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1992
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[1992] ZASCA 132
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S v Mazibuko and Another (434/91) [1992] ZASCA 132 (4 September 1992)
CASE
NO 434/91
CCC
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
ISAAC VUSI MAZIBUKO
FIRST
APPELLANT
MLUNGISI
GUGU ZITHA
SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, NESTADT
et VAN DEN HEEVER JJA
DATE HEARD
: 28 AUGUST 1992
DATE DELIVERED
: 4 SEPTEMBER
1992
JUDGMENT
NESTADT, JA
This is an appeal against the
death sentence imposed on the appellants consequent upon them having
2 been
found guilty of murder without extenuating circumstances.
The facts
appear from the judgment of the trial judge, VERMOOTEN AJ, sitting in
the Witwatersrand Local Division. In summary they
are the following.
The appellants were members of a group of five persons who on the
night of 31 August 1987 arrived by car at the
house of Patrick
Mabanga (the deceased) in Soweto, Johannesburg. He (aged 33) lived
there with his wife and children and other members
of his family. The
group, who were armed with pangas and a shotgun, were looking for the
deceased. They demanded entry to the house.
When the deceased' s wife
refused to open the door, they attacked the house. Shots were fired
at it; one of the group climbed on
to the roof in order, so it would
seem, to gain access to the house and thus apprehend the deceased or
to frighten him into fleeing
outside; and, obviously with the same
object in mind,
3 teargas
was thrown into the house. The attackers succeeded in their aim. The
deceased apparently ran out of the house. On an open
plot near the
house he was caught and killed. He was stabbed; he was shot; and the
car was driven over him three times. The injuries
found by the doctor
who performed the postmortem examination included numerous
gaping, deep, lacerated, incised wounds ranging
between three and ten
centimetres over the head and face as well as other penetrating
incised wounds to the shoulder, chest, back
and right hand (the thumb
whereof had been amputated). There were also multiple fractures of
the skull, cheekbone, nose and ribs
and there were a number of
(probably) "fairly superficial" shotgun wounds over the
back. The cause of death was "multiple
injuries".
Our task
is to decide whether, having due
regard to
the presence or absence of any mitigating or
aggravating
factors, the death sentence is the only
4 proper sentence. The first
appellant who was 24 years old at the time of the murder is a first
offender. The second appellant, then
aged 23, has previous
convictions but they are relatively minor and not really relevant. So
to this extent there are mitigating factors.
But that is all. I
cannot agree with the argument on behalf of the appellants that a
further mitigating factor was the motive for
the murder, namely to
avenge the death of the appellants' friend, a certain Bheki, whom it
can be accepted, the deceased had killed.
In certain circumstances,
revenge may constitute a mitigating factor (
S vs Dladla
1980(1) SA 149(A) at 151 B) . But not in this matter. The reason is
two-fold. In the first place, Bheki was killed at the end of
March
1987, ie some five months before the attack on the deceased. So the
appellants had a lengthy period for their anger to subside
(as in
Mandela vs S
, an unreported judgment of this Court delivered
on 6 March
5 1992
under case no 587/91). Secondly, the attack on the deceased took
place after the appellants had already killed an innocent
person. He
was the deceased's father, Mbengeni Mabanga. The day after Bheki's
death on 29 March 1987, the appellants and others attacked
the house
which he and deceased's mother occupied. Windows were broken and
shots were fired into it. The attackers obviously but
mistakenly
thought that the deceased was there. Mabanga was fatally wounded by
some of the shots. (His murder gave rise to another
count on which
the appellants were found guilty by the court a
quo
.
Extenuating circumstances having been found, they were each sentenced
to ten years imprisonment on this count.)
It appears
therefore that the appellants (who though relatively young were not
youths) were not deterred by the fact that their thirst
for revenge
had resulted in Mabanga's death. They continued to take
6 the law
into their own hands. Their desire to kill the deceased persisted. He
was sought out in the privacy of his home. These are
aggravating
factors. So too, are the following. The murder was obviously
carefully planned. It was cold-bloodedly and cruelly executed.
The
form of intent was
dolus directus
. The evidence reveals that
it was the first appellant who shot the deceased and that it was the
second appellant who drove the car
over him. There having been a
common purpose between them to murder the deceased, they are each
responsible for the acts of the other
as also for the other injuries
inflicted on the deceased. The appellants were part of a gang against
whom the deceased had no chance
to defend himself. As I said, he was
caught and killed as he was fleeing.
In my
opinion what has been stated makes this murder a particularly heinous
one. It is one in which, having regard to the interests
of society,
the death
7 sentence
is imperatively called for and is thus the only proper sentence.
The
appeals of both appellants are dismissed.
H H
NESTADT, JA
VAN DEN HEEVER JA â CONCURS
LL
Case
No 434/1991
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between:
ISAAC VUSI MAZIBUKO
First
Appellant
MLUNGISI
GUGU ZITHA
Second Appellant
and
THE STATE
Respondent
CORAM
:
VAN
HEERDEN, NESTADT et VAN DEN
HEEVER JJA
HEARD
:
28
AUGUST 1992
DELIVERED
:
4
SEPTEMBER 1992
JUDGMENT
VAN HEERDEN JA
:
2
I have no quarrel with the
analysis of mitigating and aggravating factors in the judgment of my
colleague, Nestadt. In evaluating
those factors I am, however, of the
view, albeit not without some hesitation, that this is not a case
where the death sentences are
imperatively called for.
I would therefore allow the
appeals and substitute 25 years imprisonment for the sentence of
death imposed in respect of each appellant.
H J O VAN HEERDEN JA