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[1993] ZASCA 127
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S v Abrahams (32/92) [1993] ZASCA 127 (20 September 1993)
Case nr 32/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between :
MOHAMMED YUSUF
ABRAHAMS
Appellant
and
THE STATE
Respondent
CORAM
: HEFER JA
KANNEMEYER, HOWIE AJJA
HEARD
: 1993-09-07
DELIVERED
: 1993-09-20
JUDGMENT
2
KANNEMEYER, AJA
The appellant was charged before the
court
a quo
with the murder of his wife and with theft. He was acquitted
on the theft charge and no more need be said thereanent. He was convicted
on the
count of murder and sentenced to five years' imprisonment of which half was
conditionally suspended. The period of suspension
was not fixed. The appellant
now appeals with leave of the trial court against both his conviction and the
sentence imposed.
The appellant was married to the deceased, Helena Elizabeth Potgieter, in
accordance with Muslim rites, on 3 March 1980. The marriage
was initially happy
and two sons were born of it. However, in 1986, relations between the appellant
and his wife started to deteriorate.
The appellant had cause to suspect her of
infidelity and she left the common home from time to time for short periods. The
appellant
was devoted to her and did all in his power to
3
retain her affection. He provided generously for her and bought her a
house in Bezuidenhout Valley and a motor car.
In November 1989 the
deceased left the appellant with the two children and moved to Parys where she
lived with a certain Anthony Buytendag
with whom she had formed an association.
The appellant stayed alone in the Bezuidenhout Valley house over Christmas but
the deceased
visited him on 26 December 1989 and asked for R200 which she needed
because their younger son was ill. This he gave her and she left
again.
She returned to the appellant on 2 January 1990 together with their
younger son. They were sitting in the lounge and the deceased
complained of
being hungry. The appellant sent the domestic worker, Harriet Mokutu, to a
neighbouring cafe to buy bread. She had
her baby on her back and, as the
appellant's son wanted to go to the cafe with her, her friend Thomas, who was
working on the premises,
accompanied them. The appellant and the deceased were
then alone together in
4
the house. There is no reason to believe that this
situation
was engineered by the appellant, but the result is that
his
evidence stands alone as to what followed thereafter.
He says that the deceased opened her handbag to take
out
a cigarette and he saw an envelope in the bag. In it
he
found a Christmas card from Tony Buytendag to the deceased.
The appellant tore the card in half and threw it on the
floor. This portion of evidence is corroborated by that of
detective warrant officer Baard, the investigating officer,
who found the card on the floor. It can be seen next to the
open door in the photograph, exhibit C4. The message printed
on the card is couched in affectionate terms as appears from
exhibit E. The appellant says that when he read the card he
became angry and said to the deceased :
"I am sick and tired of this nonsense. I am going to sort Tony out once
and for all now". (His evidence continues). "I went to the
back, I locked the
kitchen door. My sliding door was open. Then I said to her : 'come, let us go, I
am going to show once and for
all, I am going to sort him out, because he is
using you people too much' And as I was coming towards her, she said to me in
Afrikaans
: 'Jou vark, ek wens hy maak jou vrek' .
5
All I remembered, I pulled the gun, and I just started shooting. Then she
got up. She stood up and said to me 'Jingles [his nickname]
I love you, take me
to hospital, you shot me in the hip'. I ran, I grabbed her. I grabbed her and I
was going towards the door, realised
what I have just done. As I came through
the door where the passage is, while holding her, I stumbled with her and the
gun just went
off in my hand and I started shaking. I saw her eyes going back
and kept saying 'Nunny Nunny' [deceased's nickname] and shaking and
shaking and
I thought she was deceased. I put her down, I went to the sliding door and I
locked it and I went out. I took the car
and went to go and find my
child..."
It is necessary to refer to the "gun" in greater
detail.
He had bought a .38 revolver and four rounds of
ammunition a
few weeks before the incident on the black market
because he
had been told that Tony Buytendag, whom he considered to
be a
ruffian, had threatened to assault him. He kept the
revolver
on his person at all times. He had no experience of
firearms
and did not know what make the revolver was nor could he
depose to its condition. After leaving the house he threw
the revolver away and the police have been unable to find it.
The appellant says that before he left the house he opened
6
the revolver to see how many bullets were left, "because I was going to
shoot Tony, I was a very angry man ..."
The pathologist who
conducted the post-mortem examination on the body of the deceased conceded that
when the third gunshot wound was
inflicted which, as will be shown presently ,
pierced the deceased's lung she could have reacted as described by the
appellant, leading
a layman to conclude that she was dead. However she was not.
When the domestic worker returned with her friend, the deceased was
still alive
and was lying in the passage just inside the front door, the glass panel on the
side of which she broke with an occasional
table. She was calling for help. The
door was opened and her half-brother who happened to arrive at that stage,
rushed her to hospital
where she died later that day.
The appellant admits firing the two shots as a result of which the
deceased died. His defence is that when he fired the first two
shots he lacked
criminal responsibility for his
7
acts resulting from non-pathological causes while the third shot, he
says, was fired accidentally.
It is convenient at this stage to
consider the pathologist's evidence concerning the injuries suffered by the
deceased. He agrees
that two of the bullet wounds, those which the appellant
claims to have been caused by the first two shots fired by him, were probably
fired while the deceased was sitting down as is the appellant's case. They are
both situated in the area of the deceased's right
groin. One, referred to as
wound number 2 in evidence, is of little consequence but the wound referred to
as number 3 passed through
the abdominal aorta, the inferior vena-cava and the
right renal artery and the bullet exited over the right buttock, through the
right side of the pelvis. The third shot, referred to as wound number 1 in the
pathologist's report, is the one which the appellant
claims to have fired
accidentally. It struck the deceased in the left chest, passed through the left
pleural cavity, through
8
the left lung and the bullet came to rest in the left lobe of the liver.
There was tattooing round the entrance wound indicating that
the shot was fired
at close range. This, to some extent, supports the appellant's version that the
shot causing this injury was fired
as he was carrying the deceased towards the
front door. It does not, however, necessarily support the appellant's claim that
the
shot was fired accidentally.
Mention must also be made of the
blood stains found after the incident. The deceased was sitting in the couch
which can be seen on
the left side of the photograph, exhibit C1. Blood-stains
can be seen in the deceased's shoes which are on the floor in front of
the
couch. They can also be seen on the white floor rug in front of the couch; see
also exhibit C2. The deceased was found by Harriet,
as already mentioned, near
the front door. The blood that was found there is ringed in photograph exhibit
C4. There was no blood
between these two areas and it seems unlikely that
the
9
deceased walked or crawled from the couch to the front door.
The pathologist was asked which shot, in his opinion, had
probably caused the death of the deceased.
He replied :
"In my opinion, the one which involved the abdominal aorta, the inferior
vena cava and the right renal artery, in view of the fact
that these have
directly involved major blood vessels, certainly the wound through the chest
which involved the right lung and then,
after that, the liver, would also have
caused a considerable amount of shock and blood
loss".
He had earlier said of the chest
wound:
" I think eventually this had been a fatal wound, in view of the fact that
is traversed the left lung which is a highly vascular structure,
as well as
terminally involving the liver."
At this
stage it is necessary to consider the two defences separately. I start with that
of non-pathological criminal incapacity when
the first two shots were
fired.
In
E) v Kaloqoropoulus
1993(1) SACR 12(A) at 21i, Botha
JA said :
"The criminal incapacity which is relied on in this case is of the kind
which is described in judgments of this Court as non-pathological
10
incapacity [see, for example
S v Laubscher
1988(1) SA 163(A),
S v
Calitz
1990(1) SACR 119(A) and
S v Wild
1990(1) SACR 561(A)]. It has
been said that in a case of this kind psychiatric evidence is not as
indispensable as it is when criminal
incapacity is sought to be attributed to
pathological causes. On the other hand, an accused person who relies on
non-pathological
causes in support of a defence of criminal incapacity is
required in evidence to lay a factual foundation for it, sufficient at least
to
create a reasonable doubt on the point, and ultimately, always, it is for the
Court to decide the issue of the accused's criminal
responsibility for his
actions, having regard to the expert evidence and to all the facts of the case,
including the nature of the
accused's actions during the relevant
period."
Once the foundation has been laid the
onus
is on
the
State to rebut it. If the claim of
non-pathological
incapacity may reasonably possibly be true an accused
person
will be entitled to an acquittal; see
S v Mahlinza
1967(1)
SA 408(A) at 419 A-C;
S v Wild
1990(1) SACR 561(A) at 564
a-
d. But the caveat entered by Ogilvie Thompson JA (as he
then
was) in
R v H
1962(1)(SA) 197(A) at 208 B must be borne
in
mind, namely :
"As remarked earlier, defences such as automatism
and amnesia require to be carefully scrutinised. That they are supported
by medical evidence,
11
although of great assistance to the Court, will not necessarily relieve the
Court from its duty of careful scrutiny for, in the nature
of things, such
medical evidence must often be based upon the hypothesis that the accused is
giving a truthful account of the events
in
question."
In the present case the
appellant called a psychologist, Mr Redelinghuys, to support his contention that
he was not criminally responsible
for firing the first two shots. Mr
Redelinghuys relied, to a large extent, on information obtained from the
appellant and, in so
far as the incidents surrounding the shooting are
concerned, entirely on this information. The account that the appellant gave to
Mr Redelinghuys agrees with his evidence-in-chief. It is necessary to determine
whether this account may reasonably possibly be true,
for if it is not, the
findings of Mr Redelinghuys are based on unacceptable premises.
But first it is necessary to consider the conclusions to which Mr
Redelinghuys came. He considers that the appellant is able to handle
emotional
pressure and exhibits no signs of any explosive tendency. He gave no indication
that he was
12
naturally violent or aggressive.
He says :
"Ek vind by die beskuldigde dan 'n enkele geisoleerde episode van onvermoe
om 'n impuls te weerstaan, welke onvermoe aanleiding gegee
het tot 'n enkele
aggressiewe gedragshandeling, wat tot die dood van sy vrou aanleiding gegee het.
Voor hierdie episode was daar
geen tekens van algemene impulsiwiteit of
aggressiwiteit in sy persoonlikheid of in sy gedrag nie. Beskuldigde se optrede
en gedrag
ten tye van die voorval herinner sterk aan die sogenaamde 'Geisoleerde
eksplosiewe versteuring'... Ek moet egter sterk beklemtoon
dat beskuldigde na my
mening wel blootgestel was aan erg voorafgaande psigo-sosiale stressors, en dat
dit na (sic) my mening is dat
sy spesifieke gedrag, 'n uiting was van frustrasie
en woede, opgebou oor jare been as gevolg van spesifieke druk binne sy
huwelik."
However, though there was a close
resemblance between the
appellant's behaviour and that found in an isolated explosive
disorder his conduct on the day in question cannot be so
described because in a true case of isolated explosive
disorder the degree of aggression expressed during the
episode is grossly out of proportion to any precipitating
psycho-social stressor whereas in the present case the
13
appellant's actions were not disproportionate to
the
preceding psycho-social pressure. The only explanation
that
Mr Redelinghuys can give of the appellant's behaviour at
the
relevant time is that over the years he had tried to keep
his
wife but that her final conduct with Buytendag made him
realise that he meant nothing to her. This exposure
to
humiliation and the final rejection of him as a person
could
have caused him to snap both psychologically and
emotionally
and that he momentarily lost control of himself and fired two
shots in fury and frustration, which hit her.
Under cross-examination Mr Redelinghuys said that
the
emotional pressure at that stage was so great that
the
appellant did not act rationally ("rasioneel opgetree het").
Asked what he meant by this he answered :
"Dat hy nie volgens die besef van sy insig opgetree het nie; dat hy nie
wat hy rasioneel sou weet dat dit gevaarlik of verkeerd is,
dat hy nie volgens
daardie besef opgetree het nie of volgens sy gevoel".
The trial court, in a somewhat brief judgment,
rejected
14
the appellant's version of the events in question. The
conclusion was reached that :
"the accused was not 'deurmekaar' as the defence alleged but was angry and
fired at the deceased with intent to kill. His anger was
not such as to render
him unable to control his actions."
On a
reading of the appellant's evidence one does not gain a satisfactory impression.
Having earlier said that he remembered "pulling"
the revolver from his back and
starting to shoot and that he remembered pulling the trigger, he later said that
he heard the "gun
going bang, bang" and that two shots went off. He would not
give a straightforward reply to the question whether he remembered firing
two
shots. He answered that two shots went off and that he must have fired these
shots but did not know that he was shooting.
We have here to do with a man who is able to control his emotions and who
is not given to violence. The woman to whom he is devoted
has humiliated him in
the past and her fidelity is suspect. She heaps abuse on him when he finds an
affectionate Christmas card she
has received from her
15
paramour. He says that he became angry and fired two
shots.
Although he claims not to know in what direction he
fired,
they both hit her on the upper thigh close to each other, so
he must have been facing her as she sat on the couch. It was
suggested that, had he known what he was doing and had he
intended to kill her, he would have aimed at a more
vulnerable point of her body, but it must be remembered that
he was totally inexperienced in the use of firearms, that the
deceased was sitting and that he fired from a standing
position. One is forced to the conclusion that he
deliberately drew the revolver and fired it. All he claimed
not to know was whether he shot at the deceased or merely
fired random shots. His later attempt to suggest that he was
not even aware that he had fired shots is unconvincing. When
it was put to him in cross-examination that he must have
intended the first two shots to hit the deceased, he
answered :
"If I wanted to kill her, why would I just shoot? I shot anywhere, I did
not know I was shooting."
16
This, coupled with his answers to questions such as
:
"Yes, now you just said you shot
twice?...
Yes, the gun went off twice"
and
"So you remember two
shots?... Two shots went off"
"No, no, the question is do you remember that you
fired two shots?... Must have been."
satisfies me that he was
attempting to water down the effect of his original evidence. It is also too
much of a coincidence to accept
that the two shots should strike the deceased in
such close proximity had they been random shots.
Had the appellant
fired the shots, not appreciating what he was doing, one would have expected
different conduct from him thereafter.
His conduct as disclosed by the evidence
was inexplicable. Without further ado, and merely because, according to him, he
thought
his wife was dead, he leaves her locked in the house and takes no steps
to verify his conclusion or to seek help should it be incorrect.
He drives away
and picks up his son and thereafter, not having been able to find Buytendag,
drives around aimlessly until about half
past five that afternoon when he
telephones the
17
deceased's sister-in-law, Mrs Terblanche. According to the appellant he
said to her : "Ek dink ek het Nunny doodgeskiet". According
to her the appellant
told her he had shot the deceased but would not tell her where she was. From
this it appears that he was not
certain that the deceased was dead when he left
the house.
That the appellant was angry, and justifiably so, at the
time of the shooting is clear but on an analysis of his evidence I am satisfied
that he must have been aware of what he was doing and have consciously shot at
the deceased. At that stage he may well not have specifically
intended to cause
her death but he must have foreseen the possibility of her death resulting and,
this notwithstanding, he fired
the shots reckless as to the
consequences.
The State has, in my view, discharged the onus of
proving that the appellant was criminally responsible for the consequences of
the
first two shots, one of which was fatal, on the basis mentioned above and
that he was, accordingly,
18
correctly found guilty of murder.
The trial judge rejected
the appellant's version concerning the circumstances under which the third shot
was fired. In view of the
above finding it is not necessary to consider whether
this conclusion was correct.
There remains the question of sentence.
Miss Robinson
who appeared for the appellant advanced all the arguments
which she could have in this regard. The appellant has no relevant previous
convictions. He was in steady employment when he committed the offence and was
highly thought of by his employer. He was 46 years
old at the time. He is
responsible for the welfare of his two young sons. The crime was not
premeditated and was the consequence
of severe provocation. The appellant has
shown remorse and it is unlikely that he will commit a similar crime in future.
In the circumstances,
it was submitted, imprisonment would serve no purpose and
would merely have a negative effect upon the appellant. Accordingly, it
was
submitted, the sentence
19
should be totally suspended.
However, the trial court was
conscious of the mitigating factors and the leniency of the sentence indicates
that the learned Judge
took them into account. No misdirection on the trial
court's part has been shown and there is no marked disparity between the
sentence
and what, in my view, would be a proper one. See, in this respect, the
alteration on appeal of the sentence in
S v Laubscher
1988(1) SA 163(A)
at 173 F. Nor does the fact that the learned trial judge found that the
appellant fired the third shot with the
intention of killing the deceased and
that, on appeal, it has been unnecessary to determine whether this finding was
correct, alter
the position. The appellant is guilty of murder and the number of
fatal shots fired by him with the intention of killing his wife
is not of
material importance in determining an appropriate sentence in this case. Crimes
of this nature are prevalent and the sentence
should act as a deterrent to
others. This will not be achieved if the sentence is wholly
20
suspended.
The suspension of two and a half years of the
sentence will be operative for five years. The appeal is dismissed.
KANNEMEYER, AJA
HEFER, JA
CONCUR
HOWIE, AJA