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THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

DLOZILAKHE RICHARD MZINYANE First Appellant
SIHLE MZINYANE Second Appellant
VO VICTOR MZINYANE Third Appellant

AND
THE STATE Respondent
Coram: CORBETT, JOUBERT et JACOBS, JJ A
Heard: 6 November 1987

Delivered: 26 November 1987

JUDGMENT

JACOBS, J A :

The three appellants were convicted by Galgut J

and two assessors in the Northern Circuit Local Division at

Ladysmith .... / 2

2

Ladysmith, Natal, of murder without extenuating circumstances
and sentenced to death. With the leave of the trial Judge the
appellants appeal against the finding that there were no ex-
tenuating circumstances and against the death sentences. The
allegations against them were that on the 3rd March 1986 and at
or near the Mnweni River in the district of Bergville the appel-

lants unlawfully and intentionally killed Mapegu Mtolo (the de-
ceased). I shall for the sake of convenience continue to re-

fer to the appellants individually as accused nos 1, 2 and 3
as they appeared before the trial Court.

The facts and circumstances surrounding the killing

of the deceased which led to the convictions and sentences of

the accused can be summed up as follows.

Accused no 1 had a relationship with the sister of

the...... / 2

3

the deceased as a result of which she became pregnant. At a
tribal hearing which followed, accused no 1 was ordered to pay
two head of cattle as damages. The deceased, as head of the
girl's family,was apparently pressing for payment and accused
no 1 was unable to pay. On the evening of Monday 3 March 1986
accused nos 2 and 3, who were cousins of accused no 1, arrived
at the home of the deceased. They pretended to be policemen

and told the deceased, his wife and her mother that they had

come to fetch the deceased who, so they said, was wanted by the

police. When asked what the deceased had done they said that

further enquiries could be made by the family at the police

station the next day. Accused nos 2 and 3 thereafter hand-

cuffed the deceased with a pair of handcuffs which they had

with them and took him away. I may perhaps at this stage say

that .... / 4

4

that the evidence was to the effect that the deceased was phy-
sically and sexually underdeveloped. He weighed approximately
40 kg and although he was approximately 37 years old, he had the
general appearance of a 13 year old boy. Early the next morning
the deceased's family went to the police station where they were
told that the police knew nothing about the whole matter and
that the deceased had not been fetched from his home by the po-

lice or by anyone acting on their behalf. A search for the de-
ceased was then organised and later the same day his
body was found in a deep pool in a river about 1½ km from de-

ceased's home. The body was inside a synthetic plastic bag.

In the bag were also three large stones which were obviously put

there to keep the bag under the water. The findings of the

doctor who performed the autopsy were that the deceased had not

died .... / 5

5

died of drowning, but of loss of blood caused by multiple stab
wounds and lacerations on his neck and head, the most serious
of which were three lacerations next to the right ear, which .

severed certain vital arteries or veins in the neck, and one

stabwound near the Adam's apple.

The three accused were arrested a week cr two after

the discovery of the deceased's body and shortly thereafter each

of them made a statement before a magistrate. Despite object-

ions on accuseds' behalf these statements were, after a trial

within a trial, admitted as evidence against the respective

accused. In his statement accused no 1 admitted that, because

the deceased had been pressing him for payment of the damages

he had been ordered to pay, he decided to kill the deceased and

for this purpose enlisted the aid of accused nos 2 and 3.

At...... / 6

6

At his request accused nos 2 and 3 fetched the deceased from
his home and brought him to where he, accused no l,was waiting.
The three of them then cut the deceased's throat and put his
body in a bag which they dumped in a pool in the river. In
their statements accused nos 2 and 3 for all practical purposes
confirmed accused no l's version of the events and admitted the
part they played in the commission of the crime.

After the close of the State's case, all three
accused testified in their own defence. They merely repeated
their evidence during the trial within a trial which was to the
effect that what they had told the magistrate in their state-
ments to which I have referred earlier was not true. Each one
again relied on alleged assaults by certain policemen which

assaults were aimed at forcing them to confess to the crime and

which .... / 7

7

which, so they alleged, resulted in them making the statements
before the magistrate. Accused nos 2 and 3 in addition, as
they did during the trial within a trial, relied on alleged pro-
mises by accused no 1 after their arrest that if they admitted
to having assisted in the killing of the deceased he, accused
no 1, would see to it that they would be acquitted should they
appear before a Judge accused of committing the crime.

After the three accused were convicted of murder

Dr Buccimazza was called as a witness by Mr Singh, who appeared

on behalf of accused nos 2 and 3. He had examined these two

accused for the purposes of establishing their respective ages.

His opinion, which was based largely on the accuseds' tooth and

sexual development, was that accused no 2 was in his early

twenties. It was put to him that according to the accused he

was .... / 8

8

was born in 1967 which would have made him 19 at the time of
the trial. His answer was that if he had to accept that accu-
sed no 2 was in fact 19 years old when he examined him, he would
say that the accused was in any event closer to 20 than to 19.
The doctor was of the opinion that accused no 3 was probably
older than accused no 2 and he estimated accused no 3's age at

20-21. I may just add that accused no 1 testified that he was
born in 1964 and this was apparently accepted by the trial Court.

Accused nos 2 and 3 were thereafter called to testi-

fy in extenuation. Their versions were for all practical pur-
poses to the same effect and can be summarised thus. They
both admitted that the evidence given by them during the trial
within a trial as well as their evidence given after the close

of the State case was untrue. They stated that they lived

about .... / 9

9

about three hours walk from where accused no 1 lived with his
father, who is their uncle. On Sunday the 2nd March 1985
they were away from home and on their return in the late after-
noon they received a message that during their absence their
cousin, accused no 1, had been there and had left a message that
accused no l's father wanted them to come to his kraal. They
immediately proceeded to their uncle's kraal but although
accused no 1 and his father were there when they arrived, no
one told them, nor did they ask anyone, why they had been called.
Accused no 1 and his father merely told them to come back the
next day. The next day, 1 e Monday the 3rd, they went back
to accused no l's home. On their way they were met by accused

no 1 who bought some spirits at a store which he gave to the

two of them to drink. On their arrival at accused no l's

father's ....... / 10

10

father's kraal they were given further liquor from a large bucket
of beer. They were also given some dagga to smoke. Accused
no 1 did not drink any liquor but he also smoked dagga. Late
in the afternoon, when they were well under the influence of

liquor and dagga, accused no l's father told them that he wanted
them to assist him and accused no 1 to kill the deceased be-
cause of the damages which accused no 1 was required to pay to
the deceased. They at first refused to assist but accused no

l's father offered to reward them and also threatened them that

if they refused to assist, they would not reach home that night,
the implication being that they themselves would be killed.

Because they were affected by the liquor and dagga, and because

of the threats and the offer of a reward, they agreed to assist

in the killing. That evening accused no 1 accompanied them

and..../ 11

11

and pointed out the deceased's home to them. Accused nos 2 and

3 entered the deceased's home and they pretended to be police-
men who had come to arrest the deceased. They handcuffed him
with a pair of handcuffs which accused no 1 had given them
earlier and took him to a spot near the river where accused no 1
and his father were waiting for them. Accused no l's father
then told them to hold the deceased down and he, the father, cut
the deceased's throat with a knife. The four of them there-
after put the deceased's body in a sack which they had with them
and threw the sack with the body into the river.

Accused no 1 gave no evidence in extenuation. His

counsel, in cross-examination, put it to accused nos 2 and 3

that they were falsely implicating him and his father. It was

further put to accused nos 2 and 3 that the first time accused

no 1 ..../ 12

12

no 1 ever met the other two was after the three of them had been arrested and locked up together.
As already stated, the trial Court found that there were no extenuating circumstances and all three accused were sentenced to death. The principle is, of course,well settled that the question as to the existence or otherwise of extenuating circumstances is essentially one for decision by the trial Court, and that in the absence of misdirection or irregularity, this Court will not interfere with a finding that no extenuating circumstances were present, unless it is one to which the trial Court could not reasonably have come.

Mr Bezuidenhout, on behalf of accused no 1, quite rightly, in my view, disavowed reliance on any misdirections on

the part of the trial Court. His submissions were simply that

no reasonable court

could .... / 13

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could have come to the conclusion that accused no l's youth and

limited sophistication and the influence which his father pro-
bably had over him were not such as to sufficiently reduce his
moral blameworthiness so as to constitute extenuating circum-

stances. As far as accused no l's alleged youthfulhess was
concerned, he testified that he was born in 1964 which would
mean that when the crime was committed in March 1986 he was at

least 21 years old. He was therefore not a teenager any more
but, as was pointed out by Rumpfff C J in S v Lehnberg en 'n

Ander 1975 (4) SA 553 at p 561 H, a person of 20 years or older

can also show, by acceptable evidence, that he was psychologi-

cally immature to the extent that his immaturity could serve in

extenuation. As stated earlier, accused no 1 gave no evidence

in extenuation and nothing was placed before the trial Court

to .... / 14

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to show, on a balance of probabilities, that accused no 1 must be regarded as less mature than the average 21 year-old. In-deed, as the trial Court quite rightly pointed out he is, and was at the time of the commission of the crime, already married. It is also perhaps of some significance that accused no 1 him-self testified that when the deceased's sister fell pregnant he discussed the possibility of marrying her, presumably as a se-cond wife, with his father who pointed out that lobola had already been paid for his first wife. According to the accused his father added "that I had to see for myself as to what to do because I am now a grown-up man." As far as the submission, which was also máde before the trial Court, that accused no 1 probably acted under the influence of his father the trial Court found that it had not been shown on balance that accused no 1

was .... / 15

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was under his father's influence when the decision to kill the
deceased was made and the plan devised to do so. The Court

found that all the indications are that accused no 1 was
as much in control of the whole situation as his father.
Here again it is perhaps significant that when accused nos 2

and 3 arrived at the river with the deceased it was, accord-

ing to the evidence of accused no 2, accused no 1 who did the

talking and said:

"You have helped me out. I have been looking for this dog a long time."

In my view nothing has been advanced which would

warrant this Court interfering with the trial Court's finding

that, as far as accused no 1 is concerned, no extenuating cir-

cumstances were present.

I .../16

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I turn now to the appeals by accused nos 2 and 3 against the trial Court's finding that, also as far as they were concerned, there were no extenuating circumstances. Before the trial Court Mr Singh, who appeared on their behalf, advanced the following facts and circumstances as constituting extenuation:

(a) Their alleged intoxication when on the Monday,

according to them, they were told what they were expected to do and agreed to do so. In fact, according to them they were strongly under the in-fluence of liquor when they fetched the deceased from his home and assisted in the killing;

(b)	the alleged threats by the father of accused no 1;
(c)	the probability that they were under the influence

of .../ 17

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of accused no 1 and his father; and lastly (d) the youthfulness and lack of sophistication and

education of accused nos 2 and 3.

The trial Court fully considered the submissions
made by Mr Singh and dealt with each and every one of the

factors advanced by him. As far as the alleged intoxication
and influence of dagga were concerned the trial Court was pre-
pared to accept that on the Monday, i e the day the deceased
was killed, accused nos 2 and 3 drank liquor and smoked dagga

but the Court found that the effect thereof was exaggerated

by both of them. The Court pointed out that the deceased's

wife, Bushapi,specifically stated in her evidence that if the

two accused had been drinking before they arrived at her home

they certainly showed no sign of it. They also played their

role .... / 18

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role so well that she, Bushapi, and obviously also the deceased's
mother who was called before the deceased was taken away, were

fooled into believing that accused nos 2 and 3 were in fact
policemen. It is also significant that in their confessions
before the magistrate neither of the accused mentioned a word
about liquor or dagga having played a role in what they did.
But on the question of the alleged intoxication, and this also
has an important bearing on the alleged threats by accused no l's

father, the trial Court expressed the view that on the Sunday

accused nos 2 and 3 already knew what the reason was for having

been invited to the home of accused no l's father and were already

at that stage informed of the plan which had been devised to kill

the deceased and the part they were expected to play. The

trial Court was not prepared to accept that the two accused

would...... / 19

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would have walked for three hours to get to the kraal of accused
no l's father and then when, as they wanted the Court to believe,
no one told them the reason why they were called and they were

simply told to come back the next day, they would not have asked

for a reason. In my view the trial Court was fully justified

in coming to this conclusion especially when one looks at their

evidence in this regard. In answer to questions by counsel for

the State, accused no 2 testified as follows:

"Did they tell you at all why you had to come back the next day? .... No they did not tell us. So you spent 3 hours walking back to your home without being any the wiser? .... That is how it happened. Why did you not ask them 'what are you calling us all the way here for?' .... We did not think of asking them."

Accused no 3, also in answer to questions by counsel

for the State,testified as follows:

"Why.... ? 20

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"Why were you not curious to find out what this was all about? .... We did not find out. We thought they were going to tell us because they are the ones that had called us.
Yes, and when they didn't tell you why didn't you enquire? .... It did not occur to us to ask them, because they had called us.
You were quite happy to walk for 6 hours and not to know what was going on? .... We were just taking a walk. We were not in a hurry to get anywhere."

At no time was there any suggestion that on the Sun-

day accused nos 2 or 3 had been given or had partaken of any liquor or that they were threatened by accused no 1 or his father should they refuse to take part in the plan. Once therefore the trial Court found that the two accused were al-ready told on the Sunday what the plan was, their versions when they gave evidence that they agreed to the plan because they were intoxicated or because they were threatened were devoid

of ..... / 21

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of all truth. On the Monday the two accused, out of their own
free will, proceeded to the kraal of accused no 1's father well
knowing why they were going there. The probabilities seem to
be that any liquor which they may have taken thereafter, and
which in any event as the Court found had no visible effect on
them, was taken to fortify themselves to enable them "insensi-
tively to carry out (their) fell design", to use the words of
Holmes JA in S v Ndhlovu (2) 1965 (4) SA 692 (A) at p 695 D-E.
As regards the alleged influence of accused no 1 and his father

over accused nos 2 and 3 the trial Court found that there was

nothing in the evidence to show that their relationship was

such that accused nos 2 and 3 were compelled to go along with

the plan devised by the former two and that there was no

suggestion that accused no 1 or his father were in any way in

authority .... / 22

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authority over accused nos 2 and 3.

I come now to deal with the last, and perhaps the
most important, factor advanced on behalf of accused nos 2 and 3
as constituting extenuation, namely their youthfulness and lack
of sophistication. There was no evidence as to their exact ages
or the years in which they were born. I have already referred
to the evidence of Dr Buccimazza who examined the two accused for

the purposes of establishing their approximate ages. He consider

ed that they were at the very youngest 19 at the time of the com-
mission of the offence but said that if he had to accept no 2's

statement that he was 19 years old at the time of examination he,

the doctor, would say that he was closer to 20 than 19 which would

have made him closer to 19 than 18 at the time of the offence. :

its judgment on extenuating circumstances the trial Court approached

the..../ 23

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the matter on the basis that accused no 2 might have been as
young as 18 years and accused no 3 as young as 19 years at the
time of the offence. This was also the basis upon which Mr
Singh presented his argument before this Court. The two accused
were therefore both teenagers when they committed the crime which
meant that they were both prima facie to be regarded as immature.

It would follow from this that a court would normally be re-

luctant to find that there are no extenuating circumstances un-

less there are present other factors such as eg the manner of and

the motive for the commission of the crime and whatever else is

relevant to show that the crime stemmed from inner vice ("in-

herente boosheid"). This, in summary is the broad effect,

as I understand it, of some of the leading cases on the pro-

blem of sentencing a youth found guilty of murder (see

S v Lehnberg ........ / 24

24

S v Lehnberg en 'n Ander 1975 (4) SA 553 (A); S v Mapatsi 1976

(4) SA 721 (A); S v Ceasar 1977 (2) SA 348 (A) and S v Ngoma

[1984] ZASCA 59; 1984 (3) SA 666 (A). The concept of "inherente boosheid"
was explained by Miller JA in Ceasar's case (supra) as follows

(at p 353 C-F):

"A finding that a person acted from inner vice in the commission of a crime does not imply that he has mani-fested vicious or wicked propensities throughout his life; nor is a long history of wickedness necessary to such a finding. Primarily, the question in any given case (in the context under discussion, i e with refe-rence to youth as a mitigating factor) is whether the crime in question stemmed from the inner vice of the wrongdoer, whether he be a first offencer or one with many previous convictions. It is in order to answer that question that the Court will examine, and take into account as indicia, the wrongdoer's motive, per-sonality and mentality, past history and whatever else is relevant to the enquiry. And, of course, it will take into account the nature of the crime and the manner of its commission. (See the passage quoted above from the judgment of the CHIEF JUSTICE in

Mapatsi's / 25

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Mapatsi's case.) The concept of inner vice as the genesis of a grave crime committed by a youth throws into proper contrast the case of a crime (perhaps equally dastardly) committed by another youth who has, largely because of his youth and its attendant degree of in-experience, acted in response to outer influences; eg under the pressure and stress of intense emotions in-duced by another (cf Lehnberg's case) or under direct or indirect influence of one older than himself, or under circumstances which to him, because of his youth and inex-perience, were provocative or emotive."

In its judgment on whether, because of their youth-
fulness, the accuseds' moral blameworthiness was diminished, the
trial Court said the following:

"The difficulty, however, is that the facts surrounding the killing of the deceased show that it was a most despicable crime. It was premeditated and carried out in a careful and cowardly manner. They gained control of the deceased by means of a ruse. Four people killed him by holding him and cutting his throat while he struggled and screamed. He was a man with the build of a 13 year old, as Dr Prins testified and as confirmed by the evidence of Cebelchulu. He was, therefore, completely helpless. Another matter

which .... / 26

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which is most disturbing is that the whole thing was done with money as a motive.
Accused No 1 sought to kill the deceased because he intended thereby to avoid paying a debt that he owed. Accused Nos 2 and 3 apparently took part for personal gain. In our view, the whole matter should fill any right-thinking person with revulsion."

Referring to the above passage in the trial Court's
judgment Mr Singh submitted, and I quote from his heads of
argument:

"The Honourable Judge correctly described the crime as a 'most despicable crime' that 'should fill any right thinking person with revulsion'. With respect, however, the learn-ed Judge misdirected himself in testing the extenuating factors argued on behalf of the second and third Appellants against the horrible circumstances under which the de-ceased met his death; for any cold-blooded murder is always an evil and despicable one."

For the submission that the trial Court misdirected

itself, Mr Singh relied exclusively in what was said by this

Court..../ 27

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Court in S v Van der Berg 1968 (3) SA 250 (A) on page 252C - 253A

and particularly on the following passage appearing on page 252H:

'n Verhoorhof sou dus, by oorweging van die gepaste vonnis in 'n geval van 'n skuldigbevinding aan moord met versagten-de omstandighede, tereg die aard van die versagtende om-standighede sowel as die aard van die moord in aanmerking kon neem, maar, by oorweging van die vraag of 'n bepaalde omstandigheid as 'n versagtende omstandigheid aangemerk be-hoort te word, kan die aard van die moord nie relevant wees nie."

The judgment in Van der Berg's case was considered
by this Court in S v Petrus 1969 (4) SA 85. In the latter

case, the appellant, a youth of 18, was with two others con-

victed of a murder in which the deceased received 70 stab wounds.

He was sentenced to death. It was also, relying on the judg-

ment in Van der Berg's case, argued before this Court -

" .... dat die Hof, by oorweging van die vraag van minder

verwytbaarheid .... / 28

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verwytbaarheid, misgetas het deur die wreedheid van die misdaad daarby te betrek en sodoende die aanwesigheid van 'n versagtende omstandigheid verwerp het uit die aard van die misdaad."

In the Court a quo where Van der Bergh's case was
also relied on, Tebbutt AJ had problems with the passage in this
Court's judgment which I have quoted above. He - inter alia
said the following:

"Myns insiens het die geleerde Appèlregter deur die woorde 'kan die aard van die moord nie relevant wees nie', be-doel dat daar nie aan die gruwelikheid of die wreedheid van 'n besondere moord teveel gewig gegee behoort te word nie. Ek glo nie dat hy - met die hoogste eerbied - bedoel het dat daar nie na die omstandighede van die misdaad gekyk kan word nie. As dit wel so was, dan sou dit beteken dat, byvoorbeeld, by 'n vergiftigingsaak waar daar miskien drank deur die dader gebruik was sou die Hof gebonde wees om nie na die omstandighede van die misdaad, naamlik die vergiftiging te kan kyk nie om te oordeel of enige drank wat gebruik is wel die dader so beinvloed het dat dit sy misdaad minder laakbaar maak en sy morele skuld verminder. Myns insiens, soos alreeds gesê, het die geleerde

Appèlregter .... / 29

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Appèlregter dit nie bedoel nie. Die hele trant van die uitspraak in die saak van Van der Berg, met eerbied, wys daarop dat die Appèlregter nie so bedoel het dat daar nie na die omstandighede van die geval kan gekyk word nie, en ek het ook my Assessore so ingelig."

Steyn, CJ in Petrus' case does not specifically refer

to the above quoted passage appearing in Van der Berg's case
but from his judgment, with which Jansen JA concurred, read as
a whole, I think it is quite clear that he approved of the inter-
pretation of Tebbutt AJ of this Court's judgment in Van der Berg's
case. On page 91 E-G the CHIEF JUSTICE, after referring to

section 330 (1) of the Criminal Procedure Act, 56 of 1955 (sec-
tion 277 of the present Act) says the following:

"Dit gaan hier om 'n bepaalde dader, die beskuldigde, en die moord wat hyself gepleeg het, en dit laat verder vermoed dat die Wetgewer hier omstandighede in die oog het wat as ver-sagtend beskou word in die samehang van die feite wat be-trekking het op die bepaalde dader en sy wandaad, soos hy
dit.... / 30

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dit gepleeg het, en nie in samehang van ander feite wat op 'n ander denkbeeldige of 'n ander veronderstelde gewone dader en daad betrekking sou hê nie."

What clearly emerges from the judgment of Steyn CJ
in Petrus' case, and is in fact clearly stated in the seperate
judgment of Rumpff JA, is that the atrocity of the crime as such
cannot exclude or wipe out such extenuating circumstances as
there may be but, ih the words of Rumpff JA at page 95 H of
Petrus' case:

"Om vas te stel of daar versagtende omstandighede is of nie, spreek dit m i vanself dat die feite van die misdaad sowel as die moontlike omstandighede wat as versagting sou kon dien oorweeg moet word. Die erns of afskuwelikheid van die misdaad, as sodanig, kan nie die moontlikheid van ver-sagtende omstandighede uitsluit nie. Ek dink nie iemand sou dit ooit wil beweer nie. Wat wel kan gebeur is dat wanneer die versagtende omstandighede oorweeg word in die lig van die feite van die misdaad, 'n Verhoorhof sou kon be-vind dat die beweerde omstandighede in die besondere ge- , val nie volgens sy mening as versagting kan geld nie."
In...... / 31

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In my view the trial Court in the present case did not, in the passage of its judgment relied on by Mr Singh, say or even suggest that the "horrible circumstances under which the deceased met his death" per se exclude any extenuating circum-stances flowing from the youthfulness and prima facie immaturity of accused nos 2 and 3.

As I read the judgment the trial Court paid due
regard to the youthfulness of the accused but when it came to
the third part of the threefold enquiry as outlined in the case
of S v Ngoma (supra) at p 673 H, and other cases, the Court in
having to pass a moral judgment came to the conclusion that,
taking all the circumstances into consideration, it had not been

shown that the moral blameworthness of accused nos 2 and 3 was

reduced.

In...../ 32

32

In my view it has not been shown that the trial Court had misdirected itself nor has it, also as far as accused nos 2 and 3 are concerned, been shown that the finding that there are no extenuating circumstances is one which the Court could not reasonably have come to.

The appeals of all three the accused are dismissed.

H R JACOBS, JA

CORBETT, JA )

concur

JOUBERT, JA )

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