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1992
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[1992] ZASCA 205
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S v Mbotshwa (358/91) [1992] ZASCA 205; [1993] 4 All SA 171 (A) (24 November 1992)
CASE NO 358/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ZENZILE MBOTSHWA Appellant
and
THE STATE Respondent
CORAM
: VAN HEERDEN, VIVIER et NIENABER JJA
DATE HEARD
: 19 NOVEMBER, 1992
DATE DELIVERED
: 24 NOVEMBER, 1992
2
JUDGMENT NIENABER JA:
The appellant was convicted of murder and, on 29 May
1991,
sentenced to death. He appeals against his
conviction, alternatively, his
sentence. The deceased, a
42 year old white man, was a miner. The appellant,
a 29
year old black man, worked under his supervision. During
the early
morning of 9 August 1990 they were part of a
working unit operating
underground at level 82 at the
President Steyn Gold Mine near Virginia in the
Orange
Free State. The deceased was killed. The cause of death
was stated
to be "hoof- en borskasbeserings met breuke
van die skedel, borsbeen en
ribbes met inwendige
kneusing en skeuring van die brein en die
hart".
According to the medical evidence considerable force was
required
to inflict these injuries. The appellant
admitted standing next to the deceased when he died.
Three eyewitnesses, between them, testified that he hit
3
the deceased over the head with a 3.6 kg hammer. The appellant denied it. His
version was that the deceased was fatally injured by
a sudden rock fall. The
court a quo (Cillie J and two assessors) disbelieved him. For good reason. The
defence is fanciful. The evidence
against the appellant is overwhelming on both
counts -that he killed the deceased and that no rock fall occurred. I say so for
the
reasons which follow:
The three eyewitnesses, all of them co-workers of the appellant, all
convincing witnesses, testified that the appellant, without prior
warning and
for no apparent rhyme or reason, launched a vicious attack on the deceased with
the hammer. He floored the deceased with
two blows to the head and continued the
attack after he collapsed. All of them were adamant that no rock fall occurred.
No criticism
of any substance could be levelled against any of them. No reason
was suggested during argument why they should have conspired to
4
incriminate the appellant falsely in a crime as serious as murder when, on
the appellant's version, there was a perfectly innocent
explanation for the
death of the deceased. All of them testified that the appellant boasted that he
had killed "die hond van 'n boer".
The appellant thereupon suggested to his
colleagues who had gathered at the scene that they should drop the body of the
deceased
down the "tip", i.e. the shute through which excavated rock is
conveyed, and when they baulked at that suggestion, that they should
loosen some
rock above the deceased's body and simulate a rock fall. Once again they
refused. One of the witnesses, Themba Fanyani,
saw the appellant washing the
hammer with which he had struck the deceased and dropping it behind a piece of
equipment at the very
place where a hammer was later discovered. Traces of blood
of a primate were afterwards found on the head of that hammer. The first
white
man to arrive on the scene was Botha, a shift boss. He questioned the
5
appellant. The appellant tendered the explanation that the deceased had been
killed in a rock fall. Botha did not believe him. He
was an experienced miner
who had witnessed many genuine mining accidents in the past and this did not
appear to him to be one. That
was also the conclusion reached by Roux, a mine
officer in charge of safety, who hurried to the scene when the incident was
reported
to the authorities. The deceased's body was not covered in rock and
stone nor were there particles of dust and stone in the wounds
of the deceased.
This accords with the observation of the pathologist, Prof. Olivier, who
performed the post-mortem examination on
the body of the deceased. He detected
no particles of dust in the wounds, airways or lungs of the deceased, which one
would have
expected to find if, as the appellant maintained, there was a sudden
explosion followed by a cloud of dust.
Mr Jardine and Mr Minney, the first a staff
6
geologist, the other a rock mechanic, were sent down the mine at the instance
of the mine management some six days after the event
to investigate its cause,
more particularly, whether a rockfall had occurred, as was suggested by the
appellant. Each prepared a
sketch plan and a report and testified at the trial.
Their conclusions were identical and firm: there were no signs of a freak rock
fall and none had occurred. The inference is clear: if there had been no rock
fall the appellant was lying and the eyewitnesses were
telling the truth when
they testified that the appellant killed the deceased.
The defence was granted a lengthy adjournment in order to search for an
expert to counter their evidence. One was found. He was a
Mr Martinson, a former
lecturer at the University of the Witwatersrand and a regular consultant and
adviser to the Union of Mineworkers
and other trade unions. He had not visited
the scene. Nor
7
had he taken the trouble to read the transcript of the evidence of Jardine
and Minney. The gist of his evidence was that their reports
were too
unscientific and superficial to justify the conclusion that a rock fall had not
occurred. But he was unable to meet the
main points made by one or the other of
them, namely that, contrary to the appellant's explanation, there were no signs
of either
a fresh splintering off of rock from the hanging wall, nor of a
collection of fractured rock or a disturbance on the floor of the
gully,
indicating a recent fall. Martinson's criticism consisted in the main of
generalities and inferences which he sought to draw
from statistics. As the
cross-examination of this witness progressed it became evident that he had
evolved his own theory, based
on the photographs of the body of the deceased,
that the deceased had most likely been killed as a result of blasting operations
which he assumed had occurred during the afternoon of 9 August
8
1990. In actual fact the incident occurred during the course of the morning,
well before 10 a.m., when no blasting had taken place.
At the end of his
evidence it was difficult to escape the impression that Martinson had become an
apologist for the appellant.
Finally, there is the evidence of the appellant himself. His showing in the
witness box was distinctly unimpressive and his version
was rightly rejected as
false by the court a quo. There was only one feasible explanation for the death
of the deceased: that he
was murdered by the appellant.
Faced with these insurmountable deficiences in the defence case, counsel for
the appellant, in his heads of argument, sought to convert
a straightforward
criminal appeal into a complex review, founded, in the main, on the failure of
the court a quo to insist that the
inspector of mines, who visited the scene of
the killing on the day it happened, testify before it. The attempt
9
does not merit serious consideration. Whether the inspector of mines
conducted an enquiry, and if so what his findings were, are matters
of
indifference to the court trying the appellant on criminal charges. Such an
enquiry was not a statutory precondition to the criminal
proceedings. The onus
to prove the complicity of the appellant in the death of the deceased rested on
the prosecution. If it could
prove its case, as it sought to do, without the
benefit of the opinion of the inspector of mines, that was its prerogative. Nor
was
the court obliged to call him. Indeed, the suggestion that the court should
have done so falls strangely from counsel for the appellant
who, at the trial,
did not request the court to consider calling him. In any event the evidence of
such a person cannot be adjudged
to be essential to the just decision of a case
where the nature of the case is so conclusive against the appellant that the
opinion
of the mining inspector could not conceivably have
10
altered it. To fail to call the inspector of mines in those circumstances
cannot constitute an irregularity (cf S v B and Another
1980 (2) SA 946
(A) at
953A-D). I do not propose to say more about this and the several other
side-issues, in the form of special entries and the
like, which counsel
introduced in his heads of argument, for at the hearing before us he did not
persist in these submissions. Wisely
so.
About the correctness of the conviction of the appellant there can
accordingly be no doubt. His appeal against it must fail.
That leaves the question of sentence. Doubtless the most puzzling thing about
this crime is why it was committed. Nothing in the state
case suggested any
ill-feeling or friction between the appellant and the deceased. There was no
history of tension in the team itself.
Nor did anything happen on that
particular day which, as far as the evidence goes,
11
could have provoked the attack. Because the appellant persisted in his
defence that the deceased's death was accidental, he did not
take the court into
his confidence about his motive for the murder - whether the deceased somehow
annoyed him that morning when no
one else was about; whether he was instructed
or influenced by somebody else to attack the deceased; or whether the attack was
linked
to the general unrest conditions and the hostility between black mine
workers and management which prevailed in the area since May
of that year, and
which erupted the night before in acts of violence which the appellant happened
to witness. One can speculate about
these or other possible causes for the
assault on the deceased. But in the end, one simply does not know. What one does
know, judging
from the evidence of some of his co-workers, is that the appellant
was in a state of high dudgeon immediately after he had killed
the deceased. The
words he uttered "ek het die hond van 'n
12
boer doodgemaak" do carry a racial connotation and suggest that the deceased
might have been killed because he was white or perhaps
because he belonged to
the ruling class associated with management. This is what the court a quo found:
that the deceased was killed
because of the colour of his skin. And on that
finding it considered it to be, rightly so, a highly aggravating factor. Indeed,
it
was mainly on that ground - that the interests of society, in the times in
which we live, demand the severest reaction from the courts
in order to stamp
out killings across the colour bar, be it black on white or white on black -
that the court a quo felt that the
death sentence was the only appropriate one.
I have no real quarrel with the sentiments expressed but I am unsure whether
they are
apposite. The onus now rests on the state to prove not only the absence
of mitigating factors but also the existence of aggravating
ones, and this must
be done not on a balance of probabilities but beyond a
13
reasonable doubt. On the evidence before the court I am not convinced,
applying the more stringent test, that one can find, based
on the appellant's
utterances and actions after the event, that racial hatred was necessarily the
cause for the killing. In my view
the motive for the murder has not been
established; consequently the issue of sentence must be approached on the basis
that motive
must be discounted as an aggravating factor.
But there were several other aggravating factors, properly proved. It was not
an impulsive act, committed on the spur of the moment.
The appellant
deliberately set out to find a hammer with which to attack the deceased. There
can be no doubt about his direct intent
to kill the deceased: of that the nature
of the deceased's wounds bear witness. It was a brutal and cowardly attack,
launched from
behind, without prior warning, executed with great force, by the
appellant on an unarmed and unsuspecting man going about his ordinary
14
business. The arrogance with which it was committed, in full view of his
co-workers, and which the appellant displayed afterwards,
boasting about his
deed and taking it for granted that his co-workers would aid and abet him, is
also, in my opinion, an aggravating
factor. Nor did the appellant express any
remorse or regret for what he had done. On the contrary, he persisted in his
fabricated
account that the appellant was accidentally killed.
On the other hand there is the consideration, an important one, that the
appellant reached the age of 29 without any previous convictions
and that he
regularly contributed to the maintenance of his family in the homelands. On the
face of it he seems, therefore, to have
been a responsible member of society,
and worthy and capable of rehabilitation.
All things considered, especially the absence of motive as an aggravating
factor, the present case does
15
not strike me as being one where the death sentence is the only feasible
alternative. But the crime for which the appellant was convicted
remains most
serious and merits a most serious punishment. The following order is made:
(1) The appeal against conviction is dismissed.
(2)
The appeal against sentence
succeeds to the extent that the death sentence imposed is set
aside.
(3)
In its stead the appellant is
sentenced to 20 years imprisonment.
(4) In terms of
section 282
of the
Criminal
Procedure Act, No. 51 of 1977
, the aforesaid
sentence is
antedated to 29 May 1991.
P M Nienaber Judge of Appeal
Van Heerden JA]
] Concur Vivier JA ]