Brief Summary

Criminal Law — Murder — Appeal against conviction and sentence — Appellant convicted of murder, attempted murder, and unlawful possession of a firearm and ammunition — Evidence primarily from eyewitnesses, including a minor, accepted by trial court as credible — Appellant's version of events rejected as implausible and contradictory — Appeal dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned a criminal appeal to the Supreme Court of South Africa (Appellate Division) against a conviction and sentence for murder. The appellant, Clive Bessick, had been tried in the Cape of Good Hope Provincial Division on an indictment containing four counts: murder, attempted murder, unlawful possession of a firearm, and unlawful possession of ammunition. He pleaded not guilty to the counts of murder and attempted murder, but guilty to the firearm and ammunition counts.

At the conclusion of the trial, the appellant was convicted on all four counts and was sentenced to death on the murder count. The appeal before the Appellate Division was brought in terms of section 316A of Act 31 of 1977 and was directed at the conviction and sentence on the murder count.

The general subject matter of the dispute was whether the trial court’s acceptance of the State’s version—based primarily on eyewitness evidence—was vitiated by misdirection, and whether, on sentence, any mitigating factors existed such that the death penalty was not the only proper sentence.

Material Facts

The State case depended largely on the evidence of Igshaan Galant, who was 14 years old at the time of the incident. His friend Michael Smith (the deceased) was 15 years old. On the night of 27 August 1988, at approximately 10 or 11 pm, Galant and Smith were walking down Oliver Street, Valhalla Park, returning home from a braai in Edmund Street. Both boys were members of a gang known as the Hard Living Kids (HLKs).

On Galant’s version, accepted by the trial court, a group of approximately 20 to 30 people—members of the Americans gang—ran down the street towards them. The appellant was at the front, wearing a cream-coloured, fur-lined coat. When the appellant approached to within roughly 20 metres, he stopped, drew a firearm from under his coat, aimed, and began firing at the two boys. The second shot struck Smith in the mouth, causing him to fall. As Galant moved away, the appellant continued shooting and Galant was hit in the left shoulder and chest, collapsing nearby. Galant testified that the appellant shouted words to the effect of “Ek het twee varke. Ek het twee varke”, either during the shooting or immediately thereafter.

The State also relied on the evidence of Cecilia Williams, who lived in Oliver Street and observed events from near her gate. Her evidence, also accepted by the trial court, placed the appellant earlier in Oliver Street with his girlfriend Zelda Muller and a group of associates. At the corner of Oliver and Edmund Streets, Williams observed an altercation during which Muller urged the appellant to go home and avoid trouble; the appellant drew his gun, threatened Muller, used obscenities towards the HLKs, and threatened to kill any of them he encountered. Williams later saw the two boys walk past and warned them to be careful. Shortly after, she saw the appellant standing in the street firing at them. She described two shots fired at Smith and a further shot fired at Galant as he ran away. After the shooting the appellant shouted triumphantly that he had shot two of them and then fled. Williams also described one of the appellant’s companions striking the deceased’s lower leg with a panga; a corresponding wound was found at post-mortem.

The appellant’s version differed fundamentally. He alleged that he and Muller encountered a group of Americans at the top of Oliver Street and that a larger group of HLKs was further down the street. He claimed the Americans persuaded him to join an attack on the HLKs and that he obtained his gun from Muller. He alleged that the HLKs were armed, including one having a “zip-gun”, that a shot was fired from the HLKs, and that he returned fire, firing six shots. He denied seeing Galant that evening. He further alleged that, after the shooting, Americans attacked the deceased with pangas, after which the two gangs dispersed and he and Muller walked home.

Muller’s evidence conflicted with the appellant’s in several respects. She denied carrying the gun and testified that the appellant fired shots at HLKs for no apparent reason. She was confronted with a prior statement to police in which she denied being with the appellant that night; the trial court rejected her evidence and found her to be an “out and out liar”.

A further defence witness, Stanley Thompson, purportedly one of the Americans present, gave a version materially different from the appellant’s account and containing features not put to State witnesses (including Williams). The trial court rejected Thompson’s evidence, finding that he had tailored it to align with the State case where possible, and found both him and the appellant to be unsatisfactory and untruthful witnesses.

On the facts accepted by the trial court, the appellant was armed, belligerent, and “out for trouble”, and upon encountering the two boys he shot them deliberately, killing Smith.

Legal Issues

The appellate court was required to determine whether the conviction for murder could stand in light of the appellant’s contention that the trial court committed misdirections, including by failing to address certain features of the evidence and background circumstances in its judgment, and by making credibility findings adverse to the defence.

This aspect of the dispute primarily concerned the application of law to fact, namely the extent to which an appellate court may interfere with a trial court’s factual and credibility findings, and whether any alleged misdirection justified such interference.

In relation to sentence, the central question was whether the trial court erred in imposing the death sentence, specifically whether there were mitigating factors that rendered a sentence of lengthy imprisonment (including life imprisonment) appropriate rather than death. This involved a value-laden sentencing judgment applied to the facts found proved, including consideration of alleged influences such as “mob psychology” and provocation, and the weight of aggravating features including prior convictions and the circumstances of the killing.

Court’s Reasoning

On conviction, the Appellate Division emphasised the strength of the trial court’s credibility findings in accepting the evidence of Galant and Williams and rejecting the defence witnesses. The appellant’s attack relied in part on the assertion that the trial court had misdirected itself by failing expressly to address certain considerations, such as gang rivalry, alleged prior attacks, potential prejudice on the part of Williams, and the asserted improbability of the boys’ conduct in the area.

The appellate court applied the principle that the mere absence of mention of particular points in a written judgment does not necessarily mean that the trial court failed to consider them. Reliance was placed on R v Dhlumayo and Another 1948 (2) SA 677 (A) for the proposition that a written judgment cannot practically refer to every consideration and that it is unsafe to assume that unmentioned points were overlooked. The court noted that these contextual matters were pertinently before the trial court and formed part of the factual background, and it found nothing in the judgment suggesting that they had been ignored.

To the extent that the alleged misdirections amounted to an attack on credibility findings, the appellate court held that the record provided no adequate basis to interfere. The trial court’s credibility-based conclusion—that the appellant deliberately shot the deceased—was described as being borne out by a reading of the evidence. In consequence, the conviction for murder was not disturbed.

On sentence, the appellate court considered the mitigating factors advanced on behalf of the appellant. Counsel argued that the appellant was influenced by a form of “mob psychology” which led him to conform to the aggression of the Americans. The court rejected this submission on the basis that there was no evidence on the record to support it, and further held that the facts found did not suggest that the appellant was compelled or overawed into participation. On the accepted evidence, he joined voluntarily, displayed and used the firearm prominently, threatened his girlfriend with it, directed threats at HLK members, and occupied a central position when the confrontation occurred.

Counsel also contended that the scar on the appellant’s face, allegedly inflicted previously by HLK members, constituted provocation. The court held that this allegation rested only on the appellant’s rejected version. Even assuming it to be true, the prior incident was said (on the appellant’s own evidence) to have occurred approximately 16 months earlier, which the court regarded as incapable of constituting provocation. It was treated instead as indicative of a potential motive consistent with the threats to kill an HLK member.

The court then weighed aggravation. It described the aggravating factors as overwhelming, placing particular emphasis on the appellant’s extensive record of serious violent offences, including robbery, multiple assaults with intent to do grievous bodily harm, rape, and a prior conviction for murder with extenuating circumstances resulting in a 12-year sentence, for an offence committed about five months before the present murder. The court also stressed the circumstances of the killing as aggravating: the appellant’s deliberate search for confrontation, his explicit threats, the cold-blooded shooting of two young boys, and his triumphant shout after shooting them, reflecting a settled intention and insensitivity to consequences.

In the court’s assessment, there were no mitigating factors. It considered the prospects of reformation slim in light of prior failures of imprisonment to deter the appellant and placed decisive weight on the retributive aspect of punishment given the heinous nature of the crime and its threat to society. The court invoked S v Matthee 1971 (3) SA 769 (A) in relation to the language of extreme retribution and held that, in the circumstances, the death sentence was the only proper sentence.

Outcome and Relief

The appeal against both conviction and sentence on the murder count was dismissed. The conviction for murder was confirmed and the sentence of death was upheld. No separate costs order is reflected in the judgment.

Cases Cited

R v Dhlumayo and Another 1948 (2) SA 677 (A).

S v Matthee 1971 (3) SA 769 (A).

Legislation Cited

Criminal Procedure Act 31 of 1977, section 316A.

Arms and Ammunition Act 75 of 1969, section 2.

Arms and Ammunition Act 75 of 1969, section 36.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the trial court’s acceptance of the State witnesses and rejection of the defence evidence disclosed no misdirection warranting appellate interference. The absence of explicit discussion of certain contextual considerations in the trial court’s judgment did not establish that such matters were ignored. The conviction for murder therefore stood.

On sentence, the court held that the alleged mitigating factors of “mob psychology” and provocation were unsupported on the record or inconsistent with the facts found proved, while the aggravating factors—particularly the appellant’s history of violent offences, the deliberate and cold-blooded nature of the killing, and the absence of remorse—were overwhelming. The court held that the death sentence was the only proper sentence and dismissed the appeal.

LEGAL PRINCIPLES

An appellate court will not readily interfere with a trial court’s factual and credibility findings, particularly where the trial court has made clear and strong credibility assessments and where the record provides no adequate basis to depart from them.

The fact that a trial court’s written judgment does not expressly mention every consideration raised on the evidence does not, without more, justify an inference that the court failed to consider those matters; the absence of mention is not itself a misdirection.

In sentencing for murder, alleged mitigating considerations must be supported by evidence on the record and must have a factual foundation consistent with the findings made. Where the aggravating factors are overwhelming, including a pattern of serious violent criminality, deliberate intent, and the circumstances of a cold-blooded killing, a court may conclude that retribution predominates and that the death sentence is the only appropriate sentence on the facts before it.

S v Bessick (376/90) [1991] ZASCA 154 (21 November 1991)