S v Ntsangana (288/95) [1997] ZASCA 91 (11 November 1997)

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[1997] ZASCA 91
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S v Ntsangana (288/95) [1997] ZASCA 91 (11 November 1997)

SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No 288/95
In the matter between
NZIMENI BEN NTSANGANA
APPELLANT
and
THE STATE
RESPONDENT
Coram: Vivier, Marais et Zulman
JJA.
Heard:
7 November 1997
Delivered: 11 November 1997
JUDGMENT
2
VIVIER J
A:
The
appellant ("accused No 2") appeared with one other
("accused No 1") before Jennett J and assessors in the
Eastern
Cape Division
upon charges of housebreaking with intent to rob and
murder (count 1), robbery with aggravating circumstances (count
2), murder (count 3), rape (count 4), indecent assault (count 5),
housebreaking with intent to steal (count 6), theft (count 7)
and
the unlawful possession of three firearms and a quantity of
ammunition (counts 8, 9, 10 and 11). Accused No 1 was found
guilty on counts 2, 3, 7, 8 and 10. On counts 2 and 7 he was
sentenced to 10 years' imprisonment, on count 3 to 8 years'
imprisonment and on counts 8 and 10 to 12 months' imprisonment
on
each count. Certain of the sentences were ordered to run
concurrently so that he was effectively sentenced to 16 years'
imprisonment. Accused No 2 was convicted on counts 2, 3, 5,
3
7,
9, 10 and 11. On the murder count he was sentenced to death. On
counts 2 and 7, which were taken together for the purpose of
sentence, he was
sentenced to 12 years' imprisonment, on count
5
to 6 years' imprisonment, on counts 9 and 10 to 12 months'
imprisonment on each count and on count 11 to 3 months'
imprisonment. In terms of sec 316 A(l) of Act 51 of 1977
accused
No 2 appeals to this Court against his conviction and
sentence
on count 3. There is no appeal against his convictions
and
sentences on the other counts.
The
deceased was the 83 year old Mrs M.M.S.
who
lived alone on the farm S… near Thomhill in the district
of
Hankey. During the early evening of Sunday 5 July 1992 her
house
was broken into, she was severely assaulted and killed and
a
large quantity of her possessions stolen from the house. Her
garage
was then broken into and her Opel Ascona car removed.
4
The
stolen goods were loaded into the car and conveyed to Port
Elizabeth
where it was stored at various addresses. The car was
later
found abandoned. The stolen property consisted of no fewer
than
225 items including clothing and household goods, a Mauser
rifle
(exhibit 1) a ,45 Bulldog revolver (exhibit 3), 12 rounds of
ammunition for it
(exhibit 5), a ,32 revolver (exhibit 4) and a Citizen Quartz lady's
wrist-watch (exhibit 9). When the police
arrived
at the deceased's house later that evening they found the
partly
undressed deceased lying on the floor of one of the
bedrooms.
She was tied both by her hands and her feet and was
already
dead. The whole house had been ransacked and was in
total
disorder. Entry to the house had apparently been gained
through
the lounge window after three large stones or pieces of
rock,
later found in the lounge and hallway, had been thrown
through
the window.
5
An
autopsy on the deceased's body revealed the existence of multiple
bruises, abrasions and lacerations over her face, head,
chest and other parts of the body. Nine of her ribs were fractured
and one lung and the spleen were torn. Her nose was broken.
The horn of the thyroid cartilage was fractured with bleeding into
the deep tissues. Fingernail abrasions on the right side of
the
neck and bruising of the left side of the neck indicated that she had
been throttled. There was evidence of lacerations to the vagina,
anus and rectum which penetrated the abdominal cavity and the
retroperitoneal space causing extensive bleeding and tearing of
tissues. According to the doctor performing the examination the
causes of death were severe blunt force to the body as well as
throttling. He said that there had been some form of separate
penetration of the vagina and rectum while the deceased was alive.
The depth
of the penetration into the abdominal cavity indicated the
6
introduction
of a foreign body rather than a male penis.
The
State evidence against the two accused may be briefly
summarised.
Mr Wellington Maneli ("Maneli") said that his
wife
is related to accused No 2 and that he has known accused No
1
for a long time. On Sunday 5 July 1992 the two accused
arrived
at his house in Kwazakele, Port Elizabeth at about eight
o'clock
in the evening in a vehicle which was loaded with clothes
and
other household articles. Among the goods were a rifle and
two
handguns similar to exhibits 1, 3 and 4. They had previously
asked
him whether he would store some clothes for accused No 2
who
intended moving into a shack near where Maneli lived.
Accused
No 2 showed him a document which he said authorised his
possession
of the three firearms. After carrying the goods into his
house
the two accused left, taking one of the handguns with them
saying
it needed repairs. A few days later the police arrived at his
7
house
with the two accused and he handed exhibit 1 and the other
stolen
goods to the police.
Silvia
Wakula who lives just across the road from accused No
1 testified that on
Monday morning 6 July 1992 accused No 1
brought
items of clothing to her which he asked her to keep for
him.
Three days later the police arrived and took the clothes
away.
On
Monday 6 July 1992 the deceased's Opel Ascona car was
found
abandoned in Kwazakela. Accused No 1's fingerprints were
found
in the car. In the early hours of Wednesday 8 July 1992
accused
No 1 was arrested in his house and a large number of the
stolen
goods, including exhibit 4, recovered from his house.
Later
the same morning accused No 2 was arrested when he arrived
at
accused No 1's house. Shortly afterwards the investigating
officer,
Sergeant Campbell, turned up at accused No l's house.
8
He
testified that he found accused No 2 wearing the deceased's
wrist-watch (exhibit 9).
From there the two accused took the
police
to the houses of Maneli and Wakule where the bulk of the
stolen
goods were recovered. Later the same morning accused No
2
took Sergeant Campbell to the house of a Mr Makini in Soweto,
Port
Elizabeth. Campbell testified that Makini was not at home but that
accused No 2 took possession of a red plastic bag (exhibit
8)
containing more items
stolen from the deceased, including a Penn
fishing
reel, ladies' clothing and crockery. Accused No 2 also
searched
for a firearm but could not find it and later that day
Makini
brought exhibits 3 and 5 to the police station.
Accused
No 1 testified that on the Sunday morning in
question
accused No 2 arrived at his home and suggested that they
carry
out a robbery at the deceased's farm. They took a taxi and
walked
part of the way to the farm. At the farm they threw a
9
stone
through the window of the lounge which struck the deceased
who
was sitting in the lounge. She fell down and after entering
the
house through the window he grabbed and held her while
accused
No 2 kicked her on her head and body. They tied her
hands
and feet and put her in one of the bedrooms. They collected
goods
from the house after which he broke into the garage and removed the
deceased's car. They loaded the stolen goods into
the
car. Accused No 2 then went back into the house and he heard
the
deceased crying. Accused No 2 remained in the house for
about
ten minutes before returning, carrying exhibit 1. The
deceased
was then quiet. They then left in the deceased's car.
They
left some of the stolen goods with the State witnesses Maneli
and
Wakule and some were taken to his own house. Among the
stolen
goods were exhibits 3, 4 and 5. Accused No 2 stayed with
him
that night. He knew nothing about the deceased's wrist-watch
10
until
after the arrest of accused No 2 when he saw it lying on the
floor
in his house. Accused No 1s defence, that he had
throughout
acted under duress from accused No 2, was rejected by
the
trial Court.
Accused
No 1s wife, Ellen Nkosana, testified in his defence
that
she arrived home on Monday evening 6 July 1992, after an
absence
of a few days. She found accused No 2 there and he told
her
that the previous day he and accused No 1 had been to a farm
where
an old lady lived alone and that when they left the farm she
was
cold, which she understood meant that they had left her dead.
He
did not tell her what happened on the farm. She said that later
that
Monday evening an argument ensued between the two accused over
accused No 2's claim that he was entitled to the firearms
because
he had found them in the safe. When she intervened
accused
No 1 slapped her in the face. She was present when
11
accused No
2 was arrested on the Wednesday morning. He was
wearing a wrist-watch at the time and when the police asked him whose
watch it was he replied that it belonged to his wife. The
police then took the watch from him. She had seen him wearing a watch
on the Monday night which his brother who was with him
then had said that he should give to her. (The implication being
that it was a lady's watch.)
Accused
No 2 put up an alibi defence. He testified that he went to accused No
1's house at about four o'clock on the Sunday
afternoon. Some time after that when he was about to go home
a white Mazda bakkie arrived at the house. The two occupants of
the Mazda, one of whom was a man called Andile, alighted,
entered
the house and spoke to accused No 1 who then asked
accused No 2 to look after his house while he accompanied the
other two to New Brighton. They drove off and only returned at
12
about
nine o'clock after he had already locked the doors and fallen
asleep.
Accused No 1 and the other two men started carrying
clothes
covered with blankets into the house and when they had
finished
the other two left. Accused No 1 then asked him to help
him
carry some of the clothes to Maneli's house in an Opel Ascona
car
which was parked outside accused No 1's house and which
accused
No 2 thought accused No 1 had hired. They loaded the vehicle and
drove to Maneli's house. Accused No 2 did not go
into
the house and it was accused No 1 and Maneli who carried the
clothes
into Maneli's house. He saw no firearms. Thereafter
accused
No 1 told him to go back to his, accused No 1's, house
while
he took the car somewhere else. He did as he was told and
after
accused No 1 had returned he went home.
Accused
No 2 testified further that on the Monday evening he
and
his brother were at accused No 1's house when the latter's wife
13
arrived
back after an absence of a few days. In the course of the
evening
there was an argument between accused No 1 and his wife
and
accused No 1 hit his wife. Accused No 2's brother
intervened
and accused No 1 tried to stab him. Accused No 1
again
hit his wife and when she fell he kicked her and said that he
would
kill her. Accused No 2 managed to calm him down and he
and his
brother then went home. There was no mention of a
watch
that evening. The next day he again visited accused No 1
who
then told him that he had two firearms. He said he had a
buyer
for one and he asked accused No 2 to keep the other one with him
overnight as he was afraid that his wife might find it and
use
it
to shoot him. Accused No 2 took exhibits 3 and 5 home with
him
and later that evening he gave it to Makini to keep for him.
Accused
No 2 denied that he had accepted any other stolen items
from
accused No 1 and denied that he had given the red plastic bag
14
(exhibit
8) to Sergeant Campbell. On the Wednesday morning he
again
went to accused No 1's house and was arrested upon his
arrival.
He denied all knowledge of the deceased's wrist-watch
and
said that he was wearing his own watch when he was arrested,
which
was not taken from him by the police.
The
trial Court accepted the evidence of accused No 1's wife and
described her as a fairly impressive witness. It was submitted
on
behalf of accused No 2 that the trial Court should have rejected
her
evidence as unreliable. It was submitted that she tried to
protect
her husband and that in doing so she testified selectively and
disclosed no more than
was necessary to incriminate accused No 2
and
to shift the blame from her husband. It was submitted that accused No
1 had briefed her fully on what had happened on the
deceased's
farm and that her evidence was designed to minimise his
role
in the commission of the crimes.
15
I
am unable to agree with counsel's submissions. If accused
No 1's wife had wanted to protect her husband by shifting the blame
on to someone who was not even on the farm one would have
expected her to have given a totally different version of what
accused No 2 was supposed to have told her. She would then
surely have said that accused No 2 told her that he was the one who
had killed the deceased
or played the major role. Instead she
repeatedly said in reply to questions put to her by counsel for
accused No 2 that she did not know who committed the crimes or
who was the main perpetrator, as the following extract from the
record shows:
"Now
in your mind are you satisfied that Ben (accused No 2)
is the person who, who committed the crimes out there on
the
farm? — No I don't know because I was not there
(interrupted)
No but
(interrupted) — He who told me.
Ja you must have a feeling, you must, do you feel that, that
he is the one who is responsible? — I don't but he is the
16
person who
told me about the incident and he said that
(indistinct).
So
your feeling is that he must have been the principal actor?
—
I don't know I was not
there.
I'm not
asking you whether you were there or not I'm asking you about a
feeling you had. Say yes or no answer required.
—
I
don't know."
Furthermore,
if accused No 1 had told her his full version of
what
had happened on the farm as was suggested by counsel, one would have
expected her to support his version of having acted
under
duress. Her evidence of what accused No 2 told her did not
in
any way advance the defence put up by accused No 1 that he
acted
under duress.
Counsel
for accused No 2 submitted that the fact that she
minimised
the injuries she had received at the hand of her husband
showed
her loyalty to her husband and that she would fabricate evidence to
help him. I do not agree. It was only accused No 2
17
who
said that she was severely injured and his evidence was
rejected
by the trial Court. In any event her loyalty to her husband does not
justify the inference that she would lie to protect
him.
In
my view there is no reason to interfere with the trial
Court's
acceptance of the evidence of accused No 1's wife. Her
evidence
about the argument over accused No 2's claim to the
firearms
has the ring of truth about it. Her evidence that he wore
the
wrist-watch taken from him by the police (exhibit 9) was
corroborated
by Sergeant Campbell. In this regard I do not find
her
evidence about the suggestion that the watch be given to her as
a
gift improbable at all, as was submitted by counsel for accused
No
2.
Although
accused No 1 was a bad witness who clearly lied
to
reduce his own role, and although when he was arrested he was
prepared to implicate one Chris as his co-perpetrator, the trial
18
Court's
acceptance of his evidence in so far as it implicated accused
No
2 cannot, in my view, be faulted. There was material
corroboration
for that evidence. There was the evidence of his
possession
of exhibits 3, 5, 8 and 9 and the evidence of his claim
that
he was entitled to the firearms because he had taken it from the
safe
in the deceased's house. There was his own unsatisfactory
evidence.
The
trial Court found that accused No 2 was an unimpressive
witness
and rejected his evidence as being untruthful. No good
reason
exists to reject this finding. Indeed a reading of his
evidence
shows that he clearly lied on more than one occasion and that his
evidence is totally improbable on a number of aspects.
A
few
examples will suffice. He denied all knowledge of exhibit 8
which
was found at Makini's house. In this regard there is no reason to
disbelieve Sergeant Campbell's evidence that it was
19
accused
No 2 who took him to Makini's house and obtained the bag
from
Makini's house. Accused No 2 also lied when he said that
he
saw no firearms on the Sunday evening. His counsel had
previously
put to Maneli that he saw exhibit 1 but not exhibits 3
and
4 on the Sunday night. According to both Maneli and accused
No
1 he was aware of the firearms and indeed showed Maneli a
document
justifying his possession. There is no reason to doubt that evidence.
Accused No 2's explanation for his possession of
exhibit
3 is so far-fetched that it can safely be rejected. Why would
he
be handed the gun only on the Tuesday when accused No 1
already
feared for his life on the Monday, and then be told to
return
it the next day? Accused No 2 also lied about his
possession
of the deceased's wrist-watch.
According
to accused No 2 he did not ask a single question
when
accused No 1 arrived at his home the Sunday evening with a
20
huge load
of goods in the Opel Ascona. His evidence that
accused
No 1 told him nothing and that he was not curious is highly
unlikely.
So is his evidence that he visited accused No 1 on four
consecutive
days for no apparent reason.
In
all the circumstances there is, in my view, no good
reason
to interfere with the trial Court's rejection of accused No 2's
alibi. On all the
evidence it is clear that he participated in the
commission
of the crimes and that he was correctly convicted on the charge of
murder. As I have said there is no appeal against
his other
convictions.
That
leaves the appeal against the death sentence. That
sentence
must be set aside in consequence of the decision of the
Constitutional Court in S v Makwanyane and Another 1995(3)SA
391. The case will be remitted
to the Court a quo to enable it to
consider
an appropriate substitute for the sentence of death.
21
In
the result the appeal against the conviction of accused No
2
on the murder count is dismissed. His appeal against the
sentence
of death imposed in respect of the murder count is upheld.
The
sentence of death is set aside and the case is remitted to the
Court
a quo for further hearing and the imposition of an appropriate
substitute for the sentence of death.
W
VIVIER JA.
MARAIS JA)
ZULMAN JA)
Concurred.