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[1991] ZASCA 93
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S v Lee and Others (202/90) [1991] ZASCA 93 (2 September 1991)
Case No. 202/90 /CCC
IN THE SUPREME COURT OP SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
ANTO
N LEE
FIRST
APPELLANT
EBRAHIM ADAM
S
SECOND
APPELLANT
MOGAMMAT ABAS LEE
THIRD
APPELLANT
PIETER W
ILLIAMS
FOURTH
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, F H
GROSSKOPF JJA et VAN DEN HEEVER AJA
DATE HEARD
: 20 AUGUST 1991
DATE DELIVERED
: 2 SEPTEMBER
1991
JUDGMENT
NESTADT, JA
:
This is an appeal against the
death
2/
2. sentences imposed on the four
appellants by MARAIS J sitting in the Cape Provincial Division
consequent upon their convictions
of murder without extenuating
circumstances. The learned judge, being of the view that the case was
not one "in which there
is little to be said for the accused"
granted leave to appeal to this Court.
The crime took place shortly
before 10 o' clock on the night of Monday, 21 March 1988. First,
second and fourth appellants, wearing
masks, entered the Housewife
Supermarket in the district of Goodwood in the Cape. One was armed
with a knife. Another had a firearm
in his possession. The shop was
still open. The owner, a certain Jamal Hoosain (aged 30) was
confronted. He was ordered to hand over
his watch and ring. He
refused to do so. His attackers then attempted to take what they
wanted by force. A
3/
3. struggle ensued. During the
course of it, one of the robbers (possibly accidentally) shot Hoosain
in the chest. It produced a superficial
wound. Thereafter Hoosain was
shot again, this time in the back of his neck. This, so it would
seem, took place after he had managed
to unmask one of his assailants
and after he (Hoosain) had been dispossessed of a firearm which he
had on him. First, second and
fourth appellants then fled out of the
shop and made good their escape in a car which, driven by third
appellant, had been waiting
for them in the vicinity. Besides
Hoosain's firearm, they also stole an amount of about R500 in cash
from a till in the shop. The
second shot (which it is to be inferred
was fired with
dolus directus
) proved fatal.
By reason of the coming into
operation of the Criminal Law Amendment Act, 107 of 1990 (the Act)
4/
4. on 27 July 1990, we, unlike the
trial court, have to decide whether, having regard to the presence or
absence of any mitigating
or aggravating factors, the death sentences
are the only proper sentences. Tn other words, the issue of
extenuating circumstances
in the manner it used to arise, no longer
does. And contrary to the position before the Act, we are now bound
in reconsidering sentence
to exercise an independent discretion.
There can be no doubt that there
are a number of aggravating features about this murder. It was
committed during the course of a robbery
(of which appellants were
also convicted by the court a
quo
). The prevalence of this
type of crime is well known. Appellants went into deceased's shop
armed. MARAIS J, in his careful judgment,
rejected an argument that
5/
5. the killing was either
spontaneous or impulsive. It would seem that deceased was
cold-bloodedly shot from behind. As will appear,
some of appellants
have previous convictions for crimes of violence. The lesser (active)
participation of third appellant can hardly
redound to his credit.
The trial judge correctly found that "hy was 'n belangrike rat
in die masjien en hy het homself vollediglik
met die doen en lates
van sy medebeskuldigdes geassosieer". Finally there is the
consideration that the day before the murder
of deceased appellants,
during the course of a robbery of a garage called John Ramsay Motors,
shot and killed a security guard there;
and that after the robbery at
Hoosain's premises, they continued with their rampageous conduct by
committing another armed robbery
of a shop within half an hour of
leaving the Housewife Super-market. In the case of first, second and
third
6/
6. appellants they participated in
two other robberies or attempted robberies in the same week.
(Appellants stood trial before the
court a
quo
on and were
convicted by it of these charges as well. There were some 19 counts
some of which were for the unlawful possession of
firearms and
ammunition. The murder of Hoosain was count 8.) In the case of the
murder of the security guard extenuating circumstances
were found and
a sentence of imprisonment was imposed on each appellant. (Similarly,
sentences of imprisonment were imposed in respect
of the other
robberies.) However, having regard to appellants' conduct before and
after the attack on Hoosain, MARAIS J held that
extenuating
circumstances had not been established in respect of his murder. The
learned judge's reasoning is reflected in the following
passages from
his judgment:
7/
7.
"Die vier beskuldigdes het
aan hierdie verdere rooftog deelgeneem met kennis van die tragiese
gevolge van die rooftog op John
Ramsay Motors die vorige dag. Hulle
het geweet dat in daardie geval die risiko wat hulle geloop het
verwesentlik was. Die teoretiese
moontlikheid dat iemand doodgeskiet
sou word het 'n realiteit geword. Met daardie wete het hulle nog 'n
gewapende rooftog op die
Housewife Supermark uitgevoer. Niks is
werklik gedoen om h herhaling van wat by John Ramsay Motors
plaasgevind het, te verhoed of
te vermy nie. Die beskuldigdes se
bereidwilligheid om nog sulke risikos te loop nieteenstaande die feit
dat hulle alreeds vir die
dood van mnr Petersen verantwoordelik was,
is 'n faktor wat moreel gesproke sterk teen hulle moet tel selfs
wanneer dit opgeweeg
word teen die ander gunstige faktore waarna ek
alreeds verwys het .... Die posisie word vererger, na die Hof se
mening, wanneer ons
kyk na hulle optrede na die doodskietery van mnr
Hoosain. Hulle het dieselfde aand nog 'n gewapende roof uitgevoer te
Victory Supply
Store. Nrs. 1, 2 en 3 het 'n paar dae later weer 'n
gewapende rooftog te Goodhope Home Video uitgevoer en 'n gepoogde
roof te Belhar
Mini Mark. Dit is aanduidend van 'n
traak-my-nie-agtige houding jeens die lewensverlies wat plaasgevind
het te John Ramsay Motors
en Housewife Supermark wat so
afkeurenswaardig is dat dit uiters moeilik is om te aanvaar dat hulle
geestestoestand
8/
8.
onmiddellik voor die skietery te
Housewife Supermark heelwat anders was en heelwat minder
afkeurenswaardig was. Al die aanduidings
is ten gunste van die
afleiding dat hulle nie eintlik omgegee het indien iemand doodgeskiet
sou word nie."
Murder is of course almost always
a serious
crime. What has been stated makes
this one
particularly serious. On the other
hand, there are
certain mitigating factors and
other considerations
that must, in assessing whether
the death sentence is
the only proper sentence, be taken
into account. The
court a
quo
was unable to
find which of appellants
who entered the premises of
deceased shot him.
Their (and third appellant's)
convictions therefore
rested merely on a finding of
common purpose and
dolus eventualis
, ie, that
knowing that one of the
9/
9.
group
possessed a firearm, they each foresaw that the
shop
owner might be shot and killed in the robbery. The trial court, in
considering sentence, regarded this factor as being in appellants'
favour (in the sense that it reduced their moral blameworthiness).
The same applies to a finding that
appellants were at
the time under the
influence of drugs, namely a combination of dagga and mandrax.
I
do not propose to set out what evidence
each gave in this regard. It is sufficient to state that MARAIS J
held that this materially
contributed to their actions. It seems to
me that this must reduce the force of the
court
a
quo's
reasoning to which
I
earlier
referred.
It is reasonably possible that
appellants' appreciation of the risk of another shooting taking place
was blunted by their intake of
drugs. And the subsequent robberies
must be looked at in the
10/
10.
light
of the fact that they too were committed by appellants whilst under
the influence of drugs. It was further found that first,
second and
fourth appellants had probably acted under the influence of third
appellant (though as regards third appellant this was
not taken into
account against him). Both first and second appellants are youths.
First appellant was little more than 18 at the
time. Second appellant
was just over 21 . He is a first offender. As
I
have indicated earlier, the other
appellants have certain previous convictions. Those of first
appellant are for rape and robbery.
Third appellant (aged 32) has
convictions but not for crimes of violence. Fourth appellant (aged
24) has previously been convicted
of assault.
Having regard
to the. mitigating and aggravating factors referred to, is the death
sentence the only proper sentence?
I
have
come to
11/
11.
the conclusion
that, giving full weight to the interests of society, the answer is
in the negative.
I
cannot,
despite the heinousness of their crime, say
that
the death penalty is imperatively called for. In
my
opinion a lengthy term of imprisonment would, in the case of each
appellant, be an appropriate sentence (as was decided in the
broadly
similar matter of
S vs Ntuli
1991(1) SACR 137(A); see too
S vs
Ndinisa en Andere
1991(2) SACR 117(A)).
Perhaps, in the case of first appellant, a social welfare report
should have been produced, but for reasons
which will appear it would
not serve any purpose at this stage. In the case of first and second
appellants a sentence of 18 years'
imprisonment will, in my view, be
an appropriate sentence. This takes account of their youthfulness
and, in the case of second appellant,
his clean record. Third and
fourth appellants, being older and more mature, are deserving of a
heavier sentence
12/
12.
viz, 21 years' imprisonment.
Plainly,
provision must be made for all or part of these sentences to run
concurrently with the sentences imposed in respect of the
other
crimes which, as
I
indicated
earlier,appellants were found guilty of. First appellant's effective
sentence for them is 25 years; that of second appellant
20
½
years; that of third appellant 20 years and fourth
appellant's is 22 years. First appellant's effective sentence is a
heavy one. In
my view it would be wrong to add to it.
I
propose therefore to direct that the 18
years' imprisonment to be imposed on him
run
concurrently with the sentence he is now serving.
The
sentence to be imposed on second appellant will run concurrently with
his existing sentence so that he is in the result sentenced
to an
effective 22 years' imprisonment. The sentences to be imposed on
13/
13. third and fourth appellants
will run concurrently with their respective existing sentences so
that they each receive an effective
sentence of 25 years'
imprisonment.
In the result the following order
is made:
The appeal of appellants against
the death sentence imposed on each of them for the murder of Jamal
Hoosain (count 8) succeeds.
Such death sentences are set aside.
In the case of first and second
appellants a sentence of 18 years' imprisonment will be substituted.
In the case of third and fourth
appellants a sentence of 21 years'
imprisonment will be substituted.
The said periods of 18 and 21
years' imprisonment are directed to run concurrently with the other
sentences
14/
14. imposed by the court a.
quo
as follows:
The 18 years' imprisonment
imposed on first appellant will run concurrently with the period of
25 years to which first appellant
was effectively sentenced. His
effective sentence will therefore remain at 25 years' imprisonment.
16
½
years of the 18 years' imprisonment imposed on second appellant will
run concurrently with the period of 20
½
years to which second appellant was effectively sentenced. His
effective sentence will therefore be 22 years' imprisonment.
(c) 16 years of the 21 years'
imprisonment
15/
15.
imposed on third appellant will
run
concurrently with the period of 20
years to which third appellant was
effectively sentenced. His
effective
sentence will therefore be 25
years'
imprisonment.
(d) 18 years of the 21 years'
imprisonment
imposed on fourth appellant will
run
concurrently with the period of 22
years to which fourth appellant
was
effectively sentenced. His
effective sentence will therefore be 25 years'
imprisonment.
NESTADT, JA
P H GROSSKOPF,
JA CONCURS
CASE NUMBER: 202/90
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
ANTON LEE
First
Appellant
EBRAHIM ADAMS
Second
Appellant
MOGAMMAT ABAS LEE
Third
Appellant
PIETER WILLIAMS
Fourth
Appellant
and
THE STATE
Respondent
CORAM
: NESTADT, F H
GROSSKOPF JJA et VAN DEN HEEVER AJA
HEARD
: 20 AUGUST 1991
DELIVERED
: 2 SEPTEMBER 1991
JUDGMENT VAN DEN HEEVER AJA
2
I
too
am not satisfied that the death sentences
are
the only appropriate sentences on count 8, but arrive at that
conclusion by a somewhat different route to that followed by the
majority of the court.
As
I
understand the reasoning of the court a
quo, it generously listed findings which could weigh in favour of all
four appellants under
four headings, and then set out factors
specific to appellants 1, 2 and 6. The factors passed the third test
posed in
S v BABADA
1964
(1) SA 26
(A) in regard to the murder of Petersen by
serving
"in the minds of reasonable men to diminish morally albeit not
legally the degree of the prisoners' guilt" (
R
v BIYANA
gouted with approval by
Schreiner JA in
R v FUNDAKUBI AND OTHERS
1948 (3) SA 810
(A) 815) but failed that test in regard to count 8
because of what had gone before and the conduct of appellants after
Hoosain had
been shot.
The approach in
BABADA'S
case holds good in my
3
view, despite the amendment of the
Criminal Procedure Act, in this sense, that the factors of common
purpose and dolus eventualis
must ordinarily carry ever less weight
as mitigating factors with each successive death arising out of the
criminal activities of
a gang, and also the better organized that
gang is.
Here appellants' informal gang was
well-organized. The task of each participant in each of the robberies
was pre-ordained: everyone
knew what to do without orders or
discussion on the scene. The events at John Ramsay Motors were
educational to any possibly naive
participant, as to the consequences
to a victim, of resistance.
None of the appellants claimed
that drugs blunted their intellect. The habit - long standing in
every case - at most slackened inhibitions
and made an actor bolder
or more susceptible to temptation. In that respect the drugs
contributed materially to the
4
commission of the offence, without
that necessarily constituting an appreciable mitigating factor.
Having regard,
as the trial court was neither obliged nor empowered to do, to
factors dehors the offence itself,
I
agree
that the interests of society do not demand the destruction of
appellants as the only proper sentence on count 8. In doing so
I
would stress
the
youth of first appellant, since he is the only one of
the
four with a previous record of violence sufficiently serious to have
otherwise satisfied me that the appropriate sentence would
have been
the death sentence.
I
concur
in the order proposed.
L VAN DEN HEEVER AJA