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1993
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[1993] ZASCA 26
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S v Ntuli and Another (202/92,312/92) [1993] ZASCA 26 (11 March 1993)
Case Nos 202/92 - 312/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
JOHN MSHAYINA NTULI
Appellant
No 1
PETROS LUTHULI
Appellant No 2
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, KUMLEBEN, JJA et HOWIE, AJA
HEARD
: 8
March 1993
DELIVERED
: 11 March 1993
JUDGMENT E M GROSSKOPF, JA
2
During the months of November and December 1990 the
two
appellants committed three sets of offences for
which they
were subsequently charged in the Durban and Coast
Local
Division. First, on 1 November, they broke into the house
of
a 79 year old man, John Leonard Hornsey, who was living on
his own. They overpowered, bound and gagged him. He died as
a result of the assault on him. According to the evidence of
the pathologist who performed the autopsy, the gag consisted
of numerous strips of material which had been tightly applied
over the mouth, the upper part of the nose and the forehead,
resulting in total obstruction of the oral cavity and partial
obstruction of the nostrils. As to the cause and time of
death, the pathologist said the following:
"The deceased in this particular instance died of asphyxiation. There
were ample signs to indicate this at autopsy. What I cannot
indicate is whether
death occurred while the ligatures and straps were placed over the face, or
whether the person died shortly afterwards.
But should the deceased have died
shortly after application of the ligatures death would have ensued, I think,
within a couple of
minutes."
3
After putting Mr. Hornsey out of action, the two appellants stole a
number of articles from the house and left.
Then, on 12 December, the appellants broke into the
home
of Ethel Jean Main, an 82 year old woman who was
alone at
home at the time. Again they bound and gagged her, but
they
were disturbed before they could steal anything. The
gag
consisted of a scarf, a dish cloth and a portion of a
shirt
or a blouse which were tightly bound around her head.
The
effect of this gag was stated as follows by the pathologist:
"M'Lord, again I think this is a similar situation to the previous case.
The deceased could have died during the application of the
strips of material
over the face, or could have died shortly therereafter due to an accumulation of
saliva in the back of the throat
and an inability to breathe normally. Again the
features seen are consistent with asphyxia."
Finally, on 23/24 December, the appellants broke into the house of
another old man who was living on his own, one George Frederick
Thomas Hambly,
who was 84 years old. The
4
state in which his body was found was described as follows by
the pathologist:
"M'Lord, again the body was tightly bound. The hands and feet were tied
together, and again rags had been applied over the face, and
the chief
postmortem findings made by me at the time of autopsy were extensive bruising to
the soft tissues of the neck, with associated
fracture of the hyoid bone,
pulmonary oedema and congestion, and again there were petechias present over the
conjunctival membranes
of the eyes and over the lungs.
And what was your conclusion as to what was the
cause of death? In this particular case my
conclusion was that death was due to manual
strangulation."
The fracture of the hyoid
bone, the pathologist said, had occurred while the deceased was still alive, and
indicated that he had been
manually strangled. The deceased would have died
almost immediately following the fracture of the hyoid bone. The intruders stole
a number of articles before leaving.
Arising out of these incidents, the appellants were charged with three
counts of murder and three counts of
5
housebreaking with intent to rob and robbery or attempted robbery. They
were convicted as charged. For the murder of Mr. Hambly, the
two appellants were
sentenced to death. In respect of the other charges periods of imprisonment were
imposed totalling, in respect
of the first appellant, 60 years, and, in respect
of the second appellant, 47 years.
The present appeal is directed only against the death sentence.
The reason given by the learned trial judge for
imposing
the death sentence in respect of the murder on
Mr. Hambly
(count 6) was that in that case, as distinct from the others,
dolus directus
was proved to have been present. This was
motivated as follows:
"Count 6 involved a moderate degree of force and it seems that the
application of manual force to an area which is notoriously potentially
fatal
justifies beyond reasonable doubt the conclusion that the death of the deceased
was intended. Mr
Ramsden
, for accused No 2, suggested that the fact that
the deceased was bound as well indicates otherwise, for if the accused was
strangled
first there was no need to bind him, unless the attackers believed
that he was still alive, and if he were bound first there would
be no need
to
6
strangle him. In this matter, however, we have the positive feature of a
proved manual strangulation. To conjecture on the sequence
of events is
unprofitable."
This reasoning was strongly
attacked on appeal. In particular counsel stressed before us, as they had in the
trial court, that if
the appellants had been actuated by the direct intention to
cause the death of the deceased, they would probably not have taken the
trouble
to bind and gag him. The fact that they did so showed, it was contended, that
they thought that he was still alive at that
stage, and there would have been no
reason for them to strangle him afterwards. This submission leaves out of
account that the first
appellant did painting work at the deceased's house some
years previously, and it is quite possible that he might have wanted to
kill the
deceased so as to eliminate a possible witness to his identity. However, be that
as it may, I do not think much turns on
the question of
dolus directus
.
If one assumes that this was a case only of
dolus eventualis
7
it would not detract substantially from the blameworthiness of the
appellants' conduct. The deceased was manually strangled, gagged
and tied up in
a manner which was, objectively speaking, certain to cause the rapid death of
this frail old man. It is impossible
to believe that the appellants did not
realise that there was at least a very strong chance that he would die. If they
had taken
the trouble to ascertain how their first victim, Mr. Hornsey, was
before they left his house after the robbery, they would have known
that he had
died as a result of their actions. Nevertheless they treated Mr. Hambly in the
same way, and went still further by strangling
him. Of course, it is possible
that they did not return to Mr. Hornsey. If this were the case, they might have
had a lesser awareness
of the likelihood of death supervening when they
overpowered, bound and gagged Mr. Hambly, but, on the other hand, their failure
to find out what Mr. Hornsey's condition was would serve to emphasize the
callousness of their behaviour towards their
8
victims.
It was not contended that the trial court
misdirected itself except in regard to the question whether the murder was
committed with
dolus directus
, which I have discussed above. In now
proceeding to consider what aggravating or mitigating factors are present I
shall accordingly
do so on the basis of the trial court's undisputed
findings.
The first and main aggravating feature is the nature of the offence. Our
courts have consistently held that attacks on frail and defenceless
old people
in their homes should be regarded with the utmost seriousness. In the present
appeal, although the appellants are of course
to be sentenced only for Mr.
Hambly's murder, it is relevant that this was their third fatal attack on an old
person in his or her
home within less that two months. Clearly the two
appellants had an established
modus operandi
whereby they sought out
opportunities to overpower and rob old persons who were alone at home. The
robbery in the present case was
accordingly
9
pre-planned, and the appellants had a fixed way of dealing with their
victims, which inevitably led to their deaths. And, as I have
stated above, the
fact that the appellants may not have realized the full risk of death ensuing
does not in my view materially mitigate
the seriousness of their
offence.
I turn now to other possible mitigating factors. The first appellant was
43 years old at the time of the offence, and has a fairly
long list of previous
convictions. These were mainly for theft and housebreaking. The best that can be
said for him is that he does
not have a record of violence and has never served
a long period of imprisonment. However, given his age and record, his prospects
of reformation would not appear to be good, even if no regard were to be had to
the series of events giving rise to the charges in
the present case. If one
further bears in mind the light thrown on his character by the present offences,
his chances of rehabilitation
must be regarded as extremely slight.
Counsel
10
pointed out that this appellant had regular work as a painter. In the
circumstances of the present case this seems to me to underline
the depravity of
his conduct. This is not a case of a man driven to crime by
hunger.
The second appellant's personal circumstances are somewhat
more favourable. According to his evidence he was 32 years old at the time
of
the offence. He worked as a painter with the first appellant. He testified that
he had two children by a woman for whom he had
paid lobola but whom he had not
yet married. He has no previous convictions. It was argued on his behalf that he
may have been under
the first appellant's influence. There is, however, no
evidence to support this. The second appellant never suggested anything of
the
sort. His version was a complete alibi. It is true that he is younger than the
first appellant, but he is not a child any more.
And the mere fact that the
first appellant has previous convictions whereas the second appellant has none
does not in my view suggest
that the second appellant
11
may have been under the influence of the first. This seems to me to be
purely speculative.
The final question now is whether, regard being
had to the aggravating and mitigating factors, the death penalty is imperatively
called
for. The murder of Mr. Hambly, even if taken in isolation, is of such
seriousness that many courts would consider the death sentence
appropriate. If
one takes into account further that it was not committed as a single offence,
but was the third in what appears to
have been a planned campaign to rob old
people alone at home, the wickedness of the appellants' conduct would seem to
demand the
ultimate penalty allowed by law. This is so particularly in the case
of the first appellant, where there would not seem to be any
significant
prospect of rehabilitation. The second appellant is in a somewhat different
position. He is younger, and has no criminal
record. In his case it might be
argued that a possibility of rehabilitation exists. Personally I doubt whether
such an argument would
be sound. I
12
suspect that a person who commits a series of offences of the sort we
have here is beyond redemption. But even if I am wrong in this,
I consider that
any prospect of rehabilitation must in the circumstances of this case, yield to
the needs of deterrence and retribution.
In the result the appeals are dismissed and the death sentences on both
appellants confirmed.
E M GROSSKOPF, JA
KUMLEBEN, JA
HOWIE, AJA concur