|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
CASE NO 324/91 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
MFANAFUTHI NTAKA Appellant
and
THE STATE Respondent
CORAM: HEFER, VIVIER JJA et NICHOLAS AJA
DATE OF HEARING: 10
March 1992 DATE OF JUDGMENT: 30 March 1992
JUDGMENT
/NICHOLAS AJA
2 NICHOLAS JA:
This is an appeal against two sentences of death. The appellant is Mfanafuthi Ntaka ("Ntaka"). He was charged in the Durban and Coast Local Division of the Supreme Court on four counts: (1) murdering Feni Makhosazane Gumede ("Gumede"); (2) murdering Velakuliphi Khoza ("Khoza"); (3) raping Joyce Mumu Habela ("Habela"); and (4) theft of clothing, a purse and cash belonging to Habela or Gumede. All of the offences were alleged to have been committed on the evening of 4 January 1988 and during the night which followed at Madundube Reserve in the district of Umbumbulu, Natal.
When arraigned Ntaka pleaded not guilty on each of the four counts and said
that he had no knowledge of the events which gave rise
to the charges - during 4
to 5 January 1988 he was at Mfolweni and not at or near Madundube. He was found
guilty on all four counts.
3 The action took place at Gumede's kraal at
Madundube. This consists of a number of structures, including the hut where
occurred
the events to be narrated and which will be called "Gumede's hut", and
what was referred to in the evidence as "the main hut" which
consisted of a
number of rooms.
The dramatis personae were Gurnede, Habela, Khoza and Ntaka. Gumede, according to the post-mortem report, was an obese, grey-haired, elderly female. She was aunt to both Habela and Ntaka, who are cousins. Habela was 24 at the time of the trial and Ntaka was somewhat older. Khoza was a teen-age herdboy.
The main State witness was Habela, who was the complainant in count 3 and the
only eye-witness. Evidence was also given for the State
by Mboniseni Mthembu,
who lived not far from Gumede's kraal - "within shouting distance". The reports
on the post-mortem
4 examination held on Gumede and Khoza respectively were
received in evidence by consent. The defence admitted the facts and findings
contained in the reports, and made specific admissions that Gumede and Khoza
each died on 4 January 1988 as a result of brain damage
caused by injuries
suffered on that date.
In giving evidence prior to conviction Ntaka persisted in his alibi defence, but after the verdict he again entered the witness-box to give evidence in extenuation. He then admitted that he had committed the crimes laid to his charge. Consequently there ceased to be any serious dispute on the facts.
The trial court found that there were no extenuating circumstances on counts
1 and 2 and Booysen J, who presided, imposed the sentence
of death on each of
these counts, as he was obliged to under s 277 of the Criminal Procedure Act 51
of 1977 as it then stood. On
5 count 3 (rape) and count 4 (theft) Ntaka was
sentenced to 10 years' and 4 years' imprisonment respectively.
Habela said in evidence that she and her two children visited her aunt Gumede
over the Christmas holidays. On the evening of 4 January
1988 they and Khoza
were together in her hut with Gumede who appears to have been lying on a bed.
Between 9 and 10 o'clock there
was a knock on the door. It was Ntaka. He was
admitted. He had with him a nutted stick, more than a half a meter in length,
and about
2,5 cm in diameter. He sat on a bench near the door, and smoked a
dagga cigarette. He asked for the key to the house of his parents:
this was
given to him. He asked for a candle: a piece of candle was given to him. He
asked for food, but Gumede told him that there
was none: she had been away to
have her teeth extracted. He then asked for money, but Gumede answered that she
had no money - she
had just paid her employees. At this stage she stood up and
asked Ntaka to leave. He
6 replied that he was still smoking. Eventually, he
stood up and made as if to go, but closed the door and turned and struck Gumede
on the head with his stick. She fell on to the bed. Habela cried out, and Ntaka
came and struck her on the right forearm. Khoza stood
up to open the door,
presumably to get outside. Ntaka caught hold of him, saying that the boy wanted
to be an informer and report
him. He struck Khoza on the head and when he fell
to the floor, he struck him again on the head and on the face. He then turned to
resume his interrupted business with Gumede, and struck her again and again.
When she was lying still, he turned to Habela and told
her to take off her
panties. When she did not respond, he took them off himself, dropped his
trousers and had sexual intercourse
with her. She did not consent, but submitted
because she feared that if she did not, he would do to her what he had done to
the others.
When he had finished, he told her that they must go and look for
money in the main hut. He took the keys from the table
7 and they went
together to Gumede's room in the main hut. Ntaka ransacked the place looking for
money, which he did not find. He
then collected clothing belonging to Gumede,
which he packed into three bags. They returned to Gumede's hut. He looked into
the pots
and, finding food there, said that the dog was stingy with food
although there was food. He came back to Habela, who was sitting
with her baby
on her lap and told her to put the child down. He had intercourse with her
again. At about 4 a.m. on 5 January, he
had intercourse with her once more and
then asked her to help him carry the goods to the bus stop. He told her that if
she mentioned
what he had done, he would kill her - that if she was asked who
had done it, she was to say that two people had arrived and they
had caused the
damage. She left him at the bus stop, and on her way home entered Mthembu' s
kraal and made a report in the terms
which Ntaka had instructed. On the Friday,
after Ntaka had been arrested, and she felt "he would not get me", she told the
police
the
8 truth.
Mthembu said in evidence that he knew Ntaka well: they
both lived at Madundube and had grown up together. At about 8.30 on the evening
of Monday, 4 January 1988, Ntaka, whom he had not seen for some time, came to
Mthembu's home. He asked for cigarettes, which were
given to him. He then asked
for a stick because, he said, he was going to his girl friend and as it was
drizzling he wanted a stick
to sweep the dew from the grass in front of him as
he walked to avoid getting his trousers wet. Mthembu said he did not have a
stick
to lend him, but Ntaka took a nutted stick from the floor. Mthembu
indicated that it was about 0,75 m long and about 1,5 cm thick.
Ntaka left at
about 8.40 p.m. Habela came to his house the following (Tuesday) morning and
reported that criminals had come to Gumede's
place and committed murder.
In the report of the post-mortem examination
9 held on Gumede, it was recorded that she had sustained multiple extensive wounds on the face and the left side of the head and extensive fractures of the right maxilla and mandible, the left maxilla and mandible and the left frontal bone. There was extensive brain damages under fractures in the frontal and temporal areas. The cause of death was given as brain damage. A note on the report reads: "Injuries caused by a sharp heavy instrument applied with great force e.g. an axe."
In the report of the post-mortem examination held oh Khoza, there were
recorded a stellate-shaped laceration with a depressed fracture
at the right
parietal eminence, with underlying brain damage; a laceration on the left temple
with a fracture of the temporal bone
and underlying brain damage; and a fracture
of the second vertebra of the cervical spine with destruction of the spinal
cord. The
cause of death was given as brain damage. A note on the report
records:
10 "Head injuries caused by a blunt instrument and applied with
great force."
When Ntaka gave evidence for the second time, he said that for six years before her death there had been on-going difficulties between Gumede and himself about a sum of R80,00 which belonged to him and which she had persistently refused to repay. In consequence his "heart became sore." buring the day of 4 January, he had been smoking dagga. The last occasion was in the afternoon. Asked how the dagga affected him in the evenihg, he said that he could feel he was drunk. When Gumede did not give him food or money, he was upset. He thought about the R80,00 and then struck her. He intended not to kill her, but just to strike her. Khoza, he said at first, was not killed by him and later he said he did not intend to kill Khoza. He picked up the stick at Mthembu's house because "it would assist me in hitting her."
11
Under cross-examination he said that he had been an habitual smoker of dagga for about seven years. He visited his aunt Gumede frequently to demand his money. They were not on friendly terms. When he struck the herd boy, he was trying to destroy evidence so that he would not give evidence in favour of Gumede.
In answer to questions by the trial judge, he said that he took the nutted stick from Mthembu because he was going to hit "these people" with it. When he struck Gumede on the head and she fell down, he decided to continue striking her and desisted only when he noticed that she was unconscious. He admitted that he had sexual intercourse with Habela, that he took clothing from the main hut, and that he slept in Gumede's hut. He said that the dagga he had smoked affected him just in his mind.
The new regime in regard to the sentence of
12 death which was introduced by the Criminal Procedure Amendment Act 107 of 1990 has been considered in many cases in this court, perhaps most compendiously in S v Mlumbi en 'n Ander, 1991(1) SACLR 235 (A) AT 248i - 250b. No purpose would be served by yet another discussion of the relevant principles. It is sufficient to say that in considering this appeal it behoves this court to make a finding as to the presence or absence of any mitigating or aggravating factors, and then to consider with due regard to that finding whether it is satisfied that sentences of death were the only proper sentences. If this court is so satisfied, then it will confirm the sentences.
In arguing the appeal counsel for Ntaka submitted the following as mitigating factors:
1. The on-going dispute between Ntaka and Gumede, and his grudge against her. 2. The effect of the dagga which he had smoked on 4
13 January 1988.
3. He did not intend to kill Gumede (whom he struck "for the money") or Khoza (whom he struck "to destroy evidence" and so that he would not tell people that he had struck them).
4. He had only one previous conviction, i.e. on 11 January 1985, for assault with intent to do grievous bodily harm in respect of which the sentence was R50.00 or 50 days imprisonment.
5. In the light of 4, he is not inherently violent and is capable of rehabilitation.
6. He was 22 years old at the date of the crimes.
7. He lives at Madundube in a rural area and is unsophisticated and poorly educated.
8. Neither of the murders was accompanied by any additional cruelty or humiliating torture.
Some of these (viz Nos 1, 2 and 3) were advanced in the trial court and were dealt with in Booysen J's judgment on extenuating circumstances:
14
"In this matter the question arises now whether there were any extenuating
circumstances in relation to the murder of the deceased
on count one and the
deceased on count two.
Both these people were beaten to death by the accused
with a nutted stick. It has been submitted that he was under the influence of
dagga, that that was an extenuating circumstance, and that he bore a grudge
against his aunt, the deceased on count one, and that
the offence was not
premeditated and it was submitted that either singly or cumulatively, these
constituted extenuating circumstances.
The accused has shown himself to be an
inveterate liar. It is quite clear from his conduct that evening that whatever
dagga he had
smoked, did not affect either his performance physically or his
reason. He decided, even on his own evidence which he gave later
in extenuation,
at Mthembu's kraal, that he was going to strike his aunt with this nutted stick
which he took with him. He had the
presence of mind to give a false but
plausible reason for taking this nutted stick. It is quite clear that he was
annoyed because
the deceased on count one did not give him food or money when he
asked for it. It seems that he then decided that he would beat her
with a nutted
stick, because he then closed the door and then turned and set about doing so.
Not content with beating her once, he
carried on until she died. This was
nothihg more than callous murder.
His decision thereafter to kill the young boy to ensure that he should not give evidence against him, was a rational but cold-blooded and callous decision. It was not premeditated in the sense that he decided before going there
15
to do so, but it was a deliberate killing of an innocent young boy.
He was
then, obviously, physically and mentally quite fit enough and able enough to
remove the complainant's panties and to rape her.
He then, quite
cold-bloodedly and rationally, decided to steal the deceased's belongings, and,
for good measure, to rape the complainant
again, and also to devise this story,
which he told her to tell the police.
When he finally came to tell the truth
in this case in extenuation, he remembered everything he did that night
perfectly.
We find, beyond all reasonable doubt, that his mental faculties
were not affected by his consumption of dagga to any material degree,
and
certainly not to an extent which serves to reduce his moral blameworthiness to
any appreciable extent. It is clear that he suffers
from no mental defect. He is
just a cold-blooded and vicious murderer.
He is such a proven liar that we have no doubt that his evidence that the deceased owed him R80,00 and that he thought about that when she did not give him food or money, is as much a cock and bull story as the numerous other lies he told us.
It has been suggested that he was guilty only of dolus eventualis. He carried on with these brutal attacks with a dangerous weapon and it is just not so - he deliberately killed these two people.
After having told us earlier that he had been on good terms with the deceased on count one, he tried to convince us in evidence upon extenuation, that he had been on bad terms for a long time. It is true that the killing as
16
such may not have been premeditated in the sense that he had already decided at Mthembu's home, that he was going to kill the deceased on count one, but these killings were nevertheless deliberate and intentional.
There are no ciroumstances that we can find lessening the accused's moral blameworthiness in relation to these two murders, and we find no extenuating circumstances in regard to counts one and two."
I entirely agree,
and do not think that any of these
three items can be considered as
mitigating factors. I
deal briefly with the remaining items:
4. His comparatively offence-free record does not in my view provide any reason for mitigating the punishment which should be imposed for crimes of this enormity. 5. His propensity for violence is demonstrated by the crimes of which he has been convicted. His conduct on the terrible night and his evident lack of any remorse show him to be a man without conscience and any human feeling which might make him responsive to therapy. 6. I do not think his age to be a mitigating factor. These crimes are not to be ascribed to immaturity, lack
17 of experience of life, youthful thoughtlessness or influence by others.
7. For all that I know Madundube may present a picture of peace and tranquility in contrast to some strife-torn areas in Natal. Lack of sophistication and poverty of education áre not known as factors leading towards the commission of violent crimes. 8. I do not understand the meaning of the word "additional" in the context of these crimes. Ntaka desisted only when his victims had succumbed to the injuries he inflicted.
As to aggravating factors, res ipsa loquitur.
Ntaka went to Gumede's hut bent on robbery. He was armed with an ugly weapon.
When asked to leave, he attacked her, felling her. He
then struck Habela and
went on and felled Khoza to prevent him escaping and setting up the hue and cry.
After that he returned to
Gumede to complete the unfinished job. He terrorized
Habela, so
18 that she submitted to sexual intercourse, and to helping him
steal Gumede's clothes, and to acting as a porter to the bus stop
the next
morning.
When one comes to consider whether the death sentence for these two crimes is the only proper sentence, the fact that there are no mitigating factors is not decisive. Rumpff JA said in S v Zinn 1969(2) SA 537 (A) at 540G that what has to be considered in determining sentence is the triad consisting of the crime, the offender, and the interests of society. Where the death sentence is being considered as a possible sentence, each of these elements must be anxiously weighed.
In this case the crimes are of such enormity that the death sentence must be
regarded as eminently an appropriate punishment for them.
It does not seem that
the interests of society can be served by imposing
19 another sentence. The
offences clamantly call for extreme retribution, for the emphatic denunciation
of the crimes as totally unacceptable
in a civilized society and to give
expression to society's sense of outrage. As to the offender, he stands revealed
as a cruel and
ruthless killer, and totally bereft of compassion and any human
feeling. He had no compunction in sleeping in the same room as his
murdered
victims, and one can only wonder what would have happened to Habela if he had
not required her as an object on which to
slake his sexual urges, and to help
carry his booty to the bus stop in the morning. This is a case absolutely
without redeeming features.
The appeal is dismissed. The sentences of death are confirmed.
H C NICHOLAS
Actinq Judqe of Appeal
HEFER JA ]
] CONCUR VIVIER JA ]
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1992/53.html
.PDF of original document
.RTF of original document