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1992
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[1992] ZASCA 117
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S v Zondi (667/91) [1992] ZASCA 117 (27 August 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
MFANUBOMVU MUNTUKATHENJWA ZONDI
Appellant
AND
THE STATE
Respondent
Coram
: BOTHA, NESTADT et EKSTEEN, JJ.A.
Heard
: 18 August 1992
Delivered
: 27 August 1992
JUDGMENT
EKSTEEN
, J.A. :
On 23 April 1990 the appellant was charged together
with one Ntuli with two counts of attempted murder and one of murder. He was
acquitted
on one of the counts of attempted murder but convicted on the other.
He was also convicted of murder. The trial Court was unable
to find any
extenuating circumstances in respect of this latter count and consequently the
appellant was sentenced to death. On 16
May 1990 an application to the trial
Judge for leave to appeal was refused.
On 27 July 1990 the Criminal Law
....../ 2
2
Amendment Act, No 107 of 1990, ("the Act") came into force and
the matter was referred to the panel created by section 19 of the Act.
The panel
came to the conclusion that the sentence of death would probably have been
imposed by the trial Court had
section 277
of the
Criminal Procedure Act, No 51
of 1977
as substituted by section 4 of the Act been in operation at the time
sentence was passed, and so the matter was referred to this
Court for its
consideration. Section l9(12)(a) enjoins us to consider the matter as if it were
an appeal by the convicted person
against his sentence, and as if
section 277
of
the
Criminal Procedure Act as
substituted by section 4 of the Act were in
opera-
....../ 3
3
tion at the time sentence was passed by the trial Court.
The evidence led
at the trial reveals that on Sunday 17 July 1988 the appellant was the driver of
his silver-green Audi motor car.
He was accompanied by his co-accused, Ntuli; by
Mduduzi Buthelezi; and by one Thobezweni. They first drove to a spot near a
forest
where the appellant and Ntuli removed the number-plates from the car.
They then drove on to a bottle-store owned by Amos Buthelezi
("the deceased").
The appellant did not drive round the building as most other cars did but
instead drove straight up to the door
and then reversed round so that the
car
....../ 4
4
was facing the way it had come. The engine of the car was also not switched
off but continued to idle throughout their stay. Having
parked the car the
appellant gave Thobezweni R5 and sent him and Ntuli to the bottle-store
ostensibly to buy beer. Ntuli was armed
with a Smith and Wesson revolver
supplied to him by the appellant. Shortly after these two had gone into the
bottle -store the appellant
also got out of the car and followed them. After a
while he came out again, and went to the car where he armed himself with a Star
pistol. He then returned to the store. Almost immediately thereafter he shot the
deceased in the head - the bullet entering through
the right
....../ 5
5
eye orbit. The three assailants then ran out of the bottle-store to their
car, got in and drove off. The deceased's son, John Buthelezi,
who had been
sitting just outside the bottle-store while these events took place, got up and
ran to intercept the car. His intention
was to throw a stone at it in an attempt
to "mark" it. When he got to a spot some 20 metres from the passing car, the
appellant slowed
down, leant out of the window and fired two shots at John.
Fortunately both were wide of their mark. This act formed the basis
of the charge of attempted murder of which the appellant was duly convicted
and sentenced.
The motive for the killing of the
.... / 6
6
deceased appears from the evidence of Clement Mthimkulu, an 18
year-old servant of the appellant. He told the Court that one night,
about the
middle of 1988, a man called Ndlela came to the appellant's kraal. While Clement
was preparing supper for them he says
he overheard a conversation between Ndlela
and the appellant. He heard Ndlela tell the appellant that he (i.e. Ndlela) was
"having
sleepless nights thinking about this man" and that appellant "should
hurry up things and kill this man Buthelezi". To this appellant
replied "No, Mr.
Ndlela, that is not a problem, we are going to do your work". Noticing Clement
in the room Ndlela said to appellant
"Do not keep calling
. . . . / 7
7
me Ndlela. Call me Mkhizi. Who is this youth?" To which appellant replied
"No, don't worry about
this youth, he is an inmate of my kraal. Don't worry about him".
From this evidence the trial Court came to the conclusion that appellant had
killed the deceased to accommodate Ndlela for some unknown
reason.
The evidence establishing the facts I have adumbrated above was found by the
Court to have been "overwhelming" and warranted the rejection
of the appellant's
denial of any complicity in the murder as being false beyond a reasonable doubt.
I see no valid reason to differ
from
8
this conclusion.
Since the conviction and sentencing
of
the appellant section 4 of the Act has intro
duced a new approach to sentence
and this Court |
is called upon to reconsider the sentence in the
light
of these new principles. The concept of
extenuating circumstances has been
done away with,
and the Court is now enjoined to consider and make
a
finding on the presence or absence of mitigating
or aggravating factors. On a
due consideration
of these factors the presiding Judge will only
impose
sentence of death if he is satisfied that
it is the only proper sentence in
all the circum
stances (Cf. Section 277 of Act 51 of 1977 as
....../ 9
9
amended,
S. v. Masina and Others
1990 (4)
SA 709
(A) at pp 712 H - 714 C;
S. v. Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA
735
(A) at pp 742 I - 745 G.)
In terms of the amended section 322 (2 A) of Act 51 of 1977 this Court is now
vested with an independent discretion in respect of
sentence. If it is of the
opinion, after considering all the mitigating and aggravating factors, that it
would not,itself have imposed
the sentence of death, it may set such sentence
aside.
In the present case the age of the appellant is given in the indictment as 32
years. It appears from the record that certain previous
convictions were proved
against the appellant at
....../ 10
10
the end of the trial, but what they were does not appear, nor
do they form part of the record before us. There is also no explanation
for the
omission of these, generally very relevant, documents. The record however does
reflect a remark by the presiding Judge to
the effect that the previous
convictions proved "don't seem to be very relevant". I propose therefore to
regard the appellant as
a first offender without any previous convictions. The
fact, therefore, that he is a man of 32 years of age without any previous
convictions must redound to his benefit and be regarded as a mitigating factor.
(
S. v. Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727
(A) at 733 I - J;
S. v. Ramba
1990
(2) SACR 334
(A) at
..... / 11
11
342 f.)
As against this, however, there are serious aggravating factors.
No other motive for the killing of the deceased has been suggested
than that
which appears from the evidence of Clement Mthimkulu to which I have referred.
From this, as I have indicated, it would
appear that the appellant killed the
deceased merely to accommodate Ndlela. Whether he did so for mercenary gain or
not, we do not
know. Moreover the appellant was no unsophisticated person who
may have been easily taken in by the blandishments of Ndlela. In his
evidence he
describes himself as a businessman "operating taxis" and who "had
mini-buses".
...../ 12
12
He also sold gold which he bought from "people working at the mines" who
"used to smuggle it out of the mines". He goes on to explain
that he "used to
buy raw gold" and "would then cook it and make it solid gold", which he then
sold. This tends to reflect a sophisticated
person well able to appreciate the
full implications of the crime Ndlela was asking him to commit.
The carrying out of the crime was not only premeditated, but carefully
planned. The appellant used his own car to drive to the bottle-store
of the
deceased after having taken the precaution of removing its number-plates in
order, obviously, to make identification more
difficult.
...../ 13
13
The way in which he drove up to the bottle store and turned his car round so
as to facilitate a quick "get-away" after the commission
of the crime is but
another facet of his careful planning. After sending his two accomplices, one of
whom was armed, into the bottle-store
under the pretext of wanting to buy beer
with the R5 provided by him, and not hearing any evidence of a shot being fired,
he went
into the store himself. There he probably realized that it was unlikely
that the deceased would be killed unless he did it himself.
He therefore
returned to the car, armed himself with a pistol, returned to the store and shot
the deceased in the head. In the light
of these facts
..../ 14
14
the trial Judge's remark that they reflect "a coldblooded
execution of the deceased" seems to be fully
justified. !
The appellant was clearly the leader of the group that went to kill the
deceased. He was older than his 24 year-old co-accused, Ntuli,
and the 18 year
old Mduduzi Buthelezi, both of whom were employed by the appellant. There is no
suggestion therefore that he acted
under any form of duress, or of coercion by
his accomplices. His intention in killing the deceased was also clearly
dolus
directus
.
In considering whether the sentence of death is the only proper sentence in
all the
......./ 15
15
circumstances and in the exercise of its independent
discretion this Court must have regard to all the mitigating and aggravating
factors I have referred to above If one were merely to weigh the one set of
factors up against the other there seems, to my mind,
to be little doubt that
the aggravating factors would considerably outweigh the mitigating factors.
Regard may also, however, be
had to other factors such as the interests of
society, and the recognized purposes of punishment i.e. the deterrent,
preventative,
reformative and retributive purposes. One or more of these
additional factors may, in the circumstances of a particular case, not
only be
relevant but decisive. (
S. v
.
/ 16
16
Ntuli
1991 (1) SACR 137
(A) at p 142 E - H.)
The
interests of society must weigh heavily against the appellant in the present
case. No society can tolerate the killing of a person
on the whim of an
instigator, by assassins whether hired or acting gratuitously. Such serious
crimes strike at the very root of an
orderly society, and the sentence of the
Court should serve not only to deter others from committing such crimes, but
also to reflect
the revulsion which any reasonable person feels for such a
heinous deed. The deterrent and retributive objects of punishment seem
therefore
to be decisive in the present case. (
S. v. Nkwanyana and Others
(
supra
) at 749 C and S
. v. Shabalala and
....../ 17
17
Others
1991 (2) SACR 478
(A) at 483 c -
e.) With a full appreciation of the drastically extreme nature of the sentence
of death and with due consideration
of all the circumstances of the case I am
driven to the conclusion that that sentence is the only proper sentence in the
present
instance. The appeal is therefore dismissed.
J.P.G. EKSTEEN, J.A.
BOTHA, J.A. )
concur NESTADT, J.A. )