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S v Ngcobo (32/88) [1988] ZASCA 87 (5 September 1988)

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Case No 32/88

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between
MJOYINELWA BABA NGCOBO APPELLANT
and
THE STATE RESPONDENT

CORAM : HEFER, MILNE JJA et VILJOEN AJA. HEARD : 1 SEPTEMBER 1988 DELIVERED : 5 SEPTEMBER 1988.

JUDGMENT HEFER JA :

During the period May to August 1986 the appellant burgled several houses in Westville. On 22nd August

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2. he entered a house situated at 19 Stanhope Crescent, West-ville. Again his purpose was to steal. At the time Mrs Kathleen Dale, an 83 year old lady, was alone in the house. The appellant killed her and removed certain articles from the house. He was subsequently convicted in the Durban and Coast Local Division of Mrs Dale's murder, of theft (one count) and of housebreaking with intent to steal and theft on 4 counts. No extenuating circumstances were found relating to the murder and on that count he was sen-tenced to death but was granted leave to appeal against the sentence.
The only question to be decided is whether the court a quo correctly found that there were no extenuating circumstances.
Appellant's counsel relied on two factors which, he argued, serve to reduce appellant's moral blameworthiness. He described them as follows in his written heads of argument:

"(a) the appellant's youthfulness, (he was

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3.

21 at the time of the murder) including lack of education and sophistication, leading to immaturity;

(b) The lack of premeditation concerning the killing."

This argument requires no detailed discussion. Both

factors referred to were considered by the trial court and I
have not been persuaded that the court erred in rejecting
them. How the deceased came to be killed, is described as
follows in a statement submitted to the court in terms of
sec 112 of Act 51 of 1977 :

"On the 22nd August, 1986 I went to a certain house at Westville. I entered a certain house with the intention of taking various goods.
I came across the deceased, who was standing in this house. I first saw the deceased when I was at the doorway to the house.
The deceased was shouting at me, so I stab-bed her to keep her quiet. I stabbed her several times.
After I had stabbed her several times, she stood there, so I pushed her over.

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4.

After a short while, I felt the deceased and knew that she was dead.
At the time that I stabbed her, I intended to kill her and I know that to kill a person is unlawful."

Taking into account inter alia the appellant's motive and

the callous way in which he murdered the deceased there is

no reason to differ from the trial court's finding that his

comparative youthfulness does not reduce his blameworthi-

ness. Nor does the fact that he did not enter the house

intent on doing murder; for the fact remains that he de-

liberately set about killing the deceased when he dis-

covered that the house which he had entered, was occupied.

Nothing prevented him, upon discovering her presence,from

leaving the house without doing her harm.

Appellant's counsel also tried to make some point

of what he referred to as the appellant's socio-economic

circumstances. There is, however, no factual basis for

counsel's submission in this regard.

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5.

The appeal is dismissed.

J J F HEFER JA.

MILNE JA )

CONCUR
VILJOEN AJA )