S v Henry

• Jurisdiction: South Africa
• Judge: Scott JA, Streicher JA and Ngoepe AJA
• Judgment Date: 27 November 1998
• Counsel: D Uijs SC and M A Barker for the appellantC Theunissen for the State
• Hearing Date: 09 November 1998
• Court: Supreme Court of Appeal

Scott JA:

The appellant is a television technician in his late thirties. He was charged in the Cape Provincial Division (Van Zyl J sitting with assessors) with two counts of murder and one count of pointing a firearm J

Scott JA

A in contravention of the Arms and Ammunition Act 75 of 1969. The first count of murder related to the killing of the appellant's ex-wife ('Mrs Henry') and the second to the killing of his ex-mother-in-law ('Mrs Symon'). The complainant in the alleged statutory offence was Mrs Symon's fiancé, Mr Thomas Davids. It B was not in dispute that on Sunday 29 January 1995 the appellant shot and killed both women and immediately thereafter pointed a firearm at Mr Davids. The appellant nonetheless pleaded not guilty. The defence raised was one of so-called 'sane automatism'; it put in issue whether the appellant had committed in relation to each count a cognitive or voluntary act capable of giving rise to criminal responsibility. This defence was rejected by the Court a quo and the C appellant was accordingly found guilty on all three counts. He was sentenced to imprisonment for an effective period of 10 years. The present appeal, with the leave of the Court a quo, is against the conviction only.

D The events leading up to the fatal shooting and the pointing of the firearm are largely common cause. I summarise them as briefly as the circumstances permit.

The appellant and Mrs Henry were married when he was 21 years old and she 18. Because she was pregnant she could not complete her schooling. The marriage was happy for the first five years. Thereafter their relationship deteriorated. Mrs Henry went to night school in order to matriculate. According to the E appellant his wife acquired a number of male friends and this led to tension between them, particularly as he found himself having to look after the children and do the housework while she went out pursuing her own interests. After some years - it is not quite clear when - Mrs Henry instituted an action for divorce on F the grounds of his alleged adultery. The appellant testified that the allegation was based on Mrs Henry's misconstruction of an incident which occurred involving the appellant and a young female who was then boarding with them. He insisted that the allegation was without substance. For a while the appellant and Mrs Henry lived separate lives. Thereafter they reconciled. They sold their house in Mitchells Plain and moved in with Mrs Henry's mother, Mrs Symon, who lives in Batts Road, Wynberg. After 18 months they moved to Ottery where they bought a house. The marriage remained unhappy. According to the appellant Mrs G Henry pursued her career interests at the expense of family life. He was left at home with the children. He said that whenever there was an argument - and there H were many - her verbal skills were such that she always appeared to be the winner. This, he said, caused great frustration on his part. In April 1991 Mrs Henry again instituted divorce proceedings, alleging inter alia that the appellant had assaulted her 'on numerous occasions'. This was denied by the appellant in his evidence; he said that he had assaulted her only on two occasions.

I The couple were finally divorced in October 1993. Mrs Henry and the three children moved in with her mother in Wynberg. The appellant remained on in the former common home in Ottery. In terms of a settlement agreement made by an order of Court Mrs Henry was awarded custody of the three minor children, J Kelly, Tamyn and Robyn. The appellant's rights of access included the right to have the children with

Scott JA

him every alternate weekend. Initially all three daughters spent alternate weekends with the appellant. After a while the elder girls, Kelly and Tamyn, frequently A chose to stay at home rather than spend the weekend with their father. According to Kelly, who was 17 at the time of the trial, her father had assaulted her in front of a friend and she had lost respect for him. On the other hand, the youngest daughter, Robyn, who was nine at the time of the trial, maintained a close relationship with her father. Mrs Henry did not discourage her from doing so and appears to have adopted a flexible approach to the question of access. She B permitted Robyn to spend every weekend with the appellant if she so wished. At one stage Mrs Henry even allowed her to remain with the appellant for a continuous period of some six weeks. Generally, however, when Robyn spent the weekend with him, he was required to bring her back home on Sunday C evening at about 18:00 in winter and a little later in summer.

After the divorce the appellant and Mrs Henry saw little of each other. There was the occasional altercation; once over a school uniform which the appellant had purchased and once over the payment of maintenance. On each occasion the dispute between them appeared to have been resolved. Generally each maintained a D distance from the other and the communication between them, as far as this was necessary, tended to be via the children. When the appellant collected the girls (or Robyn alone) on a Friday he would park outside and hoot for them to come out. When he brought them back on a Sunday evening he would simply E drop them off in the street. Both formed relationships with members of the opposite sex. The appellant was in fact living with another woman at the time of the shooting.

In the meantime and on 30 June 1993, i e some three months before the divorce, the appellant had acquired a firearm. It was a 9 mm Para- bellum automatic pistol. He said he needed it for protection as the nature of his work was such that on occasion he had to venture into areas which he regarded as being F dangerous. It was his habit to carry the weapon on his person at most times. It was kept in a holster on the left side of his body with the butt facing forward so as to enable him to draw the weapon with his right hand. G

Robyn spent the weekend commencing Friday 27 January 1995 with the appellant. On Sunday 29 January they had lunch with a neighbour. In the late afternoon Robyn asked the appellant if she could spend the night with him so that he could drive her to school the next day. Normally she had to use public transport. He dialled Mrs Henry's number on his cellular telephone and handed it to Robyn for her to ask her mother if she could spend the night. The answer was no; Mrs H Henry wanted Robyn to come home. According to the appellant Robyn was determined to spend the night and at one stage started to cry. He said that it was not unusual for Robyn at the end of a weekend to want to remain with him and she would frequently come up with various excuses as to why she should not go I home. Normally he would insist that she go home, telling her that he would see...