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PHINDAKWENZE MNYANDU NQABISILE NGCOBO

and

THE STATE

SMALBERGER , JA :-

528/87

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

PHIKDAKWENZE MNYANDU First Appellant

NQABISILE NGCOBO Second Appellant

and

THE STATE Respondent

CORAM: CORBETT, SMALBERGER, JJA,

et NICHOLAS, AJA

HEARD: 13 MAY 1988 DELIVERED: 1 JUNE 1988

JUDGMENT

SMALBERGER, JA :-

I have had the privilege of reading

the judgment of my brother NICHOLAS. While I agree with

the /
2 the conclusion reached by him in respect of the first appellant (accused 1), I am unable to share his views concerning the guilt of the second appellant (accused 2). As pointed out by my brother NICHOLAS, both accused gave evidence for the first time in extenuation after having been found guilty of murder. In terms of the decision in S v Mavhungu 1981(1) SA 56 (A) at 64 H - 65 H, such evidence may be taken into account on appeal in considering the correctness of the convictions. I agree that on a proper interpretation of Mavhungu's case, if such evidence raises a defence on the merits, the burden of proof to negative that defence resrs on the State. This, m my view, would follow from the logical application of

the legal /
3 the legal principles governing the burden of proof in a criminal matter. One of the authorities referred to in Mavhungu's case is S v Fisher en 'n Ander 1969(2) SA 632 (A). A perusal of the full judgment in Fisher's case (part of the iudgment is omitted from the report) indicates that evidence given in extenuation relevant to the question of guilt was approached on the basis of whether it could reasonably possibly be true.
I must confess to having certain misgivings about the correctness of the conclusions reached in Mavhungu's case at 65 F - H. It seems to me that they could give rise to various problems. Furthermore, the views

expressed /
4 expressed seem, prima facie, to be at variance with what was said by this Court in S v Vontsteen 1972(4) SA 551 (A) at 558 B - D, a dictum to which no reference was made in Mavhungu's case. In the light of these considerations, and the views expressed in S v Theron 1984(2) SA 868 (A) at 879 D - G, Mavhungu's case (on this point) may require re-assessment in future.
Be that as it may, counsel for the appellants and the State were ad idem that the principles laid down in Mavhungu's case should apply in the present matter, If, therefore, there is a reasonable possibility that the evidence of either of the appellants could be true, (both having, in evidence on extenuation, put forward complete

defences /
5 defences to the charge of murder), he or she would be entitled to an acguittal. Even if accused l's evidence is judged in this light, I am in agreement with the conclusion reached by my brother NICHOLAS that his convic= tion for murder is unassailable. I further agree that the trial Court correctly found that there were no extenua= ting circumstances present in his case. I accordingly share my brother NICHOLAS' view that the appeal of accused 1 should be dismissed. I differ, however, with the conclusion reached by him in respect of accused 2.
While, as my brother NICHOLAS correctly points out, the tria] Court did not misdirect itself when considering whether accused 2's evidence that she acted on compulsion

was /

6
was true on a balance of probabilities, one is in the dark as to what conclusion it would have reached had it approached her evidence on the basis that the onus was on the State to disprove her defence. We are, of course, at large to come to our own conclusion in this regard. The trial Court made no findings, adverse or otherwise, on accused 2's demeanour. It must, therefore, be assumed in her favour that there was nothing adverse in her demeanour. When considering accused 2's evidence one must not lose sight of the contrasting personalities and background of the two accused. Accused 1 is a young man who has worked
for some years in Johannesburg and is presumably relatively

sophisticated. By contrast accused 2 is a 55 year old

woman /

7
woman from a rural environment and presumably (there being nothing to indicate the contrary) relatively unsophisticated. She is part of a culture in which male dominance is recogni= sed and accepted . Not only are these considerations relevant in determining whether accused 2 might reasonably have succumbed to coercion or intimidation, they also provide a background for the proper evaluation of her evidence. (cf S v Mtsweni 1985(1) SA 590 (A) at 594 C).
Accused 2's allegation that accused 1 pointed a firearm at her on the night in guestion, and threatened to kill her unless she kept quiet about what had happened, is not only the crux of her defence of duress, but also

provides an explanation for her subsequent conduct. As

appears /
8 appears from accused 2's s 115 statement the defence of duress was pertinently raised at the commencement of the trial. Earlier in her s 119 statement she had said "Accused No took out a firearm and he said he was going to fire a shot at me". Although in the chronology of events in her statement this was said by her after she had said "I held deceased by her feet", her statement is open to the reasonable interpretation that the reference to the firearm and accused's threat was made in order to explain why she held the deceased's feet. Her defence of duress has therefore been steadfastly maintained. Her evidence that accused 1 had a firearm and threatened to shoot her finds materia] support in the evidence of Sgt Vilakazi.

According /
9 According to accused 2 she told Sgt Vilakazi after her arrest that accused 1 had threatened her and that "he pointed a revolver at me and ordered me to hold the feet", thereby compelling her assistance. Sgt Vilakazi testified that when he confronted accused 1, the latter admitted having been in possession of a firearm on the night of the deceased's death, although he denied having threatened accused 2 with it. Sgt Vilakazi also stated that what accused 2 had said to him was that "she was threatened by Accused no 1, saying that she should not mention that they killed a person". Unfortunately what accused 2 said she
told Sgt Vilakazi was never put to him-he may well have

admitted that she said so, or have conceded that she may

have /
10 have said so. The fact remains that at an early stage after her arrest accused 2 told Sgt Vilakazi that accused had threatened her with a firearm. This, in my view, lends credence to her evidence. While I accept that the death of the deceased was pre-planned, it does not necessa= rily follow, in my view, that accused 2 was a party thereto. According to her, it was accused 1 who asked the deceased to accompany them. The reasonable possibility exists that accused 1 planned the deceased's death on his own. It is true that in the normal course of events it is highly improbable that someone who plans to kill another would take along with him someone who was innocent of his design to observe the event. It is not permissible to indulge

in /

11

in speculation as to why accused 1 would have done so. But it seems reasonable to infer that if accused 1 did threaten accused 2, as she claims he did, he may have bargained on being able by means of such threats to secure her co-operation and silence.

I do not share my brother NICHOLAS' view that accused 2's evidence concerning the events on the morning following the killing is totally lacking in credibility. The deceased had left her kraal in the company of the two accused and had not returned. It is only natural that any search for the deceased the following
morning would have involved a visit to accused 2's kraal to

enquire if she could throw light on the deceased's disap=

pearance, /

12 pearance, as accused 1 had presumably denied all knowledge of what had happened to her. It does not follow, in the context of her defence, that because she lied to the deceased's teenager son that morning that she was a willing participant in what had occurred the previous night. She may have lied out of fear of accused 1, who was present at the time, and whose threats of the previous night would have been in the forefront of her mind. while the inference drawn by my brother NICHOLAS that the two accused had agreed on a scenario which was to be played that morning is clearly a reasonable one, it is not in my view the only reasonable one. Bearing in mind the type of witness one is dealing with, it seems to me that one must guard against

reading /
1 3 reading too much into her answers.
Nor can one necessarily deduce from the fact that accused 2 stayed at the scene while, as she alleges, accused 1 killed the deceased and mutilated her body, that she was a willing participant in the killing of the deceased. Slipping away, unnoticed, while accused 1 was occupied with the deceased, may not have been feasible. It was dark and the undergrowth was thick. The conditions them= selves constituted an obstacle to her running away. In any event, if she did run or slip away into the bushes she would probably have been heard doing so by accused 1, in which case the younger accused 1 could readily have given chase, or even have fired in her direction. In any

event /
14 event, if she had been subjected to threats it is not unlikely that she would simply have remained where she was. Accused 2's conduct must be viewed throughout in the light of her defence. The guestion which arises is whether her conduct is consistent with her acting under duress. To my mind it is. While adverse inferences may legitimately be drawn against her, their sum total does not amount to proof beyond all reasonable doubt. There remains at least a reasonable possibility that her evidence is true, particularly in the light of what she told Sgt vilakazi, and accused l's admitted possession of a firearm. A reasonable doubt therefore exists as to her guilt, to the benefit of which she is entitled.

In the /

15 In the result the following order is made:

1) The appeal of the first appellant is

dismissed.

2) The appeal of the second appellant is
allowed, and her conviction and sentence
are set aside.

J W SMALBERGER JUDGE OF APPEAL

CORBETT, JA - concurs

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