S v Jama and Others

• Jurisdiction: South Africa
• Judge: Botha JA, Hefer JA, Vivier JA
• Judgment Date: 30 March 1989
• Citation: 1989 (3) SA 427 (A)
• Hearing Date: 14 March 1989
• Court: Appellate Division

Vivier JA:

During the night of 23 December 1985, a crowd of about 100 Blacks proceeded to the house of Nobanzi Yaze in Kubusi Township near Stutterheim. Asleep inside the house were Nobanzi, her daughter Nosisi Yaze, the latter's three children, Nobelungu, Mziwabantu and H Zamekaya, and another grandchild, Linda, the daughter of Nonceba Yaze. Members of the mob forced their way into the house, severely assaulted Nobanzi and finally poured petrol over her and her two daughters, Nonceba (who had in the mean time been fetched from her own home by other members of the mob) and Nosisis, and set them alight. Nobanzi's house was also set alight. All three women later died in hospital as a result of their burns.

I Following upon these events the 10 appellants (to whom I shall individually refer as accused Nos 1, 3, 4, 5, 9, 10, 11, 12, 13 and 14 respectively) together with six others (to whom I shall refer as accused Nos 2, 6, 7, 8, 15 and 16 respectively) appeared in the King William's Town Circuit Local Division before Beckley J and assessors on three counts of murder and one count of arson. Despite their pleas of J not guilty, all the

Vivier JA

A appellants were found guilty on all four counts. Accused Nos 2, 6, 7, 8, 15 and 16 were found not guilty on all counts.

In respect of the convictions of accused Nos 4, 5 and 9 on the three counts of murder, the Court a quo found that there were no extenuating circumstances. Consequently each of these accused was sentenced to death on each of the three counts of murder. In respect of the convictions B of accused Nos 1, 3, 10, 11, 12, 13 and 14 on the three counts of murder, the trial Court found that there were extenuating circumstances, and accused Nos 1, 3 and 13 were each sentenced to 10 years' imprisonment on each count; accused Nos 12 and 14 were each sentenced to 12 years' imprisonment on each count and accused Nos 10 and 11 were each sentenced to 14 years' imprisonment on each count. In the case of all C these accused the sentences of imprisonment imposed on the three counts of murder were ordered to run concurrently. On the count of arson the appellants were each sentenced to 18 months' imprisonment which, in the case of accused Nos 1, 3, 10, 11, 12, 13 and 14, was ordered to D run concurrently with the sentences on the murder charges.

With the leave of the Court a quo all the appellants appeal to this Court against their convictions on all the charges and accused Nos 4, 5 and 9 also appeal against the findings that there were no extenuating circumstances and the sentences of death which were in E consequence imposed upon them.

At the trial five eye-witnesses testified on behalf of the State: Nobelungu Yaze and Linda Yaze, who were in Nobanzi's house at the time of the attack on the house, and Mandisa Stungu, Ntombizanele Kawa and Nomakuthweni Jacob, who were members of the mob and who were warned by the trial Judge as accomplices. For convenience I shall refer to F the first-mentioned two witnesses as well as to the three deceased by their Christian names and to the last-mentioned three witnesses by their surnames. The appellants all testified in their own defence and they all denied that they were present at the scene or at a meeting which, according to Stungu and Kawa, was held just before the attack on Nobanzi's house. According to Stungu and Kawa it was said at the meeting that Nobanzi and her two daughters had to be burnt since Nobanzi was G a witch.

The trial Court accepted the evidence of Stungu. She was found to be a more reliable witness than either Kawa or Jacob. The trial Court nevertheless accepted portions of the evidence of the last-mentioned two witnesses. The trial Court furthermore found that there were H certain discrepancies in the evidence of the other two eye-witnesses, Nobelungu and Linda, but, because they supported each other in regard to the general outline of the events, certain portions of their evidence could be accepted as reliable. The trial Court rejected the evidence of the appellants, who all said that they were at home at the relevant time. They were all found to be unimpressive and evasive witnesses.

I It is convenient to set out first the evidence of Stungu, Kawa and Jacob. All three of these witnesses testified that on the night in question they were fetched from their respective homes after they had already gone to bed and that they were forced to accompany the mob by those who fetched them. According to Stungu and Kawa they were first taken to the meeting and from there to Nobanzi's house, whereas J Jacob's evidence was that she

Vivier JA

A went with the crowd directly from her house to Nobanzi's house. (All three witnesses were subsequently detained and were still in detention at the time they gave evidence at the trial.)

Stungu, an 18-year-old girl, testified that she was fetched from her home just after eight o'clock that evening by three men, Andile B Mlatu, Yekanja Kali and Teni Kawa, and taken to the meeting which was held near the local shop. About 100 people attended the meeting, which lasted for two and a half hours. It was said at the meeting that Nobanzi must be burnt as she was a witch and that she had killed one of the comrades. The crowd then proceeded to Nobanzi's home. One person among the crowd carried a container with petrol.

C Stungu identified the people she saw at the meeting as well as the man who carried the petrol by mentioning their names. Thus she mentioned the names of accused Nos 1, 4, 5, 9 and 10 as people she saw at the meeting; the names of accused Nos 4 and 5 as those who said that Nobanzi must D be burnt and the name of accused No 10 (Myuyu) as the man who carried the petrol. When the prosecutor, however, asked her to point Myuyu out in Court she was not certain whether he was accused No 10 or accused No 15 and said that she was uncertain of Myuyu's face. She was then asked to point out the accused whom she saw at the meeting but whose names she did not know. Amongst those she pointed out was accused No 10. E Shortly thereafter she reaffirmed that she was uncertain whether the person whose name was Myuyu, and whom she had seen at the meeting and also carrying petrol at Nobanzi's house, was accused No 10 or accused No 15. From subsequent evidence it became clear that in appearance accused No 15 did not resemble accused No 10 at all. In cross-examination F she became certain that accused No 10 was the man she saw carrying the petrol but, to compound the uncertainty, later on said that it was not accused No 10, but indeed accused No 9 whom she saw carrying the petrol.

Stungu testified that when the mob arrived at Nobanzi's house accused No 9 knocked on the front door, which was then opened. Accused Nos 5, G 9 and 10 were amongst those who entered the house. Teni Kawa and Yekanja Kali, carrying whips, also entered. Stungu was standing in front of the crowd about 10 paces away from the front door and had a clear view of the house from where she was standing. Ntombizanele Kawa was standing next to her. Stungu said that initially only Nobanzi and Nosisi were H present in the house. Some members of the mob then went to fetch Nonceba and brought her to the house. Nobelungu, Linda and the smaller children were then forced out of the house; they came out crying and ran away, and at the same time Stungu saw accused No 10 pouring petrol over Nobanzi, Nosisi and Nonceba and setting them and the interior of the house alight. Stungu then ran home. It was then between midnight and one o'clock. Stungu said that she was arrested three days later and I released after two days. She was redetained on 12 March 1986.

Stungu was cross-examined at length about a letter and a note, both...