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IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:
DITABE ALFRED MAMPA FIRST APPELLANT
DIBATE JOHN THOBEJANE SECOND APPELLANT
SIBASA IVIN THOBEJANE THIRD APPELLANT

and
THE STATE . RESPONDENT
CORAM :RABIE ACJ, BOTHA, MILNE, KUMLEBEN JJA et

NICHOLAS AJA

HEARD : 30 AUGUST 1988

DELIVERED : 20 SEPTEMBER 1988

JUDGMENT

KUMLEBEN, JA

The three appellants stood trial in the Northern

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2. Circuit Local Division of the Supreme Court on a charge of murder. The indictment alleged that on 20 January 1986 and at Mafete in the district of Thabamoopo they wrongfully and unlawfullý killed Kate Mokone ("the deceased"). In a second count they were charged with a contravention of sec l(a) of the Witchcraft Suppression Act, 3 of 1957, in that, at the same time and place "the accused did wrongfully and unlawfully indicate Kate Mokone as a Wizard." On this count the third appellant was convicted and the other two acquitted. No further reference need be made to it. One notes though, in passing, that in terms of sec l(c) of that Act a person who "employs or solicits any witchdoctor, witch-finder or any other person to name or indicate any person as a wizard" also commits an offence.

On the murder charge the appellants initially pleaded not guilty. The State called two witnesses, Mabatane Thobejane and Nakgale Mokone, the mother of the

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3. deceased. In addition, as part of the State case, an extra-curial statement made by first appellant, and recorded by a magistrate on 27 January 1986, was handed in by consent. In it, first appellant thus described what had taken place:

"My brother-in-law, Tilla Thobejane, got lost when he was coming from the football ground. I was awoken up by his brother Willy Thobejane and we started looking for him. We looked for him high and low without success. The snack (snag) is all the time we were looking he saw us. Even the people who abducted him saw us but whenever we looked their way we only saw donkeys instead of them. The boy was found at 09h00. We took him to our home where he was made to sneeze so that the magic or evil charms could leave him. He then told us the people who abducted him. He said he was abducted by Masehlodi Thobejane, Mokone and the mother to the person we burnt to death. We took the matter to the induna's place. These suspects told induna that they wanted witchdoctors to settle this matter but before it could be settled that way this boy's parents should be killed first by muti. We tried to remonstrate with them but in vain. Willy called me and the football group and we went to look for the culprits. There was a girl who was seen pulling at the boy who was abducted. We grabbed this girl, doused her with paraffin and my wife's cousin Dibata Thobejane set her alight after we

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piled her with dry wood. The person who doused her with paraffin is Willy Thobejane. We burnt her because we requested our chief to give these people a trek-pass as they are troublesome and he refused. That is all."

At the close of the State case the appellants altered their plea on the murder charge to one of guilty and the case of each was closed without any evidence being adduced. They were found guilty of murder as charged. Thereafter, on the subject of extenuation, two men, Masepe Maphoru and Lucas Thobejane, and each of the appellants, gave evidence in amplification of what first appellant had said in his statement. The Court held that there were no extenuating circumstances proved and each appellant was sentenced to death. Leave was, however, granted by the Court a quo to challenge this finding on appeal.

A feature of this case is that - apart from one

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aspect to be discussed in due course - there were no material disputes of fact. It would appear that all the witnesses gave an honest and reliable accounts of what they saw, heard and remembered. In particular, Mr van Wyk, who appeared for the State, did not submit that the evidence given by the defence witnesses was false or that it should be rejected for any other reason. In recounting the facts, which bear upon the question of extenuation, it is therefore unnecessary to refer to the evidence of each witness individually.

All the persons involved in this case were members of a rural community, living in a kraal or a number of kraals in Sekukuniland, Northern Transvaal. The appellants are related to Lucas Thobejane ("Lucas"). First appellant is his brother-in-law, second appellant his cousin or nephew and third appellant his elder brother.

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6.

On the afternoon of Friday 17 January 1986, Lucas, who at that time was about 23 years old, had been playing football with some of his friends. On their way home he left them to visit his uncle's kraal, intending to catch up with them later. He remembers leaving his uncle's home but has no recollection of what thereafter took place until he found himself at a spot beyond his own kraal with the deceased standing in front of him. He passed her and she followed him. She ordered him to sit under a tree, which he did. She had cast a spell on him. He was unable to exercise any free will and return to his home. Whilst seated there, he could see the appellants searching for him with torches but he was powerless to hail or join them. As they came closer to him, the deceased took him further away from them.They again sat under a tree. There they were joined by another woman, Masehludi, and a tall man with long hair. Lucas did not recognise him and was there-fore not able to say whether he was a real person. Lucas

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7. took a cigarette from his pocket. When he had finished smoking it, the three of them instructed him to accompany them to a donga. On arrival there, the tall man took a match from Lucas and told him to sit on the ground. He apparently lay down. The deceased gave him what he took to be herbs to eat and the tall man lit a fire near his head. They left after telling him to remain there until they returned to fetch him. He tried to stand up but found that he had lost the use of his limbs. He was unable to talk. He lay there for the rest of the night. The next morning he was found by first and second appellants. At that stage he could walk but still could not talk.

When he reached home, the family consulted an aunt, who was a herbalist. She gave him some substance to inhale and he was able to speak again. He recounted his experience of the previous night to the appellants. They summoned the deceased, her mother and Masehludi that same

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8. morning. Lucas repeated his story in their presence. The mother denied that any of them were implicated. It was agreed that the matter should be placed before the "Kgoro". This is a tribal court or assembly to which disputes are referred and at which the "Induna" or headman presides. The hearing took place the next day, that is, on Sunday 19 January. According to the witness Maphoru, there were so many people present that he had to stand outside the yard in which the meeting was being held. The appellants accused the three women of being wizards or witch-doctors. To substantiate this Lucas told the assembly what had befallen him on the Friday night. At the suggestion of the opposing parties, and with the general approval of the meeting, it was decided that a witch-doctor from elsewhere be consulted to determine whether the appellants' accusations were well founded. The headman was requested to seek permission from the magistrate for this course to be followed.

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At the resumed meeting the next day the magistrate was present, presumably because the matter was considered sufficiently serious to warrant his attendance. It is not entirely clear whether a police officer was also present and, if so , whether it was the magistrate or the policeman who addressed the assembly. Nothing turns on this. The speaker pointed out that it was against the law to consult a witch-doctor for the proposed purpose and -though this hardly needed stressing - to burn to death people said to be wizards. According to the first appellant, as they were being thus admonished by the official, he was interrupted by protests from the assembled crowd. This caused him to walk away saying, in effect, that they would no doubt resolve the matter in their own customary way. Both first and second appellants said that they had requested the headman to remove the deceased and

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her mother from the area in order to avert further trouble but that he had refused to do so. This is confirmed by the witness Maphoru whose evidence suggests that this request was made at the "Kgoro."

That night a large crowd went to the house of the sister of the deceased. According to first appellant, all the members of the local community ("die stam") were present and involved. Initially some 29 persons featured as accused in this case. One may thus conclude that at least that number were present. At the house they found the deceased and took her to the same donga where Lucas had spent part of the Friday night. Third appellant was the one who actually had hold of her as they abducted her. At the donga he poured paraffin over her and second appellant set it alight. First appellant placed firewood on her. Whilst she was still burning to death, the crowd dispersed.

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It is against the background of these facts that the reasons for finding no extenuation must be examined.

The main ground of extenuation relied upon by the defence was in substance that, in the light of what had happened to Lucas, the appellants were convinced that the deceased was a sorceress and that their lives, and those of their family, were endangered by the occult powers she possessed and was exercising. For this reason, so it was submitted, they decided that she had to be killed. This submission was rejected by the trial Court on two main grounds. (The relevant extracts from the judgment are quoted in parenthesis.) Firstly, it was held not to have been proved that the appellants genuinely believed the deceased to be a witch. ("Dit het ons ook getref na aanhoor van al die getuienis dat hulle geen werklike vrese gekoester het dat 'n veertienjarige meisie 'n towenaar kan wees.") Secondly, the Court was of the view that the

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12. grounds for such belief, if held, were insubstantial and for that reason their moral blameworthiness in deciding to kill the deceased was not reduced. ("Daar is 'n verdere probleem wat die Hof het en dit is die volgende. Die werklike vrees moet nie 'n vrees wees vir 'n nietige gebeurlikheid nie, en in dié opsig het hierdie kind maar 'n nietigheid daar laat plaasvind. Lucas het alleen sy stem verloor, verder het hy niks oorgekom nie. Dit kan seker wees om dié rede dat die 'indoena' en die ander persone geweier het dat hulle na 'n toordokter gaan want al was dit bevind dat dit so is, maak 'n mens nie 'n persoon dood omdat hy so 'n nietigheid begaan het nie.")

These two crucial findings of the Court are not borne out by the evidence.

The mother of the deceased, in her evidence in
chief, said that she and her daughter were generally known

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13. to be witches. First appellant said that he believed in witchcraft and that the deceased was the leader of the sorcerers. According to second appellant, the deceased was killed because they had to protect themselves. Third appellant stated that if a person practises witchcraft one has no choice in the matter, such person must be killed. He also said that he was convinced that the deceased intended killing Lucas. ("Sy het nie met Lucas gaan speel in die veld nie. Sy was van plan om vir Lucas te gaan doodmaak.") According to the witness Maphoru, from his youth he had always regarded the deceased as a sorceress. This direct evidence is conf irmed by the fact that the killing took place with the tacit acquiescence, if not the active participation, of a large number of people. There is no reason to doubt the evidence of Lucas. It is not possible to determine to what extent his story was based on fact. What is important is that he, and those members of his family to whom he related his experience, believed that

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14. a spell had been cast on him by the deceased. His loss of speech was to them convincing proof of this. The episode must have been awesome to those who believe in the occult. In the course of the reasoning in the judgment on extenuation the Court asked rhetorically why all three were not killed, if they thought that the deceased, her mother and the other woman were witches. The evidence did not prove or suggest that her mother or Masehludi was at the sister's house, or accessible, at the time the deceased was abducted. But the more cogent answer is that it was the deceased who had played the leading role in the events of that Friday night.

The Court observed that "Lucas het alleen sy stem verloor, verder het hy niks oorgekom nie." This is simply not so. The evidence makes it plain that his ordeal that night, which must have been terrifying, was not restricted to a mere temporary loss of the power of speech. Moreover,

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it was interpreted, understandably in the circumstances, as a threat to his family as well. In his statement first appellant said that when they were searching for Lucas that night those who were abducting him were transfigured and took on the appearance of donkeys. Thus at that time appellants too, according to his evidence, were being subjected to these occult influences. At some later stage, first appellant said the mother threatened them by saying "ons gaan voort, ons gaan ons werk voortsit om julle klaar te maak." According to the witness Maphoru, it was at the "Kgoro" that she said, referring to Lucas and his family, "ons gaan vir julle toor". This alleged threat was canvassed in the cross-examination of the mother of the deceased, as appears from this question and answer:

"En ek stel dit aan u hulle het daar gekom op instruksies van die indoena omdat u op die vergadering van die stam gedreig het om Lucas en

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sy familie dood te maak en daarom is die polisie en die magistraat deur die indoena ingeroep om daar te kom? — Ek weet niks daarvan nie."

One would have expected an emphatic denial from her had no such threat been made. If this answer is to be construed as an contradiction of the evidence of the two witnesses for the defence, I consider that their testimony on this issue is in thé circumstances to be preferred.

The Court misdirected itself in a further respect. There was evidence that the headman, when he addressed the appellants, asked them whether they thought these people would practise witchcraft on them. This question was construed by the Court, with reliance upon supposed voice intonation, to mean that the headman did not consider that the appellants' concern and complaint ought to be taken seriously. Apart from the fact that this is not the only reasonable interpretation to be placed on his

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question, other evidence, to which I have referred, shows that others, indeed all involved, also viewed the matter in a very serious light. Further criticism was levelled in argument at the reasoning of the Court a quo. I find it unnecessary to deal with those submissions. From what has been said it is, I trust, plain that the Court misdirected itself in reaching the conclusions on which its finding was based.

It is acknowledged that a belief in witchcraft can, and in appropriate circumstances should, operate as an
extenuating circumstance. As this Court affirmed in S v
Nxele 1973(3) SA 753(A) 757:

"... a belief in witchcraft, if genuinely held by an accused and directly associated with the crime which he has committed, remains a factor to be taken into account in assessing an appropriate sentence. That it should so be taken into account is inherent in the subjective approach. The degree of mitigation, if any, flowing from

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this factor naturally vitally depends upon thé particular circumstances of the case. The genuineness of the belief in witchcraft must of course always be a condition precedent. Postulating such genuineness, action taken by an accused against an individual whom he believes already to have caused the death of the accused's relatives by the exercise of occult powers which are now directed against such accused himself may sometimes be viewed in a less serious light than if, under similar circumstances, the accused has taken indiscriminate action involving, not merely the particular individual concerned, but others as well. On the other hand, in a certain, relatively rare, type of case a severe sentence upon an accused may be susceptible of being interpreted by the credulous believers in witchcraft in the particular community concerned as affording confirmation of the alleged wizard's ability to injure those who question his vaunted powers. As already indicated, the particular circumstances of the particular case are a vital consideration."

To my mind in the present case the facts convincingly

proved that the appellants' belief in the occult powers of

the deceased was genuine, as was their fear that she

presented a real threat to their livés and to the lives of
members of their family. In the circumstances the Court
ought to have found that there were extenuating

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circumstances.

The question then is, what would be appropriate sentences?

In a case such as the present, this is a particularly difficult question. None of the accused had previous convictions, although they had reached the ages of 36, 27 and 33 years respectively. One of them was employed at the time and the others had previously been employed. It can be assumed that apart from this crime they were law-abiding members of their community. Their conduct was prompted by deeply-held beliefs and genuine fear, and it was not regarded by themselves, or by the community in which they lived, as morally reprehensible. They are not criminals in the ordinary sense and imprisonment could not therefore be reformative. On the other hand, the fact that the deceased, a comparatively young girl, was killed in a particularly dreadful manner must also be given due

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weight. Moreover, as pointed out in S v Nxele (supra) at 758A:

"the Courts must guard against undue leniency when such belief has manifested itself in conduct which is criminally punishable. For the effect of undue leniency in relation to possible repetition of such conduct must always be borne in mind. Unlawful acts, even if committed under genuine belief of justification, cannot lightly be countenanced."

Taking all these considerations into account, a sentence of ten years' imprisonment would seem to be appropriate.

The appeal against the sentences imposed on count 1 a.re upheld. In the case of each appellant the death sentence is set aside and a sentence of 10 years' imprisonment substituted. (The sentence of imprisonment imposed on the third appellant in respect of the second

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count is to run concurrently with his sentence on the first count.)

M E KUMLEBEN JUDGE OF APPEAL

RABIE ACJ)
BOTHA JA) _ concur
MILNE JA)

NICHOLAS AJA)

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