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[1993] ZASCA 172
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S v Shabalala (6/93) [1993] ZASCA 172 (19 November 1993)
Case No 6/93
E du Plooy
IN THE SUPREME COURT OP SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PETER
MOREKI SHABALALA
Appellant
and
THE STATE
Respondent
Coram:
SMALBERGER, VAN
DEN HEEVER JJA et HOWIE AJA
Heard:
Delivered:
9 November 1993 19 November 1993.
2
JUDGMENT HOWIE AJA:
On the morning of 22 January 1991 and in
Mpumalanga Township, Hammarsdale, intruders entered the house where 20 year old
Gugu Mkhize
lived. They robbed, kidnapped and later murdered her. One of them
also murdered her infant daughter. For convenience I shall distinguish
the two
victims by calling one "the deceased" and the other "the child".
In
consequence of those events appellant and another man (accused no 2) were
convicted in the Natal Provincial Division (Page J and
assessors) of the murder
of the deceased (count 1), housebreaking with intent to rob and robbery (count
3) and kidnapping (count
4). Appellant was also convicted of the child's murder
(count 2).
Appellant was sentenced to death in respect of both murders. Accused no 2 was
sent to prison for 20
3 years on count 1. They received identical gaol
sentences
on counts 3 and 4.
The appeal is brought in terms of s 316A of the
Criminal Procedure Act (51 of 1977) in so far as appellant's convictions and
sentences
on the murder charges are concerned, and with the leave of the trial
Judge (sought and granted the day before the appeal) as regards
the other
convictions.
The prosecution case rested on the evidence of an accomplice, Phumlani Duma;
explanations given by appellant while pointing out the
scenes of the respective
crimes to a Lieutenant Mkhwanazi on 24 January 1991; and the evidence of Joyce
Nkosi, who denied appellant's
allegation (when pleading not guilty both in the
magistrate's court under s 119 of the Act and also at the trial) that he was at
her house on the evening of 22 January. Appellant gave evidence denying his
involvement in any of the crimes. He said that prior
to going to Joyce's he was
at home the entire day.
4 The Court below analysed the relevant evidence
with exemplary thoroughness and care before concluding
that Duma, Lieutenant Mkhwanazi and Joyce Nkosi were to
be believed.
Counsel for appellant, who also defended him at the trial, contended that
despite the Court's comprehensive treatment of the evidence
and the issues it
had nonetheless erred in making the findings it did.
In elaborating upon this
submission, counsel criticised Duma for not reporting the offences to the police
as soon as they confronted
him, for adding detail to his evidence which was
absent from the account which he gave when pleading in the s 119 proceedings,
and
for professing to have been unaware that the deceased was being killed by
his two companions. For these reasons, said counsel, Duma
should have been
disbelieved.
As regards the pointing-out and the accompanying statements, it was accepted
by counsel that appellant did do and say what Lieutenant
Mkhwanazi
5
recounted in evidence but it was submitted that grounds
existed for the conclusion that these disclosures were
unfairly and
irregularly obtained. Accordingly, the
officer's evidence had been wrongly
admitted.
As an alternative to this last submission it was argued that it was
reasonably possible, on an acceptance of the truth of appellant's
partly
exculpatory utterances to the lieutenant, that even if present when the murders
were committed, he took no part in them.
In so far as appellant's evidence is concerned however, counsel conceded that
appellant was justifiably found by the trial Court to
have given untrue evidence
on virtually every aspect of the case. That concession, which was responsibly
and rightly made, in my
view, necessarily constituted a most substantial
obstacle to appellant's success on the convictions at the very outset.
6
As a preface to discussion of the argument for
appellant it is appropriate to mention the salient State evidence.
The
robbery and the disappearance of the deceased and the child were reported to her
brother, Malusi Mkhize, before noon on the fatal
day. He and others instituted a
search. Between 1 and 2 pm accused no 2 approached one Mbatha, who lived in the
vicinity, for the
loan of some rope. Mbatha had none and the accused
left.
During the afternoon the body of the deceased was found suspended by a
piece of wire from a beam in a deserted house in the township.
The cause of her
death was asphyxiation due to hanging. The rude scaffold employed by her killers
had consisted of a bench on which
two soil-filled tins had been placed, one on
top of the other. In another room her child was found with its head in a
container of
water and the same bench placed on top
7 of the body to maintain
immersion. The cause of that
death was also asphyxia.
Later in the day Malusi Mkhize came across Mbatha
who mentioned accused no 2' s request for a rope. This led the searchers, who by
then included the police, to accused no 2. On apprehension he, in turn,
disclosed the names of appellant and Duma. As a result Duma
was arrested that
evening and made a statement to the police the following day.
During the
morning of 23 January appellant was arrested and in the afternoon he was
interviewed by the investigating officer, Detective
Sergeant Mkhwanazi, who took
a statement from him. Appellant later declined to make a statement to a
magistrate but agreed to show
the police certain places. The pointing out to
Lieutenant Mkhwanazi occurred the next day.
The s 119 proceedings were held
in May 1991. Appellant, accused no 2 and Duma were before the Court. As already
mentioned, appellant
pleaded not guilty and
8 claimed to have been at Joyce
Nkosi's house on the day of
the killings. Duma also pleaded not guilty but in
indicating the nature of his defence professed detailed
knowledge of the
offences. He admitted participation in
the removal of the stolen goods and incriminated
appellant and accused no 2 in various respects as regards
all the offences in question .
Subsequent to the proceedings in the
magistrate's court the charges against Duma were withdrawn and a further
statement was taken
from him by the police, no doubt for the purpose of his
testifying for the prosecution in due course.
Duma's evidence at the trial was that he was passing the home of accused no 2
on the day concerned when appellant, who was at accused
no 2's house, summoned
him. Appellant said he wanted the witness to accompany them to recover certain
articles from Malusi Mkhize
which the latter had bought from appellant but not
paid for. Duma consented and the three of them departed.
9 Spying out the Mkhize home from an adjoining
garden, they noticed that there was a young man present
in the house. Appellant announced that because he did
not get on with this
person they would delay their
arrival until he left. When the young man went
about 30
minutes later they climbed the fence and entered the
Mkhize's
property. They proceeded to the kitchen door.
Appellant opened the unlocked
security gate and they
walked inside.
The deceased was working in the kitchen.
Appellant, who had been at school with the deceased,
grabbed her and put his hand over her mouth, exacting her
submission by brandishing a home-made firearm. At his
instance the other two then removed numerous articles
including a TV set, a hi-fi set, radios and a video
recorder. They took these things to a vacant house next
door, making two trips in the process. When they
returned, appellant said he was going to take the
10 deceased with them.
She asked to have the child with her
and appellant agreed.
When the group was outside, the deceased tried to escape by running off.
However, appellant pursued her and brought her back. From
there they all
proceeded together to another vacant house where they stopped for about 10
minutes. The deceased said she was hungry
and appellant sent Duma to buy bread,
margarine and some cooldrink. On his return Duma noticed that accused no 2 was
no longer there.
(From Mbatha's evidence, as I have already said, it is clear
that this was the stage at which accused no 2 had gone to find some
rope.)
The deceased was given food and drink and when she had finished, appellant
said that they were to proceed to another part of the township
where there were
yet more deserted houses. Duma explained in this regard that political unrest in
the township had caused many families
to abandon their homes.
11
Having arrived at the designated area, the group entered one of these
unoccupied dwellings and waited in a bedroom. After a while
appellant sent Duma
to look for accused no 2. Duma could not find him and went back to the others.
Not much later the appellant called
the deceased into the kitchen. She left the
child on a blanket on the floor. Duma then heard her being spoken to by
appellant and
also by accused no 2, whose return Duma had not noticed. When the
witness looked through the bedroom door he observed the deceased
and the two men
standing in the middle of the kitchen. He then decided to go into the dining
room where he stood looking out of the
window. Some minutes later appellant
called to him to bring matches. Duma moved to comply but on reaching the door
into the kitchen
saw the deceased hanging there. Too afraid to go any further,
he threw appellant the matches. He then saw how appellant and accused
no 2 both
lit cigarettes and applied the
12
burning tips to the deceased's upper arms apparently to
determine if
she was still alive. There was no reaction.
Duma then left the house and saw
the other two men do the same. As they were departing, the child cried out.
Appellant went back alone
and entered the house while Duma and accused no 2 went
off in different directions. On his way home Duma went to the house of one
Mlaba
intending to report what happened but found nobody there. When approached later
in the day by a large crowd, including accused
no 2 in the custody of the
police, Duma said he noticed that accused no 2 had been injured and suspected
that he had been assaulted
by reason of what had happened to the deceased and
the child. Fearing that if he admitted anything he would also be assaulted, he
did not initially tell the police what had occurred. He only made disclosures
when he subsequently claimed ignorance of appellant's
whereabouts and was
assaulted by one of the policemen in whose custody he then was. He was also
assaulted, so he
13 alleged, by Detective Sergeant Mkhwanazi during the
latter's interrogation the following day.
On the morning of 24 January 1991 Lieutenant
Mkhwanazi was requested to oversee and report on a
pointing out by
appellant. He gave evidence concerning
this expedition and what he recorded during the course of
it. According to him he warned appellant of his right to
silence and that any disclosures would be noted and
possibly used in evidence. The appellant then took the
officer and an interpreter to four houses in the
township. At the first, appellant said that that was
where (in Mkhwanazi's account of appellant's words) "they
grabbed the deceased where she was standing in the
kitchen", and where he guarded the deceased during the
removal of the goods. At the second house (next door to
the first), appellant said that this was where "they
first kept the deceased and the goods". Then he pointed
out a third house where the deceased and the goods were
"kept". The fourth house, according to appellant, was
14
where accused no 2 killed the deceased by hanging her
with electric wire from a rafter and where accused no 2 also killed the
child.
Other evidence in the case makes it plain that the four houses indicated by
appellant were the houses referred to by Duma and that
the first and fourth were
the sites where the crimes were committed.
Lieutenant Mkhwanazi's evidence
was only allowed in after a challenge to its admissibility had been rejected
pursuant to an interlocutory
trial. That challenge was founded upon allegations,
put by counsel and repeated by appellant in evidence, that various policemen
had
assaulted him so severely that his disclosures to the lieutenant were thereby
improperly compelled. It was also claimed that
the lieutenant had not given the
required warning and had also refused to arrange for appellant's representation
by an attorney when
appellant had specifically requested this. Lieutenant
Mkhwanazi denied these allegations.
15
Appellant's counsel called Duma as a witness in
the admissibility trial and he testified that when he was interviewed by
Detective Sergeant Mkwanazi the day after his arrest the
sergeant struck him
with a cane in order to persuade him to give a version consistent with what the
appellant and accused no 2 had
already told the police. The trial Court accepted
this testimony when evaluating the evidence presented for and against appellant
on the admissibility issue. Despite Duma's evidence the Court found against
appellant on all the later's allegations pertinent to
that question.
Reverting to Duma's evidence on the main case, the trial Court found that it
would not have been sufficient, standing alone, to have
carried the day for the
State. The Court remarked in particular upon the strong improbability that Duma
would have been ignorant
of the reason for taking the deceased with them and
unaware of the hanging until it was over. Nonetheless the Court found that on
the whole Duma had been honest
16 and satisfactory and, moreover, that he had
been
corroborated with telling effect by appellant's pointing-out and concomitant
explanations. The Court held, too, that a further safeguard
against a false
conviction had been provided by appellant's profound mendacity.
Turning to
the earlier-summarised contentions which appellant's counsel advanced on appeal,
it was argued that the shortcomings in
his evidence justified the finding that,
as a reasonable possibility, accused no 2 and Duma were the only wrongdoers and
that Duma
had falsely introduced appellant as a third participant in order to
create the role for himself of a mere bystander as far as the
killings were
concerned.
The trial Court's reasons reveal that it was well aware of the discrepancies
and omissions which are evident upon a comparison of
Duma's evidence with his
statement in the s 119 proceedings. In fact, the Court below made specific
reference to the very two features
with which, on counsel's argument, Duma had
gratuitously
17 embroidered his story. It was held that their omission
from his statement before the magistrate was not
particularly significant
considering that he was then
concerned with putting up a defence and not
with
furnishing a comprehensive description appropriate to
evidence in court. That reasoning appears to me to be
sound.
The Court below was also fully cognisant of the improbability in Duma's
alleged ignorance of the hanging that was taking place in
the adjoining room. It
was chiefly that aspect that led the Court to conclude that it would have been
unsafe to convict on Duma's
evidence in the absence of corroboration implicating
the two accused. I am of the opinion that this material weakness in Duma's
testimony
was accorded all due weight in the evaluation process.
As to the fact that Duma failed to report the killings to the police at the
very first opportunity, he explained that he feared that
any admission of
knowledge,
18
or especially complicity, on his part would have elicited
an assault
upon him such as he suspected had been the case with accused no 2. Considering
that when he first encountered the police
they were accompanied by a no doubt
vengeful throng of local residents, this explanation is convincing, particularly
coming from
a 13 year old boy. In addition, he would in all likelihood have been
naturally reluctant to launch into a disclosure that would inevitably
have led
to admitting his involvement in the robbery.
Given the admitted falsity of
appellant's
alibi
I can find nothing in the proven circumstances of the
case, or in the argument for appellant, that creates the alleged reasonable
possibility that Duma falsely introduced appellant into his story as one of the
perpetrators. The suggestion that there were only
two culprits - accused no 2
and Duma - is inherently far-fetched. More importantly, the fact that the
deceased was abducted and permanently
silenced is a strong
19
circumstantial pointer to appellant's presence. He was
well-known to her. She did not know the others. It was therefore
pre-eminently he who would have had the motive to dispose of her.
Finally as far as Duma is concerned, the trial Court was fully alive to the
implications of its finding in the admissibility trial
that the witness had been
assaulted by the investigating officer. It concluded nonetheless that the
assault had not caused Duma to
change his version or to incorporate in it
material emanating from other sources. I can find no fault with that
conclusion.
As far as the pointing-out is concerned, there is first of all the submission
by counsel that, as an essential element of a fair investigation,
and therefore
a fair trial, appellant ought to have been informed by Lieutenant Mkhwanazi that
he was entitled to legal representation.
The lieutenant's admitted failure so to
advise appellant, said counsel, rendered the pointing-out
20
and accompanying statements unfair, irregular and
inadmissible.
This contention concerns an issue of considerable
importance. In the majority decision in
S v Mabaso and Another
1990 (3SA
185 (A) the comment was made (at 209 A-B) that although there was much to be
said for the view that an individual should
be informed immediately on arrest of
the right to legal representation it had never been suggested that a failure to
inform an accused
person of that right might render inadmissible an admission or
pointing out by him. In the minority judgment, on the other hand,
it was
remarked (at 215F) that the effect of a failure to inform an accused of the
right to legal representation upon the admissibility
of an admission or pointing
out by him
might have to be considered in future. See, too, S v
Mlomo
1993 (2) SACR 123
(A) at 130 b-g.
In my view, however, the issue referred to does not arise in the present
matter. As was pointed out in
21 the
Mabaso
case at 204D, the question
whether an
irregularity has been committed will depend on the facts
of each case and
in that regard much turns on an accused
person's knowledge of his rights.
Appellant's own
evidence is that before the pointing out he asked
Lieutenant Mkhwanazi to contact his aunt and ask her to
obtain a lawyer
for him. The
prima facie
inference from
this is that appellant was aware that he could obtain the
services of a legal representative at that stage. Such
inference was never displaced by other evidence from
appellant.
In his heads of argument appellant's counsel did not seek to attack any of
the trial Court's credibility findings relative to the
admissibility question.
This was not surprising. The evidence was exhaustively examined and unerringly
analysed. The conclusions
drawn from it are persuasive.
The matter of credibility in this connection was only raised on appeal when
counsel realised that the
22
question as to legal representation was not one of
procedural law at all but one of mere credibility. He then contended that
despite the trial Court's damning conclusion as to appellant's
dishonesty it was
still reasonably possible that his evidence as to his request for a lawyer was
reasonably possibly true. This belated
submission has no merit. No criticism was
levelled in either Court against the lieutenant's evidence and appellant was
found on all
material points, both in the interlocutory hearing and the main
case, to have been consummately untruthful. Those findings are unassailable.
The remaining submissions advanced concerning the admissibility issue were
that the trial Court attached insufficient weight to the
fact that appellant
declined to make a statement to a magistrate, that he pleaded not guilty in the
lower court and that accused
no 2 also claimed to have been assaulted by the
police in order to extract incriminating admissions from him.
23
The allegations made by accused no 2 were, of
course, not part of the evidence in the admissibility trial but it suffices
to say that his evidence was, on substantial grounds,
found to be untrue. In any
event, assuming that the assault found to have been perpetrated on Duma leads to
the possibility that
some policemen assaulted the two accused, the trial Court
found, again on fully acceptable reasoning, that whatever befell appellant
prior
to his being handed over to Lieutenant Mkhwanazi was, on appellant's own case,
not causally connected with the pointing out.
Appellant's refusal to make a statement to a magistrate and his pleading not
guilty in the lower court were not overlooked by the
Court below. They were
pertinently discussed and their impact evaluated. I am not persuaded that the
Court erred.
Finally on the convictions, appellant's allegation to Lieutenant Mkwanazi
that it was accused no 2 who committed the murders is wholly
valueless in
the
24
light of the trial court's credibility findings
favourable to Duma
and adverse to appellant.
For these reasons the appeal against the
convictions cannot succeed.
On the matter of the capital sentences imposed on
the murder counts, counsel stressed that appellant was, on the evidence, little
over 19 at the time of the killings and that he had no previous convictions.
Moreover, said counsel, long term imprisonment or, at
most, life imprisonment,
would sufficiently meet the need in the present case for a punishment with
appropriate retributive and deterrent
effect.
The relevant evidence has, in
the main, already been referred to. However, two further material facts must be
mentioned. One is that
on the medical evidence the hanging of the deceased would
have taken 3 to 4 minutes to cause death. The other is the length of time
which
passed from the invasion of the Mkhize home until the killing of the child. Duma
estimated that they
25 entered that house at between 1 and 2 pm and that
the
murders took place between 3 and 4 pm. It seems to me
that Malusi Mkhize
and Mbatha were probably more reliable
when they said, respectively, that the
robbery had
already been discovered by noon and that it was between 1
and 2 pm that accused no 2 came in search of a rope. Be
that as it may, there is every reason to conclude that
the entire episode must have taken at least two hours.
The only mitigating factors are appellant's age at the time and his clean
record.
The aggravating factors found by the trial Court were these. Firstly, the
killings were effected with a particularly base motive:
the deceased was
murdered to eliminate her as a witness to the robbery, and the child was put to
death to delay discovery of the
mother's murder. Secondly, the decision to kill
the deceased must have been made after reflection and at the latest when she was
taken from her home. Thirdly, both killings were callous and pitiless. Fourthly,
the
26 victims were innocent and helpless. In the fifth place,
appellant exhibited no remorse. Finally, he played the
leading role. There is no question but that those
findings, save one, were fully justified.
The aspect on which I am uncertain is whether
the decision to kill the deceased had already been formed
by the time she
was kidnapped. But such uncertainty
cannot assist appellant. The starting point is that she
was, manifestly,
taken prisoner so as to prevent her
reporting the robbery. Even if the decision to kill her
was made materially later it simply means that appellant
had that much more time to reflect on his actions and
that despite this opportunity he nevertheless came to the
considered conclusion that she was to be killed. And I
say that it was he that reached that decision because his
leading role and the absence of any evidence by him to
the contrary prevent the inference that he was
influenced in this regard by accused no 2.
27
The length of time which appellant had to
consider the implications before he killed the deceased -and it goes without
saying that the
mens rea
involved in both killings was direct intention -
clearly serves to render this case worse than those, extremely serious in
themselves,
in which killing is merely foreseen as a possible corollary to
robbery or when, in the execution of robbery, killing is resorted
to on the spur
of the moment.
Then there is the manner in which the deceased was killed. The
worst murder cases do tend, almost as a characteristic, to involve
extraordinary
and disturbing callousness but it is hard to imagine very much greater
cold-blooded deliberation than was involved
in setting up the relevant
apparatus, applying it to the deceased, seeing it take minutes for her to die
and then burning her arm
to make sure she was dead.
The killing of the child
although not planned beforehand, exhibited the same abject lack of humanity
as
28
did the murder of her mother. It is chilling testimony
to the abysmal depths to which appellant as a person is inherently liable to
sink.
I make no underestimation of the importance of appellant' s age at the time
but this was no case of the rash, heedless impetuosity
of youth. He had long
since left school and gone out to earn his living. He had held employment as an
assistant hotel cook and bar
steward for more than a year in all. He was not
drawn into these frightful events by the influence of an older person. On the
contrary,
it was, by inference, he who caused accused no 2 to become involved.
The latter was 2 years older. Nothing in the evidence points,
in my opinion, to
appellant's conduct in this case having been the product of youthful
immaturity.
From the point of view of the community, these murders inevitably revolt and
horrify. The appropriate sentence must necessarily reflect
that reaction. It
must also convey to potential perpetrators of the kinds of
29
crime involved here that similar conduct will be liable
to exact the
most extreme punishment for which the law provides.
Anxious consideration of
all the facts and circumstances of the case has led me to the conclusion that
the death sentence is the only
proper sentence to impose upon appellant for the
murders of which he was convicted.
The appeal is dismissed.
C.T. HOWIE
Acting Judge of Appeal.
SMALBERGER JA
VAN DEN HEEVER JA Concur.