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[1994] ZASCA 48
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S v Mahala and Another (464/92, 465/92) [1994] ZASCA 48; [1994] 4 All SA 198 (A) (29 March 1994)
464/92, 465/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
HERBERT SIPHO MAHALA
1st Appellant
XOLANI MAXWELL MAHALA
2nd Appellant
versus
THE STATE
Respondent
CORAM
: JOUBERT, E.M. GROSSKOPF, NESTADT, F.H. GROSSKOPF
JJA
et
VAN COLLER AJA
Date of Hearing
: 7 March 1994
Date of Judgment
: 29 March
1994
2
JUDGMENT
JOUBERT
JA:
The two appellants were charged before
ZIETSMAN JP and two assessors in the Eastern Cape Division, sitting in
Grahamstown, with five
counts of offences allegedly committed by them in the
district of Stutterheim in South Africa, within the jurisdiction of the trial
Court. Count 3 related to murder. I shall refer to appellants 1 and 2 as accused
1 and 2 respectively. Each of them was found guilty
as charged. On the murder
charge each of them was sentenced to death, the trial Court having found that
the death sentences were
in the circumstances the only proper sentences to be
imposed. The accused exercised in terms of sec 316A of Act 51 of 1977 their
automatic right of appeal to this Court against their convictions and death
sentences in regard to the murder charge. They obtained
leave from the Court
a quo
to appeal to this Court in respect of their convictions on
3
all other counts.
Special Plea
When the accused were called upon to plead to the charges in the Court
a quo
they raised a special plea of lack of jurisdiction in terms of sec
106(1)(f) of Act 51 of 1977, viz. that in breach of international
law they had
been unlawfully arrested in the Republic of the Ciskei and/or unlawfully removed
from the Ciskei
without their consent
and brought to South Africa. The
onus was on the State to prove that the trial Court had jurisdiction to try
them. After hearing
evidence and argument the Court
a quo
dismissed the
special plea. Its decision on the jurisdiction issue has been reported as
S
v. Mahala and Another 1992(2) SACR 305(E)
I shall first deal with the relevant facts surrounding the arrests of the
accused who lived at Mlungisi location near Stutterheim
in South Africa.
Geographically the Ciskei used to be an integral part of South Africa until it
became a sovereign independent state
on 4 December 1981 by
4
virtue of the provisions of the Status of Ciskei Act 110 of 1981.
Unfortunately the border between the Ciskei and South Africa is
not clearly
demarcated
in situ
. Nor are there border posts between the two countries.
While King William's Town is situated in South Africa it is surrounded by
Ciskeian territory. The tarred road which links King William's Town with
stutterheim passes intermittently at irregular intervals
from one country's
territory to that of the other. Thus the first 5 km of the road from King
William's Town is on South African territory,
the next 35,8km is on Ciskeian
territory and the remaining 13,7km to Stutterheim is in South Africa. The
Governments of the Ciskei
and South Africa by agreement jointly maintain the
road while their citizens, including members of their police forces, freely use
it for travelling purposes.
It was common cause that both accused proceeded on 5 February 1991 from
Stutterheim to the shop of a certain Melani in Tolofiyeni
location in the
Ciskei. They offered to
5
sell him a generator which they had at their home in Melungisi location
near Stutterheim. It was agreed that Melani would go the next
morning to inspect
the generator. On 6 February 1991 the accused returned to Melani's shop. Melani
took his nephew Balulu (also known
as Monwabisi) and accused 2 in his bakkie to
have a look at the generator. Accused 1 remained at Melani's shop pending their
return.
After having inspected the generator in Melungisi location Melani
proceeded homewards with his two passengers.
In the meanwhile Warrant Officer D.J. Pieterse stationed at Stutterheim
sent a radio message to the police in King William's Town
requesting them to
intercept Melani's bakkie with its three occupants
en route
from
Stutterheim to King William's Town. The interception was to occur on the
Stutterheim road or in King William's Town. The occupants,
who were wanted for
an interview in connection with a murder, were to be kept in King William's Town
pending the arrival of the police
from Stutterheim.
6
Acting on this radio message a group of five
policemen in uniform under the command of Warrant Officer Gert Pieterse
proceeded in
two police vehicles from King William's Town towards Stutterheim.
They had explicit instructions not to arrest or detain any person
in the
Ciskei.
Sergeant Erasmus, a member of the group of five policemen, testified for
the State. He stopped Melani's approaching vehicle on a portion
of the road that
was in the Ciskei. No firearms were pointed at the occupants of the bakkie. Nor
were they formally arrested. He
asked Balulu and accused 2 to alight from the
bakkie and informed them that the police at Stutterheim wanted to question them.
He
asked
them to accompany the police in the yellow police van to
Stutterheim. They voluntarily agreed to do so. Melani was likewise approached
by
Warrant Officer Gert Pieterse who removed his firearm and promised to return it
to him at Stutterheim. Melani also voluntarily
agreed to return with
7
his bakkie to the police station in Stutterheim
for
interrogation. Erasmus testified as follows regarding
the
voluntariness of Balulu, accused 2 and Melani to return
with
the police to Stutterheim for questioning and his inability
to do anything had they refused to co-operate with the
police, viz:
"Nou het enige van die drie insittendes u enige
teken of aanduiding gegee dat hulle nie saam met
julle wou gaan nie? ...
Nee U Edele, hulle was heeltemal yrywillig om
saam
te gaan.
Wat sou u gedoen het as hulle enige teken gegee
het
dat hulle wou nie gaan nie? ...
U Edele, soos ek reeds gesê het, ons het nie, geen
arrestasiemagte in die Ciskei nie, ek sou hulle
noodgedwonge moet laat gaan.
HOF
: U sou hulle laat wat? ... Ek sou hulle
noodgedwonge moes laat gaan, ek kon hulle nie
dwing
om saam te gaan nie, U Edele."
Melani and Balulu also testified on behalf of the
State. Their evidence corroborated in all material aspects
the evidence of Erasmus regarding the circumstances of the
interception by the police of Melani's bakkie and the return
of Melani, Balulu and accused 2 with the police to
8
Stutterheim. Melani and Balulu affirmed that they
were not
ordered but
requested
by the police to return to Stutterheim for
something to be investigated. Balulu under cross-examination tersely stated: "I
agreed
because I was being requested. If I was forced I would have
resisted."
At the Stutterheim Police Station Melani's firearm was returned to him.
He and Balulu noticed that the police had arrested accused
2. This was confirmed
by Warrant Officer D.J. Pieterse.
Accused 2's evidence regarding the interception by the South African
police of Melani's bakkie was that the police had drawn their
firearms which
they held in their hands. He was instructed to go to the back of the bakkie
where he was searched. Balulu and he were
instructed to get into the police van.
He obeyed because the police were people of the law. That was also his attitude
during cross-examination:
"
Miss Von Hasseln to Witness
: So Mr Mahala you
9
went with them for no reason but the fact that
they
were policemen, is that
what you say? ...
Yes."
He was not arrested at the
roadside in the Ciskei. Nor was
he arrested in Stutterheim. He heard
for the first time in
East London that he had been
arrested.
As regards accused 1 the scene then shifted to
the
Ciskei since Warrant Officer D.J.
Pieterse ascertained from
Melani in Stutterheim that accused 1 was
waiting at his shop
in the Ciskei. Arrangements were then made with Melani to
return to his shop where he could point out accused 1 to the
Ciskeian Police. Warrant Officer D.J. Pieterse enlisted the
support and co-operation of the Ciskeian Police in order to
arrest accused 1 so that the latter could be tried in a South
African Court for offences allegedly committed in South
Africa. Sergeant Yiba of the Ciskeian Police was made
available for the task.
According to Yiba's evidence on behalf of the
State
he travelled on 6 February 1991 with Melani in his bakkie to
10
the latter's shop in Tolofiyeni. A South African constable, Nondala,
accompanied them. At the shop Melani pointed out accused 1 to
Yiba who proceeded
to grab hold of accused 1 inside the shop. Accused 1 struggled to free himself.
Nondala came to Yiba's assistance
to subdue accused 1. Yiba informed the latter
that he was a member of the Ciskeian Police Force and arrested him because he
was wanted
by the South African Police for murder and robbery committed in
Stutterheim. The arrest was made at the request of Warrant Officer
D.J.
Pieterse. He took accused 1 to Zwelitsha Police Station in the Ciskei where
accused 1 was detained at llh05 according to the
occurrence book.
Captain McLaren testified for the State. He was the investigating officer
in the case and was stationed at East London. On 6 February
1991 he proceeded
with Lance Sergeants Sabbagh and Petzer to the Stutterheim Police Station where
he received accused 2 who was put
in leg irons. They then travelled to Zwelitsha
Police Station which he and
11
Sabbagh entered while accused 2 and Petzer waited in the police vehicle.
Yiba was present in the charge office. Accused 1 was fetched
at McLaren's
request. Sabbagh interpreted for him while he informed accused 1 that he was a
suspect in a murder case at Stutterheim
and that accused 2 had already been
arrested. He told accused 1 that if he was willing to accompany him to South
Africa he could
do so but if he was unwilling then his extradition from the
Ciskei to South Africa would be applied for by McLaren. Accused 1 expressed
his
willingness to accompany him to South Africa. McLaren thereupon made the
following entry in his pocket-book:
"14.35 Interviewed Herbert Mahala he was informed that Xolani Mahala had
been arrested. He is willing to accompany me to East London."
After the entry had been translated to him by Sabbagh accused 1 signed it
in their presence, including Yiba. According to the cell
register accused 1 was
released by Sergeant Nkombisa at 14.40p.m. McLaren then left the charge
12
office with accused 1 and Sabbagh. Outside at the police vehicle accused
1 was placed in leg irons as a safety precaution because
both appellants were to
travel in the same police vehicle. They then proceeded to East London where
accused 1 was formally arrested.
Accused 1 testified that the only occasion he signed something in the
charge office at Zwelitsha was when his personal belongings
were returned to
him. He denied having signed McLaren's pocket-book. The signature, however,
looks similar to his. He was never asked
whether he wanted to go to South Africa
or not. He was instructed to go with McLaren. He was never told by anybody at
any place,
including East London, that he had been arrested.
On the factual issue concerning the arrests of the accused the Court
a
quo
, correctly in my judgment, rejected the version of the accused where it
was in conflict with that of the State witnesses. It found
that the accused were
not unlawfully arrested by the South African Police in the
13
Ciskei. Accused 1 and accused 2 were lawfully arrested by them in East
London and Stutterheim respectively. The crucial question which
then arose for
decision was whether or not the South African Police unlawfully abducted the
accused from the Ciskei or Ciskeian territory
in violation of public
international law and/or South African law.
In
Nduli and Another v Minister of Justice 1978(1) SA 893(A)
the
appellants were unlawfully and forcibly seized in Swaziland and abducted to
South Africa by South African Police who had strict
orders not to apprehend them
there. This Court held on the narrow basis that since the seizure and abduction
of the appellants were
not authorized by the South African State, public
international law did not preclude them from being tried in South Africa on
criminal
charges which were otherwise cognizable by a South African Court. No
international delinquency was committed because the South African
State had not
itself performed any act of sovereignty in Swaziland as a foreign state. It may
be that
14
the soundness of this Court's
ratio decidendi
in the
Nduli
case may have to be reconsidered in future on a wider basis of recent
developments in international public law and South African law
should the
occasion present itself. Compare a short discussion in 1991(54) THRHR p667: "Van
die beginsel dat internasionale aanspreeklikheid
vir 'n staat selfs uit
ultra
vires
optrede van 'n staatsamptenaar kan ontstaan wat in amptelike
hoedanigheid optree, het niks tereg gekom nie."
In
State v Ebrahim 1991(2) SA 553 (A)
this Court held that a South
African Court has no jurisdiction to try an accused who had been abducted
forcibly
and
unlawfully
from Swaziland by instruments
(
werktuie
) or agents of the South African State and brought back to South
Africa where he was handed over to the police and arrested by them.
This
decision was based squarely on fundamental principles of Roman-Dutch law which
did not confer a discretion on a court whether
or not to exercise jurisdiction
over such person in those circumstances (pp.569A, 579F-G, 582B, 584I).
The
15
applicable fundamental principles of Roman-Dutch law as enunciated by
this Court (p 582B-E) are in accordance with principles of public
international
law for the maintenance of the territorial sovereignty of States and the good
international relations between States;
the protection and upholding of human
rights; the promotion of the proper administration of law according to the rule
of law; and
the prevention of abuse of the process of criminal proceedings. See
a discussion of
Ebrahim's
case by Prof Cowling in (1991) 4 SA Journal of
Criminal Justice p384-388 as well as Prof Dugard's article in (1991) 7 South
African
Journal of Human Rights p199-208. In
Ebrahim's
case this Court
accordingly set aside the conviction and sentence imposed on
Ebrahim
by
the trial Court in the Transvaal Provincial Division.
Until recently the English Courts have more or less consistently applied
the principle of
male captus bene detentus
, viz that where an accused was
in lawful custody before an English Court which had jurisdiction to try him
the
16
English Court had no authority to go into the circumstances
in which he had been brought to England. Such
circumstances
were no concern of an English trial Court. The accused
was
not entitled not to be tried. Nor could he insist on
his
discharge. See
R v 0/C Depot Battalion
,
RASC
,
Colchester
;
Ex Parte Elliott
[1949] 1 All E R 373
(KB)
. That was the
approach of the courts in Scotland and Canada and still is
that of the American Courts. The House of Lords in
Bennett
v
Horseferry Road Magistrates' Court and Another [1993] 3 All
E
R 138 (HL)
was called on to decide the following
certified
question of law (p143c):
"Whether in the exercise of its supervisory jurisdiction the court has
power to inquire into the circumstances by which a person has
been brought
within the jurisdiction and if so what remedy is available if any to prevent his
trial where that person has been lawfully
arrested within the jurisdiction for a
crime committed within the jurisdiction."
In his speech Lord Griffiths stated the
ratio
decidendi
as follows (p151 b-d):
"The courts, of course, have no power to apply direct discipline to the
police or the prosecuting
17
authorities, but they can refuse to allow them to take advantage of abuse of
power by regarding their behaviour as an abuse of process
and thus preventing a
prosecution.
In my view your Lordships should now declare that
where process of law is
available to return an accused to this country through extradition
procedures
our courts will refuse to try him if he has been
forcibly
brought within our jurisdiction in disregard of those procedures by a process to
which our own police, prosecuting or other executive
authorities have been a
knowing party.
If extradition is not available very different considerations will arise on
which I express no opinion." (My
underlining).
This answer to the certified
question of law adopted by the
majority of the members of the Court
was stated by him in the
following terms (p152j):
"The High Court in the exercise of its supervisory jurisdiction has power to
inquire into the circumstances by which a person has
been brought within the
jurisdiction and if satisfied that it was
in disregard of extradition
procedures
it may stay the prosecution and order the release of the
accused." (My underlining).
The conclusion
arrived at in this decision of the House of
18
Lords is a departure from the principle of
male captus bene detentus
in a limited manner, viz where an accused has
been brought
forcibly
by an abuse of process within the jurisdiction of
an English Court
in disregard of available extradition procedures to bring
him to England
.
In the present matter the proven and accepted facts
establish
that the South African Police did not unlawfully
abduct the accused
from the Ciskei or Ciskeian territory in !
violation of public international law and/or South African . law. Accused
1 was arrested by and released from custody by the Ciskei
Police in the Ciskei.
He
voluntarily
agreed to return to South Africa after he had been
informed of the charge against him. He had been given a
choice
either to
return or to be extradited. There was no duty on Captain McLaren to explain to
him the exact nature and details of the
extradition proceedings in terms of
clause 5 of the Extradition Treaty (published pursuant to Proclamation No 10 of
1987 in Gazette
No 10586 on 23 January 1987) between the
19
Ciskei and South Africa. Leg irons were put on
him as a mere precautionary measure when he was taken to the vehicle in which he
was
to return to South Africa. He acquiesced in it. He was arrested in East
London. These facts are clearly distinguishable from those
in
Ebrahim's
case. There was no violation of the sovereignty of the ciskei. Nor was there an
infringement of his fundamental human rights. His
return to South Africa was not
a breach of South African law. The position of accused 2 relating to his
voluntary
acquiescence to travel with the South African Police from the
roadside in the Ciskei to Stutterheim where he was arrested likewise
was not in
conflict with the sovereignty of the Ciskei, his fundamental human rights or
South African law. In his case there was
likewise no breach of South African law
and accordingly the facts applicable to him are clearly distinguishable from
those in
Ebrahim's
case.
In the result the Court
a quo
correctly dismissed the special plea
raised by accused 1 and accused 2 to its
20
jurisdiction.
Death
Sentences
After the Court
a quo
disposed of the special
plea the accused pleaded guilty to all the counts (including the murder count
3). They tendered a written
plea of guilty in terms of
sec 112(2)
of the
Criminal Procedure Act 51 of 1977
. According to count 3 the accused on 23
January 1991 unlawfully and intentionally killed Elma Cawthorn (the "deceased").
In their
written plea they admitted having "caused the death of Elma Cawthorn by
pushing her into the Kubusie River whilst her hands were
tied. We foresaw at the
time that she may drown and thereby die, but we nevertheless continued with our
act." They also admitted
knowing at the time that they were acting
unlawfully.
The State elected to lead evidence on the merits with the object of
establishing beyond a reasonable doubt that the accused had the
direct Intention
(
dolus directus
) to drown the deceased. The accused, however, claimed
that the
21
evidence merely established
dolus
eventualis
their part. In my judgment the trial Court correctly found on the
proven facts that the accused had
dolus directus
to kill the deceased by
drowning.
In this Court the accused did not attack their convictions as such save
for the finding of
dolus directus
. Their attack was directed to the
question whether or not the death sentences were the only proper sentences in
this case.
An important factor to consider is the
circumstances in which
the murder was committed during the
night of 23 January 1991. The widow Olga Cawthorn ("Olga") then 70 years
of age lived on the farm "Little Go" situated on the Cathcart
side of
Stutterheim. From time to time the deceased, her sister, then aged 69 years,
used to come and stay with Olga. On the night
in question after they had retired
to their separate bedrooms accused 1 came under a pretext to pay Olga some money
owed her by certain
people. Accused 1 grabbed hold of her extended hands through
an open
22
window while accused 2 forced his entry into the
house. Both accused then with a common purpose launched a long, cruel, barbarous
attack on the two women. They held them by their throats, hit them with their
fists in their faces, slapped them hard in their faces
and brutally kicked them.
Their motive was greed. Accused 1 demanded the keys and papers of Olga's bakkie
which was locked in her
outside garage. Accused 2 wanted money. Olga gave him
R80. The accused took them clad in their flimsy nightdresses to the parked
bakkie where they tied their hands behind their backs with wire. They were
pushed onto the open back of the bakkie and driven through
Stutterheim towards
the Kubusi river near a very deep pool approximately 2 to 3 km outside
Stutterheim in the direction of King William's
Town. This spot was approximately
14 km from Little Go. Olga managed to get her hands free unnoticed but kept them
as if they were
still tied. Olga was flung by the accused into the deep pool.
She could not swim. The accused then fetched the deceased and
23
also threw her into the river. Soon afterwards
Olga saw the deceased floating on the surface of the water. Olga freed her hands
and
courageously made her way to the opposite side of the river. Despite efforts
of the accused to submerge her she managed to escape
to Stutterheim.
On 24 January 1991 Dr Wingreen conducted a postmortem examination on the
body of the deceased. He found that she was still alive when
she entered the
river. The cause of her death he ascribed to multiple injuries and drowning. In
his opinion she could have died from
her injuries even if she had not entered
the water. There were also signs of strangulation.
The personal circumstances of the accused have much in common. Both have
no previous convictions involving violence, both showed remorse
afterwards and
co-operated with the Police after their arrests. The important difference
between them is that accused 1 was 31 years
of age when the murder was committed
whereas accused 2 was merely 21 years
24
old.
As against the mitigating factors there are some serious aggravating
factors. The accused deliberately planned a callous premeditated
attack on Olga
and the deceased, an elderly defenceless couple living alone in their isolated
farmhouse. Once the accused succeeded
in their purpose to rob Olga of her
bakkie, money, shotgun and other articles there was no need to endeavour to
murder both of them
in the ruthless and heartless manner, as testified to by
Olga. The Court
a quo
correctly took cognizance of the fact that "the
brutal attacking and murdering of elderly people living alone in their isolated
farmhouses,
is prevalent here in the Eastern Cape". It is in the interests of
society that such elderly people should not be exposed to murderous
attacks by
criminals.
Taking all the circumtances of this case into account I am of the view
that the brutal murder of the deceased is so clamant for extreme
retribution
"that society
25
demands the appellant's destruction as the only
expiation for his wrongdoing" (per Holmes JA in
S v Matthee 1971(3) SA
769(A)
at p 771D). It follows that in my judgement the death sentences were
the only proper sentences to be imposed on both accused. The
appeals against
their death sentences therefore cannot succeed.
In the result the appeals are dismissed.
C.P. JOUBERT JA
E.M. GROSSKOPF JA
NESTADT JA
CONCUR
F.H. GROSSKOPF JA VAN COLLER AJA