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1994
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[1994] ZASCA 172
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S v Mhlongo and Others (166/94, 223/94) [1994] ZASCA 172 (25 November 1994)
Case No 166/94 223/94
IN THE SUPREME COURT OF
SOUTH AFRICA (APPELLATE DIVISION)
In the matter
between:
PHOSELAKHE MHLONGO 1st Appellant
BHEKISISA
ZWANE 2nd Appellant
LUTCHMEE GOVINDSAMY 3rd Appellant
and
THE STATE Respondent
CORAM
: E M GROSSKOPF, EKSTEEN et HOWIE
JJA
DATE OF HEARING
: 17 NOVEMBER 1994
DATE OF JUDGMENT
: 25 NOVEMBER 1994
JUDGMENT
HOWIE JA/...
2
HOWIE JA :
The deceased had been having an adulterous
relationship with third appellant's husband for some years. On 22 February 1993
the deceased
was fatally assaulted. As a result the three appellants were
arraigned before the Circuit Local Division for the District of Zululand
and
charged with murder.
The prosecution alleged that third appellant
had hired first and second appellants to kill the deceased. The Court (Booysen J
and
assessors) found the charge proved and convicted appellants accordingly.
First appellant was also convicted of stealing the deceased's
watch.
On the murder charge first appellant was sentenced to death. Second and
third appellants were sentenced to 11 years' imprisonment
and 10 years'
Imprisonment respectively. For the theft, first appellant received two years'
imprisonment.
First appellant appeals in terms of
section 316A
of the
Criminal
Procedure Act, 51 of 1977
, against his conviction for murder and against the
death sentence. The other appellants
3
appeal, with the leave of the trial Judge, against their respective
convictions.
It is not in dispute that the deceased was murdered.
She received 47 stabwounds, two of which penetrated the heart and caused her
death. The question, on the issue of liability, is whether the evidence
established that appellants were adequately linked to the
killing.
The relevant events occurred on or near a farm in the
Mtunzini area. The deceased, a divorcee in her forties, and third appellant's
husband, Manny, were both employed in clerical capacities in the office on the
farm. Their affair was a matter of public knowledge.
It had led in the past to
physical confrontations between the deceased and third appellant and to
understandable feelings of enmity
on the part of the latter towards the
deceased. It also resulted in arguments and fights between third appellant and
Manny. On one
such occasion she injured one of his eyes and he lost the sight of
it. She wished to end either the affair or the marriage but he
would not
divorce
4
her.
First appellant and one Bongani, second appellant's
brother, were labourers on the farm and shared a room in the compound. First
appellant
was a regular visitor to the house on the farm where third appellant
and Manny lived. He would go there either to buy beer - third
appellant appears
to have operated an informal tavern - or to help Manny repair motor
vehicles.
Patricia Mnyeni was a young woman who lived with one of the labourers. In
the months preceding the murder she was often at third appellant's
home where
she helped with the housework. As a result, the two women were on friendly terms
and frequently conversed.
The killing occurred on a Monday in the late afternoon. First appellant's
defence was that he left the farm early that morning and
did not return prior to
his arrest on the following Thursday. He did not elaborate upon his plea of not
guilty when the trial began
and it was only in cross-examination of the relevant
State witnesses and in his own evidence, that this alibi
5
emerged. It was comprehensively disproved by the prosecution
evidence.
Firstly, he was found by the police after arrest in
possession of the deceased's wristwatch. Secondly, he was seen by the farm
foreman,
Mzikayifani Mbangwa, in the company of the deceased on a farm road near
the murder scene at a time shortly before its commission.
Thirdly, according to
Patricia's evidence, first and second appellants and Bongani visited third
appellant on the preceding Sunday
afternoon, again during the Monday in question
and, finally, on the following morning. On this last occasion, said Patricia,
while
second appellant and Bongani remained outside, first appellant went in to
speak to third appellant and demanded "his" money. Third
appellant's response
was that she did not believe they had killed the deceased. First appellant
suggested that she send someone to
the tea-room to find out if she was at work.
(The tea-room was apparently near the office.) Third appellant accordingly sent
Patricia
to make a purchase at the tea-room and also to ask for
6
some medicine at the office. (One of the deceased's duties was to
dispense medicines to the staff.) Upon Patricia's subsequent report
that she saw
nobody at the office except a person she referred to as a "missus", first
appellant asked third appellant whether she
did not now believe that the
deceased had indeed been killed. Third appellant agreed and, having fetched
R200,00 from her bedroom,
she handed it to first appellant. He took the money
and departed with his two companions.
The remaining items of
evidence against first appellant comprised a confession he made to a magistrate
and his pointings-out to a
police captain of relevant places. Admissibility was
not in issue on appeal. In the confession first appellant said this:
"It was on Friday the 19/2/93 when 4-5 black boys arrived at my house and
took my 'hi-fi'.
I asked Bongani to come with me to look for my hi-fi. We came to a certain
place and found a man there. He then sent some people to
go and find this 4-5
boys who took the radio.
This same man then also called ± 50 boys. And they became mad and
started shooting.
7
A bullet then hit me on my chest. Bongani and I ran to a sugar cane field
and shot back at the people. I shot twice at the crowd of
people with a homemade
firearm. I didn't see and know whether anybody was injured.
This people ran away and Bongani and I went home.
On Sunday 21/2/93 a man they call him Man, a Indian male, his wife asked
me, Bongani Zwane and Bhekisizwa Zwane to kill a certain
black female, Gladys
and she further said she will give us R2000,00 if we do it.
Bongani, Bhekisizwa and me then went to Gladys' workplace at Schmidt
Estates and waited for her in the path.
When Gladys left the office, she met us on the path. We then grabbed hold
of her and pulled her into the bush. In the bush I said
to her that Man's wife
told us to kill her because she slept with her husband.
Gladys said we shouldn't kill her but have sex with her.
Bhekisizwa then had sexual intercourse with Gladys.
I then told Bongani and Bhekisizwa that if we murder Gladys we will be in
trouble.
Gladys then said she will go to the police. I then said to her we were
paid to kill her. I then told Bongani and Bhekisizwa that we
must better kill
Gladys because she will make trouble.
I then took a knife, a fixed blade knife ±20cm long, I then stabbed
her once on the right hand side of her chest and I pulled
it out. Gladys was
crying. Bheki then took the knife and stabbed Gladys with the same
knife.
8
Gladys was crying and I told Bongani that we should kill her and make
sure. Bongani then held Gladys and Bheki stabbed her again.
Gladys then fell and
we left her there because she was dead.
We then went to Man's wife to collect our money. She didn't have enough
and only gave us R200,00 and told us to leave Mtunzini. I
then went to my place
where I live.
Later I was arrested. That's all."
The captain's record of the pointings-out reads as follows:
"Suspect directs me to take the main road, leaving town, towards the N2
(old road). Reaching the N2 the suspect directs me to turn
right into the N2
towards Empangeni. Eight kilometres from the police station (km reading 19928)
the suspect requests me to turn
left at the Schmidt Estates signboard, onto a
gravel road.
Approximately 150 metres from the tar road the suspect requests me to
stop. We alight from the car. The suspect makes a report to
me that it was more
or less at this point where he and his accomplices took the deceased after they
drew their knives, and dragged
her through the sugarcane. (A photo is taken at
this point.) The suspect points their path through the sugarcane in the
direction
of the toll gate.
The suspect requests me to make a U-turn, which we do. Approximately 40
metres from the N2 the suspect requests me to take the farm
road on the right
where the road forks. A few metres onwards we start travelling parallel to the
N2 past five telephone poles (approximately
200 metres) where
9
the suspect requests me to turn right into a cane-break.
After travelling metres, approximately 100 metres from an Escom
powerline, I'm requested to turn left into another cane-break. Another
100m
onwards I'm requested to turn left again into a cane-break. Approximately 165
paces onwards I'm requested to stop. We are requested
to alight from the car.
The suspect leads us onto a narrow path into the sugarcane. Approximately 110
paces onwards we turn right
into another path. After 30 paces we turn left and
after 10 paces the suspect stops. The suspect points to a spot in the middle of
the path. He makes a report to me that this is the point where his accomplices
raped the deceased. A photo is taken at this point.
The suspect requests us to return to the vehicles which we do. We alight
the vehicles and I'm requested to turn left 20 metres onwards
through a bamboo
bush. Eighty metres onwards I'm requests to turn right until we reach the
Umlalazi River. We are requested to travel
parallel with the river until we
reach a cul-de-sac. The suspect requests us to stop and alight from the vehicle.
He leads us into
the forest. After walking for about 120 metres the suspect
stops. He looks around for a while and then points to a spot on the ground.
He
makes a report to me that that is the spot where him and his accomplices made
the suspect to sit. She took off her skirt and blouse
and sat on top of it.
Suspect says: I demanded money but the deceased refused. I stabbed her first
with a knife. Deceased tried to
get up but I stabbed her several times. While
she was still having convulsions I left her and I returned to my friends'. A
photo
is taken at this point.
Suspect informs me that he also wants to show me the box from where the
woman who hired them, took the money from to pay him, after
he reported to her
that he killed the
10
deceased. He requests me to return to Schmidt Estates. On our arrival at the
main buildings we are requested to turn left. Suspect
takes us to a house below
the water tower, which is occupied by Asians. He leads me into the house to a
bedroom leading from the
lounge. He points to a kist and makes a report to me
saying: 'This is the box from which the woman took out the money to pay me'.
A
photo is taken at this point. We leave the house. Suspect reports that he has
got nothing else to show me. We return to the police
station."
The trial Court subjected all the evidence in
the case to a thorough examination and ,evaluation. First appellant's evidence
was rejected
as false. That finding is amply justified. Understandably, it was
not attacked on appeal. All that was argued on this appellant's
behalf as to the
conviction was that it was improbable that he would have made damning admissions
in Patricia's presence during his
conversation with third appellant on the
Tuesday morning; that the differences between the confession and what he said to
the captain
deprive these statements of all reliability as incriminating matter;
and that, standing on its own, the possession of the watch was
insufficient to
establish guilt on the murder charge.
it is unnecessary to recount all the evidence or the
trial
11
Court's reasons. It suffices to say here that Patricia, whose evidence I
shall discuss in more detail presently, was found to have
been a simple but
truthful and reliable witness. A study of the record supports that assessment.
Moreover, it is not improbable that
she was present on the Tuesday. She was
frequently at third appellant's house. It is also not improbable that first
appellant was
insensitive to the fact that Patricia could hear what was being
said. If third appellant was indeed reluctant to believe that first
appellant
had carried out her instructions he would have been concerned to convince her
that the deceased was dead.
As to the differences between first appellant's confession and the
explanations he gave during the pointings-out, none of them detract
from the
force of the crucial admissions, common to both accounts, that he was in the
deceased's presence when she was murdered and
that he participated in the fatal
assault.
In the circumstances the possession of the watch is by no means the sole
incriminating evidence. In fact the case against
12
first appellant is so strong that his appeal against
his
conviction is bereft of merit.
The State case against second appellant consisted
of
Patricia's evidence and a confession which he made to
a
magistrate. The admissibility of the confession was not
disputed
in this Court. The thrust of Patricia's evidence, in so far as
it concerns this appellant, has been summarised already. As for
the confession, it reads thus:
"I from Xaxase where I was plastering a house. I then went to Schmidt Est. I
was going to get money from the boys working at Schmidt
Est. to get money to get
home at Esikhaweni.
When I arrived there I found that the boys from the reserve had stolen my
brother's Hi-Fi. My brother suggested that we should go
to those boys to fetch
the Hi-Fi. When we arrived there we found one of them. We instructed him to
fetch the others who was with
him. He returned with them -they were in
possession of homemade firearms. They fired at us. We ran away back to where we
stay at
Schmidt Est. We then heard that the boys in question were looking for
us.
On Sunday we went to Schmidt Est Hall. We found the boys in the hall
pointing the firearm at the stomach of a SAP Official. We fought
with firearms,
shooting at each other. We had homemade firearms which we had taken from
him.
13
We left for the house on Schmidt Est. There we learnt the boys were
looking for us and driving in a minibus. The bus allegedly had
small windows. We
started sleeping in the sugarcane.
We to an Indian's house. He is called 'Man'.
We drank liquor there. Geqelane spoke to the Indian's wife. They
discussed that a female person must be killed. The Indian's wife
discussed it
with Genqelane. I didn't know the female they were referring to. There was a
money issue discussed. The Indian's wife
was going to pay Genqelane in order to
kill the female.
Genqelane is my brother-in-law.
The female who was going to be killed was in love with 'Man'. Man was not
present. Genqelane returned to us. He told us in order to
get money to go home
with we must kill the female.
We felt tempted. Genqelane stopped the female. We walked through the
canefield to the bridge. She came from the front. Genqelane stopped
her. I saw
him talking to her. They spoke to each other. I then saw him stabbing her on her
chest and back. We were a distance away
from the scene. We were afraid. He
stabbed her many times. She fell down. We then left for Man's house.
There Genqelane went into the house. When he came out he had money with
him.
We used that money to go home and we spent some to buy food.
I don't know what Genqelane did with the other money. I
14
didn't get a share. I only managed to get home. We were arrested yesterday.
That is all."
Second appellant's evidence was that he
was walking along the farm road with first appellant and the deceased on the
fatal afternoon
when he remembered that he had a lot of ironing to do. He parted
company with them and went back to the compound. He was therefore
not present
when the deceased was killed and had nothing to do with the murder. He admitted
going to third appellant's house on the
Sunday to buy beer and also being there
on the Monday but denied having being present on the Tuesday.
Second appellant's evidence was rejected by the trial Court and not
relied upon in the appeal. The argument advanced by his counsel
was based on the
two sentences in the confession in which second appellant said:
"We were a distance away from the scene. We were afraid." On that slim
foundation counsel sought to contend that it was reasonably
possible that the
appellant had dissociated himself from any prior conspiracy, and any consequent
common purpose, to kill the deceased.
At worst, so ran the argument,
second
15
appellant was initially a co-conspirator and afterwards became an
accessory after the fact when he shared in the money paid to them
by third
appellant.
The sentences quoted from the confession simply do not
suffice to raise the reasonable possibility contended for. Neither when read
in
isolation, nor in conjunction with any other contents of the confession, do
these self-serving and untested allegations convey,
whether expressly or even
impliedly, that there was conduct on his part such as warrants the conclusion
that he had genuinely dissociated
himself from the plot by the time the murder
was committed. And the appellant chose not to proffer this defence in his plea
or in
his evidence. The elements of this suggested defence (as to which, see s v
Nduli and others
1993 (2) SACR 501
(A) at 504d - 505h) were therefore not
established as a reasonable possibility. Second appellant's appeal must
accordingly fail.
The prosecution case against third appellant rested predominantly on
Patricia's evidence concerning the three visits
16
paid by first and second appellants and Bongani. On the occasion of the
Sunday visit, said Patricia, first appellant left his two
companions outside and
entered the kitchen to speak to third appellant. She could not hear, from where
she was in the sitting room,
what they spoke about. When the men left, however,
third appellant told her that she had found people who were going to kill the
deceased who had been worrying her for seven years.
When Patricia was at third appellant's house on the Monday the latter
told her that first appellant and his two friends would kill
the deceased.
Shortly after that they arrived. Once again, first and third appellants
conversed inside. As was the case the previous
time, she could not hear what
they said. After he had left, third appellant repeated to her that the three men
were going to kill
the deceased.
The salient features of the Tuesday visit have already been
mentioned.
Patricia went onto say that she came across third appellant while the
latter was on bail awaiting trial. The appellant
17
wanted her to give evidence that the money paid to first appellant was a
loan. Patricia said she feared that she might also be killed
and so she agreed.
In due course she made a statement to the police in which she did say that the
money was lent to first appellant.
In cross-examination by counsel for third appellant, it was put to
Patricia that there was an occasion when she met with third appellant
and told
her that the police had disbelieved her loan story and had threatened to assault
her if she did not tell the truth. Patricia
denied this. She explained that
having given the police the version required by third appellant, they said they
did not believe it
and told her to come back to them the following day. This she
did and then proceeded to tell them the truth. When she encountered
third
appellant again she concealed the fact that she had given the police the correct
story.
When it was suggested to Patricia that it was improbable that third
appellant would have confided in her, the witness
18
commented, significantly, that third appellant was "one of those people
who cannot keep a secret".
Third appellant gave evidence denying
that she had made the self-incriminatory statements attributed to her by
Patricia. As regards
the payment of money to first appellant she claimed that he
had come to her for a loan of R200,00 the previous week. She told him
to come
back on the Sunday. When he did so she said that the money was available but he
then asked her to keep it for him until later
in the week. On the Tuesday he
came to pay her for beer he had bought the evening before and she then gave him
the R200,00. She denied
the conversation described by Patricia or sending her to
the tea-room or the office for the reason alleged by the witness. The appellant
said that she sent Patricia to the shop to get some change and that because
Patricia had a headache she went to the office to get
tablets for it. The
appellant accordingly denied any complicity in the murder.
The trial Court, having weighed the evidence of Patricia and third
appellant found that where their evidence conflicted
19
Patricia had been truthful and third appellant not. The Court considered
that the appellant's evidence was a glib improvisation in
particular as regards
the reason why Patricia went to the shop and to the office.
The crux
of the argument advanced by third appellant's counsel on appeal was that the
trial Court should have assessed third appellant's
testimony as being reasonably
possibly true and should have borne in mind in evaluating Patricia's evidence
that she was a single
witness. The Court's failure to appreciate this last
point, so ran the
constituted a material misdirection. In the
alternative it was submitted that the deceased was killed pursuant to the other
appellants'
own purpose to rob or rape her, without third appellant having had
anything to do with the killing or its planning.
The submission that Patricia was a single witness is not tenable. A
single witness or, to follow the words of
s.208
of the
Criminal Procedure Act, a
witness on whose "single evidence" a court may competently convict, is one whose
testimony provides
20
the only incriminating prosecution evidence. That is clearly not the case
here. Quite apart from Patricia's evidence, the inference
of third appellant's
guilt could be drawn from the evidence showing that, as was indeed the case, she
had a very strong motive. It
could also be drawn from the fact that the men who
carried out the killing met with her very shortly before the killing and again
the next morning when she paid first appellant R200.00. (Cf S v Snyman
1968 (2)
SA 582
(A) at 586F - 587B.) The trial Court therefore did not misdirect itself
in this regard.
Furthermore, I am not persuaded that the Court erred
in evaluating the evidence, more particularly that of Patricia and third
appellant.
The possibility that Patricia invented the various statements which
she says third appellant made to her could only be reasonable
in the event of an
extraordinary coincidence. Obviously first and second appellants and Bongani
could have waylaid and attacked the
deceased for a nefarious purpose of their
own at any time, on any day they chose. They
21
happened to do so very proximately in time to a series of visits they
made to the deceased's aggrieved enemy. There, on each occasion,
the two younger
men waited outside while first and third appellants engaged in variously furtive
or agitated discussion, quite out
of keeping with a social visit or the
negotiation of a loan. And first appellant happened to be handed R200,00 on the
morning immediately
after the deceased's death. It would indeed be an
extraordinary coincidence if third appellant had not been involved in the
conspiracy
as Patricia alleges.
In all the circumstances neither argument raised on third appellant's
behalf has substance and her appeal therefore cannot succeed.
Turning to the matter of the death sentence in the case of first
appellant, the most aggravating factor is, obviously, that this was
a
premeditated "contract" murder in return for payment. In addition, the appellant
took, the leading role among the assassins; the
killing was brutal and
merciless; and he has
22
neither expressed nor displayed any remorse for his
actions.
The mitigating factors are that he is a first offender,
that he had been in employment at the farm for 18 years and that the idea
of
killing the deceased did not stem from him.
His counsel urged that it was also mitigating that
the
appellant made a clean breast of things on arrest as
evinced by
his confession and his pointings-out. Any force inherent in that
consideration is neutralised by his false defence. His
initial
conduct is conceivably attributable more to the attitude
that
there was no point in denying his guilt rather than that he
regretted what he had done.
The further submission was made that this was not a
killing
just for gain in so far as first appellant was
concerned. He was
a regular visitor at third appellant's house and, said counsel,
knew what torment she was going through and therefore assisted
her by killing the deceased. The problem for the appellant is
that this submission lacks any evidential basis. There is no
suggestion that he acted out of sympathy for her. Nor, one might
23
add, is there any vestige of proof that she persuaded him, against his
better judgment (possibly an immature and limited judgment)
to commit this
crime. Finally, it would be pure speculation to say that his share of the
promised sum posed such an irresistible
temptation that it reasonably possibly
prompted him to do what he would not otherwise have done.
From the
aforegoing it is clear that the aggravating factors substantially outweigh the
mitigating ones. It is also manifest that,
being a killing by hired assassins,
this instance falls within the category of murder cases which this Court has
labelled as of exceptional
seriousness, where the need for deterrence and
retribution predominates over other considerations and where the death sentence
has
been held to be the only proper sentence: See, for example, 5 v Mlumbi en 'n
Ander
1991 (1) SACR 235
(A) at 251g-i; S v Dlomo and Others
1991 (2) SACR 473
(A) at 477i -478b; S v Mabaso and Others
1992 (1) SACR 690
(A) at 693j -694g; S
v Zondi
1992 (2) SACR 706
(A) at 709i - 710a.
Where there are exceptional mitigating
circumstances
24
favouring the accused in a case such as the present, it may well be that
the ultimate sentence is not the only proper one: Mabaso,
supra, at 694d-e. On
the evidence in this matter, however, there do not appear to me to be any such
circumstances. During the course
of argument counsel for first appellant and
counsel for the State were invited to consider the implications, possibly
favourable
to the appellant, inherent in the disparity between his sentence and
the sentences imposed on the other appellants. Counsel for the
State pointed,
relevantly, to the lesser role played by second appellant and the strongly
mitigating factors applicable to the case
of third appellant, and submitted that
these features warranted a disparate approach to their sentences on the one hand
compared
with the sentence on first appellant on the other. It seems to me that
this submission is sound. The parity principle in sentencing
postulates
offenders whose participation in the crime and whose mitigating circumstances
are broadly similar: S v Giannoulis
1975 (4) SA 867
(A) at 873G-H; 8 Marx
1989
(1) SA 222
at 225I.
25
Even if the sentences upon the other two appellants were to be regarded
as arguably on the light side (I would stress that it was
not contended that
they were and it is unnecessary to make any finding in that regard) it is
nonetheless clear that despite this
case involving a killing by hired assassins
there are mitigating factors in their instances which qualify as exceptional in
the sense
referred to above. It follows that disparity between their sentences
and that of first appellant is justified and that first appellant
can draw no
benefit from any such disparity. In my assessment the death sentence is indeed,
as the law stands, the only proper sentence
to impose in respect of his
crime.
As the constitutionality of the death sentence is to be decided by the
Constitutional Court in the relatively near future it is proper
to postpone
first appellant's appeal until that issue has been resolved.
The following order is made:
1. The appeals by all three appellants against their
26
convictions for murder are dismissed. 2. First appellant's appeal on
sentence is postponed to a date to be arranged by the Registrar
in consultation
with the Chief Justice.
C/T. HOWIE JUDGE OF APPEAL E.M.
GROSSKOPF JA ] AGREE
EKSTEEN JA ]