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1993
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[1993] ZASCA 115
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S v Mputhi (13/93) [1993] ZASCA 115 (9 September 1993)
CCC/
CASE NO 13/93
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
DAVID JABULANI
MPUTHI
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: NESTADT, NIENABER JJA et HARMS AJA
DATE HEARD
: 2 SEPTEMBER 1993
DATE DELIVERED
: 9 SEPTEMBER 1993
JUDGMENT NESTADT, JA
:
This is an appeal against the death sentence.
It was imposed by Broome J sitting on circuit in the Natal Provincial Division
consequent
upon the appellant
2
having been found guilty of murder.
The crime took place near Mhlumayo in the
district of Klip River on 30 September 1991. The facts
of the case are
summarised by the trial judge in the
following terms:
"(A) truck hired by Best Buy Cash & Carry which is Mr Vawda's operation, was
in the Mhlumayo area delivering a large consignment
of goods and receiving
payment therefor. The amount of the day's taking was estimated at R9 000. Mr
Vawda had hired the services
of the Accused from Northern Natal Security to act
as an armed guard to protect his employees and his goods. When the day's
operations
were complete and while the Accused was sitting in the back on the
truck with Alfred and the other three Best Buy employees were
in the cab with
the driver of the hired truck, the Accused produced a firearm, shot and
seriously injured Alfred who was on the back
with him, the truck stopped, the
occupants of the cab fled but as they did the Accused shot dead the deceased and
fired a number
of shots at Eric and Fakazi."
It should be added
that the appellant was seen to take
the money and that it was never recovered; that the
3
deceased was shot as he was fleeing from the truck; that he died as a
result of a bullet wound of the head; and that the appellant
was sentenced to
various terms of imprisonment in respect of the other crimes disclosed in the
description of what happened but that
such sentences are not in issue in this
appeal.
In favour of the appellant is the fact that he (aged 27) is a first
offender. A further possible mitigating factor is that the appellant's
decision
to steal the money, and in the process kill the deceased and shoot the others,
probably arose only during the course of
the journey. This is because the
appellant had no prior knowledge of what duties he was being assigned to.
On
the other hand the aggravating factors are manifest. The murder, which took
place during the
4
course of a robbery, was obviously committed with
dolus
directus.
It was a callous killing. The deceased was shot as he was fleeing, probably so
that he could not later identify the appellant.
As the trial judge found, the
appellant's conduct betrayed his position of trust; he robbed and shot the very
people he was employed
and paid to protect. This is a particularly reprehensible
factor. There was a measure of premeditation in what he did. And as appears
from
the judgment a
quo
this type of offence is a prevalent one. In my opinion
these considerations override the mitigating factors referred to. They are
such
as to impel one to conclude that in the interests of society and having regard
to the deterrent and retributive objects of punishment,
the death sentence is
the only proper one.
5
The appeal is dismissed.
NESTADT, JA
NIENABER, JA )
) CONCUR
HARMS AJA )