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1991
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[1991] ZASCA 51
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S v De Bruin and Another (490/90) [1991] ZASCA 51 (16 May 1991)
CASE NO 490/90 /CCC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
IVAN DE BRUIN
FIRST
APPELLANT
HILLERY MEYER
SECOND APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: NESTADT, KUMLEBEN et F H GROSSKOPF
JJA
DATE HEARD
: 3 MAY 1991
DATE DELIVERED
: 16 MAY 1991
JUDGMENT NESTADT, JA
:
This appeal is against the death sentences respectively imposed on appellants
consequent upon them having been found guilty in the
Witwatersrand Local
2/
2. Division of murder without extenuating circumstances. It
is combined with an informal application to remit the matter to the trial
court
for the hearing of further evidence in mitigation. In my opinion, this
application is not well-founded. It is necessary therefore
to deal with the
merits of the appeal.
The deceased was 31 year-old Ruben Orr. He lived in
Reiger Park, Boksburg. At about 4:30 pm on 26 August 1988 he was standing
outside
his home. As he was about to enter a taxi, he was approached by
appellants and a certain Deon Danster ("Donny"). They were each armed
with a
knife or similar weapon. Danster pulled deceased out of the car. Deceased, who
was not armed, ran away. Appellants and Donny
followed him. They caught up with
him at the front door of deceased's house. Deceased then ran round the side of
the house to the
back door. Again appellants and Donny were quick on his heels.
From there
3/
3. they chased him for a further distance of about 60 metres
down a street and thence into a lane. A short while later, appellants
and Donny
were seen to emerge from the lane and leave the scene. Deceased was found lying
in the lane. He was mortally wounded. He
had been stabbed some 25 times. He was
taken to hospital but died there a little while later. The doctor who performed
the post-mortem
examination gave the cause of death as "veelvuldige
steekwonde".
That in brief is a description of the nature of the crime. Clearly it was a
brutal killing. Both appellants (and Donny) participated
in it. The only
reasonable inference is that they acted with
dolus directus
. Deceased was
quite defenceless. The attack was committed with a contemptuous disregard for
the feelings of members of the public
who witnessed it. And it was a protracted
and determined one. It would seem
4/
4 . that deceased was first stabbed at the front door of his
house. When he attempted to enter it, first appellant closed the door.
At the
back of the house the attack on deceased continued. First appellant again
prevented deceased from escaping (into the kitchen).
He instructed deceased's
wife (she was standing just inside the room) to close the door failing which he
threatened to kill her.
At one stage, whilst deceased was being stabbed in the
lane, an occupant of a nearby house implored the group to stop what they were
doing. This had no effect. On the contrary, first appellant whilst speaking to
this person, was called on by one of his accomplices
to come and "finish off"
deceased. First appellant then went back into the lane where he presumably
resumed stabbing deceased. The
trial court was quite right in rejecting first
appellant's evidence that deceased had earlier that day stabbed him in the hand.
So
it cannot be said that
5/
5. first apppellant may have had some legitimate grudge
against deceased. Neither appellant was in any way affected by liquor. They
are
mature men. At the time of the murder first appellant was 27 and second
appellant 35. Both have relevant previous convictions.
Those of first appellant
are four convictions for assault with intent to do grievous bodily harm and one
of robbery. Second appellant
has previously twice been found guilty of assault
with intent to do grievous bodily harm, once of robbery and once of
housebreaking
with intent to steal and theft. There is no evidence that either
appellant has shown any remorse.
What has been stated makes this a particularly
serious case.
I can well understand the trial court's
finding that there were no
extenuating circumstances.
Indeed had the correctness of this finding been
the issue
'before us, the appeal would probably have failed.
6/
6. However, the effect of the Criminal Law Amendment Act, 107
of 1990, is that we have to consider sentence afresh. We have to decide
whether
having due regard to the presence or absence of any mitigating and aggravating
factors, as also to the main purposes of punishment,
the death sentence is the
only proper sentence (
S vs Nkwanyana and Others
1990(4) SA 735(A)). After
anxious reflection and whilst acknowledging that this is a borderline case, I
have come to the conclusion
that the question should be answered in the
negative. This is because there are certain mitigating factors that must be
taken account
of. They do not emerge from appellants' evidence. Their defence
was an alibi. And it having been rejected, one is left without any
explanation
by them for their attack on deceased. However, there are indications from the
State evidence itself that it might not
have been planned; that appellants acted
spontaneously after an argument
7/
7. developed between Donny and deceased; that they took
Donny's part because the three of them belonged to the same gang; that deceased
was a member of a rival gang; and that there was great animosity between the
gangs. In fact there is evidence supporting the conclusion
that gang strife and
gang állegiance might have lain at the root of this incident. No other
motive for the killing appears
from the record. Some of what has been stated
cannot be said to be more than a reasonabie possibility. Nevertheless, as the
Nkwanyana
case shows, this suffices. The State having failed to negative
the factors referred to, due regard must be had to them. Also, appellants
have
not had what was called the benef it of a long term of imprisonment. They cannot
be regarded as beyond rehabilitation. I do
not in any way condone the gang
activities revealed by the evidence. This notwithstanding, it seems to me that
in the special
8/
8. circumstances of this case, appellants' moral guilt should
be adjudged to be reduced to an extent sufficient to warrant the conclusion
that
the death sentence is not imperatively called for.
The terms of imprisonment
to be substituted for the death sentences must obviously be substantial ones.
There is no reason to differentiate
between the two appellants. In my opinion,
they should each be imprisoned for 20 years.
In the result the appeal against
the death sentences imposed on appellants succeeds. Such death sentences are set
aside. In substitution,
each appellant is sentenced to 20 years'
imprisonment.
NESTADT, JA
KUMLEBEN, JA )
) CONCUR F H GROSSKOPF, JA)