s v Mloyi and Another (631/87) [1988] ZASCA 77 (1 June 1988)

631/87

/mbIN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

ELIZABETH MLOYI FIRST APPELLANT

RICHARD FANO SHEZI SECOND APPELLANT

and

THE STATE RESPONDENT

CORAM : VAN HEERDEN, KUMLEBEN, JJA et VILJOEN,

AJA

DATE OF APPEAL : 23 MAY 1988 DATE OF JUDGMENT : 1 JUNE 1988

J U D G M E N T

KUMLEBEN, JA/

1.

KUMLEBEN, JAThe two appellants,with a third accused, Muzubele Dladla ("accused no l"), stood trial on a charge of murder before Thirion J and two assessors in the Natal Provincial Division of the Supreme Court. It was alleged that they had unlawfully and intentionally killed a woman,Thembane Dlomo. All three accused were found guilty as charged. In regard to extenuating cir-cumstances, in the case of first appellant, Thirion J found such to be present but the majority of khe court came to the opposite conclusion. The court was, however, unanimous that in the case of second appellant and accused no 1 there were no extenuating circumstances. In the result the appellants were sentenced to death.

(Having/

2.

(Having regard to the youthfulness of accused no 1 -he was probably 17 years old at the time of the murder - the learned Judge in the exercise of his discrstion sentenced him to 15 years' imprisonment.) The appli-cation of the two appellants for leave to appeal against their convictions and sentences was granted. Before us counsel for both appellants conceded that the correctness of the convictions could not be challenged and restricted their submissions to the question of ex-tenuating circumstances.The first appellant, a woman of about fifty years of age, was the lover of a certain Mtumeni Dladla ("Mtumeni"), who was referred to in evidence as her-hus-band". They lived together in the Durban area though

his/ 3. his kraal was in the Kranskop district. Mtumeni died

whilst living in Durban. Subsequently first appellantwent from Durban to his kraal f or a cleansing ceremonywhich was one of the customary rites arising crom hisdeath. The deceased also lived in the Kranskop

area and was one of the guesrs who arrived to attendthe ceremony. It took place towards sunset on Sunday

7 September 1986. At a stage when the deceased was inthe main hut with the two appellants, accused no 1 andothers, second appellant instructed her to drink the

beer that she had been given and he told accused no 1

to guard the door of the hut. Both accused no 1 and

second appellant struck her with an iron pipe to pre-

vent her escaping. When the deceased pleaded to be

released/ released, second appellant said "We won't leave you. Why did you kill my father?" The deceased denied this allegation. Second appellant continued to assault her with the iron pipe. At a certain stage when she was lying on the ground, he inserted the iron pipe into her private parts and made the women present smell the pipe. After accused no 1 and second appellant had taken turns at assaulting the deceased with this pipe, first appellant, at the request of second appel-lant, produced a rope. With it he hoisted the deceased on a roof rafter, then let go ot the rope causing her to fall to the floor. He remarked that she was still breathing and repeated this procedure a second time. As she lay on the floor her two assailants instructed

first/

5. first appellant to fetch meat and beer which they

consumed whilst smoking dagga. After this interlude

second appellant instructed everyone to leave the hut.

He remained inside with the deceased and at one stage

was replaced by accused no 1. When others were allowed

to re-enter the hut the deceased was seen to be lying

naked on her back with her clothes folded under her.Second appellant asked first appellant to hand him a

knife. This he in turn handed to accused no 1. The latter

proceeded to stab the deceased twice on her left breast,

thus finally killing her. Pirst appellant provided more

rope with which to tie up the body of the deceased. It

was dragged to a dry watercourse where it was abandoned.

First appellant carried the clothes of the deceased to

this/ this spot where they were left. On returning to her hut, first appellant set about removing traces of blood from its floor and destroyed certain other evi-dence of deceased's presence there that night. At first light second appellant and accused no 1 departed. Later that morning first appellant sent someone to see whether the body of the deceased had been adequately concealed.These are in brief the grisly details of what can only be described as an atrocious murder.

Mr Hunt, who appeared in this court and in the court a quo on behalf of first appellant, submitted in both courts that the cumulative effect of the following considerations warranted a finding that extenuating circumstances were present:

(a) The/

7.

(a) The fact that first appellant honestly believed, whether reasonably or not, that the deceased was responsible cor the death of her husband; (b) The cleansing ceremony, at which the deceased put in an appearance, must have been a time of heightened emotion for first appellant when she would have been particularly conscious of the loss of her husband and, as she saw it, the cause of his death. (c) She did not physically take part in the killing of the deceased; (d) There was nothing to indicate that any of the unnecessary acts of bruta- lity were done on her instructions or carried her approval.

I turn to consider each of these alleged grounds forextenuation.

The judgment dealing with the extenuating cir-

cumstances does not explicitly state whether the court

found/

8. found as a fact that first appellant held the belief

referred to in (a) above. That she did appears to

have been the view of the learned Judge. In the judg-ment on the merits he observed that "(t)he killing

seems to have had something to do with che death ofMtumeni" and in the judgment on extenuation he obser-

ved that first appellant "felt more keenly" than theother two the death of her lover. In the latter judg-ment it is noted generally that the assessors were ofthe view that the factors put forward by counsel did

not amount to extenuation. It is, however, not clearwhether they did not accept that she held such beliefor whether, having found that she did, they did not re-gard it as an extenuating circumstance.

One/

9.

One must turn to the evidence in this regard.

First appellant when testifying on the merits deniedknowledge of any allegation that the deceased had beenresponsible for Mtumeni's death. This is understandablesince, when falsely denying any complicity in the murder,she could be expected to dissociate herself with themotive as well. It is significanr chough that duringthe assault upon the deceased, seconc appellant asked

"Why did you kill my father?" This question, it canbe accepted, was prompted by what Eirst appellant toldhim that evening. Another state witness NokwetembeNgubane said that during the assault the first appellantwas heard to say "Kill the dog. She killed Mtumeni."

In/ 10. In the judgment it was said that the evidence ozthis witness was not without blemish and was thereforeto be viewed with caution. But chere appears to beno reason why this evidence or what was said by firstappellant ought to be rejected. Moreover, it is tobe noted that no other motive for the killing emerges

from the evidence. This Mr Meiring, who appeared forthe State, conceded. in the circumstances it can be

accepted as a probability that first appellant did

believe that the deceased had been responsible for

the death of her husband and that this made her decide

that the deceased was to be killed. This of course in no way excuses

her/

11.

her conduct but, particularly in the case of a person of primitive mentality, it can operate to reduce in a measure her degree of moral blameworthiness.The other three factors relied upon by counsel for first appellant need be but briefly discussed. Their cogency, if any, is not significant. The fact that the deceased arrived at the cleansing ceremony may possibly have been the event which precipitated what followed. This consideration is however, in my view, little more than a makeweight. The consideration discussed in the previous paragraph is the important one. It is true that first appellant was not directly involved in the assault and killing but this fact is largely offset by the probability that she instigated it and at no stage

disassociated/

12. dissociated herself with the actions of the other

two assailants. The fact that she did not take partin any of the brutal and depraved acts, or on theface of it condone them, does to an extent redound toher credit.In the result, as regards first appellant, I am of the view that the learned Judge's evaluation of the circumstances bearing upon extenuation was correct and that the court ought to have found that in her case extenuating circumstances did exist.

The grounds on which it was contended that

in the case of second appellant a similar finding iswarranted are the following: the amount of liquor he

had consumed; that he had acted on the instructions of

first appellant; and that she had told him that the

deceased/ 13. deceased had caused the death of Mtumeni, whom he

looked upon as a father, and had thus influenced himto commit the murder.

The court a q uo gave close attention to the

question of the extent to which second appellant (andaccused no 1) had consumed liquor that Sunday and itseffect upon them. In this regard it is stated in the

judgment that "we are unable to find that the Accuseds'consumption of alcohol, when viewed cumulatively withthe other factors, influenced their conduct to anyappreciable extent or that it diminished their abilityto appreciate the enormity and wickedness of their con-duct." The reasons for saying this are thus set outin the judgment:

"When Accused Nos 1 and 3 left Bazana they

appeared/

14. appeared to him to be sober, because as he put it, they had not embarrassed him in any way. They then walked some 3 km before reaching Accused No 2's kraal. This exertion would have had a further sobering effect on them. After reaching Accused No 2's kraai they consumed but little in the way of licuor before embarking on the killing."

The manner in which they proceeded to kill the deceasedand dispose of her body lends further weight to the con-clusion on that their degree of intoxication was notsubstantial. It is trite that the consumption of liquortends to erode self-restraint and in certain circumstan-ces this may qualify as an extenuating feature. This,

however, must necessarily depend upon the effect, judged

by the evidence, the liquor had upon the accused person

concerned. (See S v Saaiman 1967(4) S.A. 440(A)). Such

evidence in this case fully justifies the finding that

liquor/ 15. liquor had no significant bearing upon their conduct

or state of mind that night.

It can be inferred that first appellant insti-

gated or suggested the killing. The evidence, however,in no way indicates that second appellanr was undulyinfluenced by her, that he was reluctant to comply withher instruction or request, that he played a subordinaterole or that he at any stage wished to desist. (Cf.S v Ramatsheng 1977(3) S.A. 510(A) at 512 F.) On thecontrary, once the decision to assault and kill thedeceased was taken, his role was the dominant one. Hecannot vicariously benefit from the fact that firstappellant believed the deceased had killed her husband,that she was aggrieved at this and thus sought retri-bution. An assassin plainly cannot rely on che morive

of/ 16. of the person commissioning him to excuse or mitigate

his conduct. Nor can extenuation be based on the con-tention that second appellant, by virtue of some re-

lationship to Mtumeni, harboured a compelling desireto redress the wrong. The evidence is to the effectthat it was only on the evening in question that secondappellant learned for the first time that Mtumeni'sdeath was attributed to the deceased.

Finally I must revert to the protracted and

repulsive manner in which second appellant set aboutkilling the deceased. In s v Robert John McBride (CaseNo 323/87), a recent judgment of this court, dated

30 March 1988, the extent to which the nature of thecrime is relevant to the question of extenuation was

closely/ 17. closely examined. The conclusicn reachec appears

from the following passage at page 46 of

the judgment (per Corbett JA)

"The nature of the murder (anc hera I would include the identity of the deceasec and the relationship, if any, between the accused and the deceased) and the manner of its commission are factors which, while they cannot be re-garded as per se excluding extenuation, are nevertheless relevant to the general enquiry as to extenuation. They may be relevant to the factual enquiry as to whether an alleged extenuating circumstance in truth existed or as to whether it actually influenced the accused; or they may be relevant as part of the web of circumstances associated with the crime which must be considered by the court when it passes its moral iucgment anc de-cides whether there exisc circumstances which in the minds of reasonable men diminish the accused's moral blameworthiness."

These remarks are particularly pertinent co the alleged

grounds of extenuation relied upon. 'fhe manner in which

the

18. the murder was committed confirms that second appellant's

mind was not to any appreciable degree beclouded by liquor;and that he acted of his own volition in that, had

he been a reluctant or coerced participant, he would

have, one assumes, carried out the killing as expedi-

tiously as possible. The way in which the

murder was executed is ±n any event "relevant as part

of the web of circumstances associated with the crime"

which the trial Court was entitled to take into account

in deciding that his moral blameworthiness was in no

way reduced by the circumstances submitted by counsel

in argument.

In the result the appeal of first appellant

is allowed in part. Her conviction is confirmed but

the sentence is set aside and one of 15 years' imprison-

ment/ ment substituted. The appeal of second appellant is

dismissed.

M E KUMLEBEN

JUDGE OF APPEAL