About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1995
>>
[1995] ZASCA 22
|
|
S v Ngcobo (529/93, 21/95) [1995] ZASCA 22 (27 March 1995)
Case No
:
529/93
21 /95
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
GOODMAN MsAWAKHE NGCOBO
Appellant
AND
THE STATE
Respondent
Coram
: HEFER, EKSTEEN et VAN DEN HEEVER, JJA
Heard
: 10 March 1995
Delivered
: 27 March 1995
JUDGMENT
EKSTEEN
, JA :
The appellant was indicted on 15 counts of murder, 8 of attempted murder, and
of contravening section 2 and 36 of Act 75 of 1969 by
being unlawfully in
possession of a firearm and ammunition. He was convicted on 10 counts of murder
and on 4 counts of attempted
murder, as well as on the two statutory offences I
have referred to. He was sentenced to death on 9 of the counts of murder and to
15 years' imprisonment on the remaining one; to 5 years' imprisonment in respect
of each of the counts of attempted murder, and to
1 years's imprisonment on the
two statutory offences which were
......... / 2
2
taken as one for the purposes of sentence. The first 8 counts of murder were
committed over a period of time ranging from January
or February 1991 to 12 July
1991. He was arrested on 2 August 1991. After pointing out certain spots to the
police on 7 August and
appearing in Court, he was released on bail on 30 August.
Thereafter on 22 October 1991 he allegedly committed two more murders and
an
offence of attempted murder. These three offences were charged as counts 23, 24
and 25 respectively. He was convicted on all three.
His present appeal is
directed against the convictions and sentences in respect of each of the three
latter offences. He does not
appeal against the convictions on any
..... / 3
3
of the other counts, but limits his appeal to the death sentences on the 8
counts of murder.
In respect of counts 23, 24 and 25 there is also before us an application for
this Court to remit the matter to the Court a_
quo
for the hearing of
further evidence, viz the evidence of one Jabu Maphumulo. In order to consider
this application it is necessary
to have regard to the evidence adduced in
support of those counts and the findings of the trial Court in respect of that
evidence.
The Court relied primarily on the evi-dence of one Mfihlelwa [lias Shange. He
deposed to having been at a bus-stop at Sinamu on 22
October 1991 in the company
of Steleka Christopher Ngidi
....... / 4
4
(also known as Striker Mkize) and Thabani Ndhlovu.
At the bus-stop there was also another man called
Zwelake Madonsela Mendu and a schoolgirl whose name Shange could not
remember. While they were waiting for the bus a taxi drew up.
Three men, armed
with handguns, alighted and immediately opened fire on those standing at the
bus-stop. Striker Mkize and Thabani
Ndhlovu were both shot dead. Shange and
Mendu took to their heels and fled across the veld to the nearby homestead of a
white farmer.
As they ran they were pursued by the three gunmen who fired
several shots in their direction. Fortunately for them they were not
hit and
managed to reach the white farmer's homestead unscathed. The police were
summoned and on their
.... / 5
5
arrival Shange and Mendu accompanied the police to the scene of
the shooting where the bodies of Striker and Thebani were still lying.
Shange says that as soon as the three men got out of the taxi he recognised
the appellant as
one of them. He was the first one to alight and he
was the one who shot Striker and Thabani. Shange
knew the appellant well over a long period of time. They used to stay near
each other. Shange was also able to identify another one
of the killers. He was
Dodo Mbambo. Shange apparently did not know him as well as he did the appellant,
but he had seen him at the
taxi rank and knew him to be a taxi driver.
.... / 6
6
The shooting took place at about two o' clock in the afternoon
and Shange had no doubt about the identification of the appellant and
Dodo
Mbambo. There was nothing to obstruct his view and he saw their faces clearly.
He did not know the third person. Shange told
the Court that he was a member of
the African National Congress (the ANC) and that he knew the appellant to be a
member of the Inkatha
Freedom Party (Inkatha). It appears from the evidence that
these two parties were locked in an ongoing feud in the course of which
many
lives had been lost on either side.
In his evidence appellant denied having been one of the killers. He conceded,
however, that
..... / 7
7
he and Dodo Mbambo had been together that day. They had gone
together from Izingolweni to Port Shepstone to see their attorney. They
returned
together that afternoon at about 4 o'clock. At Murchison they parted. Dodo
decided to complete the journey back to Izingolweni
in a truck which he noticed
in Murchi-son. He apparently hoped that the owner of the truck, one Phewa, would
let him drive it home.
He seems to have been very fond of driving trucks.
Appellant then boarded Supa Shazi's taxi, which he says happened to drive past
the scene of the shooting. He cannot remember seeing the two bodies lying next
to the road but does remember seeing the police van
at the scene. On an
acceptance of Shange's evidence this
.... / 8
8
must have been more than two hours after the murders.
Appellant called Supa Shazi to support his evidence. Shazi told the court
that he had come from Port Shepstone and passed the scene
where the police van
and the bodies of the murdered men were. He did not stop but drove straight on
to Izingolweni. The appellant
was one of his passengers. He had picked him up at
Murchison. In cross-examination a sworn statement which he had made to Warrant
Officer Breedt on 31 October 1991 was put to him. This statement was at variance
with a previous statement he had made in which he
denied that the appellant and
Dodo Mbambo had been in his company on 22 October. He conceded that this was a
lie, and that
...... / 9
9
appellant had in fact been a passenger in his taxi that day.
In its judgment the trial Court rejected Shazi's evidence, and found that he
had been totally discredited by the statement put to
him. It also rejected the
appellant's evidence that he had simply driven past the scene after the shooting
had taken place as being
false beyond a reasonable doubt. I might add that the
appellant's evidence had already been rejected on all the previous counts on
which he had been convicted as being "highly improbable"; "totally
unsatisfactory and untruthful" and "false beyond a reasonable
doubt". On the
other hand it found Shange to have been "an excellent witness"
..... / 10
10
who gave his evidence well, and who was unshaken in
cross-examination. An aspect which weighed with the Court was the fact that
Shange
had deposed to having recognised not only the appellant, but also Dodo
Mbambo - the very man that the appellant conceded had been
in his company that
day in the very area in which the shooting had taken place.
The appellant was defended in the Court A
quo
by Mr
Lingenfelder
, and he also launched the application to lead further
evidence. He did so by notice of motion and brought it in his capacity as
pro
deo
counsel. The gist of the application is that at the subsequent trial of
Dodo Mbambo on two counts of murder and one of attempted
murder arising
....... / 11
11
out of the same incident, Shange was again called as a state
witness. In his evidence at that trial he was able to recall the name
of the
schoolgirl who had been with them at the bus-stop at the time of the shooting.
She was Jabu Maphumulo. The defence then called
her as a witness. She gave the
same account of the events as Shange had given, except in one important respect.
She said that all
three attackers wore balaclava caps which covered their entire
faces except for their eyes. She could therefore not recognize any
of them. By
analogy, therefore, it was submitted Shange could not have done so. In fact if
the evidence were true, then Shange was
lying to the court a
quo
when he
said that
...... / 12
12
he could see their faces clearly. The appellant's
founding affidavit goes on to say that -
"I have been informed by Counsel who acted for me at the trial that Dodo
Mbambo was acquitted on the three counts in question."
This was clearly hearsay and was not supported by any affidavit from the
counsel referred to.
An excerpt from the record of that trial containing the evidence of Jabu was
annexed to the application, and bears out the allegations
made in appellant's
favour. In her evidence Jabu ad-mits that both she and Dodo Mbambo are members
of Inkatha, and, as we know, Shange
was a member of the rival ANC. She was
closely questioned by the presiding Judge, and does not seem to have come
out
...... / 13
13
of it without some doubts having been raised in respect of her
credibility.
The excerpt from the record then reflects a remark by the presiding Judge
that Jabu's allega-tions had not been put to Shange, and
that Shange would be
recalled to deal with them. That is where the excerpt ends. We are left to
wonder whether Shange was recalled,
and what he may have said in reply. The
judgment of the Court was not annexed, so we were unable to see whether the
Court believed
Jabu or not. The application can only succeed if the applicant
satisifies this Court that there is "a
prima facie
likelihood of the
truth of the evidence" (
S v de Jager
1965 (2) SA 612
(A) at 613 C-D) or,
as it is put in
...... / 14
14
section 316(3)
of the
Criminal Procedure Act, No 51 of 1977
, that the
evidence "would presumably be accepted as true". This requirement can hardly be
said to have been satisfied when we do
not know what the Court that heard the
evidence thought of it. Mr
Lingenfelder
, who also appeared before us on
be-half of the appellant, preferred a copy of the judgment from the bar, and
this we accepted in
the interests of justice.
In this judgment it appears that Shange made a favourable impression on the
Court, but that, in the light of Jabu's evidence which
was well given" with "no
obvious blemishes" the Court felt itself unable to say that the State had
discharged the onus
..... / 15
15
resting on it to prove the guilt of the accused be-yond a
reasonable doubt. It also appears from the judgment that, apart from various
policemen, the Court had only heard two witnesses, viz Shange and Jabu. Not
being able to reject Jabu's evidence as being false beyond
a reasonable doubt,
Dodo's acquittal was bound to follow.
In the case before us, however, there were clearly other factors supporting
the conviction of the appellant. Not only was the evidence
of the appel-lant,
and that of his witness Shazi, rejected as being false beyond a reasonable doubt
on good grounds -and Mr
Lingenfelder
did not contend to the contrary -but
Shange's evidence was supported by his implication
..... / 16
16
of Dodo and the appellant's subsequent concession that he and Dodo had indeed
been together that day in the very area where the shooting
had occurred. In the
light of these considerations it seems to me most unlikely that Jabu's evidence
could be accepted as true. After
all, as. I have indicated, she had a strong
motive to protect her fellow Inkatha member from being convicted by declining to
identify
him simply by saying that the balaclava cap (which caps are fairly
generally worn) had been pulled down over his face. The Court
in Dodo's trial,
did not have these additional facts at its disposal, and was left with the stark
contradiction of one witness by
another on one small, albeit important aspect of
the evidence.
...... / 17
17
Shange's evidence was not rejected in that case but the
incidence of the onus and the absence of other probabilities made the acquittal
of Dodo inevitable.
The appellant has, in my view, not succeeded in showing any likelihood of
Jabu's evidence being accepted as true in the case before
us, and his
application for the matter to be remitted for that evidence to be led cannot
succeed.
As appears from the facts I have referred to above, the State made out a
strong case against the appellant, and Mr Lingenfelder conceded
that without the
acceptance of Jabu's evidence he was unable to advance any argument against the
convictions. The appeal against
the convictions on these three counts
therefore, cannot succeed.
....... / 18
18
The appeal, as I have indicated, is also directed against the death sentences
imposed in re-spect of nine of the convictions of murder.
The appellant was a
man of 31 years of age at the time the series of murders was committed. He was
not married but had five children
by various women. He advanced to Std 3 at
school, and was subsequently employed as an assistant in his brother's shop.
The murders of which he was convicted reflect a protracted reign of terror
mainly in the Izingolweni area. During January or February
1991 he abducted one
Dan Cele, took him to a remote spot in the Oribi Gorge where he shot him twice
through the head. Then on 16
March he shot and killed one
..... / 19
19
Dlamini while he was waiting at a bus-stop together
with
some of his school friends. On this occasion
he also tried to shoot three of
Dlamini's companions.
On 24 March he shot and killed one Ngcobo near the
Mtatweni bus-stop. On 19 May he shot and killed
three people who were sitting in a house talking.
On the evidence the appellant simply walked into
the house, took out his gun and started shooting.
Another person who was also in the house at the
time was wounded. On 7 June Khehlo Mkhize was
sitting in his house with his mother when they heard
the sound of a gunshot. Khehlo went out to see
what was happening. The appellant was standing
outside. When Khehlo fled the appellant pursued
..... / 20
20
him and shot him dead. After Khelo had fallen the appellant continued to
shoot at him. On 12 July appellant again chased a man from
a kraal and shot him
dead.
Appellant was arrested, as I have indicated, on 2 August and after having
been charged with all these crimes, he was released on bail
on 30 August. Then
on 22 October he committed the offences charged in counts 23, 24 and 25. These
were the offences that I dealt
with fully earlier in this judgment.
The only reason advanced by the appellant for his diabolical reign of terror
was that he was only killing those people who had been
involved in
.... / 21
21
killing his mother. The only person, however, who, on the
evidence, was suggested to have been implica-ted in the death of appellant's
mother was Dan Cele. There is nothing to suggest that any of his other victims
were so associated. On the evidence all these killings
seem to have been at
random. Mr
Lingenfelder
referred to the feud between the ANC and Inkatha,
and to the large numbers of people killed in the course of it, and submitted
that
appellant's offences were probably politically mo-tivated. The evidence,
however, does not support this submission. There is no evidence
as to the
political associations of most of appellant's victims, nor is there any evidence
to suggest that he thought
22
that any of them belonged to the ANC. In fact in the course of
his evidence appellant explicitly de-nied that he had ever committed
any crimes
for a political motive.
Mr
Lingenfelder
also submitted that none of the murders was committed
in a particularly brutal way and that this should be seem as a miti-gating
factor. The appellant may not have dismembered his victims, or tortured them
over a period of time, but the cold blooded way in which
each of them was shot
for no apparent reason at all seems brutal enough on the face of it. As the
learned Judge a
quo
pointed out, most of the victims were shot through
the head. One was shot through the neck and another
..... / 23
23
through the spinal cord. All the offences seem to have been
committed at random and in cold blood and constituted a reign of terror
in that
area stretching over some eight months. The aggravating factors so far outweigh
any mitigating factors there may be -and
indeed there do not seem to be any -
that the death sentence is, to my mind, the only proper sentence in this case.
Because the constitutionality
of that sentence is presently under consideration
by the Constitutional Court, it is desirable to postpone the consideration of
sentence
until that Court has given its judgment.
The appeal against the convictions on counts 23, 24 and 25 is dismissed.
...... / 24
24
The appeal against the death sentences imposed on the
appellant in respect of counts 1, 2, 4, 5, 6, 7, 9, 23 and 24 is postponed to
a
date to be arranged after the Constitutional Court has given its judgment on the
constitutionality of the death sentence.
J P G EKSTEEN, JA
HEFER, JA )
concur VAN DEN HEEVER, JA )