S v Ngubane

• Jurisdiction: South Africa
• Judge: Jansen JA, Miller JA and Botha AJA
• Judgment Date: 28 February 1980
• Citation: 1980 (2) SA 741 (A)
• Hearing Date: 15 February 1980
• Court: Appellate Division

Miller JA:

G The appellant was tried together with two others on a charge of murder. The case was heard by BROOME J and two assessors, sitting in the Northern Circuit Local Division of the Natal Provincial Division at Estcourt. The appellant, who was No 1 accused at the trial, and No 3 accused were convicted as charged. There is no appeal by No 3 accused. H BROOME J and one of the assessors having found that in the case of the appellant there were no extenuating circumstances, the appellant was sentenced to death. With the leave of the trial Judge he appeals against the sentence on the ground that the Court ought to have found that there were circumstances extenuating his crime, as, indeed, one of the assessors found.

The evidence established and the Court a quo unanimously found that the appellant and a man named Jabu, each armed with a pistol,

Miller JA

awaited the expected arrival of the deceased near his home. Their common purpose was to shoot him. In due course the deceased arrived, driving a A motor car up to the front gate of his home where he stopped. The two armed men thereupon approached the stationary car, the appellant calling out the deceased's name by way of greeting. Upon reaching the car from which the deceased had not yet alighted, both men fired several shots at him. The deceased was hit three times; two of the bullets caused relatively minor B injuries but the third bullet, which penetrated the heart, fatally injured the deceased.

After conviction the appellant elected to give evidence in mitigation. Whereas previously, when giving evidence in support of his plea that he was not guilty, he had denied that he shot the deceased or was present at all when he was shot, he now admitted that he actively participated in the C shooting of the deceased. He was concerned, however, fully to explain how it came about that he did so. In essence his explanation was that first No 2 accused and later she and her husband, No 3 accused, approached him and Jabu with a view to procuring their services for the purpose of eliminating a man who was said to be a 'witch' (I shall henceforth omit D the quote marks) and who was causing them much trouble. This witch was said by No 2 accused to be a person who 'cast spells' on them and 'killed their children' and who had recently threatened also to bewitch No 3 accused. At the third meeting with No 2 accused, the appellant agreed to do what she and her husband asked. He said that Jabu had by that time already agreed. On the following day he and Jabu met No 3 accused and went E with him to his home. The appellant had his own firearm and Jabu was provided with one by No 3 accused, who instructed them to wait until the witch arrived. Before long the deceased drove up in...