S v Mpungwana

• Jurisdiction: South Africa
• Judge: Dumbutshena JA
• Judgment Date: 01 April 1993
• Citation: 1993 (1) SACR 667 (TkA)
• Hearing Date: 01 March 1993
• Counsel: P Holomisa for the appellant at the request of the Court JP du P Botha for the State
• Court: Transkei Appellate Division

Dumbutshena JA:

The appellant and Lizo Mnqamelo, hereafter referred to as Lizo, were charged with murder and robbery with aggravation. The appellant pleaded guilty to both charges. Lizo denied the charges. A separation of D trials was granted. The appellant was convicted and sentenced to death on the first count and to 15 years' imprisonment on the second count.

He now appeals to this Court against the sentence of death.

The facts in this case are as follows: The appellant was unemployed. He said his clansman arranged for him to meet Lizo who would get him employment. He decided to visit Lizo. He states briefly what he and Lizo E did in his statement made before a magistrate. I reproduce the contents of the statement below:

'A few days before yesterday, I met a man from Libode by the name of Lizo and whose surname I do not know. He is of Libode.

We had met here in Umtata and he told me to meet him in Libode at his home. If I am not mistaken it was on Wednesday the first week of this month when I went to Lizo's place.

F When I got to his home, we both went out. Both of us went to Libode Village and we got to the village at about 5 pm. We went to the garage where car-parts are being sold.

There we came across a certain woman who was selling those car-parts. Lizo called the woman and asked her to look for a certain part of a car for him. This woman got up and went to where the parts were and took one G of them out. I had planned with Lizo that when this woman comes nearer together with this part, I should hit her.

When she came nearer I hit her as planned. Thereafter I jumped over the counter and grabbed her. At that stage Lizo got a chance to go out and close the gate and also the doors.

Lizo searched for the money where spares are sold in the meantime. I H was holding the woman. He eventually got the money from the till. When we divided this money between the two of us, each got a sum of R350. When I could see that the woman could not longer stand up, both of us searched for the keys to her room. We found the keys under a sofa at the spare garage.

Both of us went to open the house. As I was opening the house, Lizo was watching if there were any people coming to us. As we had opened we I could not get anything from the house. We then left. We went to a spot near Lizo's home and that was where we divided the money between the two of us.

I had hit the woman with an iron rod and felled her down. As she was trying to get up from there I stabbed her with a knife on her left side of the chest. That is all that I wanted to say in my statement.'

However in his plea explanation he introduced new matters. These differed in both content and substance from the contents of his J statement.

Dumbutshena JA

A It appeared from his plea explanation that he was in search of work because he was retrenched from the mines in the Orange Free State in 1987. He met Lizo a day before 8 August 1989. His clansman had told him that Lizo had some work for him. He talked about drinking Xhosa beer and consuming quarts of beer. He did not mention this in his statement. He stated that on their way to the garage Lizo picked up a piece of iron covered in plastic which was hidden in the grass. He gave it to him. As B they entered the deceased's premises Lizo told him that they were to get 'money by killing the deceased and robbing her'. The appellant became 'shocked and stunned by the enormity of what he (Lizo) said'. He was afraid of him. He could not retreat. He did not know what Lizo was capable of doing if he refused to go along with his plan. When they were in the premises Lizo told him to hit the deceased as she compared an old globe to C the new one he pretended to buy. He did whatever Lizo told him to do. When he hit the deceased on the head and felled her Lizo instructed him to stab her. The appellant obliged.

Then Lizo asked appellant to give him the knife. He gave it and Lizo stabbed the deceased. He did not mention in his plea explanation that they had planned the murder and robbery. In his statement he said:

D 'I had planned with Lizo that when this woman comes nearer together with this part, I should hit her. When she came nearer, I hit her as planned.'

The appellant added new facts in his plea explanation. It appears he was trying to minimise the part he played in the murder and robbery by implicating Lizo in a material way.

The State relied on his statement and the plea explanation. It led E evidence from two witnesses...