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[1992] ZASCA 26
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S v Naidoo and Others (453/91) [1992] ZASCA 26 (13 March 1992)
1
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
Case
No 453/91
/MC
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
RAVI
NAIDOO
First
Appellant
BRIAN
NAIDOO
Second
Appellant
NARAINSAMY
MOODLEY
Third
Appellant
KRISHNA MOONSAMY
Fourth
Appellant
and
THE
STATE
Respondent
CORAM:
HEFER,
VIVIER et F H GROSSKOPF
JJA.
HEARD:
5
March 1992.
DELIVERED:
13
March 1992.
JUDGMENT
VIVIER JA.
2
VIVIER JA:
The four appellants ("accused
No's 1, 2, 3
and 4"
respectively), together with one other ("accused
No 5")
were convicted in the Durban and Coast Local
Division
by HOWARD JP and two assessors on one count of murder (count 1), one
count of robbery with aggravating
circumstances (count 2) and
two counts of attempted murder (counts 3 and 4). Accused No 1 was
further found guilty on one count
of rape (count 6) and on one count
of indecent assault (count 8). Accused No 3
was
found not guilty on one count of rape (count 5) and
guilty on
one count of indecent assault (count 7). No extenuating circumstances
were found in respect of the murder conviction,
and under the then
prevailing law all five accused were sentenced to death. In respect
of the other convictions varying periods
of
3
imprisonment
were imposed, leaving accused No 1 with an
effective sentence
of 24 years' imprisonment, accused No 2 with 17 years' imprisonment,
accused No 3 with 24 years' imprisonment
and accused No 4 with 17
years' imprisonment. The trial Judge refused applications by all five
accused to appeal against the finding
that there were no extenuating
circumstances and the consequent sentences of death imposed and he
further refused an application
by accused No 1 to appeal against the
prison sentences imposed upon him in respect of the other charges.
Petitions by all five
accused to the Chief Justice for leave to
appeal were unsuccessful.
Since the trial the Criminal Law
Amendment Act 107 of 1990 ("the Act") has come into
operation, and in terms of sec 19(8)
of the Act the sentences of
death imposed in respect of accused No's 1, 2, 3 and 4
4
were reconsidered by a panel
appointed under the Act.
(The
sentence of death imposed upon accused No 5 had in
the
meantime been commuted by the State President to imprisonment for 20
years.) The panel made a finding in terms of sec 19(10)(a)
of the Act
that, in its
opinion, the
sentence of death would probably have been
imposed by the
trial Court in respect of each of accused No's 1, 2, 3 and 4 had
sec
277
of the
Criminal Procedure Act 51 of 1977
, as substituted by sec 4
of
the Act, been in operation at
the time sentence was
passed.
The case of accused No's 1, 2, 3
and 4 accordingly comes before this Court on appeal in terms of sec
19(12) of the Act. The principles
to be applied and the approach to
be adopted in an appeal against a sentence of death under the new
legislation
have repeatedly been
stated in recent decisions of this
5
Court and need not be repeáted.
It is only necessary to apply them to the facts of the instant case.
For
present purposes these may
be summarised as follows.
The
murder was committed during the course of
a
carefully planned armed robbery. At about 10h30 on 20 October 1987
the five accused went to the house of Mr and Mrs Austin at
No 5,
Mountain View Road, Morningside, Durban.
I
shall refer to Mrs Austin as the deceased.
Accused No 1 was armed with a handgun and the other accused were all
armed with knives.
One
of
them rang the intercom bell on the front gate and
informed
D.D., one of the domestic servants who answered, that he had come to
deliver a parcel and needed a signature for its receipt.
He asked her
whether her employers were at home and she told him that they were
out. She opened the gate and accused No 1, who
was carrying the
parcel, handed her a small
6
book to sign. While she was
looking at the book he produced the handgun which he pointed at her.
Accused No 3 advanced towards her
carrying a long knife with which he
threatened her. Accused No 1 told her that they wanted money and
pearls. (The deceased carried
on a business of selling pearls).
Accused No's 1 and 3 forced D. to open the front door and they
entered the house, followed shortiy
afterwards by accused No's 2, 4
and 5, who were all carrying knives. The
robbers
found another domestic servant, L.S.,
inside the house. They
bound her and D.'s hands
behind
their backs with electric cords and accused No's i and 3 then took
the two girls to the guest toilet at
the end of the passage.
In the toilet they gagged the
two
girls with hand towels and head scarves and started
swearing
at them. After a while accused No 1 took L. into the passage where he
indecently assaulted and raped her. Inside the toilet
accused No 3
7
indecently
assaulted D. and he then tried to strangle
her with an
electric cord. While this was going on the other accused were
ransacking the house. Accused No 1 brought L. back to
the toilet and
he and accused No 3 left after locking the two girls inside the
toilet. They eventually returned, each carrying
a knife and started
stabbing the girls repeatedly in the neck, head and other vulnerable
parts of their bodies, until both girls
lost consciousness. They were
left for dead by accused No's 1 and 3.
At some stage before the stabbing
of the two girls the deceased arrived back at the house. L., who was
at that moment being assaulted
by accused No 1 in the passage,
testified that accused No's 2, 4 and 5 confronted the deceased with
knives and demanded money and
pearls. The deceased replied that there
was no money in the house and that the pearls were in the bank. They
then demanded the
engagement ring which
8
she was wearing. She said that she
would rather write out a cheque for them and proceeded to write out a
cheque for five hundred
Rand which accused No's 2 and 4 later cashed
at the bank. The deceased was then forced to hand over the keys of
the safe which
accused No 2 opened. She was taken to the bedroom
where her hands and feet were tied and her mouth gagged. She was
thereafter repeatedly
stabbed in the neck, chest and abdomen and an
attempt was made to strangle her. In confessions made to a magistrate
accused No's
1 and 3
admitted
that they had stabbed the deceased and accused
No 2 admitted
that he had tied her legs and hands and that he had held his hand
over her mouth to prevent her from screaming while
she was being
stabbed. The five accused thereafter left the house, taking with
them
jewellery to the value of more than R41 000-00.
According to the medical evidence
the
9
deceased died of penetrating stab
wounds of the neck and chest. One of the wounds in the neck
penetrated
the spinal column. A twelve cm
long stab wound of
the chest
passed through the sternum and proceeded to
penetrate the
heart and right lung. Another penetrated the left lung and a third,
which was eleven cm in length, penetrated the
liver and duodenum.
There were also six superficial stab wounds of the abdomen. In
addition to the knife-wounds there were abrasions
and bruises of the
neck, one of which, a twelve cm long by two cm wide abrasion, clearly
indicated that her assailants
had tried to strangle the
deceased with a ligature.
In
its judgment on the merits the Court a
quo
said that each accused had entered the house knowing that
there were people in it with the intention of
using
the weapon he was carrying to effect the robbery.
10
Each
one foresaw the possibility of one or more of the
knives
being used with fatal consequences and was
reckless
as to such consequences. It did not matter,
therefore,
which of the accused inflicted the fatal
stab
wounds. There was no need to kill the deceased
in
order to effect the robbery and she was killed to
eliminate
her as a witness. She was able to identify
accused
No 1, who worked for her husband and was known
to
her. He knew that she could identify him and the
others
and so it was decided to destroy her.
In
its judgment on the issue of extenuating circumstances the trial
Court described accused No 1,
who
was 23 years old at the time the crimes were
committed,
as the leader of the gang. The trial Court found, however, that the
others all showed an ability
to
act independently of accused No 1 and that there was
no
evidence to support the submission that any of the
others
acted under his influence. With regard to
11
accused
No's 2 and 4, who were respectively 20 years
and
21 years old when the crimes were committed, the
trial
Court said that the fact that they accosted the
deceased
when she arrived home, threatened her with
knives
and extorted the cheque from her before taking
her
to the bedroom, refuted any notion that the roles
which
they played were minor or insignificant. With
regard
to accused No 3 who was 19 years old at the time
of
the commission of the crimes, the trial Court held that he played a
leading role in the commission of the crimes and that his
conduct
showed no sign of youthful
immaturity. The trial Court said
that it was
difficult to imagine
anything more wicked than the
attempt
to murder the two domestic servants in order to
eliminate them
as. witnesses. The trial Court
accordingly
found that there were no extenuating
circumstances
in the case of any of the accused.
12
Mr
Viljoen, who appeared on behalf of accused
No's 1, 2, 3 and 4
in this Court, submitted that the murder of the deceased was not part
of the plan to commit a robbery, and that
her arrival caused her
assailants to act in a state of confusion and panic. Mr Viljoen
relied on the fact that the plan to gain
entry to the house depended
on the deceased and her husband not being at home at the time.
Although it is
correct to say
that the robbers would probably not have succeeded in entering the
house had the deceased or her
husband been at home, the
robbers must have realised when they entered the house that the
deceased could come back at any moment.
It was only when they were
inside the house that they were informed by the servants that the
deceased and her husband would only
come back that afternoon.
Nevertheless, the deceased's arrival in the house cannot, in my view,
13
be regarded as totally unexpected.
Furthermore, guite some time elapsed from the deceased's arrival
until she was killed. She was
killed in a deliberate, cold-blooded
manner which refutes any suggestion that her assailants acted in a
state of panic or shock.
In the circumstances of the present case the
fact that
the murder of the
deceased was without premeditation in
the sense that it was
not planned before the robbers entered the house cannot, in my view,
be regarded as a mitigating factor.
Mr Viljoen next submitted that
accused No's 1, 3 and 4 acted under the influence of drugs and/or
liquor. This submission flies in
the face of an express finding by
the trial Court in convicting the accused that none of them had
smoked any dagga or
mandrax or
had consumed any alcohol before they went to
the deceased's
house. Of the accused only accused
14
No 3 testified on the question of
extenuating circumstances. In its judgment on this issue the
trial
Court reiterated its previous finding and went on
to say that
even if any of the accused had consumed liquor or drugs before
embarking on the robbery this did not, in the circumstances
of this
case, serve to extenuate the crime of murder. There is insufficient
reason to disturb the trial Court's findings. Apart
from
any other consideration the record reveals no sign
in the
conduct of any of the accused that he acted
under
the influence of either drugs or alcohol.
Mr Viljoen has urged us to take
into account certain evidential material which originated after the
passing of sentences but before
the hearing of the
appeal.
In the alternative he has applied for an order
under sec
19(12)(b)(iii) of the Act setting aside the
sentence
of death and remitting the matter to the trial
15
Court
for the hearing of further evidence on the aspect
of sentence.
The evidential material relates to each accused's behaviour and
religious conversion since their admission to the Pretoria
Central
Prison. Mr
Oberholzer, on behalf
of the State, has objected to the
Court taking any cognisance
of such subseguent events. The general rule is that this Court must
decide the guestion of sentence
according to the facts in
existence
at the time when the sentence was imposed and
not according to
new circumstances which came into existence afterwards (
S v
Immelman
1978(3) SA 726(A) at 730 H). Even if there are
exceptions to this rule (see
Goodrich v Botha and Others
1954(2) SA 540(A) at 546 A-C and the unreported judgment of this
Court in S
v Nofomela
(delivered on 28 November 1991 in case
No 161/91) this case does not seem to be such an exception. See the
recent unreported judgment
of
16
this
Court in
S v Quekisi
(delivered on 3 March 1992 in
case
no 514/1991) where this Court refused to take
cognisance of
similár material.
The
aggravating factors in the present case are obvious. Firstly, the
murder was committed in the
course
of a coolly planned, cunningly executed robbery.
Secondly,
the accused were all armed when they entered
the
house, ready to do all that would be required to
subdue their
victims. Thirdly, the deceased was
murdered
in a cold-blooded, merciless manner for no
reason other than
to eliminate her as a witness.
When
they killed her the robbers had already achieved
their
purpose in robbing her. She had been tied hands
and
feet and was at their mercy. Fourthly, it.was a savage attack as is
evident from the nature of the
numerous
wounds inflicted upon her. In the case of
17
accused No
1 there is the additional aggravating
factor
that the deceased and her husband had shown
great kindness and
generosity towards him. The
former,
as his employer, had made interest free loans
amounting
to R16 000 to him and had invited him and his
wife
to their home at No 5, Mountain View Road in
order
to show them how they might improve their own
home.
Accused No 1 thus knew the layout of the house.
A
further aggravating factor in the case of accused
No's
1 and 3 is that their behaviour throughout the
attack
on the house displayed a complete disregard for
the
personal integrity and lives of others. This is
illustrated
by their attempt to kill the two servants
in order to
eliminate them as witnesses. In its
jugment
on extenuating circumstances the trial Court
held
that accused No's 1 and 3 acted from inner vice,
and
this finding was not challenged before us.
18
The mitigating
factors are, in the case of
accused
No 1, his relative youthfulness and the lack of
relevant
previous convictions. Accused No 1 was 23 years old at the time the
offence was committed. He had passed std 9 at school,
he was married
and was in permanent employment. It was submitted that he had shown
remorse by telling the magistrate that he was
sorry for what he had
done and by breaking down and crying when he went with the police to
the scene to point out certain places.
In his evidence before his
conviction, however, accused No 1 put the blame on someone else. He
did not testify on the issue of
extenuating circumstances but instead
made, what the trial Court described as a "defiant little
speech". In these circumstances
I
am
not satisfied that accused
No
1 showed genuine remorse for what he had done.
The mitigating factors in the case
of accused
19
No
2 are his youthfulness and the fact that he has no
relevant
previous convictions. Accused No 2 had
passed
standard 6 at school and was in fixed employment
at the time.
Accused
No 3 was only 19 years old at the
time the murder was
committed and his age must
obviously
be regarded as a strong mitigating factor in
his favour. He
had obtained a matriculation
certificate
and was unemployed at the time. He had
one
previous conviction i.e. for assault with intent to
do
grievous bodily harm with a knife, committed during 1987.
Unlike
accused No's 1, 2 and 3 who, on their
own
admission, actively participated in the actual killing of the
deceased, there is no evidence that
accused
No 4 took any active part in the actual killing
or
that he was even present when she was killed. 1
20
have
already referred to L.'s evidence to the effect
that accused
No's 2, 4 and 5 accosted the deceased in the passage and that they
marched her off to the bedroom. In his confession,
which is the only
evidence against him as to what happened inside the room, accused No
4 said that after the safe had been
opened
he left the rocm and did not return. It must
therefore be
accepted in his favour that accused No 4 did not participate in the
actual killing of the deceased. This is a strong
mitigating factor in
his favour. Another mitigating factor is his relative youthfulness.
Accused No 4 has two previous convictions
for assault with intent to
do grievous bodily harm and four for common assault.
The final question which has to be
answered is whether, having regard to the aggravating and mitigating
factors, the death sentence
is the only
21
proper sentence in the case of
each of the accused.
In the case of
accused No's 1,2 and 3 the
nature of the
murder was so gross, their deeds so wicked, that one is driven to the
conclusion that this is one of those exceptionally
serious cases
where the deterrent and retributive aspects of punishment outweigh
all other considerations and the death sentence
is imperatively
called for. In
S v Majosi and Others
1991(2) SACR 532 at 541 e the following was said with reference to an
accused's prospects of rehabilitation as a consideration
against the
imposition of the death sentence:
"....that factor, weighty as
it undoubtedly is, must yield to considerations of
retribution
and deterrence when the horror of
the crime, the callousness
of the criminal, and the frequency of its recurrence generally, are
such that the perceptions, sensibilities
and interests of the
community demand nothing less than the extreme
22
penalty."
This, in my
view, applies to the case of accused No's 1, 2 and 3. The position of
accused No 4, however, is different. As
I
have said he played no active part in the
actual killing of the deceased and,
dëspite the fact that his
prospects of rehabilitation must be regarded as poor, it cannot be
said that the
death sentence is
the only proper sentence in his case.
In my view a sentence of
20 years' imprisonment should be substituted for the death sentence
on the murder charge in his case.
In the result the following order
is made:
1.
The appeal of accused No's 1,
2
and 3 against
the death sentences on
count
one is dismissed, and the death
sentences are confirmed.
23
2. The appeal of accused No 4
against the death sentence on count one is allowed. There is
substituted for the sentence on this
count the following:
"On
count one accused No 4 is sentenced to 20
years' imprisonment.
It is ordered that the sentences on counts two, three and four are to
run concurrently with the sentence on
count one."
W. VIVIER JA.