South Africa: Supreme Court of Appeal

54/91

N v H

MANDLA MNGOMEZULU V THE STATE SMALBERGER, JA :-

54/91
N v H

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
MANDLA MNGOMEZULU Appellant
and
THE STATE Respondent

CORAM: SMALBERGER, FRIEDMAN, JJA,
et PREISS, AJA
HEARD: 28 MAY 1991
DELIVERED: 30 MAY 1991

JUDGMENT SMALBERGER, JA :-
The appellant appeared before GALGUT, J, and two assessors in the Natal Provincial Division on charges of terrorism and murder. He pleaded guilty on both counts, but the learned trial judge, for reasons

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that need not be recounted, directed that pleas of not guilty be entered. Evidence was led, and in due course the appellant was convicted on both counts. On the terrorism charge he was sentenced to 8 years' imprisonment; on the murder charge, no extenuating circumstances having been found, he was sentenced to death. With leave of the trial judge he appeals against his sentence of death only.
Since the appellant's trial the Criminal Procedure Amendment Act, 107 of 1990, has come into operation. The effect of its provisions has been considered in a number of decisions of this Court. For present purposes it suffices to say that this Court now has a discretion to determine, with due regard to the presence or absence of any mitigating or aggravating factors, whether the death sentence imposed upon the appellant was "the proper sentence". This

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3 is a very different test from that which the trial judge was enjoined to apply in order to arrive at an appropriate sentence. The phrase "the proper sentence" has been interpreted to mean "the only proper sentence", from which it follows "that the imposition of the death sentence will be confined to exceptionally serious cases; where (in the words of NICHOLAS, AJA, in S v J 1989(1) SA 669 (A) at 682D, albeit in a different context) 'it is imperatively called for'" (per NESTADT, JA in S v Nkwanyana and Others 1990(4) SA 735 (A) at 745 F). Is this such a case?

The evidence establishes that in 1985 the appellant was recruited into the African National Congress ("the ANC") which was then an illegal organization. At the time he was young, unsophisticated and uneducated with. no political interest or ambitions. He joined the ANC because he

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4 needed gainful employment. He did not initially appreciate what he was letting himself in for. He was only later to discover the full implications of his membership of the ANC. He underwent training, which included a period of training in Angola. During this period he was subjected to a programme of indoctrination which stressed, inter alia, the need to kill so-called "informers". He was also made aware of the fact that a refusal on his part to obey an instruction to kill could endanger his life. By the time he returned from Angola he was no longer as ignorant and unsophisticated as before, and performed various functions and duties as an ANC member. These included recruiting people to membership of the ANC, instructing them in the use of f irearms and establishing arms' caches. It was these activities which led to his conviction on the terrorism count.

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5 To deal more particularly with the murder count. ' One Khumba Mngomezulu ("the deceased") was, rightly or wrongly, identified to the appellant as an informer of the South African police. The appellant believed him to be such, and informed Christopher Gumede, one of his superiors in the ANC hierarchy, accordingly. He feared that if the deceased saw him he would report his whereabouts to the police. A decision to kill the deceased was taken by Gumede. The appellant asked two of his recruits, Thulani and Bhekinkosi, to keep the deceased's kraal under observation. They were to report to him if the deceased returned to his kraal. The deceased was eventually spied at his kraal and his presence reported to the appellant. A number of abortive attempts were made by the appellant and others to waylay and kill the deceased. (One Jabulani was in charge on these

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occasions.) Ultimately, after the passage of some
weeks since the decision to kill the deceased had been

taken, the appellant and one Blens (who was in charge)

succeeded in doing so.

There were no eye-witnesses who testified to

the killing of the deceased. What occurred on

that occasion emerges from a formal statement made by

the appellant at his trial, and from his evidence.

The events are summed up thus in the judgment of the

trial court:

"On the occasion on which the deceased met his death it was only the accused and Blens who were present and it was Blens who was in charge. Both the accused and Blens were armed, the accused with Exh 4 [an AK 47] . They lay in wait outside the deceased's kraal in the early hours of the morning. The deceased never emerged from the kraal but from a conversation with his wife that they overheard, they knew which path he was going to follow when he lef t the kraal. They

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waited along the path and waylaid the deceased. The deceased was held up at gunpoint and ordered to walk along the path. After going some way they ordered him to leave the path and they herded him to the place in the forest where he was about to meet his death. At no stage was the deceased apparently allowed to see his two assailants. At the site of the killing the deceased was ordered to keep his back to Blens and the accused. Blens thereupon ordered the accused to shoot the deceased. The accused carried out this instruction by shooting the deceased once in the back of his head. His body was left lying at that spot."

The events referred to occurred in May 1987. The deceased's remains were only discovered on 7 August 1987 when the appellant pointed out to the police the spot where the deceased had been killed. But for the appellant's co-operation it is unlikely that the remains of the deceased would ever have been found, or his murder solved.

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The killing of the deceased was planned and premeditated. He was executed in a cold-blooded and callous manner. He was given no opportunity to defend himself or refute the claim that he was an informer. It was the appellant who denounced the deceased as an informer to Gumede, knowing what his likely fate would be. These are all aggravating factors.
On the other hand there are a number of mitigating factors present. The appellant had very humble origins. He was unwittingly drawn into the ranks of the ANC where he became enmeshed in its then culture of violence. He was indoctrinated with the belief that informers had to be killed. (This is no doubt in part the reason why he denounced the deceased - he also feared possible reprisals if he failed to do so. There is no suggestion that he had any personal grudge against the deceased). He was

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9 taught to obey orders, including orders to kill. It was impressed upon him that a failure to obey orders could place his own life in jeopardy. He genuinely believed that the deceased was an informer. In killing the deceased he acted on the orders of Gumede and Blens. The killing was not accompanied by any unnecessary violence or brutality. The appellant appears to be someone with a submissive personality who is easily influenced. By pleading guilty and co-operating with the police he has shown some degree of contrition for his deed. He is still a relatively young man, being 28 years of age. He has no previous convictions, and appears to be useful human material with prospects of rehabilitation.
Having regard to the above aggravating and mitigating factors I am satisfied that the death sentence is not imperatively called for in this

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10 case and therefore not the only proper sentence (cf. S v Masina and Others 1990(4) SA 709 (A) ) . Mrs Voges, for the State, fairly conceded this to be so.
There remains the question of what will be an appropriate sentence of imprisonment. The offence committed was a serious one, but significantly less serious than those committed in Masina's case. There are substantial mitigating factors present that bear on the question of sentence. The appellant has spent nearly four years in custody since his arrest. Three of these have been spent under sentence of death, undoubtedly a harrowing experience. Due allowance must be made for this. In the circumstances an appropriate and proper sentence, in my view, would be one of 12 years' imprisonment.

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The appeal succeeds. The sentence of death on count 2 is set aside and there is substituted in its stead a sentence of 12 years' imprisonment. It is ordered that this sentence is to run concurrently with that imposed on count 1.

J W SMALBERGER FRIEDMAN, JA ) PREISS, AJA ) CONCUR