord, to be able to answer the questions
that they were asking me.
MRS STEYN
Was it part of this made-up story
that the deceased grabbed you by your private parts? --M'Lord, the police had
asked me, 'Why did
you hit and kill the deceased?' I then made up a story and
said he had grabbed me by my private parts. That is the reason why I did
not run
away. ' I made up that story then. M'Lord, the deceased was old, so old that he
could not have been able to grab me by my
testicles, not at his
age."
The position is therefore that the appellant
gave evidence on oath making it perfectly clear that the deceased did not
"attack" him.
This must very much detract from the cogency of the argument that
the deceased did attack the appellant. There are, in any event,
two answers to
this submission. In the first place, I agree with the following remarks of the
trial judge:
-12-
"... the deceased was aged about 80 at the time. It is highly improbable that he
would have launched an attack on the accused, an
able-bodied man in his
mid-thirties, whom he had previously employed and apparently been on quite good
terms with, but it is absolutely
unthinkable that the deceased would ever have
looked like getting the better of the
accused."
Reference was made to the fact that some
trifling injuries
were found on the appellant when he was examined by
the
District Surgeon some five days after the killing of the
deceased, but
there is nothing to indicate that these
injuries were received in the course of a struggle with the
deceased and
in fact, at the trial within a trial, the
appellant gave an explanation of
these injuries which was
wholly inconsistent with thém having been
received in any
such struggle. Secondly, even if the deceased did attack
the appellant
because the appellant was going to break into
his house or was threatening to
attack him that situation
was wholly one of the appellant's own making.
-13-
Counsel for the appellant, who did not appear at the trial and did not draw
the heads of argument (and to whom we are indebted for
his assistance) did not
advance the argument advanced in the heads that the appellant's consumption of
intoxicating liquor was a
mitigating circumstance. In my view he exercised a
wise judgment in not advancing this submission. In the first place the appellant
did not volunteer the information about having had anything to drink in either
of his statements - the information was elicited by
Major Earle. Secondly, there
is nothing to indicate how much of the liquor in guestion the appellant
personally drank. Thirdly, on
the appellant's own version some three and a half
to four hours elapsed between the time he had anything to drink and the
commission
of this offence. In any event, I fully agree with the following
remarks of the trial judge:
" Looking at all the evidence, there is no
-14-
suggestion that liquor affected the accused or reduced his self-control or
blunted his sense of morality. The whole tenor of this
statement, Exh F, and of
the statement to Captain Le Grange, Exh E, is to the effect that he was in full
control of himself, and
knew and appreciated everything that he did. There is no
suggestion that his memory of the events at the critical time was clouded
or in
any way imperfect or adversely affected by liguor. There is far too much detail
in these statements to allow for a finding
that the accused must to some extent
have been affected by the liquor he said he consumed.
Looking at all the
evidence and at the statements, it is highly significant that there is no
suggestion that the accused after the
incident went away, sobered up, reflected
on what had happened and then felt remorse. In other words, there was no
suggestion that
it was on account of liquor that he had acted in this way, and
had there been no liquor he would not have done this.
In fact, the accused
returned to the scene and continued where he had left off; that is to say when
he had been interrupted by the
arrival of the deceased. On his return, of
course, he had the benefit of the use of the deceased's keys which he had taken.
In both
the statements he said that he took the deceased's keys, locked the
deceased in the garage and later returned to enter the house
with the use of the
keys, and then removed the TV set, the video recorder and the blankets.
So, the contention that his conduct was to some extent affected by liquor, or
caused by the
-15-
intake of liguor, is rejected."
It was, however,
submitted that the murder was not premeditated and that the appellant went to
the house intending only to steal and
was not armed when he went there. This
submission is supported not only by the State's summary of substantial facts and
the two statements
by the appellant, but also by the findings of the trial
court. The trial court found that the deceased was not present when the
appellant
broke the security gate and the front window of the deceased's house
and that at that stage the appellant intended simply to steal
what he could.
This does constitute a mitigating factor. It is, however, the only mitigating
factor for which there is any evidential
basis.
There was no attack upon the trial court's finding that the appellant's
intention to kill the deceased took the
-16-
form of dolus directus. I agree that such a finding was fully justified on
the evidence." It appears that the appellant's motive for
killing the deceased
was one or both of the following namely, (a) to prevent the deceased from
identifying him as a person who had
attempted to break into deceased's house,
and (b) in order to effect his purpose of robbing the deceased and then
completing the
housebreaking.
There are a number of aggravating factors. In the
first place the appellant committed a ferocious, brutal and
sustained
assault on an 80 year-old man f or whom he had
previously worked and with
whom he was, according to his own
evidence, on good terms. The injuries he
inflicted were
summarised by the trial court as follows:
"1. There was extensive and deep haemorrhage of the neck structures extending to
the vocal chord. The hyoid bone was fractured on
the left side and down the
midline. The thyroid cartiiage was fractured down the midline. The hyoid bone
is, according to
-17-
Dr Van Straaten, not easily fractured, and the injury to the thyroid cartilage
was deep down. This, in the opinion of Dr Van Straaten,
indicated force applied
from the front.
2. The sternum was fractured through the midline, and the third, fourth, fifth,
sixth and seventh ribs were fractured, and there
was extensive deep bruising
over these fractured ribs. This caused Dr Van Straaten to think that someone had
jumped on the deceased
while he lay on the ground, but he did say that it was
not impossible that the piece of concrete or stone, Exh 1 , had been dropped
on
him; the inference being that these injuries were caused to the deceased while
he lay on the ground.
3. The deceased's lower jaw was fractured on the right
side.
4. Extensive bruising and abrasions were found on -
(a)
both
fore-arms;
(b)
the orbits of both eyes, the
lef t cheek and the front of the throat, the left temple and the bridge of the
nose;
(c)
to the
mid-forehead;
(d)
to the right knee;
and
(e)
to the top of the bald
head.
In addition there were lacerations: 1,5 centimetre long on the inner lef t and
right eyebrows, and 3,5 centimetres long under the
right side of the
chin."
These injuries were inflicted with a large piece of
concrete
and a steel rod.
A further aggravating factor is that the conduct
-18-
of the appellant after killing the deceased was callous and indicates a
complete lack of remorse. After killing the deceased the appellant
left him
inside the garage and locked the door. In the circumstances his motive in
locking the door was obviously to prevent the
body of the deceased being found
before he, the appellant, had carried out his criminal purposes. Thereafter the
appellant unlocked
the front door using the keys which he had taken from the
appellant and stole a radio. He then took the radio he had stolen to his
neighbour. He returned later and re-entered the house whereupon he stole more
items and left them on the premises to be collected
later. He returned again but
by that time others were on the scene and he then left.
A further relevant factor is the record of previous convictions, rightly
described by the trial judge as "appalling". His f irst brush
with the law was
in 1958.
-19-
Since that time he has been convicted on nine occasions of housebreaking, on
one occasion of theft and on one occasion of robbery.
In 1967 he was imprisoned
for the prevention of crime and in 1976 he was declared an habitual criminal. He
was released on parole
on 14 November 1985 and sixteen months later committed
the crime in question in this case. This record demonstrates that the prospects
of reforming the appellant are remote. It is also apparent that by reason of the
appeilant's inside knowledge as a former employee
of the deceased he knew the
age and condition of the appellant and the lay-out of the premises and
undoubtedly selected the house
because of the probability of "easy
pickings".
The aggravating factors far outweigh the single mitigating factor. It does
not necessarily follow that the death sentence is the only
proper sentence. The
fact, however, that murderous attacks of this kind on elderly
-20-
people living on their own are on the increase is a relevant
matter and the deterrent effect of the sentence to be
imposed must, in the circumstances, loom large. S v
Khundulu & Ano
1991(1) SACR 470 (A) at 479i. See also S v
Sesing 1991(2) SACR 361 (A) at
365g.
In all the circumstances I am satisfied that the death sentence is the only
proper sentence and the appeal is accordingly dismissed.
A J MILNE Judge of Appeal
NESTADT JA]
] CONCUR PREISS AJA]