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Case no. 379/88

E du P

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:
ELLIOT MALINDANE NKUNA First Appellant

MPANDE JOSEPH MAHLALELA Second Appellant

and

THE STATE Respondent

Coram: VAN HEERDEN, VIVIER JJA et F. H. GROSSKOPF AJA

Heard: Delivered:

20 March 1989. 30 March 1989

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JUDGMENT GROSSKOPF AJA:
At about midnight on Saturday 7 June 1986, and at Mbuzini Trust, the deceased was burnt to death by means of the so-called "necklace" method. The execution of the deceased took place near the Mbuzini graveyard in the presence of about 300 people. It is common cause that the crowd consisted mainly of school children and other young people. The two appellants, who were both adults, were admittedly present on the scene at the time of the burning.
It was the state case that the first appellant played a prominent role in the events leading up to the burning of the deceased, and that both appellants acted as leaders who actively participated in the burning of the deceased. The defence case, on the other hand, was that the two appellants were forced, under threats of being assaulted with sjamboks, to join the crowd and to watch the burning of the deceased. While conceding that they had been present,

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both the appellants denied that they had in any way participated in the killing of the deceased.
The trial court accepted the evidence of the witnesses who testified on behalf of the state and rejected the evidence of the two appellants. The appellants were both convicted of murder. The trial court found that there were no extenuating circumstances and imposed the death sentence on each of the appellants. Leave to appeal against both conviction and sentence was subsequently granted by the court a quo to each appellant.
As part of their application for leave to appeal the appellants also applied in terms of section 316(3) of Act 51 of 1977 for leave to lead further evidence. This application was granted and the evidence of two further alleged eye-witnesses, and that of an associate professor in psychology, was thereupon received by the learned trial judge.

Mr Kuny, who appeared for the appellants, referred

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to the case of S. v. Tsawane and Another 1989(1) S.A. 268(A)
at 274 B-C, where the following remarks were made with regard
to the approach to be adopted in similar cases:

"In view of the fact that the Court receiving the further evidence in terms of s 316(3) is, subject to what I have said above, a mere conduit pipe and is not competent to consider and resolve the disputed issues raised by the further evidence de novo or to review the trial Court's decision on the supplemented evidence (see Masinda's case supra at 1165 C-F) it is, I consider, the function of this Court to consider and decide the matter in the light of the new evidence with due regard to whatever comments and opinions the Judge may have made on the evidence received by him."

(See also S. v. Cebekulu 1976(3) S.A. 432(A), at 435).

The learned trial judge in fact recorded his views regarding the additional evidence, and his impressions of the witnesses who gave such evidence, in a subsequent judgment in which he gave his reasons for granting leave to appeal and to adduce further evidence.
The learned trial judge found the evidence of the psychologist, Professor Foster, to be of little cogency. I

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shall revert to his evidence when dealing with the question
of extenuating circumstances.

The witness Richard Mahlalela was 16 years old and

in standard 8 at the time when he gave his evidence, which
was two years after the event. Richard impressed the learned
trial judge as bright, articulate and alert. There was no
indication, as far as that court was concerned, that Richard
Mahlalela had deliberately designed his evidence, either
alone or in concert with others, in order to favour the
appelants. The learned trial judge remarked that Richard
Mahlalela was an impressive witness, and he concluded as

follows:

"In fairness I should record my personal impression that if this witness had given evidence at the trial I would have had doubts about the guilt of either of the two accused."

The evidence of Richard Mahlalela and the conclusions of the

learned trial judge will be considered more fully hereunder.

Sibongile Nkuna, on the other hand, was found to

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be an unimpressive witness who had not been frank with the court. The learned trial judge concluded that had she given evidence at the hearing he would have attached little weight thereto. It should be pointed out that the first appellant is the uncle of this witness. It appears from her evidence that she knew all along that the first appellant had been charged with the murder of the deceased and that she had been aware of this case against her uncle even before the trial had started. It is the evidence of Sibongile Nkuna that she was present when the deceased was being burnt. Her evidence, if accepted, could have assisted her uncle, yet she failed at the time to volunteer as a witness for the defence. In view of all the unsatisfactory features in her evidence I am of the opinion that this court can place no reliánce on her evidence at all.

Section 316(4) of Act 51 of 1977 provides that the evidence received in pursuance of an application under section 316 "shall for the purposes of an appeal be deemed

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to be evidence taken or admitted at the trial."
After referring to this subsection, Galgut JA held as follows

in Cebekulu's case, supra, at 435 D:

"it follows that the Appeal Court must consider the merits of the appeal on a reading of all the evidence now contained in the record together with the reasons for judgment in regard to the conviction and the application for leave to appeal."

Mr Kuny submitted that, had Richard Mahlalela's evidence been placed before the trial court prior to conviction, the attitude and approach of the court a quo towards the evidence given by the state witnesses and the two appellants would in all probability have been different.
Viewed in isolation Richard Mahlalela may have been a good witness, but once his evidence is considered in the light of all the evidence it loses much of its apparent force. It appears that Richard's evidence does not support the respective versions of the two appellants in certain material respects. When the evidence of Richard Mahlalela

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is compared with the evidence of the two appellants, and in particular their evidence in extenuation, one gets the impression that Richard Mahlalela and the two appellants are really talking of two different occasions.
It is the evidence of the first appellant that he was employed at the Kriel power station where he stayed in a hostel. He returned to his home in Mbuzini only once a month. The first appellant happened to be at home on Saturday 7 June 1986 when a group of youngsters accompanied by a local school teacher, one Face Mahlalela, arrived at his house at about 13h00. They forced him to accompany them to a place in the veld where they sat on stones. Some of them danced and sang songs until sunset. The songs were unknown to him, but he could recall that the word "Viva" was used in those songs.
At about sunset Face Mahlalela terminated the meeting and ordered them to go and fetch the deceased at his home. It is the first appellant's evidence that he tried to

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get away from the group by pretending that he wanted to go and fetch his jacket at home. He was prevented, however, from slipping away when one Makwanyane ordered seven boys to escort him home.
After fetching his jacket the first appellant and his escort followed the group to the house of the deceased. The first appellant's evidence is that he waited outside while others went to fetch the deceased from his home.
They left with the deceased and went to an open veld next to the graveyard. When they arrived there Face Mahlalela told them to sit down while Face and others took the deceased to one side. After a while they were told to stand up and sing. The next thing that the first appellant saw, was a person burning. He realised it was the deceased, but he did not see when or how he was set alight. According to the first appellant he was standing about 25 to 30 paces from where the deceased was burning.

The first appellant knew the second appellant by

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the name of Rasta, but he alleged that he did not see the second appellant at the graveyard that night. The first appellant further denied that he heard anybody referring to the deceased as a wizard or an "impimpi."
It is highly unlikely that the first appellant would not have noticed the second appellant that evening. According to all the evidence the second appellant was the person who bound the deceased before he was set alight. It is also hard to believe that the first appellant did not hear the words of thé song which all the witnesses agree was sung by the crowd, and which referred to the burning of an "impimpi".
The first appellant could give no reasonable explanation as to why this group of youngsters would have forced him to remáin present all afternoon and evening. It appears to me to be inherently improbable that these young people would have decided to detain an adult against his will in order to witness how they killed the deceased. It is as

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improbable that the first appellant would have allowed himself to be held prisoner for approximately twelve hours by a group of school children for no apparent reason.
The first appellant conceded that he made a statement to the investigating officer, warrant officer Mabunda, at thejtime of his arrest and that he told him that he knew nothing about the death of the deceased. The first appellant could give no reasonable explanation as to why he did not tell the investigating offi cer that he had actually been held prisoner by a group of youngsters and that they hád forced him to witness the burning of the deceased.
The court a quo dealt with all the unsatisfactory features in the evidence of the first appellant and rejected his version that he had been a mere innocent bystander who had been compelled to join the group of youngsters and who had been forced to remain in their company all afternoon and evening against his will. The court a quo accepted the evidence of the state witnesses and found that the first

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appellant was one of the leaders of this group and that he played a prominent part in the killing of the deceased.
After his conviction, and when he testified in extenuation, the first appellant changed his evidence in material respects. It is necessary to refer to some of these aspects in order to determine whether the witness Richard Mahlalela supported either version of the first appellant.
In the course of his evidence in extenuation the first appellant for the first time told the court a quo that at the afternoon gathering in the veld Face Mahlalela, Makwanyane and one Dobe addressed the meeting and said that they were fighting for equal education, free books for scholars and equal pay for all workers, but that wizards were bewitching them.
The witness Richard Mahlalela, on the other hand, testified that there had been no singing or dancing that afternoon in the veld. According to Richard, Face Mahlalela was the only person to address the meeting that afternoon.

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Face told the gathering that the deceased was giving them a lot of trouble in that area. The deceased had allegedly stolen cattle and had taken the cattle to Mocambique. This led to people from Mocambique coming across the border to steal cattle in the Republic. According to Richard, Face also alleged that this conduct on the part of the deceased resulted in people being killed.
Richard Mahlalela was specifically asked whether any mention had been made at that meeting of equal education, free school books and equal salaries for everybody, but Richard was adamant that there had been no such discussion. Richard also disputed the first appellant's evidence that Makwanyanê or Dobe had addressed the meeting during that afternoon.
In the course of his evidence in extenuation the first appêllant also told the court a quo that Dobe had addressed the crowd once again at the gráveyard, telling them how the deceased had killed his (Dobe's) brother. At the

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graveyard Dobe also accused the deceased of being an
"impimpi" and a wizard. According to the first appellant's
evidence he then started to look upon the deceased as a bad
character in their midst who had caused suffering in the
village. Towards the end of his evidence in extenuation the
first appellant actually conceded that he had gone along to
the graveyard voluntarily. His evidence in this regard was
as follows:

"-- From the place, from my home where they took me to the place where the deceased stays we were forced. But on our way to the veld where they were to sentence him I was also keen to know what they wanted to tell him because I felt bitter about,it in my mind.
Yes so, the question is were you still forced or were you then a voluntary participant at that stage? — Is that after taking away the deceased?
Yes. -- When we were moving towards the veld I was going voluntarily to go and hear."

This version of the first appellant is not

supported by Richard Mahlalela. On reading Richard
Mahlalela's evidence one certainly does nót get the

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impression that the first appellant suddenly became a keen spectator when they arrived at the graveyard. According to Richard's testimony it was Face Mahlalela who spoke at the graveyard. Face asked the deceased when he intended bringing the cattle back, and what he proposed doing about the people who were lying in their graves.
Richard Mahlalela went out of his way to try and explain why the first appellant had not been able to see how the deceased had been killed. According to Richard's evidence he was in the front rank and he fortuitously happened to turn around and look behind him at the crucial moment when the deceased was set alight. He then saw the first appellant standing right at the back. However, when the first appellant testified in extenuation he conceded that he had in fact seen how the deceased was killed.

Contrary to the evidence which he had given prior to his conviction, the first appellant then testified that he had actually seen how one Mangununu had placed the tyre

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around the deceased's neck, how Dobe had poured the petrol over the deceased and how Face Mahlalela had set him alight. There is a further discrepancy in this regard as well. Richard Mahlalela's evidence is that one John Nkuna poured the petrol on the deceased and that Dobe struck the match.
A further point of criticism as regards the evidence of both the first appellant and Richard Mahlalela relates to a remark which the first appellant made at the time when the crowd at the graveyard was about to disperse. It is the evidence of the state witness Lucy Mpapane that the first appellant asked all of those present "Who will tell the names of those who burnt him?" The state witness Lucille Shongwe confirmed this evidence of Lucy. The second appellant's evidence in this regard was that "the leaders" had warned them not to reveal what had happened. The first appellant, however, denied that he had made such a remark, or that he had heard anybody else makingany such remark.

Richard Mahlalela conceded that the first appellant

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had asked the bystanders "Who saw the person who set this man alight?", but Richard denied that it was meant to be a , warning. Richard Mahlalela clearly tried to assist the first appellant in this regard and suggested that there was an innocent explanation for the first appellant's question. According to Richard Mahlalêla the first appellant had asked that question because the first appellant had not been able to see how the deceased had been killed. Yet, on the first appellant's own evidence in extenuation the first appellant knew very well how the deceased had been killed and who had set him alight. In those circumstances it would have been senseless for the first appellant to have asked the question with the import suggested by Richard.
In my judgment Richard Mahlalela tried to favour the first appellant but did not succeed in doing so. Richard's evidence does not support the first appellant's version, but actually contradicts the first appellant's evidence in material respects. The same criticism applies

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to Richard's evidence as far as it affects the second appellant.

It is the evidence of the state witness Lucy

Mpapane that the second appellant remarked at the graveyard
that they were afraid of the wizard and that they should tie him. The second appellant thereupon took a piece of wire and tied the deceased's wrists together. After the deceased had been set alight he ran some distance. The second appellant then approached the deceased and hit him on his back with a sjambok. The state witness Lucille Shongwe confirmed this evidence of Lucy and added that it was the second appellant who had set the deceased alight.
The second appellant maintained that he was forced by a group, consisting mainly of school children, to join them that Saturday morning. He was compelled to go along with them to a meeting which was held in the veld and he was obliged to follow them to the graveyard ágainst his will. The second appellant conceded that he was present when the

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deceased was killed at the graveyard, but the second appellant pretended that he did not see how the deceased was tied, doused with petrol and set alight. He did, however, see that the deceased ran some distance after he had been set alight.
The second appellant was a poor witness, and the court a quo rejected his evidence for convincing reasons. He too testified in extenuation after his conviction. He then changed his evidence in many respects. He admitted tying the deceased's wrists together, but contended that he had done so only after Dobe had told him what a vicious wizard the deceased was. He persisted, however, in saying that he acted under compulsion.
Richard Mahlalela's evidence is that Face Mahlalela instructed the second appellant to bind the deceased with a rope. The second appellant appeared to be reluctant to take the rope, whereupon Face threatened him w'ith a sjambok. The second appellant then took the rope and bound the deceased's

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legs with the rope. Makwanyana thereafter bound the deceased's hands behind his back.
It was pointed out to Richard in cross-examination that the evidence was that the second appellant had tied the deceased's wrists, and not his legs, but Richard was adamant that the second appellant had tied his legs. Richard was also told that there was evidence that the deceased ran some 20 paces after he had been set alight. Richard was quick to suggest that the deceased was able to run because the rope had been burnt by the fire.
Richard was also asked whether he witnessed the second appellant hitting the deceased with a sjambok on the back, but Richard replied that he retreated once the deceased had caught fire and that he was therefore unable to see what was happening.
The evidence of Richard Mahlalela about the second appellant tying the deceased's legs with a rope is not supported by the second appellant himself or by anyone of the

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other witnesses and it cannot be accepted.
The evidence given by Richard Mahlalela regarding the roles respectively played by the two appellants on that fateful Saturday is also in direct conflict with the evidence
of the state witnesses whose evidence was found to be reliable.
It is the evidence of the deceased's wife, Lilian Vubu, that the first appellant was the spokesman and ostensible leader of the group that ordered the deceased to come out of the house. The first appellant disputed that evidence. He alleged that he remained outside and that he never went up to the door or spoke to Lilian Vubu.
It was submitted by Mr. Kuny that the evidence of the witness Richard Mahlalela supported the first appellant's version in this connection. I am not persuaded that that is correct. Accoding to Richard's evidence he had been standing at the fence outside the deceased's house for a long time before he first saw the first appellant standing next to him

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at the fence. Although Richard did not see the first appellant at the door of the deceased's house, the possibility cannot be ruled out that the first appellant actually went to speak to Lilian Vubu at the door, as is alleged by Lilian. It should be borne in mind that this visit to the deceased's house took place during the night, and according to the evidence the only source of light was a lamp inside the house.
The deceased's daughter, Lucy Mpapane, gave evidence to the effect that the first appellant came to the home of her grandmother, where she and her sisters were sleeping that night, and ordered them to join the group outside. It is her evidence that their group later joined another group who had apparently gone to fetch her father at his house. Lucy knew the appellants very well. She later saw them both standing alongside her father in this other group.

The first appellant denied that he had gone to the

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house of Lucy's grandmother that night. It is submitted by Mr. Kuny that the evidence clearly shows that the first appellant was part of the group that went to fetch the deceased at his home, and that the first appellant, therefore, could not have been with the other group who went to the home of Lucy's grandmother. It is submitted that Richard Mahlalela's evidence in this regard supports such a conclusion. It is Richard's evidence that as they walked
towards the deceased's house the crowd broke into two groups. The one group remained behind while the other group went on to the deceased's house.
It is submitted on behalf of the appellants that Lucy Mpapane was therefore either lying or mistaken when she said that it was the first appellant who entered her grandmother's house on that Saturday night and summoned them outside. I do not agree that Lucy's evidence in this regard is necessarily wrong. It does not appear from the evidence how far the grandmother's house was situated from the

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deceased's house. The two houses may have been quite close to one another. There is nothing to show that the first appellant could not, for instance, have gone to the grandmother's house befóre joining the group which had gone to the deceased's house.
Counsel for the appellants referred to a number of discrepancies and inconsistencies in the evidence of Lucy Mpapane and Lucille Shongwe. It is certainly not unusual to find discrepancies in the evidence of two honest and reliable eye-witnesses. It must have been a traumatic experience for these two young girls to have witnessed the execution of the deceased. It should also be borne in mind that they observed the events at the graveyard from different angles. The trial court considered these discrepancies and inconsistencies and approached the evidence of these two young girls with caution, but found that they were reliable witnesses nevertheless.

It is true that the witness Richard Mahlalela

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ascribed an innocent role to both appellants, while the witnesses Lucy Mpapane and Lucille Shongwe implicated the two appellants as the leading perpetrators of the murder. It has been pointed out above that there are material discrepancies between the evidence of Richard Mahlalela on the one hand and the two appellants on the other hand. Richard Mahlalela's evidence does not support the version of either appellant. In my opinion, and despite the views expressed by the learned trial judge in this connection, one cannot attach any weight to the evidence of Richard Mahlalela. He appears to be an unreliable and biased witness, and his evidence cannot be used to discredit the two state witnesses, Lucy Mpapane and Lucille Shongwe.
The appeal of the appellants against their conviction must accordingly fail.
Mr. Kuny submitted that the court a quo should have found extenuating circumstances. He suggested that the conduct of the appellants should be viewed against the

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background of the unrest and discontent prevailing in the community of Mbuzini at the time. He submitted that the appellants were also caught up in this atmosphere of fear and superstition which was further built up by stigmatizing the deceased as an "impimpi", and by branding him as a cattle thief, murderer and wizard.

Mr. Kuny, however, properly conceded that if this

court were to find that the appellants had been the leaders
in the killing of the deceased, and had actively participated therein of their own volition, then these circumstances mentioned above cannot be regarded as extenuating circumstances as far as the appellants are concerned. The trial court in fact found that the leadership role of the appellants was manifested by their conduct at the burning. I respectfully agree with that finding. The first appellant also acted as the spokesman and ostensible leader of the group when he ordered the girls and the deceased out of their respective homes.

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Mr. Kuny conceded that he could not point to any specific misdirection on the part of the trial court in this connection.

Reference was made to the evidence of Prof. Foster.

He conceded, however, that there would be no factual basis for his theory if it were to be found that the appellants were the leaders of the group who planned the deed and who played a prominent part at the execution of the deceased.
In my judgment there is no ground for interfering with the finding of the court a quo that there were. no extenuating circumstances present in this case. The appeal against sentence must, therefore, also fail.

The appeals of both appellants against their convictions and sentences are accordingly dismissed.

VAN HEERDEN JA

VIVIER JA Concur F.H. GROSSKOPF

Acting Judge of Appeal.

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