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CASE NO. 425/88
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between
MDUDUZI CLEOPHAS
MATHABELA APPELLANT
and
THE
STATE RESPONDENT
CORAM: CORBETT CJ, NESTADT JA et NICHOLAS
AJA
DATE HEARD: 24 FEBRUARY 1989 DATE DELIVERED: 31 MARCH
1989.
JUDGMENT
2/.....
2
NICHOLAS AJA:-
Adam's Mission is a settlement near
Amanzimtoti in Natal. There Raphael Nyuswa carried on the business of the Kwa
Makutha Supermarket,
and lived with his wife Virginia and his family in a
4-bedroomed house.
On the night of 27 March 1986 Raphael and two of his
children (Dudu and Mfundo) were temporarily away from the house. Stanley Nyuswa,
Raphael's 22 year-old son, who occupied an outside room, was also not in the
house. Virginia and two small children were in bed,
and an adult daughter,
Lindi, who was visiting her parents from Pietermaritzburg where she was a
teacher, was watching television.
Two motorcars drew up outside the house,
and a gang of six men emerged. Their leader was a white man, Barry Shaun
Combrink; the others
were black. Some of them were wearing police uniforms, and
they were all carrying firearms. Declaring
3/
3 that they were members of the South African Police, they
demanded, and were given entry to the house. They said that they had beensent
by
lawful authority to search for illegal firearms. When they asked for the father
of the house, they were told that he was temporarily
away, but that they might
wait for him.
Shortly afterwards Raphael returned in his car together with
Dudu and Mfundo. Members of the gang met them outside and escorted them
into the
house. At their reguest, Raphael unlocked a gun-safe in a wardrobe, from which
the gang took firearms and R2 500 in cash.
Combrink then demanded that they go
to the Supermarket, and they set off, leaving behind in the house, Virginia,
Lindi , Dudu, Mfundo
and the two small children. Combrink deputed three of the
gang, Mduduzi Mathabela, Sipho Mchunu and "Sezo" Ndunge to stay behind
to guard
them.
At the shop Combrink told Raphael to unlock the shop, and then the
strongroom. From the strongroom the gang took R23 000 in cash and
chegues, and
float money from the tills in
4/......
4 the shop, and cigarettes and tobacco.
Meanwhile, there had
been developments back at the house. Virginia and the other members of Raphael's
family had been herded together
in a bedroom (which I shall refer to as "bedroom
No 2"). Mathabela had taken Lindi to another bedroom and told her that he loved
her and she should take off her clothes. She refused. He put a hand under her
dress and another on her left breast. From under his
overall he took out a small
silver firearm. Lindi cried out and her mother came to her assistance. The two
women were going back
to bedroom No 2, when Stanley came into the house. Clearly
realising that something was amiss, he walked down the passage, asking
"What is
the matter?" He said to Mathabela, who had now let go of Lindi, "What is it? I
seem to know you." While Lindi and her mother
walked back to the bedroom, Lindi
heard the explosion of a firearm. Shortly afterwards Stanley came into the
bedroom saying, "He
has shot me", and he then fell to the floor. Mathabela
entered and made
5/......
5 some remarks which I shall quote later.
Soon afterwards, Combrink and
Raphael and the others arrived back from the shop. Mathabela came to the door of
the house and reported
to Combrink. The gang drove off after firing two shots
into tyres of Raphael's van, puncturing them.
Stanley was taken to hospital,
where he was operated on, but he died a few days later. The cause of death was
peritonitis and a gangrenous
bowel, resulting from a gunshot wound which
penetrated the transverse colon and the small bowel.
Arising out of this
occurrence, four persons appeared in the Supreme Court in Durban on charges of
robbery with aggravating circumstances
and murder. A separation of trials was
ordered. Barry Shaun Combrink and another man were convicted on 3 March 1987 of
robbery with
aggravating circumstances and sentenced to 12 years' imprisonment
each. Mathabela and Joseph Chili were tried later before FRIEDMAN
J sitting with
two assessors. Both were convicted on 12 July 1938 of robbery with
6/....
6 aggravating circumstances and sentenced to 12 years imprisonment;
and Mathabela was convicted of murder and sentenced to death after
the trial
court found that he had failed to prove extenuating circumstances.
Leave was
granted to appeal to this court against the latter finding and the sentence of
death.
The only State witness who was actually present at the time of the
shooting was Sipho Mchunu. He was a member of the gang and one
of the men left
on guard at the house by Combrink. He gave evidence for the State after being
warned as an accomplice.
Lindi said in her evidence that when Stanley came
into the house and proceeded to where Mathabela was holding her, he asked, "What
is the matter?" and said, "What is it? I seem to know you." Mathabela was
holding the silver fire arm, which he pointed at Stanley.
Mathabela then let go
of Lindi who went back to bedroom No 2 with her mother, who called to Stanley to
follow
7/....
7 them. As they entered the bedroom, Lindi heard the sound of a
shot. Stanley came into the room, and said, "He has shot me", and
then fell
down. Mathabela came in and said, "I feel like finishing the dog off". He said
to Stanley,"I hit you with this one (referring
to the revolver in his right
hand); if I had hit you with this one (referring to the shotgun in his left
hand) you would be dead".
He then said to Stanley, "We will meet, if you are not
dead, we will meet at the Supreme Court in Maritzburg".
Dudu said that he was
one of those in bedroom No 2, when he heard Lindi cry out. Virginia left to
investigate. She heard Stanley speaking
in the passage, asking what was
happening, and saying "I seem to know you". At that stage Virginia and Lindi
re-entered the bedroom.
Dudu heard a shot. Stanley came into the room. He was
bieeding and there were hoies on both sides of his body. He cried out, "Mother,
he has shot me", and fell down. Mathabela then appeared, holding a big firearm
in his left hand and a small one in his right. He
pointed at Stanley,
8/.....
8
who was lying on the floor, and said, "I feel like finishing you off".
He said, "If I shot you with this one (indicating the weapon
in his left hand),
you would be dead by now, but I shot you with the one ih the right hand .... We
will meet at the Supreme Court
in Maritzburg". Mfundo gave similar
evidence.
Sipho described events leading up to the shooting. He said that he,
Mathabela, and Ndunge (who had since died) were left behind to
guard the house
when Combrink and the others went off to the supermarket. Before they left,
Mathabela asked Combrink to leave the
small firearm with him because the big
firearm, which he had, had only one bullet in it. Sipho described Mathabela's
encounter with
Lindi, and said that shortly after the mother and daughter had
gone into the bedroom, a male person came through the front door.
Ndunge tried
to stop him and so did Sipho, but they were unsuccessful and Stanley went on
towards Mathabela, who also tried to stop
him, saying, "Who are you?". Sipho
then heard Mathabela say, "I am shooting him".
9/....
9 A few secondslater, Sipho heard a gunshot. He took fright and ran
away out of the house.
Mathabela gave evidence in his own defence. He
admitted that he was a member of the gang at Raphael's house on the night
concerned,
but said that he did not go on an expedition to rob - he believed
that the excursion was one by police reservists in search of firearms.
He did
not try to molest Lindi. He did not fire a shot at Stanley. He did not speak the
words which the State witnesses said he uttered.
He did not know of shots fired
at the tyres of Raphael's van.
The trial court found that Mathabela was an
unmitigated liar, and it had no hesitation in rejecting his evidence as false
beyond any
reasonable doubt. It was satisfied that in general all of the State
witnesses were satisfactory, honest and reliable witnesses. Such
discrepancies
as there were between them were not material and not great. Although Sipho was
an accomplice and his evidence had to
be approached with caution, he was
10/....
10
nonetheless an honest and reliable witness, whose evidence the court
accepted.
After conviction, Mathabela elected to give evidence in
extenuation. He now admitted having fired a shot with the revolver, claiming
that he did so in the course of a scuffle or struggle with Stanley as the latter
was trying to enter the room where the others were
penned. The trial court was,
however, satisfied that the shot was not fired in the way now described by
Mathabele: there was nothing
to support a conclusion that the shot was fired in
the course of a scuffle or struggle; and it was inconsistent with the remarks
which Mathabela made when he followed Stanley into bedroom No 2.
In the
judgment on extenuating circumstances, the trial court accepted that -
(a) Shaun Combrink, who was the leader of the gang and planned the robbery, instructed Mathabela, Sipho and Senza to guard the house and its inhabitants while Combrink and the
11/......
11
others went off to rob the supermarket. Combrink handed the revolver to Mathabela. Mathabela, Sipho and Senza were to ensure that no one left the house.
(b) It was not foreseen that anyone would try to enter the house, and Stanley's entrance was unexpected. He evaded Sipho and Senza, who tried to prevent him from entering, and walked down the passage to where he was confronted by Mathabela.
(c) What happened then is not clear. It is possible that Mathabela tried to prevent Stanley from proceeding further. Although the trial court found that "the shot was probably fired somewhat in the heat of the moment", it considered that Mathabela fired it deliberately for one of two reasons: either Stanley made the remark above referred to and that induced Mathabela to shoot him; or Mathabela shot him when he found himself frustrated when he could not prevent Stanley entering the room. The trial court found it difficult to decide which of the two possibilities was the more probable.
In the judgment FRIEDMAN J said that there were indeed
12/.....
12
circumstances calculated to influence Mathabela's mental state and that
he was subjectively influenced thereby: he was, in a general
sense, influenced
by the instructions given him by Combrink; and, more pertinently relevant, he
shot Stanley either because the latter
recognised him, or to prevent him from
going into room No 2.
However, those circumstances did not, in the view of
the trial court,serve to reduce Mathabela's moral blameworthiness so as to
amount
to extenuation.
In the result, the conclusion was that Mathabela had
failed to prove the existence of extenuating circumstances.
Counsel for the
appellant contested the finding of the trial court that the shooting was
deliberate. He placed reliance on a photograph
which was handed in by consent
after the close of the defence case. It showed a woman pointing to a mark on a
door frame, which it
was alleged was a bullet mark. He submitted that the
inference from this was that the firearm had
13/......
13 been held in a somewhat unnatural position, probably pointing
downwards. This led to the further inference that the firearm was
not aimed at
Stanley, but was fired in the heat of the moment and without any real time for
reflection; and that therefore the shooting
was an unexpected and perhaps freak
occurrence.
This line of reasoning lacks an essential foundation. There was
no evidence regarding the mark - either that it was a bullet-mark,
or how or
when it was caused.
It was argued that the trial court over-emphasized the
significance of Mathabela's remarks after the shooting - that they were equally
consistent with the state of mind of a person who has acted in the heat of the
moment. I do not agree. They were the words of a man
who was in control of
himself and the situation, who had acted purposively, and was aware he might
have to meet his victim in court.
There was no evidence to suggest that the
shooting was otherwise than deliberate. Mathabela's evidence was rightly
14/.....
14 rejected by the trial court; no criticism can be made of its acceptance of the evidence of the State witnesses, including Sipho's, which reads reasonably and convincingly. There is no factual basis for a finding that there was a struggle or a scuffle, or that Stanley grappled with Mathabela, or that the shot was fired accidentally.
The trial Court made every assumption in favour of Mathabela which the evidence could possibly bear. It was, in my opinion, correct in holding that extenuation had not been shown.
The appeal is dismissed.
NICHOLAS, AJA
CORBETT CJ) Concur.
NESTADT
JA)
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