About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1992
>>
[1992] ZASCA 173
|
|
S v Dlamini (598/91) [1992] ZASCA 173; 1992 (1) SA 18 (AD); (28 September 1992)
598/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
BHEKINKOSI ELLIOT SIKETI DLAMINI
Appellant
and
THE STATE
Respondent
Coram
: BOTHA, KUMLEBEN J J A et NICHOLAS A J A.
Date Heard
: 11 September 1992
Date Delivered
: 28 September
1992
2
JUDGMENT
NICHOLAS
, A J A:
On the morning of 3 June 1987 one Mkhize, a
62 year old man, was lying
abed at his kraal at Nhlungwana Reserve in the Mahlabatini district in Kwa Zulu.
His daughter, Ziphelele
Penelope Mkhize ("Penelope"), a 12 -year old schoolgirl,
was at home with him. At about half past ten she saw two men approaching.
She
informed her father, who told her to let them in. The two men followed her into
the room, uttered greetings and without more
started shooting. When the
fusillade stopped, they went away. When the police arrived she told them what
had happened and gave descriptions
of the two assailants.
Mkhize died in the shooting. On post mortem examination there were found a
number of bullet wounds : two on the front of the chest,
one below the left
scapula, one
3
on the upper lip and penetrating the jaw, six on the left leg
and five on the right leg. The cause of death was "massive right
haemothorax".
At a duly constituted and conducted identification parade held
on 29 June 1988, Penelope pointed out Robert Phakathi as a person whom
she saw
kill her father Mkhize. And at a similar parade held on 18 October 1989 she
likewise pointed out Bhiki Elliot Dlamini.
On 4 June 1990 Phakathi and Dlamini were arraigned as accused Nos 1 and 2
respectively in the Circuit Local Division for Zululand
District sitting at
Mtunzini, on a charge of murdering Mkhize on 3 June 1987. HUGO J and two
assessors comprised the court. Each
of the accused pleaded not guilty and
confirmed a statement which was handed in by counsel representing them. Phakati
said that on
the date alleged he was staying with his brother in Alberton and
that he never went to the district of Mahlabatini. Dlamini said
that on the
alleged date he was in Durban and never went
4
to the district of Mahlabatini.
The main witness for the
State was Penelope. The account given in her evidence is that summarized above.
She also gave evidence about
her identification of the two accused at the
respective identification parades.
Another important State witness was Det
Sgt Mahaye of the Kwa Zulu police who was the investigating officer. He told how
he went to
Mkhize's kraal on 3 June 1987. He found his body lying under the bed.
He collected a number of cartridge cases which he found scattered
on the bed and
on the floor, and some spent bullets. He took these to Capt Lubbe of the
Ballistics Unit in Pretoria on 11 September
1987.
Arising out of an interrogation of one Ntombela regarding the death of his
wife, Const Doris Ntombela, Dlamini was summoned to the
police station at
Mahlabatini. He was questioned about a firearm. At first he denied knowledge of
such a thing and denied knowing
5
Ntombela. Later he changed his story. He admitted knowing
Ntombela and asked the police to go with him to his home to fetch the firearm.
In the yard he dug out of the ground a Beretta 7,65 pistol (exh 1). On 2
February 1989, Mahaye took exh 1, and also an empty shell
found at the place
where Ntombela's wife had been killed, to Capt Lubbe. The ballistics report was
put in by consent. It emerged
from the report that some of the shells handed to
Lubbe in September 1987 had been fired from exh 1, as had the shell delivered to
him on 2 February 1989.
Each of the accused testified in his own defence. It is unnecessary to refer
to the evidence of Phakathi, who was acquitted by the
trial court.
Dlamini said that on 3 June 1987 he was at his father's house at Umlazi,
Durban, and he was not at Mahlabatini. He gave an explanation
of his possession
of exh 1 in February 1989. He said that Ntombela had arrived at his place one
night, and, handing him a parcel
in a plastic
6
packet, asked him to keep it, saying that he would return for
it shortly. Dlamini did not inspect the parcel until the following morning.
When
he then saw what it contained, he threw it away. At the police station Ntombela
asked him in the presence of Sgt Mahaye "to
give him this thing", and Dlamini
went with the police to the place where he had thrown it away, and looked for
the parcel and found
it. Under cross-examination, Dlamini said that he knew
Ntombela only as someone who lived in the same area : he had not previously
spoken to him. Ntombela gave no explanation for leaving the firearm with him. It
did not occur to Dlamini to take the parcel to the
police.
In the judgment of the trial court, HUGO J said that Penelope, who was 15 at
the time of the trial, made an extremely good impression
: the members of the
court could find no fault with her evidence, either as to its contents or as to
her demeanor. But while they
accepted her honesty completely, caution was called
for in dealing
7
with her evidence identifying Phakathi : she was a single
witness - there was no other evidence connecting him with the crime; she
was in
June 1987, and still at the time of the trial, a fairly young person; and more
than a year elapsed between the murder and
the holding of the identification
parade. Phakathi was therefore found not guilty.
In the case of Dlamini, if the case against him had rested entirely on
Penelope's identification, the trial court would also have
found him not guilty.
But his possession of exh 1, which Capt Lubbe's ballistics report made it clear
was used in the assassination,
was decisive against Dlamini. The court found
that his account of his dealings with the firearm could not reasonably possibly
be
true. As to the evidence that he was in Durban throughout 1987, the court
regarded it as "an alibi painted in such broad strokes
that it just did not hold
water." It held that the sum of (i) Penelope's identification, (ii)
8
Dlamini's possession, not acceptably explained, of exh 1, and
(iii) the inadequacy of his own evidence, proved beyond a reasonable
doubt that
he killed Mhize. He was accordingly convicted as charged. No extenuating
circumstances were found and Dlamini was sentenced
to death.
He now appeals against the conviction and sentence.
In regard to the conviction the only point argued was that it was a possible
inference from his unsatisfactory explanation of his
possession of exh 1, that
he was afraid of being implicated in the murder of Nthombela's wife. That is a
speculative possibility,
but it leaves out of account the reality that Dlamini
was standing his trial on a charge of murdering, not Const Nthombela, but Mkize.
The important fact is that there was before the trial court no acceptable
explanation for his possession. In my view the trial court's
conclusion is
unassailable, and the appeal against the conviction must
9
fail.
In regard to the sentence, this court has the duty
under the regime introduced by the Criminal Law Amendment Act 107 of 1990 to
make
findings as to the presence of mitigating and aggravating factors, and then
in the light of such findings to decide whether in all
the circumstances of the
case the sentence of death is the proper sentence.
The following are mitigating factors :
1. Dlamini was born in 1967, and was thus hardly out of his teens when the
murder was committed.
2. He grew up in a reserve in Zululand, and reached Std IV at school. He was
apparently a cattle herd and had otherwise been
unemployed.
3.
He
has no previous convictions.
The aggravating factors
are that this was a cold-blooded, planned execution; two assassins invaded
Mkhize's home, and fired repeatedly
into him as he lay defenceless on his bed,
and then departed, leaving his body
10
riddled with bullets.
Counsel for the State argued that the
aggravating factors so outweigh the mitigating factors that the case is one in
which the death
sentence is imperatively called for.
I would agree entirely
if it were not for Dlamini's age. In a civilized State there is a natural
reluctance to impose the death sentence
on teenagers or those who are just
reaching the threshold of manhood. (See
S v Dlamini
1992(1) SA 18 (A) at
31). Such persons may be easily influenced by others or may find it hard to
resist the temptation of easy gains;
they are likely to lack the experience
necessary for sound judgment; and their moral training may be incomplete or
insufficient.
Perhaps most important, because they are unlikely to have become
hardened in the ways of crime, they may still be amenable to reform
by
discipline and training.
Heinous though the crime was, I am not
11
persuaded that the sentence of death is the proper sentence in
this case, and I consider that a long term of imprisonment would be
an
appropriate punishment.
The appeal against the conviction is dismissed. The appeal against sentence
succeeds. The sentence of death is set aside and there
is substituted therefor a
sentence of imprisonment for 20 years.
H C NICHOLAS A J A.