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1994
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[1994] ZASCA 93
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S v Sanjith and Another (356/93, 372/93) [1994] ZASCA 93 (30 May 1994)
/CCC
CASE NO 356/93
372/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
MELVIN SANJITH
FIRST APPELLANT
BENJAMIN MOODLEY
SECOND APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: VAN HEERDEN, NESTADT et NIENABER JJA
DATE HEARD
: 13
MAY 1994
DATE DELIVERED
: 30 MAY 1994
JUDGMENT NESTADT, JA
:
In the early hours of the morning of 8 September 1990 the driver of a
taxi operating in the
2
Durban area was abducted by his passengers. Having thereafter killed him,
they stole his vehicle. Some five months later and in particular
on the night of
14 February 1991 the driver of a van was hijacked. He was driven to a sugar-cane
field near Tongaat where he was
fatally shot. His vehicle and other personal
possessions were taken from him,
These two incidents led to the appellants standing trial in the Durban
and Coast Local Division on four counts, namely the murder
and robbery of the
first victim (counts 1 and 2 respectively) and the murder and robbery of the
second victim (counts 3 and 4 respectively).
The matter came before LEVINSOHN J
sitting with assessors. The appellants were convicted on all four counts. In
respect of the two
robberies (with aggravating circumstances) they were
each
3
sentenced to ten years imprisonment. The first appellant was sentenced to
twenty years imprisonment for the first murder (count 1).
However, the second
appellant was sentenced to death on this count. And in respect of the second
murder (count 3) the death sentence
was imposed on both appellants. This appeal
is against the death sentences respectively imposed on the appellants. The other
sentences
(of imprisonment) are not in issue. Nevertheless it will in due course
be necessary to refer to them.
We have to determine whether, having regard to the presence or absence of
any mitigating or aggravating factors, as also the purposes
of punishment, the
death sentence is in each case the only proper sentence. It is convenient to
commence with those imposed on the
second appellant and in particular his appeal
arising
4
from the first murder. He was at the time 23 years of
age. So
he was relatively youthful. He had virtually
no schooling and comes
from an impoverished background.
Also in his favour is that he had no previous
convictions for crimes involving violence. This,
coupled with his good work record, led the trial judge
to conclude that "there is some prospect that he may be
rehabilitated". And, so the learned judge further
found, it was possible that he was at the time under the
influence of alcohol or drugs though not to any great
degree.
On the other hand, however, there are certain
weighty aggravating factors which must be taken into
account. They are described by the court a
quo
as
follows:
"The deceased...was going about his business...as a taxi driver. Taxi
drivers work through the night in order to render a service
to the public,
and
5
they are particularly vulnerable to attacks like this. The manner in which
the crime...was committed was particularly brutal and
heinous".
There is simple justification for this
conclusion.
During the journey the deceased (a married man aged 40)
was overpowered. This was achieved by the second
appellant suddenly producing a piece of wire and tying
it round the deceased's neck. The first appellant's
elder brother, one Ashwin (who was originally an accused
but who absconded before the trial commenced) took
control of the car. When the deceased attempted to
grab hold of the steering wheel, the second appellant,
who was armed with a knife, stabbed him in the back.
Ashwin brought the car to a halt. He and the second
appellant pulled the deceased out of it. They then
stabbed him several times. They placed him in the boot
of the car. He was still alive. The journey
6
continued. Near a river the deceased was taken out of the car. Not only
did the second appellant again stab him, but he also gave
his knife to one of
the other passengers (he was the main witness for the State on this count) and
directed him to also stab the
deceased. Eventually the deceased was thrown into
the river. As his body drifted away stones were thrown at it. When it was later
recovered, the deceased's ankles were found to have been tied together.
According to the post-mortem report the cause of death was
"multiple incisions"
of the head and chest.
What has been stated makes this case an exceptionally serious one. It is
I think a more extreme case than
S vs Nqcobo
1992(2) SACR 515(A) (which
also involved the murder of a taxi driver in order to rob him but where, because
the appellant was
7
a simple person not ordinarily given to violence the court, by a
majority, set aside the death sentence).
In casu
the position is somewhat
different. The deceased, who was of course an innocent, helpless victim, was
subjected to a sustained and
vicious attack. His was a slow, drawn out and
obviously agonising death. The second appellant played a leading role in what
happened.
Clearly he acted with
dolus directus
. The deceased was shown no
mercy. He was killed in order to obviate any possibility of him identifying his
assailants. It seems to
me that on a conspectus of the matter and having regard
to the deterrent and retributive objects of punishment, one is obliged, despite
the mitigating factors referred to, to conclude that the death sentence is the
only proper sentence.
I turn to a consideration of the
second
8
appellant's appeal against the death sentence imposed for the second
murder. There were no eye-witnesses to the crime. Nor did second
appellant
testify. The facts on which his appeal must be decided appear from certain
extra-curial but admissible statements which
the second appellant made to the
police subsequent to his arrest. They disclose the following. On the night in
question he, a certain
Errol, Ashwin, the first appellant and one Salim were, at
Errol's instance, bent on stealing a van. They were driving on the freeway
to
Tongaat when they caught up with a van which Errol said he wanted. Errol, who
was driving, caused the driver of the van to stop.
At gun point he forced the
driver into their car which, at Errol's command, the second appellant then drove
to a sugar-cane field.
Errol had given the firearm to Ashwin and told him to
"make do with the
9
driver". At the plantation Ashwin, Salim and the first
appellant took the driver out of the car to a spot about 25 to 30 metres away.
The second appellant remained seated in the car. But he could see that the first
appellant and Salim bound the driver's hands together
with a rope. The second
appellant says that what then happened was that first appellant "fired a shot
and I saw the van driver running.
After that I heard two more shots and I could
not see the van driver as there was a bend. . .". Thereafter they left the
scene. The
postmortem report states that the deceased died as a result of a
bullet wound of the head (causing laceration of the brain and extensive
intracranial and intracerebral haemorrhage).
It was mainly on the basis of these admissions that the trial court found
that the second appellant was
10
"present and participated in the robbery and the murder of the second
deceased...It is safe to infer beyond a reasonable doubt that
(he and the first
appellant) acted in common purpose with certain other persons who are not before
the Court". As I have said, there
is no appeal against the conviction. It was
argued, however, on behalf of the second appellant, that on the evidence
referred to,
his actual participation in the crime was relatively minor and that
the death sentence was therefore not appropriate. I am unable
to agree. True,
one is bound by the second appellant's version that it was not he who shot the
deceased; indeed that when this happened
he was in the car. Even so, I do not
think his moral blameworthiness is materially reduced by this consideration. The
fact that an
accused who is a party to a common purpose to kill is not the one
who
11
fires the fatal shot, does not by itself preclude the imposition of the
death sentence (
S vs Sithebe
1992(1) SACR 347(A) at 355 e). As my Brother
Nienaber points out in that case, it remains a question of degree (see too
S
vs N
1992(1) SACR 499 (TkA)). Here it was the second appellant who drove the
deceased to the plantation. This he did after Ashwin had
been given Errol's
firearm and told to "make do with the driver". The inference is unavoidable, and
the court a
quo
so found, that this meant and was understood by the
second appellant (and the others) to mean that the driver was to be killed.
Otherwise
why not just take the van and leave the driver on the side of the
road? Plainly, he (like the deceased in the first murder) had to
be prevented
from being able to identify his assailants (by for example noting the
registration number of their
12
car). The second appellant cannot profit from
the
evidence given in mitigation by a social worker that
he
told her that "he was afraid and he told them...not
to
use the gun and not to do anything because he felt
that
the deceased was very young". It constitutes a
hearsay
assertion which, as I have indicated, the
second
appellant did not confirm in evidence. Bear in
mind
also that after the murder, the second appellant with
knowledge that the driver had been killed, used
the
deceased's credit-card to make certain purchases
for
himself. So he fully associated himself with
the
crime. It too was a particularly reprehensible
and
ruthless one. The defenceless deceased (who
according
to the first appellant had pleaded for his life)
was
simply executed. This type of offence is all
too
prevalent. And there is the further aggravating factor
13
arising from the second appellant's participation in the previous murder.
Though he had not yet been convicted, it could be taken
into account (
S vs
S
1988(1) SA 120(A) at 123 E-H;
S vs Mvuleni
1992(2) SACR 89(A) at 94
i). It confirms his propensity for violence. In my opinion, the interests of
society require the imposition
of the death penalty on the second appellant for
the second murder as well.
There are two further matters that must be referred to before concluding
the discussion of the second appellant's appeal. The one
is that we were
informed during argument that subsequent to the appellants' trial, Ashwin was
re-arrested, tried and convicted on
the same four counts as appellants were. In
his case, however, the death sentence was not imposed. He was apparently
sentenced to
an effective
14
period of 25 years imprisonment. While uniformity of sentence is
desirable (
S vs Marx
1989(1) SA 222(A) at 225 B), I do not believe we
can, in the exercise of our discretion, be influenced by the sentence passed on
Ashwin. We do not know what the facts were on which he was sentenced; in
particular what role he was proved to have played in the
two murders. Nor do we
know what his personal circumstances were. In any event, I remain convinced that
in the case of the second
appellant, the death sentences are the only
appropriate sentences.
The other issue concerning the second appellant arises from the new
Constitution of the Republic of South Africa 1993 (Act 200 of
1993). When the
appeal was heard, the additional argument was advanced on behalf of the second
appellant (and the
15
first appellant) that the death penalty, even if imposed prior to the
coining into operation of the Act on 17 April 1994, is in conflict
with certain
of its provisions; and that it is therefore unconstitutional. In a number of
recent cases this Court has held that it
should not decide this issue and that
in matters of this kind (ie when the death sentence is not set aside) the appeal
will have
to be postponed pending the resolution of the problem by the
Constitutional Court. An order to this effect will therefore be made
(in
relation to the second appellant's appeal). As will be seen, the point does not
arise as far as the first appellant is concerned.
His appeal (in respect of the second murder) must naturally have as its
foundation what has been said about the aggravating circumstances
of that crime.
In
16
his case too the seriousness of his actions is compounded by the fact of
him having been a party to the previous murder. A further
feature that counts
against the first appellant is the degree of his participation. Of course, the
second appellant's statement that
the first appellant fired at the deceased is
not admissible against the first appellant. But the first appellant himself
admitted
(in a statement accompanying a pointing out he made to the police)
that, having tied the deceased's hands together (as will appear
it was actually
his legs), he "fired a shot at the deceased but missed him". (He goes on to say
that it was Ashwin who having obtained
the firearm from Salim then shot the
deceased.) The inference to be drawn from the terms of this admission is that
the first appellant
intended (and attempted) to kill the deceased. In evidence
in
17
mitigation, however, he sought to negative this.
He
testified that "the shot that went off was
accidental
whilst I was trying to pull the gun away from
Salim...I
didn't want them to kill the man". Though the
trial
judge does not specifically deal with this evidence,
it
can safely be assumed that he rejected it. The
first
appellant tendered no explanation for what
is
essentially a different version to that contained in
his
pointing-out statement. His original
allegation
(advanced during a trial within the trial concerning
the
admissibility thereof) that the police officer who
took
the statement had put words in his mouth, was found
to
be a "blatant lie". And in dismissing his
alibi
defence, LEVINSOHN J categorised the first appellant
as
"a thoroughly untruthful witness".
What has been said puts the first appellant
18
close to the line beyond which one would feel
compelled
to conclude that the death sentence is
imperatively
called for. Yet I shrink from deciding that it
has
been reached. There are a number of reasons for
my
hesitation. Despite the active role he played
and
though he admitted that he had been a party to the
plan
to hijack a motorist, the actual killing of the
deceased
was not his idea. Secondly, having been born on 12
July
1970, he was not yet 21 when the second murder
was
committed. Indeed he was not much more than
a
teenager. The tendency of our courts is, save
in
exceptional cases, not to impose the death sentence
on
persons of this age (
S vs Dlamini
1991(2) SACR 655(A)
at
666-8). They are
prima facie
regarded as
emotionally
and intellectually immature (
S vs Cotton
1992(1)
SACR
531(A) at 536 c). There is no reason to think that the
19
first appellant had a maturity beyond his years.
He
only left school at the end of 1989 (albeit with
a
matric). Thirdly, so LEVINSOHN J held, it
was
reasonably possible that in acting as he did he
was
"strongly influenced by his brother Ashwin" (who, on
the
evidence, played a leading role in the commission of
both murders). Support for the finding that the
first
appellant was under the influence of his brother, was
.
the father's evidence that Ashwin was a bully and
that
the first appellant was "scared" of him. The
first
appellant himself testified that it was on the
command.
of Ashwin that he bound the deceased's legs
together.
He complied because "I feared him". There was
also
the testimony of the first appellant's employer that
the
first appellant was "submissive" (and, I should
add,
"well-behaved"). Moreover, a clinical
psychologist
20
described the first appellant as "timid" and below average in
intelligence. Perhaps the latter view was not well-founded, but I see
no reason
not to accept the former. And fourthly there is the first appellant's evidence
that on the night in question he was under
the influence of dagga. However
unsatisfactory he was as a witness and though the evidence in question was only
given under cross-examination,
this further mitigating factor cannot be
discarded.
The distinction between the two appellants as far as sentence for the
second murder is concerned may be a fine one. But the cumulative
effect of the
factors I have cited is such that, unlike in the case of the second appellant, I
do not think that the death sentence
should be imposed on the first appellant.
In my opinion, the deterrent and retributive purposes of
21
punishment would adequately be served by the imposition of a lengthy
period of imprisonment. In have in mind the same sentence that
was imposed on
the first appellant in respect of the first murder, namely twenty years
imprisonment. But this must, to a large extent,
run concurrently with such other
sentence (and the ones of ten years each for the two robberies). The total
period of imprisonment
should not exceed 25 years. Anything more would in this
case be excessive (cf
S vs Mokgethi en Andere
1990(1) SA 32(A) at 48
B).
This raises a problem. LEVINSOHN J did not direct (in terms of sec 280(2)
of the Criminal Procedure Act) that the sentences of imprisonment
he imposed on
the first appellant should run concurrently. The result is that the first
appellant was on counts 1, 2 and 4 sentenced
to an effective 40 years
imprisonment.
22
Such a sentence cannot stand. However, there being no appeal against
these sentences, it is not possible for this Court to interfere.
Nor would sec
298 of the Act (which provides for a wrong sentence passed by mistake to be
amended), apply. Even if the trial judge's
omission to apply sec 280(2) was
per incuriam
, it would now be too late to have resort to this remedy.
What the first appellant can do is to apply to the trial judge for leave
to
appeal against the other sentences and in the event of its refusal to petition
the Chief Justice. Obviously such application(s)
will have to seek condonation
for being out of time. The difficulty is what to do in the meantime? It seems to
me that the course
to adopt is to substitute a period of twenty years
imprisonment for the death sentence on count 3 and to order that it run
concurrently
with the
23
twenty year sentence on count 1. The extent to which the remaining two
periods of imprisonment of ten years each (on counts 2 and
4) should be ordered
to run concurrently with the twenty years on counts 1 and 3, will be left over
for later decision by the court
hearing the appeal, should the first appellant
appeal against such other sentences.
The result is the following:
(1) The first appellant's appeal succeeds. The death sentence imposed on him
in respect of count 3 is set aside. There is substituted
a period of
imprisonment of twenty years. This sentence is to run concurrently with the
twenty year sentence on count 1.
(2) The appeal of the second appellant is adjourned to a date to be
determined by the Registrar of
the
24
Court pending a decision of the Constitutional Court on whether" having
regard also to the provisions of sec 241(8) of the Constitution
the confirmation
of the death sentences would be
constitutional.
NESTADT,
JA
VAN HEERDEN, JA )
) CONCUR NIENABER, JA )