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1992
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[1992] ZASCA 230
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S v Ngcobo (69/92) [1992] ZASCA 230 (27 November 1992)
1.
Case No 69/92 /MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between
MATTHEWS KUKU SIYANDA NGCOBO
Appellant
and
THE STATE
Respondent
CORAM:
VIVIER JA et VAN COLLER,
KRIEGLER AJJA.
HEARD:
13 November 1992.
DELIVERED:
27 November 1992.
JUDGMENT
VIVIER JA./
2.
VIVIER JA:-
The appellant was convicted in the Durban and Coast
Local Division by BOOYSEN J and two assessors on one count each of murder,
robbery
with aggravating circumstances and housebreaking with intent to steal
and attempted theft. On the murder count he was sentenced to
death. On the
robbery count he was sentenced to twenty years' imprisonment and on the
housebreaking count to five years' imprisonment,
which sentences were ordered to
run concurrently. The appeal is against the death sentence only. The appellant
was initially charged
with two others, to whom I shall refer as accused Nos 1
and 2 respectively, but at the commencement of the trial a separation of
trials
was ordered and the trial of accused No 1 was separated from the trial of the
remaining accused. At his trial with the appellant
accused No 2 was found
3.
not guilty on the murder count and guilty on the remaining two counts.
The
deceased was the 42 year old Pauline Susan Speed who lived with her husband
Kevin Frederick Speed and their two young children
in a house at No 7, Maryland
Avenue, Durban North. The three accused arrived at the house shortly before nine
o'clock on Monday morning
26 November 1990, intending to break into the house
while the occupants were away. Mr Speed used to leave the house early on
weekdays
in order to take the children to school and the deceased used to attend
early morning exercise classes. Accused No 2 had been employed
by them as a
gardener for a number of years and he knew their routines. It was he who had
suggested to the other accused that they
break into the house that Monday
morning. Although their plan was to break into the house in the absence
4.
of the occupants, the three accused had considered the possibility that the
deceased might return to the house unexpectedly while
the burglary was in
progress and for that reason the appellant had armed himself with a knife and
they had taken with them a pair
of handcuffs with which they intended to subdue
the deceased preparatory to removing the stolen goods in her car.
The appellant and accused No 1 gained entry to the premises by climbing over
the boundary wall while accused No 2, who was afraid
of being recognised, waited
elsewhere. The deceased arrived shortly afterwards and parked her car in the
garage. The appellant and
accused No 1 stood waiting outside the side door of
the garage, and when she opened the door from the inside they rushed into the
garage and attacked her. She started screaming and put up fierce resistance. The
appellant tried to strangle her and
5.
accused No 1 hit her several times over the head with a brick which he had
picked up from the garage floor. The deceased weakened
but continued to struggle
and the appellant then produced his knife and stabbed her no fewer than ten
times in the face, neck, chest
and head. None of the stab wounds, however,
caused any serious injury. At some stage of the struggle the attackers managed
to put
the handcuffs on the deceased's wrists but it is not clear whether that
was done before or after she was stabbed. Eventually the
deceased collapsed and
the appellant removed her wrist-watch, which he kept. He took the key of the
front door of the house from
the deceased's handbag and opened the front door.
The alarm was activated and the attackers fled. The deceased was still alive
when
her neighbour came to her assistance a few minutes later, but she died
shortly afterwards. The appellant was
6.
arrested on 3 January 1991.
According to Prof Botha, the pathologist who
conducted the post-mortem examination on the body of the deceased, the cause of
death
was either multip fractures of the skull resulting from blows with a blunt
object such as a brick, or a fractured hyoid bone and
associated injuries which,
he said, were typical consequences of pressure having been applied to the neck
by a pincer movement of
the hand around the throat.
The trial Court found that it had not been established that the appellant
had, prior to the commencement of the attack on the deceased,
formed either a
direct or indirect intention to kill her. I agree. On the available evidence it
must be accepted that the three accused
intended to commit burglary and theft
and that, should the deceased unexpectedly return
7.
home, to subdue but not to kill her. The last-mentioned inference can, I
think, reasonably be drawn from the fact that the three accused
took with them a
pair of handcuffs and the fact that accused No 2 did not enter the premises with
the other two accused for fear
of being recognised by the deceased.
The trial Court went on to find that the appellant had formed the direct
intent to kill by the time he commenced stabbing the deceased.
While it is true
that the stab wounds were, with one exception, all delivered to vital parts of
the deceased's body, the nature of
the wounds raises a doubt, in my view, as to
whether the appellant had the direct intention to kill her. The stab wounds
would all
appear to be superficial wounds, three of them being puncture wounds
of 6mm, 2mm and 7mm in length respectively. Although some of
them caused severe
bleeding, none caused any
8.
serious injury. It would further seem that they were all inflicted with the
minimum of force. The doubt as to whether the appellant
had dolus directus is
strengthened if regard is had to his statement in terms of sec 112 of Act 51 of
1977 in which he admitted fully
to his participation in the commission of the
crimes. He said there that he had stabbed the deceased in order to scare her.
Neither
the appellant nor accused No 2 testified at the trial and the
appellant's version of the events contained in the said statement was,
in the
event,substantially in accordance with the facts found by the trial Court. In my
view there is insufficient reason to reject
his version with regard to his
intention. The trial Court should accordingly have found that there was
insufficient proof of an intent
to kill in the sense of dolus directus, but that
the appellant clearly acted with intent to kill in the form
9.
of dolus eventualis, both when he strangled the deceased and when he stabbed
her.
The absence of a direct intent to kill constitutes a mitigating factor in the
circumstances of the present case. Another mitigating
factor is the fact that
there was no premeditation. When the appellant arrived at the deceased's house
there had been no contemplation
that she might be killed. She was killed in the
heat of the moment during a short, violent struggle to overpower her. The
appellant
was 23 or 24 years old when the crimes were committed and had one
previous conviction for housebreaking with intent to steal and
theft, committed
when he was 16 years old and for which he was sentenced to three cuts with a
light cane. In my view it cannot be
said that imprisonment is unlikely to have a
rehabilitating effect on him.
10.
The aggravating factors are clear. The deceased was a
defenceless woman who was killed in her own home with greed as the motive. The
attackers were armed and could have overpowered their victim without killing
her. Instead she was attacked in a brutal and vicious
manner.
The present must be regarded as very much a borderline case. The
circumstances of the offence -the killing of a defenceless woman
in her own home
by armed intruders with greed as the motive - and the frequency with which
murders of this kind are committed, are
most serious. In recent decisions of
this Court the retributive and deterrent objects of punishment in cases of this
kind have been
emphasised. See S v Tloome 1992(2) SACR 30 (A) at 39h. There are,
however, the mitigating factors to which I have referred. According
these their
due weight, I am not
11 .
satisfied that this is a case where the death sentence is imperatively called
for. See S v Mabizela and Another 1991(2) SACR 129 (A)
at 134g. Accordingly it
cannot be said that the death sentence is the only proper sentence. In my view a
sentence of 20 years' imprisonment
should be substituted for the death sentence
on the murder count, to run concurrently with the sentences imposed in respect
of the
other counts.
In the result the appeal is upheld. The death sentence
on the murder count is set aside and there is substituted a sentence of 20
years' Imprisonment. It is ordered that this sentence is to run concurrently
with the sentences imposed in respect of the other two
counts.
W. VIVIER JA.
VAN COLLER AJA)
Concur. KRIEGLER AJA)