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[1984] ZASCA 120
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S v Abbas (121/84) [1984] ZASCA 120 (27 September 1984)
MOHAMED EBRAHIM MOHAMED ABBAS
AND
THE STATE
285/83/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MOHAMED EBRAHIM MOHAMED
ABBAS
Appellant
AND
THE STATE
. Respondent
CORAM
:
Wessels, Jansen, Miller, JJA
HEARD
: 21 September
1984
DELIVERED:
27 September 1984
JUDGMENT
WESSELS, JA
Appellant appeared in the Durban and Coast Local
Division before DIDCOTT,
J., and two assessors on an indict
ment
2 ment charging him with murder
(two counts), attempted murder, assault with intent to do grievous bodily harm,
unlawful possession
of an unlicensed firearm and ammunition in contravention of
the provisions of Act 75 of 1969. Before appellant was called upon to
plead the
charges of attempted murder and assault with intent to do grievous bodily harm
were withdrawn by the State.
On the first of the murder charges appellant pleaded guilty. On the second of
the murder charges he pleaded guilty of attempted murder.
On the two charges
relating to contraventions of Act 75 of 1969 the appellant pleaded guilty.
A
3
A written statement made by appellant in terms
of
section 112(2) of the Criminal Procedure Code was
handed
in by appellant's counsel at the commencement of the trial.
The
circumstances surrounding the commission of the offences,
relevant factors in
extenuation and personal mitigating
factors are dealt with in the aforesaid
written statement.
It is convenient to quote the following from the
statement:
"C.
THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCES
1. For some time prior to March, 1982,
there existed in the Old Dutch
Road
area of Durban, a gang collectively
known as the Duchene but which
had
two different sections known re
spectively as the 'top gully'
and
the 'bottom gully'.
2. The two deceased were the leaders of
the 'top gully' and the accused,
the
leader
4
leader of the 'bottom gully'.
3.
The members of this gang
operated at times outside the law in smoking dag-ga, opium, taking mandrax and
the like.
4.
There was great animosity between
the two sections, which at times erupted into violence, blood shed and
death.
5.
The leader of the 'top gully' one
SHAUN LORTON was murdered by a member of the 'bottom gully', one LUCAS DRAAI and
two others, sometime
last year.
6.
While LUCAS
DRAAI was awaiting trial on this charge of murder, he in turn was murdered in
February, 1982.
7.
The two deceased in this
case, PECHEY and SOLOMON, together with HILTON REDDY (the erstwhile complainant
in Count 4) and two others
were charged with the murder of LUCAS DRAAI, and were
awaiting committal for trial, at the time of the events on the night of the
14th
of March, 1982.
8.
One VINCENT PAUL LEGGETT
(witness number 4),a neutral go-between the
two
sections
5
sections, thought it high time that peace was made between them. He thought a
braaivleis at his house in Newlands East would be a
suitable social occasion for
the conciliation he had in mind. 9. Many members of the 'top gully' were invited
by LEGGETT, notably
HILTON REDDY, MICHAEL AUGUST, (the erstwhile complainant on
Count 3) and one BRUCEY. 10. From the 'bottom gully' four were
invited by
LEGGETT;they were the accused, one TONY SNYMAN (who brought a girlfriend as
well) PAUL ABRAHAMS, JONATHAN REUBEN and one
KENNETH PAUL. 11. The accused had
been told of the party earlier that morning and had agreed to come. The party
was to commence at
about 7.30 p.m. The' accused, who is a butcher by trade, had
started work that day by 4 a.m. and fell asleep on his return that afternoon.
He
was still sleeping at about 10 p.m., when LEGGETT telephoned to remind him about
the party.
12
6
12. The accused being wary and doubtful
as to how negotiations with the
'top
gully' would proceed, thought it
wise to arm himself with the
pistol
which is the subject matter of Count
5. He left for the party with the said KENNETH PAUL.
On arrival at LEGGET's home, at about 10 p.m. the accused found various members
of the 'top gully' already there and was invited
to drink and smoke with them in
the house.
13. The accused has been an inveterate dagga smoker and has also smoked opium.
Indeed so were many others of the gang.
14. Dagga was smoked by the accused and others and an opium bottle pipe was
passed around.
15. The accused, although he had imbibed liquor on occasions in the past had
given up drinking, but was importuned that night by
BRETT PECHEY (the deceased
in Count 1) to show his good intentions by matching whiskeys with him. The
accused had four or five
tots
7
tots of whiskey with PECHEY and then had to follow suit by drinking from the
bottle. All in all the accused had consumed about six
tots when a disturbance
broke out outside.
16. The said SNYMAN had a row with his girlfriend and bundled her into his car.
She jumped out and ran away. SNYMAN then caught her
and proceeded to slap her
around. KENNETH PAUL tried to separate them. BRETT PECHEY for no apparant reason
assumed the role of peacemaker
and told PAUL to mind his own business. SNYMAN
then drove away with his girlfriend.
17. It would appear that PECHEY was affected by liquor at that stage and again
for
no apparant reason instructed one of his henchmen, the said
BRUCEY, to 'cool' PAUL off. BRUCEY did so by clouting and punching PAUL
several
times on the face.
18. The accused intervened on PAUL's behalf
by asking PECHEY why he had
instigated
BRUCEY to assault PAUL. PECHEY's re
action
8
action was violent. He called the accused a 'fucking bastard' and drew a knife
from his side pocket.
19. He lunged at the accused's stomach with his knife and but for the fact that
the accused stepped back would have done him far
more serious injury than simply
grazing him across the front of his stomach.
20. PECHEY's actions had been so wild and unexpected that the accused felt that
his life was in danger at the hands of PECHEY. Several
of PECHEY's friends were
close by. There was no place
for the accused to run. In that situation he felt that he had no option but to
draw his firearm and shoot PECHEY. He did so in fear
of his life.
21. The shot caught PECHEY in the stomach
(see paragraph 13 of Annexure
"A"
to Exhibit "A"). PECHEY staggered and fell down a slope and fell down at the
rear of the neighbours house some ten paces away.
22. PECHEY's friends headed by MICHAEL
AUGUST thereupon rushed at the
accused
shouting
9
shouting that they should finish him off. The accused fired two warning shots
over their heads and dashed towards the front door
of the house to call
LEGGETT.
23. The house is Flat 28 and the front
door is to be seen on the
photograph
Exhibit "C". The house faces on to
Merma Road where the
accused's car
was parked in the driveway facing the
front door. The
accused had noticed
that another car in the street had
boxed him in and
was trying to secure
LEGGETT's attention to move that car
so that the
accused could get away.
24. Hardly had the accused rushed to the
doorway of the house than
SOLOMON
(deceased in count 2) appeared at the
doorway brandishing a knife
and lunged
with it at the accused.
25. It would appear that SOLOMON was as
drunk at the time, as PECHEY;
both
were found to have had 0,20. grams per
hundred millilitres alcohol in
their
blood) and his actions were as unpro
voked and ferocious as
PECHEY's.
26
10
26. The accused again felt his life to be
in danger and in the situation
he
found himself,of being virtually alone
in the enemy's camp fired three
shots
in rapid succession at SOLOMON.
One caught him in the upper left arm, another in the neck and the third in the
stomach (these are respectively set out in paragraphs
12, 11 and 6 of Annexure
"A" to Exhibit "B").
27. What happened thereafter is not fully remembered by the accused but he does
not dispute that he must have gone berserk by attacking
both PECHEY and SOLOMON
with a knife he can only assume was that dropped by PECHEY when he was shot. The
accused had not brought
a knife with him.
28. According to onlookers the accused rushed from the front door to where
PECHEY had fallen. (See point G
on Exhibit "C").
29. The accused accepts that he rained a
number of lethal blows with a
knife
on PECHEY who was lying on the ground in the course of dying from the
bullet
injury
11
injury he had already sustained.
30. More than twenty such injuries were
inflicted by the accused on
PECHEY
with the knife and the accused accepts,
as indeed he must that his
intention
in so stabbing PECHEY was to kill him.
31. The accused was then seen to rush back to the front door where SOLOMON'S
body was lying. The probabilities suggest that SOLOMON
was at that stage dead as
a result of a massive haemorrhage he must have suffered when his carotid artery
and jugular vein were severed
as a result of the bullet wound mentioned in
paragraph 11 of Annexure "A" to Exhibit "B".
32. Again the accused rained several blows with the knife on the recumbent body
of SOLOMON. Yet again more than twenty such blows
were inflicted.
33. As many of these blows were inflicted on vital areas of SOLOMON'S body (See
wounds 1,2,3,4,5 and 6 on Annexure "B" to Exhibit
"B") the accused accepts that
he had the intention to kill SOLOMON, albeit that SOLOMON was
dead
at
12
at the time.
34. As in the case of the earlier attack on PECHEY the accused has no clear
recollection of stabbing SOLOMON but does not deny from
the nature of the wounds
that he must have had and did in fact have the intention to kill him.
35. The accused immediately left the party in company with LEGGETT and JONATHAN
REUBEN in his car. The accused was
so affected by the liquor and drugs he had taken that his driving was erratic
and he lost his way home. He realised, however, that
he had shot the two men and
asked LEGGETT to throw away the pistol into the bush, which he did.
36. The accused was arrested later the same morning and on the Monday thereafter
was taken to the district surgeon who found on his
stomach the scratch wounds,
which, as stated earlier, had been inflicted by PECHEY.
37. The accused has pleaded guilty to Count 6 to the unlawful possession of five
rounds of ammunition. This is a reference to the
shots he fired at the scene of
the crime. The accused states
however
13
however that he fired six shots and not five only as set out in the
indictment. D.
FACTORS IN EXTENUATION
: 1.
Concerning the offences
themselves
:
(a) Although the accused had armed himself with a firearm that night he had not
gone to LEGGETT's party to seek trouble. The trouble
was caused by his
rivals.
(b) The two deceased were the authors of their own undoing, for had they not
attacked the accused unlawfully, he would not have shot
at them. Had the accused
desisted there and then he would not have been guilty of any offence vis-a-vis
the two deceased.
(c) As a result of the provocation accentuated by the drugs and liquor which he
had taken earlier it would appear that the accused
lost complete control of
himself.
(d) The bizarre feature of this case is that PECHEY would have undoubtedly died
from the bullet wound he suffered, inflicted by the
accused in lawful
circumstances, and so too, in the case of SOLOMON. It is submitted that the
knife wounds on both deceased which
ground
14
ground the verdicts should be seen as an irrational eruption by an accused who
was not in his sound and sober senses.
(e) There seems no doubt that both de
ceased were men of singularly
evil
reputations, who would not stop short
of murder.
(f) The accused had come to the party
to effect a peace which, due to
the
very calibre of the people involved,
would have been destined to fail,
as
indeed it did.
E.
PERSONAL FACTORS IN
MITIGATION
:
(a) The accused is 23 years of age and
has been married since 1979 and
is
the father of one child, a boy, aged
four years.
(b) He attained Standard 9 at school in Durban and since leaving school has
worked as a Manager of the family butchery
business.
(c)
The
accused lost his left hand when he was aged 9 when his arm was
caught
up in a mincing machine in the butchery.
(d)
15
(d)
At: the age of 6 he lost
the sight of his right eye when a piece of iron was accidently poked into his
eye.
(e)
Living as he did in the 'Casbah' area
of Durban, the accused unfortunately became involved with other young men whose
activities were
not always lawful.
(f)
He is
the product of a rough environment. Youngsters would dice with the law rather
than respect it.
(g)
It cannot be denied that
the accused will have been found guilty of very serious offences, but it should
not be overlooked that all
the offences were inextricably linked with each other
both as to time and circumstances."
In view of
appellant's plea and the facts detailed, in par. C of his written statement
(which were not contested by the State)he was
found guilty of murder with
extenuating circumstances in respect of the first count. In so far as the
second
16 second charge of murder was concerned he was found not guilty
of murder but guilty of attempted murder. As to the verdict, the
judgment of the
Court a
quo
reads as
follows:
"On count 2 the reason why you are found guilty of attempted murder and not
of murder is that it is accepted by counsel on both sides,
after full discussion
with various medical experts, that at the time you inflicted these multiple
knife wounds on Dudley Edward Solomon
he was in fact already dead, having been
killed by you when you shot him. One cannot murder someone who is already dead
but one can
in law attempt to murder someone who is already dead, and it is
plain that, as you had the intent to kill him by inflicting these
stab wounds,
you are guilty of attempted murder. Indeed all that
stopped
17
stopped you from carrying out what you intended was that he was already
dead.
The question may arise in the minds of persons interested in this case
why you are not convicted of murder on count 2 when it is agreed
and admitted by
you that in fact you killed Solomon by shooting him. The reason for that is your
defence, accepted by the State,
that at the time of the shooting you were acting
in self-defence because he was attacking you.. At the later stage, the time of
the
stabbing, you plainly were not acting in self-defence as Solomon was already
disabled, indeed already dead.
With regard to count 1, once again it is accepted that the initial shooting
was in self-defence because the victim on that count,
Brett Basil Pechey, had
attacked you and was attacking you and that you were acting in self-defence when
you shot him. You again,
as in the case of Solomon,
attacked
18
attacked him later by stabbing him frequently. He, however, was not dead. He
would have died inevitably from one of the bullet wounds
that you had inflicted,
but he was still alive and the stabbing inflicted further mortal injuries. That
makes you, as you have pleaded,
guilty of murder on count 1."
Appellant was also found guilty of the two statutory offences relating to his
unlawful possession of a firearm and ammunition.
On the question of extenuating circumstances,
the
judgment of the Court a
quo
reads as
follows:
"With regard to extenuating circumstances, again the facts are common cause
as is the conclusion that should be drawn from them, namely
that there are
extenuating circumstances. All I wish to say in this regard is that
one
19
one of the circumstances mentioned is not one that rates very strongly in my
estimation as an extenuating circumstance, and that is
the fact that you were
under the influence, to some extent at least, of liquor and drugs. I think it
would be unfortunate if members
of the public came to the conclusion or got the
impression that being under the influence of liquor or drugs or both is
necessarily
or always or even often, on its own and in itself, an extenuating
circumstance because that is a proposition which I would subscribe
to with the
greatest reluctance. I think that the public have got to realise in short that,
when one kills a fellow human being,
to say that one did so because one was high
on dagga or liquor is not going to be regarded as any sort of acceptable excuse.
What
is of importance is that this was not a planned or premeditated crime.
Liquor sometimes serves to explain a crime, to give an alternative
explanation
20
explanation for the crime. An unpremeditated, wholly unplanned murder or act
of violence may take place because the person concerned
is under the influence
of liquor. There may be extenuating circumstances in that case, but not because
his drunken or drugged state
mitigates his conduct. What does is that it was not
planned or premeditated murder. That mitigates his conduct. This plainly was
not
a planned or premeditated murder. I accept that you went to this party with the
intention of contributing towards a peace treaty
between the two warring
factions. The most important factor, as far as extenuation is concerned, is that
on the facts, which I have
been told are indeed the facts of the case and are
agreed between the state and the defence, you did not start the trouble. You
were
not, as we say in these matters, the initial aggressor. These two men who
died came at you with knives. It
is
21
is quite true that you did not suffer any serious injury.
But it
would be quite unrealistic for a Court to say
that in circumstances like this the threat which you faced was not a real one,
because
quite apart from the circumstances of that very evening there was a
history in this case of murderous gang warfare which would make
it quite
unrealistic to suppose that these two deceased people would have stopped at
merely frightening you. On both sides men had
been killed before for little
apparent reason, and there was every prospect that on this evening another
person, yourself, was going
to be killed for little apparent reason. I do not
suggest for one moment that the other gang had a monopoly of violence,
blood-thirstiness
and aggressiveness. Your gang seems to have behaved in exactly
the same way itself on other occasions. Be that however as it may,
one certainly
has a situation here where the deceased were the original
aggressors
22
aggressors, where they started all the trouble, where you had every reason to
believe, until you had disabled both of them, that your
life might well be in
danger, and when what you did after that, while brutal and bloodthirsty, was not
premeditated, was not planned
and was a reaction to a situation which had got
out of control through the fault of the other side."
A registered medical practisioner and
psychiatrist,
Dr. Levisohn, testified on appellant's
behalf on the question
of sentence. In my opinion, it serves no useful
purposes
to deal with his evidence in this judgment, since it
appears
highly likely that appellant misled him in certain respects.
Form
SAP 69 was handed in which deals with appellant's
previous convictions. It
appears from that form:
1
23
1. That on 4 July 1975 he was convicted of assault with
in-
tent to commit grievous bodily harm. A knife was used and the complainant was
a 24 year old Coloured male. He was sentenced to 5 cuts
with a light
cane.
2. On 17 February 1978 appellant was convicted of attempted
murder. A fire-arm was used and the complainant was a 24 years old Coloured
male. He was sentenced to 2 years imprisonment, which
was conditionally
suspended for 3 years.
3. On 5 July 1978 appellant was convicted of
malicious
injury to property. It appears that he damaged a motor vehicle. He was
sentenced to a fine of Rl 000,00 or 12 months imprisonment.
Appellant
24
Appellant was sentenced as follows: 1.
Count 1
: 15
years'imprisonment.
2.
Count 2
: 10
years'imprisonment.
3.
The two counts relating
to offences in terms of the provisions of Act No 75 of 1969 were taken as one
for the purpose of sentence,
and a sentence of 2 years imprisonment was imposed.
It was ordered that the sentence on count 2 and that imposed in respect of the
two statutory offences run concurrently with the sentence imposed on count 1.
I.e., the effective term of imprisonment was 15
years.
In sentencing the appellant, the presiding
Judge remarked as follows in his judgment:
1 . "I
25
1. "I do not agree that your guilt is technical at all and, while I agree
that the circumstances I have just described are somewhat
unusual, I do not
consider that they mitigate your offences to any real extent, for this simple
reason. You did not know at the time
that your one victim was already dead and
that the other was dying. This was not a case of the kind one sometimes comes
across when,
often in a frenzy of anger or under some powerful emotion, the
killer kills his victim. He knows that the victim is dead, but in
a senseless
frenzy continues stabbing inflicting injury, venting his rage on a dead body.
That is not the explanation for your stabbings
at all. As far as you knew, both
these men were still alive, neither of them was yet mortally wounded. You
intended to kill them
by stabbing them.
You intended to kill them, possibly for a combination of reasons.
One
26
One necessarily speculates somewhat here. It is strongly suggested by Dr
Levisohn's evidence of what you told him that your reason
was a pretty
cold-blooded one, the fear that they would be in a position to take revenge
against you and the desire to put an end
to that threat by putting an end to
their lives. But I shall accept in your favour that anger was a very powerful
emotion in the
stabbing and that, if it did not account solely for the stabbing,
it accounted for the ferocity of the stabbing."
2. "There is only one circumstance in this case which, in my view, can be
described as mitigating at all. That is the cicumstance
which has already been
taken into account in the finding of extenuating circumstances . It is that you
were not the instigator of
the trouble that night."
3."While
27
3. "While you suffered no serious injury, the background to the whole case is
such that I accept that there was a real danger you
would suffer injury, if not
worse, unless you defended yourself, and it would be unrealistic to suppose that
an understandable anger
at being attacked would not carry over into your
subsequent conduct and play its part in the later stage of the evening when you
intended to kill, in the case of one of your victims did kill, in the case of
the other would have killed had he not been dead already."
4. "You killed these men in order to protect yourself against reprisal or
because you were very angry or for a combination of both
reasons. There is no
question that the fact that you were not the aggressor, the fact that you were
angry, the fact that at least
to some extent, if not entirely, anger explains
your
behaviour
28
behaviour, is a mitigating circumstance. It is the only mitigating
circumstance, I repeat, in this case. Had it not been for that
factor it is
improbable. . that extenuating circumstances could or would have been found. If
they had been, it is improbable that
you could have got any sentence less than
one of life imprisonment, without that factor. Indeed without that factor,
bearing in mind
your appalling record, the State's request that the Court, in
the exercise of its discretion, should impose the death penalty would
have had
very considerable substance."
5. "It is an important factor, the factor that these were not murders you
planned, that the murder and attempted murder both happened
on the spur of the
moment as a result of a situation of aggression and counter aggression which you
had not started. It is an important
factor, and I shall take
due
29 due account of it."
6.
"Your record is an appalling
one."
7.
"You have not learnt from the
apparent leniency with which you were
treated for
your most serious crime, the one of attempted murder, when you were given a
wholly suspended sentence. And I do not believe
that anything that is now done
to you is going to teach you to learn by experience, except to throw the book at
you with such severity
as is consistent with the only mitigating feature in this
case."
It was contended by appellant's counsel that in
the
circumstances of this case the presiding Judge
failed to make
a proper assessment of the various factors bearing on
the
question of sentence, and this failure caused him to impose
a sentence
which is so unduly severe as to warrant interference
by
30 by this Court. In my opinion there is substance in
counsel's argument.
The presiding Judge refers more than once to appellant's
"appalling record". On the information contained in the record, I am of the
opinion that the adjectival qualification "appalling" is not warranted. From
what has been set out above, it is, in my opinion, clear
that in none of the
three convictions did the court which heard the matters regard the position as
sufficiently serious to justify
a sentence of imprisonment. Appellant's first
conviction for assault with intent to do grievous bodily harm took place when he
was
a juvenile offender aged 15 years. At the age of 18 years he was convicted
of attempted murder it
for.
31 for which he received a wholly suspended sentence.
Later during the same year he was convicted of malicious injury to property.
Despite his previous convictions he was given the opportunity of paying a fine.
In my opinion, the presiding Judge over-emphasised
the importance of appellant's
so-called "appalling" record.
While, generally speaking, I share the
presiding Judge's views regarding the weight to be given to an accused's state
of intoxication
in determining whether or not it can be regarded as an
extenuating or mitigating circumstance, I am nevertheless of the opinion that
in
the circumstances of this case greater weight should have been given to the
effect alcohol and
drugs
32 drugs had on appellant's state of mind. It was not
disputed by the State that sometime prior to the night in question appellant
had
given up drinking. On arrival at Legget's home appellant was importuned by
Pechey (the deceased in count 1) to show his good
intentions by matching
whiskeys with him. It was not disputed by the State that appellant consumed
about six tots of whiskey. He
also smoked dagga and opium. It was not disputed
by the state that appellant was so affected by the alcohol and drugs that his
driving
of his motorcar was erratic and that he lost his way home. In my
opinion, the fact that appellant was pressed to drink alcohol distinguishes
his
case from those cases where an accused voluntarily imbibes liquor knowing
that
33 that he will be affected by it and became
violent.
In my opinion, the Court a
guo
correctly held that the fact
that the murder of Pechey was not premeditated constituted an . extenuating
circumstance. This finding
authorised the presiding Judge to impose a sentence
other than death. In exercising his discretion as to an appropriate sentence,
I
am of the opinion that the presiding Judge ought to have given far less weight
to the appellant's record and more weight to the
fact that appellant's mind had
been markedly affected by intoxicating liquor which Pechey had persuaded him to
drink and drugs. In
addition, appellant was subjected to a great degree of
provocation; he came to discuss peace but was suddenly and without warning
assaulted by the deceased, who would
have
34
have inflicted serious injury on him but for the fact that they were both
shot by appellant.
In my opinion, a sentence of 10 years imprisonment in
respect of the first count and 6 years imprisonment in respect of the second
count would have been appropriate. The degree of disparity between the sentences
imposed by the presiding Judge and those which this
Court regards as adequate
punishment entitles this Court to interfere.
In the result the appeal is
allowed to the extent that in respect of the first count the period of
imprisonment is altered to 10 years
and in respect of the second count the
period of imprisonment is altered to 6 years. The order that the sentences run
concurrently
still applies.
P J WESSELS, JA JANSEN, JA )
MILLER, JA )Concur