S v Ngoma

• Jurisdiction: South Africa
• Judge: Corbett JA, Joubert JA, Nicholas JA, Galgut AJA and Smuts AJA
• Judgment Date: 25 May 1984
• Citation: 1984 (3) SA 666 (A)
• Hearing Date: 01 May 1984
• Court: Appellate Division

Corbett JA:

The deceased, Mrs G E Uys, lived with her husband, Mr G J C Uys, on the farm Elandshoek in the district of Cullinan. On the evening of Monday, 15 November 1982, the two F of them sat for a while in the lounge of their home watching television. At about 21h00 Mr Uys went to bed. It was their custom to sleep in separate bedrooms when one of them stayed up after the other had gone to bed. Mr Uys rose fairly early the following morning. He went outside into the garden to have a G swim in the swimming pool. In passing the bedroom in which his wife was to have slept he noticed that the bed was undisturbed. Outside he further noticed that a pane of glass in a glass door giving access from the garden into the lounge was broken. He went to investigate and found his wife lying dead in the lounge. She had been shot. It was a clear case of murder. A H wrist-watch which the deceased had been wearing was missing.

The police were summoned. They investigated the crime and three days later the appellant was arrested. In due course he appeared before a Judge and two assessors in the Transvaal Provincial Division on charges of (1) murdering the deceased and (2) robbing the deceased of her wrist-watch or, I alternatively, of breaking into the home of Mr Uys with intent to steal and the theft of the wrist-watch. Upon arraignment the appellant pleaded not guilty to count (1), viz that of murder, and guilty to the main charge under count (2), viz robbery. The Court found him guilty on both counts and in regard to the murder charge held by a majority, one of the assessor members of the Court dissenting, that there were no extenuating circumstances. He

Corbett JA

was sentenced to death on count (1) and to three years' A imprisonment on count (2). The trial Judge granted appellant leave to appeal against the finding that in respect of count (1) there were no extenuating circumstances.

As the trial before the Court a quo progressed it became apparent that most of the material facts were not in dispute. The appellant is a young Black man. The determination of his B age is a matter to which I shall allude later. He grew up in Delmas. At the time of the trial both his parents were deceased, but an uncle was evidently alive. At school he did not progress beyond the sub - A standard. He entered the employ of Mr Uys some time during 1982 and worked for him for about three months as an ordinary farm labourer. About six C weeks before the murder of the deceased the appellant and a companion broke into the farm house while Mr Uys and the deceased were away and stole various articles, including a.22 rifle, a 9.3 mm Husqvarna rifle and a quantity of 9.3 mm ammunition. The appellant appropriated the 9.3 mm rifle and his companion the.22 rifle. Appellant hid the 9.3 mm rifle and the D ammunition in a field of long grass about 500 m from the farm house. Shortly thereafter, and because of the breaking in, appellant absconded and disappeared from the farm.

On the day in question, 15 November 1982, the appellant travelled from the home of his sister in the Dennilton district, where he was staying, to Bronkhorstspruit. He was on E his way to Boskop. Upon his arrival in Bronkhorstspruit, he, so he says, purchased five cartons of sorghum beer. He drank three of those in Bronkhorstspruit. He then caught a train and travelled by train as far as Van der Merwe station, where he alighted. There he drank the remaining two cartons of beer. This was at about sunset. Van der Merwe station is evidently situated fairly close to the farm of Mr Uys. The appellant then F decided to go to fetch the rifle which he had stolen and hidden on the farm. He went there and found the rifle. He then proceeded to the farm-house, carrying the rifle with him. He stopped on a lawn outside the lounge about 25 m from the house. In addition to the glass door, the lounge had large glass G windows on the side facing the lawn. The lights were on inside the lounge and the windows were uncurtained. Appellant saw the deceased in the lounge. He pointed the rifle in her direction and a shot was fired. The bullet went through a pane of glass in the glass door and struck the deceased from behind on her left shoulder, two centimetres from the mid-line. It entered H her neck and passed through her mouth. Fragments of the bullet were found in the lounge. It was a soft-nosed bullet designed to do maximum damage on impact. In addition, the evidence of a ballistics expert indicated that the impact with the glass rendered the bullet an unstable projectile. The results of the bullet striking the deceased were devastating. It caused a large gaping entrance wound. It shattered the first cervical I vertebra, certain facial bones and portions of the skull. There was subdural and subarachnoid bleeding. The doctor who performed the autopsy gave, as the cause of death, this gun-shot wound "met misvorming en verbrokkeling van die rugmurg, skedel, gesigsbene en mond".

After firing this shot the appellant approached the house. He put his

Corbett JA

A hand through the broken pane in the glass door and opened the door from within. He entered the lounge. He saw that the shot which he had fired had hit the deceased. She was bleeding. He could not tell whether she was alive or not. A handbag was lying next to the deceased. He looked inside this hoping to find money, but it contained only wool, presumably knitting B wool. He then removed the deceased's wrist-watch from her body and left. He took the rifle with him and again concealed it on the farm, this time in a different place about 800 m from the house. He then returned to Van der Merwe station and continued on his way. The following evening he gave the wrist-watch to his sister, Johanna Ngoma, and told her that he C had picked it up in a bus. On Thursday, 18 November 1982, appellant was arrested by the police and charged with murder and house-breaking. Appellant immediately admitted the house-breaking and later conceded that he had shot the deceased. He pointed out various places, including where he had concealed the rifle, both before and after the shooting.

The issue before this Court is whether in regard to the murder D conviction the finding by the majority of the Trial Court that no extenuating circumstances existed should stand or not, but before I come to deal with this issue it is necessary to say something about the appellant's age and the manner in which this issue was dealt with by the Court a quo.

E When the appellant initially appeared before the magistrate of Cullinan, in terms of the provisions of s 119 of the Criminal Procedure Act 51 of 1977, his age was stated in the charge-sheet to be 18 years. The record of these proceedings was placed before the Court a quo. Where a person convicted of murder was under the age of 18 years at the time when the crime F was committed, the Court has a discretion as to whether to impose the death sentence or not. On the other hand, if the person concerned was not under the age of 18 years, ie was 18 years old or more, at the time of the commission of the murder, then, unless there were extenuating circumstances, the death sentence is obligatory. (See s 277 (2) of Act 51 of 1977.) Thus G only where the accused was not under the age of 18 years at the time when the offence was committed is it necessary for the Court to decide whether extenuating...