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1993
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[1993] ZASCA 176
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S v Ngidi (120/93) [1993] ZASCA 176 (22 November 1993)
Case No: 120/93 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PATRICK BHEKI
NGIDI
Appellant
and
THE
STATE
Respondent
CORAM
: SMALBERGER, EKSTEEN,
JJA,
et
HARMS, AJA
HEARD
: 18 NOVEMBER 1993
DELIVERED
: 22 NOVEMBER 1993
JUDGMENT
SMALBERGER, JA :-
The appellant was convicted
in the Durban and Coast Local Division by ALEXANDER, J, and assessors of one
count each of murder and
robbery with aggravating circumstances. He was
sentenced to death on the murder
2
count, and to 10 years' imprisonment in respect of the robbery. He now
appeals, in terms of sec 316 A of the
Criminal Procedure Act 51 of 1977
, against
the sentence of death imposed upon him.
The late Mrs Thelma May
Shorten ("the deceased") was a 7 6 year old widow who lived alone in her house
in Westville, Durban. Her domestic
servant, Mrs Grace Mthembu, who had been in
her employ for more than 10 years, also resided on the premises. However, Mrs
Mthembu
used to be off duty over weekends, and it was her invariable practice to
go away on a Saturday afternoon and return the following
evening. The appellant
is Mrs Mthembu's son. While still a youth he had on occasions worked for the
deceased in her garden. He regularly
visited his mother at the deceased's house.
That he was known to the deceased permits of no doubt.
The incident
giving rise to the deceased's death occurred on a Sunday morning. It is common
cause
3
that the appellant, knowing that his mother would not be on the premises,
went to the deceased's house in order to rob her. He lay
in wait for
approximately 40 minutes in the vicinity of the kitchen door for the deceased to
emerge. When she eventually left the
house en route to the outside laundry the
appellant confronted her.
What happened thereafter, according to the
appellant's evidence, is that he grabbed hold of the deceased by the top of her
nightdress
or housecoat that she was wearing and pushed her backwards. The
deceased stumbled at the laundry door, tripped and fell heavily to
the floor of
the laundry. He left her there, conscious and trying to lift herself off the
floor. He entered the house where he helped
himself to money and various
articles belonging to the deceased, mainly jewellery. He was so occupied for not
less than 10, and possibly
as long as 30, minutes. When he left the deceased was
still conscious and trying to lift herself
4
off the laundry floor. (It is common cause that the deceased was found
dead on the laundry floor the following morning by Mrs Mthembu.)
The
appellant's version of what occurred was rejected by the trial court, largely on
the strength of the incontrovertible medical
evidence. Apart from that, the
appellant proved himself to be an untruthful, unreliable and scheming witness in
a number of important
respects. The post-mortem findings establish that the
appellant strangled the deceased with a view to subduing and permanently
silencing
her. They revealed the following:
1)
A fracture of
the hyoid bone caused by the application of moderate direct force to the neck
for at least 30
seconds;
2)
Abrasions on the
neck consistent with manual
strangulation;
3)
Contusions
and abrasions of the
deceased's
5
face consistent
with a hand being placed forcibly over her mouth, presumably to prevent her from
screaming;
4)
Abrasions of the
body consistent with the application of physical force to subdue
resistance;
5)
Contusions of
the head in keeping with the notion that the deceased's head had been pounded on
the floor;
6)
Cyanosis of the
face indicative of death through failure of the respiratory
system.
The cause of death was found to be
strangulation. The medical evidence was further to the effect that death would
have occurred within
three minutes of the fracture of the hyoid bone, thus
effectively giving the lie to the appellant's evidence that the deceased was
still alive when he left the premises.
It is common cause that the appellant did not attempt to disguise himself
in any way when he went to
6
the deceased's house. He must have appreciated that the deceased would be
able to recognise him. It was not necessary for him to kill
the deceased in
order to carry out the robbery. The trial court held that the only reasonable
inference to be drawn from the facts
was that the appellant went to the
deceased's house not only to rob her but with the preconceived idea of killing
her to prevent
later detection. This finding is unassailable.
We are called upon to consider, in the exercise of our discretion, and
with due regard to the presence or absence of mitigating and
aggravating
factors, whether the death sentence is the only proper sentence. The appellant
was unemployed when he committed the offences
but by no means destitute as his
mother apparently used to assist him financially. He was 22 years old at the
time. The only significant
mitigating factor present is the fact that he is a
first
7
offender. His youth is also a consideration, although there is nothing to
suggest that he is in any sense immature. In his favour
it must be said that he
is probably capable of rehabilitation. As against this there are significant
aggravating factors present.
The deceased, a defenceless, elderly woman, was
brutally attacked in the privacy of her own home. The robbery and the murder
were
well-planned and premeditated. The appellant had ample time to reflect upon
what he was about. His motive was the base one of greed.
A further relevant
consideration is that, according to the evidence, the deceased had been kindly
disposed towards the appellant
in the past. Finally, there is a total absence of
genuine remorse on the appellant's part for his evil deed.
This is another example in the all too long catalogue of tragic cases
involving fatal attacks on elderly people in the sanctity of
their
homes.
8
According to evidence led at the trial this
disturbing
tendency is on the increase. In determining whether
or
not the death sentence is the only appropriate sentence
in this and similar matters the following passage from
the
judgment of EKSTEEN, JA, in the recent case of
S v Khiba
1993(2) SACR 1(A) at 4c-i is apposite:
"This Court has in diverse cases had occasion to express itself on such
unprovoked attacks on defenceless victims in their own homes.
In one such case -
S v Shabalala and Others
1991(2) SACR 478(A) - GOLDSTONE JA, in
confirming a sentence of death, remarked at 483c-e
that:
'While giving consideration to the
objects of punishment (deterrent, preventive and retributive) it may be said
that the three appellants
are capable of reform. However, in this type of case
the deterrent and retributive objects come to the fore. All members of our
society
are entitled to security in their own homes. It is unfortunately a fact
of modern living that precautions, and sometimes elaborate
and costly
precautions, are taken to safeguard life and property. In the isolated rural
areas of this vast country those precautions
are more difficult to effect than
in urban areas. Our farming
9
community too frequently falls victim to the violent criminal. The
justifiable outrage understandably caused thereby must be a relevant
factor in
the imposition of a proper sentence in this kind of case. Such a sentence should
act as a deterrent to others who may be
tempted to murder or rob defenceless and
innocent people. It should also, in a suitable case, reflect the retribution
which society
demands in respect of crimes which reasonable persons regarded as
shocking.'
(See also
S v Khundulu and Another
1991(1) SACK 470(A);
S v Makie
1991(2) SACR 139(A);
S v Sesing
1991(2) SACR 361(A);
S v Ngcobo
1992(1) SACR 544(A);
S v Jordaan
1992(2) SACR 498(A) and
S v Mofokeng
1992(2) SACR 710(A).) In all these
cases the death sentences imposed on the appellants were confirmed. In
Khundulu's
case one of the victims, though aged 62, was described by the
trial Court as a 'strong man', and the intention of one of the appellants
was
found to have been
dolus eventualis
. In
Mofokeng's
case the
appellant was 19 years old, and in
Jordaan's
case he was 20 years old and
a first offender. These decisions seem to reflect the gravity with which this
Court regards murderous
attacks on victims in their own homes and more
particularly on isolated farms. Sentences of death have been confirmed not only
when
the victims were old and frail but also where they were ablebodied and
strong. So, too, even where the intention was
dolus eventualis
10
and where the appellants have been comparatively young, and even first
offenders. The reasoning in these cases, as exemplified in
the dictum from
Shabalala's
case quoted above, is compelling and commends itself to any
reasonable mind."
Counsel for
the appellant put foward the
argument that because of the so-called "moratorium" which the executive
authority is at present applying to the execution of death
sentences, that
sentence has lost its deterrent and retributive effect and that such
considerations are no longer valid in determining
whether, in a given case, the
death sentence is the only appropriate sentence. That argument has already been
rejected by this Court
for cogent reasons, and is without merit (see
S v
Williams
, an unreported judgment of this Court delivered on 24 May
1993).
I agree with the views expressed in
S v Khiba
quoted
above. Applied to the facts of the present matter they lead to only one
conclusion - that the death
11
sentence is the only appropriate one. The appeal is
dismissed.
J W SMALBERGER
EKSTEEN, JA )
HARMS, AJA ) CONCUR