S v Dambalaza and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Steyn CJ, Rumpff JA and Holmes JA
• Judgment Date: 06 December 1963
• Citation: 1964 (2) SA 783 (A)
• Hearing Date: 02 December 1963

A Holmes, J.A.:

In the Butterworth Circuit Local Division the eight appellants were convicted of the crime of murder. Originally, 21 men were indicted in respect of the crime but, at the outset of the trial, the State withdrew the charge against 13 of them. It will be convenient to refer to the appellants as the accused and to retain the numbers by B which they were designated at the trial. Accused Nos. 2, 3, 5, 8, 19 and 20 were sentenced to death. Accused Nos. 4 and 6 were sentenced to imprisonment because of the existence of extenuating circumstances in their cases.

The State case in outline was that on the night of 26 March, 1963, a C body of armed men assembled at the kraal of one Dyubele; that it was there decided to proceed forthwith to the kraal of a certain Zayedwa in order to kill him because he had given some information to the Police; that the armed party, which included the eight accused, proceeded to its destination; that at least two huts were there set on fire; that Zayedwa D managed to escape; and that the deceased, on emerging from one of the burning huts, was hit by every member of the party; and that each of the accused was criminally liable for his death.

The defence in each case was an alibi. These defences were rejected by the trial Court. It is perhaps hardly necessary to emphasise that they were not charged with the attempted murder of Zayedwa, but with the muder of the deceased.

E Dealing with the State case in more detail, it is in my view safe to say that there were some 20 men in the armed party which arrived at Zayedwa's kraal. I say this for the following reasons: An accomplice named Butsumu said in evidence that at the meeting in Dyubele's hut F there could have been more present than there were people in the Court. The number in Court was not recorded, but it is indicated by the following question and answer in the re-examination of Butsumu:

'I think you told us in your evidence there were over 30 people present at the hut. You remember you said there were more people than in the Court when I asked you to point out? - Yes.'

Furthermore, Butsumu mentioned by name 18 of those at the meeting and G said that there were others too. Before the party set out, the old men were told to remain behind, but Butsumu says that only Dyubele stayed. On the way to Zayedwa's kraal one man fell out because of lameness. Lastly, another accomplice, Khonakhona, said in evidence that there were about 20 in the party at Zayedwa's.

H It is clear from the evidence that the leaders of the party were accused No. 2, and two others, Cintshela (whose name is spelt variously in the record), and Nqaba. The latter two carried fire-arms and brought up the rear of the party en route. This was to inhibit any thoughts of desertion. Accused No. 2 was in front. The arms carried were sticks, assegais, and battle-axes.

What happened at Zayedwa's can be gathered from the evidence of the four State eye-witnesses, Butsumu, Khonakhona, Zayedwa himself, and another person who was in his hut, namely Wilson, a teacher. I

Holmes JA

shall deal first with Zayedwa. His kraal consists of three rondavel-type huts in a row. In the centre one there were that night, besides...