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1990
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[1990] ZASCA 63
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S v Abrahams (649/89) [1990] ZASCA 63; [1990] 2 All SA 401 (A) (1 June 1990)
1 .
Case No 649/89.
/MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION.)
In the matter between
ROBERT MOSES ADAM ABRAHAMS
Appellant
THE STATE
Responden
CORAM:
CORBETT CJ et E.M. GROSSKOPF JA et FRIEDMAN
AJA.
HEARD:
23 May 1990.
DELIVERED:
1
June 1990.
JUDGMENT
2/...
2.
FRIEDMAN AJA:
This is an appeal in a murder case against a finding that there were no
extenuating circumstances. The appellant stood trial in the
Eastern Circuit
Local Division of the Cape Provincial Division before BURGER J and assessors on
a charge of murdering Emma Cloete
in her home at Great Brak River in the Mossel
Bay district on 24 March 1987. He pleaded guilty to murder with extenuating
circumstances
but this plea was not accepted by the State. He was' also charged
with six other counts ("the lesser counts") to all of which he
pleaded guilty,
which pleas the State accepted. Having found that there were no extenuating
circumstances in respect of the murder
charge, BURGER J sentenced appellant to
death. On the lesser counts he
3/...
3.
was sentenced to a total of 11 ½ years imprisonment. An application for
leave to appeal was refused by BURGER J but on petition
to the Chief Justice,
the appellant was given leave to appeal against the finding of no extenuating
circumstances and it is on that
basis that he now appeals to this
Court.
Although this appeal is limited to the question whether the finding of
the trial court that there were no extenuating circumstances
was correct, it is
necessary, because of the applications for a postponement which were made at the
hearing of the appeal, to refer
to the form which the trial took.
After the appellant's pleas had been entered, the State led evidence on the
murder charge and the appellant testified in his defence.
The evidence which he
gave will be dealt with presently. Suffice
4/...
4.
it to say, at this stage, that he admitted that he had killed the deceased
but denied that he had intended to do so. At the close
of appellant's case
BURGER J delivered a short judgment in which he found appellant guilty on the
count of murder as well as on the
lesser counts. After hearing argument on
extenuating circumstances, BURGER J delivered a judgment finding that there were
none. Previous
convictions were proved. The appellant was then sentenced to
death on the murder charge and to imprisonment on the lesser charges.
It is
unnecessary to refer in any detail to the substance of the lesser counts, save
to mention that counts 1 and 2 related to an
occasion on 12 February 1987 when
appellant allegedly broke into the home of a Mrs Venter, stripped her naked and
robbed her.
There is no real dispute concerning the facts
5/...
5.
of the murder charge. Approximately one week before the murder
appellant was asked by a man whom the deceased hád engaged to
work in her
garden, to assist him with that work, which he did. The deceased paid this man
for his work but appellant did not receive
any remuneration. He apparently felt
aggrieved at this and accordingly on 24 March 1987 he set out for the deceased's
home with a
view to obtaining money.
He lay in the bushes behind deceased's
house where he smoked two dagga cigarettes which, he testified, made him feel
different ("anderste")
and . made his head turn ("Dit maak my kop 'n bietjie
draai"). After he had smoked these two dagga cigarettes he noticed the deceased
at the front of the house. He jumped over the wire fence and entered the house
through the kitchen door which he said was open.
6/...
6.
Having satisfied himself that there was no-one in the house, he decided to
wait f or the deceased in her bedroom which he identified
as such by her
spectacles which were on the dressing table in that particular bedroom. He hid
behind the door and when the deceased
entered the bedroom he pushed a towel
which he had found in the bathroom, into her mouth. He hit her once on her cheek
with his fist.
The appellant and the deceased then fell to the floor. The
appellant proceded to throttle the deceased with his right hand while
holding
her head with his left hand. After he had throttled her, he tied her hands
behind her back and threw a number of sheets and
blankets over her head and
packed items of furniture onto her body.
He then went to the kitchen where he cooked bacon and eggs which he ate and
helped himself to some
7/...
7.
whisky from a bottle which he found in the kitchen. He also wanted to cook a
chicken but was unable to dissect it because it was frozen
and so he abandoned
that idea. Having taken some R400 in cash, a blanket, a bottle of whisky and a
portable radio, he left the house.
Before departing, he cut the telephone wires
and disconnected the panic buttons of the deceased's alarm system. He testified
that
he did not intend to kill the deceased but merely wished to render her
unconscious ("ek wil haar net flou ge-'choke' het").
In his judgment on
extenuating circumstances, BURGER J dismissed the argument that appellant had
been affected by the dagga he alleged
he had smoked and found that his actions
indicated that he was thinking clearly and functioning normally.
In regard to the argument that the appellant
8/...
8.
did not intend to kill the deceased, BURGER J referred to the medical
evidence which was to the effect that the deceased had died
of anoxia caused by
strangulation which would have persisted for at least four minutes. The learned
Judge also referred to the answers
given by the appellant in the plea
proceedings in the Magistrates Court in terms of sec 119 of Act 51 of 1977 ("the
Act"), during
which the appellant had admitted that he wished to kill the
deceased to avoid being identified by her. The learned Judge stated,
however,
that he would not take that admission into account because it had been given in
answer to leading questions by the Magistrate.
BURGER J said that there remained
only the appellant's youth which could serve as extenuation. The inference from
this statement
9/...
9.
is that appellant's evidence that he did not intend to kill the deceased was
rejected by the trial court. In regard to appellant's
youth it is common cause
that he was born on 23 February 1969 and that he was thus 18 years and 1 month
old at the date of the murder.
However, the trial court found, with reliance on
S v Lehnberg en 'n Ander
1975(4) SA 553(A), that because the appellant
had acted from inner vice ("inherente boosheid"), his youthfulness did not
constitute
an extenuating circumstance. BURGER J advanced the following reasons
for arriving at his conclusion that appellant had acted from
inner vice:
1. The attack on the deceased was planned and executed with cruelty and
indifference which could not be reconciled with
youthfulness.
10/...
10.
2. Appellant exhibited no remorse after he had strangled the deceased, as was
apparent from the fact that he spent more than an hour
preparing food and
looking for money. This showed a lack of feeling which could not be expected of
an immature person.
3. Little more than a month prior to the murder appellant had carried out a
similar attack on Mrs Venter, i.e. counts 1 and 2. The
learned judge pointed out
that Mrs Venter was also an elderly lady, that he had choked her, hit her with
his fist and tied her hands
behind her back. If the appellant was immature, one
would, said BURGER J, have expected an emotional reaction to that incident from
the appellant, but he
repeated
11/...
11.
a similar attack on the deceased approxi=
mately one month later.
At the hearing of the appeal
both the respondent's and appellant's counsel applied - for different reasons -
for a postponement. The
foundation for the respondent's application was that the
trial court had committed an irregularity in that, in convicting the appellant
on the lesser counts, the trial court had failed to comply with the provisions
of sec 112 of the Act. Sec 112(1)(b) provides as follows
:-
"Where an accused at a summary trial in any court pleads guilty to the offence
charged, or to an offence of which he may be convicted
on the charge and the
prosecutor accepts that plea
-
12/...
12.
(b) the presiding judge shall, if he is of the opinion that the offence
merits the sentence of death, or the presiding judge, regional
magistrate or
magis= trate shall, if he is of the opinion that the offence merits punishment
of imprisonment or any other form of
detention without the option of a fine or
of a whipping or of a fine exceeding R300, or if requested thereto by the
prosecutor, question
the accused with reference to the alleged facts of the case
in order to ascertain whether he admits the allegations in the charge
to which
he has pleaded guilty, and may, if satisfied that the accused is guilty of the
offence to which he has pleaded guilty, convict
the accused on his plea of
guilty of that offence and impose any competent sentence: Provided that the
sentence of death shall not
be imposed unless the guilt of the accused has been
proved as if he had pleaded not guilty."
13/...
13.
Sec 112(2) provides as follows :-
"If an accused or his legal adviser hands a written statement by the accused
into court, in which the accused sets out the facts
which he admits and on which
he has pleaded guilty, the court may, in lieu of questioning the accused under
subsection l(b), convict
the accused on the strength of such statement and
sentence him as provided in the said subsection if the court is satisfied that
the accused is guilty of the offence to which he has pleaded guilty: Provided
that the court may in its discretion put any question
to the accused in order
tó clarify any matter raised in the
statement."
The presiding judge did not question the
appellant as he was required to do in terms of sec 112(1)(b), nor was a written
statement
handed in pursuant to sec 112(2). The trial court was
14/...
14.
accordingly not entitled to convict the appellant on the lesser counts,
despite his pleas of guilty. Counsel for the respondent urged
the Court to set
aside these convictions and refer the matter back to the trial court as provided
in sec 312(1) of the Act. Respondent's
counsel argued that although the present
appeal was not directed against the appellant's conviction on the lesser counts,
this Court
- as the highest Court in the land - should, because of the
exceptional circumstances, assume jurisdiction. Counsel referred, in
this
regard, to sec 22 of the Supreme Court Act no 59 of 1959 which provides as
follows :-
"The appellate division or a provincial division, or a local division having
appeal jurisdiction, shall have power -(a) on the hearing
of an appeal to
receive further evidence, either orally or
by
15/...
15.
deposition before a person appointed by such division, or to remit the case to
the court of first instance, or the court whose judgment
is the subject of the
appeal, for further hearing, with such instructions as regards the taking of
further evidence or otherwise
as to the division concerned seems necessary; and
(b) to confirm, amend or set aside the judgment or order which is the subject of
the appeal and to give any judgment or make any order which the circumstances
may require."
He argued that the appeliant would not
be prejudiced if that course were adopted, as appellant had at all times
intended to plead
guilty. It would moreover be in the interest of justice if
this Court were so to refer the matter back as that would avoid the possibility
of appellant being obliged to serve sentences on charges
16/...
16.
in respect of which he has not been properly convicted. Respondent's counsel
is of course correct that the appellant was, because
of the non-compliance with
sec 112, not properly convicted on the lesser counts. However, as there is no
appeal before this Court
in respect of those counts, sec 22 of the Supreme Court
Act has no application. Moreover, this Court's jurisdiction in criminal matters
is determined by statute. It has no inherent jurisdiction to go beyond the terms
of the relevant Acts (Cf
Sefatsa and Others v Attorney General, Transvaal,
and Another,
1989(1) SA 821(A) at 831I-834E and 839C-H. There is accordingly
no merit in respondent's application for a postponement.
The application for
a postponement which was made by appellant's counsel was cast in somewhat
wider
17/...
17.
terms. Appellant's counsel argued that because of irregularities committed by
the trial court, appellant's conviction, both on the
murder charge and on the
lesser counts, was liable to be set aside. A postponement was accordingly sought
to enable appellant to
approach the trial court for leave to appeal on all the
convictions (including that of murder) or to have special entries made on
the
record with the same obgective.
Appellant's counsel submitted that the
convictions on the lesser counts were irregular by reason of the non-compliance
with sec 112.
The fact that the conviction on the lesser counts was irregular,
has no bearing on the present appeal. Whether this appeal proceeds
or not, does
not affect appellant's right to approach the trial court and to seek leave
to
18/...
18.
appeal against his conviction on the lesser counts. This irregularity
therefore does not consitute a valid reason for postponing the
appeal.
It was
further submitted by appellant's counsel that the trial judge had failed to
comply with sec 146 of the Act in that he had f
ailed to give reasons f or his f
indings and that this was an irregularity which vitiated the conviction on the
murder charge. The
relevant provisions of Sec 146 read as follows :-
"A judge presiding at a criminal trial in a superior court shall
-
(b) whether he sits with or without assessors, give the reasons for the decision
or finding of the court upon any question of
fact."
19/...
19.
That portion of the j udgment of the trial court which deals with appellant's
conviction on the murder charge reads as follows:-
"Die enigste uitstaande punt is die kwessie van moord waarop jy skuldig gepleit
het aan moord, maar met versagtende omstandighede.
Die kwessie van versagtende
omstandighede laat ek oorstaan om dit later te beslis.
Ek bring nou net 'n bevinding op hierdie klagtes uit. Jy het hier skuldig
gepleit en die getuienis wat ek ten opsigte van die moord
gehoor het, dui baie
duidelik daarop dat jy die vrou gedood het en dat die wurgery die oorsaak van
haar dood was.
Onder die omstandighede kan ek nie anderste nie as jou
SKULDIG
te bevind
aan moord."
Leaving aside the lesser counts in
respect of which it is common cause the conviction was irregular
20/...
20.
by reason of the non-compliance with sec 112, the trial court
did
explain, albeit somewhat cryptically, why it found the appellant guilty of
murder. Appellant's counsel argued, however, that there
had not been compliance
with sec 146 as the learned judge did not, in his judgment, deal with the
question of
mens rea
, i.e. he did not state whether he had found the
appellant guilty on the basis of
dolus directus
or
dolus
eventualis
. This, so it was argued, prejudiced the appellant as he did not
know, when he came to deal with extenuating circumstances, on what
basis he had
been found guilty. There is no merit in this. argument. On a charge of murder,
an accused can be found guilty whether
his
mens rea
takes a direct or
indirect form. It is not incumbent on a trial court, when convicting an accused,
to indicate whether it
21/...
21 .
finds a direct or an indirect intention. This distinction may become
important at the next stage of the enquiry, viz when extenuating
circumstances
are investigated. At that stage, however, the onus rests on the accused to
establish extenuating circumstances on a
balance of probabilities. If he should
seek to rely, as a basis for extenuation, on the fact that his
mens rea
took the form of
dolus eventualis
, as opposed to
dolus directus
,
he would have to establish that by evidence or argument on the basis of evidence
already on record and it would then be incumbent
on the trial court to make an
appropriate finding on the question.
For these reasons I consider that the judgment of the Court a
quo
,
although lacking in detail, complied with sec 146. However, even if it could be
said that the judgment did not comply with the
22/...
22.
section, this did not prejudice the appellant. The court proceeded to the
second stage and appellant was not precluded from leading
such evidence or
presenting such argument as he might have been advised, in order to establish
that he did not have the direct intention
of killing the deceased. An
application for leave to appeal on the ground that sec 146 has not been complied
with would be without
substance. This so-called irregularity therefore does not
afford a ground for postponing the appeal.
Sec 317(1) of the Act provides
that when application is made for a special entry, such a special entry shall be
made unless the court
or judge is of opinion that the application is not made
bona f ide or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the
23/...
23.
court. To my mind an application for a special entry on the grounds advanced
by appellant's counsel would be manifestly without substance
and there is
accordingly no prospect of such a special entry being made. Appellant's desire
to apply to the trial court for such
a special entry to be made on the record,
does not, in the circumstances, afford a ground for postponing this appeal. I
might add
that appellant's counsel - like respondent's - urged us to assume an
inherent jurisdiction and to deal with the irregularities of
which he
complained, ourselves. For the reasons mentioned above, this Court has no
jurisdiction to do so, even if there were merit
in the allegation of
irregularities, which there is not.
I proceed now to consider the merits of the appeal. Appellant was only 18
years and 1 month old
24/...
24.
at the date of the commission of this offence. A youth of this age is
prima facie
regarded as immature. That would constitute an extenuating
circumstance and result in the death.sentence not being imposed unless
the court
f eels compelled to do so by the circumstances of the case. See
Lehnberq
's case,
supra
, at 561;
S v Mapatsi
1976(4) SA 721
(A) at 724;
S v Ceaser
1977(2) SA 348 (A) at 351, 353;
S v Ngoma
1984(3) SA 666(A) at 674 E-F. The approach adopted by the trial court was
that for the reasons stated by it, the appellant had acted
from inner vice and
that that vitiated such extenuation as might have arisen from his youthfulness.
One of the reasons advanced by
the trial court for arriving at that conclusion
was that the appellant had committed a similar offence approximately a month
before
this murder, i.e. counts 1
25/...
25.
and 2. It is clear from the judgment that the Court a
quo
was strongly
influenced in its decision by this factor. Respondent's counsel conceded that
the trial court was not entitled to take
this factor into account having regard
to the irregularity concerning appellant's conviction on counts 1 and 2.
Respondent's counsel
argued, however, that the trial court's misdirection was
not material. I do not agree. It is clear from BURGER J's judgment that
the
trial court regarded appellant's conviction on counts 1 and 2 as an important
consideration in arriving at the conclusion that
he had acted from inner vice.
The trial court's misdirection was, in the circumstances, material and entitles
this Court to disregard
the finding of the trial court and to reach its own
26/...
26.
conclusion.
Murder is always a vicious and serious crime. That is why,
when the question is considered whether an accused's youthfulness in fact
constitutes an extenuating circumstance, the court looks not only at the nature
of the crime, but also at the accused's motive, his
personality and all other
relevant factors. See
Mapatsi
's case,
supra
at 724 C-D. If one has
regard to the appellant's motive, it appears that he was completely misguided.
There was no rational basis
upon which he could have been under the impression
that he should have received payment from the deceased. She did not engage him,
nor did she request him to assist the other man. It was the latter to whom
appellant should have looked for payment if he felt he.
was entitled to be
remunerated for his assistance.
27/...
27.
Although the attack on the deceased was planned, in the sense that he waited
for her to be out of the house before entering and then
waited for her to enter
the bedroom, the murder seems to have been carried out in a confused and
muddle-headed fashion. He obviously
strangled the deceased until her resistance
ceased and she was dead. There appears to have been no logical reason for him to
have
thrown blankets, towels and even items of furniture on her. Under
cross-examination he conceded that he had done this so that, if
she were not
dead, that would have ensured her death. He similarly stated that he had tied
her hands behind her back to avoid any
"mistake". When asked by the trial court
whether the "mistake" that he envisaged was that the deceased could come alive
again, he
answered affirmatively. Although the appellant tried to avoid
28/...
28.
being captured by the police, when he was eventually taken into custody he
made no attempt to prevaricate or to conceal what he had
done and co-operated
fully with the police in their investigation.
Far from being mature, the
appellant comes across, on a conspectus of the evidence, as an unsophisticated,
extremely naive and callow
sort of person. I am accordingly of the view that the
prima facie
inference of immaturity which arises from his youthful age,
has not been displaced and that this justifies a finding of extenuating
circumstances. The appeal should therefore succeed.
I turn now to the
sentence. Appellant was at the age of 11 declared to be a child in need of care
and was thereafter placed in various
institutions. He was ultimately at the age
of 16 discharged from the
29/...
29.
last institution he attended, namely an industrial school, at which stage he
had progressed to, but not passed, standard three. He
then went out to work. He
has three previous convictions for housebreaking and theft, one for theft, one
for assault and one for
sodomy. The sentences for all these convictions were
non-custodial, ranging from caution and discharge through juvenile cuts to a
suspended sentence. The present offence is a serious one and warrants a lengthy
period of imprisonment. To my mind a period of twelve
years would be
appropriate. However, taking into account the cumulative effect of such a
sentence and the sentence which he is at
present serving, I consider that half
the sentence which this Court imposes should run concurrently with the sentence
he is at present
serving.
30/...
30.
In the result -
1. The applications for postponement are refused.
2. The appeal succeeds. The trial court's finding of no extenuating
circumstances is set aside and the following substituted therefor
:-
"The accused is found guilty of
murder with extenuating circumstan= ces".
3. The death sentence is set aside and the
following substituted therefor
:-
"Twelve (12) years imprisonment, one
half of which shall run concurrently with the sentences appellant is at present
serving."
G. FRIEDMAN AJA
CORBETT CJ )
Concur.
E.M. GROSSKOPF JA)