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1994
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[1994] ZASCA 105
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S v Malima and Others (428/93) [1994] ZASCA 105 (2 September 1994)
Case No 428/93
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
MAUBA DANIEL MALIMA
First Appellant
MUSOLIWA PATRIC
SADIKI
Second Appellant
ALUWANI PIET MHLANGA
Third
Appellant
MBOFHENI MICHAEL MUSHANDANA
Fourth
Appellant
and
THE STATE
Respondent
CORAM:
VAN HEERDEN, VIVIER et HOWIE JJA
HEARD:
29 August 1994
DELIVERED:
2 September 1994
JUDGMENT
HOWIE, JA
2
HOWIE, JA
With the leave of this Court the four
appellants,
all minors, appeal against the
prison sentences imposed on
them consequent upon their conviction in the Venda Supreme
Court on a charge of murder.
First appellant was sentenced to 12 years' imprisonment, second appellant
to 8 years' and each of the remaining appellants to 10 years,
half of which was
conditionally suspended.
Appellants' convictions followed upon proof that on 20 March 1990 they
had participated, as members of a
group of somewhere between 20 and 40 young men and youths, in the mob
killing of an elderly woman who was suspected of being a witch.
Her kitchen hut
was set on fire, and she was forced into it and burnt alive. The whole murderous
episode was organised, led and seen
through to conclusion by an adult named
Bobby Mpilo who was also indicted but
3
absconded before trial.
First appellant was 19 years of age
at the time.
In a statement (admitted in evidence) which he made to
a
magistrate after his arrest, he confessed to having
ordered
the deceased into the hut and, when she resisted, to throwing a stone
which struck her, causing her to fall inside. He added that
when she tried to
get out he and others successfully prevented her escape by throwing stones at
her.
I am not persuaded that the trial Court misdirected itself in the factual
findings relative to this appellant's sentence or that any
other circumstance
exists which warrants interference in his case.
Second appellant was a mere 15 years old at the relevant time. When
called upon to plead in a magistrate's court prior to the trial,
he pleaded
guilty. In support of that plea he admitted having killed the
4
deceased by causing the burning roof of the hut to collapse while the
deceased was inside. Testifying in his defence, he said that
Bobby Mpilo forced
him to be present and to do what he did. That version was rejected by the trial
Court for reasons which were not
attacked on appeal. I am not satisfied that his
sentence was vitiated by factual misdirection but the essential question is
whether
there were circumstances which warranted the period of imprisonment he
was ordered to serve being materially longer than the term
of direct
imprisonment imposed on each of third and fourth appellants.
They were 17 and 16 years old respectively when the murder was committed.
It was common cause that they set the hut on fire. Each
gave evidence alleging
that Bobby Mpilo had compelled them to do so by assaulting them. The trial Court
rejected this evidence but,
on the basis of certain State evidence which was
found to be reliable,
5
stated that although they were not assaulted by Bobby Mpilo
"....there is a slight possibility that it could be reasonably possibly true
that (they) were to a certain extent pressurized by (him)
to set the hut
.....alight".
Later in its judgment the
Court added
"It is .... reasonably possibly true that they could have been threatened
that they might be assaulted should they not comply with
the
instructions."
Quite how the trial Court
reached these findings one is not
able to determine. Be that as it may, it would seem that
the possible "pressure" conceivably exerted by Bobby Mpilo
was the sole ground upon which these appellants received
shorter terms of direct imprisonment than second appellant.
There are two ways of looking at the matter. If
the "slight possibility" favouring third and fourth
appellants was justifiably found to exist there is, viewing
the acceptable evidence as a whole, an equal possibility
that second appellant, as one of the youngest in the crowd,
6
was just as susceptible to Bobby Mpilo's leadership, influence and
persuasion as third and fourth appellants. They were after all,
not very much
older than second appellant. There is also a reasonable possibility, inherent in
all the circumstances, that it would,
typically, have been those at the youngest
end of the spectrum who would have been singled out to do the dirty
work.
The other approach is that, upon a careful analysis of the evidence,
there was really no greater tenable basis for finding the possibility
of
pressure upon third and fourth appellants than there was in the case of second
appellant. On either footing there were, in my
view, inadequate reasons for
sentencing second appellant more harshly than they were. Second appellant's
appeal must therefore succeed.
It remains to say that I am not persuaded that
7
there is any ground to interfere with the sentences imposed on third and
fourth appellants. The following order is made:
1. The appeals of first, third and fourth appellants are
dismissed.
2.
The
appeal by second appellant is allowed.
The
sentence imposed upon him
by the trial Court is
set aside. Substituted therefor is
the
following:
"10 years' imprisonment, of which 5 years' imprisonment is suspended for
5 years on condition that the accused is not convicted of
any offence, committed
during the period of suspension, of which violence upon the person of another is
an element and in respect
of which not less than 12 months' unsuspended
imprisonment is imposed."
C T HOWIE,
JA
Van Heerden JA )
Concur
Vivier, JA )