South Africa: Supreme Court of Appeal

CASE NO 581/90
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IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION In the matter between
LIONEL DA SILVA APPELLANT
and
THE STATE RESPONDENT
CORAM: HOEXTER, NESTADT et EKSTEEN JJA DATE HEARD: 24 MAY 1991 DATE DELIVERED: 29 MAY 1991

JUDGMENT NESTADT, JA:
The events giving rise to appellant's trial in the court below took place in the vicinity of Elsies River in the Cape shortly after midnight on Sunday, 22 May 1988. The following facts were found to have been

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proved. A certain Russel Spochter (the deceased) had parked his car at a roadhouse in the area. He was aged about 40. With him in the car was a female acquaintance, one Avril McCurry (the complainant). They had ordered something to eat and were waiting f or the food to arrive. Appellant approached them. He was on foot. He asked whether he could be conveyed to the nearby Nl freeway. He said his name was Rodney; that he had just come from the airforce base at Ysterplaat; and that he was hitch-hiking to Robertson where his mother had just died. Deceased agreed to give him a lift. Appellant got into the car. He sat at the back behind deceased. After deceased and complainant had finished eating, deceased drove off. They reached the Nl. Deceased stopped the car on the side of the road for appellant to alight. Appellant produced a firearm. It turned out to be a 9 mm calibre Browning automatic

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3. pistol. He ordered deceased out of the car. When deceased did not respond, appellant fired a shot into the dashboard. On his instructions deceased gave appellant the keys of the car. He demanded that deceased hand over whatever money he had. Deceased took out an amount of about R4 in cash and gave it to appellant. Outside the car appellant searched deceased for more money. Complainant was still in the car. She saw the lights of an approaching vehicle. She sprang out and ran towards it. She shouted for help. It did not stop. Appellant followed her. He brought her back to the car. Deceased was still there. He was obviously concerned about complainant's safety. He implored appellant not to harm them. Appellant pushed complainant back into the car. He told deceased "Fok agter die kar toe — jy vrek hier vanaand ... sy gaan saam met my en jy vrek hier". What then happened is graphically described by complainant in

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the following terms:

"Hy sê toe vir die oorledene dit is amper soos
'n sloot af, hy moet afgaan. Toe soebat die oorledene nog altyd vir hom, los ons, ons was goed vir jou. Toe sê hy vir die oorledene 'Ek sê mos vir jou fok af hier' en toe ek buite die venster kyk, toe sien - toe hoor ek net - ek het gehoor die skoot gaan af en ek sien die oorledene gaan vooroor."

Appellant returned to the car. As he was getting into
the driver's seat deceased was heard to cry out. He was
obviously seriously wounded. He screamed: "Help,
help". Appellant's reaction was (I quote again from
complainant's evidence) the following:

"Hy het sy tong geklap, toe klim hy weer uit die motor uit en hy gaan agter the motor en hy lig die rewolwer op en hy skiet nog 'n skoot. Toe skree die oorledene nie meer nie en toe is alles doodstil."

Appellant returned to the car. He drove off with
complainant. During the course of the next few hours he
raped her twice. Each time this occurred in the car
after he parked it at a spot of his choosing. Her

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5. ordeal ended when at about 9 am that morning, appellant drove into Worcester. He got out of the car and disappeared. Before he did so, he told complainant that she should say that "dit is h Boer, dit is h witman wat my vriend geskiet het". Complainant immediately reported the matter to the police. A few hours later deceased's body was found. He was lying where he had been shot. A post-mortem examination confirmed that he had been shot twice, firstly in the abdomen and secondly in the back of the head. Both injuries were fatal. On both occasions he was shot from behind.
Appellant's trial was heard by CONRADIE J, sitting with assessors, in the Cape Provincial Division. Appellant was found guilty of murder, robbery (with aggravating circumstances), rape (two counts) and of certain other offences arising from his unlawful possession of the firearm referred to. No extenuating

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circumstances having been found, he was sentenced to death for the murder. Periods of imprisonment were imposed in respect of the other convictions. This appeal is concerned only with the death sentence. It is brought with the leave of the trial judge.
By reasons of the provisions of the Criminal Law Amendment Act, 107 of 1990, we have to consider sentence afresh. We have to decide whether having regard to the presence or absence of any mitigating or aggravating factors as also the purposes of punishment, the death sentence is the only proper sentence. Counsel for appellant did not dispute that there are a number of aggravating factors. I leave aside the question whether the murder of deceased had already been planned when appellant got into the car at the roadhouse. The information he there gave deceased and complainant about his identity, the reason for his journey and his

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7. destination was false. But that may have been because he then intended merely to rob and rape. What is clear, however, is that this was an unprovoked, cold-hearted and ruthless killing. Deceased had offered no resistance to appellant's demands. There was no cause for him to and he did not panic. The inference is irresistable that he acted with dolus directus. Appellant' s motive could only have been to prevent his subsequent identification by deceased or to make use of deceased' s car or to get him out of the way in order to rape complainant. Whichever it was, the motive was a base one. Appellant, a mature man of 28 and a matriculant, abused deceased's kindness in giving him a lift in the most reprehensible manner. He was quite impervious to deceased's entreaties not to shoot him. He has displayed no remorse. Consider also appellant's callousness. I refer to his reaction to deceased's

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cries for assistance after he had been shot the first

time. With every justification CONRADIE J, in his

careful judgment, described it as follows:

"Daarna het die beskuldigde, ergerlik oor die gejammer van die sterwende oorledene, vanwaar hy halflyf in die motor was, teruggedraai en die oorledene weereens geskiet soos wat h mens h swaarbeseerde dier van kant sou maak."

There is also the deviousness of appellant as manifested
by his suggestion to complainant that she should say that

it was an unknown third party who had killed deceased.
Appellant is not a first offender. He has previous
convictions inter alia for malicious damage to property,
assault and the unauthorised use of a motor vehicle.

These considerations make this an exceptionally

serious case. On behalf of appellant, however, Mr Murray
submitted that the death sentence was nevertheless not
the only proper sentence. Reliance was placed on certain
mitigating factors which it was said possibly existed

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9. and which justified the substitution of a lengthy period of imprisonment.
The first was that appellant acted under the influence of liquor and drugs. He gave evidence to this effect. In summary it was that before going to the roadhouse, he had been at a shebeen where he consumed one and a half 750 ml bottles of beer and 4 to 5 double-whiskys. In addition, he said that he smoked a mixture of dagga and mandrax. Particularly the drugs had made him feel "heeltemal deurmekaar ... in 'n droomtoestand ... ek was net impulsief gewees. Ek het eintlik nie gedink wat ek doen nie ... ek sou iets doen en agterna dan besef dit is verkeerd ... ek was nie normaal gewees daardie aand nie". I do not propose to consider this evidence in any detail. The trial court rejected it. One must, of course, bear in mind that at the trial the rule that the accused bore the onus to establish

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10. extenuating circumstances (on a balance of probabilities) had to be, and was in fact, applied. Now, however, it is for the State to negative (beyond reasonable doubt)
whatever mitigating factors are properly raised (S v
Nkwanyana and Others 1990(4) SA 735(A)). Even so, I am satisfied that such onus has been discharged. It is doubtful, in the first place, whether appellant was at the shebeen at all. In any event, it is quite clear that by the time he reached the roadhouse not less than about one hour later, he was in a sober condition and that his subsequent criminal conduct was in no way influenced by what he had drank or smoked. In particular, I cannot agree with the contention that it is reasonably possible that he acted as he did because his inhibitions had been reduced by the liquor and drugs. It is true that appellant did not actually injure complainant and that he stopped the car in Worcester near a public telephone so

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that she could obtain help. Counsel for appellant sought to contrast this conduct with the violent manner in which he had earlier treated deceased. It was argued that this raised the possibility that appellant became progressively normal as the effects of his intoxication wore off but that his earlier killing of deceased occurred when he was still acting under the influence of the liquor and drugs. The reasoning is fallacious. It is plain that appellant was able to achieve what he wanted with complainant without physically (other than sexually) harming her. It was some hours after their initial meeting that he raped her for the second time. Yet he was still behaving criminally. And his action in leaving her near a telephone was probably intended to induce her not to attempt to identify him as the culprit. But most important, there is ample evidence that he was

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sober ab initio. Complainant's evidence was that she was well aware of the usual symptoms displayed by persons under the influence of liquor or drugs. Moreover, she had the opportunity of closely observing appellant over an extended period. Her opinion was that he was sober throughout. She said that when he got into the car at the roadhouse he was "nugter, baie beskaafd, baie ordentlik". CONRADIE J found her to be a truthful and reliable witness. On the other hand, appellant was described as "'n deurtrapte leuenaar". There can be and was no quarrel with these credibility findings. Appellant himself conceded in his evidence that by the time he arrived at the roadhouse, the effect of the liquor and drugs "het afgeneem" and that he was "bewus wat ek gedoen het". He subsequently (on the issue of extenuation and in support of an application to refer him for observation in terms of secs 77 and 78 of the Criminal Procedure Act, 51 of 1977) gave further

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evidence. He then alleged that "voices" told him to shoot deceased. This is difficult to reconcile with his previous version that it was the liquor and drugs that caused him to act as he did.
The other mitigating factor relied on is that appellant suffered from what is termed an antisocial personality disorder. This is what the psychiatric report furnished in terms of sec 79 of Act 51 of 1977 states. In particular, though appellant was not at the time of the crime affected by mental illness or defect, a psychopathic trait is found. However, in the opinion of the doctors "the degree of psychopathy present is not such as to constitute diminished responsibility due to mental illness or defect in relation to the actions at time of offences reported." In the result, I do not think that appellant's personality disorder can assist him. It would seem that his psychopathy is too mild to

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14. be taken account of. In any event, so it has been held, a psychopathic condition is not by itself an extenuating circumstance. In order to rank as such, it must have played some role in the commission of the offence (S vs Kosztur 1988(3) SA 926(A) at 938 E). In casu, no link is disclosed betweeen appellant's psychopathy and his deliberate actions on the night in question.
It cannot be said that appellant is beyond rehabilitation. This notwithstanding, I have in the light of the aggravating factdrs referred to and the lack of mitigation, come to the conclusion that, in the words of HOLMES JA in S vs Matthee 1971(3) SA 769(A) at 771 D, this is one of those cases where "the evil of his deed is so shocking, so clamant for extreme retribution, that society would demand his destruction as the only expiation for his wrongdoing". In my opinion, therefore, the death sentence is the only proper sentence.

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15. The appeal is dismissed.

NESTADT, JA

HOEXTER, JA )
) CONCUR EKSTEEN, JA )