IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between: MZAZILE WILLIAM NTOMBELA 	 Appellant
THE STATE Respondent
CORAM: BOTHA, GROSSKOPF, STEYN, JJA
HEARD: 24 November 1988	
DELIVERED: 29 November 1988
JUDGMENT GROSSKOPF, JA
The appellant was charged with three other men on two counts of murder, two counts of attempted murder, a count of unlawful possession of a firearm and a count of unlawful possession of ammunition. After a trial in the Witwatersrand Local Division (GORDON AJ and assessors) the appellant was found

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guilty on all counts but his co-accused were found not guilty and were discharged. In respect of one of the murder charges (count 2) the Court found extenuating circumstances, but in respect of the other (count 4) no extenuating circumstances were found, and the appellant was sentenced to death. On the counts other than count 4 periods of imprisonment were imposed. With the leave of the trial judge the appellant now appeals against the finding that there were no extenuating circumstances in respect of count 4, and against the resultant death sentence.
Although there is no appeal against the conviction on any of the counts, and only an appeal against sentence on count 4, it is necessary to set out briefiy the background to the events and the manner in which these offences were committed.
At the time of the trial in 1987 the appellant was 33 years old. He came to Johannesburg from Natal in 1976 and worked for Nel's Dairies in Victory Park until his dismissal, in circumstances to be dealt with later, on 10 June 1986. He lived in a hostel in Alexandra. The appellant was active in labour

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affairs, and in 1985 joined the Commercial Catering and Allied
Workers Union of South Africa (hereinafter referred to as
CCAWUSA). At Nel's Dairies he served at first on the Workers'
Committee and later became a shop steward and chairman of the	
seven shop stewards.
As from the end of 1985 there were labour troubles at Nel's Dairies. In December there was an illegal strike after the management had announced that no service bonus would be paid to employees. After negotiations, management agreed to pay the bonus. In January 1986 disciplinary action was instituted against a worker for recruiting trade union members during working hours. The worker resigned. Then, in April, a worker was dismissed for incompetence. A strike ensued, and after consultation with the workers, a trial was held at which CCAWUSA was represented. The upshot was that the worker was reinstated.
Bliss Dairies in Bezuidenhout Valley is a separate company which is under the same control as Nel's Dairies. In June 1986 there were labour disputes at Bliss Dairies. The

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nature of the disputes does not appear clearly from the evidence, bút nothing much turns on it. On 5 June 1986 there was a strike at Bliss Dairies. This was, it seems, sparked off by the dismissal of a worker. Many of the workers of Nel's Dairies went to the premises of Bliss Dairies, apparently to show their solidarity. They travelled in two vehicles belonging to Nel's Dairies. This was done without the approval of the management of Nei's Dairies. One of the vehicles was a bus which Nei's Dairies had acquired to convey workers between the hostel and their work. The other was a milk lorry, which, it was said in evidence, was unsafe for the conveyance of passengers. According to the evidence of Mr. Hugo, the distribution manager of Nel's Dairies, the appeliant and one Patrick Dlani (who was accused no. 2 in the court a quo) ordered the driver of the milk lorry to ieave Nei's Dairies with a full load of passengers despite Mr Hugo's instructions to the contrary. The appellant denied in evidence that he had been responsible for the unauthorized use of the milk lorry. Nevertheless the appellant

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and Dlani were suspended, and, after a hearing, dismissed on 10
June. The appellant testified that CCAWUSA made
representations to have him reinstated. If so, its efforts
were apparently not very strenuous. Mr. J Masuku, an official
of CCAWUSA, gave evidence for the appellant in extenuation. In
cross-examination he testified as follows:	
"Do you know the clrcumstances of accused No. 1's dismissal from Nel's, do you know why he was dismissed?
	 Well, I don't know exactly the details that have
surrounded that but I just know that there was an incident involving company trucks and that thereafter he was dismissed. And your union obviously decided not to take any court
action to have him reinstated? -	 Well, the
circumstances under which they were dismissed, the union would have failed to convince the court that they must be reinstated.
You are satisfied with that, you are satisfied no court
would have reinstated them? -	 Yes."
Whatever may be the rights and wrongs of the action
taken against the appellant, it is a fair inference that it left
him with a sense of grievance against the management of Nel's
Dairies.
On 16 June 1986 the employees of Nel's Dalries did not

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work, and received no wages. There is no suggestion that this uhpaid holiday was related in any way to the appellant's dismissal. At that time a state of emergency was declared. On 17 June 1986 work proceeded normally, but on 18 June the workers refused to work or to leave the premises. There is evidence that this action was in support of the appellant and Dlani. The position became tense and the police were called in. All the workers, amounting to about 350, were arrested under the emergency regulations and detained. After about ten days they were released, and some of them were re-employed. Others refused to return to work.
On 14 July 1986, at about 6 a.m., an employee of Nel's Dairies, one Patrick Moiloa, was on his way to work. A short distance from the entrance to the premises of Nel's Dairies the appellant shot him from behind with a handgun. Moiloa recovered, and thé appellant was convicted of attempted murder for this shooting (count 1). No reason for this shooting appears from the appellant's evidence at the trial, which was a

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complete denial of complicity. However, in an extra-curial
statement dated 12 August 1986 he said that he and some others
went to Nel's Dairies to shoot one Buzekozeko "because he did not
want to strike after we agreed that no one was to return to
work." Buzekozeko was not there "so I decided that someone
else must be shot and Patrick was the first person I saw."
In another statement, given on 11 September 1986, he
expanded somewhat on his reasons. He said:
"At work I was fired on 10th June this year. The workers did not go home. They waited for me to know if I was fired or not. So when I came out of my employer's office, they wanted to know if I was fired. I said I was fired and they said that they were going to strike and I informed them not to strike because I was going to take steps against my employer because he fired me for no good reason. After 5 days they came to me at the hostel and told me that I was bluffing them and told me they were taking steps to strike. Then on the 17th June they came to me and told me they were going to strike on the 18th June. On the 18th I went to work to see if they were striking or not, so I found them striking. All the people who striked were arrested and detained. I will say there were about 900. After that I went to the Union to find out why they were arrested. The Union asked the factory why they were arrested and the factory said they did not want them detained but it was during the state of

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emergency. After they were released I met them at the
hostel and took them to the Union. Actually I met them
in town and those who had no busfare I gave money to
go to the hostel. They then went to the Union and the
Union advised them not to go back to work until they
were advised why they were arrested. They did not go
to work but after a long time they went one by one. 
Those who went to work informed the employer that I was
the one who told them not to work. I asked them
whether I caused them to strike. I became very cross
and decided to kill those who went back to work. It
was me and the people who did not go back to work who
decided this."
The next shooting was on 16 July 1986. Early that
morning the appellant and some others went to the premises of
Bliss Dairies in Bezuidenhout Valley. The deceased was a
security guard doing duty at the premises. He was shot twice
from the side, either by the appellant himself, or by an
accomplice at the instigation of the appellant. One shot caused
minor injuries to the head but the other, which entered the
deceased's chest, caused his death two days later. The accused
was convicted of murder in respect of this count (count 2).
Extenuating circumstances were found as follows:
"Dealing with the events at the Bezuidenhout Valley,

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this is a case which has caused us some difficulty.
We cannot be certain as to who fired the shot. It
would be no mitigation if the accused did hire an 
assassin. While it is clear that the accused was a
party to the deed, at the very least he was an
accomplice, directly implicated. Nevertheless, because
of the difficulty mentioned, and perhaps charitably in
this regard we find that there are extenuating
circumstances."
On 25 July 1986, at about 8 a.m., a Bliss Dairies van was delivering dairy products at Checkers Stores at Halfway House. The appellant and one or two others arrived there by car. The appellant went to where the delivery was taking place, and shot one of the workers in the neck. The worker survived. The appellant left again in the car. The appellant was convicted of attempted murder on this count (count 3).
This then brings me to count 4, which is of direct importance for the present appeal. This incident was also on 25 July 1986, but in the afternoon. Eyewitness evidence was given by accused no. 3, whose evidence was, on the whole, accepted by the Court. At about 2 p.m. accused no. 3 was in his car at the hostel in Alexandra, when the appellant approached

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him, entered the car and told him to drive off. Accused no. 3
complied. They first put in petrol with money which the
appellant provided, and then bought fried chicken. The
appellant took out a firearm and put it in the chicken container
which he placed on the back seat of the car. They drove to
Parkhurst, where the appellant told no. 3 to park. The
appellant took the firearm from the container and stuck it into
his trousers in front. They got out and walked some distance 
until they saw a delivery van of Nel's Dairies. The appellant
told no. 3 to return to the car and to move it to a certain
corner. No. 3 did so, and waited for a while. While he was
waiting the appellant went to the van, and shot the driver. As
appears from the medical evidence he shot him twice in the side
of the body below the right armpit. He then ran back to where
no. 3 was parked. They drove away. The deceased died the same
day. In extra-curial statements the appellant admitted the
killing, although he gave no details about how it happened.
There can be no doubt that the appellant was correctly convicted

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of murder and, indeed, there is no appeal against his conviction.
In its judgment on extenuating circumstances the trial court
fully and correctly set out and considered all the factors relied
upon by the defence, but came to the following conclusion:
"The accused set out deliberately to shoot and kill a completely innocent worker, any worker, who might be found going about his lawful business of going to work. The hapless person was in fact so engaged and was simply assassinated. There is no evidence that accused even knew this man; knew his circumstances; considered the suffering that he would cause. We have taken into account all the arguments advanced. We find that the act is one of a simple brutal murder. There is absolutely nothing that can lessen the moral guilt. The man, a completely innocent man going about his lawful duties was gunned down in an act of assassination. In the circumstances, insofar as count 4 is concerned, we are unable to find the existence of extenuating circumstances."
The principles by which this Court is guided when asked on appeal, in a case of murder, to reverse a finding by the trial Court that there were no extenuating circumstances are well-known, and have recently been re-stated as follows in S v Mc Bride 1988 (4) SA 10 (A) at p. 19 A-C:
"... the decision as to the existence or otherwise of

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extenuating circumstances is, in the first instance, essentially one for the trial Court; and in the absence of any misdirection or irregularity this Court will not interfere on appeal with the trial Court's finding as to the non-existence of extenuating circumstances unless that finding is one to which no reasonable Court could have come. This Court cannot substitute its view on the question of extenuating circumstances merely because it disagrees with the view of the trial Court. Nor, in the absence of good grounds for interference with the finding of the trial Court, does this Court express any view as to whether the trial Court could or should have found extenuating circumstances."
In the present case Mr. Steyn, who appeared for the appellant, did not submit - and, in my view, rightly so - that the trial Court had committed any misdirection or irregularity. His contention was that no reasonable Court could have come to the conclusion that there were no extenuating circumstances in relation to the murder charged in count 4.
An extenuating circumstance, in the oft-quoted words of LANSDOWN JP in R v Biyana 1938 EDL 310, is "a fact associated with the crime which serves in the minds of reasonable men to diminish, morally albeit not legally, the degree of the

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prisoner's guilt". It is trite law that the appellant bore the onus of establishing extenuating circumstances on a balance of probabilities.
What were the possible extenuating circumstances in the present case? The actual killing does not point to any such circumstances. It was cold-blooded and premeditated. Mr. Steyn contended however, that the appellant's motives for killing the deceased served to mitigate the moral blameworthiness of his conduct.
It goes without saying that, in an appropriate case, the motive with which a deed is committed may have a bearing on the perpetrator's moral culpability. The first difficulty in the appellant's way in the present case, however, is to determine exactly what his motive was. In evidence he denied that he had committed any of the offences charged, and he persisted in this denial even when giving evidence in extenuation. His own evidence is consequently of no direct assistance in establishing any motive for the killing. The extra-curial statements quoted

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above are not very clear and in any event suggest a cold-bloodedness which is not helpful to the appellant's case.
Mr. Steyn was consequently constrained to argue on the basis of probabilities arising from the objective facts of the case coupled with snippets derived from other evidence or evidential material.
Now at the outset it seems clear that the appellant engaged in the shooting of these four persons because they were employed by, or, in the case of the deceased in the second count, working for the benefit of, Nel's Dairies or Bliss Dairies. One can possibly infer from this, coupled with certain other evidence such as his extra-curial statements, that his purpose in doing so was to encourage workers to strike, or to punish them for failing to do so. Such a purpose, it seems to me, is by itself not mitigating - indeed, depending on other circumstances, it may aggravate the moral obloquy attaching to the deed. And when one tries to determine the reasons prompting the appellant to terrorise workers into striking, or to punish them for not doing

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so, one enters into the field of pure speculation. Nothing in
the evidence provides a safe basis for inference. Thus Mr.
Steyn suggested that the appellant had lost his position of	,
relative authority when he was dismissed; that, according to
some evidence, the workers had in any event turned from him
because his leadership was not decisive enough; that his loss
of standing was exemplified by the failure of the workers to
strike when he told them to do so (this, incidentally, in the
face of the appellant's own evidence that he was opposed to the
strike); and that his purpose with the killings may well have
been to reassert his authority over the workers. A mere desire
to gain power would of course not be an extenuating circumstance
by itself, but the theory proceeded along the lines that the
appellant's purpose was beneficial - having gained power he would
have used it for the benefit of the workers. The purpose which
is thus suggested is not supported by any evidence. If one is
to speculate, one might as well imagine that the appellant acted
from hunger for power, or pique at being disobeyed by the workers

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(assuming, again, that he was the instigator of the strike), or in the hope of obtaining his own reinstatement as an employee of Nel's Dairies, no matter what suffering he imposed on others, or even from a desire to vent his spite on Nel's Dairies and Bliss Dairies by depriving them of their workforce. Thus, even assuming that the murder was committed by the appellant in an attempt to reassert his authority over the workers, such an attitude on his part would as a matter of probability, not by itself amount to an extenuating circumstance.
Then it was argued that the appellant may have been induced by fellow workers, or even by CCAWUSA, to commit these offences. There are hints in the extra-curial statements quoted above that the appellant planned the offences in concert with others who did not go back to work. These hints were, however, not elaborated on at the trial, and the evidence shows that in the actual commission of the offences the appellant was the prime mover. Indeed, in the count with which we are concerned the appellant was, according to the facts found by the trial Court,

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the sole actor. And participation by CCAWUSA is negatived by the evidence. Mr. Masuku testified that CCAWUSA was opposed to violence against strike-breakers, and that the appellant would have received no support from the union in respect of the offences committed by him. There was nothing to contradict this evidence. There is accordingly nothing on record to show that the appellant was coerced, encouraged or even influenced by others to commit the offences of which he was convicted, and, in particular, the murder which forms the subject of this appeal.
Finally it was suggested that the general state of labour unrest, which resulted inter alia in the appellant's own dismissal, must have had an influence on his mind. This seems highly probable, but does not go far enough. It is not enough for the appellant to show that he was probably influenced in one way or another. He had to show that he was influenced in a way which reduced the moral blameworthiness of his conduct in murdering the driver of the delivery van in the present count. This again raises the question, discussed above, of what his real

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motive was in killing the deceased. The trial Court came to the
conclusion that the influence exerted on the appellant by the conditions at the time did not serve as extenuation, and I do not think that, applying the principles set out above, we can interfere with this finding.
In the result I remain unpersuaded that no reasonable court could have found that there were no extenuating circumstances in the present case.
The appeal is dismissed.
E M GROSSKOPF, JA
BOTHA, JA
STEYN, JA Concur