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1992
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[1992] ZASCA 133
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S v Ngwegwe and Another (518/91) [1992] ZASCA 133 (8 September 1992)
CASE NO 518/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
GAMLAKHE ELLIOT NGWEGWE First Appellant
LINDEMNA LAWRENCE DADA Second
Appellant
and
THE STATE Respondent
CORAM: HEFER, NIENABER JJA et HOWIE AJA
DATE HEARD
: AUGUST 31, 1992
DATE DELIVERED
: SEPTEMBER 8, 1992
2
JUDGMENT
NIENABER JA:
The two appellants stood trial in the Cape Provincial
Division on two counts of murder. Each pleaded guilty to one of the counts and
not guilty to the other. On the first count the first appellant was convicted of
assault with intent to do grievous bodily harm and
the second appellant of
murder, as charged. On the second count, conversely, the first appellant was
convicted of murder and the
second appellant of assault with intent to do
grievous bodily harm. Each was sentenced to death by Williamson J, sitting with
assessors,
on the relevant murder count and to six months imprisonment for the
assault. The only issue with which this court is concerned, an
issue which comes
before it by virtue of the provisions of Act 107 of 1990, is whether the death
sentence imposed on each appellant
was, in all the circumstances, the only
proper sentence.
3
Those circumstances are as follows:
The two appellants and the
two deceased, all unemployed black males between the ages of 28 and 37, hailed
from Uitenhage. Uitenhage,
at the time, was torn by unrest and strife, erupting
in the wholesale destruction of property and a progression of assaults and
killings,
between the respective supporters of two organisations, the United
Democratic Front (UDF) and the Azanian People's Organization (AZAPO).
The two
appellants were committed supporters of the UDF. The two deceased were suspected
by them of being supporters of AZAPO. All
four of them formed part of a group of
between 40 and 50 contract labourers who were transported from Uitenhage to the
farm Koelenhof
near Koekenaap in the district of Vredendal to work on a farm
during the harvesting season. Most of the workers were alligned to
the UDF but
there were some who apparently identified with AZAPO. Complaints were made to
the owner of the
4
farm, one Strauss, inter alia by the two appellants, about the presence of
AZAPO supporters in the shed on the farm where all of them
were initially
housed, and the known AZAPO supporters were thereupon accommodated elsewhere on
the farm. The two deceased had the
misfortune to remain behind. The political
affiliations of the two deceased were never convincingly explained during the
course of
the trial. There were suggestions that they may well have been UDF
supporters. It mattered not. The two appellants believed them
to be followers of
AZAPO. And that, the court a quo found, was the real incentive for the fatal
assaults on the night in question,
15-16 March 1990, by the appellants cm the
deceased.
That political animosity was the root cause for the attack on the
deceased, some ten days after their arrival on the farm, appears
initially from
the explanations tendered by each of the appellants on pleading guilty to
5
the murder for which he was eventually sentenced. Both tendered identical
explanations: that the deceased he killed was a member of
AZAPO who had been
involved in an earlier attack on him in Uitenhage and who had uttered threats of
violence against him on the farm.
But there was no acceptable evidence to
support this particular refinement nor a later elaboration, tendered in
evidence, that it
was the deceased who, on the night in question, provoked
retaliation: not one of the eye witnesses, all of them UDF supporters and
co-workers alike, knew anything about the earlier incident when the deceased was
supposed to have threatened the appellants; the
supposed provocation at the time
was entirely against the probabilities; the appellants themselves declined to
testify during the
trial proper and were found, for good reasons, to be
untruthful when they eventually testified in mitigation of sentence. The
acceptable
evidence showed rather that the two appellants sought out and
6
attacked the two deceased late at night when everyone else was asleep. The
state witnesses all awoke as a result of the commotion.
Nobody came to the
assistance of the deceased although one of the state witnesses did remonstrate
with appellant no. 2. The court
a quo rightly found, on the evidence before it,
that the attack on the deceased was unprovoked by any conduct on the part of the
deceased. "The truth is rather", so it was held, "that the accused suspected the
deceased of being AZAPO members and this is why
they kept on telling the
deceased to tell the truth".
The deceased were overpowered, their arms were
tied behind their backs with wire from a nearby washing line, so tightly that it
cut
into their flesh and had to be removed with pliers at the post mortem
examination and, notwithstanding their pleas and protestations
of innocence,
they were beaten with a pole and an iron bar and dragged to their place of
execution. According to
7
one of the state witnesses appellant no. 1 asked his
colleague, when he
had deceased no. 2 at his mercy, "What
am I to do with him now?", whereupon
the other replied,
"Well there is nothing you can do other than kill him".
Appellant no. 1
then took a knife and proceeded to saw
through the deceased's throat.
Appellant no. 2 then
announced to all the others that anyone "who is
not
strong enough to watch what was going on should go out".
When deceased
no. 1 continued to plead for mercy
appellant no. 2 tore a piece off the
latter's T-shirt
and rammed it down his throat with a stick. He
thereupon
slit his throat. The trial court described the killings
in these terms:
"The two deceased had their arms pinioned behind their backs with wire so that
they were utterly helpless. Their heads were forced
back and their necks
methodically sawed through so that they were virtually
decapitated."
The district surgeon who conducted the post mortem
examination on the bodies of the two deceased commented:
8
"Ek is 37 jaar distriksgeneesheer en ek net nog nooit so iets gesien nie, so 'n
wreedaardige ding soos die nie."
Appellant no. 2 also announced
to the others in the shed
that they need not be concerned, he would "stand for what
I am doing."
Afterwards some of the others in the shed helped to drag the bodies of the
two deceased to a nearby gravel pit where they were buried.
Their bodies were
discovered the next day.
The circumstances described above make it plain that
the actions of the two appellants are deserving of severe punishment. The court
a quo, having evaluated the mitigating and the aggravating factors, concluded
that it justified the severest punishment of all. It
is that question, whether
the death sentences are the only proper sentences, which this court must now
re-examine and reassess afresh.
9
' The single most aggravating feature is doubtless the savage and gruesome
manner in which the deceased were butchered to death. It
is also indicative of
premeditation. Although there was no direct evidence of how the assault on the
two deceased started, the conduct
of the appellants - confronting the two
deceased in the middle of the night, tying and beating them up, dragging them
away and then
severing their heads in identical fashion - shows such
correspondence that it could not have happened spontaneously and must therefore
have been contemplated.
What, then, are the mitigating factors?
The appellants are
uneducated, not particularly intelligent and relatively unsophisticated
labourers who lived in a community where,
for a significant period prior to the
incident in question, violence, upheaval and political confrontation had become
a way of life
and death. From the profile of the appellants prepared by
10
the clinical psychologist called on their behalf, Dr Cooper, and the fact
that they reached adulthood without any previous convictions
of note, one can, I
think, infer that they were not, by disposition, cruel and violent persons. Yet
they committed these truly atrocious
acts. They found themselves cooped up with
people they regarded, most likely wrongly, as their mortal enemies. Precisely
what incident
triggered off the final confrontation between the appellants and
the deceased one does not know. What one does know is that most
of the occupants
of the shed, including the appellants and the deceased, had been drinking
earlier that evening. Each labourer was
issued with a bottle of raw wine. Many
of the witnesses conceded that they were, to a greater or lesser extent, under
the influence
of liquor. Both appellants claimed to have been heavily
intoxicated. The trial court concluded that they were exaggerating the amount
of
liquor which they had consumed but that the
11
wine nevertheless did impair their inhibitions. It doubtless fuelled the
antagonism which they felt towards the deceased whom they
identified as enemies
in their midst; it may even have spurred them on and quelled misgivings. That
the killing of the two deceased
was inspired by hostility and tension between
the two political groupings goes almost without saying and was never really in
dispute.
The appellants must have been exposed to a good deal of political
indoctrination to have responded in such a frenzied fashion. There
is no other
rational explanation for their conduct. The method they employed to kill the
deceased, hacking at their throats as if
they were animals at slaughter, reveals
the contempt they felt for their victims; and the gratuitous cruelty and bravado
which accompanied
it strongly suggest that they were swept along in a surge of
hatred and emotion. It is these facts which coloured the conduct of
each of them
to such an extent that the death
12
sentence, in my view, is not imperatively called for.
What sentence should
then be substituted in its stead? The only alternative is a lengthy period of
imprisonment. Although there are
some indications in the evidence that appellant
no. 2 assumed a more dominant role than his comrade, I do not believe that it
justifies
a differentiation in sentence. Having regard to all the circumstances
of this case, its background, the motivation of the appellants,
their personal
circumstances and the general jurisprudential objectives of punishment, a period
of imprisonment of 25 years for each
appellant would in my opinion be
appropriate.
The following order is accordingly made:
1. The appeal of each of
the appellants against
his sentence succeeds to the extent that the
death
sentence imposed on him is set aside.
2. In its stead the first
appellant is sentenced
to twenty-five years imprisonment on count 2 and
the
13
second appellant is sentenced to twenty-five years imprisonment on count
1.
3. It is directed that the period of imprisonment of six months which is
imposed on each appellant for assault with intent to do grievous
bodily harm on
the remaining count is to rum concurrently with the above sentence.
P M NIENABER Judge of Appeal
Hefer JA ]
] Concur Howie AJA ]