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Case No 11/92 /wlb

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

ZACHARIA SIMANGA NGEMA

and

THE STATE

CORAM: HOEXTER, MILNE JJA et HOWIE AJA

DATE OF HEARING: 15 May 1992 DATE OF JUDGMENT: 21 May 1992

JUDGMENT

/MILNE JA
2 MILNE JA:

On 1 September 1989 the appellant was convicted

of the rape and murder of a certain Mrs B. These

offences were committed on 26 March 1988. On the murder

charge he was sentenced to death, no extenuating

circumstances having been found, and on the rape charge

he was sentenced to 7 years' imprisonment. He was also

convicted of theft committed on 16 April 1988 in respect

of which he was sentenced to 6 months imprisonment,

housebreaking with intent to rob and robbery and indecent

assault, which offences were committed on 17 June 1988

and in respect of which the appellant was sentenced to 3

years and 6 months imprisonment respectively, and on a

further count of robbery and rape, also committed on 17

June 1988 in respect of which he was sentenced to 3

years' and 10 years' imprisonment respectively. Certain

of the sentences were ordered to run concurrently.

Leave to appeal against the convictions and

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sentences was refused by the trial court and by this

court. Thereafter, in terms of the amendments effected by the Criminal Law Amendment Act No 107 of 1990, the matter was considered by the panel in terms of section 19(8) of that Act. The panel found that the trial court would probably have imposed the death sentence in respect of the murder charge if section 277 of the Criminal Procedure Act, as amended, had been in operation at the time the sentence was imposed. The matter now comes before us in terms of section 19(12).

The question for determination is whether the death sentence imposed on the murder charge is the only appropriate sentence. The test to be applied is the same test as that applied in appeals under section 316A of the Criminal Procedure Act, as amended. That is a substantially different test from that which the trial court was obliged to apply and the enquiry is now a wider one. That is apparent from a number of decisions of this
4 court to which it is unnecessary to refer. What we are

required to do is to weigh up the mitigating factors and

the aggravating factors and in the light thereof and of

the objects of punishment to consider whether the death

sentence is the only appropriate one in the

circumstances.

The factual background has to be pieced
together from a statement made by the appellant to a
magistrate, his statement at the proceedings held in
terms of section 119 of the Criminal Procedure Act, and
the circumstantial evidence of various State witnesses.
The appellant, having conceded that he had fired the shot
that killed Mrs B and having conceded that he raped her
(in the statements made to a magistrate and in terms of
section 119) gave evidence at the trial denying any
implication in the commission of either offence. His
evidence was however totally rejected.

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The picture which emerges is as follows: The

appellant was a constable in the Kwa Zulu Police at the time when he committed all the offences referred to above. On 26 March 1988 the deceased, who was 57 years of age and lived on a farm in the Mtunzini district, had done the catering at a wedding reception held in the Mtunzini Town Hall. She left there at approximately 9 p.m. to take children to the home of a Mr Markham and as she turned from the dirt road which led to the Markham home onto the N2 highway she encountered the appellant. The appellant hurled a stone at the deceased in her car smashing the front passenger window. The deceased tried to drive away but the vehicle stalled. The appellant then tried to gain entrance to the vehicle but the deceased locked the door on the driver's side and then on the passenger side. The appellant then opened one of the rear doors and at that stage the deceased managed to put the vehicle in motion. The appellant then shot the deceased, the fire-arm having been held either touching

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the appellant's body or within a centimetre or so of it.
The vehicle went out of control, left the road and collided with a tree. The deceased died as a result of intra-thoracic haemorrhage caused by the bullet. The trial court found that the service pistol with which the appellant shot the deceased had a "not inconsiderable trigger pressure" and that the appellant, as a policeman, had received some training in the use of fire-arms. It was found that the inference was inescapable that it was

a deliberate act of murder. It is not in dispute that

this was a finding of dolus directus.

In his statement to the magistrate the appellant said, referring to the time immediately after the deceased's vehicle had collided with a tree, "Ek het toe gemeenskap met haar gehad want sy was nog warm gewees" and at the section 119 proceedings, in answer to the question "Het sy nog gelewe toe u geslagtelik met haar verkeer het?" the appellant said "Sy het nog
7 beweeg". The medical evidence established that the

deceased would have lived for at least five minutes after
being shot and possibly longer than fifteen minutes. The

trial court found, in effect, that the appellant had

raped the deceased while she was in her death throes.

It is apparent from this recital that there are a number of aggravating factors:

(1)	This was not an offence committed on impulse. The appellant must have planned to waylay vehicles passing the junction where he had stationed himself.
(2)	The appellant was not deterred by the fact that the deceased locked the two front doors of the vehicle but was determined to carry out his purpose.

(3)	He shot the deceased in the chest at point blank range with his official service fire-arm.
(4)	Far from experiencing the slightest tremor of regret about the fact that he had shot the deceased the

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appellant proceeded to rape her in the last minutes
of her life.
(5) Within the next three months the appellant committed the series of serious offences already referred to.
(6) The appellant was, at the time he committed all these offences, a police constable whose manifest duty it was to uphold the law and protect the public.

There are certain mitigating factors present.

The first is that the appellant had no previous con-

victions and the second is that he was only 21 years old

at the time of the commission of these crimes. These

factors are normally ones which would be strongly

mitigating. With regard to the age of the appellant,

however, the trial judge (Hugo J) remarked

"Not only, however, has the accused spent some years in the police force, but the impression he created on us in this court was not that of an immature youth. Indeed he displayed a quite surprising degree of maturity."

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The appellant was referred for mental observation but no

abnormality of any kind was found. In fact it was established that he was of normal intelligence and that he had passed standard nine examinations. It also appears that the appellant had been in the police force since 1986. There was, furthermore, nothing of any significance in the background of the appellant to indicate why he had so grossly abused his possession of a service fire-arm as to commit a number of serious crimes with it. In fact he was the son of the induna of the complainant on the second rape charge with whom the complainant and her husband were still at the time of the trial on very good terms (and all credit to them). The appellant's father testified and said that he had worked for the other complainant's husband since 1956 and had always been treated well by him. There was, therefore, no history of a deprived or embittering background.

Nor does the fact that the appellant has no

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previous convictions indicate in the particular

circumstances of this case that imprisonment is likely to rehabilitate the appellant. His conduct in raping the deceased as she lay dying and his further conduct in committing the other offences already referred to establishes in my view that he is a danger to his fellow human beings and that it is imperative to remove him from society. I should perhaps add that it is clear from the evidence that the rape and robbery which were committed on 17 June 1988 had been carefully planned and were ruthlessly executed. The fact that he was a policeman at the time and used his intelligence and his police weapon to commit the murder greatly aggravate the offence and greatly add to the wickedness of the crime. The appeal is dismissed.

A J MILNE

Judge of Appeal

HOEXTER JA]

] CONCUR HOWIE AJA ]

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