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1985
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[1985] ZASCA 122
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S v Naidoo (137/85) [1985] ZASCA 122 (21 November 1985)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the appeal of:
RAMAKRISHNA NAIDOO.
appellant
and
THE STATE
respondent
Coram
: Jansen et Hefer JJA, et Galgut AJA
Date heard
: 8
November 1985
Date of judgment
: 21-11 1985
J U D G M E N T
GALGUT
AJA:
The appellant, to whom I shall refer as the accused,
was found guilty in the Natal Provincial Division
/ by a
2
by a Judge and two assessors, on two counts of murder. That Court found that
there were extenuating circumstances. The learned Judge
then sentenced the
accused to eighteen years imprisonment on each count and ordered that the
sentences should run concurrently. Leave
to appeal to this Court, against the
sentences imposed, was granted pursuant to an application made in terms of s 316
(6) of Act
51 of 1977.
The two counts arose out of an incident which occurred in Durban on the night
of 14 March 1983 outside the building in which the Pride
of India restaurant
("the restaurant") is situated. The accused, on that night, shot and killed two
Asian men.
The accused worked as a welder and panel beater during the day. At night he
worked at the restaurant as (so it was described in the
evidence) a
/ "bouncer"
3
"bouncer". It would seem that this term describes a man whose task it is to
take adequate steps against unruly or troublesome visitors
to the
restaurant.
The facts which are not in dispute are the following: On the night in
question eight or ten people, including the two men killed by
the accused and to
whom I shall refer as the deceased, were playing pool in the billiard room of
the restaurant. At about eleven
p.m. all these men were asked to leave the
premises. One or more of the group caused a disturbance and splashed water,
apparently
from a fire-hose, on the stairs and in the passage of the restaurant.
The deceased and three others proceeded to a parking area near
the restaurant
and entered a red Alpha Sud motor-car parked there. The one deceased sat in the
driver's seat and the other deceased
sat in the passenger's seat
/ in
3
in front. The three others sat on the back seat. The car was then driven from
the parking area and along a driveway which ran along
the front of the building
in which the restaurant was situated. As the car was approaching and near the
building, accused fired several
shots at the car thereby killing the two
deceased. Each died as the result of a bullet wound in the chest.
A witness, Suria Cobind, testified that he had been playing pool; that after
he left the restaurant at about 11 o'clock he saw the
accused and one Suchu (his
correct name is Sathu and, as will be seen later, he was the under-manager of
the restaurant) standing
near the restaurant building; that the Alpha was
approaching the building; that the accused moved towards it and started
shooting;
that a number of shots were fired; that the car carried on slowly and
passed
/ him
4
him and after the car had passed him the accused fired a
further shot at the rear of the vehicle; that the car then stopped nearby;
that
shortly thereafter Captain du Toit of the police arrived. In cross-examination
Gobind was unable to deny that the first shot
was fired into the air. He said he
saw the accused with the fire-arm in his hand, but could not say from where
he
had taken it.
Captain du Toit happened to be in the vicinity and having received a radio
call proceeded to the scene. There he found the car with
the deceased in it. In
reply to a question put by Captain du Toit, to the group of people gathered
there, the accused answered and
said that the man who had done the shooting had
run away. Gobind, however, intervened and said that the accused had fired the
shots.
Captain du Toit then searched the accused and, tucked in the waistband of
his trousers,
/found
5
found a 9 mm Parabellum pistol. He found a slug in
the car. It later transpired that it had been fired from the said pistol and
that
the pistol was the property of the above-mentioned Sathu. Although the
magazine of the pistol holds fifteen bullets, only six were
found in the pistol.
There were bullet holes in the car, three in the front windscreen, one in the
bonnet, one in the side and one
in the back window.
The manager of the restaurant, one Katha Reuben Pillay ("Reuben"), testified
that there was a disturbance at the restaurant; that
he opened his office door;
that a fire-hose was being used; that the night watchman had hold of one Nolan,
apparently one of the
persons who had been playing pool; that he, Reuben,
allowed Nolan to leave; that the accused arrived a few minutes later; that he
told the accused the above facts; that he told
/ the
6
the watchman to show the accused the car - the Alpha -to which
some of the persons who had been playing pool had gone. The evidence
is to the
effect that Reuben, Sathu, the accused and the watchman went downstairs and that
Reuben then locked a gate behind the others
and he, Reuben, then went back
upstairs.
Ronald Mariah who had been in the pool room and was one of the three
passengers in the Alpha, testified that after the car had left
the parking area
and was proceeding towards the building he saw the accused in front of the car;
that the accused was "firing with
a gun" at the car; that some of the bullets
hit the car; that the "security guard"- the"African chap" - was next to him
while he
was firing; that the driver of the car collapsed; that he, Ronald, then
leant forward over the front seat and controlled the car
till it stopped; that
the security guard did at a certain stage "hit the glass of the back
window".
/ The
7
The accused had reported for duty at the restaurant but had to go off
with the under-manager, the said Sathu, to arrange curtaining
for the
restaurant. They returned at about 11 p.m. When they went upstairs there was
water on the stairs and in the corridor. We
have seen from Reuben's evidence
what the accused was told and how the accused, the night watchman and Sathu came
to be outside the
building.
The accused was arrested at the scene after 11 p.m. on 14 March. On 15 March,
ie the next day, he made a statement to the police in
which he explained why he
had gone off with Sathu and what happened on their return and how he, Sathu and
the night watchman came
to be together outside the building. In this statement
he said
inter alia
that the persons in the Alpha were swearing at them;
that the night watchman had gone to the car to tell them to leave; that the
car
drove towards him
/ and
8
and Sathu; that he became scared. The statement contains the
following:
"Manager 'Sathu' handed me his firearm and told me to fire at them. As I
walked towards the car, the car drove towards me when I 'cocked'
the firearm and
fired a shot into the air. About three a/males were opening the car doors, and I
became scared. I then fired a few
shots directly into the car at point-blank
range. The car began to move on, followed by the watchman. The car stopped on
the left
side of North Coast Road. The police arrived shortly and questioned us,
as to who fired the shots. At that moment I was scared, and
told the police that
some other people fired the shots, because 'Sathu' told me that he will report
the matter at the police station.
Then Suria among the crowd pointed me, as the person who fired the shots. I
was immediately arrested by the police, and police took
a firearm from me.
I feel that I was not responsible for this and 1 was influenced by the
manager, Mr 'Sathu'."
/ The
8 (a)
The accused in his evidence repeated that Sathu had given
him the pistol. He further testified that as the car was approaching him
it was
driven directly at him and the door on the left side of the car was opened; that
he became afraid; that he fired a shot into
the air: that he then fired shots at
the car because it was coming towards him; that the night watchman struck the
rear of the car.
In cross-examination he conceded that he foresaw the
possibility of killing persons when he fired the shots into the car.
The learned Judge gave the Court a
quo
's reasons for not accepting the
accused's version that the car was being driven at him, or that he was in any
danger, or that the
door of the car was opened, or that the accused had reason
to believe that the inmates were planning to get out. The Court
a
quo
accepted that the accused, on his return to the restaurant, was told
by Reuben of the
/ disturbance
9
disturbance. There is nothing in the Court's reasons to suggest that the
accused was not shown the Alpha; that he was not taken downstairs
together with
the night watchman and Sathu; that he was not with them when the Alpha was
approaching; that the pistol was not the
property of Sathu and that the pistol
was not handed to the accused by Sathu.
After the Judge had given the Court's reasons for finding the accused guilty
of murder the defence asked for an adjournment "to investigate
factors relating
to the accused's moral blameworthiness on the question of extenuating
circumstances". When the case was resumed
some two months later members of the
accused's family gave evidence. It appears further that the accused had in the
interim been
examined by two psychiatrists and two other doctors. Their reports
had been placed before the State prosecutor who advised the Court
a quo
"the overwhelming
/thing
10
thing is that the accused was placid, and he still perhaps is a placid type
of person who that night acted quite out of character".
In setting out the Court's reasons for finding
extenuating circumstances, the Judge said:
" There is evidence before us that the accused was normally a placid,
calm-natured type of person and that on this particular evening
he behaved
completely out of character. The cause of this, we have heard, is that for years
the accused was subjected to emotional
pressure at home by virtue of his
mother's demanding conduct and aggressive attitude towards him and other members
of the family.
There is evidence which suggests that earlier, on the evening of
the day in question, the accused had been subjected to verbal abuse
by his
mother, as a result of which he had thrown a plate of food against the wall.
This, according to the evidence, was the first
time he had exhibited any violent
qualities".
/Counsel
11
Counsel for the accused then addressed the
Judge
in mitigation of sentence and said,
inter alia
:
" M'lord, there are certain facts pertaining to the crime, as I read your
Lordship's judgment, which remain somewhat unexplained,
and a clue, in our
submission, is to be found in the fact that it was not the accused's own gun
that was used on the night in question,
but a gun that belonged to somebody
else. The probabilities, we suggest, seem overwhelming that the under-manager,
with whom he had
returned from his visit to Phoenix that night and came there,
coinciding with some disturbance at the restaurant, must have given
him the gun.
It has been suggested - it has never been denied - in cross-examination of the
accused that in fact the gun was given
to him by this man Sathu, and it is a
fact that the gun used was not the accused's own weapon".
In his reasons for sentence the Judge said that
the accused had been an
asset to his family; that he had
been the supporter of his parents; that he
had never dis-
/ played
12
played any tendency towards violence; that he had acted completely out of
character; that although there were two counts there was
"in fact only one
incident which gave rise to both counts". The learned Judge stressed that the
crimes were "two very grave crimes
indeed" and that "two families have lost
their sons without any justification".
I have set out the sequence of events and the personal characteristics of the
accused in some detail. I have done so because in my
view the evidence indicates
that the accused did not know who was in the car; that he had no personal
reasons for wishing to kill
them; that he was shown a car on the instructions of
the manager; that he was taken downstairs; that the pistol was given to him
by
the under-manager. In all these circumstances and if one bears in mind the
accused's character and that the accused made his statement
to the police
/ on
13
on the day after the shooting, one should not overlook what the accused
said in that statement, viz, "I feel that I was not responsible
for this and I
was influenced by the manager, Mr Sathu". This is not evidence but it accords
with the overwhelming probabilities.
The learned Judge
a quo
did not in the reasons for convicting the
accused or in the reasons for the finding that there were extenuating
circumstances or
in the reasons for sentence make mention of the overwhelming
probability that the pistol was handed to the accused by the under-manager
and
that he, the accused, was influenced by him and possibly also by the manager
Reuben. This aspect of the case is so important
that the learned Judge's failure
to advert thereto at any stage of the proceedings caused me to conclude that he
did not have regard
thereto or did not have sufficient regard thereto. He erred
in failing to do so.
/ It
14
It has been said repeatedly in this Court that
sentence is pre-eminently a matter for the decision of the trial Court. The
grounds on which the Court hearing an appeal can interfere
with a sentence
imposed in the exercise of that discretion have also been repeatedly stated, see
the cases referred to by Hiemstra
in
Suid-Afrikaanse Strafproses
, 3rd ed.
No good purpose can be served by repeating what is there said. It follows from
what has been said above that this Court
is free to interfere with the sentences
imposed.
The accused is a man of 30. His character and past conduct cannot be faulted.
He had no personal reason for killing the deceased.
He probably did not know who
they were. He was influenced as indicated above. There was no premeditation. In
all these circumstances
I am of the view that a sentence of 18 years
imprisonment on each count, albeit they were ordered to run concurrently,
/is
15
is far too severe. I am further of the view that the gravity of the offences
warrants a sentence of 10 years
on each count and that the sentences should run concurrently.
In the result the appeal succeeds. The sentences of 18 years imposed by the
Court
a quo
are set aside and a sentence of 10 years imprisonment is
substituted on each count. The two sentences are to run concurrently.
0. GALGUT.
Jansen, JA)
Hefer, JA) concur.