S v Qeqe and Another

• Jurisdiction: South Africa
• Judge: Diemont JA
• Judgment Date: 17 August 1990
• Citation: 1990 (2) SACR 654 (CkA)
• Hearing Date: 12 June 1990
• Counsel: L S Kalimashe for the appellants at the request of the Court W F Jurgens SC, Attorney-General, Ciskei (with him G W Visagie) for the State
• Court: Ciskei Appellate Division

Diemont JA:

This is an unusual case. The appellants are two young men who were charged in the A General Division of the Supreme Court of Ciskei with murder and with robbery with aggravating features. They pleaded guilty on both charges but after an explanation of their pleas had been tendered pleas of not guilty were recorded and the trial proceeded on that basis.

The evidence, much of which was undisputed, was to the following effect: The appellants attended an initiation ceremony on 7 January 1989 B at Fort Beaufort. Liquor was consumed by the appellants. After they left the ceremony they walked through the streets of the town to a garage where they obtained a lift from one Marius Venter in his light delivery vehicle. They sat in the cab with Venter. At some stage the vehicle was stopped and Venter was assaulted and strangled. Both appellants claimed that they were C intoxicated and had no recollection why the vehicle was stopped or why the assault took place. After the deceased had been killed the second appellant, Skotile, drove away. He returned after some time and the body was then burnt in an attempt to conceal the crime. The appellants then drove to Zwelitsha to the house of one, Nika, to whom they tried to sell the vehicle. They were unsuccessful. Later they attempted to set the 'bakkie' alight.

After his arrest the first appellant, Qeqe, showed the investigating D officer where he had hidden a sack containing a car radio and certain motor equipment. When the second appellant was arrested a week later he was found in possession of a wrist watch and a wallet which were identified as belonging to the deceased.

Both the appellants testified. They did not challenge the facts set out above. Qeqe alleged that the killing took place on the spur of the moment because he had taken too much liquor. He did not kill in order to E steal; the vehicle was taken to conceal the crime. He claimed that he was one of four persons who consumed four bottles of brandy at the initiation ceremony as well as a quantity of traditional beer. He also had in his possession half a bottle of brandy, some of which he drank in the vehicle. He had no recollection of how the assault commenced but remembered that F his companion Skotile throttled the deceased while he held him down.

Skotile told a similar story save that he claimed to have drunk even more than Qeqe drank. Prior to his going to the initiation ceremony he drank a bottle of Ship Sherry. At the party four of them drank six bottles of brandy. They then mingled with the crowd and drank traditional beer. He admitted that they had left the ceremony together, that they obtained a G lift in the deceased's vehicle, and claimed that he throttled the deceased after the latter had started hitting him. He then took the 'bakkie' and drove to his home to fetch a piece of string. He spoke to his sister and then returned after dark to the spot where the deceased was killed, and tied the legs with the string after the first appellant had set the body alight. Why the deceased's legs should be tied after he had been throttled and his body was burning was not explained. Skotile took the deceased's H watch and then drove with Qeqe to Fort Beaufort and to Zwelitsha where they tried to sell the vehicle to a relative, Zandesile Nika. Nika refused to buy the vehicle but gave them money to buy petrol so that they would drive away and not abandon the vehicle near his house.

The Court had no trouble in rejecting the evidence given by the appellants and coming to the conclusion that the State had proved beyond a reasonable doubt that the appellants killed the deceased in order to I rob him of his vehicle. They were therefore convicted on count one of the crime of murder. On the second count the appellants were found guilty as charged except that it was not proved that the motor car radio and the wallet were stolen from the deceased.

Both appellants gave evidence in extenuation. Appellant No 1 claimed that he was so drunk that he could not distinguish between right and wrong and that he could not remember what had happened nor why they had J killed the deceased.

Diemont JA

A Appellant No 2 gave similar evidence. He said that liquor had 'resuscitated' the natural wickedness in him and caused him to lose control. He did not know or remember any reason which had led him to kill the deceased.

The district surgeon for the district of Zwelitsha, Dr Gulam Peer, was also called by the defence, and questioned as to the effect of liquor on defective recollection. Under cross-examination he stated that he had B done no personal tests in the field of amnesia as a result of intoxication and stated that if the appellants had consumed the amount of liquor they alleged they had consumed they would be...