S v Dlamini and Others

• Jurisdiction: South Africa
• Judge: Thirion J
• Judgment Date: 27 August 1982
• Court: Natal Provincial Division

Thirion J:

Four accused, all adult Black women, were charged before us with the murder of John Ndhlovu who was killed at Isinating Location on 10 March 1982. Accused No 3 has already C been acquitted. This judgment deals with the case against the remaining three accused. Accused No 3 is the mother of accused Nos 1 and 2 and the sister of accused No 4. The deceased, John Ndhlovu, was the husband of Phyllis, a daughter of accused No 3. A few days before 10 March 1982 Phyllis died. Her funeral was arranged to take place at Isinating Cemetery on the 10th. D Before that date information reached the accused's family that Phyllis had been killed by the deceased.

On the 10th at about 1 pm relatives of Phyllis, including accused Nos 2, 3 and 4 gathered at the cemetery for the funeral. They waited at the side of the road next to the cemetery for the arrival of the hearse carrying Phyllis' body. E The deceased and accused No 1 accompanied the hearse to the cemetery. When the hearse stopped at the cemetery accused No 1 alighted and joined the other mourners at the roadside. When the deceased stepped from the hearse he was immediately set upon by the people present and killed. The deceased's assailants used an assortment of weapons including cane knives F and knives and inflicted a large number of serious wounds on the deceased. I mention in passing that some of the attackers became so immersed in the matter of the killing of the deceased that they missed Phyllis' funeral.

The district surgeon found 26 clean cut wounds on the deceased's body. The deceased died of brain haemorrhage, a fractured skull and penetrating stab wounds of the chest and G abdomen. Some idea of the ferocity of the attack on the deceased may be gained from the fact that there were four stab wounds into the lungs, two into the heart and one into the liver as well as extensive fractures of the skull. Some of the other wounds penetrated down to the bone. The distribution of the wounds over the torso, head, face and arms indicates an H indiscriminate hacking at whatever part of the body was within reach.

The evidence establishes that a considerable number of persons joined in the concerted attack of a murderous nature on the deceased. From the mood of the crowd, the violence of the attack and the persistence with which it was pursued and the nature of the weapons used it must have been apparent to all I those present that the assailants had the intention to kill the deceased.

Subject, therefore, to what I shall have to say about the question of causation, any person who joined in the attack on the deceased, with an appreciation of the likelihood that the assault would cause the deceased's death, would be guilty of murder.

Thirion J

A The real issue in this case is the extent of the accused's participation in the assault on the deceased and the accused's liability for the death of the deceased, depending as it does on the stage at which the accused's participation commenced.

The State called two witnesses who gave an eye-witness account of the accused's participation in the assault on the deceased. B They were Mfanawempi Ndhlovu and Beauty Cebekulu. The evidence of these two witnesses was however so unsatisfactory, vague and contradictory that no reliance can be placed on it. If the accused are to be convicted, it has to be on their own admissions.

Accused No 1 gave evidence. Her account of the events was as C follows: As soon as the deceased had alighted from the hearse the people gathered at the hearse and a man stepped forward, grabbed hold of the deceased and demanded to know from him who had killed Phyllis. This man and the deceased fell down and accused No 4 struck the deceased with a cane knife. Others joined in the attack. Accused No 1 herself picked up two stones D and threw them at the deceased. They struck the deceased's body. At that time the deceased was down on the ground, trying to ward off the blows. At a later stage the deceased got up and ran a short distance and fell down and was stabbed again.

I deal next with the case against accused No 4. She admitted in evidence that she hit the deceased four blows with a cane knife E on his body. She however denied that she joined in the attack right at its commencement. According to her she started striking the deceased with the cane knife after certain young boys had already stabbed the deceased with knives, but before the deceased had got up from where he had fallen and had run a distance of about eight paces before falling down again. The F evidence of the two accused about the stage which the assault had reached when their participation commenced is not ideally clear. Both say that they assaulted the deceased before he got up and ran a short distance. Both of them therefore admit that they assaulted the deceased when he was still alive. At one stage I was of the view that the deceased would not have been G able to run after he had received the blows which caused the skull fractures or the two stab wounds into his heart and that therefore these injuries must have been inflicted after he had fallen down for the last time and therefore after the two accused had joined in the assault...