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Case No 81/87 - mp
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
CAROL ROSETTE SAUER Appellant
and
THE STATE Respondent
CORAM: HOEXTER, MILNE, JJA et NICHOLAS, AJA
HEARD: 3 March 1989 DELIVERED: 31 March 1989
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
In the Witwatersrand Local Division the appel-lant was
charged with the murder of one Jeremiah Ludick ("the deceased"). She was tried
by a Court consisting of IRVING STEYN, J and two assessors. The appellant
pleaded not guilty and at the close of the State case she
herself testified and
other witnesses were called for the defence. The appellant was found guilty of
murder with extenuating circumstances
and sentenced to imprisonment for ten
years. With leave of the trial Judge the appellant appeals against both the
conviction and
the sentence.
The appellant is a married woman and the mother
of three young children. When her trial took place in November 1986 she was 32
years
old. At the time of his death the deceased was some 40 years old. The
appellant and the deceased were both already married when they
met
in
3
in 1978. They were strongly attracted to each other, and they became lovers.
This relationship lasted until the night of Saturday
22 March 1986 when, shortly
after 10 pm,
the appellant shot and fatally wounded the deceased.
The
deceased died in hospital in the early hours of the next morning. A post-mortem
examination on his body was performed by Dr D
F van Blerk on 26 March 1986. Dr
van Blerk was called as a State witness. He established the cause of death as a
bullet wound of
the brain. A bullet had entered the deceased's head over the
right parietal region and left it in the left parietal area. The track
of the
bullet passed through both parietal lobes. On the postero-lateral aspect of the
deceased's right upper arm there was also
an entry and an exit wound, the track
of the bullet being just below the skin. Dr van Blerk testified that the
aforesaid head and
arm injuries could
have
4
been caused either by two separate bullets or - depending upon the precise
position of the deceased's arm in relation to his head
when he was shot -
possibly even a single bullet. During April 1984 the marriage between the
deceased and his wife ("Mrs Ludick")
ended in a divorce. Despite their divorce
the deceased and Mrs Ludick remained on friendly
terms. The deceased was very
fond of their children and he
continued to see both Mrs Ludick and the children. The
appellant's husband ("Sauer") was fully aware of the fact
that the
appellant and the deceased were lovers. Sauer did
not condone the appellant's
misconduct but he did nothing
either to bring the relationship to an end or
to rid him-
self of the appellant as a wife. At the trial Sauer was
called
as a defence witness. He described the feelings of
the appellant towards the
deceased by saying that she was
absolutely besotted with the deceased. On the
other hand
Sauer
5
Sauer appeared still to love the appellant. Although the appellant and the
deceased saw each other daily and during almost every evening
the appellant
continued to live under the same roof with Sauer and their children.
At the
trial Mrs Ludick was a State witness. According to her evidence she had attended
an office party in Krugersdorp on the night
of Friday 21 March 1986, and the
deceased had accompanied her to this function as her escort. Thereafter she did
not see him alive
again; but during the early evening of the night of the fatal
shooting she had spoken with him over the telephone. At that time Mrs
Ludick and
her children were due to take a vacation at Storms River early in April 1986.
The necessary reserva-tions had been made;
and it had been arranged between
her
and the deceased that the latter would join her and their children on the
holiday. Asked what her feelings towards
the
6 6
the deceased were at the time she replied that she con-
sidered -
" dat dinge tussen ons sal regkom en
dat ons dit sou uitgesorteer het soos die tyd aangegaan het...."
Meanwhile, and on Sunday 16 March 1986, the
deceased
had moved into a flat which was only some 700
metres away from the home in
which the appellant lived
with her husband and her children. The flat was in
a
building called "Blue Hills" in Third Avenue, Melville,
very close to
the intersection of Third Avenue and Main
Street. In Main Street, Melville,
and also close to the
said intersection, there is a restaurant called Freddy's
Tavern. Freddy's
Tavern was therefore just around the
corner from the deceased's flat. Walking from the flat to
Freddy's Tavern one passes an ice-cream parlour in which
a student called Freddy was employed. Freddy was known
to .
7
to both the appellant and the deceased.
There seems to have been a generous side to the
deceased. He showered gifts upon the appellant
and he gave
her money with which to pay her personal accounts. If the
appellant's evidence is to be accepted, however, there was also a less
attractive
side to the deceased's personality. The appellant described the
deceased as an aggressive, intolerant, quarrelsome and rough-spoken
individual
easily given to churlish and offensive behaviour. In particular, on the
appellant's testimony, the deceased was a person
of ungovernable temper which in
the past had found expression in acts of violence such as, for example,
deliberate damage to a new
motor vehicle belonging to Sauer. However that may
be, what emerges as an indisputable fact in the case is this. Despite such
imperfections
of disposition as the deceased may have displayed to the
appellant, her infa-
fatuation
8
fatuation was complete; and emotionally she was enslaved to
the deceased.
The following significant passage is to be
noticed in the appellant's
evidence-in-chief:-
"I was virtually at his beck and call 24 hours a day. He didn't want me to move from the house, when he phoned I had to be at home, when he came around I had to be at home. At the same time I liked this because it showed me that he loved me but it was putting a strain on me."
The strain to
which her emotional involvement subjected her
took its toll pf the appellant
physically and psychologically.
For some time before the shooting the
appellant required
medical treatment and she was on tranquillisers. For a
while
she had psychiatric treatment. She said that she needed
psychiatric
care -
"....because I was leading a double life and I just couldn't cope with it."
Sauer was the owner of a .38 Star automatic
pistol ("the pistol"). The pistol was a military handgun
which
9
which had a trigger pressure of 7 3/4 pounds. Sauer had taught the appellant to shoot with the pistol. For reasons of self-protection it was the appellant's habit to carry the pistol in her handbag whenever she went out at night. The pistol was kept loaded, in the half-cock posi-tion, and with the safety-catch off. On Saturday 22 March 1986 the appellant was experiencing pre-menstrual tension. During the morning she received a telephone call from the deceased. He told her to be at the flat at 7 pm. In the evening appellant drove to the flat in a car belonging to Sauer and she arrived there shortly before 7 pm. She parked the car in front of the building and went up to the deceased's flat on the first floor. As usual the pistol was in her bag. The appellant and the deceased spent some time in the flat. According to the appellant the deceased had been drinking and he was in a very ugly mood. He accused her of discussing
their
10
their relationship with Freddy of the ice-cream parlour; and he threatened to kill Freddy that very night. After a while they left the flat and went to have dinner at Freddy's Tavern. On the way to the restaurant, so testified the ap-pellant, the deceased repeated his threat to kill Freddy. In the restaurant they had a substantial meal and a bottle of wine was ordered. The deceased sampled the wine, but drank no more of it. Three-quarters of the bottle of wine was consumed by the appellant. The deceased's mood did not improve in the restaurant and he continued to rail against Freddy. The deceased says that she was very upset and that she tried, but with little success, to calm the deceased down. After the deceased had paid the bill they left the restaurant, whereupon, according to the appellant, the deceased became more agitated and aggressive. In the vicinity of the ice-cream parlour he again threatened to kill Freddy;
and
11
and she pulled him away. When they reached the intersection of Main Street and Third Avenue the deceased transferred his violent intentions from Freddy. According to the appellant the deceased said to her that on second thoughts, he would first kick dents into Sauer's motor car. At this stage of the events, so the appellant told the trial Court, she was under the influence of the wine she had consumed, but she knew what she was doing. She said that she was very upset and very scared. She thought that the deceased was about to damage Sauer's car whereafter he would dispatch the luckless Freddy. The appellant was carrying the pistol in her sling-over bag. She pulled the pistol out of the bag and pointed it at the deceased. She said she did so in order to scare the deceased. She then heard and felt the shot, and she saw the deceased fall. The next thing that she remembered was running in the road and waving down cars. A car stopped and took her home.
Her
12
Her impressions of what happened at her home were very vague, but she
remembered being very worried about her children. Her next clear
recollection of
events, so testified the appellant, related to her presence at the Parkview
Police Station. The appellant told the
trial Court that she had not wanted to
harm or kill the deceased; and that she loved him very much.
During her
cross-examination the appellant conceded that she had known that there was a
round in the chamber of the pistol. She agreed
that before it could be fired the
pistol had to be brought to the full-cock position, but she was unable to
explain how that position
had been achieved before the shooting of the deceased.
The appellant admitted that she knew that the deceased and Mrs Ludick were
good
friends, and that they still went out together. She admitted too that on the
Wednesday immediately before the shooting the deceased
had told her that he
intended joining Mrs Ludick and
their
13
their children on their holiday at Storms River. She had known that on Friday 21 March 1986 the deceased had gone to visit Mrs Ludick and their children. The appel-lant denied, however, that a reconciliation between the deceased and Mrs Ludick had been imminent. She said that the deceased had told her that his flat would be their love-nest; and that it was his habit to refer disparagingly to Mrs Ludick as "the dragon". In cross-examination it was suggested to the appellant that during the meal at Freddy's Tavern the deceased had told her that he was going back to Mrs Ludick. The appellant repudiated the suggestion saying that the deceased had not so much as mentioned Mrs Ludick's name. However, the appellant conceded that if during their dinner at the restaurant the deceased should have told her of a reconciliation between him and Mrs Ludick she (the
appellant)....
14
appellant) would have reacted very sharply to such news: she would have been
"mad and angry" and she would have made a scene.
At this juncture it is
convenient to leave the appellant's own evidence for a while in order to examine
the evidence of the sole eye-witness
to the shooting; and the evidence of three
other persons in whose company or presence the appellant cáme to be
shortly after
the shooting. It is, in particular, in the light of the testimony
of the last-mentioned three witnesses that the truth or otherwise
of the
appellant's evidence as to her state of mind at the time of the shooting falls
to be tested.
Very close to Freddy's Tavern in Main Street is a restaurant called "The Front Page". On the night in question a young man called Jassinowsky and his
girl-friend
15
girl-friend had been dining at the latter restaurant. This couple emerged from it at about 10.20 pm and they proceeded to walk to their car. At the intersection of Main Street and Third Avenue Jassinowsky saw a man and a woman standing a metre apart in Third Avenue almost opposite to the entrance to "Blue Hills". They were facing each other and they appeared to be conver-sing. The man made a movement as if to turn around, whereupon the woman withdrew a handgun from her handbag, raised her arm and fired a shot. The man fell and the woman fired a second shot. The witness demonstrated the movements executed by the woman at the time when the shots were fired: the first shot was fired with her arm fully extended in a horizontal plane; the second shot was fired with the arm still extended but at an angle of 45 degrees downward, as though shooting
at..
16
at something on the ground. Jassinowsky then started to cross Main
Stréet and he saw the woman put the handgun back in her
bag, take three
or four steps, and then run away up Third Avenue. For a while Jassinowsky ran
after the woman. He abandoned his chase
when he reflected upon the fact that he
was unarmed. As the woman ran along Third Avenue she had to master an incline.
According
to Jassinowsky he pursued the woman for some 30 to 40 metres, during
which pursuit the woman appeared to him to be running normally
and without
staggering or swaying.
Shortly after the events witnessed by Jassi-nowsky a
motor Kombi driven by an off-duty policeman, Constable Bekker, stopped at a
stop-street
on the corner of First Street and Second Avenue in Melville. A
front-seat passenger in the kombi was a Mrs F Pretorius.
At
17
At the stop-street Bekker and Mrs Pretorius noticed a
woman signalling
with her arms and running towards them.
When the woman reached the kombi she
jerked open the
door on the passenger's side and leapt into the lap of
Mrs
Pretorius. The woman in question was the appellant.
Both Bekker and Mrs
Pretorius were witnesses for the
prosecution. Each testified that the
appellant was very
hysterical and that she smelt of liquor, but that she
was
not drunk. The appellant asked for a lift to her home.
According to
Bekker she shouted hysterically :-
"Oh my God, I have shot a man, I have killed my boyfriend. Please take me home."
Bekker said that the appellant was flustered
and that he
had difficulty in following her directions, but that
they managed to get her home. The appellant asked them
to go inside with her. She ran into the house screaming:-
"I
18
"I have shot him, I have killed my boyfriend, Oh my God what is going to happen to my children."
The husband was at home and, while
Bekker spoke to him,
the appellant took Mrs Pretorius to show her the
children.
Mrs Pretorius told the trial Court that while the appellant
was
being driven home she shouted:-
"I killed a man, I have shot my boyfriend"
and that, inter alia, the appellant also said:-
"I loved that man but he
fucked my life up." At the appellant's home her husband appeared and the
ap-pellant said "I have killed him,
I have killed him". The appellant took Mrs
Pretorius to see her children, and from her exclamations it was clear to Mrs
Pretorius
that the appellant was greatly concerned about the fate of her
children. Thereafter Mrs Pretorius drove off from the appellant's
home in
Bekker's Kombi while Bekker and the
appellant,
19
appellant, in a car driven by the husband, proceeded to the scene of the
shooting. During that journey the appellant asked to be taken
to the police
station. She further remarked:-
"He fucked up my life." When they got to the
flat Bekker noticed a man lying on the pavement in front of the flat. The police
had
already arrived and an ambulance was in attendance. The appellant was
reluctant to get out of her husband's car. Bekker took her
by the hand and
dragged her out of the car. The appellant clung to Bekker and refused to
approach the actual scene of the shooting.
Bekker handed the appellant and the
pistol over to the police investigating the shooting. Bekker was asked whether
the appellant
had given any reason for shooting the deceased. Bekker replied
that the appel-lant had made some mention of a man named Freddy: he
had
gathered
20
gathered that the deceased had wanted to assault Freddy.
The person who
summoned the ambulance and the police to the scene of the shooting was Miss A M
Witty who was also a State witness.
She is a nurse at the Johannesburg General
Hospital. On the night in question she came upon the deceased lying on the
pavement in
Third Avenue at the place already described. The deceased was lying
on his back and he was surrounded by bystanders. He was still
alive but his
pulse was very weak and he was bleeding extensively from two head wounds. Miss
Witty tried to stem the bleeding and
when the deceased was re-moved to hospital
Miss Witty accompanied him in the ambulance. The ambulance had already arrived,
so tes-tified
Miss Witty, when three persons approached the place at which she
was attending to the deceased. The appellant was one of them, and
she was
supported on
either
21
either side by a man. One of the men asked the appellant to look at what she had done, but the appellant, who was struggling and resisting, was unwilling to do so. The appellant cried out:-
"He has fucked up my life."
I come back to the evidence of the appellant herself. The unchallenged evidence of const. Bekker, Mrs Pretorius and Miss Witty as to the anguished utteran-ces made by the appellant within an hour of the shooting tend very strongly to show that, despite her love for the deceased, the appellant saw him as the man who had con-founded or destroyed her life. During cross-examination this important aspect of the case was explored with the appellant. Her answers were, I think, neither convincing nor satisfactory. I quote an excerpt from her cross-examination dealing with her statements to Bekker and
Mrs Pretorius:-
22
Mrs Pretorius:-
"You wanted a lift, that is true; you
said also that you wanted help, that was
true. You said also that you had shot a
man, that was true. You said also that he
messed up your life, to put it gently, was
that true? No, he hadn't.
Why did you say it then? I can't
remember saying it.
COURT: No but assuming you said it can
you give any reason why you did say it?
No, I can't think of any reason why.
MR BERRY: So that statement was not true?
No.
You are saying that the deceased had not
messed up your life? No.
Are you saying that on the contrary he had
made your life happy? We had very happy
times together, he could make me laugh where
my husband could never make me laugh.
It seems very strange to me that you should
say something like that about this person
that you loved very much, who had now, as
you realised, been shot by you?
I. . .
23
I find it strange as well, perhaps my psy-chiatrist could give you an answer to that."
At the time of her plea of not guilty, senior
counsel who appeared for the appellant at the
trial made
no statement in terms of sec 115 of the Criminal Procedure
Act.
At the conclusion of the evidence of Mrs Pretorius,
however, counsel for the
appellant made the following
statement in the Court below to indicate the nature and
grounds of the
appellant's defence:-
"My Lord, we say that the accused is not guilty of any offence or unlawful act because in the circumstances there was a failure to comprehend what she was doing attributable to a combination of alcohol, factors such as provocation and severe mental and emotional stress. Also we submit later that because of the accused's state when the gun was fired we don't know whether it went off accidentally or not."
The trial Court considered that neither the deceased's
threats to harm ór kill Freddy nor the deceased's threats
to
24
to damage Sauer's motor car amounted to provocation to the
appellant. In the course of his judgment the learned Judge
remarked:-
"Had it been a threat to herself or a threat to her child or a threat to a loved one, it might possibly be regarded as provocation, but how a threat to kill a person like Freddy in the instant circumstances can ever amount to provocation in so far as the accused was concerned we fail entirely to see."
And later in the judgment:-
"Secondly, how threatening to kick dents into her husband's car could amount to provocation we also fail to see. After all, the deceased had actually done it twice before and on both occasions the car had been repaired at the company's expense, so why that should be pro-vocation we also fail to see."
The Court below, quite rightly, I consider,
gave the defence
based upon the possibility of an accidental shooting
short
shrift. In this connection the learned Judge remarked in
his judgment
that:-
"....if
25
" if it had been an accident, the obvious
thing would have been to have said: 'I shot
him by accident' and not that 'he messed up my
life'".
The trial Court formed the opinion
that the appellant was
not a good witness and it disbelieved the appellant's
version
as to what it was that had precipitated the shooting. I
should mention that a reading of the appellant's evidence as
a whole
reveals, in my opinion, that she was an unsatisfactory
witness. The defence
that the cumulative effect of the wine
consumed by her together with the
provocation and emotional
stress to which she had been subjected had deprived her of
the power to comprehend what she was doing when she shot the
deceased, was rejected by the trial Court as false beyond reasonable
doubt.
Having unanimously found the appellant guilty of murder the trial
Court further unanimously found that there
were
26
were extenuatng circumstances. These were formulated by
the learned Judge in the following words:-
"Firstly, the accused was held in an emotional grip by the deceased throughout their associa-tion. Secondly, the accused was slightly under the influence of liquor, which condition did to a more-or-less degree break down the inhibitions of the accused and her capability to resist committing a wrongful act. Thirdly, there was absolutely no malice and no premedi-tation in the murder concerned and in fact it was committed on the spur of the moment without any premeditation whatever. Emotional stress, in our view and on the probabilities, was occasioned by the fact that the accused was very much in love with the deceased right up to the end; that three days before the shooting she was informed by the deceased of his intention to join his ex-wife and the children in the Cape on a holiday and that what probably happened on the Saturday evening in question, at the restaurant, or on the way from the restaurant back to the deceased's flat or just in front of the deceased's flat, was that the deceased led the accused to believe that he was leaving her and returning to his ex-wife. That in our view is what the probabilities support, and it is in that emotional stress
that the action of the slightly inebriated
and..
27
and highly emotional accused was triggered off and which caused her to fire the shot that killed the deceased."
Mr Tiedemann, who argued the appeal on behalf of
the appellant, urged upon us that the trial Court
had erred
in rejecting the appellant's version of the events imme-
diately
preceding the shooting; and in further finding
that the appellant had
probably been goaded into shooting
the deceased by the latter's intimation to
her that he might
be leaving her and going back to Mrs Ludick. In
particular
counsel submitted that the possibility of a
reconciliation
between the deceased and his former wife depended wholly
on
the evidence of Mrs Ludick whose evidence, it was said, was
open to
criticism. I am unable to accept this submission.
It overlooks the fact that
the deceased himself had told
the appellant about his forthcoming holiday
with Mrs Ludick
and their children, and it glosses over the appellant's
significant
28
significant utterances, very shortly after the shooting, made to or heard by
(1) Bekker (2) Mrs Pretorius and (3) Miss Witty. Mr Tiedemann suggested
that too much should not be read into the appellant's words concerning the
deceased that "he fucked up my life"; and that
the notion thereby conveyed was
irreconcilable with the other sentiment expressed by the appellant at the same
time, viz that she
had killed the man she loved. The two ideas are not, however,
necessarily inconsonant. They can be satisfactorily reconciled along
the lines
indicated by the learned Judge in describing the appellant's emotional
anguish.
The appellant's version of the events leading up to the shooting is
a highly unconvincing one, and it fails to provide any really
acceptable motive
for the shooting. On the other hand the trial Court's assessment
of
29
of the probabilities - which seems to me to be a sound one -immediately yields a ready and powerful motive : rejection of the appellant by a lover after an intense love-affair which had lasted for some seven or eight years. In my opinion the trial Court correctly determined the mot ive which actuated the appellant in her shooting of the deceased; and it correct-ly held that at the time the appellant knew what she was doing. It follows that the appeal against the conviction cannot succeed.
I turn to the appeal against the sentence of ten
years imprisonment. Having reviewed the
appellant's personal
circumstances the learned Judge in his judgment on
sentence
alluded to the appellant's motive in brief and rather
general
terms. He disposed of the point in the following words:-
"This is an unusual case in that there were unusual circumstances, that is emotional cir-cumstances involving love and all that accom-
panies
30
panies that emotion." In finding the appellant guilty of murder with
extenuating circumstances the trial Court had found that the
appellant acted as
she did under "emotional stress". While such "emotional stress" was carefully
delineated in the trial Court's
formulation of the extenuating circumstances, it
seems to me, with respect, that when the learned Judge came later to ponder the
matter of sentence the nature and extent of that emotional stress was
insufficiently perceived and not accorded due weight. On the
facts found by the
trial Court it is clear, I consider, that at the critical stage of events
immediately preceding the shooting the
appellant was subjected to what can only
be described as extreme provocation.
In my judgment the learned Judge
misdirected himself in regard to sentence by failing to give sufficient
recognition
31
recognition to this arresting feature in the case. I should add that Mr de
Villiers, who argued the appeal for the respondent, very fairly conceded as
much. It seems to me furthermore - the matter of misdirection
apart - that the
sentence imposed in the Court below is in all the circum-stances of the case a
disproportionately severe one. In
my judgment a sentence of imprisonment for
five years would have met the justice of the case. The disparity between the
last-mentioned
and the sentence actually imposed is a glaring one. It follows
that the sentence imposed by the trial Judge cannot stand; and that
this Court
is entitled to exercise its own discretion in regard thereto.
In the result
the appeal against the conviction is dismissed. The appeal against the sentence
succeeds.
The
32
The sentence imposed in the Court below is reduced to one of imprisonment for five years.
G G HOEXTER, JA
MILNE, JA )
NICHOLAS, AJA ) Concur
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