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1992
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[1992] ZASCA 198
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S v Lushozi and Another (22/92) [1992] ZASCA 198 (20 November 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MBONGANI ERIC LUSHOZI
First Appellant
NTAKA KHANYILE
Second Appellant
AND
THE STATE
Respondent
Coram
: VAN HEERDEN, EKSTEEN et NIENABER, JJA
Heard
: 6 November
1992
Delivered
: 20 November 1992
JUDGMENT
EKSTEEN
, JA :
The two appellants were indicted together with
another person, on ten counts of murder, one of attempted murder and three of
arson.
Both appellants were convicted on all counts. Their co-accused was
acquitted on all counts. Both the appellants were sentenced to
death on each of
the ten counts of murder; to 12 years imprisonment on the counts of attempted
murder; and to six years imprisonment
on each of the three counts of arson.
There was no application for leave to appeal against any of the convictions or
sentences. The
present appeal, however, is brought against both the convictions
and sentences in respect
...../ 2
2
of the ten counts of murder for which they had been sentenced
to death, in terms of the provisions of
section 316
(A)(i) of the
Criminal
Procedure Act 57 of 1977
.
From the evidence led at the trial it appears that during March 1990 the
kraal of the second appellant was attacked and burnt to the
ground by unknown
attackers. He suffered considerable loss as a result. A Datsun van, a 135
Ferguson tractor, and "a machine which
is used to grind maize" were completely
destroyed. Five hectares of sugar cane was also burnt as well as a wattle
plantation. The
matter was reported to the police but they were unable to bring
anyone to book.
The appellants' kraal was not the only
...../ 3
3
one to have been burnt and destroyed at this time. His elder brother's kraal
suffered the same fate. There seems to have been a feud
between members of the
African National Congress ("ANC") or United Democratic Front ("UDP") on the one
hand and members of Inkatha
on the other. Members of one faction would attack
and burn the kraal of a member of the opposing faction; who in turn would
retaliate
by attacking and burning their kraals.
After the attack on second appellant's kraal he took refuge at the kraal of
one Psychology Ndlovu, a member of the Kwa-Zulu Legislative
Assembly and a
supporter of Inkatha. Second appellant was also a member of that party.
...../ 4
4
During April 1990 he moved to a place called Trust Feed.
First appellant
was a special constable in the Kwa-Zulu Police Force. During January 1990 he was
posted to the kraal of Psychology
Ndlovu to act as his personal bodyguard. He
was still on duty at the kraal on the fateful night of 6 October 1990.
Psychology Ndlovu's
kraal seems at that time to have been a place of refuge for
Inkatha supporters who had been attacked or felt themselves threatened
by
members of the ANC. One such refugee was Jabu-lani Zuma. He gave evidence for
the State at the trial. The Judge a
quo
described him as "an excellent
witness" and went on to say that "the Court
...... / 5
5 had no hesitation in accepting him as a truthful and reliable
witness".
Zuma told the Court that the second appellant had told him that he
suspected "the boys" from Khanyile's kraal as being responsible
for burning his
kraal down.
What happened on the night of 6 October 1990 appears from the evidence of
Zuma and from that of other witnesses. On that night at
about 8 o'clock second
appellant arrived at Psychology's kraal in his blue van. He was accompanied by
some eight other men. They
were armed. Two of them carried AK 47 rifles and the
others had shot-guns. Second appellant called the young men living at
Psychology's
kraal together and they all repaired to "the round house" of the
kraal. Zuma was present.
.... / 6
6
at this gathering and so was the first appellant. Second
appellant encouraged them to "go and attack at Khanyile's place" and told
them
that he "was going to pay a revenge to those people who had burnt his kraal".
The meeting lasted for more than an hour and eventually
a group of some 19
strong left on their expedition of reprisal. Zuma says he saw first appellant
exchange his shotgun for an AK 47
rifle. Second appellant was also armed with an
AK 47 rifle and so was a third man. The others in the party either carried
shotguns
or assegaais. Zuma was also asked to accompany them but excused himself
on the pretext that he was inebriated. In fact, he says,
he was just too lazy to
go along and did not relish
...../ 7
7
the prospect of killing people, which he realized only too well was the
object of the operation.
The group - or the "impi" as it was referred to at
the trial - approached the kraal of Johannes Khanyile at about one o'clock in
the
morning when all the inmates were asleep. The previous night they had
undergone a cleansing ceremony in preparation for the obsequies
for a deceased
relative the next day. This probably accounts for the fact that six of the men
slept together in one of the huts of
the kraal.
The intruders burst into the main hut where the kraal-head's wife was
sleeping, and demanded to know where the men - the "amaqabane"
.... / 8
8
i.e. UDE or ANC members - were. When she told them that the men were not
there they slapped her in the face and demanded money. She
gave them R200. They
also took some liquor and a radio/casette player. They then went to the other
huts where they found the men.
Six of the men were shot dead. A seventh was so
badly wounded that he died in hospital. Another one also sustained several
serious
wounds but survived to tell the tale. The huts at Khanyile's kraal were
set on fire and burnt down.
The "impi" then proceeded to the kraal of Mathombi Hlope where a woman was
shot and killed and two huts burnt down. The kraal of Frieda
...../ 9
9
Hlope was the next to be attacked. Here a man and his seven-year old son were
shot dead and three huts set on fire.
It was then about 3 am and the "impi"
returned to the kraal of Psychology Ndlovu. Zuma, who had heard the sound of
shooting while
they were away, saw them return. The second appellant appeared to
be in a jovial mood and remarked that if anyone were to speak about
the events
of that night, he would "open his stomach" with an AK 47 rifle. The first
appellant was carrying a radio/ casette player.
Both appellants told Zuma that
they had destroyed Khanyile's kraal and that they had also "hit" some other
kraals nearby.
..... / 10
10
After a short while the second appellant left in his blue van, together with
the people who had come with him the previous evening.
On 9 October - i.e.
some two days after the raid - an AK 47 rifle was found in a room occupied by
first appellant under a bed on which
he slept. Ballistic evidence showed that
this rifle had been used in the attack on Khanyile's kraal on the night of 6-7
October.
In a formal admission recorded in terms of
section 220
of Act 31 of
1977 the first appellant admitted as much,viz that the rifle had been found
under a bed in the room occupied by him,
and that that rifle had been used in
the attack on the Khanyile
...../ 11
11
kraal. In his evidence, however, he denied all knowledge of
the fact that the rifle had been hidden under his bed.
Both first and second appellants denied that they had taken part in the raid.
Second appellant sought to set up an alibi. The Court
however accepted Zuma's
evidence and rejected that of both appellants. On appeal before us this finding
was not seriously contensted.
It is in any event questionable whether that
finding could be challenged as long as the convictions of attempted murder and
arson
stood. Be that as it may, on the premise that Zuma's evidence was properly
accepted it was conceded that the members of the raiding
party acted in terms of
a prior agreement or understanding to attack the three kraals and to kill people
in that attack; that each
member of the
group made common cause, and shared a common purpose
....../ 12
12
with the rest, to commit the offences and associated themselves with the
conduct of the group; and that both appellants were members
of the group. Their
convictions were therefore fully justified.
The learned trial Judge rightly regarded the offences as being of a most
serious nature. The attacks, he indicated, were pre-meditated
and brutal. They
were made under cover of darkness on the unsuspecting inmates of the kraals who
were all fast asleep. Ten people
were killed, and the killers clearly had the
direct intention to kill. The actions of the first appellant the learned Judge
regarded
as particularly reprehensible
...... / 13
13
in view of the fact that he was a policeman posted to the kraal of Psychology
Ndlovu and charged with maintaining law and order. These
are all aggravating
factors and the learned Judge was fully justified in so regarding them.
The heinousness of the offences is, however, tempered to a certain extent
when one has regard to the mitigating factors which appear
from the evidence. In
the first place we must have regard to the general unrest prevailing in the area
at the time. The cause of
this unrest lay in the political differences between
the ANC and the Inkhata factions. They seem to have been intolerant of each
other and this intolerance found expression
...../ 14
14
in the excesses committed by the one against the other. And then the
inevitable reprisals would follow. In such a politically charged
atmosphere
emotions would be expected to run high. It was in such a climate that the second
appellant was made to feel the cruel
blows of his political opponents' spite. He
was a man of 51 who had led a blameless life. Now, at a stroke, his home and
much of
his worldly goods were laid in ruin. He and his family - his wife and
six minor children -were compelled to seek temporary refuge
at the kraal of
Psychology Ndlovu, before setting about building a new life at Trust Feed. The
perceived injustice of his predicament
rankled,
....../ 15
15
and when rumours reached his ears that the men of J.K. Khanyile's kraal had
been responsible, his mind became set on vengeance. This
came to fruition on the
might of 6 October when he, and some eight of his supporters, arrived at
Ndlovu's kraal -an Inkhata stronghold.
There he gathered more willing
sympathisers, and the shameful slaughter followed.
The second appellant, as I have indicated was a man of 51 without any
previous convictions. This in itself tends to indicate that
he was not a man
given to violence, nor one with a criminal bent. (
S. v. Senonohi
[1990] ZASCA 93
;
1990 (4)
SA 727
(A) at 733 I-J;
S. V. Ramba
1990 (2) SACR 334
(A) at 342 h.)
....../ 16
16
He seems to have had a steady work record. He bad been employed by Escom at
Wartburg as a labourer for ten years before being compelled
to leave because of
ill health. For the six years immediately preceding these offences he had been
self-employed in buying and selling
the "ncema" grass which is used in making
mats. The success of this venture is reflected in his income of some R1500 per
month. Despite
being illiterate and without any schooling he was nevertheless
able to support his not in-considerable family by dint of steady and
apparently
dedicated work.
First appellant was a man of 26 years of age. He was a constable in the
Kwa-Zulu Police
....../ 17
17
Force. He joined the Kwa-Zulu police Force in 1989. and from
the beginning of 1990 was posted to the kraal of Psychology Ndlovu as
his
personal body-guard. Ndlovu was a member of the Legislative Assembly and an
influential member of Inkhata. First appellant lived
in awe of him. The
evi-dence does not disclose what part, if any, Ndlovu played in the 6 October
raid nor whether he had any personal
knowledge of it, nor what influence if any
he brought to bear on first appellant. He was not called as a witness despite
the fact
that, on first appellant's evidence, he seems to have been at his kraal
that night. This does seem to be a somewhat strange lacuna
in view of
....../ 18
18
the fact that his kraal was the base from which the raiders set out and to
which they subsequently returned.
First appellant also has no previous convictions, and cannot therefore be
seen as a man normally given to violence. In fact, in the
light of all these
considerations, both appellants appear, up to that stage at any rate, to have
been ordinary lawabiding members
of society - humble in their calling and
without any intellectual pretentions -caught up in the spiral of political
violence sweeping
the area in which they lived. Political issues are generally
charged with emotion, and emotion drives out reason (cf.
S. v. Masina
and
....../ 19
19
Others
1990 (4) SA 709
(A) and
S. v. Khanyile and
'
Others
1991 (1) SACR 567
(A)). The onus is on the State to negative,
beyond reasonable doubt, the existence of such mitigating factors as an accused
person
relies on (
S. v. Nkwanyana
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 744 A-C). The
factors I have mentioned have not been so negatived, and weighing them against
the aggravating circumstances,
as I am bound to do (sec 322(2A)(b) Act 51 of
1977) I cannot say that the death sentence is the only proper sentence in the
present
case. That however does not detract from the seriousness of the
offences. The intentional killing of a fellow human being is always
a serious
offence. The killing of ten
......./ 20
20
people in the present case, even though it may have been done in the emotion
engendered by political fervour, is and must always be
a most serious
transgression which strikes at the very roots of a free and ordered society. No
court of law can regard such offences
lightly.
The appeal against the convictions of both appellants on the counts of murder
is dismissed. The death sentences imposed in respect
of each of the ten counts
are set aside, and for them is substituted a sentence of 25 years imprisonment
in respect of each such
conviction. It is ordered that the sentences in respect
of these ten counts are to run concurrently, and
...../ 21
21
they will also run concurrently with the 30 years imprisonment
imposed in respect of the other counts of which the appellants were
convicted.
J.P.G. EKSTEEN, JA
VAN HEERDEN, JA )
concur NIENABER, JA )