S v Mzinyane and Others

• Jurisdiction: South Africa
• Judge: Corbett JA, Joubert JA and Jacobs JA
• Judgment Date: 26 November 1987
• Citation: 1988 (2) SA 151 (A)
• Hearing Date: 06 November 1987
• Court: Appellate Division

Jacobs JA:

The three appellants were convicted by Galgut J and two F assessors in the Northern Circuit Local Division at Ladysmith, Natal, of murder without extenuating circumstances and sentenced to death. With the leave of the trial Judge the appellants appeal against the finding that there were no extenuating circumstances and against the death sentences. The allegations against them were that on 3 March 1986 and at or near the Mnweni River in the district of Bergville the appellants unlawfully and intentionally killed Mapegu Mtolo (the deceased). I shall G for the sake of convenience continue to refer the the appellants individually as accused Nos 1, 2 and 3 as they appeared before the trial Court.

The facts and circumstances surrounding the killing of the deceased which led to the convictions and sentences of the accused can be summed H up as follows.

Accused No 1 had a relationship with the sister of the deceased as a result of which she became pregnant. At a tribal hearing which followed, accused No 1 was ordered to pay two head of cattle as damages. The deceased, as head of the girl's family, was apparently pressing for payment and accused No 1 was unable to pay. On the evening of Monday, 3 I March 1986, accused Nos 2 and 3, who were cousins of accused No 1, arrived at the home of the deceased. They pretended to be policemen and told the deceased, his wife and her mother that they had come to fetch the deceased who, so they said, was wanted by the police. When asked what the deceased had done they said that further enquiries could be made by the family at the police station the next day. Accused Nos 2 and J 3 thereafter

Jacobs JA

A handcuffed the deceased with a pair of handcuffs which they had with them and took him away. I may perhaps at this stage say that the evidence was to the effect that the deceased was physically and sexually underdeveloped. He weighed approximately 40 kg and although he was approximately 37 years old, he had the general appearance of a 13-year-old boy. Early the next morning the deceased's family went to B the police station where they were told that the police knew nothing about the whole matter and that the deceased had not been fetched from his home by the police or by anyone acting on their behalf. A search for the deceased was then organised and later the same day his body was found in a deep pool in a river about 1½) km from deceased's home. The body was inside a synthetic plastic bag. In the bag were also three C large stones which were obviously put there to keep the bag under the water. The findings of the doctor who performed the autopsy were that the deceased had not died of drowning, but of loss of blood caused by multiple stab wounds and lacerations on his neck and head, the most serious of which were three lacerations next to the right ear, which severed certain vital arteries or veins in the neck, and one stab wound D near the Adam's apple.

The three accused were arrested a week or two after the discovery of the deceased's body and shortly thereafter each of them made a statement before a magistrate. Despite objections on accuseds' behalf these statements were, after a trial within a trial, admitted as evidence against the respective accused. In his statement accused No 1 admitted E that, because the deceased had been pressing him for payment of the damages he had been ordered to pay, he decided to kill the deceased and for this purpose enlisted the aid of accused Nos 2 and 3. At his request accused Nos 2 and 3 fetched the deceased from his home and brought him to where he, accused No 1, was waiting. The three of them then cut the deceased's throat and put his body in a bag which they dumped in a pool in the river. In their statements accused Nos 2 and 3 for all practical F purposes confirmed accused No 1's version of the events and admitted the part they played in the commission of the crime.

After the close of the State's case, all three accused testified in their own defence. They merely repeated their evidence during the trial G within a trial which was to the effect that what they had told the magistrate in their statements to which I have referred earlier was not true. Each one again relied on alleged assaults by certain policemen which assaults were aimed at forcing them to confess to the crime and which, so they alleged, resulted in them making the statements before the magistrate. Accused Nos 2 and 3 in addition, as they did during the trial within a trial, relied on alleged promises by accused No 1 after H their arrest that, if they admitted to having assisted in the killing of the deceased, he, accused No 1, would see to it that they would be acquitted should they appear before a Judge accused of committing the crime.

I After the three accused were convicted of murder, Dr Buccimazza was called as a witness by Mr Singh, who appeared on behalf of accused Nos 2 and 3. He had examined these two accused for the purposes of establishing their respective ages. His opinion, which was based largely on the accused's tooth and sexual development, was that accused No 2 was in his early twenties. It was put to him that according to the accused J he was

Jacobs JA

A born in 1967 which would have made him 19 at the time of the trial. His answer was that, if he had to accept that accused No 2 was in fact 19 years old when he examined him, he would say that the accused was in any event closer to 20 than to 19. The doctor was of the opinion that accused No 3 was probably older than accused No 2 and he estimated accused No 3's age at 20 - 21. I may just add that accused No 1 testified B that he was born in 1964 and this was apparently accepted by the trial Court.

Accused Nos 2 and 3 were thereafter called to testify in extenuation. Their versions were for all practical purposes to the same effect and can be summarised thus. They both admitted that the evidence given by them during the trial within a trial as well as their evidence given C after the close of the State case was untrue. They stated that they lived about three hours' walk from where accused No 1 lived with his father, who is their uncle. On Sunday, 2 March 1985, they were away from home and on their return in the late afternoon they received a message that during their absence their cousin, accused No 1, had been there and had left a message that accused No 1's father wanted them to come to his D kraal. They immediately proceeded to their uncle's kraal but, although accused No 1 and his father were there when they arrived, no one told them, nor did they ask anyone, why they had been called. Accused No 1 and his father merely told them to come back the next day. The next day, ie Monday the 3rd, they went back to accused No 1's home. On their way E they were met by...