S v Sixishe

• Jurisdiction: South Africa
• Judge: Rabie JA
• Judgment Date: 16 January 1992
• Counsel: V E M Tshabalala for the appellant W F Jurgens SC (Attorney-General, Ciskei) for the State
• Citation: 1992 (1) SACR 624 (CkA)
• Court: Ciskei Appellate Division

A Rabie JA:

The appellant (accused No 2 at the trial) and Kwane Sebe (accused No 1 at the trial) were found guilty of malicious injury to property by Heath J in the General Division of the Supreme Court of Ciskei. The evidence showed that accused No 1, who was at that time the head of the Elite Unit, a body established under s 2 of the Elite Unit Act 18 of 1986 (Ck), ordered the appellant, at the time the Deputy Commander of the Defence Force of Ciskei, to destroy the dwelling-house of Zandisile B Witness Ngwanya at Cisira in the district of Peddie; that the appellant, in turn, instructed Victor Vuyisile Nkumanda and Elwin Mqondisi Jeje, both captains in the Defence Force, to destroy the dwelling-house; and that these two men, using explosives, caused extensive damage to be done to the property during the night of 15 December 1989.

C Accused No 1 was sentenced to 12 years' imprisonment, and the appellant to four years' imprisonment. They were, in addition, ordered to pay, jointly and severally (the one paying the other to be absolved), the sum of R70 000, being the amount of the damage done to Ngwanya's house. The appellant was granted leave to appeal against his conviction and the compensatory order. He did not ask the trial Judge for leave to appeal against his sentence. He now asks this Court to grant him such leave. The D request will be dealt with later in the judgment. Accused No 1 was refused leave to appeal.

The factual background to the commission of the offence can be briefly stated. On 11 December 1989, which was a Monday, accused No 1 summoned the appellant to his office and told him that he wanted him to destroy Ngwanya's house. (It was a newly built house and Ngwanya had not yet moved into it.) When the appellant asked him why he wanted the house destroyed, E accused No 1's reply was that Ngwanya had said 'silly things' about him (accused No 1) in Court. (This was a reference to Court proceedings, several months earlier, in which Ngwanya suggested that accused No 1 had been involved in the murder, or cover-up of the murder, of one Mntonga.) Accused No 1's position as head of the Elite Unit gave him no authority F over the appellant, but there was evidence to the effect that accused No 1 did not consider his authority to be limited to matters affecting the Unit. He was, in addition to being the head of the Unit, the son of the President of Ciskei, and apparently it was believed by many that he was, next to the president, the most powerful man in Ciskei. The appellant described his powers as 'wide-ranging' and 'vast'.

G The appellant did not protest or in any way argue with accused No 1 on the day when he was given the aforesaid order, but he took no steps to see to the carrying out of the order on that day. The next day he received a telephone call from accused No 1, who asked him what he had done about the matter. The appellant advanced some excuse for not having done anything yet, whereupon accused No 1 told him to 'make a move', 'or else' tell him (accused No 1) whether he was a member of Iliso Lomzi, or whether he was H Iliso Lomzi. (Iliso Lomzi was the name of an unlawful organisation which the Government considered to be an enemy of Ciskei.) The appellant denied that he was in any way connected with Iliso...