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[1993] ZASCA 30
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S v Matala and Others (270/92) [1993] ZASCA 30 (16 March 1993)
Case No 270/92 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MASHUDU SAMUEL MATALA
First
Appellant
JOSIA DAVHANA MULAUDZI
Second
Appellant
NORMAN RAMALATA
Third
Appellant
and
THE STATE
Respondent
CORAM: E M Grosskopf, Milne, Nienaber JJA
DATE OF HEARING
: 23 February 1993
DATE OF JUDGMENT
: 16 March 1993
JUDGMENT
/MILNE JA
2
MILNE JA:
The three appellants and eleven others were charged in the Supreme Court
of Venda with the murder of Emelinah Makulani, a 63 year
old woman who was
married to one Samuel Makulani. Makulani was an 81 year old priest of the New
Apostolic Church of Zion who described
himself as the bishop of the congregation
in an area of Venda called Mathuli B.
The appellants were respectively Accused Nos 1, 2 and 5 in the court
below and when I deal with them individually I shall refer to
them as such in
this judgment.
The appellants were found guilty of murder. After hearing evidence in
extenuation, the trial court found that there were no extenuating
circumstances
and sentenced them to death. At that stage, the law in Venda
3
regarding the death sentence was the same as the law had
been in the Republic before the amendments effected by
Act
107 of 1990. It was however anticipated by the end
of the trial that
the law in Venda would, in the near
future, be amended so as to make it accord with the law
in the Republic and, for that reason, the trial court
granted the appellants leave to appeal against the death
sentence and against the finding that there were no
extenuating circumstances. The contemplated amendments
were duly effected by the Criminal Law Amendment
Proclamation 16 of 1991 of Venda. The terms of section
19(1) of that Proclamation have the same effect as the
provisions of section 20 of Act 107 of 1990. It follows
that this appeal must be dealt with in accordance with
the principles established in a number of decisions of
this court, the effect of which is conveniently
summarized in S v Mlumbi en 'n Ander 1991(1) SACR 235 (A)
at 249b - 250j.
4 There was no dispute at the trial about
the
course of events on the day when the
deceased met her
death. This is set out in the judgment of the court
a
quo in the following passage:
"During the evening of 21st March, 1990, the deceased and her husband
retired to bed. They were alone in the house. They were awakened
by the sound of
objects thrown against the walls and through certain windows. There was also a
loud knocking on the door. When the
bishop opened the door he saw a crowd of
people on the front stoep and in the lapa in front of the stoep. As it was dark
he could
not recognise anybody but he realised that there existed a danger. He
fled back into the house, gained exit through a bedroom window
and escaped into
the darkness. He did not see what took place at his house but after what he
estimates to be approximately 50 minutes,
he heard the sound of gunshots and he
then went back. He found the police on the scene and he also found his wife in
the lapa. She
was dead and had obviously been burnt to
death.
There were some very unsatisfactory factors in
the medical evidence regarding the exact cause of the deceased' s death, but we
do
not regard it as necessary to deal therewith. As counsel for all the accused
conceded and, in our view, correctly so, all the evidence
clearly showed that
the deceased died as a result of the fact that after a tyre was placed around
her neck she was doused with a
certain amount of petrol, and set
alight.
It is further common cause that during the late afternoon or early
evening of the fateful day an action was set in motion by certain
people to
collect the male youths living in the Mathuli B area
5
to attend, a meeting in the veld near a water pump
not very far from the church and the house of the deceased and her husband.
Summons
to the meeting took place by word of mouth and eventually a size-able
crowd estimated by some of the witnesses as 40 to 50 persons,
assembled at the
appointed place. At least some of these people had been rounded up individually
from their homes in the vicinity.
At the meeting a chairman took control and informed those present that
the purpose of the meeting was to discuss the problem of people
who practised
witchcraft and he further indicated that such people had to be burnt. He invited
those present to name people whom
they know to practise witchcraft. A few names
were mentioned, amongst others that of the deceased. Also amongst others the
name of
one Leah was mentioned but it was said that the meeting was not looking
for amateurs but was wanting the names of people who had
been practising for a
long time.
After the deceased had been clearly identified and her identification
apparently received general agreement somebody raised the question
as to where
petrol and the tyre were to be found. According to the evidence there are no
petrol stations in the vicinity. Two kraals
were then suggested apparently
because they were places where vehicles or other equipment like generators would
be found to siphon
petrol from. It was further suggested that a small group be
detailed to fetch the petrol and the tyre and a party of 5 was then nominated
for this purpose. The appointment or nomination took place by way of proposals
from the crowd, confirmed by the chairman. The petrol
party then left on their
mission and it was arranged that after they obtained the necessary equipment
they would give a sign by way
of whistling for the crowd to join them.
6
Petrol in a plastic bucket sealed with a lid was
obtained from the owner of a certain kraal from stock held for a generator. A
tyre
was also obtained from another kraal. Apparently after the pre-arranged
sign was given the petrol party and the crowd then again
met. The whole crowd
then proceeded towards the deceased's house. At that stage a common intention to
kill the deceased undoubtedly
existed, at least among some of the members of the
crowd, while everybody present was aware of such intention.
They gathered around and in front of the house and it was not disputed
that the house was stoned and the front door banged upon. Eventually
the
deceased appeared at the front door and enquired why they wanted to kill her.
There is some difference in the evidence as to
what their immediate reaction
was. One witness says she was told to pray while another says she was asked with
whom she practises
witchcraft and upon her denial that she did so, was accused
of being a liar. What is however agreed upon is that she was pulled off
the
stoep, sjambokked and hit in the face.
The tyre was then placed over her shoulders, petrol poured over her body
and obviously also over the tyre. She was then set alight.
Whilst screaming and
moving around she managed to throw off the tyre but her clothes and a blanket
she had around her were ablaze
and she fell down. Some of the crowd then started
to run or move away but they were threatened and ordered back. While the
deceased
was still alive and mumbling or moaning, the burning tyre was replaced
on her body. Only thereafter did she become still and died."
7 It
was furthermore common cause that all the accused were
present when the deceased was killed. What was in issue
at the trial was the nature of the roles played by
the
various accused and the extent, if any, to which they
were subjected to duress by others. The trial court in
fact acquitted Accused Nos 8 to 14 on the basis of
duress.
The appellants were however found to have played a leading role.
The court rejected Accused No 1's evidence that he played that role
because of threats. These threats were uttered to other people
to the effect
that if they did not attend the meeting they might find that their houses would
be burned. The trial court held that
Accused No 1 had actively participated in
the decision to kill the deceased, had actively participated in the preparations
to do
so and in the initial execution of the
8 plan and that he had
associated himself with the common
purpose to murder the deceased by proceeding to the
scene. With regard to the alleged threats the court found that such
threats had played no part in his actions. It was found that:
"His status as a senior student who had some years teaching experience most
probably made him fit for the role (of chairman of the
meeting) in the eyes of
the others. Apart from that he has got a forceful appearance and a composure
that one can imagine would impose
respect. He is well-built and from what we
have observed from him in the witness box able to do his work well.
We are satisfied that Accused 1 actively participated in the scheme to kill
the deceased, that he assisted and to a large extent instigated
the plan to kill
her and that he associated himself therewith up to the end." (My
parenthesis).
In fact it appears from the judgment
dealing with extenuating circumstances that his counsel conceded that Accused No
1's claim of
coercion fell to be rejected.
It is relevant to refer at this stage to Accused No 1's own version of
the events which preceded
9
the meeting at which the killing of the deceased
was
discussed. This may be summarised as follows: Because boycotts
were in force at the school where he was teaching he took a taxi home
and
alighted at a cafe about four kilometres from his home where he lived with his
parents (his home was next door to that of the
deceased who was his aunt). He
remained at this cafe until about 7 or 8 p.m. when a group of persons arrived in
a motor vehicle.
Accused No 4 and Accused No 5 (Appellant No 3) came to him and
told him to accompany them on this vehicle because there was "work
to be done".
They drove to a store which was near the deceased's home and Accused No 5 then
accompanied him to his, Accused No 1's,
home to fetch a jacket. On the way
Accused No 5 told him that the "work" referred to earlier was the work of
holding a meeting at
a certain water pump in the vicinity "to discuss about"
people who practised witchcraft and that such people "must be burned". On
arrival at the water pump they sat waiting for others to come. There were
at
10
that stage only seven of them altogether. Others did not
come and Accused No 5 then gave Accused No 1 a sjambok and they then
rounded up "a group of boys". They met with other "boys" and
eventually a
meeting was held "the purpose of which would be to burn people who practised
witchcraft". Accused No 1 was the chairman
of the meeting and he then performed
the actions described earlier.
It was submitted on behalf of Accused No 1 that the following were
mitigating factors:
(a)
He and the
other members of the group were motivated by a belief in
witchcraft.
(b)
He was not a
party to the original planning of the
killing.
(c)
He acted in
response to threats that were uttered to
others.
11
(d) His personal circumstances and in particular the absence of the previous
convictions and his relatively young age established
that there were good
prospects of rehabilitation.
Accused No 1 stated quite
unequivocally in his evidence that he did not believe in witchcraft. The fact
that a particular accused
person has denied a belief in witchcraft is not of
course conclusive. The circumstances may indicate such a belief cf S v Motsepa
en 'n Ander 1991(2) SACR 462 (A). There is not the slightest evidence that the
deceased had ever behaved in any way which could have
afforded grounds,
reasonable or otherwise, for a belief that she was practising witchcraft or
anything remotely akin to witchcraft.
The only evidence that witchcraft was
involved was the evidence already referred to viz, that it was stated at the
meeting that witches
must be burned and several persons including Accused No 2
said at that meeting that
12 various persons including the deceased
were practising
witchcraft. Each of the appellants denied any belief
in
witchcraft and there is simply no evidential basis upon
which one could find as a reasonable possibility that any
of them believed that the deceased had to be killed in
the interests of the community; still less that any of
them had a belief of the nature referred to in Motsepa's
case at p 470g - i.
The trial court found that it had not been proved that Accused No 1 was a
party to the original planning of the killing. This could,
perhaps, more readily
be described as the absence of an aggravating feature, but in any event the
trial court's finding that once
he was let into the secret he threw himself
whole-heartedly into the role of one of the leaders in the execution of that
plan is
fully justified. I refer not only to his acting as a directing force at
the meeting but also to the rounding up of youths prior to
the
13
meeting without which this tragedy would never have
occurred.
As already mentioned the trial court, rightly in my view, rejected the
evidence that Accused No 1 was ! in any way coerced or unwilling
to act as he
did.
The personal circumstances of Accused No 1 are as follows. At the time he
committed this offence he was 22 years old. He matriculated
at the end of 1987
and during the years 1988 and 1989 he was a temporary primary school teacher. At
the beginning of 1990 he enrolled
as a student at the Teachers Training College
and at the time of the trial was a second year student at that institution. He
was
a first offender. These are undoubtedly mitigating factors and counsel for
the State fairly conceded that the first accused "is probably
a good candidate
for rehabilitation".
14
There are a number of aggravating
features.
(1) The horrific nature of the crime. This woman of mature years was, for no
apparent reason, violently dragged out of her home in
the middle of the night,
punched, sjamboked and burned to death. What is more, when in her agony she
managed to throw off the burning
tyre her assailants were not content to leave
matters as they were but, with some difficulty, replaced the burning tyre until
their
aim of murdering her was finally and painfully accomplished.
(2) The fact that he played a leading role - this despite the fact that the
deceased was not some faceless symbol of authority but
his own aunt
who
lived next door to him.
(3) This was not an offence committed in the heat and
smoke of a
sudden mob violence, but a planned attack
which was preceded by a
certain amount of deliberate
preparation in the form of the rounding
up of
15 youths, the holding of a "meeting" and the searching
for and obtaining of the petrol and the tyre with
which to carry out their nefarious purpose.
It
remains now to decide whether in the light of all the relevant circumstances and
the well-known objects of punishment the death
sentence is the only appropriate
sentence. Before doing so it is necessary to consider the position of the other
appellants.
The evidence of the State witnesses implicated Accused Nos 2 and 5
heavily in the actual commission of the offence. I shall at a later
stage deal
fully with the part played by Accused No 2. The evidence for the State against
Accused No 5 was that he was the one who
ordered one Joseph to close the cafe
and come to the meeting and threatened that the cafe and the house would be
burned if he did
not do so. He was the one who suggested the fetching of the
petrol, volunteered to be
16 one of the petrol detail and who
suggested the place
where petrol could be found. He took the lead when the
small party went to fetch petrol, he approached the owner
of the particular kraal and arranged for the petrol to be
delivered; he with Accused No 2 placed the tyre over the
head of the deceased and he, Accused No 5, struck the
match and set the deceased alight. He was the person
who, when the people wanted to leave after the deceased
caught fire, turned them back, knife in hand. Neither
Accused No 2 nor Accused No 5 gave evidence until the
stage when extenuating circumstances were being
considered. The comments of the trial court are as
follows:
"This led to a rather extraordinary situation. When they (Accused No 2
and 5) took the stand it appeared that their evidence was directed
at showing
the absence of guilt in all respects. They claimed only to have been present
because of duress by Accused No 1 but not
to have participated in any sense in
the events that led to the deceased's death or in the killing itself." (My
parenthesis).
17 The judgment on extenuating circumstances
continues:
"As far as both Accused No 2 and 5 are concerned we already found that they
did not only take a leading role in the events that led
up to and inspired the
murder, but that they are in fact the persons who effectively executed the deed,
No 2 by dousing the deceased
with petrol and No 5 by setting her alight. The
monstrosity of their act and the shocking immediate effect thereof did not deter
them or bring them to their senses but when the deceased succeeded in throwing
off the tyre in the first instance, they stopped the
crowd from going away and
ordered the replacing of the burning tyre on the
deceased."
It was submitted on behalf of
Accused Nos 2 and
5 that the following were mitigating factors:
(a)
A number of
similar instances occurred in Venda at this
time.
(b)
The two accused may
have been 'deindividuated' or
'desensitised'.
(c)
The
murder was politically
inspired.
(d)
The personal
circumstances of the two accused were such that there was a good prospect of
rehabilitation.
18
I deal firstly with the question of
"deindividuation" and "desensitisation". These psychological phenomena
have frequently been referred to in the reported cases, see
e.g. S v Matshili
& Others 1991(3) SA 264 (A) at 270I - 271G. In most if not all of these
cases there was expert evidence as
to the nature of such phenomena and in some
of them as to their effect upon the accused in those cases. It does not seem to
me however
that the absence of such expert evidence is necessarily a bar to the
court considering what Nestadt JA in Matshili's case called
"mob psychology". In
fact Hiemstra: Suid-Afrikaanse strafproses 4th ed p 625 states, presumably on
the basis of common judicial experience,
that:
"Mense wat in hul wese nie geweldenaars of moordenaars is nie, kan 'n
ongewone geweldsneiging openbaar wanneer hulle 'n massa-psigose
ontwikkel. Die
een sweep die ander op, 'n skugtere siel word moedig wanneer hy andere geweld
sien pleeg. Dit hoef nie 'n groot skare
te wees nie. So min as vier of vyf kan '
n wedersydse opswepingseffek hê. In sulke omstandighede kan iemand wat in
die hof
se oordeel nie 'n gewelddadige natuur het nie, verskoon word van die
hoogste vonnis. Die opbruising van
19
gesamentlike aksie kan 'n versagtende omstandigheid
wees."
As stated in Matshili's case it is a question of
fact whether mob psychology resulted in the accused's responsibility being
diminished
to an extent sufficient to reduce his moral guilt. There are however
several obstacles in the way of a finding that any of the appellants
were so
influenced. The first is that desensitisation did not, on the evidence, play any
role since there is nothing to suggest that
in this rural part of Venda the
appellants were subjected to the desensitising influences so often experienced
by dwellers in Black
townships who are fed virtually a daily diet of violence.
Secondly, each of them played an important role in the events which preceded
the
killing and, what is more important, in events which preceded the meeting. Such
actions were performed therefore at a time when
there were only a handful of
youths present and when
20
there was nothing taking place which could result in
the
one inflaming the passions of the others. Thirdly, none of them
said that he was so influenced.
This brings me to the question of the
motive
for the killing. The evidence left this uncertain.
As
already mentioned it was submitted on behalf of
Accused
No 1 that the motive for the killing was the belief
that
the deceased was a witch. This has no evidential
basis
nor is it reasonably possible on the facts. It
was
submitted on behalf of Accused Nos 2 and 5 that
the
killing was politically inspired. There is no
evidence
to support the notion that anyone believed that
the
deceased belonged to a party or group to which any
other
party or group was hostile. There is however evidence
of
a number of similar attacks taking place at about
this
time. Accused No 1 also seemed disposed to agree
that
the boycott of the schools was politically inspired.
I
shall call this the Venda unrest factor and I shall deal
21
with it more fully at a later stage. The question
was
raised of some animosity existing between the appellants
and the deceased because the mother of Accused No 2 was
the widow of the previous bishop during whose term of
office the church was built. This was adverted to by the
trial judge when delivering the judgment of the court on
the guilt or otherwise of the accused, but having quite |
properly explored this possibility at the stage when '
evidence in extenuation was led the court concluded that
the evidence was confusing. It was found that there was |
evidence that Accused No 2's mother did derive certain
financial benefits from the fact that she was the widow
of the previous bishop and that these benefits had
declined or disappeared by the end of 1989. This factor
was not however relied upon by any of the appellants and
it remains a matter for speculation.
I deal now with what I have called the Venda unrest factor. Evidence was
put before the trial court
22
through the investigating officer to the effect that
the
occurrence took place during a general time of unrest in Venda,
and it was found that at the time when this offence was committed,
several
incidents of mob attacks had taken place on older persons. Counsel for the
State, in a praiseworthy effort to assist this
court and without objection from
counsel for the appellants, expanded on this information. He stated that during
the period January
to April 1990 there had been no less than thirty attacks
throughout Venda which followed a particular pattern. There were 247 accused
persons involved in these attacks which had resulted in the death of 45 persons.
The pattern in these cases was that a group of "youths"
aged between 16 and 30
years attacked and in some instances killed a number of people in Venda, in all
cases alleging that the persons
attacked had been practising witchcraft. Later
in 1990 there was a military coup in Venda and from that time up until the
present
time there had been only two such cases. In the
23
light of this information I consider it a
reasonable
possibility that some forces were at work which
influenced young men in Venda to launch such attacks. As already mentioned they
took
place, so
Mr Morrison
informed us, throughout Venda. It would
obviously have been desirable had such information been placed before the trial
court. It
was not, for the very good reason that this was one of the early
trials and the full facts now put before us were not known at that
time.
Nevertheless there exists the reasonable possibility that this was not a case
where the deceased was killed because of some
unrevealed grudge held by the
accused but one in which forces, possibly political, were at work which had as
their object the breakdown
of law and order in Venda. That was not the evidence
of the accused at the trial but it is I consider a reasonable possibility on
the
information which has now been put before us. What is more it accords with the
general probabilities. Young people are susceptible
to influence and a brief
study of
24 the Law Reports in the Republic over the last five
years
and in particular in the period since the beginning of
1990,
reveals as a reality of life in South Africa that
young people have
with distressing frequency been
influenced by one political force or another to
commit
numerous acts of violence against those perceived
as
political opponents. The degree of influence and its
effect will of course depend on the particular
circumstances of each case. All that can be said on the
particular facts of this case is that it is reasonably
possible that it supplies the motive here and that this
is, generally speaking, somewhat less reprehensible than
some other forms of killing e.g. for gain, to prevent
detection of another crime.
I deal now with the personal circumstances of Accused No 5. He was a
first offender and a young man. The evidence is uncertain as
to his age but the
court found that, giving him the benefit of the doubt, it had
25
not been established that he was older than 19 at the
time of the commission of the offence.
I was initially inclined to think that the death sentence was the only
proper sentence in the case of all three the appellants. This
outrageous killing
of an innocent woman by a barbarous gang of youths, the extreme cruelty of the
manner in which she was killed
and the determination that she should burn to
death by the replacing of the burning tyre on her body are gravely aggravating
features.
I have, however, come to a different conclusion in the case of Accused
No 1 and Accused No 5.
1 deal first with Accused No 5. The fact that an accused is only 19 years
old and a first offender are usually strongly mitigating
factors, but in
exceptional circumstances the death sentence will be imposed notwithstanding the
presence of those factors see e.g.
S
26
v Mofokeng 1992(2) SACR 710 (A). After some hesitation I
have come to the conclusion that in the case of Accused No 5 the
circumstances are not so exceptional as to make it apparent that
the death
sentence is the only proper sentence. In coming to this conclusion I am
influenced by what I have described above as the
Venda unrest factor.
Nor do I think that sufficient grounds exist for imposing the death
sentence on Accused No 1. Accused No 1 is older than Accused No
5 and he was in
a position where he was able to and did exercise some authority, but, unlike
Accused Nos 2 and 5, he was not physically
involved in the actual assault upon
the deceased.
In all the circumstances a very lengthy term of imprisonment is in my
judgment an appropriate sentence in the case of Accused Nos
1 and 5. By reason
of the factors referred to above I do not think there are valid
27
grounds for differentiating between them. I would have
imposed a sentence of 25 years imprisonment on each of
them,
but as they have been in custody for very nearly 3
years I propose
to reduce the sentence by that period.
The situation of Accused No 2 is different. He was the only fully mature
person amongst all the youngsters who took part in the murder.
He was 31 years
old with a wife and three children. There was no evidence that he belonged to
any political grouping, let alone one
that was antagonistic towards the deceased
or her husband. Indeed, he professed to be so naive about political matters as
not to
know what the ANC was. He assumed a prominent role at the meeting which
preceded the murder. There was evidence that he was armed
with a sjambok and
prevented others from leaving the meeting. He opposed a suggestion that the
meeting be postponed. He identified
the source where petrol could be found,
nominated members to the petrol patrol and threatened
28
them with violence should they fail to return. He
was
the one who identified the deceased as a supposed witch who
should be burnt to death. (The deceased, incidentally, was the wife of
the
bishop who succeeded his father: his mother was the previous "juffrou".) It was
also Accused No 2 who said, when Leah's name
was mentioned as a witch, that they
were not interested in burning "amateurs". He herded and accompanied the mob to
the deceased's
house. He opened the gate and there was evidence that he
confronted the deceased and accused her of being a witch. Thereafter he
struck
the deceased with a sjambok, placed the tyre on the deceased with the help of
Accused No 5, and poured petrol over her. Accused
No 5 threw the burning match
which set her alight. Accused Nos 2 and 5 were found by the trial court to have
stopped the crowd from
leaving the scene of the burning and to have ordered the
replacement of the burning tyre on the deceased.
29
Accused No 2 was asked to explain why the
youngsters included him in their group. This gave rise
to the
following exchange:
"Wasn't it strange that they should go out of their
way to include you (sic) accompany them? It is
strange.
Can you think of any possible reason why they did
this to include you? Maybe they included me in
order to protect themselves or to shield behind me.
In what manner? By the way by doing what they
did, killing the deceased in this case."
This is not
the answer of a man who was carried away by
the mood of a mob.
Accused No 2 has a previous conviction for assault with intent to do
grievous bodily harm which, since he was sentenced in 1983 to
a fine of R60, is
neither recent nor serious. In his case, too, it was conceded on behalf of the
prosecution that he was reasonable
material for rehabilitation. Nevertheless his
maturity, compared to his two co-accused, puts him in a
30
different bracket. In my view his is one of those cases
where the consideration of retribution outweighs
the
mitigating circumstances in his favour to such an
extent
that he is deserving of nothing less than the
death
sentence. i
In the result, in the case of Accused Nos 1 and 5 the appeal succeeds and
the sentence of death is set aside, and a sentence of 22
years' imprisonment is
substituted for the death sentence. In the case of Accused No 2 the appeal is
dismissed.
A J MILNE
Judge of Appeal
E M GROSSKOPF JA ]
] CONCUR
NIENABER JA ]