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[2010] ZAWCHC 646
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S v Mohamed (SS01/10) [2010] ZAWCHC 646 (23 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE NO
:
SS01/10
DATE
:
23
JULY 2010
In
the matter between:
THE
STATE
and
SIRAAJ
MOHAMED
JUDGMENT
SAMELA,
AJ
The
accused, Siraaj Mohamed, is a 31 year old male person. He appears
before a judge sitting with one assessor, he is charged with
one
count of murder of Gameda Davids in accordance with the provisions of
Section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
, read
with
Part 1
of Schedule 2, particularly paragraph A, that is murder
planned or premeditated.
The
accused pleaded not guilty and gave no plea explanation except
informed the Court that criminal capacity is placed in dispute.
The
facts in this case are largely common cause. In the early hours of
the morning of 19 November 2008 the deceased son, Yushri
Davids, was
awoken by his mother's screams for help. Upon investigation he saw
the accused trying to cut his mother's throat with
a knife in the
bathroom. He tried to defend his mother but was warned by the accused
to leave lest he got too got hurt. Yushri
hit the accused with a
cricket bat and managed to pull his mother who only managed to run as
far as the passage, when the accused
caught up with her and again
attempted to slit her throat.
The
accused had dragged Yushri into the kitchen where he took out from
the kitchen drawer another knife to continue the attack he
had
commenced on the deceased. Yushri managed to retreat to the sitting
room. The accused then closed the door leading to the sitting
room
and removed the handle. Yushri managed to phone his cousin to summon
help. Neighbours and later on police arrived. The deceased
died on
the scene. The accused was arrested.
Mr
Abdul Bassier Amley was one of the deceased neighbours who attended
at the crime scene. He informed the Court that on entering
the house
he saw the deceased lying on the floor and there was blood on the
wall. He also noticed that the accused had a knife
in each hand.
After instructing the accused to put down the said knives, which he
complied, the put a cloth over the deceased.
Mrs
Fiona Sasmin, also the deceased's neighbour, told the Court that
early in the morning hours on the date of the incident she
had heard
and recognised the deceased's voice, who was screaming. She asked her
husband to call the police and instructed her sons
to go to the
deceased house to assist.
Dr
Sipho Mfolozi who conducted the post-mortem on the deceased body on
19 November 2008, his finding for the cause of death was
the multiple
incisions to the anterior neck. The accused was ordered on 8 December
2008 by the Wynberg magistrate in terms of Sections
77, 78, and 79 of
the Criminal Procedure Act, Act 51 of 1977, as amended, to Valkenberg
for 30 days observations. The panel of
experts, led by Professor
Kaliski, assessed the accused and compiled a report on the 3
rd
of
August 2009, we will refer this as the first report. In their report
the experts stated the following regarding the accused mental
state:
"He
refused to give an account of his actions during the period of the
alleged offence. He was constantly softly spoken and
no symptoms of
mental illness could be elicited. During interviews he seemed
unconcerned about his predicament and in the ward
did not interact
with others. He did not exhibit any strange or outward behaviours."
Referring
to accused assessment the experts wrote that as he refused to discuss
his actions during the period of the alleged offence
it was not
possible to ascertain his state of mind at the time. This may become
clearer if he testify in court.
The
experts then concluded by saying that the accused was not mentally
ill and secondly he was fit to stand trial and that it was
not
possible to assess whether he was able to appreciate the wrongfulness
of the allege offence and act accordingly.
Panel
members who had assessed and wrote the first report were invited to
attend the court proceedings whilst the accused was testifying.
Unfortunately all panel members attended, the accused related to
quote in detail about his childhood, informing the Court that
he left
his home on account of physical abuse by his father, and stayed with
his grandmother, uncle, the deceased and the young
Yushri. His
relationship with the deceased at first was fine, though later on he
had conflicts with her and Yushri, and he mentioned
amongst other
things the noise that they were making with the TV while he was
studying and also he mentioned one case whereby he
was alleging that
the deceased had cooked food and on three occasions when he ate the
food he got sick, so he thought perhaps then
that the deceased had
poisoned the food, although he had no proof. Two weeks prior the
deceased murder he had heard some loud strange
intense sounds of
noises that involved "an overflow of information" which
instructed him to kill his aunt, that is the
deceased, by using "an
iron and smiting her on the neck". The accused interpreted these
sounds as from Allah, or God,
who instructed him to kill his aunt. He
told the Court that Allah instructed him to kill his aunt who was to
be sacrificed for
sinful deeds of the Cape Town inhabitants,
comparing Cape Town to Sodom and Gomorrah.
The
accused told the Court that Allah had earlier on, on two previous
occasions instructed him to kill his aunt but he had resisted.
The
third instruction came while lying on the bed and was more serious as
Allah had informed him that if he failed to carry out
the instruction
he was going to be hurt. He decided to carry out Allah's
instructions. He testified that he stood up and walked
to the
kitchen. On his way to the kitchen he saw the deceased in the
bathroom. He opened the kitchen drawer, took knives, and went
to the
deceased in the bathroom, attacked her by cutting her throat. He
could not give much details as to how he held the deceased's
head
while he was trying to slit her neck, how the deceased screamed and
shouted at the time, the role played by Yushri when
he
assaulted him with the cricket bat. He simply informed the Court that
he could not remember. He remembers seeing his aunt lying
down in the
passage, bleeding from her neck, and also noticed that he was
surrounded by people. At that moment, that he is when
he was
surrounded by people, he realised that he was in trouble.
As
the accused gave his testimony he was showing absolutely no remorse
for his actions. It was only after the second experts report
and
testimony that he informed the Court that he was sorry for what he
did to his deceased aunt and her son Yushri.
The
experts wrote a supplementary report dated the 15th of June 2010,
which made the following assessment:
"The
motivations and explanations above are probably delusions and that is
false and inappropriate beliefs of persecution and
grandeur. As his
actions at the time of the offence seem to have been driven by these
delusions he should be regarded as dangerous
in terms of
Section
79(4)(b)
of the
Criminal Procedure Act, 51 of 1977
, as amended."
The
experts mentioned that the clinical diagnoses of the accused was
schizophrenia paranoid sub-type and also then that he is
certifiable
in terms of the Mental Health Act and in terms of Section 79(4)(c)
the accused is fit to stand trial in terms of Section
77(1) and in
terms of Section 79(4)(d) he was not able to appreciate the
wrongfulness of the alleged offence and act accordingly.
The
panel of experts concluded in their unanimous report by recommending
that:
"The
disposition fairest to the defendant, that is the accused, and the
safest to the community would be for the Court to refer
him, that is
the accused, as a State patient to a psychiatric hospital for
treatment and rehabilitation."
The
Court was fortunate and had the privilege of hearing Professor
Kaliski, the leader of the panel of experts, explaining in a
simple
but more detail their reports. He informed the Court that amongst
other things that the accused is a very dangerous person,
and should
the Court declare him as a State patient he assured the Court that
the accused will be kept in a maximum security ward,
and at
Valkenberg this is normally known as Ward 20, and would be kept there
indefinitely. If the accused condition improves,
which is
unlikely in this case he might be released after a lengthy period of
time, which the professor estimated as between
15 and 20 years.
However he also squashed any hope that the accused will be admitted
and immediately afterwards if an application
is being made could be
released or discharged. He informed the Court unequivocally that the
accused release will depend on their,
that is the experts,
recommendations.
The
State and the defence did not oppose the experts supplementary report
as that endorsed the panel's findings and recommendations
in the
first as well as the second report.
The
Court is of the view therefore that the accused committed the act,
that is the murder, in question, and that at the time of
such
commission he was by reason of mental illness or intellectual
disability not criminally responsible for such act. The
ACCUSED
IS THEREFORE FOUND NOT GUILTY BY REASON OF MENTAL ILLNESS OR
INTELLECTUAL DISABILITY
.
The
following order is therefore made:
(a)
In terms of Section 78(b)(a)(AA) of Act 51 of 1977 as amended the
accused be detained in Valkenberg Psychiatric Hospital pending
the
decision of a Judge in Chambers in terms of Section 47 of the Mental
Health Act 17 of 2002;
(b)
In terms of Section 34(1)(b) of Act 51 of 1977 as amended the
articles handed into evidence as exhibits be returned to the executor
in the estate of the late Gameda Davids and;
(c)
In terms of Section 34(1)(a) of Act 51 of 1977 as amended that the
articles of clothing belonging to the accused be returned
to him.
SAMELA,
AJ