S v Mzinyane and Others

• Jurisdiction: South Africa
• Judgment Date: 26 November 1987
• Citation: 1988 (2) SA 151 (A)

S v Mzinyane and Others
1988 (2) SA 151 (A)

1988 (2) SA p151

Citation	1988 (2) SA 151 (A)
Court	Appellate Division
Judge	Corbett JA, Joubert JA and Jacobs JA
Heard	November 6, 1987
Judgment	November 26, 1987

Flynote: Sleutelwoorde

Criminal law — Murder — Extenuating circumstances — Atrocity of crime cannot exclude or wipe out such extenuating circumstances as there may be — C Youthfulness — Accused teenagers and thus prima facie to be regarded as immature — Other factors, however, relevant and should be taken into account in considering whether the moral blameworthiness of the accused is reduced — Trial Court, in finding that no extenuating circumstances proved, not shown to have misdirected itself — Not shown that trial Court could not D reasonably have come to its finding — Appeals dismissed.

Headnote: Kopnota

The atrocity of a crime as such cannot exclude or wipe out such extenuating circumstances as there may be.

The three accused were convicted of murder without extenuating E circumstances and sentenced to death. Accused No 1 had made the deceased's sister pregnant. At a tribal hearing accused No 1 was ordered to pay damages of two head of cattle which the deceased had demanded, but accused No 1 had been unable to pay. Accused No 1 sent his cousins, accused Nos 2 and 3, to fetch the deceased and, in the guise of policemen, they 'arrested' him and took him away from his home. The deceased was a frail, diminutive man aged 37, about the size of a 13-year-old boy. He was stabbed, his throat was slit and his body was F dumped in a plastic bag in a pool in the river and weighed down by stones. Evidence was led on behalf of accused Nos 2 and 3 that they were youths of 19 or 20 at the time of the murder. The trial Court found no extenuation and noted that it was a most despicable crime done for a money motive. It was contended on behalf of accused Nos 2 and 3 that the Judge a quo had misdirected himself in testing the extenuating factors against 'the horrible circumstances in which the deceased had met his G death' and reliance was placed on S v Van der Berg 1968 (3) SA 250 (A). In an appeal,

Held, that the two accused were both teenagers when they committed the crime which meant that they were both prima facie to be regarded as immature.

Held, further, that it would follow from this that a Court would normally be reluctant to find that there were no extenuating circumstances unless there were present other factors such as, for example, the manner of and the motive for the commission of the crime H and whatever else was relevant to show that the crime stemmed from inner vice ('inherente boosheid').

Held, further, that the trial Court had not said or even suggested that the 'horrible circumstances under which the deceased had met his death' per se excluded any extenuating circumstances flowing from the youthfulness and prima facie immaturity of accused Nos 2 and 3.

Held, further, that the trial Court had paid due regard to the youthfulness I of the accused but the Court, in passing a moral judgment, had come to the conclusion that, taking all the circumstances into consideration, it had not been shown that the moral blameworthiness of accused Nos 2 and 3 had been reduced.

Held, further, that it had not been shown that the trial Court had misdirected itself or that its finding was one which it could not reasonably have come to.

Held, accordingly, that the appeals should be dismissed.

The decision in S v Van der Berg 1968 (3) SA 250 (A) explained and J qualified.

1988 (2) SA p152

Case Information

A Appeals from death sentences imposed in the Northern Circuit Local Division at Ladysmith (Galgut J). The facts appear from the judgment of Jacobs JA.

P C Bezuidenhout for the first appellant, at the request of the Court, cited the following authorities: S v Tsankobeb 1981 (4) SA 614 (A); S v Van Rooi en Andere 1976 (2) SA 580 (A); S v Smith and Another 1984 (1) SA 583 (A) B ; S v Lehnberg and Another 1975 (4) SA 553 (A); S v Ceaser 1977 (2) SA 348 (A); S v Van der Berg 1968 (3) SA 250 (A); and S v Mongesi 1981 (3) SA 204 (A).

P Singh for the second and third appellants, at the request of the Court, cited the following authorities: S v Ngoma 1984 (3) SA 666 (A); S C v Babada 1964 (1) SA 26 (A); S v Letsolo 1970 (3) SA 476 (A); R v Fundakubi 1948 (3) SA 810 (A); S v Lehnberg en 'n Ander 1975 (4) SA 553 (A); S v Van der Berg 1968 (3) SA 250 (A); S v Ceaser 1977 (2) SA 348 (A); S v Saaiman 1976 (1) PH H85 (A); and S v Ndhlovu (2) 1965 (4) SA 692 (A).

A R Ludick for the State cited the following authorities: S v Ceaser D 1977 (2) SA 348 (A); S v Mkhize 1979 (1) SA 461 (A); S v Ngoma 1984 (3) SA 666 (A); S v Schoba 1982 (1) SA 36 (A); S v Ndlovu 1970 (1) SA 430 (A); S v Tsankobeb 1981 (4) SA 614 (A); S v Van Rooi 1976 (2) 580 (A); S v Smith and Others 1984 (1) SA 583 (A); and S v Saaiman 1967 (4) SA 440 (A).

E Cur adv vult.

Postea (November 26).

Judgment

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

1988 (2) SA p153

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...