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[1989] ZASCA 150
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S v Mthembu (148/89) [1989] ZASCA 150 (23 November 1989)
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between:
JOHN MTHEMBU Appellant
AND
THE STATE
Respondent
Coram: SMALBERGER, KUMLEBEN et EKSTEEN, JJ.A. Heard:
23 November 1989
Delivered: 23 November 1989
REASONS FOR JUDGMENT
EKSTEEN, J.A. :
The appellant was convicted of murder in the
Circuit Local Division for the Zululand District. No
2
extenuating circumstances were found and he was sentenced to
death. Leave was subsequently granted to him by the trial Judge to appeal
to
this Court "against sentence". I take it that this means that the appeal is
against the trial Court's finding that no extenuating
circumstances existed.
After hearing Mr. Jeffreys for the appellant, the Court dismissed the
appeal, and indicated that its
reasons would be handed in later. These are
the reasons.
The State case was that an uncle of the appel-
land
had hired the appellant and one Siboniso Nxele to
kill the deceased, and that
they had carried out this
mandate by forcing their way into the hut of the
deceased
on the night of 4 August 1988 and stabbing him to death.
The
uncle of the appellant,Velaphi Mbonambi, was charged
3
together with Nxele and the appellant with the murder of the
deceased. There was so little evidence against him however that he was
discharged at the end of the State case. Nxele and the appellant were both
convicted of murder, but extenuating circumstances were
found in the
case of
Nxele and he was sentenced to 15 years' imprison-
ment.
There is no appeal against the conviction,
nor could
there have been. The wife of the deceased
described graphically how two men,
pretending to be
policemen, had forced their way into the hut and
stab-
bed the deceased with a long knife. The district sur-
geon found 49
stab wounds to the chest, body and upper
arms of the deceased. Three of these
wounds had
4
penetrated the heart and caused the death of the de-
ceased. Both the
appellant and Nxele made confessions to a magistrate in which they confessed to
having been the assailants of the
deceased. They both confessed to having been
hired by the appellant's uncle to kill
the deceased, and to having carried
out their mandate.
The death of the deceased as a result of the stabwounds
sustained was clearly proved aliunde, ánd there was al-
so ample
evidence to confirm the allegations in the
confessions.
In their evidence at the trial both Nxele and
the
appellant denied all complicity in the murder.
The appellant who had
initially alleged that he had been
forced to make his confession and schooled
as to what
5
to say, subseguently denied making the confession at all. Both of them were such bad witnesses that their evidence was rejected in toto, and this finding has not been chal-lenged before us on appeal.
Mr. Jeffreys, who argued the matter before us
on behalf of the appellant,submitted that extenuating
circumstances ought to have been found in the youth of
the appellant at the time of the commission of the offence,
taken together
with the influence which his uncle, an
inveterate enemy of the deceased, must
have had over him.
Then he also referred to an allegation in Nxele's
con-
fession to the effect that appellant had told Nxele that
the deceased
was pestering his uncle and bewitching
"their mother and children".
6
As regards the youth of the appellant it appears to be common cause that he was 23 years and 10 months old at the time of the commission of the offence. He passed Standard VII at school in 1984, and had been employed at a factory for two years. He then worked for a veterinary surgeon for a few months before resorting to coaching soccer teams. A clinical psychologist, who examined him at the request of his Counsel, found that he had an aver-age range of intelligence, was socially skilled, and well able to function as a leader. He was also of the view that the appellant was "possessed of sufficient intellect and powers of reasoning to have made a balanced and reasoned decision to execute the contract" he had entered into with his uncle. Youthfulness can therefore hardly
7
be said to have constituted an extenuating circumstance in the present
case.
As regards the other two features referred to by Mr. Jeffreys
viz. the alleged influence of the appel-lant's uncle over him, and his
alleged belief in witch-craft, there does not seem to be any evidence
to support
these allegations. The appellant has made no such alle-gations. On the contrary
he has denied all complicity in the killing
of the deceased. The only reference
to witchcraft on all the evidence is to be found in Nxele's confession. Such a
confession is
clearly inadmissible as evidence against the appellant (sec. 219
of Act 51 of 1977). Nor would it seem to be admissible in his favour
(Wigmore,
Chadbourn revision para. 1076, Phipson
8
(13 th Ed.) para. 22-17; Rex v Jaspan and Another 1940
A.D. 9 at p 16). But quite apart from that, Nxele in his evidence at the trial
also denied all complicity in the killing and denied making
the confession
attributed to him. On this evidence, therefore,it can hardly be said that the
appellant has discharged the onus of
show-ing that these submissions could be
taken into account in considering the existence of extenuating
circumstances.
Finally Mr. Jeffreys submitted that the trial Court
ought to have considered the fact that the appel-lant had no previous
convictions in extenuation.
That the existence or non-existence of previous
convictions should be disclosed to the trial Court at all prior to its judgment
on
the issue of extenuating circumstances
9
seems to me to pose certain problems. However, I
am in respectful agreement with Colman J. in S v Khumalo 1968 (4) SA 284
(T) at 284-5 that the absence of previous convict-
ions in itself cannot be
an extenuating circumstance, but at best a factor which could be borne in mind
as part of
the accused's general background. In the present case,
in the
light of the brutality of the killing of the de-ceased, this feature cannot
assist the appellant in any way to discharge the
onus which rests upon him. The
appeal was therefore bound to fail.
J.P.G. EKSTEEN, J.A.
J.W. SMALBERGER, J.A.
I concur .
M.E. KUMLEBEN, J.A.