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1992
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[1992] ZASCA 123
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S v Mbengu (349/91) [1992] ZASCA 123 (1 September 1992)
CASE NO: 349/9
NCEBA ARCHIE MBENGU
Appellant
and
THE STATE
Respondent
VAN COLLER, AJA :-
CASE NO: 349/91 J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
NCEBA ARCHIE MBENGU
Appellant
and
THE STATE
Respondent
CORAM
: VAN HEERDEN, KUMLEBEN, JJA et
VAN COLLER, AJA
HEARD
: 21 AUGUST 1992
DELIVERED
: 1 SEPTEMBER 1992
JUDGMENT
VAN COLLER, AJA:
On 6 December 1990 appellant was convicted of murder in the Cape Provincial
Division. After the
2
court had considered the mitigating and aggravating factors, the trial judge,
MUNNIK JP, came to the conclusion that the death sentence
was the only proper
sentence and consequently imposed that sentence. Appellant was also convicted on
three other charges, namely
theft, housebreaking with the intention to commit a
crime to the prosecutor unknown, and rape. On a further count, namely one of
robbery, appellant was convicted of theft. Appellant was sentenced to 15 years'
imprisonment on the rape charge. On the other charges
periods of imprisonment
varying from 3 to 5 years were imposed, these sentences to run concurrently with
the 15 years' imprisonment
imposed on the rape charge.
This appeal is only against the conviction and sentence on count 4, i e the
murder charge. Although appellant's defence at the trial
was an alibi, Mr Roux,
who appeared on behalf of appellant, did not contend
3
that the trial court erred in finding that appellant had killed the deceased.
He attacked the conviction solely on the ground that
it was not proved beyond a
reasonable doubt that appellant had the intention of killing the
deceased.
The relevant facts are briefly as follows. The deceased, a 60 year
old widow, lived alone in her house at 43 Strathmore Road, Camps
Bay, Cape Town.
Her husband died in 1986 and her two children, a married daughter and a son, Mr
Morrison Jameson, also lived in Cape
Town at the time of her death on 2 January
1990. The deceased worked at a library. Appellant was employed by the deceased
from about
the end of September 1989 as a part-time gardener. The deceased
preferred appellant to come to work on Tuesdays, that being her day
off. During
the morning of 2 January 1990 the deceased drew R100 at the First National
Bank's branch at Sea Point. She also visited
her daughter and son-
4
in-law during the course of the morning and left their home in Buitenkant
Street at 12.20 pm. At 6 pm Mr Morrison Jameson went to
the deceased's house.
Her car was parked in the street but the house was locked. He returned to his
house where he received a telephone
call call from his sister who enquired about
the deceased's whereabouts. He immediately went back to the deceased's house. He
found
the car still outside and the front door locked as before. He could find
no signs of a forced entry into the house. He had to break
a small window in
order to get into the house. He found his mother's body on the landing of the
staircase leading from the ground
floor to the first floor. She was partly
covered with 2 Persian runners. The bedrooms of this double-storey house are on
the ground
floor with the kitchen, dining-room and sitting-room on the first
floor. The kitchen door, which is on the first floor, was locked,
but the key
was in the door
5
and Mr Jameson was able to open the door from the inside. The keys of the
front door, which is on the ground floor, and the keys of
the motor-car were
found at a later stage in one of the small store-rooms situated under the
house.
The following facts emerged from the evidence of Captain Lister of the S A P
who was in charge of the investigations. When the rugs
were removed, it appeared
that the deceased's lower body was naked. Next to the body was a clock weight
taken from a clock in the
dining room and which, like its counterpart found in
the passage leading from the front door to the foot of the stairs, was
bloodstained.
Both deceased's arms and hands were smeared with blood. Blood was
found on the walls of the passage on the ground floor. There was
a large pool of
blood where the staircase commenced and there was blood on practically every
stair of the carpet-covered staircase
to the landing. In the
6
bedroom overlooking the front entrance steps half a bottle of beer was found
on the armrest of a chair next to the bedroom door. Partly
under the bed was a
plate with a cooked chicken from which portions had either been cut or torn off.
Next to the plate were some
chicken bones, the top of a beer bottle, a small
kitchen knife and a small container of meat tenderiser. According to the
evidence
of Captain Lister a person sitting on the floor in the vicinity of
where the plate was found, would have a good view of anyone coming
up the steps
to the front door. A person on the inside would not be visible from the outside
because of the lace curtains in front
of the window. At first it was not clear
how the intruder had gained entry into the house but it was subsequently found
that two
roof tiles, which had been half hidden under an overhanging shrub, had
been removed. A person could gain access to the inside of
the house through the
opening left by the
7
removal of the tiles, and a trap-door in the ceiling
adjacent to the
inside kitchen door. On the trap-door a
palmprint, identified as that of the
appellant, was
found. When appellant was arrested he had in his
possession the deceased's wrist-watch, which she had
been wearing on the day of her death. He was also in
possession of a bloodstained belt which had belonged to
the deceased. This evidence (and evidence of other
items found in appellant's possession), leaves no doubt
that appellant's alibi was rightly rejected as false
and that he was the person who had killed the deceased.
The injuries sustained by the deceased are
highly relevant to the question whether or not the
intention to kill was proved. MUNNIK JP summarised
the medical evidence as follows:-
"From the post-mortem report and the evidence given by Dr Fowler the
following emerges. Deceased was 60 years and weighed 52kg. There
were no bruises
indicative of strangling or throttling nor in fact any bruises at all. This
appears to us to preclude any question
of a hand-to-hand struggle.
8
The wounds found by Dr Fowler were the following:
Lacerations to the front of the face, including (a) 4cm laceration above the
left eye slightly to the middle of the forehead; (b)
3cm laceration above the
right eyebrow and a similar laceration on the right eyebrow; (c) 1cm abrasion on
the bridge of the nose;
(d) a peri-orbital (that is around the eye) bruise of
the left eye which was probably, in the doctor's opinion caused by the seepage
of blood from the injury to the nose; (e) a 3cm abrasion on the left cheek near
the nose and 1.5cm abrasion at the junction of the
cheek and the jawbone; (f)
2cm abrasion just above the left ear, and finally (g) 4cm x 5cm lacerated area
of the left occipital area
of the head, that is at the left back of the head.
The infliction of this wound caused extensive fracturing of the underlying
skull.
In this fracture were two loose fragments. Apart from these fractures,
the blow also had the effect of causing a fracture line extending
down to the
pharynx, i e the back of the throat, and this caused tearing of the mucosa, that
is the lining in that area, with subsequent
haemorrhage into the airways. There
was also extensive subarachnoid haemorrhage covering the greater part of the
whole brain, and
there was swelling of the brain as well as a small left to
right shift. The doctor's view was that although the subarachnoid and
direct
haemorrhage was consistent with any of the blows, because of the fractures
underlying the blow to the back of the head and
no underlying fractures to any
of the other blows, i e those which caused the various lacerations, the damage
was done by the blow
to the back of the head. In his view this blow would have
caused immediate unconsciousness,
9
but he would have expected the deceased to have lived for 15
minutes to an hour. Dr Fowler, who is in the service of the State as
a Registrar
of Forensic Pathology at UCT, and who impressed the Court with the quality and
restraint of his evidence, i e the manner
in which he weighed the import of
questions before expressing a view, told the Court that considerable force would
be required to
cause all the damage resulting from the blow to the back of the
head, i e the long fracture across the middle line to the other side
of the
skull. He said he examined Exhibits 2 and 3, which are the weights of the wall
clock, and said the injuries he found were
consistent with having been inflicted
with these exhibits. I may add that the forensic tests proved by the State and
admitted by
consent, showed that both these exhibits bore traces of human blood.
...
In cross-examination he also expressed the view that all the injuries, except
the large one at the back of the head were inflicted
by blows from the front,
and that the injury at the back of the head was highly suggestive of a blow from
behind. He also stated
that working on the theory that it is unlikely that
someone would hit somebody who was already unconscious, it is probable that the
blow at the back of the head was the last blow.
He conceded that some of the blows on the front could have caused subdural
haemorrhage and may have caused a degree of loss of consciousness,
but it was
obvious from the way that he answered this proposition put to him that he had
considerable doubt about the probability
of this having
10
occurred.
One further fact remains to be mentioned, and that is that when asked about
the relative sizes of the accused and the deceased, he
gauged the weight of the
accused to be slightly less than that of the deceased.
In this connection I may mention at this stage that
although
the accused is slightly built, we accept
Morrison's evidence based on his
observation of the
accused moving cupboards and a half drum at his
house,
that the accused despite his build is very
strong. Exhibits 2 and 3 were
examined by the
members of the Court. They are heavy metal
objects,
rectangular in shape, slightly honed down
at one end, where there is a hole
from which they
hang on the chain. They are about 9 to 10 inches
long and
about one inch square. So much then for
the medical and physical evidence
relating to the
deceased. We have no hesitation in accepting Dr
Fowler's
evidence and opinions as accurate and
correct, not only because of his
professional
status but because they accord with the visual
evidence
recorded in the various photographs of the
body, and with the probabilities
and the other
evidence such as the bloodstains already referred
to."
The trial court could not come to any definite
finding with regard to where the deceased was when she
first became aware
of the presence of appellant inside
11
the house. The trial court did find, however, that
the
deceased was struck down in the passage and then
dragged up the stairs to the
landing. This finding was
not questioned by Mr Roux. Another relevant fact
that
must be referred to relates to the R100 drawn by the
deceased during
the morning of 2 January 1990. This
money could not be found in the house and
the trial
court inferred from the evidence that appellant had
taken it. It
was found to be highly improbable that
the deceased would have spent the
money because she
intended taking friends to a restaurant that evening.
The trial court's conclusion that appellant had the intention to kill was
based on the following grounds. It found, firstly, that
appellant had waited for
the deceased to come home because he wanted money. He was therefore not
surprised in the house and the fact
that he was known to the deceased could have
made it
12
necessary for him to kill her. Secondly the trial court found that, on this
evidence, viewed in conjuction with the intensity of the
attack and the force of
the blows, there can be no doubt that appellant attacked the deceased intending
to kill her. The trial court
advanced cogent reasons for its finding that
appellant was waiting for the deceased. The facts and the inferences that can be
drawn
lend support to this finding. Appellant took his time in the house, he
helped himself to refreshments and at some stage he placed
himself in the
downstairs bedroom from where he could observe the front entrance. Appellant
could have left with the chicken and
the beer and with anything else he wanted
to take. Instead of doing so, he remained in the house and it is probable that
he did so
because he wanted money. Appellant could have left the house
undetected even after the deceased's return, had he wished to do so.
The fact
that he did not do so
13
is a further indication that he wished to confront the deceased. Mr Roux
contended that the inference that appellant waited for the
deceased is not the
only reasonable inference that can be drawn from all the proved facts. There is
merit in this argument but in
view of the conclusion to which I have come I do
not deem it necessary to deal with his submissions. I shall assume in
appellant's
favour that he did not wait for the deceased to return. In my
judgment the intention to kill has in any event been proved. Appellant
was well
known to the deceased and, if he had no waited for her, the reason for the
attack could only relate to the fact that she
found him in the house. Even then
he could have left the house without difficulty, and without assaulting her.
Thus the lethal attack
could only have been to prevent her from laying charges
against him. This motive, which strengthens the inference that appellant
intended
14
killing the deceased, remains even if, as Mr Roux contended, appellant had
been surprised in the house. There can be no doubt that
at least one of the
clock weights had been used in the attack on the deceased. They are heavy metal
objects, about 9 to 10 inches
long. The deceased was struck more than once on
the head. It is clear from the evidence that this instrument was used with so
much
force that not only would immediate unconsciousness have followed, but
extensive fracturing and brain injury was in fact caused.
The only reasonable
inference that can be drawn from all the evidence is that appellant intended
killing the deceased. In my judgment
dolus directus
was proved. The
appeal against the conviction can therefore not succeed.
Appellant was convicted after Act 107 of 1990 came into operation and it is
our task to consider the sentence afresh. We must give
due consideration to
the
15
mitigating and aggravating factors, bearing in mind also the well known
objects of punishment. The personal circumstances of appellant
are the
following. At the time of the trial he was approximately 23 years old. He can
read and write and he was educated to the level
of standard seven. He has one
previous conviction. He was convicted in 1986 of assault with the intention to
cause grievous bodily
harm. A knife was involved and he was sentenced to seven
cuts with a light cane. It is difficult to find mitigating factors in this
case.
I shall assume that it was not proved that appellant contemplated killing the
deceased before she returned to the house. Even
if this can be regarded as a
mitigating factor, it cannot carry much weight.
Serious aggravating circumstances are present. As I have said at the best for
appellant the motive was to avoid detention. A brutal
attack was perpetrated on
an elderly woman in the safety of her own home.
16
Subsequent to the cowardly attack on the deceased, appellant raped her while
she was unconscious. This conduct reveals an absolute
lack of feeling and a
total disregard for human dignity.
It remains to consider whether, in all the circumstances of this case, the
death sentence is the only proper sentence. The possibility
of rehabilitation
cannot, despite the previous conviction, be ruled out. On the other hand, this
is once again a case where an elderly
person was killed in her own home. This is
a case where the deterrent and retributive aspects of punishment play a decisive
role,
and where the interests of society come strongly to the fore. See
State
v Sesinq
1991 (2) SACR 361
(A) at 365 G and
State v Makie
1991 (2)
SACR 139
(A). In my judgment the circumstances of this case are of such a nature
that the death sentence is imperatively called for.
17
The appeal is dismissed.
A P VAN COLLER
ACTING JUDGE OF APPEAL
VAN HEERDEN, JA )
CONCUR KUMLEBEN, JA )