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1994
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[1994] ZASCA 187
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S v Dladla (675/93, 676/93) [1994] ZASCA 187 (30 November 1994)
Case no: 675/93; 676/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISIONS)
In the matter between:
MABHUNGU ABSOLOM DLADLA
First Appellant
NKANYISO WILFRED NDLOVU
Second Appellant
and
THE STATE
Respondent
Coram:
E M GROSSKOPF, EKSTEEN et F H GROSSKOPF JJA
Heard: 4 November 1994.
Delivered:
30 November 1994
2
JUDGMENT
F H GROSSKOPF JA:
The two appellants were both convicted
by the Judge President of Natal, sitting with two assessors at Pietermaritzburg,
on ten counts
of murder and six counts of attempted murder. The second appellant
was also convicted on further counts of unlawfully possessing
a 12 bore pump
action shotgun ("shotgun"), an AK 47 assault rifle ("AK 47"), an Rl automatic
rifle ("Rl"), as well as ammunition
for the AK 47 and the shotgun. The
appellants were both sentenced to death in respect of each of the ten murder
counts, and to various
terms of imprisonment in respect of the other counts. The
appellants now come on appeal pursuant to the provisions of s 316A of Act
51 of
1977 against their convictions on the ten counts of murder and the sentences of
death imposed for those murders.
On Friday 5 March 1993 at about 16:30 a minibus taxi ("the minibus") was
ambushed by three gunmen on the road between the Lion
3
Park and Nkanyezini in the Table Mountain area in the district of Camperdown.
These gunmen were respectively armed with an AK 47,
an Rl and a shotgun. The
minibus carried its driver, one Welcome Mkhize, a conductor, and fourteen other
passengers, ranging from
a 15 year old girl to a 69 year old man. The attackers
opened fire on the approaching minibus and forced it to a standstill. They
kept
on shooting at the minibus and its occupants, killing ten passengers in the
process. Another four passengers suffered gunshot
wounds. The victims were
predominantly females. The driver escaped injury by fleeing from the minibus
when it stalled and came to
a standstill.
The police found 38 empty cartridge cases at the scene, 27 of which were Rl
cartridge cases, all fired from the same Rl which the
police later recovered as
a result of a pointing out by the second appellant. The seven AK 47 cartridge
cases found at the scene
could not be linked positively to any particular AK 47,
but the police established that the four shotgun cartridge cases were fired
from
the shotgun which
4
the second appellant later handed to the police.
The first appellant admitted that he took part in the attack on the minibus
and the killing of the passengers, and that he was the
gunman who used the Rl.
His defence was that the second appellant had threatened to kill him if he did
not participate in the attack,
and that he therefore acted under compulsion. The
second appellant denied having participated at all and advanced an alibi
defence.
The first appellant made a confession to a magistrate, but he made no mention
therein of any compulsion or threats by the second appellant.
He was unable to
give any reasonably acceptable explanation for withholding this vital
information from the magistrate.
It appears from the first appellant's confession, and indeed also from his
viva voce evidence, that it was his idea to launch a revenge
attack in order to
avenge the death of six children who had been killed a few days before on
Tuesday 2 March 1993 in the same area.
He believed that the persons who killed
the children had been conveyed in
5
a particular "kombi" by a driver who could be identified. The children who
were killed in that attack were the children of Inkatha
supporters, while their
attackers were perceived to be ANC supporters. The first appellant was also a
supporter of the Inkatha Freedom
Party. According to his evidence he spoke to
the second appellant and a certain Pi Mkhizi, also known as Sifiso, on Thursday
4 March
1993 at a place where a prayer meeting was being held for the children
who had died two days before. Three of those children were
his cousin's
children. He told the second appellant and Sifiso that the children who survived
the attack identified one of their
attackers, but that the police had not yet
arrested anyone. He and his two companions however agreed that the police would
eventually
succeed in apprehending the culprits. The first appellant
nevertheless suggested that there should be some form of reprisal. He felt
that
somebody should be killed as a retribution for the killing of the children, but
he repeatedly explained that he was not trying
to influence the other two.
6
The first appellant testified that he had second thoughts that Thursday night
about taking part in the proposed vengeance killing.
He also said that it was
only when he heard a news bulletin over the radio on the Friday morning that he
changed his mind. He then
heard that the leaders of the Inkatha organisation
warned their supporters to refrain from revenge attacks. Once again the first
appellant made no mention in his confession of this important change of heart
and his decision not to proceed with the planned retaliation.
His evidence was that when the second appellant came to fetch him that Friday
afternoon, he refused to go along. The second appellant
then threatened to kill
him if he did not participate, and handed him a loaded Rl. I find it hard to
believe that the second appellant
would have armed a reluctant participant with
such a dangerous weapon in those circumstances. In any event, on his version the
second
appellant later took an AK 47, while Sifiso was handed a shotgun.
Thereupon they proceeded to the place where the attack was to take
place.
7
The second appellant instructed the first appellant to
start
shooting at the driver of the minibus. He was perceived to be the
driver
who had conveyed the persons who killed the children. When
the
minibus came within range the first appellant opened fire, but he
failed
to hit the driver. He said that he kept on shooting. His further
evidence
that he never went near the minibus is refuted by the police
evidence that
they found no less than eight spent cartridge cases of the Rl
inside the
minibus. The expert police evidence was that the Rl would eject
its
empty cartridge cases over a distance of not more than 3 metres.
The
first appellant was unable to explain the presence of the Rl
cartridge
cases in the vehicle. The acceptable police evidence showed that
he
must have been very close to, if not inside the minibus at some
stage
during the attack. He said the dust from the road prevented him
from
seeing that there were women in the minibus, but that cannot be true
if
he was so close to the minibus. His evidence that he was unaware of
the
presence of women in the minibus must be rejected as false. He
could
8
give no reasonably acceptable explanation for suspecting that any of the
occupants of the minibus had anything to do with the killing
of the
children.
The first appellant was also untruthful when he told the court a
quo that he never changed magazines. The magazine of the Rl contains
only 20
rounds while there were 27 empty Rl cartridge cases found at the scene. The
expert police evidence was that there were two
magazines which were taped
together in combat mode in order that the magazines could easily be inverted
once the 20 rounds contained
in the one magazine had been fired. This is clearly
what happened during the attack. Judging from the number of empty cartridge
cases
found at the scene the first appellant fired far more shots than his two
companions did.
I agree with the finding of the court a quo that the first appellant was an
untruthful witness and that his defence that he acted
under duress should be
rejected as false. His appeal against his
9
convictions on the ten murder counts must accordingly fail.
The second appellant is implicated in the commission of the crimes by the
first appellant's direct evidence. He is further connected
by his own pointing
out of certain of the firearms used in committing the crimes. I have dealt with
the first appellant's evidence
and its unsatisfactory features, more
particularly his lying evidence that he acted under duress from the second
appellant. I do
not, however, agree with the submission by the second
appellant's counsel that no reliance whatsoever could be placed on the first
appellant's evidence insofar as it implicated the second appellant. The first
appellant's evidence that the second appellant took
part in the attack on the
minibus is corroborated by the reliable police evidence dealing with the second
appellant's pointing out
of the Rl and the shotgun, which were both used in the
attack on the minibus.
The second appellant conceded that he concealed the shotgun and a plastic bag
full of 12 bore shotgun cartridges at the top of the
wall
10
in his room at the kraal of Mr Ntombela. He subsequently
pointed them
out to the police in the early hours of Sunday morning 7 March
1993.
It is common cause that this was the same shotgun which was
used
during the attack on the minibus the previous Friday. The
second
appellant explained that the first appellant came to his room on
the
Friday afternoon at about 17:30 with the shotgun and asked him to
keep
it for him. He told the court a quo that the first appellant was not
a
friend of his, but a mere acquaintance. He was unable to give
any
reasonably acceptable explanation as to why he was prepared to keep
the shotgun for the first appellant. He further testified that
on the same
occasion the first appellant took him outside the room and
pointed out a
spot, between 500 metres and one kilometre away, across the
river, on
the opposite hill and behind a kraal, and said that there was a
ditch in
which he had hidden other firearms. The first appellant requested
him
to keep an eye on that place where the other firearms had
been
concealed. The second appellant alleged that following upon this
request
11
he kept that spot constantly under observation from the Friday afternoon
until the police arrived at Ntombela's kraal in the early
hours of Sunday
morning.
It is hard to believe, as was observed by the court a quo, that the second
appellant would have been prepared to look after the Erst
appellant's shotgun,
and to keep the hiding place of his other firearms under observation, where the
first appellant was nothing
more than a mere acquaintance who had declined to
tell him what it was all about. What is even more improbable on the second
appellant's
version is that he had no difficulty in leading the police through
broken terrain in the dead of night directly to the place where
the first
appellant had allegedly concealed the firearms in the ditch. On their arrival at
the ditch the second appellant pointed
to a place in the ditch where an AK 47
was recovered, wrapped in a blue overall. When asked about an Rl he pointed to
another spot
in the ditch where the police found an Rl wrapped in material. The
second appellant's explanation was that it was
12
by sheer chance that he happened to point out the correct spots. He was,
however, unable to explain why the police did not in the
first instance ask the
first appellant, who happened to be present at the time, to show them where he
had hidden the firearms. On
the second appellant's version the police asked him
instead to show them where the first appellant had shown him that he had
concealed
the firearms. This evidence of the second appellant is so improbable
that it must be rejected as false. It is clear that he knew
exactly where to
find the firearms. It follows that he personally concealed them in the ditch, or
that he was present when they were
concealed in the ditch.
The second appellant's case was that he had nothing to do with the attack on
the minibus, and that he was at Ntombela's kraal at the
time when it took place.
He called Ntombela and a certain Michael Mkhize to confirm his alibi, but there
were so many discrepancies
and contradictions in the defence version that the
court o quo found it impossible to place any reliance on the evidence relating
to the alleged
13
alibi.
I shall refer to only one of the many discrepancies to
show
how unreliable the alibi evidence of the second
appellant really was. At
the commencement of the trial in the court a quo, which was a trial of
special offences under the Criminal Law Second Amendment Act 126 of
1992 ("the Act"), counsel handed in a statement signed by the second
appellant in terms of s 20(4) of the Act. The statement was read out in
court and confirmed by the second appellant. Paragraph 2 of the
statement reads as follows:
"On 5 March 1993 I was at my place of residence. I assisted a certain Mr
Ntombela, my neighbour, to fix a motor vehicle. We worked
on this motor vehicle
until approximately 17hOO. Thereafter, I proceeded to a room which I occupy and
rested. Later on Accused No
1 arrived at my room. It was already getting
dark."
This statement was inconsistent with the second appellant's own evidence and
was, moreover, not borne out by Ntombela's evidence.
Ntombela recalled the
particular Friday when the minibus was attacked
14
by gunmen. He said the second appellant assisted him that Friday morning in
repairing his motor vehicle. He left his kraal after 09:00
that morning and only
returned between 16:00 and 17:00. He later changed his evidence by saying that
he could have returned between
14:00 and 15:00. He denied, however, that he and
the second appellant were busy repairing his motor vehicle until 17:00 that
afternoon,
as alleged by the second appellant in his statement. The second
appellant contradicted his own statement when he testified that he
assisted
Ntombela until about 09:00 to 09:30 that Friday morning. He said he realised he
had made a mistake in his statement, but
then gave the following nonsensical
reason for not rectifying the mistake, viz that he thought it would be wrong to
delete what had
been written down.
The court a quo was satisfied that the second appellant's alibi was a false
one, and that it was proved beyond reasonable doubt that
the second appellant
participated with the first appellant in committing the murders and attempted
murders. I have no reason to
15
differ from that finding, and in my judgment the second appellant's appeal
against his conviction on the ten counts of murder must
fail.
It was submitted on behalf of both appellants that the death sentences
imposed in respect of the ten murder counts were not the only
proper sentences
in the particular circumstances of this case. A number of mitigating factors
were emphasized on behalf of the appellants.
Counsel submitted that we must have regard to the general unrest prevailing
in the area at the time, due mainly to political differences
between the ANC and
Inkatha factions. This in turn gave rise to a spiral of politically motivated
violence, followed by the inevitable
reprisals. The evidence of Bernhard Mkhize,
the chairman of the Inkatha Freedom Party in the Mboyi area of Table Mountain,
showed
that there had been general unrest in the particular area since December
1991 when there was an attack on his kraal. The first appellant,
who is his
cousin, was shot in the leg and a vehicle was burnt. Thereafter there was an
attack on a bus in the course of which the
first appellant's father
16
was shot in the mouth. On another occasion sixteen houses were burnt down and
two girls were shot. On 2 March 1993 three of his children
were shot and killed
while on their way to school. Three of his neighbour's children were also killed
in the same attack by gunmen.
He expressed the opinion that ANC supporters were
trying to get him and his supporters out of the area where they were living.
The first appellant testified that he had been shot by an ANC supporter
shortly before their reprisal attack on the minibus on 5 March
1993. The second
appellant testified that there had also been attacks on the homes of Inkatha
supporters in the Nkanyezini area where
he lived. Ntombela's son, whom he
regarded as a brother, was shot and killed by ANC supporters during 1992.
Counsel for the appellants referred us to a number of cases where this court
set aside death sentences imposed for murders motivated
by political unrest or
violence. Those cases are, however, distinguishable on the facts, and I shall
refer to only two of them. In
S
17
v Khanyile and Others
1991(1) SACR 567(A) this court accepted that the
instruction to kill the murdered children may have been issued by the Inkatha
commander
of the community guards who were convicted of the murders. The
children were also perceived to be the aggressors and trouble makers
during a
period of violence when conditions were close to a state of civil war. In
S v
Lushozi and Another
1993(1) SACR 1(A) the two appellants were convicted of
ten murders committed during a reprisal raid at a time of general unrest and
political violence. The victims in that case were perceived to be the enemy who
had been responsible for burning down the second
appellant's kraal, his sugar
cane and wattle plantation, and for destroying his possessions.
Each case must, of course, be decided according to its own facts and in the
light of its own particular circumstances. In the present
case the Inkatha
leaders specifically warned their supporters to refrain from revenge attacks
after the six school children had been
murdered. Bernard Mkhize confirmed that
there were public appeals by prominent
18
churchmen and Inkatha leaders following upon the murder of those children. He
also instructed his own people not to launch vengeance
attacks. The first
appellant heard these public appeals over the radio on the Friday morning before
the attack on the minibus, and
the second appellant must have been aware of the
warnings issued by the Inkatha leaders.
It is clear that the reprisal attack of the appellants was directly motivated
by the killing of the six school children three days
earlier. But there are
certain important factors which distinguish this case from the cases referred to
above. The present case is
more in line with the case of
S v Botha en n
Ander: S v Marais
1993(1) SACK 113(A) where the death sentences were not set
aside by this court on appeal. In that case it was found that an attack
by
whites on a bus conveying black passengers had been carried out in revenge for
an earlier attack by black youths on whites. There
is, however, an important
distinguishing feature inasmuch as the appellants in that case were not
19
related to the victims of earlier attacks, nor were they personally affected
by it, as was the case here. But in our case, as in that
case, the appellants
killed innocent passengers while they had no reason whatsoever to suspect that
anyone of the passengers had
anything to do with the earlier attack they were
avenging. In our case the appellants persisted in their attack when it must have
been obvious that they were killing innocent women, children and elderly people.
The appellants furthermore had no reason to believe
that the passengers were
supporters of the ANC.
Although the history of politically motivated violence in the area, and the
senseless killing of the six school children, constitute
some mitigation for the
appellants' crimes, it cannot in my judgment weigh up against their flagrant
disregard for the lives of innocent
people. They indiscriminately opened
fire
on their victims with deadly weapons and with the direct intention of killing
in cold blood as many as they could. There are other
mitigating factors, like
the relative youth of
20
the two appellants (they were respectively 20 and 23 years old), and the fact
that they were first offenders. They grew up in an area
where violence was rife,
where murder was an everyday occurrence and where there was no regard for the
sanctity of life. They have
both been affected by that violence, but the
magnitude and callousness of their crimes are of such an order that
notwithstanding
these mitigating features, and the possibility of
rehabilitation, considerations of deterrence and retribution must prevail. The
interests of society demand that the sentence of death be imposed. In my
judgment the death penalty is the only proper sentence for
both appellants in
respect of each of the ten murder counts.
Counsel for the appellants asked that the appellants' appeals against the
death sentences be postponed until the constitutionality
of the death sentence
has been decided by the Constitutional Court.
The following order is made:
1. The appeals of both appellants against their
21
convictions for the murders are dismissed.
2. The appeals of both appellants against the death sentences imposed on them
are postponed to a date to be arranged by the Registrar
in consultation with the
Chief Justice.
F H
GROSSKOPF
Judge of Appeal E M Grosskopf JA Eksteen JA Concur