[Home] [Databases] [WorldLII] [Search] [Feedback] South Africa: Supreme Court of Appeal

You are here:  SAFLII >> Databases >> South Africa: Supreme Court of Appeal >> 1991 >> [1991] ZASCA 79

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

S v Simamane (579/90) [1991] ZASCA 79 (30 May 1991)

.RTF of original document

1.

Case nr 579/90 /MC

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

Between
VUSUMUZI WALTER SIMAMANE Appellanb
and
THE STATE Respondent

CORAM: VIVIER, KUMLEBEN et GOLDSTONE JJA.

HEARD: 23 MAY 1991.
DELIVERED: 30 MAY 1991.

JUDGMENT

VIVIER JA.

2/...
2.

VIVIER JA:
The appellant was convicted in the Durban and Coast Local Division by SQUIRES J and two assessors on seven counts of murder (counts 1 to 7), one count of arson (count 8) and of indecent assault on a charge of rape (count 9). On count 1 he was sentenced to 14 years' imprisonment and on each of counts 2 to 7 he was sentenced to death. On count 8 he was sentenced to 2 years' imprisonment and on count 9 to 4 years' imprisonment. He appealed to this Court against the convictions and sentences on counts 2 to 7, but the appeal against the convictions was, in my view quite correctly, abandoned by Mr Luthuli who appeared on behalf of the appellant.
The deceased in counts 1 to 7 were the fourty-one year old Mananje Rachel Cele ("Mrs Cele")

3/...
3.

and her six children whose ages ranged from sixteen to two years old. During the night of 3 October 1989 the appellant abducted them from their house in the Ngonyameni reserve in the district of Umlazi and took them to the Umlazi River where he killed them one by one, using both sharp and blunt instruments. Before killing the sixteen year old girl he indecently assaulted her. After setting the bodies alight he returned to the deceased's house and set fire to it.
Two accomplices, Dumisani Nunu Shange ("Shange") and Bhekizitha Fani Chili ("Chili"), youths of eighteen years and sixteen years of age respectively, were present when the seven deceased were killed and both participated in the killing of some of them. They were originally charged with the appellant but thë charges against them were withdrawn

4/...
4.

at the commencement of the trial. Shange's evidence was that late in the afternoon of the day in question the appellant asked him and another youth, Bha Khumalo, to accompany him to his girl-friend's house. At about ten o'clock the appellant said that he wanted to go and buy tobacco and that it was necessary to be armed before setting out. He produced some knobsticks and two spears. On the way they stopped at Chili's house and the appellant asked him to come with them. When they passed Mrs Cele's house the appellant said that he was no longer going to buy tobacco but that he planned to kill a woman from that house because she had bewitched his child and caused its death. When Shange refused to go on, the appellant produced a gun and forced him to come with him. The appellant kicked open the door and pushed his companions inside the

5/...
5.

house and there he handcuffed Mrs Cele with her hands in front of her. He ordered the older children to carry the younger ones and forced everyone to leave the house and to proceed through the countryside to the Umlazi river, a considerable distance away. On the way the appellant ordered Chili to fetch a tin of petrol from a nearby spot indicated by him. They crossed the river to the southern side and there the appellant told the others to sit down while he prepared and smoked a dagga cigarette. When he had finished he told his companions to guard the children to prevent their running away. He then assaulted Mrs Cele with a knobstick. The knobstick broke and he proceeded to stab her repeatedly on the front of the body with a spear and to hit her on the head with a bush-knife. After he had killed Mrs Cele he

6/...
6.

approached her sixteen year old daughter Ntombizini. Despite her pleas for mercy he sexually assaulted her, and then stabbed her repeatedly in the chest with a spear. He thereafter killed the boys Lungelo and Msizi by repeatedly stabbing them with a spear. One of the remaining children, Ziphe, tried to run away and the appellant hurled his spear at him, striking him in the back. He fell into the river and the appellant went up to him and killed him by hitting him on the head with a bush-knife. The appellant then ordered Shange and Chile to kill the last two children. They hit the children with knobsticks but before they could carry out his order the appellant himself killed the children by stabbing them both in the chest with a spear. The appellant thereafter poured petrol over the bodies, except the one in the

7/...
7.

river and set them alight. The appellant and his companions then returned to Mrs Cele's house and after removing a radio therefrom the appellant sprinkled petrol on the floor and set the house alight.
Chili's evidence differed from that of Shange in one respect. He said that the appellant finally ordered his three companions to "finish off" three of the children who were "still moving". They hit these children with knobsticks before the appellant set fire to them. The dif f erence in the evidence of the two accomplices as to the precise moment when they assaulted the last two or three victims is not material. Their evidence is clear that it was the appellant who was responsible for the deaths of all seven deceased and that he alone inflicted the fatal

8/...
8.

incised wounds in each case.
The medical evidence reveals that the deceased died of the most gruesome wounds. Mrs Cele sustained twenty-four penetrating, incised wounds of the chest, back, neck and abdomen of which eight penetrated the pleural cavity, passing into the heart and lungs. The deceased in count 2 sustained eighteen incised wounds of the head, back and chest of which seven penetrated either the lungs, heart or kidneys. The deceased in count 3 sustained a penetrating incised wound of the chest which penetrated the heart, as well as a fractured skull. The deceased in count 4 sustained six penetrating incised wounds of the chest, two of which passed into the lungs and liver, as well as a fractured skull. The deceased in count 5 sustained ten penetrating incised

9/...
9.

wounds of the face, chest, abdomen and back, one of which penetrated the skull and brain and five the pleural cavity, passing into either the heart, liver or kidneys. In addition she sustained a fractured skull. The deceased in count 6 sustained eight penetrating incised wounds of the chest which penetrated the heart and left lung. She also sustained a fractured skull. The deceased in count 7 sustained sixteen penetrating incised wounds of the lower back, some of which passed into the heart, lungs and kidneys. She also sustained a fracture of the skull. With the exception of the deceased in count 2, all the bodies showed extensive burn injuries which, in the cases of the deceased in counts 4, 5, 6 and 7, could have contributed to their deaths.

In his evidence in mitigation of sentence the

10/...
10.

appellant admitted that he and his companions had killed the seven deceased. He said that he had decided to kill Mrs Cele because he believed that she was responsible, through witchcraft, for the deaths of his two children. The sole reason he advanced, however, for killing the children was that they were, as he put it,"from a bad seed". The trial Court accepted that the appellant's two children had died from an unknown cause, that he had been led to believe by a diviner that Mrs Cele had caused their deaths through witchcraft and that he and the rest of his family were in danger of suffering the same fate. The trial Court regarded this as a mitigating factor in respect of Mrs Cele but not as regards the children. In fact, the trial Court found no mitigating factors in respect of the murder of the children. It found that

11/...
11.

the following aggravating factors were present. Firstly, that the children were killed one by one in front of the others. Secondly, that it was a savage and sustained assault on helpless and terrified children. Thirdly, that the appellant sexually assaulted the sixteen year old girl, despite her pleas for mercy, before killing her, and finally, that the murders were premeditated.
Mr Luthuli submitted that the appellant's belief that Mrs Cele had caused the deaths of his children also constituted a mitigating factor in respect of the murdêr of her children. He submitted that since the murders followed in quick succession they were committed with a single motive. I cannot agree. Firstly, the murder of the children did not follow immediately upon the killing of Mrs Cele as the

12/...
12.

appellant first sexually assaulted the eldest girl before any of the children were killed. Secondly, and in any event, his reason for killing Mrs Cele had nothing at all to do with the children: once he had killed her there was no reason to kill the children. They were all young children and posed no threat to him. In my view the attack on the children was an act of pure savagery and had nothing to do with the appellant's belief in witchcraft. This is illustrated by the sexual assault on the eldest girl which, to my mind,was not the act of someone who felt compelled to kill or injure because of witchcraft. In my view the only possible mitigating factor in favour of the appellant is the fact that he has no previous convictions. He was 28 years old when the offences were committed. Mr Luthuli submitted that he may

13/...
13.

possibly be rehabilitated if a long period of imprisonment were to be imposed. The weight, if any, to be attached to the possibility that an accused may be rehabilitated, depends, of course, on the particular facts of each case. (S v Mooi en Andere 1985(1) SA 625(A) at 631A, S v S 1987(2) SA 307(A) at 314F and S v S 1991(2) SA 93(A) at 102H.
The aggravating factors in the present case are clear. Firstly the murders required premeditation and careful planning. The appellant had to obtain the handcuffs, the petrol and the assortment of weapons before he set out on the fateful evening to Mrs Cele's house. His three juvenile companions had to be persuaded or coerced in one way or another to accompany him. The appellant clearly intended to kill the children even before he abducted them from their home.

14/...
14.

Hence their abduction. The long walk to the river provided ample time for reflection and reconsideration. The second aggravating factor is the fact that the appellant killed the children one by one in front of the others who had to watch and await their turn, helpless and terrified. This was cruel and inhuman conduct. The third aggravating factor is that the appellant killed each of his victims in a brutal and savage manner - to a horrifying degree as the medical evidence bears out. There is also the fact that the appellant sexually assaulted the eldest girl before killing her, despite her pleas for mercy.
The final question which remains is whether, having regard to the mitigating and aggravating factors, the death sentence is the only proper sentence (S v Nkwanyana and Others 1990(4) SA 735(A) at

15/...
15.

745E-F). In my view the nature of the murders was so
gross, the appellant's deed so evil, that one is driven
to the conclusion that this is one of those
exceptionally serious cases where the deterrent and
retributive aspects of punishment outweigh all other
considerations and the death sentence is imperatively
called for. In my view the evil of the appellant's
deed

"is so shocking, so clamant for extreme retribution, that sociéty would demand his destruction as the only expiation f or his wrongdoing" (per HOLMES JÁ in S v Matthee 1971(3) SA 769(A) at 771D-E).

The death sentence is accordingly the only proper sentence to pass in respect of each of counts 2 to 7.

The appeal is dismissed.

W. VIVIER JA.

KUMLEBEN JA) GOLDSTONE JA) Concur.