S v Mkize

• Jurisdiction: South Africa
• Judge: Wessels JA, Hofmeyr JA and Hoexter AJA
• Judgment Date: 29 September 1978
• Citation: 1979 (1) SA 461 (A)
• Hearing Date: 26 September 1978
• Court: Appellate Division

Wessels JA:

Appellant (a 27 year old male) and Jabuliswe Ndlovu (a 45 year old woman) appeared before BROOME J and assessors in the Zululand and North Coast Circuit Local Division on a charge of murder. It was alleged in the indictment that they had wrongfully and intentionally

Wessels JA

killed Ndlovu's husband, Ezra Ndolvu. They were both found guilty; in the case of appellant of murder without extenuating circumstances, and in the A case of the deceased's wife of murder with extenuating circumstances. In her case, the learned Judge a quo imposed a sentence of eight years' imprisonment. In the case of appellant the mandatory death sentence was imposed. Appellant's application for leave to appeal against his conviction, and the finding that no extenuating circumstances were shown to have existed, was dismissed by the presiding Judge. The appellant's B appeal, which is limited to the issue of extenuating circumstances, is before this Court pursuant to leave granted by the CHIEF JUSTICE.

In evidence given at the trial. appellant denied that he had been a party to the killing of the deceased. His alibi defence was rightly rejected by the trial Court. His co-accused did not give evidence. In her case the trial Court took into account, as an extenuating circumstance, the admitted fact that the deceased had on occasion assaulted her in a brutal C manner. On one occasion he had broken her arm. Shortly before the murder, the deceased so seriously injured her one eye that it had to be removed. This assault also resulted in partial deafness. It was also urged on her behalf that she had consumed liquor during the early evening before the murder took place. This submission was rejected by the trial Court.

D In so far as appellant is concerned, the trial Court held that it had not been proved by him that he had in any way been affected by intoxicating liquor at the time the murder took place. It was also contended on appellant's behalf that he knew of the brutal treatment meted out by the deceased to his wife, and that his feeling of sympathy with her caused E appellant to act as he did. As to this, the judgment of the Court a quo reads as follows:

"It was also argued that the evidence given by the witness Zephaninah Ndlovu regarding the previous history of trouble between accused No 2 and the deceased was a matter which should be taken into account but the Court considers that, as there is no relationship between accused No 1...