S v Mkaba and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Steyn CJ, Ogilvie Thompson JA and Wessels JA
• Judgment Date: 01 October 1964
• Citation: 1965 (1) SA 215 (A)
• Hearing Date: 14 September 1964

E Steyn, C.J.:

In the Court below the appellants Zinakile Mkaba, Vuyisile Mini and Wilson Khayingo, were charged with seventeen counts of F sabotage in terms of sec. 21 of the General Law Amendment Act, 76 of 1962, six counts of contravening sec. 11 (a) of the Suppression of Communism Act, 44 of 1950, one count of housebreaking with intent to steal and theft, and also with murder. There were alternative charges to which it is not necessary to refer in any detail. The second appellant G was acquitted on eight of the charges of sabotage and three of the charges of contravening the 1950 Act. On the other charges he was found guilty, except that in respect of one count of sabotage he was convicted on an alternative charge of inciting or encouraging the commission of sabotage, and in respect of the charge of housebreaking and theft he was H convicted of the theft only. The other appellants were convicted on all the charges except one of sabotage, and in resespect of two other charges of sabotage they were likewise found guilty on an alternative charge of inciting or encouraging the commission of that offence. On the charge of murder, all three of the appellants were found guilty with no extenuating circumstances. Sentence of death was imposed on each appellant.

As regards the convictions of sabotage, sec. 21 of the 1962 Act prescribes the penalties provided for by law for the offence of treason,

Steyn CJ

subject to a proviso which is not relevant for present purposes. The maximum punishment would accordingly be the death sentence. In view of the finding as to extenuating circumstances, that sentence had to be A imposed on the charge of murder. In passing the death sentence, the trial Judge observed:

'The accused have been found guilty of several offences for which the law gives the Court a discretion to impose sentence of death. On one of the counts on which the accused have been convicted the Court has got no discretion at all. I propose to pass only one sentence in this case which will be in respect of all the offences of which the accused have been convicted.'

B The trial Court granted leave in general terms to appeal to this Division. Before this Court counsel for the appellants confined himself to the convictions of murder and the sentences imposed, and did not pursue the appeal in respect of any of the other convictions. This Court is accordingly not called upon to deal with the other convictions, but I C would...