S v Nduli and Others

• Jurisdiction: South Africa
• Judge: Van Heerden JA, Nienaber JA, Nicholas AJA
• Judgment Date: 14 September 1993
• Citation: 1993 (2) SACR 501 (A)
• Hearing Date: 26 August 1993
• Counsel: FL Nkombi for the first appellant at the request of the Cout L Pillay for the second and third appellants at the request of the Court S Ebrahim for the State
• Court: Appellate Division

Nienaber JA:

The three appellants were sentenced to death on a charge of murder and to various terms of imprisonment on a charge of robbery with aggravating circumstances. This is an appeal by the first appellant againt his convictions and sentences on both counts and by the second and third appellants against the sentences of death imposed on them on the murder count.

F The appellants, together with one Malinga, plotted to rob a garage at Reservoir Hills in Durban. The garage, Azmuth Motors, belonged to the deceased and his brother. Second appellant had heard a rumour, a false one as it happened, that the takings at the garage were commonly banked once a week on Monday mornings. The robbery therefore had to take place early on a Monday morning. On the evening of Sunday, 3 December 1989, the G conspirators gathered in first appellant's room at a hostel in KwaMashu, Durban. It was agreed between them that Malinga, who owned a vehicle, would convey them to the scene; that the first appellant, armed with a firearm, would stand guard outside the premises; and that the second and third appellants, armed with a gun and a knife respectively, would enter the building and gather the spoils; whereupon they would all escape in Malinga's car which would be parked nearby. The second appellant, who was H the instigator of the plan and the leader of the gang, made a point of mentioning that weapons were needed and would be used if they should encounter resistance.

No sooner said than done. Early the next morning, Monday 4 December 1989, at approximately 06:00, the three appellants left in Malinga's motor vehicle. Second appellant directed him to the garage. Malinga was instructed to park the vehicle half a kilometre or so away and await their I return. The three appellants thereupon left. Almost immediately, according to the evidence of Malinga, the first appellant returned and borrowed R2 from him. First appellant then rejoined the other two and proceeded towards the garage. He positioned himself outside the building, some 40 paces or so from its entrance. Second and third appellants entered the office section of the building, second appellant armed with a gun, third appellant with a knife, as agreed. Second appellant had a denim slingbag over his shoulder. They encountered one Luthuli, a youngster employed at J the garage, and

Nienaber JA

A ordered him to keep quiet. The deceased was in the cashier's office busy counting the petrol takings of the previous two days. Second appellant entered the room, took the money, and re-appeared with the deceased. The two appellants wanted to know where the safe was. Both the deceased and Luthuli denied knowledge of any safe. The two appellants shoved the deceased down a passage. Luthuli retreated into a storeroom. Soon thereafter he heard the sound of a gunshot. What had happened is not B entirely clear since there were no eyewitnesses, apart from the two appellants, and they declined to testify. But second appellant did make a statement to a magistrate, exh J, which the Court a quo, after a protracted trial-within-a-trial, and in the teeth of strenuous opposition from second appellant, eventually admitted in evidence. In it he said:

C 'Two of us entered the garage and one person remained outside near the door. When he entered the garage the other person was armed with a knife. I was armed with a firearm. When we entered the garage the Indian was busy counting the money. He was facing a window. I touched the Indian with my left hand, I showed him the firearm and told him not to move. He turned towards me and laughed. My companion collected the money and placed it in a bag. We asked him where the other money was. He said D there was no other money. I pulled the Indian into an office and instructed him to point out the safe to us. He refused to do so and he grabbed me. When he grabbed me my companion had gone to look for the key. I called my companion and asked him to come and assist me. He came and pushed the Indian and the Indian was still holding me. My companion E stabbed the Indian once. The Indian jumped away and screamed. My companion told the Indian to keep quiet. He continued screaming. My companion stabbed him again. The Indian continued screaming. Eventually my friend asked me to shoot the Indian because he was making a noise. I fired once only. After I had fired, the Indian turned his back to me. At that stage we ran out.'

(The post-mortem examination of the body revealed only two wounds: a fatal F gunshot wound near the deceased's left armpit and a single non-fatal 4 cm-deep stab wound which penetrated the left lung.)

The two appellants left the building immediately after the shooting. The deceased's son, who had in the meantime arrived at the garage, saw them. They began running. The deceased's son got into his vehicle and chased them and even managed to run the second appellant down with his vehicle but when the third appellant shouted to the second appellant to shoot him, G the deceased's son took avoiding action and the two appellants managed to escape, at least for the time being, through the bushes in the direction of the Umgeni river.

Malinga, the driver, in the meantime had had second thoughts about the entire enterprise, or so he said. While the appellants were approaching the building he drove off and took up a fresh vantage point some distance away. He heard the shot being fired and saw the second and third H appellants emerge from the building. At the same time a bus stopped near where the first appellant was stationed. First appellant embarked and was driven off. Malinga returned to the hostel where he found the first appellant and later the third appellant. The latter informed him, in the first appellant's presence, that he and the second appellant fled after the second appellant had shot the deceased. They crossed the Umgeni river on foot but the second appellant, who carried the money in the slingbag, I was swept away by the stream. The third appellant did not know whether he was still alive. As it happened, the second appellant had been apprehended by the police. The denim slingbag, containing a knife, the deceased's keys, bank notes and money amounting to R530 as well as the gun, were eventually recovered at places pointed out to the police by the second appellant. The slingbag was found in a pool in the river and the gun at a J hiding place...