S v Chimbamba and Another

• Jurisdiction: South Africa
• Judge: MacDonald CJ, Lewis JP and Davies JA
• Judgment Date: 19 September 1977
• Citation: 1977 (4) SA 803 (RA)
• Hearing Date: 03 June 1977
• Court: Appellate Division

MacDonald, C.J.:

The appellants were convicted in the General Division of this Court of the murder of Marie Chesney-Grandi. G No extenuating circumstances were found and they were accordingly sentenced to death.

The indictment was in the following terms:

"In that upon or about 9 October 1976 and at or near 46 Caledon Avenue, Hatfield, Salisbury, aforesaid, the accused did both and each or one or other of them wrongfully, unlawfully and maliciously assault Marie Chesney-Grandi, in H her lifetime a European woman there residing, and did then and there strike her in and upon the head and body with clenched fists and booted feet or some blunt instrument and did apply manual pressure to her throat, giving to her then and there and thereby certain mortal wounds, bruises, injuries and hurts, from the effects of which said mortal wounds, bruises, injuries and hurts upon or about the 13 October 1976 and at Salisbury Central Hospital, Salisbury aforesaid, the said Marie Chesney-Grandi died: and thus the accused did both and each or one or other of them the

MacDonald CJ

said Marie Chesney-Grandi wrongfully, unlawfully and maliciously did kill and murder."

Both appellants now appeal against conviction on the ground that the trial Court erred in finding that they were at the scene of the crime and involved in it and both appellants A maintain that the trial Court should, on the grounds of duress, have rejected any statement or indication made by them.

In evidence at the trial, the second appellant both admitted and denied that he was at the scene of the crime and involved in what took place.

Mr. Sandura made no submissions in support of the grounds of B appeal raised by the first appellant. Without conceding that the first appellant was one of the persons involved, he submitted that, since the Court a quo could not decide which of the two appellants strangled the deceased and inflicted the other serious injuries on her he should have been convicted of culpable homicide only. Mr. Maruza adopted a similar approach. C He, too, submitted that the second appellant should at most have been convicted of culpable homicide.

The deceased, aged about 82 years, lived alone in a house in the Hatfield area of Salisbury. Stands in the area are large and in the result the deceased's house was somewhat isolated D from that of her neighbours. She kept no dogs for her protection, but had a pistol. She had no servants. The appellants were aware of these facts. On the night of 9 October 1976 the deceased's house was broken into. Entry was gained through a door which must have been unlocked at the time since there was no evidence of any damage to it. The appellants were associated in this crime of housebreaking and their purpose was E to steal money. It must be accepted on the evidence that initially one of the appellants, it was not established which, remained outside, probably to keep watch while the other entered the house. The appellant who entered the house assaulted the deceased, inflicting the serious injuries from which she died on 13 October 1976. The appellant who had F initially remained outside entered the house after the assault and must have become aware that the deceased had been injured. The most serious injuries had been inflicted by manual strangulation and by either sitting or kneeling on the deceased's chest. The hyoid bone in the neck and 17 ribs had been fractured. The evidence did not establish that the appellant who entered the house after the assault became aware that the injuries inflicted might prove fatal, but this must G have been the state of knowledge of the perpetrator. Before leaving the house, the appellants disconnected the telephone by breaking the cable and locked the front door through which they left. This is established by the fact that when the deceased was eventually discovered, all the doors were locked and all H the windows were closed. In the result, the police were obliged to break in.

After the departure of the appellants the deceased was able to write a note and to prop it against the window of the room in which she was found by the police in such a way that it could be read from the front verandah of the house. The note was recovered by the police and reads:

"Call police. Am badly injured. Assailant took the front door key and disconnected phone. Urgent, and my gun."

The reference in the note to an assailant is one of the reasons for

MacDonald CJ

accepting that initially only one of the appellants entered the house.

The deceased was discovered on the morning of 13 October...