S v Dladla

• Jurisdiction: South Africa
• Judge: Trollip JA, Corbett JA and Miller JA
• Judgment Date: 14 November 1979
• Hearing Date: 05 November 1979
• Court: Appellate Division

Miller JA:

E The appellant, together with two others, stood trial in the Durban and Coast Local Division on a charge of murder. He was convicted and, no extenuating circumstances having been found, he was sentenced to death. His application for leave to appeal against the conviction and sentence was refused and he thereupon, successfully, petitioned the Chief F Justice for such leave. The appeal was heard on 5 November. After conclusion of argument the Court made an order allowing the appeal and setting aside the conviction and sentence and intimated that reasons for the order would later be filed. Those reasons now follow.

G The appellant was No 3 accused at the trial. No 1 accused will herein be referred to as Khanyile and No 2 as Mkhize. At the commencement of the proceedings held in terms of s 119 of Act 51 of 1977, the record of which was handed in at the trial, the appellant and Mkhize pleaded not guilty. Khanyile pleaded in these terms:

H 'I plead not guilty but I did not have the intention to kill her, but I killed her.'

(The 'her' thus referred to was the deceased woman, Daphne Mlambo, named in the indictment.) After the magistrate had carefully explained to him that he was not obliged to make admissions and that he was to consider whether he wanted to admit that he had killed the deceased, Khanyile said that he did not 'kill her with my hands' but that '(I)t was in fact accused No 3 who killed her'. Khanyile thereupon, in answer to a question by the magistrate, gave a fairly detailed account of the events which culminated in the killing of the deceased. Mkhize and the

Miller JA

appellant made brief statements to indicate the nature of their defences and the magistrate thereafter entered a plea of not guilty in respect of A each of the three accused persons. Upon closure of the State case in the Court a quo, Mkhize's counsel successfully applied for the discharge of his client. Thereafter both Khanyile and the appellant gave evidence. Neither called any other witness. The result of the trial in respect of the appellant has already been disclosed. Khanyile was also found guilty of murdering the deceased but in his case extenuating circumstances were B found and he was sentenced to 12 years' imprisonment, of which four years were conditionally suspended. He was not a party to this appeal.

It appears from the evidence that Khanyile and the deceased were lovers but that, at the time with which we are concerned, Khanyile was annoyed with her because he knew or believed that she had acquired a new lover. C During the night of 28 July 1978 the deceased was in the room of the witness Jane Duma, who was her friend. Jane's boy friend was also in the room. According to Jane, whose evidence was accepted by the Court a quo, they were disturbed by the noise of knocking on the door and against the D window of the room. She opened the door and a man whom she had never seen before entered the room, holding aloft a knife. Khanyile and Mkhize, both of whom were known to Jane, followed him into the room. Jane expressed the opinion that the appellant was the man with the knife, although she admitted...