S v Mgedezi and Others
Jurisdiction | South Africa |
Judge | Botha JA, Smalberger JA, M T Steyn JA |
Judgment Date | 30 September 1988 |
Citation | 1989 (1) SA 687 (A) |
Hearing Date | 12 September 1988 |
Court | Appellate Division |
Botha JA:
The six appellants in this case were convicted by a Judge J and assessors in the Circuit Court at Klerksdorp on four counts of murder and
Botha JA
A one count of attempted murder. Three of the appellants, Nos 1, 2 and 3, were sentenced to death on each of the four counts of murder, and to 15 years' imprisonment each on the fifth count, ie attempted murder. Appellant No 4 was sentenced to 10 years' imprisonment on each of the five counts, the sentences to be served concurrently. The remaining B two appellants, Nos 5 and 6, were each sentenced to seven years' imprisonment on each of the five counts, such sentences also to be served concurrently. The trial Judge granted leave to the appellants to appeal against all their convictions and sentences.
The appellants had been charged together with two other persons. Of the latter, one, who was accused No 5, died about midway through C the trial, during a period when it stood adjourned for a few weeks. The other, who was accused No 8, was acquitted on all counts at the conclusion of the case. In the present judgment the individual appellants and their erstwhile co-accused will be referred to by the designations assigned to them in the Court a quo. So, the numbers of the first four appellants will coincide with their numbers as accused in D the Court below, but the remaining two appellants will be referred to as accused Nos 6 and 7 respectively.
The trial was a sequel to violence that erupted on the night of 18 February 1986 in a compound comprising the single living quarters of the workers employed at the No 5 shaft of the Vaal Reefs Gold Mine near E Orkney. With a view to the discussion which is to follow later of some of the major issues raised in this appeal, it is necessary at the outset to attempt a description of the layout of the locality in question. It is depicted in an aerial photograph which was exh H at the trial and which was used by most of the witnesses as a means of reference to point F out the various places to which their evidence related. The picture shows 11 large, double-storeyed, oblong buildings in which the workers are housed. There is an indication in the record that each hostel is roughly 100 metres in length. Approximately 4 600 workers live there. The 11 hostels are spread out over a large area of ground, which is fenced in. The dimensions of the area were not given in evidence, but the photograph conveys a clear impression of spaciousness. There are G a number of other smaller buildings situated in between the 11 hostels, such as ablution blocks, a bioscope, a television viewing room, and so forth, and there are also open spaces, in some places covered by clusters of trees.
Each hostel is referred to as a block with a specific number, from 1 to 11. They are situated as follows. Along the northern boundary of H the compound, at the top of the photograph, there is a large building complex which was referred to in the evidence simply as the kitchen. With the kitchen as hub, seven of the hostels are spread radially around it in an arc of, I would say, roughly 120 degrees. Block 7 lies directly to the west of the kitchen and is in line with it, along the I northern boundary of the compound and extending to its western boundary. Looking towards the top of the photograph, ie northwards, block 7 is thus to the left of the kitchen. The other buildings in this group of seven then extend in a semicircle from left to right (west through south to south-east) for about two-thirds of the area of the compound on a line from west to east. The hostel furthest to the east (or to the right, looking northwards) is block 1. The northenmost end of block 1 J is roughly opposite the eastern end of the
Botha JA
A kitchen and it lies in a direction roughly from north-west to south-east. There is a semicircular road around the south of the kitchen. The inner ends of blocks 1 to 7 converge on this road, where they are relatively close to one another; their ends along the outer periphery are considerably further apart from one another, but the distances between them are not uniform. The blocks are numbered, 1 to 7, B from the east to the west, or, looking towards the kitchen, from right to left. The remaining four hostels are situated to the south of the group of seven described above. There is one, running from north to south, in the south-western corner of the compound; this is block 11. At right angles to it, in a line along the southern boundary, we find blocks 10 and 9. From the eastern end of the latter, block 8 slants C away at an angle of about 40 degrees, towards the north-east. It ends up directly opposite the south-eastern end of block 1, but some distance away from it. To the east of block 8 there is a chapel.
The entrance gate to the compound is situated to the east of block 1; looking at the photograph, to its right. On an east - west line the D entrance gate is more or less opposite room 12 in block 1. As will appear presently, room 12 was the focal point of the violence which gave rise to this case. The distance between room 12 and the entrance gate appears from the record to be about 50 metres. The area in between is open except for the presence of some trees in that vicinity. Inter alia, there is a small cluster of trees close to the entrance gate, on its E western side; and there are two small clusters of trees to the south-east and east of room 12, the one quite close to the building and the other slightly further away. To the south-east of the entrance gate there is a short line of what appear to be small structures and buildings, and the same can be seen to the north-east of the entrance gate. Otherwise, to the east (or right) of the entrance gate there is a F fairly large open area, extending up to a number of large buildings which are adjacent to one another, running from the north-west to the south-east and covering practically the entire area on a north - south line corresponding to the area comprising the compound. These buildings include an administration block, offices, a medical station, and a so-called 'crush block', at the northern end of the complex, through which underground workers must proceed on their way to and from the G mine shaft, which is still further eastwards, beyond another area of open ground. The building complex has a number of passageways through which a person coming from the west can move in order to reach the open area to the east of it.
Room 12 in block 1 is situated on the ground floor, roughly two-thirds of the way along the length of the hostel from its northern or H kitchen end, or one-third of the way from the other end, which is nearest to block 8. Next to room 12, to the south-east, there is a staircase in the building, leading up to the top floor, and at the same place there is also a passageway at ground level, through which people can proceed from one side of the building to the other. There is a similar staircase with a passageway situated at about one-third of the I length of the building from the kitchen end. Blocks 2, 3, 4, 5 and 6 all have similarly placed staircases and passageways. The door of room 12 faces east and it opens on to a narrow stoep or verandah. Next to the door there is a large window which, within its outer frame, contains four squares. Each square contains an inner framework enclosing six J smaller squares with six separate window panes.
Botha JA
A The two large lower squares have hinges at the top and they can be opened, when an inner lever is released, by pushing them outwards and upwards, thus providing a fairly large open space in the wall. On the inner side of the door and window there is a portion of the room which can be described as the living area, and which is furnished with B lock-up cupboards, tables, chairs and so forth. To the back of this area are the sleeping quarters, consisting of two parts which are separated from each other by a dividing wall, and from the living area by curtains. Each sleeping area has four beds, and at the back each has a window in the western wall of the building, half the size, lengthwise, of the front window, and otherwise of similar construction.
C At about 8 pm on the night of 18 February 1986 a number of men launched a vicious, violent attack on room 12 and its occupants at the time. As far as the room itself is concerned, photographs taken of it shortly after the arrival of the police at about 10 pm depict a scene of havoc and devastation. Viewed from the front, every single pane in D the window was broken. No door is visible in the doorway. Marks on the wall show where stones, pieces of concrete and other missiles had missed their mark. At the back, many, if not all, of the window frames had also been broken. Inside, to put it colloquially, the room was a complete shambles. Metal bedsteads were overturned and up-ended, and chairs were E broken and overturned. The floor was littered with an almost unbelievable quantity of stones, rocks, bricks, pieces of concrete, pieces of metal, and innumerable pieces of debris of various kinds. Also, a large fire had been set alight inside the room. Police evidence was that the inside walls of the room were blackened by smoke and that there was a strong smell of petrol in the room. Black smoke marks can be F seen in the photographs of the outside of the room, along the tops of the windows at the front and at the back. Many of the witnesses who gave evidence at the trial testified to having observed a huge cloud of smoke that emanated from the room.
I turn to the fate of the men who were in the room at the time of the attack. There were six of them. Two of them lived to tell the tale - which they did, at the trial, as witnesses for the State. They G are Fernando Nhone and Molikeng Albert Nkuatsana. I shall refer later to the details of their evidence insofar as they implicated some of the...
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