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1994
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[1994] ZASCA 165
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S v Khumalo (591/93) [1994] ZASCA 165 (22 November 1994)
Case No 591/93
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
SIMON QINISANI KHUMALO APPELLANT
and
THE STATE RESPONDENT
CORAM: SMALBERGER, NIENABER et HOWIE JJA HEARD: 15 NOVEMBER 1994
DELIVERED: 22 NOVEMBER 1994
JUDGMENT
/NIENABER JA
2
NIENABER JA:
The appellant was accused no. 4 in the court below. He and his
three
co-accused appeared before Howard JP and two
assessors in the Circuit
Local Division for the Northern District of
the Natal Provincial Division.
They were all convicted of murder
(count 1) and of robbery with aggravating
circumstances (count 2).
The other accused were all sentenced to 20 years
imprisonment on
count 1 and to 10 years imprisonment on count 2, of which
a period
of 5 years was to run concurrently with the sentence on count 1 -
an
effective sentence of 25 years imprisonment. The appellant was
regarded
as the prime mover in their joint escapade. He was
sentenced to death on
count 1 and to 10 years imprisonment on count
2. This is an appeal, in
terms of s 316 A (1) of the
Criminal
Procedure Act, 1977
. It was noted as
an appeal against both
conviction and sentence but in this court the appeal
against
conviction was for good reason abandoned. The appropriateness of
3
the death sentence is therefore the only issue at stake.
The
appellant, a 29 year old ex-policeman, lived in Johannesburg but hailed from
Estcourt in Natal. Accused nos. 1 and 2 were acquaintances
of his who also lived
in Johannesburg. The three of them hatched a plan to travel to Estcourt to
capture, strip and sell a vehicle.
On all the evidence the plan was conceived
and financed by the appellant. In Estcourt they met up with accused no. 3.
During the
evening of 10 May 1992 and at a filling station in Estcourt the four
of them boarded a taxi operated by the deceased. The deceased
was 21 years old.
The taxi belonged to his father. He was accompanied by his 9 year old brother,
Philani Ndumo. The appellant and
the deceased knew one another. What the
appellant clearly did not appreciate was that Philani also recognised him.
Various other
passengers boarded the taxi. One of them collected the fares on
behalf of the deceased. The appellant paid the fares for himself
and his three
companions. All the other passengers eventually alighted which left the
4
four accused, the deceased and his younger brother. Somewhere along the
journey, while his brother was still driving, Philani fell
asleep. When he woke
up the appellant was driving the taxi. Philani did not see the deceased and when
he asked about him he was given
the nonsensical answer by the appellant that his
brother was in Durban with his girlfriend and that they would in due course
fetch
him. The four accused then conversed in low tones. Philani was roughly
ordered to lie down on the floor of the vehicle. It stopped.
All four accused
got out. After a while they returned and the journey proceeded. They wanted to
leave Philani near the location but
he pleaded with them to drop him off at
Mbombo's place which was more convenient. They did so. So much for the
extraneous evidence.
All four accused testified. All of them were
found to be mendacious witnesses and rightly so. Each tried to dissociate
himself from
the murder at the expense of his companions. Even so, it is
possible to piece together from their
5
combined version a broad picture of what happened after the last
passenger had disembarked. At some stage during the journey, while
Philani was
still asleep, the appellant drew a gun on the deceased and dispossessed him of
the keys of the vehicle. He was manhandled
to the back of the taxi where
Philani, when he woke up, could not see him. Eventually, when they reached a
place in the veld which
was convenient for their purpose, appellant stopped the
vehicle. The deceased was dragged some distance away and attacked with an
axe
and a home-made sword. He was left for dead. According to the medical evidence
there were no gun-shot wounds; death was due to
a series of major incised wounds
of the deceased's skull and brain. The word used by the doctor was "hacking".
Which of them struck
the fatal blows, one cannot say. Each exonerated himself.
Thereafter they returned to the vehicle and dropped Philani off. Afterwards
they
fixed false number plates to the taxi and unsuccessfully attempted to sell
it.
6
The court a quo made the following findings regarding the
aggravating
factors which cannot, in my view, be
faulted:
"We find that the following aggravating factors are established beyond a
reasonable doubt on the evidence:
1. The deceased was killed in order to avoid detection.
This is borne out by the sequence of events, it being clear from the
evidence that he was robbed of his motor vehicle long before
he was taken out
and killed.
2. The intention to kill in respect of each of the accused took the form of
dolus directus.
3. This was a brutal, savage and merciless killing. The deceased, a young
man in his prime, going about his lawful occasions, was
subjected to untold
terror before he was finally dispatched.
4. The accused displayed callousness and depravity by leaving the deceased's
body to rot in the veld.
5. None of them has displayed the slightest remorse.
6. There are additional aggravating features which distinguish the case of
accused no. 4 from the other accused. Unlike the others,
he is a relatively
educated person, a former policeman who must have fully realised the grievous
consequences of his crimes. It was
he, an ex-policeman from the Estcourt area
who organised transport for accused nos. 1 and 2 from the Reef for the express
purpose
of committing a robbery. It was he who arranged for them to board the
deceased's taxi. It was he who paid Moffat Dlamini the fares
for the other
accused as well as himself. It was he who threatened to shoot the child Philani
and later
7
lied to him about the fate of the deceased. It was he who drove the stolen
vehicle to the deserted place where the killing took place.
It was he who drove
the stolen vehicle at all material times thereafter and tried to sell it in
Qwa-Qwa. It was he who enlisted the
services of Mavuka Hadebe to change the
number plates on the stolen vehicle. It was he who negotiated with Ndaba in the
Tatane area
of Loskop for the stripping of the vehicle. And it was he who was to
be the main benefactor of the murder of the deceased because
he was the one who
stood to be identified by the deceased as one of the robbers. The cumulative
effect of all these factors is such
that upon a conspectus of all the evidence
we find the inference irresistible, established beyond all reasonable doubt,
that it was
accused no. 4 who was the prime mover and instigator, not only of
the robbery but also of the murder of the deceased."
As for the mitigating circumstances, counsel for the appellant relied
on
three factors in particular why the death sentence,
so it was submitted, should
not be taken to be the only appropriate
sentence:
(a)
the appellant
reached the age of 29 years without any previous convictions being recorded
against him;
(b)
the
deceased's younger brother Philani was not killed when the appellant and his
companions could easily have done
so;
8
(c) S v Ngcobo
1992 (2) SACR 515
(A) in which this court, by a majority,
interfered with the death sentence imposed on a passenger who murdered a taxi
driver, was
a more serious case on the facts than this one; if this court
reduced the sentence in that case, all the more reason to do so in
this
case.
None of these reasons, singly or cumulatively, persuades me that the
court
a quo erred in imposing the death sentence in
respect of count 1.
His unblemished record is undoubtedly a factor in his favour, and
a
strong one, but, as the court a quo pointed out in its judgment on
sentence,
"The heinousness and brutality of the murder are such that the retributive
and deterrent purposes of punishment must necessarily override
ail other
considerations."
It is also true that Philani was not killed but there was no evidence
to
suggest that the appellant knew that Philani had
recognised and would be able
to link him to the murder. As it was put by the court a quo in its
judgment on
9 conviction:
"The child Philani is extremely fortunate to have been spared the same fate.
The explanation for that is that the accused naively
thought that being a child
he would pose no particular threat, particularly in view of the fact that he did
not actually witness
the killing or the
robbery."
Philani's life was not in the true sense
spared; it was never really in danger. He
was not regarded as a
threat. There is no basis in the evidence or the
probabilities for the suggestion that he was not killed because the
appellant and
his companions recoiled from the prospect of killing a
young child. It was not
because of compassion that he was not killed
but simply because they did not
think that there was any need to do
so. That they let him go is therefore not a
factor significantly
reducing their moral blameworthiness.
As for Ngcobo's case supra, it differed in its circumstances, even
though
there was the superficial similarity that a taxi
driver was killed by one of his
passengers. In this case there was
much stronger evidence of prior consultation
10
and planning, and of a sustained resolve to kill the deceased when the
appellant and his allies had ample opportunity to reflect on
and reconsider
their decision to dispose of him. The deceased was not killed in order to
execute a robbery, as in Ngcobo's case,
he was executed in order to eliminate
him as a potential witness against the appellant. The inference is inescapable
that his fate
was sealed the moment he recognised and greeted the appellant at
the commencement of the journey. I therefore do not agree that Ngcobo's
case was
the more serious one. The reasoning of the majority in that case accordingly
does not apply.
In the result the appeal on sentence must fail. The
death sentence was indeed the only appropriate sentence. But because the
constitutionality
of the death penalty is due for consideration by the
constitutional court I propose to follow the established practice of adjourning
this matter until that issue has been clarified by that court (cf S v Makwanyane
en 'lot Ander
1994 (2) SACR
11
158A) 162c-f).
The following order is
made:
1.
The
appeal against the appellant's conviction on count 1 is
dismissed.
2. The finalisation of the appellant's appeal against the death
sentence
imposed in respect of count 1 is adjourned to a
date to be determined by the
registrar of this court.
P M Nienaber Judge of Appeal
Smalberger JA] (Concur
Howie JA ]