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1990
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[1990] ZASCA 73
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S v Seheri and Another (382/89) [1990] ZASCA 73 (1 June 1990)
CG CASE NUMBER: 382/89
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
OUPA ALEX SEHERI
Appellant no 1
SETIMBISO
BUTHELEZI
Appellant no 2
and
THE STATE
Respondent
CORAM
: CORBETT CJ, STEYN JA et FRIEDMAN AJA
HEARDON: 21 MAY 1990
DELIVERED ON
: 1 JUNE 1990
JUDGMENT STEYN JA
2
On August 16 1988 appellants and three co-accused were arraigned before
O'Donovan AJ and two assessors in the Witwatersrand Local
Division on the
following counts, viz. two of attempted murder (counts 1 ánd 2), two of
murder (counts 3 and 4), two of illegal
possession of firearms (counts 5 and 6)
and one of illegal possession of ammunition (count 7). These counts all related
to events
in Soweto during the night of 24-25 January 1987. First and second
appellants were accused 1 and 4 respectively. Accused no 2 was
Priscilla
Mkhonza, and accused 3 and 5, Ben Dlamini and Charles Zwane respectively. On the
night in question the five accused were
respectively about 32, 28, 26, 25 and 17
years of age. The attempted murder counts referred to the shooting of Jeremia
Nkosi - whose
surname is given as "Benkankosi" in the indictment (count 1) - and
Collin Dlamini (count 2) and those of murder to the killing by
gunshot of Mlando
Ngubeni (count 3) and Xola Mokhaula
3
(count 4). Count 5 referred to the illegal possession of a Scorpion machine
pistol and AK 47 rifle in contravention of s 32(1)(a)
of Act 75 of 1969, count 6
to like possession of an unidentified firearm and count 7 to the illegal
possession of ammunition in contravention
of s 36 of the said Act. All the
accused pleaded not guilty on all the said counts. Accused 3 was acquitted on
all counts. The other
accused were all acquitted on count 6. First appellant
was, however, convicted on all the remaining counts but second appellant only
on
count 5. Accused 2 was convicted on count 4 but acquitted on all remaining
counts. Accused 5 was convicted on count 5, but only
i.r.o. the Scorpion, and
acquitted on the rest. Extenuating circumstances were found to exist in the case
of accused 2 and she was
sentenced to 10 years' imprisonment. No extenuating
circumstances were found i.r.o. the two counts of murder on which first
appellant
was convicted and he was sentenced to death on each
4
count. He was sentenced to various terms of imprisonment i.r.o. the other
counts on which he was convicted. Second appellant was sentenced
to 4 years'
imprisonment of which 1 year was conditionally suspended for 5 years. On account
of his youth accused 5 was sentenced
to a wholly suspended term of 1 years'
imprisonment. Both appellants appeal with leave of the learned trial judge.
First appellant
appeals only against the aforementioned finding that there were
no extenuating circumstances and consequently also against the death
sentences
imposed on each of the murder counts. Second appellant appeals only against his
sentence.
The facts which emerge from the evidênce accepted by
thé trial court on the merits can be summarised as follows. First
appellant is a member of the ANC's military wing and received his training in
Angola. He entered the Republic of South Africa illegally,
one of his tasks
being to train members of the
5
said movement in the use of firearms. He was equipped with an AK 47 rifle
(the AK 47) and ammunition, which he had in his possession
at various times on
the night of 24-25 January 1987. The appellants met for the first time on the
previous night at a vigil held
in honour of a deceased member of the Mandela
United Football Club in Soweto. They were introduced to each other by one
Vuyisile
Tshabalala who was also a trained member of the ANC's military wing. On
the early morning of 24 January first appellant was taken
home by second
appellant in a maroon Audi motorcar (the Audi) belonging to Mrs Winnie Mandela.
Second appellant was the boyfriend
of Mrs Mandela's daughter, Zinzi, and was at
that time visiting the Mandela's and lodged at their home at no 8115 Orlando
West, Soweto.
Whilst so visiting he was allowed to use the Audi and was given
the keys thereof. On Saturday the 24th both appellants attended the
funeral but
did not make contact. After the funeral first appellant received
6
a message from Tshabalala that a "parcel" had been lef t for him at the
Mandela home. He arrived there at about 20h00 on that day.
He had the AK 47,
exhibit 2, with him, wrapped in a raincoat. A number of persons were on the
premises. The Audi was also parked
there. He asked to see the driver thereof and
was taken to a back room where he found second appellant and ac cused no 5. They
were
in Zinzi's bedroom. He asked for the "parcel". A black bag was shown him.
It contained a Scorpion machine pistol (the Scorpion),
exhibit 1. He removed it
in the presence of second appellant and accused no 5. He opened the raincoat,
showed the AK 47 to them and
told them he was leaving it with them. He then
departed taking the Scorpion with him. He was to instruct certain persons in the
use
thereof that evening. Second appellant hid the AK 47 under a bed in the
room.
The persons first appellant had to instruct in the use of the Scorpion failed
to turn up. He then went
7
to the shebeen of accused 2. There he drank beer but was
"not much
affected" thereby. The two deceased Mlando and Xola, the latter's brother, Bobo,
and their friends were also there. They
were regular customers. Xola and first
appellant quarelled. The latter had burnt Xola's trousers with a cigarette,
possibly by accident.
They went outside to fight. Xola got the better of first
appellant who fell down with Xola on top of him. First appellant drew the
Scorpion, obviously to use it in some manner, but was promptly dispossessed of
it by Bobo. Bobo, the two deceased and their companions
left, taking the
Scorpion with them. First appellant asked for its return but they refused. They
went to the house of Xola's parents
(Xola's house) where he and his sister Faith
also lived. There the Scorpion was handed to Faith for safekeeping. She hid it
under
the dining-room table. Because they expected an attempt that night by
first appellant to regain possession of the Scorpion forcibly,
8
Xola went to spend the night in the neighbourhood at the house of his friend
Tuta, and the rest kept watch at Xola's house, sitting
on the stoep facing the
street. They were unarmed.
In the meanwhile first appellant, who had been
visibly injured in the fight with Xola, went with accused 2 to the third accused
and
was taken by the latter to the Mandela home in his yellow Chevrolet Rekord
motor car. (the Rekord). First appellant's intention was
to recover the Scorpion
forthwith and to use the AK 47 for that purpose. At the Mandela home second
appellant handed the AK 47 to
first appellant at the latter's request. First
appellant also collected 7 or 8 youths who were there, including second
appellant,
to accompany him on the venture. Two cars were used to convey the
party, viz. the Rekord and the Audi. First appellant, accused 2
and two of the
youths travelled in the Rekord driven by accused 3 and the rest in the Audi
driven by second
9
appellant. Accused 2 guided them to Xola's house. On arrival there first
appellant reconnoitred the area and summed up the situation
by causing the party
to drive past without stopping and without taking any action. Ten minutes later
they returned. Whilst then driving
past first appellant fired through the car
window with the AK 47 at the group on the stoep. They immediately dispersed and
fled in
different directions. The complainant on count 1, Jeremia Mkosi, was hit
on the back of his head whilst so fleeing. The vehicles
then stopped; first
appellant alighted and went to the stoep, carrying the AK 47 and followed by
certain members of the group. Second
appellant remained in the Audi. Collin
Dlamini, the complainant on count 2, had fallen asleep on the stoep but was
woken by the shots.
First appellant was standing in front of him, holding the AK
47. He asked Dlamini "where is that thing", meaning the Scorpion. Dlamini
replied that he did not know and was promptly shot three
10
times by first appellant - in the chest and left arm, and as he fled, also on
the inside of the right leg. One member of the stoep
party, Mlando Ngubeni (the
deceased in count 3), remained standing. He was too frightened to move. Pirst
appellant asked him where
the Scorpion was. He replied that it was in Xola's
house. First appellant took him to the kitchen door and made him knock. This was
done because Mlando was known to the occupants and they would open the door for
him. He in fact used Mlando as a stalking horse.
Faith and her mother were
inside. Her mother opened the door after ascertaining who had knocked. Mlando
entered, closely followed
by first appellant and a number of the youths
accompanying him. First appellant asked where his "mpompo" was. The mother asked
what
that was. He replied that he wanted his firearm and told Faith and her
mother to look down. Mlando then struck Faith on her chest,
saying to first
appellant "shoot this woman, it is she who has the
11
firearm". Instead of doing so he shot Mlando in the right hip. Mlando crawled
away bleeding profusely. (He eventually bled to death.)
Having shot Mlando,
first appellant asked Faith whether she had seen what he had done to Mlando and
whether she wanted to be dealt
with in like manner. He then again asked for his
firearm. She replied that she did not know where it was and said that if he
wanted
to kill her he must start with her children. She had three children. She
had the youngest in her arms, called the others and told
them to go outside.
They did so. First appellant then merely asked her where her brothers were. She
replied that she did not know.
He told her not to lock the door because he would
be coming back. He and his companions then left. They departed by car in the
direction
of Tuta's house, again guided by accused 2. Faith watched them
departing and then hid the Scorpion in the outside coal box at the
back of
Xola's house.
12
First appellant and his party went to an empty house next to that of Xola.
Accused 2 pointed it out as a house where Xola and Tuta
occasionally slept. They
were not there. She then guided the search party to Tuta's house. Xola and Tuta
were there. (Tuta is the
state witness Noblet Mlambo.) First appellant and
members of his party hammered on the door of the house shouting that they would
bomb the house if the door was not opened. Tuta opened the door. First appellant
and a number of his companions entered. Tuta and
Xola were each grabbed by two
of them and taken on foot to Xola's house. First appellant walked in front and
held the AK 47 to Xola's
temple. Arriving at Xola's house first appellant pushed
Xola inside with the AK 47 which was still being held to his temple. Faith
and
her mother were in the dining-room. First appellant took Xola there, still
holding the AK 47 to his temple, and said he was going
to kill him. Seeing
Xola's plight Faith asked
13
first appellant what he would do if the firearm was found. He said he would
then leave Xola alone. She then hinted that the Scorpion
was in the coal box.
First appellant grabbed her by the chest and told her to show him where the coal
box was. She did so. He handed
the AK 47 to one of his party and went to the
coal box. He found the Scorpion there, removed it and said that he would kill
the dog,
apparently meaning Xola. Faith who was standing in the kitchen door,
screamed. He told her to stand aside. Xola ran inside and hid
in the bedroom.
First appellant and his companions followed. Xola had locked the door, but they
forced it open. Xola was on his knees
and pleaded for his life. First appellant
said he was going to kill him. Faith grabbed hold of first appellant and pleaded
with him
to forgive Xola. First appellant nevertheless fired a shot in the room
with the Scorpion. It hit the wardrobe. First appellant and
his companions then
left the house. Faith followed them.
14
They went to the street. Accused 2 was there. She asked first appellant
whether he had killed Xola. He replied in the negative and
said "I have taught
him not to be forward". She told him to go and kill the dog and erase the
evidence. First appellant and his companions
then returned to the house. He now
had the AK 47. He went into the bedroom where Xola was still on his knees. First
appellant said
he was going to kill Xola and called Faith and her mother to come
and look. Despite their pleas for mercy he shot Xola in the head
twice, killing
him instantly. The group then left again. Outside accused 2, who was waiting at
the Rekord, asked first appellant
whether he had killed Xola. He replied that he
had done so. He and accused 2 then departed with accused 3 in the Rekord. The
others
followed in the Audi driven by second appellant. On their way back to the
Mandela home accused 5, who was also in the Audi, showed
the Scorpion to second
appellant. He took it from accused 5
15
at the Mandela home and hid it in a suitcase in Zinzi's room. First appellant
went to sleep at a house in the Phefeni ward of Soweto.
His home at that time
was in the Emdeni ward. The place where he slept was, however, apparently a
known haunt of his. He was arrested
there on the morning of the 25th.
First
appellant did not testify during the enquiry relating to extenuating
circumstances. A clinical psychologist, Mr Graeme Friedman,
was, however, called
to testify as to first appellant's mental condition at the time of the murders.
He was of. the opinion that
first appellant suffered from a mixed personality
disorder. A feature thereof was a low tolerance of frustration and a poor
ability
to control his impulses, especially under stress. This condition was
exacerbated by the alcohol first appellant had ingested that
night. Mr Friedman
was of the opinion that first appellant was very angry when he committed the
16
murders and in a state of diminished responsibility because he was then
unable to control his impulses or to think about the conseguences
of his
actions. He did, however, experience difficulties in consulting with first
appellant, as appears from the following passage
in his evidence. "-- in my
consultations with the accused he stuck to the story that he had given the Court
in the first place, so
I was unable to assess with him what was going through
his mind at the time that the events, as the Court has accepted, took place.
So
I can only really hypothesize about what a man with his personality type and
disorder would do". Mr Friedman's analysis of the
killing of Xola was that it
was "very bizarre behaviour" and that "the act itself seems to be so bizarre
that it can only indicate
that it is the action of somebody who is not reasoning
at high level and who is acting on pure impulse". Mr Friedman testified that
first appellant may also have sustained minimal brain damage at some time in
17
the past which, if it existed, could be a factor contributing to his
condition. He however, said that he was not competent to establish
whether such
damage in fact existed. After completion of his testimony the trial was
postponed in order to have first appellant examined
by competent medical
authority. No brain damage was detected by the specialists who examined him
therefor. At the resumed hearing
their reports were handed in by consent. Dr
Victor Nell, a clinical neuro-psychologist, who had also examined first
appellant, was
then called to testify. His diagnosis differed in certain
respects from that of Mr Friedman. His conclusion was that first appellant
suffered from a personality disorder known as the dyscontrol syndrome. This
condition causes intermittent and unpredictable outbursts
of uncontrollable rage
during which the sufferer undergoes a complete personality chánge. He is
then unreachable and out of
control. His report was
18
confirmed by him and his testimony was based thereon. It was handed to the
court. Therein he stated that during their consultations
first appellant claimed
that he could not remember everything that had happened on the night of the
murders. Dr Nell testified that
such an inability to recall was symptomatic of
the said condition and that first appellant's apparently complete and coherent
evidence
at the trial was in his opinion due to first appellant having filled in
the gaps between his "islands of recall" with "confabulation
of what he thought
might have happened". Dr Nell was of the opinion that the facts found by the
court demonstrated that at the time
of the murders first appellant was in the
grip of such an outburst of uncontrollable rage and, therefore, in a state of
markedly
diminished responsibility. He dismissed a contrary interpretation of
those facts in these terms:
"...I think that the claim that he
was
19
executing a carefully thought-out plan of action to recover his firearm is,
please forgive me for using a strong word, I think it
is
far-fetched."
No evidence was called by the State to
contradict the evidence of Mr Friedman and Dr Nell. The trial Court consequently
felt obliged
to accept Dr Nell's diagnosis of first appellant's condition, but
did so "with some misgiving". Mr Friedman's evidence was not dealt
with by the
Court, but by necessary implication his evidence as to first appellant's
condition was also accepted, at least in so
far as it was in consonance with
that of Dr Nell. Fundamentally they were in agreement with each other that as a
result of his condition,
whatever it was, first appêllant suffered from an
impaired ability to control himself and to realise the consequences of his
actions when angered.
The trial Court did not, however, accept Dr Nell's (and
by necessary implication, also Mr Friedman's)
20
interpretation of the facts and found that first
appellant was not
influenced by his said condition on the
night in question, and, more
particularly, when he
committed the murders. The Court's reasons for coming
to
this conclusion, and for finding that there were,
therefore, no
extenuating circumstances, are set out in
the following terms by O'Donovan
AJ:
"The alleged syndrome is apparently a very rare one and Dr Nell states that this
is only the second case within his experience where
the syndrome existed without
any brain damage. Mr Kuny has, however, correctly conceded that it is for the
court to decide as an
issue of fact whether the syndrome, assuming its
existence, influenced the accused in acting as he did on the night in question.
The court, on the review of all the evidence, feels constrained to answer this
question in the negative. Dr Nell has described the
symptoms to which the
syndrome gives rise in various ways. At page 4 of his report which has been
handed to us, he refers to 'explosive
outbursts by the subject, arising
unpredictably during which the subject is both irrational and unpredictable'. He
contends that
the actions of the accused on the night in question in killing
Mlando and Xola and attempting to kill two others, Collin Dlamini
and Jeremia
Bekankosi, were totally
21
senseless.
The court cannot accept this contention for the following
reasons: However ill-advised they were, the actions of the accused after
he was
deprived of his machine pistol and beaten up were deliberately planned and
executed for a rational objective, namely for the
purpose of recovering
possession of his fire-arm. In short, his actions were the following: He
procured transport, reinforcements,
a firearm from Orlando West; Accused no. 2
who was required to accompany the accused's party to point out houses where Xola
and others
might be found; Mlando was used to gain access to Xola's parents'
house.
It was the accused who directed this operation, almost as a military
operation. It is clear that the accused had not lost control
of his actions. He
did not, for instance, shoot at random as suggested by the defence. That he was
reachable and able to control
his actions, is illustrated by the following
incident: After recovery of the firearm from a coal bin in which it had been
hidden,
Xola fled to his parents' home, followed by the accused. When the
accused was about to shoot Xola, the accused responded to pleas
for mercy from
Xola and the latter's sister and mother. He in fact desisted at that stage from
killing Xola. On being asked subsequently
by accused no. 2 what he had done to
Xola and whether he had killed Xola, he replied that he had merely taught Xola
not to be 'forward'.
It was only after accused no. 2 replied: 'Go and kill the
dog and wipe out the evidence' that he returned and shot
22
Xola in cold blood.
These circumstances were in the court's view not consistent with any loss of
self-control as contended on behalf of the accused.
The court concludes that the
accused was uninfluenced by any syndrome of blind and insensate rage on the
night in guestion. No other
ground of extenuation has beén advanced, save
for a fleeting reference to drunkenness and provocation which the court finds
to
be insufficient to operate as extenuating features.
On all the evidence the court comes to the conclusion that the defence has not
shown on a balance of probability that the moral blameworthiness
of the accused
for acting as he did, has been reduced by any extenuating
factors."
I can find no fault with that reasoning.
The following
further considerations are also supportive of the Court's
finding. Whilst
it is clear that first appellant must
have been angered and distressed at
being deprived of the
Scorpion, it does not necessarily follow that
he
therefore lost his self-control and acted impulsively
thereafter
without a realisation of the consequences of
his conduct. His action in
firing at the group assembled
23
on the stoep of Xola's house was clearly neither impulsive nor senseless. He
caused his party to drive past the group initially without
doing anyting more
than scouting the situation. That was a controlled and militarily wise action.
As commander of what was in effect
his task force, he had to assess the
situation before deciding on the best course of action to achieve his object.
Shooting at the
group from the moving car on the second pass was egually
controlled and well-reasoned. The group were obiously waiting for him to
attempt
a recovery of the Scorpion and were prepared to prevent it. He had no means of
ascertaining from a safe distance whether
they were armed and, if so, with what.
He did, however, have every reason to believe that they possibly had the
Scorpion with them
and that they were prepared to use it when confronted by him.
Taking them by surprise and dispersing them successfully before closing
in on
the house was consequently vital for the safety of his force
24
and the success of his operation. First appellant's ability to control his
impulses is also well demonstrated by his refraining from
doing any violence to
Faith or her mother. His alleged amnesia was never mentioned by him when
testifying very fully and clearly
as to the events of that night; and his choice
of a probably known haunt as sleeping place may very well have been due to an
impression
that he had so cowed his surviving victims that they would not dare
to expose him. There are consequently no grounds for interfering
with the trial
Court's finding.
S v McBRIDE
1988 (4) SA 10
(A) at 18-19. First
appellant's appeal should accordingly be dismissed.
Turning to the appeal of
second appellant it must be borne in mind that over an extended period of time
he repeatedly took into his
possession and hid two firearms that, by their very
nature, were most dangerous instruments which were quite obviously being used
for
25
illegal and potentially lethal purposes. When hiding the Scorpion on the
early morning of the 25th January he must have known that
one or other or both
those weapons had in fact been so used. Second appellant is an intelligent and
mature university student who
had already successfully completed the second year
of his studies for the B.Comm. degree, and was therefore clearly well aware of
the nature and probable consequences of his conduct. He did, however, whilst
testifying on the merits, allege that when first appellant
took the Scorpion and
left the AK 47 with him as aforesaid, he told second appellant that he would be
shot by an unknown person should
he disclose the whereabouts of the AK 47. First
appellant denied having uttered such a threat, but second appellant was
corroborated
by accused 5. This evidence of his was not rejected by the trial
court. It was not even dealt with, probably because his counsel
had conceded his
guilt on count 5, and also because second appellant had made a
26
written admission of possession of both weapons. There is to my mind no good
reason for rejecting second appellant's evidence in this
respect. It is,
however, otherwise with his allegation that he so feared first appellant because
of that threat that he was cowed
into accompanying him on the foray to recover
possession of the Scorpion. His conduct as disclosed by his own evidence shows
that
he was a willing participant in the recovery thereof. It is, however,
likely that he was influenced to some extent by first appellant,
and especially
by his own companions, to so participate. He was, in addition, a first offender
and is a very promising young man
who would by now probably have obtained his
degree and been well on his way to becoming a chartered accountant (which had
then been
his aim), had it not been for the disaster which befell him as a
result of his participation in the events of that night. He was
arrested on the
10th February 1987 and held in custody
27
awaiting trial. When testifying in mitigation of sentence he said that he was
suffering from severe depression as a result of his
incarceration. No mention
was made of these matters by the learned judge when sentencing second appellant.
The State did not, however,
dispute that second appellant had been so detained
or that he was suffering from depression as alleged by him. For purposes of
determining
whether he had been sentenced appropriately those facts must, to my
mind, be accepted as proven and taken into account. Second appellant
was
sentenced on November 17 1988. He was not granted bail during the trial or
pending the outcome of this appeal and has consequently
already served 18 months
of his sentence. But he has in fact been deprived of his freedom for a period of
three years and three months.
By virtue of the gravity of this offence a
substantial term of actual imprisonment is to my mind the only appropriate
sentence to
impose upon second
28
appellant. But in the light of what has been set out above I am of the
opinion that the sentence imposed upon him was too severe.
A sentence of 18
months' imprisonment is under the circumstances the appropriate punishment.
Taking into account the period of imprisonment
already served, it will be
necessary for this sentence to be antedated in terms of
s 282
of the
Criminal
Procedure Act, no 51 of 1977
. The sentence imposed by the trial court must be
reduced accordingly. The following orders are made:
1.
The appeal of first
appellant is dismissed.
2.
(a) The appeal of
second appellant succeeds.
(b) The sentence of 4
years' imprisonment imposed upon him by the trial court is set aside, and a
sentence of 18 months' imprisonment
is substituted therefor. Such sentence of 18
months' imprisonment is antedated to 17 November 1988.
29
M T STEYN JA
CORBETT CJ)
FRIEDMAN AJA) CONCUR