|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
1
Case No 453/91 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between:
RAVI NAIDOO First Appellant
BRIAN NAIDOO Second
Appellant
NARAINSAMY MOODLEY Third Appellant
KRISHNA
MOONSAMY Fourth Appellant
and
THE STATE Respondent
CORAM: HEFER, VIVIER et F H GROSSKOPF
JJA.
HEARD: 5 March 1992.
DELIVERED: 13 March 1992.
JUDGMENT
VIVIER JA.
2 VIVIER JA:
The four appellants ("accused No's 1, 2, 3 and 4" respectively), together with one other ("accused No 5") were convicted in the Durban and Coast Local Division by HOWARD JP and two assessors on one count of murder (count 1), one count of robbery with aggravating circumstances (count 2) and two counts of attempted murder (counts 3 and 4). Accused No 1 was further found guilty on one count of rape (count 6) and on one count of indecent assault (count 8). Accused No 3 was found not guilty on one count of rape (count 5) and guilty on one count of indecent assault (count 7). No extenuating circumstances were found in respect of the murder conviction, and under the then prevailing law all five accused were sentenced to death. In respect of the other convictions varying periods of
3
imprisonment were imposed, leaving accused No 1 with an
effective sentence of 24 years' imprisonment, accused No 2 with 17 years'
imprisonment, accused No 3 with 24 years' imprisonment and accused No 4 with 17
years' imprisonment. The trial Judge refused applications
by all five accused to
appeal against the finding that there were no extenuating circumstances and the
consequent sentences of death
imposed and he further refused an application by
accused No 1 to appeal against the prison sentences imposed upon him in respect
of the other charges. Petitions by all five accused to the Chief Justice for
leave to appeal were unsuccessful.
Since the trial the Criminal Law Amendment
Act 107 of 1990 ("the Act") has come into operation, and in terms of sec 19(8)
of the Act
the sentences of death imposed in respect of accused No's 1, 2, 3 and
4
4
were reconsidered by a panel appointed under the Act. (The
sentence of death imposed upon accused No 5 had in the meantime been commuted
by
the State President to imprisonment for 20 years.) The panel made a finding in
terms of sec 19(10)(a) of the Act that, in its
opinion, the sentence of death
would probably have been imposed by the trial Court in respect of each of
accused No's 1, 2, 3 and
4 had sec 277 of the Criminal Procedure Act 51 of 1977,
as substituted by sec 4 of the Act, been in operation at the time sentence
was
passed.
The case of accused No's 1, 2, 3 and 4 accordingly comes before this
Court on appeal in terms of sec 19(12) of the Act. The principles
to be applied
and the approach to be adopted in an appeal against a sentence of death under
the new legislation have repeatedly been
stated in recent decisions of this
5
Court and need not be repeáted. It is only necessary to
apply them to the facts of the instant case. For present purposes these
may be
summarised as follows.
The murder was committed during the course of a
carefully planned armed robbery. At about 10h30 on 20 October 1987 the five
accused
went to the house of Mr and Mrs Austin at No 5, Mountain View Road,
Morningside, Durban. I shall refer to Mrs Austin as the deceased.
Accused No 1
was armed with a handgun and the other accused were all armed with knives. One
of them rang the intercom bell on the
front gate and informed Dora Duke, one of
the domestic servants who answered, that he had come to deliver a parcel and
needed a signature
for its receipt. He asked her whether her employers were at
home and she told him that they were out. She opened the gate and accused
No 1,
who was carrying the parcel, handed her a small
6
book to sign. While she was looking at the book he produced the handgun which he pointed at her. Accused No 3 advanced towards her carrying a long knife with which he threatened her. Accused No 1 told her that they wanted money and pearls. (The deceased carried on a business of selling pearls). Accused No's 1 and 3 forced Dora to open the front door and they entered the house, followed shortiy afterwards by accused No's 2, 4 and 5, who were all carrying knives. The robbers found another domestic servant, Lindy Simelane, inside the house. They bound her and Dora's hands behind their backs with electric cords and accused No's i and 3 then took the two girls to the guest toilet at the end of the passage. In the toilet they gagged the two girls with hand towels and head scarves and started swearing at them. After a while accused No 1 took Lindy into the passage where he indecently assaulted and raped her. Inside the toilet accused No 3
7
indecently assaulted Dora and he then tried to
strangle her with an electric cord. While this was going on the other accused
were
ransacking the house. Accused No 1 brought Lindy back to the toilet and he
and accused No 3 left after locking the two girls inside
the toilet. They
eventually returned, each carrying a knife and started stabbing the girls
repeatedly in the neck, head and other
vulnerable parts of their bodies, until
both girls lost consciousness. They were left for dead by accused No's 1 and
3.
At some stage before the stabbing of the two girls the deceased arrived
back at the house. Lindy, who was at that moment being assaulted
by accused No 1
in the passage, testified that accused No's 2, 4 and 5 confronted the deceased
with knives and demanded money and
pearls. The deceased replied that there was
no money in the house and that the pearls were in the bank. They then demanded
the engagement
ring which
8
she was wearing. She said that she would rather write out a cheque for them and proceeded to write out a cheque for five hundred Rand which accused No's 2 and 4 later cashed at the bank. The deceased was then forced to hand over the keys of the safe which accused No 2 opened. She was taken to the bedroom where her hands and feet were tied and her mouth gagged. She was thereafter repeatedly stabbed in the neck, chest and abdomen and an attempt was made to strangle her. In confessions made to a magistrate accused No's 1 and 3 admitted that they had stabbed the deceased and accused No 2 admitted that he had tied her legs and hands and that he had held his hand over her mouth to prevent her from screaming while she was being stabbed. The five accused thereafter left the house, taking with them jewellery to the value of more than R41 000-00.
According to the medical evidence the
9
deceased died of penetrating stab wounds of the neck and chest.
One of the wounds in the neck penetrated
the spinal column. A twelve cm long
stab wound of the chest passed through the sternum and proceeded to penetrate
the heart and right
lung. Another penetrated the left lung and a third, which
was eleven cm in length, penetrated the liver and duodenum. There were
also six
superficial stab wounds of the abdomen. In addition to the knife-wounds there
were abrasions and bruises of the neck, one
of which, a twelve cm long by two cm
wide abrasion, clearly indicated that her assailants had tried to strangle the
deceased with
a ligature.
In its judgment on the merits the Court a quo said that each accused had entered the house knowing that there were people in it with the intention of using the weapon he was carrying to effect the robbery.
10
Each one foresaw the possibility of one or more of the knives
being used with fatal consequences and was reckless as to such consequences.
It
did not matter, therefore, which of the accused inflicted the fatal stab wounds.
There was no need to kill the deceased in order
to effect the robbery and she
was killed to eliminate her as a witness. She was able to identify accused No 1,
who worked for her
husband and was known to her. He knew that she could identify
him and the others and so it was decided to destroy her.
In its judgment on
the issue of extenuating circumstances the trial Court described accused No 1,
who was 23 years old at the time
the crimes were committed, as the leader of the
gang. The trial Court found, however, that the others all showed an ability to
act
independently of accused No 1 and that there was no evidence to support the
submission that any of the others acted under his influence.
With regard to
11
accused No's 2 and 4, who were respectively 20 years and 21 years old when the crimes were committed, the trial Court said that the fact that they accosted the deceased when she arrived home, threatened her with knives and extorted the cheque from her before taking her to the bedroom, refuted any notion that the roles which they played were minor or insignificant. With regard to accused No 3 who was 19 years old at the time of the commission of the crimes, the trial Court held that he played a leading role in the commission of the crimes and that his conduct showed no sign of youthful immaturity. The trial Court said that it was difficult to imagine anything more wicked than the attempt to murder the two domestic servants in order to eliminate them as. witnesses. The trial Court accordingly found that there were no extenuating circumstances in the case of any of the accused.
12
Mr Viljoen, who appeared on behalf of accused No's 1, 2, 3 and 4 in this Court, submitted that the murder of the deceased was not part of the plan to commit a robbery, and that her arrival caused her assailants to act in a state of confusion and panic. Mr Viljoen relied on the fact that the plan to gain entry to the house depended on the deceased and her husband not being at home at the time. Although it is correct to say that the robbers would probably not have succeeded in entering the house had the deceased or her husband been at home, the robbers must have realised when they entered the house that the deceased could come back at any moment. It was only when they were inside the house that they were informed by the servants that the deceased and her husband would only come back that afternoon. Nevertheless, the deceased's arrival in the house cannot, in my view,
13
be regarded as totally unexpected. Furthermore, guite some
time elapsed from the deceased's arrival until she was killed. She was
killed in
a deliberate, cold-blooded manner which refutes any suggestion that her
assailants acted in a state of panic or shock.
In the circumstances of the
present case the fact that the murder of the deceased was without premeditation
in the sense that it
was not planned before the robbers entered the house
cannot, in my view, be regarded as a mitigating factor.
Mr Viljoen next
submitted that accused No's 1, 3 and 4 acted under the influence of drugs and/or
liquor. This submission flies in
the face of an express finding by the trial
Court in convicting the accused that none of them had smoked any dagga or
mandrax or
had consumed any alcohol before they went to the deceased's house. Of
the accused only accused
14
No 3 testified on the question of extenuating circumstances.
In its judgment on this issue the trial Court reiterated its previous
finding
and went on to say that even if any of the accused had consumed liquor or drugs
before embarking on the robbery this did
not, in the circumstances of this case,
serve to extenuate the crime of murder. There is insufficient reason to disturb
the trial
Court's findings. Apart from any other consideration the record
reveals no sign in the conduct of any of the accused that he acted
under the
influence of either drugs or alcohol.
Mr Viljoen has urged us to take into
account certain evidential material which originated after the passing of
sentences but before
the hearing of the appeal. In the alternative he has
applied for an order under sec 19(12)(b)(iii) of the Act setting aside the
sentence
of death and remitting the matter to the trial
15
Court for the hearing of further evidence on the aspect of sentence. The evidential material relates to each accused's behaviour and religious conversion since their admission to the Pretoria Central Prison. Mr Oberholzer, on behalf of the State, has objected to the Court taking any cognisance of such subseguent events. The general rule is that this Court must decide the guestion of sentence according to the facts in existence at the time when the sentence was imposed and not according to new circumstances which came into existence afterwards (S v Immelman 1978(3) SA 726(A) at 730 H). Even if there are exceptions to this rule (see Goodrich v Botha and Others 1954(2) SA 540(A) at 546 A-C and the unreported judgment of this Court in S v Nofomela (delivered on 28 November 1991 in case No 161/91) this case does not seem to be such an exception. See the recent unreported judgment of
16
this Court in S v Quekisi (delivered on 3 March 1992 in
case no 514/1991) where this Court refused to take cognisance of similár
material.
The aggravating factors in the present case are obvious. Firstly,
the murder was committed in the course of a coolly planned, cunningly
executed
robbery. Secondly, the accused were all armed when they entered the house, ready
to do all that would be required to subdue
their victims. Thirdly, the deceased
was murdered in a cold-blooded, merciless manner for no reason other than to
eliminate her as
a witness. When they killed her the robbers had already
achieved their purpose in robbing her. She had been tied hands and feet and
was
at their mercy. Fourthly, it.was a savage attack as is evident from the nature
of the numerous wounds inflicted upon her. In
the case of
17
accused No 1 there is the additional aggravating factor that the deceased and her husband had shown great kindness and generosity towards him. The former, as his employer, had made interest free loans amounting to R16 000 to him and had invited him and his wife to their home at No 5, Mountain View Road in order to show them how they might improve their own home. Accused No 1 thus knew the layout of the house. A further aggravating factor in the case of accused No's 1 and 3 is that their behaviour throughout the attack on the house displayed a complete disregard for the personal integrity and lives of others. This is illustrated by their attempt to kill the two servants in order to eliminate them as witnesses. In its jugment on extenuating circumstances the trial Court held that accused No's 1 and 3 acted from inner vice, and this finding was not challenged before us.
18
The mitigating factors are, in the case of accused No 1, his relative youthfulness and the lack of relevant previous convictions. Accused No 1 was 23 years old at the time the offence was committed. He had passed std 9 at school, he was married and was in permanent employment. It was submitted that he had shown remorse by telling the magistrate that he was sorry for what he had done and by breaking down and crying when he went with the police to the scene to point out certain places. In his evidence before his conviction, however, accused No 1 put the blame on someone else. He did not testify on the issue of extenuating circumstances but instead made, what the trial Court described as a "defiant little speech". In these circumstances I am not satisfied that accused No 1 showed genuine remorse for what he had done.
The mitigating factors in the case of accused
19
No 2 are his youthfulness and the fact that he has no relevant
previous convictions. Accused No 2 had passed standard 6 at school
and was in
fixed employment at the time.
Accused No 3 was only 19 years old at the time
the murder was committed and his age must obviously be regarded as a strong
mitigating
factor in his favour. He had obtained a matriculation certificate and
was unemployed at the time. He had one previous conviction
i.e. for assault with
intent to do grievous bodily harm with a knife, committed during 1987.
Unlike
accused No's 1, 2 and 3 who, on their own admission, actively participated in
the actual killing of the deceased, there is
no evidence that accused No 4 took
any active part in the actual killing or that he was even present when she was
killed. 1
20
have already referred to Lindy's evidence to the effect that
accused No's 2, 4 and 5 accosted the deceased in the passage and that
they
marched her off to the bedroom. In his confession, which is the only evidence
against him as to what happened inside the room,
accused No 4 said that after
the safe had been opened he left the rocm and did not return. It must therefore
be accepted in his favour
that accused No 4 did not participate in the actual
killing of the deceased. This is a strong mitigating factor in his favour.
Another
mitigating factor is his relative youthfulness. Accused No 4 has two
previous convictions for assault with intent to do grievous
bodily harm and four
for common assault.
The final question which has to be answered is whether,
having regard to the aggravating and mitigating factors, the death sentence
is
the only
21
proper sentence in the case of each of the accused.
In the case of accused No's 1,2 and 3 the
nature of the murder was so gross, their deeds so
wicked, that one is
driven to the conclusion that this
is one of those exceptionally serious cases where the
deterrent and
retributive aspects of punishment
outweigh all other considerations and the
death
sentence is imperatively called for. In S v Majosi
and
Others 1991(2) SACR 532 at 541 e the following was
said with reference to an accused's prospects of
rehabilitation as a consideration against the
imposition of the death sentence:
"....that factor, weighty as it undoubtedly is, must yield to considerations of retribution and deterrence when the horror of the crime, the callousness of the criminal, and the frequency of its recurrence generally, are such that the perceptions, sensibilities and interests of the community demand nothing less than the extreme
22
penalty."
This, in my view, applies to the case of
accused No's 1, 2 and 3. The position of accused No 4, however, is different. As
I have said
he played no active part in the actual killing of the deceased
and,
dëspite the fact that his prospects of rehabilitation must be
regarded as poor, it cannot be said that the death sentence is
the only proper
sentence in his case. In my view a sentence of 20 years' imprisonment should be
substituted for the death sentence
on the murder charge in his case.
In the result the following order is made:
1. The appeal of accused No's 1, 2 and 3 against
the death sentences on count one is
dismissed, and the death sentences are
confirmed.
23
2. The appeal of accused No 4 against the death sentence on count one is allowed. There is substituted for the sentence on this count the following:
"On count one accused No 4 is sentenced to 20 years' imprisonment. It is ordered that the sentences on counts two, three and four are to run concurrently with the sentence on count one."
W. VIVIER JA.
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1992/26.html
.PDF of original document
.RTF of original document