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102/85/AV

IN THE SUPREME COURT OP SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
MARCUS PHETLA 1st Appellant
AMOS NQUBUKA 2nd Appellant
AND
THE STATE Respondent
CORAM: CORBETT, MILLER, JJA et NICHOLAS, AJA
HEARD: 19 September 1985

DELIVERED: 25 September 1985

JUDGMENT NICHOLAS, AJA

In his lifetime the late JACOB RATALE was the

owner
2 owner of a shop in Daveyton, Benoni. He was working there on the evening of 15 July 1983, when at about 7.30 p.m. a black man appeared in the doorway, holding a firearm. He aimed it at RATALE, and fired several shots. RATALE collapsed to the floor and died shortly afterwards.
On post-mortem examination it was found that his death had been caused by six bullets which entered his body and head.
Arising out of the death, three people were charged with murder : MARCUS PHETLA as accused No.l; ERNESTINA RATALE as accused No.2; and AMOS NQUBUKA as accused No.3. They appeared before PREISS J and

two

3 two assessors in the Springs Circuit Court.
In summary the case for the State was that accused No.2, who was RATALE's wife, had sought the help of accused No.l to find someone to kill her husband; accused No.l in turn approached ELIAS MALOPE who introduced him to SIMON MABENA. Through MABENA's offices, accused No.3 was employed to commit the murder for Rl 000,00. Accused No.3 did the deed on 15 July 1983 when he went to RATALE's shop and fired the fatal shots.

All of the accused pleaded not guilty.
There was no admissible evidence against
accused No.2 and she was found not guilty and was dis
charged

4 charged. Accused Nos. 1 and 3 were convicted of

murder without extenuating circumstances and sentenced to death.
With the leave of the trial judge they now appeal to this Court against the convictions and sentences.
The key witness for the State was ELIAS MALOPE. He gave a detailed account of events and discussions which took place over several weeks. The following is a summary of its main features.
MALOPE knew accused No.l well. They came from the same homeland and had been friends for many years. No.2 accused he knew by sight: he had seen

her

5 her upon occasion when he had visited RATALS's shop. He was acquainted with accused No.3 but did not know him well.
Some weeks before 15 July 1983 No.l accused
approached him at his place of work at the firm of SAL-
CAST in Benoni, and asked him whether he knew of a Zulu
who was brave and who could kill a man. MALOPE was
unhelpful at that stage. No.l accused approached him
again the following week, and the week after that.
On the last occasion MALOPE introduced No.l accused to
SIMON MABENA and explained to MABENA that No.l accused
was looking for a brave Zulu who would kill a man.
Did MABENA know such a man? MABENA asked No.l ac
cused
6 cused why he was looking for a Zulu to kill someone. What was troubling him? What was his problem? The two of them were still engaged in conversation when MALOPE left them.
During the following week-end, No.l came to MALOPE's house and requested that MALOPE ask MABENA if he had found that man or not.

Thereafter, No.l again approached MALOPE.
This was at his place of work. MALOPE said,

"Ek se toe vir nr.l beskuldigde: 'Mabena sê hy het daardie Zoeloe gekry. Die Zoeloe sê hy is beskikbaar. Hy sal daardie "job" vir jou gaan doen vir 'n Rl 000.' En ek sê verder aan nr.l: 'Die Zoeloe wil weet al-vorens hy die werk gaan doen wat daardie per-soon gedoen het, hoekom moet hy doodgemaak word, want hy wil nie iemand sommer verniet dood-

maak

7

maak nie.' Toe sê nr.l beskuldigde: 'Goed en wel, wanneer sê die man sal hy daardie dienste verrig?'

Ja? --- Toe sê ek aan beskuldigde nr.l:

'Wel, dit kan jy met Mabena kom opklaar.' Ek het verslag gaan doen aan Mabena."

No.l gave MALOPE this explanation of why the man had to

be killed:

"Daardie dienste word deur 'n vroumens be-nodig .... Haar man pla. Haar man het 'n nuwe winkel wat nog in aanbou is, dat die man gebruik die kinders se bloed as medisynemid-del om sukses vir die operasie te bekom en dit te versterk."

MALOPE went on to deal with events on the day
of the murder. He finished work at about 3 p.m. on
Friday 15 July 1983. After drawing his wages he went
to the gate of the factory where he worked. There

he
8 he was met by accused No.l, who said to him, "Ek kom 'n ander man optel." MABENA then arrived and, pointing to No.3 who was in his company, said to No.l, "Die man wat jy moet kom haal is hier, hier is hy." No.3 said that he had to change out of his working clothes, and suggested to No.l and MALOPE that they drive to the Benoni Hostel and wait for him there. MABENA was left at the factory.
Shortly after 5 p.m. No.3 joined No.l and MALOPE at the hostel. He was wearing a dark-blue overcoat. He got into the passenger's seat of the car of No.l, who drove off to Daveyton with MALOPE in the back. The car stopped at a street intersection in Daveyton and

MALOPE
9 MALOPE alighted and went home. No.l drove on with No.3.
MALOPE heard that night that RATALE had been murdered.
On the following morning (Saturday), and at the factory, accused No.l handed to MALOPE a white plastic package, saying that it contained R700. He asked that MALOPE give it to MABENA, who knew who the ownerrwas, and who should tell the owner that he would get the balance of R300 on the Monday. At the time MABENA and accused No.3 were nearby, filling their respective vehicles with fuel. At MABENA's request MALOPE then handed the package to No.3.

On
10 On the following Monday, accused No.l again came to the factory. He gave MALOPE another white plastic package, asking him to hand it to MABENA to give to the owner, and saying that this was now the full amount of Rl 000. MALOPE did as he had been asked.
MABENA gave evidence for the State, but, because the trial Court did not rely on his evidence as corroboration of MALOPE, no purpose would be served by setting out a summary of it.
Another important witness for the State was PETTLAS SEKGOBELA. He said that he was 21 years old and had matriculated. On the late afternoon of 15 July 1983 he was playing dice in a gambling school on

the

11

the stoep of the deceased's shop, having arrived there at about 4 p.m. At about 5.15 p.m. he noticed a black man, who he suspected was a policeman. He accordingly distanced himself from the gambling school and kept the man under observation. He was wearing a long, navy-blue overcoat. On his head was a dark-blue balaclava cap, which was rolled up above his eyebrows. It was accused No.3.
At about 7.15 p.m. PETTLAS, who was standing on the stoep, saw the deceased standing in his shop and talking to a woman who was employed by a dry-cleaners. He observed No.3 moving to the open door of the shop. The balaclava had been rolled down over his face,

leaving
12 leaving only the eyes, the nose and the mouth exposed. He had a firearm in his hand. He aimed it at the deceased. A shot was fired and blood appeared on the deceased's forehead. Two other shots were fired, and the deceased fell face downwards to the floor.
No.3 turned and left the shop. He walked unhurriedly away. PETTLAS followed him for a short distance and then returned to the shop.
Some five weeks later (on 22 August 1983) PETTLAS attended an identification parade at the Daveyton police cells. There he pointed out No.3 accused as the man who had shot the deceased.

Evidence as to the shooting was also given

by
13 by DOROTHY MALATJI (who had called to pick up clothes for dry-cleaning and who was in the shop talking to the deceased at the time of the shooting), and by CATHERINE SHIKWANE (who was the cousin of the deceased and had been employed in the shop as an assistant since 1968). Neither of these witnesses was able to identify the deceased's assailant. CATHERINE SHIKWANE did say, however, that about 15 minutes before the shooting she saw Nos.l and 2 accused in conversation with each other in the shop which they left together.
Accused Nos.l and 3 gave evidence,in the course of which they denied every material point in the evidence of the State witnesses.

The

14 The finding of the trial Court in regard to the credibility of the main witnesses were as follows:
MALOPE was a particularly impressive witness. It was recognised that he was an accomplice and that the cautionary rule laid down in Rex v. Ncanana 1948(4) SA 399(A) had to be applied. But his evidence standing alone was such that the trial Court had no hesitation in accepting it unreservedly as the truth. His account was a long and detailed one dealing with several conversations and numerous facts, but despite a long and testing cross-examination, he did not depart from his story in any material respect.

PETTLAS

15

PETTLAS SEKGOBELA was considered by the trial Court to be a reliable and credible witness, who gave his evidence frankly and without hesitation. Although some of his evidence was possibly based on inference rather than perception, the Court was satisfied that he spoke the truth to the best of his ability.
No.l accused was a particularly intelligent person, but he was by far the weakest of all the witnesses. He was evasive; he was hesitant in answering the simplest questions, and some questions had to be repeated three times. The trial Court was satisfied that his evidence was a pack of lies from beginning to end, and that no reliance whatsoever could be placed upon it.

No. 3
16 No.3 accused also appeared to be intelligent. Although he sometimes hesitated for long periods before answering questions, it could not be said that he was evasive like No.l. There were however serious criticisms of his evidence, and in important respects he was found to be a lying witness.
In convicting accused Nos.l and 3, PREISS J said in the judgment of the trial Court,

"Wat beskuldigde nr.l aanbetref het ons die baie duidelike en aanvaarbare en bevredigende getuienis van (MALOPE). Soos reeds gesê, alhoewel ons (MABENA) as 'n eerlike getuie beskou gaan sy getuienis nie teen nr.l op die weegskaal tel nie. Stawing vir die getuienis van (MALOPE) word gevind in die leuenagtige en onaanvaarbare getuienis van hierdie beskuldigde. Ons is eenparig van

oordeel

17

oordeel dat die Staat horn van sy bewyslas gekwyt het en dat daar bo redelike twyfel bewys is dat dit nr.l was wat die moordenaar gewerf het en wat die geld vir die moordenaar gebring het en dat hy dus uit 'n regsoogpunt, asook uit 'n morele oogpunt, horn skuldig ge-maak het aan die aanklag van moord. Daar-benewens is daar die getuienis van Catherine, ondanks sy ontkenning, dat kort voor die voor-val, hy by die winkel was. Op al hierdie getuienis word HY DUS SKULDIG BEVIND AAN MOORD.
Beskuldigde nr.3 word betrek nie alleen deur die aanvaarbare getuienis van (MALOPE) nie, maar deur die duidelike en aanvaarbare getuienis van Pettlas. Hy was op die toneel deur Pettlas uitgeken. Hy is erken toe hy in die winkel gestap het gewapen met 'n pis-tool en hy is sonder aarseling deur Pettlas by die uitkenningsparade uitgeken. Daarbe-newens is hy ook 'n leuenagtige getuie, al-hoewel sy getuienis ietwat beter was as die van beskuldigde nr.l. Desnieteenstaande kan die Hof nie 'n enkele woord van sy getuienis aanvaar nie. Dit is leuenagtige opgemaakte getuienis wat ons verwerp. BE-SKULDIGDE NR.3 WORD INSGELYKS SKULDIG BEVIND AAN MOORD."

Counsel
18 Counsel for the appellants did not attempt to challenge the trial Court's findings as to the credibility of the accused, but submitted that lack of veracity is not always inconsistent with innocence, and that the trier of fact should constantly guard against attaching undue weight to such lack of veracity. As a general proposition that can be accepted. In the present case, however, the conviction of No.l depended entirely, and that of No.3 to a lesser extent, on the evidence of an accomplice; and the fact that the accused showed themselves to be lying witnesses reduced the risk of a wrong conviction.

In his heads of argument counsel for the

appellants

19 appellants directed an attack on the trial Court's assessment of the evidence of MOLAPI and PETTLAS, submitting that it overlooked, or did not give due weight to, discrepancies and self-contradictions and inherent improbabilities in their evidence.
There is no necessity to set out or to discuss the points made in the heads. Each of them was made at the trial and was fully dealt with in the judgment of the Court a quo; and Counsel did not deal with any of them in his oral argument.
It is sufficient to say that in my view it has not been shown that the trial Court erred in convicting the accused.

In

20 In regard to sentence it was submitted that the trial Court should have found extenuating circumstances in the case of each of the appellants.
The difficulty in the way of acceptance of this submission is that there was no evidence before the trial Court of any circumstance which could serve to reduce the moral blameworthiness of the accused. Neither of them gave any evidence in regard to extenuation, and no such circumstance appeared from the evidence of other witnesses.
There was no acceptable evidence as to the real reason why accused No.l busied himself in finding someone to murder RATALS. There was only his statement

to
21 to MALOPE which is quoted above. Against this was the evidence of both DOROTHY MALATJI and CATHERINE SHIKWANE that relations between the deceased and his wife were good. The possibility was suggested that the killing may have had a political motive, because RATALS was a councillor on the Daveyton town council, but there was no basis in the evidence for such suggestion.
It is true that No.l did not himself participate in the actual killing. But he was persistent over a period of weeks in looking for a killer; he engaged No.3; he transported him to the shop on 15 July 1983; and he paid him the agreed blood money. Morally he was as blameworthy as the killer himself.

In

22

In regard to accused No.3, it was argued that he became a murderer for financial gain. That seems to be the case, but it could not in itself constitute an extenuating circumstance, and there was no evidence of anything more.
No ground has been shown for interfering with the trial Court's finding that there were no extenuating circumstances.
The appeals against the convictions and sentences are dismissed.

H C NICHOLAS, AJA CORBETT, JA )

MILLER, JA ) Concur

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