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[1994] ZASCA 164
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S v December (657/93) [1994] ZASCA 164; [1995] 2 All SA 9 (A) (22 November 1994)
Case No 657/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
MICHAEL BRUCE DECEMBER APPELLANT
and
THE STATE RESPONDENT
CORAM: JOUBERT, HEFER, NESTADT, NIENABER et
HARMS JJA
HEARD: 3 NOVEMBER 1994
DELIVERED: 22 NOVEMBER 1994
J U D G M E N T
/NIENABER JA
2
NIENABER JA:
It was no longer in dispute, when the matter reached this
court, that the appellant, a part-time gardener in his late twenties, bludgeoned
or perhaps stabbed to death Peter Jacob Nanni, a 63 year old pensioner and his
71 year old wife, Erica Aldyth Nanni. This happened
on Friday 28 June 1991 at
their home on the outskirts of Stutterheim in the Eastern Cape. After killing
the two deceased the appellant
fled with R3 400,00 which he found in their house
and took refuge with his uncle in the Ciskei. He returned to South Africa
accompanied
by members of the South African police where he was eventually tried
and convicted by Kannemeyer J (sitting with assessors) in the
Eastern Cape
Division of the Supreme Court of South Africa. For the murder of the husband
(count 1) he was sentenced to 25 years
imprisonment. For the murder of the wife
(count 2) he was sentenced to death. And on a
3
charge of robbery (count 3) he was convicted of theft of the money and
sentenced to one year imprisonment, to run concurrently with
the sentence on
count 1.
This is an appeal in terms of
s 316(A)(1)
of the
Criminal Procedure
Act, 51 of 1977
("the
Act") against
his conviction and sentence on count 2; and
against his convictions on counts 1 and 2* in terms of leave granted to him by
the court
a quo. (The appellant's notice of appeal was filed out of time; to the
extent that it is necessary to do so, condonation for this
lapse is hereby
granted.)
There are two main issues in the appeal: first, whether the court a
quo had the requisite jurisdiction to try the appellant; second,
whether the
sentence of death imposed in respect of count 2 was the only appropriate
sentence.
The first issue, raised before the court a quo in terms of
s
106(l)(f)
4
of the
Act, stemmed
from the manner in which the appellant was returned to
South Africa from the Ciskei. The crimes were committed in the Republic of
South
Africa on the Friday. The appellant thereafter fled to Phakamisa township,
outside King William's Town, in what was then the
independent Republic of
Ciskei. There he was found during the early hours of Sunday morning by a posse
of policemen from South Africa.
He returned with them to East London where,
after being interrogated, he was formally arrested. Some two hours later he made
a confession
to Lt. Schwartz, which was reduced to writing as exhibit M, the
admissibility of which was contested in the court below but conceded
in this
court.
According to the appellant he was arrested in and abducted from the
Ciskei to the Republic of South Africa - in which event, on the
authority of S v
Ebrahim
[1991] ZASCA 3
;
1991 (2) SA 553
(A), a South African court lacked jurisdiction to try
Mm; or, at the very least, he was, so it was contended, duped by the
5
South African police to accompany them to South Africa - in which event, on
the authority of S v Wellem
1993 (2) SACR 18
(E), he could likewise not be tried
in South Africa.
Only the first of these eventualities was canvassed before
the court a quo. The court dealt with it in two separate judgments: in
a
provisional judgment focusing exclusively on the jurisdiction issue and again in
a later judgment focusing on the admissibility
of the confession, exhibit M. The
two issues converged because the appellant relied on substantially the same
material for his assertion
that he was both abducted from the Ciskei and coerced
into subscribing to the confession.
"The onus in both respects rested on the
state (cf S v Mahala and Another
1994 (1) SACR 510
(A) 511e). The state led the
evidence of the policemen who found and escorted the appellant from the Ciskei.
They were the investigating
officer, Sgt. Radue, his immediate superior, Capt.
de Vos,
6
and two others, Capt. McLaren and Sgt. Jozana, all from the murder and
robbery branch of the Border division of the South African
police stationed at
East London. According to Sgt. Radue there were no eye-witnesses to the
killings. But several garden implements
were found scattered around the
deceaseds' garden, as if a normal gardening routine had suddenly been
interrupted, and the appellant
was known to be an occasional gardener employed
by the deceased. Sgt. Radue was accordingly anxious to interview him. The
appellant
could not be found at his home at Mlungisi township outside
Stutterheim but the appellant's younger brother and girlfriend suggested
that he
might have gone to his uncle in a township called Phakamisa in Zwelitsha in the
Ciskei. The younger brother and the girlfriend
guided and accompanied the police
to the appellant's uncle's house. According to the police witnesses, all of whom
testified either
initially or in the later trial within a trial, the whole
operation took but a matter of minutes.
7
There was no violence of any sort and the appellant willingly consented
to
return with them to East London in order to assist them in their
further
investigations. He was not, so they all insisted, a suspect because
they
possessed no information at that stage which incriminated him in any
way.
But because the police were alive to the legal implications of a
police
operation in Ciskeian territory the appellant was specifically asked
whether
he was prepared to accompany them to South Africa to be
interviewed.
According to their evidence he was. Capt. de Vos made an entry
in his
pocket book which was interpreted to the appellant by Sgt. Jozana and
which
the appellant duly signed. The entry is that of Sunday 30 June 1991 at
3h20
and it reads:
"Te Pakamisa township 2216. Spoor tuinier Michael December aldaar op. Hy word
gevra of hy nie bereid is om my na die Republiek te
vergesel nie aangesien ek
horn wil ondervra deurdat hy by die oorledene gewerk het. Hy deel mee dat hy my
uit sy eie vrye wil vergesel
en dat ek horn kan
saamneem."
8
According to the police witnesses the appellant had not been arrested at that
stage. He could not have been arrested since the police
had not yet interviewed
him and it would have been inconvenient and inappropriate for them to do so
there and then, in the middle
of the night, in the middle of the township and in
the midst of all the confusion caused by their sudden arrival. He was invited
to
accompany them to East London and he readily agreed to do so.
According to
the appellant and his uncle, on the other hand, the appellant was manhandled,
handcuffed and forcibly removed from the
Ciskei against his protestations. Both
of them denied that the appellant signed the pocket book at that time and at
that place. The
appellant admitted in evidence, albeit somewhat reluctantly,
that it was his signature which appeared in the pocket book. He was
adamant that
he signed it only on the following Monday without appreciating what it was that
he was signing.
9
Notwithstanding certain discrepancies in the evidence of the various police
witnesses and the strong suspicion that they may have
painted the lily, the
court a quo had little hesitation in preferring the version of the state to that
of the defence. It found that
the appellant did sign the entry in De Vos' pocket
book at the time and place alleged by the police. This, in turn, was a clear
indication,
so it was held, not only that the appellant consented to accompany
the policemen to South Africa but also that he and his uncle were
untruthful
witnesses. Counsel for the appellant was unable to advance any compelling reason
why this court should differ from the
assessment of the court a quo. The matter
must accordingly be approached, as the court a quo did, on the footing that the
appellant
was neither arrested in nor abducted from the Ciskei. Where the
appellant was not forcibly abducted and his return to South Africa
was voluntary
there was no infraction of South African or public international law;
consequently the decision in Ebrahim's
10
case supra did not preclude a South African court from exercising
jurisdiction to try the appellant (see too S v Mahala and Another
supra; S v
Rosslee
1994 (2) SACR 441
(CI)).
For the purpose of his alternative argument
the appellant accepted that he was not forced to accompany the South African
policemen
to East London but that he did so willingly. Nevertheless, on the
authority of S v Wellem supra, it was submitted in this court that
the rationale
of Ebrahim's case supra is to be extended to a situation where an accused
person's presence within the jurisdiction
is obtained by "craft or cunning"
(Welkin's case supra 31c-f). The argument founders at its berth: there is no
basis whatsoever on
the facts of this case for a finding that the appellant was
enticed into South Africa by devious means. And to the extent that it
was
further suggested that the appellant should at the outset have been lectured on
the nature and details of extradition proceedings
in place between South
11
Africa and the Ciskei at the time (see too SI v Buys and Others
1994 (1) SACR
539
(O) 550f-552a), this court, in Mahala'scase supra at 516d-e, held that no
such duty is cast on the police as a precondition to consent
from a person they
wish to escort into this country. Failing a duty to speak, there can be no false
representation by silence. Consent
so obtained is not improperly obtained.
Consent properly obtained dispenses with the necessity of seeking formal
extradition.
S v Mahala supra also provides the answer to a further submission based on S
v Wellem supra at 29e-h, namely that the police contingent
acted unlawfully
when, without proven authority given to them pursuant to s 6w(6) of the Police
Act 7 of 1958, they entered the Ciskei
in order to investigate a crime committed
in South Africa; and that considerations of public policy precluded the
appellant's consent
from rendering conduct otherwise unlawful, lawful. That very
situation also occurred in Mahala's
12
case. Nevertheless this court, with knowledge of Wellem's case which was
cited to it, decided that the triad court had the jurisdiction
to try the
accused. In Mahala's case Wellem's case and, following it, Buys's case supra,
were impliedly overruled. It is now done
expressly.
In the absence of
unlawful or improper conduct in the sense referred to in Ebraham's cause supra,
on the part of any of the organs
or functionaries of the South African state, a
South African court is not precluded from trying anyone for crimes committed
within
its borders. Here was no unlawful conduct. The special plea was
accordingly rejected.
This was the only ground on which the correctness of
the convictions on all three counts was contested in this court. The appellant's
appeal against his convictions must therefore fail.
I turn to the second main
issue, the sentence of death imposed in respect of the murder of Mrs Nanni,
count 2.
13
The appellant was either 26 or 28 years old when these events took place. He
had by then progressed no further than standard 5 at
school and his only
employment at this time was that of a part-time gardener. The only other
relevant factor, extraneous to the circumstances
in which the crimes were
committed, was that the appellant had no previous convictions.
The two
deceased lived alone. No servants lived on the premises. Mr Nanni was a frail
man for his age. A portion of his; stomach had
been removed surgically. Mrs
Nanni, although older than her husband, was described by the court a quo as "a
robust lady in good health".
Their bodies were discovered on the Friday
afternoon in what, if they had domestic servants, would have been the servants*
quarters.
Mr Nanni's body was found in a lobby leading to the toilet; and Mrs
Nanni's body was in the toilet itself with her legs astride the
toilet
basin.
Both post mortem examinations were conducted by the same
district
14
surgeon, Dr Wingreen. In regard to Mr Nanni he found that there was a total
destruction of the skull with multiple fractures, depressed
and driven into the
brain tissue, as well as a penetrating stab wound into the chest. There were
several incised wounds caused by
a sharp cutting instrument such as a knife. The
force of the blows to the skull caused brain tissue to gush to the ground. The
injuries
to Mrs Nanni were similar in nature. She had at fractured skull and
brain injuries, two incised wounds into the lung and an incised
wound of the
trachea. The instrument causing that wound, assuming it to be a knife, had
passed right through her throat from side
to side. The district surgeon
concluded that she had died of head and chest injuries and he recorded a list of
12 or more of them.
In one of the photographs an axe can be seen on the floor of
the toilet in which her body was found. The side of the door and the
door frame
were spattered with blood. According to the district surgeon the head wounds to
both the deceased were consistent with
the axe being
15
used. The stabbing instrument was never recovered. When Mr Nanni's
body
was discovered it was partially concealed beneath a foam mattress. A
pool of
blood outside the door of the outhouse had compost or manure
heaped on it. In
the house itself a frying pan was found on the stove with
its contents
charred and the stove still on. On the veranda there was knitting
lying on a
chair and a sewing bag had been left on the ground. The motor
vehicle of the
two deceased was still on the premises but it had bloodstains
on it suggesting that someone with blood on his hands had tried to start
it.
There were indications that the house had been searched. The court a
quo
found:
"It seems quite clear that the two deceased were murdered where they were found
outside the house. The blood at various spots in
the house was not indicative of
any assault upon them within the house. All of this is indicative of somebody
having killed the deceased
outside and thereafter having searched the house.
Avery considerable amount of blood would have flowed as result of the injuries
and it is to be expected that the assailant under such circumstances would have
had
16
blood on himself and on his clothes, traces of which were eventually found about
the house."
In his evidence on the merits the appellant flatly denied
everything.
He was elsewhere. He knew nothing about the death of
the two deceased.
The blood on his clothes and shoes resulted from an assault
on his girlfriend
when they quarrelled on the Thursday. (She admitted the
assault but denied
the blood.) The only evidence, such as it is, as to what
actually happened
on that fatal day is therefore contained in his confession,
exhibit M. In it he
stated, inter alia:
"On Friday morning I left the hotel where my girlfriend works I went to town to
do my casual jobs I went to the house of the deceased,
I had worked for him as a
gardener I used to wash the car, clean the windows and paint the house, the
deceased had borrowed me a
R100,00 and I wanted to borrow another R70,00. I did
not get the R70,00 because he told me he did not have the money because he is
not working, we then had a quarrel because they did not want to give me some
money, they told me that they had already given me some
money and told me not to
refund it so they could not give me more money because they did not have it. We
then had an argument I told
17
them that I had a problem, I told them, that I had worked for them for one
year why can they not help me when I have got a problem.
Then this old white man
called me a stupid and hit me with an open hand on the left side of my face
because we were in the spare
room I picked up an axe and I chopped him on the
head with the axe just then the old white woman the wife of this old white man
appeared
from outside and grabbed hold of me by my face. ("Indicates by placing
his hands over his eyes"). I wrestled myself loose and I chopped
her on the head
with an axe and she fell to the ground inside the spare room. I then went and
searched for money inside the house
I did find money in a drawer in the bedroom
I did not count this money it was in a yellowish wallet. ("Gets up and walks
over to
a Kohler calendar in my office and points to the yellow background"). I
also found the car keys on the table in the kitchen I took
the car key to the
brown bakkie Toyota Hi-lux I wanted to drive away in the bakkie but I could not
get it out of the yard. I then
left the key in the ignition and I went away to
my home at Mlungisi Location. I took off the clothing I was wearing and I
changed
into clean clothing and I went back into town I bought the clothing I am
now wearing. I bought myself a pair of brown shoes, pair
of socks blue jeans, a
ANC T-shirt and a jersey as well as a hat. I then went to the bottle store and
bought myself four beers and
a half-bottle of Smirnoff. I then went home changed
into new clothes I had just bought and I went to Amatola Sun to gamble but I
lost, I do not know how much I spent at Amatola Sun because I was already under
the influence of alcohol. From the Amatola Sun I
went to my uncle's house in
Phakamis: Location, Zweilitsha."
18
The remainder of his confession deals at some length with
his
subsequent movements and it concludes as follows:
"What made me do this thing is that I needed money I am paying support for two
children I am a sportsman by training needs some money
I am a boxer and a brown
belt in karate and I also did not have decent clothing, since 1980 after I was
involved in an accident I
must work and rest, work and rest therefore nobody
employs me permanently so I can only engage casual labour, casual jobs don't pay
enough money. My father has seven children I am the first born all the others
are still at school and he does not manage to maintain
all seven of us. If it
was not for those reasons I would not have being in this trouble I was trying to
help my father."
Statements contained in a confession which are
not supported by credible
evidence can obviously not be taken for the truth,
especially when they are
exculpatory in nature (see R v Valachia and Another
1945 AD 826
, 835;
S v Nduli and Others
1993 (2) SACR 501
(A) 505f-h.) But
they may serve
to alert a court to a possibility of events or circumstances
not otherwise
revealed by the evidence (cf S v Cloete
1994 (1) SACR 420
(A)
428f-h).
19
And if that possibility is a reasonable one having regard to the evidence and
the probabilities as a whole the appellant, even if
he repudiates the statement,
is entitled to have his conduct and state of mind assessed in the light
thereof.
In the instant case the court a quo found as a fact that the
appellant had not been intent on robbing the deceased. It was purely
coincidental that they happened to have had the amount of R3 400,00 in the
house. These were wages which Mr Nanni was asked, as a
favour, to distribute to
a relative's workmen during the latter's temporary absence. That is why the
appellant was convicted of theft
and not of robbery - since the money was taken
after the assault and not because of it (cf S v Dlamini and Another
1975 (2) SA
524
(D) 527 A-C).
Once it is found that the appellant did not pilot a
robbery, it follows that the murders were likewise not premeditated. According
to the confession there was an altercation between the appellant and Mr Nanni.
On
20
his own version the appellant was insolent and unreasonable and Mr Nanni was
perfectly justified in refusing his demand for a further
loan. This, unlike S v
Dlamini 1991 (1) SACK 128 (A), was not a case where an appellant became enraged
because he believed that he
was cheated out of money due to him, or where he
felt aggrieved because his employer obdurately refused to discuss his
unsatisfactory
working conditions with him (cf S v Mvuleni
1992 (2) SACR 89
(A)
94f-h).
In that sort of case, while the test is not whether an accused's rage
should objectively be justifiable in order to diminish his moral
blameworthiness
(cf S v Prins 1990(1) SACR 426(A) 431g-h), one can more readily accept that an
accused, as a reasonable possibility,
would lose complete control of himself.
The appellant in this; case does not say or even suggest that he lost control of
himself.
Yet something untoward must have happened to unleash the events which
followed. That it happened suddenly
21
and unexpectedly is apparent from the disruption of the appellant's work in
the garden, from the food left simmering on the stove,
and perhaps from the
knitting on the veranda. One can accept as a reasonable possibility that a
heated exchange developed between
the appellant and Mr Nanni and that Mr Nanni
may have said something which aggravated the situation and caused the appellant
to lose
his composure. According to the appellant's confession Mr N
anni
insulted and slapped him in the face. The court a quo regarded it as so unlikely
that this frail old man would have attacked a strapping
athlete in his late
twenties, a boxer and, he says, a karate expert (thereby almost inevitably
inviting a violent reprisal), that
it refused to accept that part of the
confession. Nevertheless it found that there was what was described as "a
modicum of provocation"
and it was mainly for that reason that the death
sentence was not imposed in respect of count 1. I have not been persuaded that
the
court a quo was wrong in its; assessment of the
22
probabilities in this respect. "The chances of Mr Nanni striking the
appellant are so remote as to be discounted. But even if it did
happen it cannot
adequately explain the events that followed. This was not an instance of a
single, sudden, spontaneous act of retaliation;
it was a sustained, prolonged
and savage annihilation of two elderly people who posed no threat to him. The
appellant does not mention
the knife or other sharp instrument with which he
inflicted a number of stab wounds on both his victims. The district surgeon
could
not say which of the fatal wounds, caused by the axe or the knife, were
inflicted first. If he crushed Mr Nanni's skull with the
axe first, as his
confession implies, why stab him afterwards? Or vice versa? Why do the same with
Mrs Nanni? Whatever the sequence
it suggests a measure of perversity. The force
and extent of the violence is so wildly out of proportion to the suggested
provocation,
that it is difficult to credit the incident as at a mere reaction
to an insult. It may be that the killings were not
23 premeditated; that does
not mean that his actions were not deliberate. The calculated and callous manner
in which he conducted
himself (covering the body of Mr Nanni with a foam
mattress, hiding the body of Mrs Nanni in the toilet, obliterating traces of
blood
with compost or manure from the garden, before he methodically ransacked
the house and tried to steal the vehicle), coupled with
his utter lack of
remorse after the event, is not indicative of an irrational loss of control or
of an act committed in a sudden
rush of panic. The iniquity of the first murder
was compounded by the second. In considering an appropriate sentence for the
second
murder the first murder cannot simply be ignored: it is part of the
history, part of the pattern, and emphasises the enormity of
the crime and the
depravity of the appellant. Such a person shows little prospect of true
rehabilitation, notwithstanding his lack
of previous convictions. On his own
showing he was committed to violence. He assaulted his girlfriend on the
Thursday and killed
both of his
24 employers on the Friday. Society yearns
for protection against thuggery of this kind. Instant violence and gratuitous
killing have
lately become conditioned responses. It is a tendency which must be
resisted with sentences which are commensurate with the outrage
and disgust
which such savagery inspires (cf S v Nkambule
1993 (1) SACR 136
(A)
147c-i).
In the present case the futility and the barbarity of the
appellant's assault on the two deceased are in my view fully deserving of
the
most extreme penalty which society, through the courts, can impose. I would
accordingly dismiss (he appeal on sentence as well.
But because the
constitutionality of the death penalty is due to be considered by the
constitutional court I propose to follow like
practice of adjourning this matter
until that court has clarified (the position (cf S v Makwanyane en 'n Ander
1994
(2) SACR 159
(A) 162c-f).
The following order is made:
25
(1)
The appeal against the
appellant's convictions on counts 1, 2 and 3 is
dismissed;
(2)
The finalisation of the
appellant's appeal against the death
sentence
imposed in respect of count 2 is adjourned
to a date to be determined by the
registrar of this court.
1? M Nienaber Judge of Appeal Joubert JA ] Hefer JA ] Concur Nestadt JA ]
Harms JA ]