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1995
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[1995] ZASCA 14
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S v Khuzi and Another (231/94) [1995] ZASCA 14 (16 March 1995)
Case No 231/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BAFANA KHUZI FIRST APPELLANT
ALEXANDER DUMISANI NXUMALO SECOND APPELLANT
NINGI VIRGINIA KHOWA THIRD APPELLANT
and
THE STATE RESPONDENT
CORAM: HEFER, EKSTEEN, NIENABER JJA
HEARD: 6 MARCH 1995 DELIVERED: 16 MARCH 1995
J U D G M E N T
/NIENABER JA
2
NIENABER JA:
The deceased, an Italian immigrant, was a well-known landscape
artist
living and working on the lower South Coast of Natal. At the time of
his
death he was in his mid sixties. Appellant 3 was 21 years old at the time
of
her arrest, and apparently still at school. She used to work for the
deceased
as a domestic servant in the house which he rented at Marina Beach,
near
Port Edward. Although she herself denied it, the court a quo found that
the
deceased and appellant 3 had at one time been lovers; that
another young
Zulu girl, Sylvia Momusa Mhlumayo ("Momusa"), succeeded
appellant 3
both in his affections and her job; that appellant 3 then
solicited the
assistance of appellant 1, an acquaintance of hers, who
introduced her to his
friend, appellant 2; that the three of them conspired
to rob and murder the
deceased; and that their plan was executed on 21
February 1993 when the
deceased was strangled in the garage at his home. All
three appellants were
3
convicted of murder (count 1) and of robbery with aggravating
circumstances
(count 2) by Van der Reyden J, sitting with assessors in the
circuit local
division for Southern Natal. The first and second appellants
were each
sentenced to death on count 1 and to 10 years imprisonment on count 2.
Dealing with appellant 3 the court a quo said:
"In your case the one mitigating factor which outweighs the aggravating factors
is the treatment you received at the hands of the
deceased. I accept in your
favour that you were humiliated when the deceased jilted you and took Momusa as
his new lover. I must,
however, stress that you may view yourself as extremely
fortunate in escaping the death penalty."
On the murder count she
was sentenced to 20 years imprisonment and on the
robbery count to 10 years imprisonment, the two sentences to run
concurrently.
This is an appeal by appellants 1 and 2, in terms of s 316 A of the
Criminal Procedure Act, 1977
, ("the
Act"), against
their convictions and
4
sentences on count 1; and by appellant 3, with leave of the court a quo,
against her convictions on counts 1 and 2.
The case against all three appellants was a particularly strong one and
little purpose will be served in embarking on a detailed analysis
of its
ramifications. It rests on several pillars, each of which was by itself capable
of supporting the entire state case against
the appellant concerned. All three
appellants, at various times, made statements in which they incriminated
themselves. In addition
each was found to be or to have been in possession of
goods proved to have belonged to the deceased. Their subsequent explanations
and
attempted exculpations were fanciful and rightly rejected by the court a quo.
The statements of appellants 1 and 2, made firstly
to separate magistrates,
secondly to police officers when pointing out scenes connected to the crimes and
thirdly when they were
arraigned in terms of
section 119
of the
Act, all
amounted to unreserved confessions both to the
5
murder and the robbery. Appellant 3 made a so-called warning statement to the
investigating officer in which she admitted her presence
at the scene of the
crimes but claimed that she was coerced by her companions to participate in
them. This was also the gist of her
evidence in a subsequent bail application.
All three of them pleaded guilty when first asked to plead. Before the court a
quo appellants
1 and 2 repudiated their earlier statements and advanced an alibi
defence, each relying for support on the other, but appellant 3
persisted in her
defence of duress.
The trial itself was a protracted and laboriously repetitive one. Appellants
1 and 2 attacked the admissibility of their earlier statements
on grounds that
they were subtly but nevertheless unduly influenced by the police to make them.
Their defence was a somewhat contradictory
one: on the one hand that they were
influenced to co-operate with the police in, for instance, pointing out certain
places which
on the face of it indicated
6
knowledge of and complicity in the crimes; on the other hand they claimed
that they in fact made no pointings out at all but were
simply posed by the
police so that they could be photographed. The incriminating details in their
statements and their pleas, so
it was now alleged, were an amalgam of
information imparted to them by appellant 3 and the investigating officer. They
made these
statements, they explained, because he instructed them to do so.
There is not even a shred of substance in their defence. There was no proof
whatsoever that the police acted improperly in inducing
or encouraging their
various statements (cf Khumalo en Andere v Die Staat, an as yet unreported
decision of this court, matter 254/94,
delivered on 28 November 1994).
The court a quo, for sound reasons, believed the state witnesses and
disbelieved the first and second appellants. To the extent that
the onus
7
rested on the state to prove the admissibility of what was said and done at
the pointings out, the court found that it had been discharged;
a fortiori it
had not been discharged where the onus rested on the appellants to disprove the
admissibility of extracurial statements
they made to the respective magistrates
who took them down. By the same token they failed to undermine the considerable
weight of
their responses to questions during the proceedings in terms of
s 119
of the
Act. What
is contained in the exhibits relating to these various
occurrences is overwhelming and incontrovertible proof that appellants 1 and
2
murdered and robbed the deceased. No serious attempt was made in this Court to
contend to the contrary.
Appellant 3's version that she was first tricked and then threatened to
participate in the crimes was so riddled with improbabilities
as to be
incredible. The court a quo rightly had no difficulty in rejecting it as
patently false. Her evidence suffers from the basic
improbability that there
8
was no acceptable innocent explanation why she should have accompanied
appellants 1 and 2 to the deceased's house; nor why she should
have been
prepared to co-operate with them in the manner in which she did. Her actions
before, during and after the murder cannot
be reconciled with any hypothesis
other than that, far from being coerced, she was a willing participant in, most
probably the instigator
of, the expedition to Marina Beach to kill and rob the
deceased.
On a conspectus of the evidence as a whole there can be no doubt that the
three appellants were properly convicted on both counts.
Their appeals against
their convictions must accordingly fail.
Appellants 1 and 2 also appealed against the death sentences imposed on them
in respect of count 1. For the purpose of sentence the
various strands of
evidence can be weaved into the following broad picture:
Appellant 3 had previously worked for the deceased. Her own sister
9
was at one stage his lover. She denied that she herself slept
with him but
admitted that he had invited her to do so. According to
appellant 1 she told
him that the deceased was her lover but had jilted her
for Momusa. Momusa
herself testified that she was installed as the deceased's
paramour. There was
an angry scene, about a month or so before the murder,
when appellant 3
approached the deceased at his house but he turned her away.
Appellant 3,
most probably for reasons of jealous revenge, as the court a quo
found,
decided to have the deceased "punished" for taking up with her
rival
Momusa. They were rivals for the affections not only of the deceased
but
also of one Chris Thushini. She approached appellant 1. According to
the
latter's statement she asked him if he needed money and when he replied
in
the affirmative she suggested that he help her kill the deceased and that
they
would be able to obtain R89 000,00. She said they needed someone
who
could drive a car and he told her about his friend, appellant 2.
According to
10
statements of all three of them and the evidence of appellant 3, they agreed
to meet. They did so at Marina Beach on the Friday before
the murder but the
expedition was aborted when there were too many other people around. They agreed
to try again and on the following
Sunday morning, 21 February 1993, they
convened at the deceased's residence and took up a vantage position in a vacant
neighbouring
property. Someone was washing the deceased's car. They waited until
the late afternoon when the deceased left with this person but,
after a while,
returned and entered the house. To lure him out again it was decided (so all
three of them at some or other point
stated) that appellant 3 would telephone
him from a nearby public phone booth, pretending to be Momusa and asking him to
fetch her,
the idea being that when the deceased went to his car to do so the
other two would overpower him. And this, according to their various
versions, is
what happened. As the deceased entered his garage appellants 1 and 2
grabbed
11 him. A rope was tied around his neck. Appellant 3 had by then
returned. She caused him to write out a cheque for R89 000,00. (The
cheque was
never cashed or recovered.) Thereafter he was throttled until he died. The three
of them then ransacked the house. They
loaded the spoils in the deceased's car.
His body was dumped in the boot. They drove to the house of an inyanga who,
according to
appellant 3, was anxious to obtain the penis of a white man, but he
was not at home. At Ramsgate they refuelled the car, keeping
some petrol in a
container. Appellant 3 was then dropped at her place of residence with a
suitcase filled with linen. Appellants
1 and 2 proceeded to drive the car into a
sugar cane field. Appellant 2 removed the registration number plates and threw
them away.
They then set the vehicle alight with the remaining petrol and fled.
Appellants 1 and 2 later left a speaker and a suitcase containing
clothes which
belonged to the deceased with a friend of theirs for sakefeeping. They also sold
a camera which
12
belonged to the deceased to another acquaintance of appellant 1.
So much for the events.
Both appellants were relatively young at
the time, appellant 1 approximately 23 years of age while appellant 2's age was
estimated
to be between 21 and 23. For the purpose of sentence both can be
treated as first offenders. Appellant 1 reached standard 4, appellant
2 standard
8 at school. It was contended that the killing of the deceased was not
premeditated, that they were not in the same bracket
as hired killers (cf Zondi
v The State
1992 (2) SACR 706
(A)). 1 am afraid that 1 cannot agree. On their
own showing appellant 3 canvassed them to kill the deceased. It is true that
appellant
2 in one of his statements said that they were only invited by
appellant 3 to rob the deceased, not to kill him. It is also true
that they did
not arm themselves in advance with knives or firearms. But these are lesser
considerations when the continuum of events
is considered. Appellant 3,
13
who orchestrated the attack, had no motive to rob - her explicit purpose was
to harm the deceased. From her perspective the contemplated
robbery was a mere
lure to secure her companions' co-operation. Once she accompanied them to obtain
the cheque the murder became
inevitable, as appellant 2 said himself in his
statement, in order to avoid detection. Their actions in first reconnoitring the
lie
of the land, in aborting the first mission, in biding their time on the
second occasion before luring him out of the house on the
pretext that it was
Momusa calling, all testify to careful planning in the knowledge that he would
eventually have to be permanently
silenced. They had ample opportunity to
reflect and repent. Their actions after the event, in hiding the deceased's body
in the boot
of the car of which they removed the number plates and in setting it
alight, all point in the same direction that their aim was to
cover their tracks
by destroying evidence in accordance with
14 a carefully prepared programme.
The murder itself was a gruesome one, inspired by greed, executed without
compassion. The deceased
was first strangled until he wrote out the cheque and
then choked to death. There is no cause to distinguish between the two
appellants
when it comes to sentence. In all the circumstances their moral
blameworthiness is such as to deserve, beyond any other form of punishment,
the
ultimate penalty.
The appeals of all three the appellants must accordingly be dismissed. But
because the constitutionality of the death sentence as
such is still under
consideration by the Constitutional Court that issue must for now be left in
abeyance.
The following order is made:
(1)
The first, second and third
appellants' appeals against their convictions are
dismissed.
(2)
The first and second
appellants' appeals against the death sentences imposed in respect of count 1
are adjourned to a date
15
to be determined by the registrar of this Court.
P M
Nienaber
Hefer JA ) Concur Judge of Appeal
Eksteen JA)