South Africa: Supreme Court of Appeal

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

CASE NO.69/90

In the matter between

SIPHO ALTON GONONDO DLOMO FIRST APPELLANT
SIPHIWE MFANO BLOSE SECOND APPELLANT
VOMO MBEKENI MAPHUMULO THIRD APPELLANT
AND
THE STATE RESPONDENT

CORAM: HEFER, GOLDSTONE JJ.A. et KRIEGLER AJA
DATE HEARD: 27 AUGUST 1991
DATE DELIVERED: 2 SEPTEMBER 1991

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JUDGMENT

GOLDSTONE JA:
The three appellants stood trial in the Durban and Coast Local Division before Shearer J and two assessors on a charge of murdering Lebelephi Alexia Mzulwini (the deceased). The second appellant was also charged with the attempted murder of Timothy Vikinduku Mzulwini (Timothy). The three appellants were found guilty on the murder charge and second appellant was also found guilty of assault with intent to do grievous bodily harm. In respect of the murder convictions the Court a quo found that none of the appellants had discharged the onus of establishing
2 extenuating circumstances. At the time the death sentences, in the circumstances, were mandatory and the appellants were accordingly sentenced to death. In respect of the assault conviction the second appellant was sentenced to imprisonment for six years. With leave of the Court a quo the appellants now appeal to this Court against their convictions and sentences.
During the early evening of 25 September 1987 the deceased, her husband, their daughter Hazel and son Albert were sitting in the dining room of their home. They were watching television. Timothy, another son, was in a bedroom. A knock was heard at the dining room door. Timothy came through from the bedroom and enquired as to who was there. A voice answered saying it was Dlamini and that he had been there the previous day. Timothy opened the door and two men entered the room. They were wearing balaclavas and black coats. The first man who entered
3 carried a gun and the other a knife. The former fired a shot at Timothy which hit him in the thigh. He fired three shots at the deceased. They hit her in the chest and abdomeh. The second man then stabbed the deceased four times in the area of the left breast. The deceased died shortly afterwards. The cause of death was bleeding from a bullet wound in the heart. The Court a quo held that the two intruders were the second and third appellants, that the gun was fired by the second appellant and that the third appellant stabbed the deceased. The first appellant was held to have been the instigator of the murder of the deceased and in pursuance thereof to have supplied the second appellant with the loaded gun.
In his judgment, the learned Judge a quo conveniently classified the State witnesses as:

"(a) those whose evidence was concerned with the plot to kill the deceased and the attempts to

4 recover a f ee for the killing thereafter;
(b) those who were witnesses to the killing itself;
(c) those who gave evidence of the arrest of the accused and the circumstances surrounding such arrest; and
(d) those who gave evidence of circumstances surrounding statements made by accused No 1 [the first appellant] and accused No 4 [the third appellant] to Magistrates. The witnesses to the arrests also gave evidence material to the circumstances surrounding the statements."

The witnesses in category (a) were Mr Gumede and Ms Dlamini. From their evidence it emerged that Gumede's late wife had arranged with one David Khumalo that he would hire assassins to murder the deceased. Mrs Gumede had believed that the deceased was a witch and that she had been responsible for the death of her grandchild. Dlamini, at
5 the time was the girlfriend of Khumalo and was either present when some of the arrangements were made or overheard conversations relating thereto. Khumalo was arrested by the police in connection with the murder of the deceased. He died before the commencement of the trial. Both Gumede and Dlamini testified as to aspects of the arrangements made by Mrs Gumede with Khumalo. Dlamini, in addition, testified as to the arrangements made by Khumalo with the appellants and a fourth man (who was the third accused in the Court a quo and who was aquitted). In particular she stated that she was present in Khumalo's home on the evening in question when the first appellant handed the gun to the second appellant and told him that he was to be in charge. Shortly thereafter the second and third appellants, who were wearing balaclavas and coats, left in the company of Khumalo and the first appellant. After a short while the latter two returned. Later on the second and third appellants

6 returned out of breath. She heard the first appellant scold the second appellant for having used three bullets. He complained that in consequence the ammunition was finished.
On the morning after the incident, according to Gumede, the first appellant demanded payment from the Gumedes for having killed the deceased. Gumede paid him R300. The first appellant regarded that amount as insufficient and subsequently, without their consent, he took the Gumedes' radio and cassette recorder in order to realise what he regarded as the balance of their indebtedness to him.
In the course of a careful judgment, the learned Judge a quo said that he regarded both Gumede and Dlamini as accomplices. Their evidence was treated with caution. He said of Gumede that he was not a good witness and contradicted himself from time to time. On the other hand
7 the Court a quo found Dlamini to be an honest witness who, with the passage of two years between the incidents and the trial, may have become confused on certain points. She was found to have given "a responsible and unbiased account of what happened in her presence".
Counsel for the first and third appellants submitted that the Court a quo failed to take into account what he referred to as material contradictions between her evidence on the one hand, and the contents of a statement made by her to the police some seven months after the event and the State's summary of substantial facts on the other hand. I have given careful consideration to counsel's submissions and in my judgment there is no basis for finding fault with the approach adopted by the Court a quo with regard to the evidence of Gumede or Dlamini or with its assessment of their credibility. In material respects Dlamini corroborated the detail of some of the events

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described by Gumede. And, as to the time of the incident and manner of dress of the second and third appellants, the evidence of Dlamini was corroborated by that of members of the family of the deceased. Further corroboration was also correctly found by the Court a quo in the description given by the latter witnesses of the respective heights and complexions of the second and third appellants. They were consistent with the roles attributed to them by Dlamini.
The second category of witnesses related to those who were present at the killing itself. I have already summarised. their version. No attack was or could reasonably have been made upon the finding by the Court a quo that there was no doubting their honesty.
The third category related to the witnesses to the arrest of the appellant. Perhaps the most important aspect of that part of the evidence was the attempt by the first appellant to rid himself of the revolver, exhibit 1. That

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revolver turned out to be the one from which a bullet

removed f rom the body of the deceased had been fired. It

is correct that the evidence concerning the dispatch by the

police of the revolver and the bullet to the forensic

laborataries disclosed gross inefficiency. However, no

suggestion was or could be made that the policemen concerned
conspired to concoct false evidence against the appellants.

Shearer J said of the investigating officer that:

"Mabaso impressed us as a completely honest and reliable witness. He gave his evidence frankly, confidently and responsibly."

Again I can find no good reason to criticize that assessment. The criticisms made by counsel of Mabaso relate to matters which are not material and which do not in any way detract from the finding of the Court a quo. In addition to the good impression made by Mabaso there was the patently mendacious testimony of the first appellant in particular. The adverse findings made against all of the
10 appellants by the Court a quo were not attacked during argument in this Court.
The fourth category of witnesses related to the written statements made to magistrates by the first and third appellants. Little reliance was place upon those statements by the Court a quo. With regard to.the first appellant the learned Judge a quo said:

"The statement, which is admissible against accused No 1 only, affords substantial corroboration to the evidence of Thandi Dlamini with respect to the case against him. The five names of persons present and the production of the firearm are features which minimise the risk in accepting her evidence. In addition the association of accused No 1 with a payment demanded from the Gumedes and accompanied by the siezing of the radio cassette combination were all consistent with his complicity in some sort of mercenary task."

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In my opinion that reasoning cannot be faulted.
The version of the first appellant was to the effect that duiring 1987 he sold a motor car engine to Khumalo. On an occasion Khumalo told him about a relative, Mrs Gumede, who needed herbs. According to the first appellant, he was a seller of herbs. Khumalo sent Dlamini to call Mrs Gumede. The first appellant sold herbs to her to a value of R190. She paid to him R40 on account. Thereafter he again went to Khumalo's home. The other two appellants and the third accused all arrived there. There was a discussion outside between Khumalo and the second and third appellants. He could not hear what was said. Khumalo came in and said that they were going somewhere and would return soon. The three men were away for some time. When they did return there was an argument between Khumalo and the third appellant. Khumalo accused him of being a coward. On the following day he found Mr and Mrs Gumede

12 at Khumalo's home. They talked about money for the herbs but he was not paid. That afternoon the third appellant accompanied him to the home of the Gumedes. Mrs Gumede told him that she did not have the money to pay him and she asked him to take a radio cassette combination so that he could sell it, reimburse himself and pay any balance to her.
The second appellant testified to the effect that he had purchased a gearbox for a motor vehicle from Khumalo. He paid R100 therefor. Khumalo did not deliver the gearbox and he obtained one from another source. He went to Khumalo to get a refund of his money. When he arrived at Khumalo's home, the first appellant, the third accused and Dlamini were present. Soon after the third appellant arrived. Khumalo reguested the second appellant to accompahy him somewhere. The third appellant joined them. On the way the latter left them saying he was going to a
13 toilet. They continued and went to a house. They entered it and the second appellant sat on a sofa. As he sat down he heard a gunshot. Khumalo pointed a gun at him and handed him a knife telling him to stab the person who had already been shot. He took the knife and stabbed the person in the upper part of the body. He and Khumalo then returned to the home of the iatter.
Then there is the version of the third appellant. According to him, he and one Blose had been hired to kill the deceased. They pretended to have done so and received payment of R150. On the following day Khumalo accused them of dishonesty and urged them to carry out their undertaking to kill the deceased. Khumalo and Blose went to the home of the deceased. He heard the sound of gunshots and when Khumalo and Biose returned they said they had performed the job.

The Court a quo rejected the evidence of the three

14 appellants. As I have already mentioned, in this Court their counsel did not suggest that there was any basis for a different finding. A reading of the record demonstrates their wholly unsatisfactory performances in the witness box. The Court a quo, furthermore, had the advantage of seeing and hearing them testify. I can find no reason to differ from the approach of the Court a quo.
It was submitted on behalf of the second appellant that it was reasonably possibly true that he had wielded the knife and not the firearm. However, his whole version concerning his possession of the knife was correctly rejected by the Court a quo. He denied that he was wearing a balaclava and a coat. The falsity of that denial was established by the evidence of Dlamini and the eye witnesses to the murder. His manner of dress proclaimed his nefarious purpose in visiting the home óf the Mzulwinis. That he did not sit on the sofa was similarly established by

15 those eye witnesses. In addition, the second appellant did not raise a defence of duress when he gave a contradictory version in the s119 proceedings in the Magistrate's court.
The State's case was founded upon both eye witness testimony and strong circumstantial evidence. Therein lay its strength. There was in addition the objective corroboration afforded by the evidence of the first appellant having taken the Gumedes' tape recorder and cassette player. That was common cause. Then, too, there was the evidence, admitted by all three appellants that, for whatever reason, they were at the home of Khumalo on the evening in question and that an expedition left from there for the home of the deceased.
In my judgment there is no merit in the appeal against the convictions.

I now deal with the question of sentence. Since

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the trial and convictions of the appellants the Criminal Procedure Act 51 of 1977 has been amended by the Criminal Law Amendment Act 107 of 1990, which come into operation on 27 July 1990. In a number of judgments of this Court the
effect of those amendments has been considered. In S v
Mabizela 1991(2) SACR 129(A) Friedman JA summarised the principles which were enunciated in those decisions as follows:

"1 . The death sentence for murder is no longer mandatory.
2. There is no longer an onus on an accused to establish extenuating circumstances.
3. The trial Judge has a discretion to impose the death sentence, but only with due regard to the finding which the trial Court is obliged to make on the presence or absence of any mitigating or aggravating factors, and only if the Judge is satisfied that the death sentence is the proper sentence.

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4.	The relevant provisions of the amending legislation are retrospective and must be applied by this Court in an appeal heard by it after the date on which the amendments came into operation.
5.	This Court has an independent discretion to decide whether the death sentence is the proper sentence.
6.	By the words 'the proper sentence', is meant 'the only proper sentence'."

We know little of the personal circumstances of the appellants. The first appellant, aged 35 years at the time of the incident, gave his occupation as that of a "herbalist". He lived in the shack of the sister of Khumalo. He has one previous conviction for theft. It was committed in 1981 and in respect thereof he was sentenced to 2 years imprisonment.

The second appellant, aged 37 years at the time,

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never attended school and described himself as "aimost illiterate". He lived in a hostel. When he was arrested he was installing a windscreen wiper in his own motor vehicle. He has three previous convictions. The first, in 1971, was for assault with intent to do grievous bodily harm. The sentence was R100 or 100 days of which R70 or 70 days imprisonment was conditionally suspended. In 1983 the second appellant was convicted on charges relating to motor vehicles. In 1986 he was found guilty of common assault and sentenced to pay a fine of R50.
When the offence was committed the third appellant was aged 27 years. He was unemployed. He has a previous conviction for culpable homicide. The date thereof is 13 March 1981. The sentence was 5 years imprisonment of which 2 years was conditionally suspended for 4 years.

There was no suggestion from counsel that there is further evidence which could be adduced relevant to sentence

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and no application was made for the matter to be remitted to the Court a guo for that purpose.
It is an extenuating factor in respect of the first appellant that he has no previous conviction for a crime involving violence. That is not the case in respect of the second and third appellants. In respect of all of the appellants it was urged upon us by counsel that the real instigator of the murder was Khumalo. Even if that be so I cannot regard it as an extenuating factor in the circumstances of this case. The first appellant was clearly the leader of a group of hired killers. He gave them their instructions and the second and third appellants carried out those instructions. The role played by Khumalo does not in way lessen the blameworthiness of the appellants.
Any decent member of society will instinctively and roundly condemn the hired killer. The reasons therefor
20 are obvious and reference with regard thereto may be made to S v Mlumbi 1991(1) SACR 235(A) at 251 g-h. Whén giving consideration to the objects of punishment (deterrent, preventive and retributive) it may be said that the appellants are capable of reform. Having regard to their conduct and their mature ages, however, I must confess to having some doubt on that score. In any event in a case such as the present it is the deterrent and retributive objects which come to the fore. Hired killers must be made aware that, save possibly in exceptional circumstances, the courts will impose the ultimate sentence upon them. Furthermore, society is unlikely to regard even a life sentence as adequate retribution. For these reasons, in my opinion, the only proper sentence is the death sentence. I need hardly add, in this regard, that there is no basis for treating any of the three appellants differently from the others.

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The appeal accordingly fails, both in respect of the convictions and sentences.

R J GOLDSTONE

HEFER JA )

KRIEGLER AJA ) CONCUR