S v Ndlovu

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Rabie AJA
• Judgment Date: 25 November 1969
• Citation: 1970 (1) SA 430 (A)
• Hearing Date: 20 November 1969
• Court: Appellate Division

B Holmes, J.A.:

In the Natal Provincial Division the appellant, a Zulu man, was convicted by VAN HEERDEN, J., and assessors of the crime of murder, on two counts. The first count related to the killing of Mpopoli Zondi and the second to the killing of Jwatwa Zondi. The latter was C Mpopoli's son. They were both killed on the same occasion, on 29th January, 1969.

With regard to the appellant's killing of Mpopoli, the trial Court found that there were extenuating circumstances and the appellant was sentenced to imprisonment for 12 years. There is no appeal in respect of that count.

D With regard to the appellant's killing of Mpopoli's son on the same occasion, no extenuating circumstances were found; the appellant was sentenced to death; and he appeals, contending that the extenuating circumstances, which were found in relation to his killing of Mpopoli, also bear on his killing of the latter's son.

E At the trial the appellant was No. 3 accused. Charged with him were Ringi Nxele (No. 1 accused) who is a witch-doctor, and Vincent Shange (No. 2 accused). Nos. 1 and 2 were convicted on both counts and were sentenced to death, and have not appealed. The part which they played in this gruesome drama will emerge later.

F The factual background is not in dispute. The appellant was a family man, living with his wife and children in a rural location near Henley, in the district of Pietermaritzburg. On a Thursday towards the end of 1967 one of his children, aged about five years, was playing with others at the kraal of Mpopoli. The child did not come back. His parents never saw him alive again. His mother went to investigate and, on her return, G reported to the appellant that some of the children had told her that Mpopoli had locked her child up. This report is not proof of that fact, but it is relevant to the appellant's state of mind. The appellant then went to see the induna, and asked him to accompany him to Mpopoli's kraal to set the child free. The induna would not do this. On the following day the appellant sent two grown men to fetch the induna. The H latter refused to move in the matter. The appellant then reported the matter to the police who, so he says, informed him that it was the induna's responsibility, as the police intervened only when blood had been spilled. The appellant went a second time to the police, and again they refused to act in the matter. Then the appellant received a message that the dead body of his child had been found on a farm some distance away. The appellant went there and was told that the body had been taken to the police station at Howick. He repaired thither and saw the

Holmes JA

body of his child. His account of what he found is as follows -

[The learned Judge then set this out in detail and continued.]

According to Warrant Officer Potgieter, stationed at Plessislaer, the A appellant reported to him his observations and suspicions after seeing his child's body. Potgieter put a telephone call through to Howick and, in consequence of what he ascertained, told the appellant that, according to the medical post-mortem report, his child had died as the result of having been struck by lightning; and that the police at Howick did not...