S v De Oliveira

JurisdictionSouth Africa
JudgeSmalberger JA, Nienaber JA, Harms AJA
Judgment Date18 May 1993
Citation1993 (2) SACR 59 (A)
Hearing Date04 May 1993
CounselLJ Lowies for the appellant DF Dörfling for the State
CourtAppellate Division

Smalberger JA:

The appellant was convicted in the Witwatersrand Local Division by Stegmann J and two assessors of murder (count 1) and attempted murder (counts 2 and 3). The convictions followed upon a shooting incident which occurred at the appellant's residence in Rewlatch, Johannesburg, on 25 September 1988. The appellant was sentenced to 12 years' imprisonment on the murder count, and to eight years' imprisonment on each of the other B counts. The sentences were ordered to run concurrently, resulting in an effective sentence of 12 years' imprisonment. The appellant's subsequent appeal to the Full Bench of the Transvaal Provincial Division was dismissed. With the requisite leave he now appeals to this Court against his convictions and sentences on all three counts.

From the evidence the following picture emerges. The appellant was born C in Madeira in 1956 of Portuguese-speaking parents. His family emigrated to South Africa in 1969. The appellant is illiterate. His home language is Portuguese and he speaks only a limited amount of English. From about 1974 the appellant and a certain Mrs Cordeiro lived together as husband and wife, initially in Boksburg and later in Rewlatch. At the time of the shooting incident the appellant was in partnership with three of his brothers. Between them they owned and ran a number of small shops or D businesses. The appellant assisted in the operation of the partnership business at Langlaagte.

The complainant on count 2 was Mr Vusi Nyandeni ('Vusi'). He commenced employment with the appellant in Boksburg in 1981. He was then still a teenager. When later that same year the appellant and Mrs Cordeiro moved to Rewlatch, Vusi accompanied them and took up residence in the servant's quarters at the back of the house. He continued to live there, and to be E employed by the appellant, until the shooting incident. In March 1988 one Tandi Adams moved in with Vusi and lived with him in his quarters for the duration of his stay there. Although the relationship between the appellant and Vusi was essentially that of employer and employee, it had developed in the course of time into a deeper, more friendly and trusting relationship, a state of affairs that persisted until the shooting incident.

F The house occupied by the appellant at the time was situated in an area described by various witnesses, including certain policemen, as a dangerous one. There had been a number of prior incidents of robbery, housebreaking and theft committed against inhabitants and properties in the neighbourhood. The house stood on a corner plot and was bounded on its western side by Impala Road and on its southern side by Southern Klipriviersberg Road. In a fence adjoining the latter road, at the eastern G corner of the property, there was a gate. This gate opened onto a cement driveway which sloped gently downwards towards the garage. The driveway was four to five metres wide and lay between the house and a pre-cast concrete fence which formed the eastern boundary. The area in question was a relatively confined one. There was a wall which connected the far (north-eastern) corner of the house with the garage. In the wall was a steel door which gave access to the back yard where Vusi's room was H located. The route normally taken by Vusi to his room would have been via the driveway and the steel door. On the eastern side of the house there were two windows overlooking the driveway. The first of these (when proceeding down the driveway towards the garage) was that of the spare bedroom; the second was that of the bedroom shared by the appellant and Mrs Cordeiro. The window of this room opened towards the left (ie towards I the garage). Both windows were burglar-proofed (as indeed was the rest of the house).

I come now to the events of Sunday 25 September 1988. On that morning the appellant, Mrs Cordeira and Vusi, as they were accustomed to do, left for the shop at Langlaagte at about 05:00. They carried on business until closing time at 13:00. Before leaving the shop the appellant sent for a bottle of whisky at a nearby shebeen. He and Vusi then proceeded to J partake of some drinks. Thereafter the

Smalberger JA

A three of them left in the appellant's vehicle. They took the day's takings with them. At Vusi's request he was dropped in Hillbrow. The appellant and Mrs Cordeiro proceeded to their home. There they had a meal, and eventually both went to lie down and sleep. Meanwhile Vusi had made his way to Alexandra to the house of his brother, Mr Paul Peter Nyandeni ('the deceased'). There they were joined by Mr Isaac Nzimande ('Isaac') and Mr B Jochonia Modisaitsele ('Jochonia' - the complainant on count 3). The four of them went to Daveyton in Isaac's car to visit a brother of Vusi and the deceased. On their way back to Alexandra, Vusi asked Isaac to take him to the appellant's house. En route they stopped at a café where Vusi purchased cigarettes and a large bottle of Coca-Cola. On arrival at the appellant's house Vusi invited his companions to his room to share the C Coca-Cola he had bought. They entered the premises through the gate and proceeded along the driveway to the steel door. This was just after 17:00.

What has been set out thus far is either common cause or reflects factual findings made by the trial Court which are not in dispute for the purposes of the present appeal. With regard to the events that followed, particularly those surrounding the actual shooting, there was considerable D divergence between the State and defence versions.

According to the State witnesses (Vusi, Isaac and Jochonia) they walked down the driveway quite openly, past the two bedroom windows, to the steel door. It was locked. Vusi knocked on the door in the hope that Tandi Adams might be...

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66 practice notes
  • 2015 index
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...239S v De Koker 1978 (1) SA 659 (O) ...................................................... 97S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 76S v Delport 2015 (1) SACR 620 (SCA) ................................................. 235-7S v Dlamini 2012 (......
  • 2014 index
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...103S v De Blom 1977 (3) SA 513 (A) ....................................................... 44, 212S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 68S v De Vries 2012 (1) SACR 186 (SCA) ................................................ 81S v Dhlamini 197......
  • 2016 index
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...87S v Dalindyebo 2016 (1) SACR 329 (SCA) ........................................... 63S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 57-58S v De Villiers 2016 (1) SACR 148 (SCA) ............................................ 202S v Delport 2016 (2) SAC......
  • 2012 index
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...399-400S v De Jager 1965 (2) SA 612 (A) ......................................................... 182S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 88S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) ......................
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52 cases
  • S v Pakane and Others
    • South Africa
    • Invalid date
    ...(1) SACR 116 (SCA): referred toS v Botha 2006 (2) SACR 110 (SCA): comparedS v Burger 1975 (2) SA 601 (C): referred toS v De Oliveira 1993 (2) SACR 59 (A): referred toSvE1979 (3) SA 973 (A): referred toS v Fatyi 2001 (1) SACR 485 (SCA): referred toS v Hadebe and Others 1997 (2) SACR 641 (SCA......
  • Snyders v Louw
    • South Africa
    • Invalid date
    ...v Patel 1959 (3) SA 121 (A): dictum at 123D–E appliedR v Zikalala 1953 (2) SA 568 (A): dictum at 573A–B appliedS v De Oliveira 1993 (2) SACR 59 (A): dictum at 63i–64aappliedS v Dougherty 2003 (2) SACR 36 (W): referred toS v Engelbrecht 2005 (2) SACR 41 (W): referred toS v Makwanyane 1995 (2......
  • S v Dougherty
    • South Africa
    • Invalid date
    ...v Minister of Safety and Security and Others 1999 (1) SA 528 (SCA): compared R v Peverett 1940 AD 213: referred to S v De Oliveira 1993 (2) SACR 59 (A): applied S v Goliath 1972 (3) SA 1 (A): referred to S v Hartmann 1975 (3) SA 532 (C): referred to S v Ingram 1995 (1) SACR 1 (A): compared ......
  • S v Rossouw
    • South Africa
    • Invalid date
    ...(A): referred to S B v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): referred to S v De Oliveira 1993 (2) SACR 59 (A): dicta at 63i – 64b S v Francis 1991 (1) SACR 198 (A): referred to S v Hadebe and Others 1997 (2) SACR 641 (SCA): referred to S v Jochems ......
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16 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...239S v De Koker 1978 (1) SA 659 (O) ...................................................... 97S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 76S v Delport 2015 (1) SACR 620 (SCA) ................................................. 235-7S v Dlamini 2012 (......
  • 2014 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...103S v De Blom 1977 (3) SA 513 (A) ....................................................... 44, 212S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 68S v De Vries 2012 (1) SACR 186 (SCA) ................................................ 81S v Dhlamini 197......
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...87S v Dalindyebo 2016 (1) SACR 329 (SCA) ........................................... 63S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 57-58S v De Villiers 2016 (1) SACR 148 (SCA) ............................................ 202S v Delport 2016 (2) SAC......
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...399-400S v De Jager 1965 (2) SA 612 (A) ......................................................... 182S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 88S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) ......................
  • Request a trial to view additional results

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