S v Ngcobo (169/92) [1992] ZASCA 167 (24 September 1992)

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[1992] ZASCA 167
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S v Ngcobo (169/92) [1992] ZASCA 167 (24 September 1992)

IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MZINGELWA NGCOBO
Appellant
AND
THE STATE
Respondent
Coram
: E.M. GROSSKOPF,
KUMLEBEN et EKSTEEN, JJ.A.
Heard
: 10 September 1992
Delivered
: 24 September
1992
JUDGMENT
EKSTEEN
,
JA :
The appellant was convicted before
the Cir­cuit Local Division of the Southern District of Natal of
-
the murder of Msangelwa Elphas
Sikhosana;
robbing the said Sikhosana of
approximately R450;
the unlawful possession of a 9
mm. Star pistol; and
the unlawful possession of five
rounds of 9 mm. ammunition.
He was sentenced to death on the
first count; to 15 years imprisonment on the second count; and to
2
one years imprisonment on each of
the third and fourth counts. In terms of section 316 A of Act 51 of
1977 ("the Act") the
appellant had the auto­matic right
to appeal to this Court against his conviction and sentence on the
first count viz. that of
murder. The learned trial Judge also gave
him leave to appeal against his convictions and sentences on each of
the other three counts.
It is this appeal which is presently before
us.
Msangelwa Elphas Sikhosana ("the
deceas­ed" ) was a taxi driver who plied his trade between
Mkangala via Harding to
Durban and back again. His taxi was a kombi
designed to carry a driver, a conductor and 13 passengers. It seems
to have
..../ 3
3
been a not uncommon practice,
however, to squeeze in more than 15 passengers. On 13. January 1991
the deceased had conveyed passengers
in his taxi from Mkangala to
Durban, and at 9 o'clock that evening he commenced the return journey
with a full load of passengers.
His 33 year old cousin, Patrick Dlomo
was his conductor. When they left Durban that evening Patrick took
over the wheel and drove
as far as Port Shepstone. There they
collected the fares from the passengers and the deceased resumed the
driving. It was then about
half-past ten. Some passengers got off at
a place called Izingolweni, some more at Harding, and about 9
passengers went on to Gugwini
Ward.
..../ 4
4
Beyond Gugwini only three
passengers remained aboard - one Joseph Mseleku and his young son,
and another man whom Patrick did not
know. The last stop was at
Mkangala where Mseleku and his son got off. The stranger opened the
door for Mseleku and helped him take
his luggage down from inside the
taxi. Patrick went to open the boot so as to unload some more of
Mseleku's luggage, leaving the
deceased, who was very tired, slumped
over the steering -wheel. The kombi's engine had been switched off.
As he opened the boot Patrick
heard a "gunshot", and at the
same time the kombi began moving down the hill. Two more shots were
fired and as the kombi
began picking up speed Patrick
...../ 5
5
saw the stranger jumping out and
"running away". Patrick began running after the vehicle but
Mse-leku shouted to him to
stop as the stranger might shoot him too.
Patrick then noticed the figure of a man, presumably the stranger,
running after the vehicle,
and so he (Patrick) turned back. The kombi
careered off the road and came to a stop some 250 metres further on.
Patrick ran to his
uncle's vehicle, and his uncle summoned the
police.
Constable Cele received the report
and arrived at the scene some time after 1 a.m. on 12 January. He
went down to where the kombi
was standing and found that the deceased
had been shot
...../ 6
6
three times through the head from
behind and that his body had been dragged out of the kombi on the
surrounding grass. His trouser
pockets had been turned inside out and
he had no money on him. Patrick says that the de­ceased must have
had about R400 on his
person -being the fares for both the day's
journeys. In fact after the fares had been collected from the
passengers that night at
Port Shepstone, Patrick noticed the deceased
putting the money in his trouser pocket. On the floor of the kombi
next to the driver's
seat Cele found two 9 mm. bullet heads. A third
bullet was found
in the head of the deceased at the
post-
....../ 7
7
mortem examination. On 14 January
Patrick brought Cons. Cele a 9 mm. spent cartridge case. He told the
court a
quo
that he had found it on the mat of the kombi on
the driver's side while he was washing the vehicle on 12 January. In
a previous sworn
statement to Cons. Cele, however, Patrick had
de­posed to having found the spent cartridge case "next to
the kombi"
when he had returned to the scene of the crime the
next day - i.e. 12 January.
Some time after the killing of the
de­ceased Patrick saw the appellant seated in the dock at the
Harding magistrate's court and
pur­ported to recognise him as
being the stranger who had been in the taxi when the deceased was
shot.
.... / 8
8
The trial court however felt that
it would be dangerous to rely on this identification in view of the
suggestive nature of the circumstances
attendant on it. Before
appellant's arrest Cons. Cele asked Patrick for a description of the
man who had been in the taxi at the
time the deceased was shot, and
Patrick gave him one. Apart from describing the man Patrick added
that he had been wearing a jacket
which "in the night ....
appeared to be of a blackish colour".
The appellant was arrested at
about 9 a.m. on the morning of 12 January while he was a passenger in
a taxi proceeding from Harding
to Durban. This taxi had been stopped
at a police road-block between
....../ 9
9
Harding and Port Shepstone. While
Cons. Botes was noting down the registration number at the rear of
the taxi he heard the sound of
a metal object falling onto the floor
of the vehicle's boot. He immediately asked the driver to open the
boot, and there he found
a 9 mm. Star pistol lying below the last row
of seats on the right of the taxi - more or less below the seat on
which the appellant
was seated. It had four rounds of ammunition in
the magazine and one in the breech. The magazine could hold eight
rounds. Appellant
was found to be wearing a navy blue jacket which
appeared to have bloodstains near the right pocket and on one of the
sleeves. The
blood was still
......../ 10
10
fresh and came off at the touch.
In one of the pockets of the jacket an amount of R450 was found.
In evidence the appellant denied
that he had been wearing the jacket I have referred to, but conceded
that he had been in possession
of R450. He also denied that he had
been in possess­ion of the pistol. He told a patently absurd
story to explain his presence
in the taxi that morning. He said that
he had left Durban at about 6 or 6.30 a.m. in order to see an
"inyanga" in Harding.
This "inyanga" had
undertaken to cure two of appellant's children who suffered from
epilepsy. His appointment was to meet
the "in-yanga" at
Harding at 8.30 a.m. He got to
....../ 11
11
Harding at 8.30 a.m. and went
straight to the place where he had arranged to meet his "inyanga".
The "inyanga"
was not there and appellant decided not to
wait for him or to look for him elsewhere but to return to Durban at
once. At 8.45 a.m.
he says he boarded the taxi back to Durban. He was
arrested at the road-block shortly afterwards. This is an inherently
improbable
story, and it is, moreover, contradicted by several other
witnesses. The taxi driver told the court that the taxi had left
Harding
at about 8 a.m. and not 8.45 a.m. He noticed the appellant on
the taxi. He was wearing a navy blue jacket and was seated in the
back
row just above where the pistol was found. He adds that the
appellant was untidy in his dress and
.... / 12
12
looked as though he had been
walking through wet grass. Two other passengers in the taxi, Thunzi
and Dlamini, both deposed to the
appellant wearing the navy blue
jacket and sitting in the seat above the spot where the gun had been
found. Both testify to the taxi
having left Harding at 8 a.m. or
shortly thereafter. Finally a female pssenger, Buyiswa Basi, told the
court that she had boarded
the taxi at about 7.15 a.m. and that the
appellant had boarded it shortly afterwards. The two of them had
quite a long conversation
at the time. His clothes, she says, were
untidy and dirty. He wore the navy blue jacket before the court, and
sat in the back row
of seats. All this evidence,
....../ 13
13
which the court a
quo
believed, refutes the appel­lant's version. Not surprisingly,
therefore, the court rejected the appellant's evidence as not being
reasonably possibly true.
Ballistic examination showed that
the cartridge case which Patrick Dlomo had handed to Cons. Cele had
been fired by the pistol found
in the taxi. The three bullet heads
had been so de­formed as not to make any such deduction possible.
Whether this cartridge case was
found inside the kombi of the deceased, or just outside it in the
veld, makes very little difference.
The fact that it was found in or
near the kombi is strongly indicative of the fact that it was
...../ 14
14
one of the rounds which had been
fired at the de­ceased on the night he was killed. And that round
had been fired by the pistol
found in the boot of the taxi the next
morning. The evidence pointing to the appellant as having possessed
that firearm and having
been the person who shot the deceased is
overwhelming. The gun was found under the seat which he occupied in
the taxi. That gun had
been used to fire a shot in the taxi driven by
the deceased on the night he was killed, and which must have been one
of the three
shots that killed the deceased. The magazine of the
pistol was designed to hold eight rounds of ammunition and five
rounds were found
in the pistol. The pistol
...... / 15
15
smelt of cordite - indicative of
its recent dis­charge. Early on the morning of 12 January the
appellant, who lives in Durban,
arrived at Harding looking
dishevelled as though he had been walking through wet grass. He wore
a dark jacket similar to the one
Patrick had noticed the strange man
in the taxi wearing, and the jacket was blood-stained. The blood was
still fresh and came off
at the touch. In a pocket of the jacket
appellant had R450 - approximately the amount taken from the deceased
after he had been shot.
When confronted with all this evidence at the
trial the appellant resorted to patently false denials and lies. In
the light of all
the circumstances
..... / 16
16
the court a
quo
was, in my
view, justified in coming to the conclusion that the only reasonable
infer­ence to be drawn was that the appellant
had been in
possession of the pistol in the taxi when it was stopped at the
road-block, and that he had dropped it onto the floor
below the seat
on which he had been sitting. This leads to the inevitable
con­clusion in the absence of any credible explanation
from the
appellant that he was the man who shot the deceased, and robbed him
of the money which he had in his trouser pocket. He
was also guilty
of the unlawful possession of the pistol and ammu­nition.
I turn now to consider the
sentence
.... / 17
17
imposed on the first count.
Section 322 (2A) of the Act enjoins this Court, if it is of the
opinion that it would not itself have
imposed the sentence of death
to set aside the sentence and to impose such punishment as it
considers to be proper. Section 277 of
the Act provides that the
sentence of death shall only be imposed if, after having regard to
all the mitigating and aggravating factors
found by the court, the
trial judge "is satisfied that the sentence of death is the
proper sentence" - i.e. is the only
proper sentence (
S. v.
Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 745 E - f). The
learned judge in that case then goes on to say (at 745 F - G):
...... / 18
18
"It follows that the
imposition of the death sentence will be confined to exceptionally
serious cases; where (in the words of
Nicholas A.J.A. in
S. v. J
.
1989 (1) SA 669
(A) at 682 D, albeit in a different context) 'it is
im­peratively called for'."
(See also
S. v. Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727
(A) at 734
H;
S. v. Ntuli
1991 (1)
SACR 137
(A) at 143 d - e;
S. v. Mthembu
1991 (2) SACR
144
(A) at 145 g.)
The appellant was 38 years old at
the time
the offence was committed and he
was a first offender.
This
tends to indicate that he is not ordinarily
given to violence and this must
therefore be seen as
a mitigating factor. The court a
quo
found him
to be an unintelligent and simple
person, and this
seems to be borne out by the inept
and absurd false-
....../ 19
19
hoods to which he resorted in his
attempts to es­cape liability for his misdeeds.
On the other hand the trial court
found the following aggravating factors viz. the base­ness of
appellant's motive for killing
the deceased; his direct intention to
kill; the premeditation of his act; and the fact that he killed the
deceased in order to rob
him but without waiting to see whether he
could rob him without killing him. Fi­nally the learned judge,
drawing on his own experience,
referred to the prevalance of attacks
on taxi drivers -presumably in Natal - who "live in constant
fear of attacks and of being
killed". These are undoubtedly
serious factors which must weigh heavily with the
....../ 20
20
court in considering punishment.
They may well be considered to be such serious factors as to warrant
the death sentence being regarded
as an appropriate sentence. The
matter to be decided, however, is not whether the death sentence is
an appropriate sentence, but
whether it has been shown to be the only
proper sentence. Regarded from another point of view the question may
be posed whether,
having regard to all the mitigating as well as all
the agg­ravating circumstances, this case can be placed in the
category of
the "exceptionally serious cases" which call
imperatively for the death sentence. Bearing the seriousness of the
aggravating
factors in mind, and giving due weight to the mitigating
...... / 21
21
factors found by the trial court,
I find myself un­able to answer that question in the affirmative.
It follows therefore that
I cannot confirm the sentence of death as
contemplated in section 322 (2A)(a) of the Act. This does not,
however, in any way detract
from my view of the seriousness of the
offence. Such actions as those perpetrated by the appellant pose a
threat to ordered society
and the sentence imposed for this offence
must be de­signed to deter others from seeking to emulate such
behaviour. In my opinion
a sentence of 25 years imprisonment would
adequately serve such an end.
The sentences imposed by the trial
court
....../ 22
22
in respect of the remaining three
counts were not seriously challenged before us on appeal and I see no
good reason to interfere with
them in any way. In the result -
The appeal against the
convictions on all four counts is dismissed.
The appeal against the death
sentence on the first count succeeds and for it is substituted a
sentence of 25 years im-prisonment.
The appeal against the sentences
imposed in respect of the remaining three counts fails, but it is
ordered that these latter sentences
will be served concurrently with
...../ 23
23
the
sentence imposed on the first count.
J.P.G. EKSTEEN, JA
E.M.
GROSSKOPF I concur
133/92
/mb
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
MZINGELWA NGCOBO
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: E M GROSSKOPF,
KUMLEBEN et EKSTEEN JJA
HEARD
: 10 SEPTEMBER 1992
DELIVERED
: 24 SEPTEMBER 1992
JUDGMENT
KUMLEBEN, JA
/.....
1 .
KUMLEBEN, JA
:
As the Chief Justice recently
observed in S
v Tloome
1992(2) SACR 30 (A) 39h:
"This Court has on a number
of occasions indicated that in determining whether or not the death
penalty should be imposed the
main objects of punishment,
retribution, prevention, deterrence and reformation should be
weighed. At the same time, in cases of
murder of elderly victims in
their own homes with robbery as the motive, inevitably the factors of
retribution and deterrence tend
to come to the fore."
The significant mitigating factor
in the present appeal is that the appellant is a first offender. One
therefore accepts in his favour
that a prison sentence could lead to
his reformation and rehabilitation. However, this consideration is to
be weighed against the
other purposes of punishment and the
aggravating circumstances of this particular case. As pointed out in
the majority judgment of
my Brother Eksteen, which I have had the
privilege of reading, it
2. was a premeditated and
cold-blooded murder of a
defenceless person in order to rob
him. The trial court stressed that taxi drivers, who ply their trade
and render an essential service
particularly in rural areas, live in
constant fear of lethal attacks and these are prevalent. From the
very nature of their work,
taxi drivers are more vulnerable than,
say, a person within the comparative security of a home or a
store-heeper, who can take certain
measures to protect himself. I
share the view of the trial court that murdering to rob in the
context of this case, obliges one to
attach overriding weight to the
other purposes of punishment.
In the result I respectfully
differ with the conclusion reached in the majority judgment. I would
dismiss the appeal.
M E KUMLEBEN
JUDGE OF
APPEAL