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1984
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[1984] ZASCA 59
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S v Ngoma (59/84) [1984] ZASCA 59; [1984] 2 All SA 380 (A) ; 1984 (3) SA 666 (A) (25 May 1984)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the appeal of :
SIMON NGOMA
appellant
versus
THE STATE
respondent
Coram
: CORBETT,
JOUBERT, NICHOLAS, JJA, GALGUT Coram: et SMUTS, AJJA.
Date Heard
: 1 May 1984
Date of Judgment
: 25 May 1984
JUDGMENT CORBETT
JA
The deceased, Mrs G E Uys, lived with her husband, Mr G J C Uys, on the farm
Elandshoek in the district of Cullinan. On the evening
of Monday,
/ 15 November
2 15 November 1982, the two of them sat for a while in the
lounge of their home watching television. At about 21h00 Mr Uys went to
bed. It
was their custom to sleep in separate bedrooms when one of them stayed up after
the other had gone to bed. Mr Uys rose fairly
early the following morning. He
went outside into the garden to have a swim in the swimming pool. In passing the
bedroom in which
his wife was to have slept he noticed that the bed was
undisturbed. Outside he further noticed that a pane of glass in a glass door
giving access from the garden into the lounge was broken. He went to investigate
and found his wife lying dead in the lounge. She
had been shot. It
/ was
3
was a clear case of murder. A wrist-watch which the deceased had been wearing
was missing.
The police were summoned. They investigated the crime and three
days later the appellant was arrested. In due course he appeared before
a Judge
and two assessors in the Transvaal Provincial Division on charges of (1)
murdering the deceased and (2) robbing the deceased
of her wrist-watch or,
alternatively, of breaking into the home of Mr Uys with intent to steal and the
theft of the wrist-watch.
Upon arraignment the appellant pleaded not guilty to
count (1), viz. that of murder, and guilty to the main charge under count (2),
viz. robbery. The Court found him guilty on both counts
/ and
4
and in regard to the murder charge held by a majority, one of the
assessor members of the Court dissenting, that there were no extenuating
circumstances. He was sentenced to death on count (1) and to three years
imprisonment on count (2). The trial Judge granted appellant
leave to appeal
against the finding that in respect of count (1) there were no extenuating
circumstances.
As the trial before the Court a
guo
progressed it became apparent that
most of the material facts were not in dispute. The appellant is a young Black
man. The determination
of his age is a matter to which I shall allude later. He
grew up in Delmas. At the time of the trial both his parents were deceased,
but
an uncle
/ was
4 (a)
was evidently alive. At school he did not progress beyond
the sub-A standard. He entered the employ of Mr Uys some time during 1982
and
worked for him for about three months as an ordinary farm labourer. About six
weeks before the murder of the deceased the , appellant
and a companion broke
into the farm house while Mr Uys and the deceased were away and stole various
articles, including a ,22 rifle,
a 9,3 mm Husqvarna rifle and a quantity of 9,3
mm ammunition. The appellant appropriated the 9,3 mm rifle and his companion the
,22
rifle. Appellant hid the 9,3 mm rifle and the ammunition in a field of long
grass about 500 m from the farm house. Shortly thereafter
and because of the
breaking in
/ appellant
4 (b)
appellant absconded and disappeared from the farm.
On the day in question, 15 November 1982, the appellant travelled from the
home of his sister in the Dennilton district, where he
was staying, to
Bronk-horstspruit. He was on his way to Boskop. Upon his arrival in
Bronkhortspruit, he, so he says, purchased five
cartons of sorghum beer. He
drank three of those in Bronkhorstspruit. He then caught a train and travelled
by train as far as Van
der Merwe station, where he alighted. There he drank the
remaining two cartons of beer. This was at about sunset. Van der Merwe station
is evidently situated fairly close to the farm of Mr Uys. The appellant then
decided to go to fetch the
/ rifle
4 (c) rifle which he had stolen and hidden on the farm. He went
there and found the rifle. He then proceeded to the farm-house, carrying
the
rifle with him. He stopped on a lawn outside the lounge about 25 m from the
house. In addition to the glass door, the lounge
had large glass windows on the
side facing the lawn. The lights were on inside the lounge and the windows were
uncurtained. Appellant
saw the deceased in the lounge. He pointed the rifle in
her direction and a shot was fired. The bullet went through a pane of glass
in
the glass door and struck the deceased from behind on her left shoulder, two cm.
from the mid-line. It entered her neck and passed
through her mouth.
Fragments
of the bullet were found in the lounge. It was a soft —
/ nosed
5
nosed bullet designed to do maximum damage on impact. In addition, the
evidence of a ballistics expert indicated that the impact with
the glass
rendered the bullet an unstable projectile. The results of the bullet striking
the deceased were devastating. It caused
a large gaping entrance wound. It
shattered the first neck vertebra, certain facial bones and portions of the
skull. There was subdural
and subarachnoid bleeding. The doctor who performed
the autopsy gave, as the cause of death, this gun-shot wound "met misvorming
en
verbrokkeling van die rugmurg, skedel, ge-sigsbene en mond".
After firing this shot the appellant approached
/ the
6.
the house. He put his hand through the broken pane in the
glass door and opened the door from within. He entered the lounge. He saw
that
the shot which he had fired had hit the deceased. She was bleeding. He could not
tell whether she was alive or not. A handbag
was lying next to the deceased. He
looked inside this hoping to find money, but it contained only wool, presumably
knitting wool.
He then removed the deceased's wrist-watch from her body and
left. He took the rifle with him and again concealed it on the farm,
this time
in a different place about 800 m from the house. He then returned to Van der
Merwe station and continued on his way. The
following evening he gave the
wrist-watch to his sister,
/ Johanna
7 Johanna Ngoma, and told her that he had picked it up in a .
bus. On Thursday, 18 November 1982, appellant was arrested by the police
and
charged with murder and house-breaking. Appellant immediately admitted the
house-breaking and later conceded that he had shot
the deceased. He pointed put
various places, including where he had concealed the rifle, both before and
after the shooting.
The issue before this Court is whether in regard to the
murder conviction the finding by the majority of the Trial Court that no
extenuating
circumstances existed should stand or not, but before I come to deal
with this issue it is necessary to say something
/ about
8
about the appellant's age and the manner in which this issue was dealt with
by the Court a
quo
.
When the appellant initially appeared before the
magistrate of Cullinan, in terms of the provisions of
s. 119
of the
Criminal
Procedure Act 51 of 1977
, his age was stated in the charge-sheet to be 18 years.
The record of these proceedings was placed before the Court a q
uo
. Where
a person convicted of murder was under the age of 18 years at the time when the
crime was committed, the Court has a discretion
as to whether to impose the
death sentence or not. On the other hand, if the person concerned was not under
the age of 18 years,
ie was 18 years old or more, at the time of the commission
of the murder, then, unless there were extenuating circumstances,
/ the
9
the death sentence is obligatory. (See
s. 277
(2) of Act 51 of 1977.)
Thus only where the accused was not under the age of 18 years at the time when
the offence was committed
is it necessary for the court to decide whether
extenuating circumstances, in the technical sense, were present (although
naturally
such circumstances would be relevant on the question of sentence where
the accused was under the age of 18 years at the relevant
time). Consequently
the exact determination of an accused's age can be a matter of vital
importance.
It was presumably because of the provisions of s. 277(2) and
because, from the point of view of age, the appellant seemed to be a
borderline
case that the State caused appellant to be examined by Dr Burger,
/ the
10 the district surgeon of Pretoria, on 30 November 1982 and called
Dr Burger as a witness at the trial. In evidence Dr Burger stated
that as a
result of his examination of the appellant he determined his age as being at
least 19 years. He based this conclusion on
the fact that on both sides of
appellant's jaw the upper and lower three molars were well-developed and that
appellant exhibited
full secondary sexual development ("volledige
sekondêre seksuele ontwikkeling"). Precisely what was meant by this latter
criterion
and how accurate it is, either by itself or in conjunction with other
criteria, in determining age was never canvassed in the Court
below. Dr Burger
was, however, asked about the molar development
/ test
11
test. He stated, during evidence-in-chief:
"Dit word ervaar deur alle anatome en odontiste - ten minste in die
Engelssprekende wêreld - dat een individu met drie kiestande
aan beide
kante, bo- en onderkaak, was reeds 18 jaar."
and —
".... Dit is so betroubaar wat die voile stel van kieste betref dat 'n mens
met absolute oortuiging kan sê dat die per-soon
wat wel drie kieste net,
bo en onder, was reeds 18. Dit het ek nie een keer nie, maar verskeie kere al
bevestig met odontiste."
Under cross-examination Dr Burger reaffirmed this view
in very positive terms:
"Ek het vir u gesê drie kieste is teenwoordig alleen by mense wat 16 of
ouer is. Ek kan dit nie duideliker stel as dit nie....
Maar is dit glad nie moontlik dat iemand voor 18 al drie kiestande kan
hê
/ vanweë
12
vanweë 'n vinniger ontwikkeling nie?— Volgens die
opinie van professionele odontiste: nee. Daarom maak hulle die skeidslyn
met
absolute vertroue."
Dr Burger was asked whether even with this molar development test a two-year
tolerance ("tweejaar-speling") should not be allowed
to cater for individual
differences, but he said that this only applied in the case of persons who had
not developed three molars
and repeated the assertion that a person who had
three molars was 18 years old or more.
Dr Burger was asked by the trial Judge, who appeared at that stage to have
certain doubts, whether there was not another method of
age determination
involving X-ray photographs of the wrist bones. To
/ which
13
which he replied:
"O ja, Edelagbare, ja, maar dit is 'n bale duur proses. Ons kan dit
onmoont-lik nie met - ons doen so bale odonto's, dit sal die Staat
'n fortuin
kos. Maar, aan die ander kant, Roëntgenbepalings doen ons vir absolute
ouderdom, byvoor-beeld was die man 35, 40,45?
Was dit 'n kind van drie maande of
3 jaar oud? Dit is vir meer gedetallleerde bepaling van 'n spesifieke
ouderdomsgroep. Die bepaling
wat ons maak wat op die tande berus word
hoofsaaklik gemaak om te onderskei tussen persons onder 18 en dié bo
18."
When he came to give evidence the appellant stated that he was 17 years of
age. Under cross-examination, however, it appeared that
this was a mere estimate
and that appellant had no grounds for making this assertion.
In giving
judgment the Court a
quo
did not refer to any of this evidence, nor
indeed did it make
/ any
14 any express finding in regard to the age of the appellant. The
Court nevertheless appears to have proceeded on the basis that the
appellant was
at least 18 years of age for it found (by a majority) that there were no
extenuating circumstances present and as a
consequence thereof the Judge
considered himself bound to impose the death sentence.
There are certain general observations which I wish to make. In a case such
as the present one, where it appears that the age of the
accused is near the
critical borderline of 18 years, the correct determination of his age becomes a
matter of the utmost importance.
From the accused's point of view it may be a
matter of life or death. And it would be palpably contrary to
/ public
15 public policy and to the intention of the Legislature if
persons actually younger than 18 years were dealt with, in terms of s.
277(2),
on the factual basis that they were 18 years or older.
This raises the question of the onus of proof, a matter left open by this
Court in
S v Tsankobeb
,
1981 (4) SA 614
(A), at p 629 G - H; see also the
discussion of this point in Schmidt,
Bewysreg
, 2nd ed, pp 64-5. Again,
for reasons which will become apparent, I do not find it necessary in this case
to decide whether in such
cases the onus rests upon the State to prove that the
accused is 18 years or older, as argued by appellant's counsel, or whether
the
burden is upon the
accused to prove that he is under 18 years of age,
/ as ... .
16
as contended by the State, or whether the age of the accused is a
matter which must be determined by the Court without reference to
any onus. In
general, however, whatever the position may be in regard to onus, I am of the
opinion that in such border-line cases
the trial Court is under a positive duty
to investigate as exhaustively as is reasonably possible all evidence or
possible sources
of evidence which may assist it in the proper determination of
the age of the accused and to make a specific finding in that regard
(cf. S v
Mohlobane
,
1969 (1) SA 561
(A), at p 567 C - F). Obviously the best
method of determining the age of a person is to establish his date of birth.
There are
/ various
17
various ways in which this may be done. Parents or
close relatives
may be able to give direct evidence
of this. If the accused's birth was
registered in
terms of Act 81 of 1963 (or prior legislation), then
the date of birth as
recorded in the register and as
certified would constitute
prima facie
proof of this date
and therefore of age, and, in some instances, this
would
be the most reliable source of evidence. Baptismal
certificates,
though generally less reliable, may
also assist. If the date of birth cannot
be established,
then other evidence tending to establish the age of
the
accused may be resorted to, eg. evidence of persons who
have known the
accused for an ascertainable period of
/ time
18 time (which would establish that the accused was at least that
age or older), and medical evidence. As to medical evidence, a proper
clinical
examination of the accused would include not only an observation of his general
physical development, with special reference
to his teeth, but also X-ray tests
(see
S v Mohlobane
, supra, at p 567 F;
S v Van Rooi en Andere,
1976(2) SA 580 (A), at p 583 H). As I understand it, these X-ray tests are
directed at determining whether fusion of the epiphyses
and the shafts of the
long bones has taken place (see Gordon, Turner and Price, Medical
Jurispru
de
nce
, 3rd ed, p 343 ff). Other facts which may also
assist in the determination of age are referred
/to
19
to in
S v Seleke en Andere
,
1976 (1) SA 675
(T), at pp
689 H - 690 A.
In the present case there is no indication on the record that any steps were
taken to ascertain whether the appellant's birth had
been registered or to find
out whether any relative or other person could give reliable evidence as to his
date of birth, Cer-tainly
the Court itself does not appear to have made any such
enquiries. Dr Burger's clinical examination did not include X-ray tests. His
statement indicating that such tests were not done on the ground of expense
should not, in my opinion, have deterred the Court from
asking that appellant be
tested in this way. Moreover, Dr
/ Burger's
20
Burger's evidence appears to me to be somewhat
assertive. He quoted no authority in support of
his views. Gordon, Turner
and Price, op. cit., at
pp 343-4, state that the combined data obtained from
an examination of tooth development and the union
of epiphyses —
" allow one to determine the age to
within about two years because it is necessary to allow for individual
variations, the range of variation being approximately one
year in either
direction".
Although this point was raised in cross-examination,
the views expressed in this authoritative work were
unfortunately not put
to Dr Burger. (Cf also
S v Hlongwana
,
1975 (4) SA 567
(A) at p 569 C -
D.)
/ Had
21
Had the question as to whether or not appellant was under the age of 18
years at the time of the commission of the crime, been of
critical importance,
then, in my opinion, it would have been appropriate to refer the matter back to
the Trial Court in order that
it should hear further evidence on this issue,
make a specific finding as to age and deal with the matter accordingly (cf
S
v Mohlobane
,
supra
, at p 568 G - H). Since, however, I have come to
the conclusion that, contrary to the finding of the majority of the trial.
Court,
extenuating circumstances were present, the determination of age is not a
vital matter and it is not necessary to remit the matter
to the trial Court.
/ I come
22
I come now to the question of extenuating circumstances. All that was
stated by the trial Judge in regard to extenuating circumstances
was the
following:
"Die Hof het oorweeg of daar bewys is dat daar in hierdie geval versagtende
omstan-dighede bestaan, en dit oorweeg in dié opsig
of die optrede van
die beskuldigde minder verwytbaar is onder die omstandig-hede wat voor die Hof
gelê is, en die Hof het met
'n meerderheldstem tot 'n beslissing gekom dat
daar geen versagtende omstandig-hede is nie. Die een afwykende beslissing het
gevoel
dat weens die jeugdigheid van die beskuldigde en sy algemene
ongesofistikeerde agtergrond daar wel versagtende omstandig-hede bestaan,
maar
die meerderheidsbeslis-sing is dat daar geen versagtende omstan-dighedle is
nie."
In effect, therefore, no reasons were given for the majority finding on this
issue. In this connection I would draw attention to the
following remarks of
JANSEN JA in
S v Hlolloane
,
1980 (3) SA 824
(A), a case where the trial
Court had also found no extenuating circumstances without giving reasons, at p
825 C:
23
"Dik is onwenslik dat 'n Hof so summier 'n kwessie van soveel wesentlike
belang afhandel, en die gevolg in die onder-hawige geval
is dat by ontstentenis
van die Verhoorhof se redes, veel geredeliker tot die gevolgtrekking geraak kan
word dat die Verhoorhof sekere
aspekte oor die hoof gesien net of verkeerd
beoordeel het."
In view of the difference of opinion among the members of the Court as to the
issue of extenuating circumstances in the present case
it was, I think,
particularly desirable that the reasons of the majority for a negative finding
should have been stated.
The determination of the presence or absence of
extenuating circumstances involves a three-fold enquiry .(1) whether there were
at
the time of the commission of the crime facts or circumstances
/ which
24 which could have influenced the accused's state of mind or
mental faculties and could serve to constitute extenuation; (2) whether
such
facts or circumstances, in their cumulative effect, probably did
influence the accused's state of mind in doing what he
did; and (3) whether this influence was of such a
nature as to reduce the moral blameworthiness of the
accused in doing what
he did. In deciding (3) the
trial Court passes a moral judgment. (See S v
Babada
1964 (1) SA 26
(A), at pp 27-8;
S v Letsolo
., 1970 (3)
SA 476 (A), at p 476 G - H;
S v Sauls and Others
, 1981
(3) SA 172 (A), at p 184 C - D;
S v Smith and Others
.
1984 (1) SA 583
(A), at pp 592 H - 593 C.)
/In
25
In the present case the following facts or circumstances were advanced
as constituting extenuation:
(a) the age, background, immaturity and lack
of education and sophistication of the appellant;
(b) the fact that appellant's mental intent in
committing the murder was
one amounting to
d
olu
s eventualis; and
(c) the fact that shortly before the murder appellant
had consumed a
substantial quantity of intoxi
cating liquor.
As to the age of the appellant, the Court, as I have said, made no specific
finding, save that it
/ proceeded
26
proceeded on the basis that he was not under the age of 18 years. The
proper determination of the appellant's age was relevant not
only to the
question as to whether the Court had a discretion (in terms of s. 277(2) ) in
regard to punishment, but also to the question
of extenuation, see S
v
Mohlobane
,
supra
, at pp 567-8. And, as was pointed out in the case
just cited, the younger an accused is the more relevant evidence concerning his
background, education, level of intelligence and mental capacity in general
becomes when the question of extenuation is being considered
(at p 567 F -
G).
Dr Burger expressed the opinion that the appellant was at least 19 years of
age. As appears
/ from
27 from the passages from his evidence quoted above, the
application of the molar development test did not en-able him to say more
than
that the appellant was already 18 years of age. He did not explain why he found
the appellant to be at least 19 years old and
not 18 years old. It was very
fairly conceded by Mr De B
ee
r, who represented the State, both before us
and in the Court below, that the evidence did not establish that appellant was
more than
18 years of age and he presented his argument on that basis.
The role which youthfulness may play in the determination of extenuating
circumstances has been fully canvassed by this Court in the
cases of S
v
Lehnberg
/ en 'n Ander
28
en 'n Ander
,
1975 (4) SA 553
(A);
S v Van Rooi en
Andere,
1976 (2) SA 580
(A);
S v Mapatsi
,
1976 (4) SA 721
(A);
S v Ceaser
,
1977 (2) SA 348
(A). It is not necessary to repeat what was said in those cases.
It does, however, appear from those decisions that a teenager like
appellant
should
prima
facie be regarded as immature and that the court is
reluctant to find that there are no extenuating circumstances and to sentence
such a person to death, unless it feels compelled to do so by the circumstances
of the case.
Because the trial Judge did not give reasons for the majority
decision concerning extenuating circum-
/ stances
29 stances we do not have the benefit of the Court's
impressions of the appellant, whether he appeared to be immature and so on. It
would seem, however, that the assessor member of the Court who dissented
probably regarded the appellant as being immature because
of his youthfulness.
This appears to be borne out by the appellant's conduct in general, much of
which seems to lack a rational foundation.
He stole the rifle in the first place
in order, according to him, to shoot animals such as hares and guinea-fowl, yet
he hid the
rifle in a field and, according to him, did not use it prior to the
murder and did not know how it operated. The rusty state of the
bore of the
rifle at the time when it was
/ retrieved
30
retrieved by the police tends to bear out the former averment.
This was also confirmed by the ballistics expert, Lieut. Du Plessis,
who
expressed the opinion that the rifle could not have been used for
practice-shooting during the time that it was out of Mr Uys's
possession. The
appellant's explanation of how the shooting occurred, viz. that he pointed the
rifle in the direction of the deceased
and looked through the telescopic sight
and that he did not know how the rifle went off, was naive in the extreme and
rightly rejected
by the trial Court. Nevertheless, it is difficult to find a
rational basis for his actions. When he appeared before the Magistrate
the
appellant, in answer to the
/ Magistrates
31 Magistrate's question as to why he shot the deceased,
stated: "Dit was 'n ongeluk. Ek wou haar net skrik maak". This may be nearer
the
truth. Nevertheless, accepting that he wished to frighten the deceased into
submission in order to steal money or other valuables,
the firing of the shot
was calculated to raise the alarm and he must have known that Mr Uys was
probably in the house. He was not
to know that Mr Uys was sound asleep and in
fact would sleep through the whole episode. After his arrest the appellant seems
to have
co-operated fully with the police, showing them where he hid the rifle
and ammunition and pointing out various relevant places. He
made no attempt to
deny
/ his
32 his involvement in the initial breaking-in when the rifles were
stolen and, after initially prevaricating, he admitted shooting
the deceased as
well.
Of the appellant's general background little is known. He is virtually
uneducated and seems unsophisticated. His parents are no longer
alive. His only
previous convictions related to the housebreaking when the rifles belonging to
Mr Uys were stolen. These convictions
took place in April 1983, after
the
commission of the offences with which he was charged in the Court below.
This is the type of case in which,
in my opinion, the trial Court could have profited from
a report by a
probation officer (cf.
S v Jansen
and Another
/ 1975
33
1975 (1) SA 425
(A), at p 427 H - 428 A;
S v Hlongwana
1975 (4) SA 567
(A), at p 570 H - 571 A).
As to the appellant's mental intent when he shot the deceased, the Court a
quo
left open the question as to whether it was
dolu
s eventualis
or dolus
directus
. There was no need to make a finding as to which form
of
dol
us had been proved when bringing in the verdict of guilty of
murder, but it was important to decide which of the two it was when weighing
the
question of extenuating circumstances.
In my opinion, the State evidence does not establish more than
dolus
eventualis
. In other words,
/ the
34
the appellant fired the shot, not with the direct inten-tion to kill
the deceased, but knowing that the bullet might strike and kill
her and
indifferent to this possible result. There are three factors which tend to
indicate this. Firstly, it seems fairly clear
that, putting it at its lowest,
appellant was not adept in the use of firearms and it seems doubtful as to
whether, even at that
short range,he would have had the confidence to hit a
target at which he aimed. Secondly, there is the possible deflection of the
bullet by the pane of glass through which it passed. Thus he may not have been
aiming the rifle precisely in the direction in which
the bullet ultimately
travelled. Thirdly, he
stated in evidence that when the rifle went off the
deceased
/ was
35
was in the process of rising from her chair. There is no reason to
reject this evidence. In fact the circumstantial evidence, as interpreted
by
Lieut. Du Plessis, substantiates it. Having regard to the bullet's trajectory
and the height thereof above ground and floor level,
as reconstructed by Lieut.
Du Plessis from the point where the bullet penetrated the pane of glass and from
certain marks on the
opposite wall of the lounge made by bullet fragments after
passing through the deceased's head, it seems clear - and this was Lieut.
Du
Plessis's positive opinion -that the deceased could not have been sitting in a
chair when the bullet struck her. If then the deceased
was shot while in
/ the
36
the process of rising from her chair, it seems reasonably
possible that the appellant did not aim the rifle directly at her, but merely
in
her general vicinity. This would fit in with his explanation to the Magistrate
that he wanted to frighten the deceased.
The trial Court made no finding in regard to the appellant's state of
sobriety. It merely referred to his evidence of having consumed
a quantity of
sorghum beer. Although appellant mentioned the drinking of the sorghum beer in
his evidence-in-chief, he did not allege
in-chief that this liquor affected him
or that it had anything to do with the commission of the crimes of murder and
robbery. It
was only under cross-
/ examination
37 examination that he averred that he was to some extent,
under the influence of liquor ("ek was nie so bale dronk gewees nie") on
the
night in question. It should also be noted that although he gave the Magistrate
a fairly full account of what happened that day,
he made no mention of having
drunk any sorghum beer. I do not think that appellant established the
consumption of intoxicating liquor
as an extenuating circumstance.
Having
considered all the relevant circumstances, the youthfulness and immaturity of
the appellant, his lack of education and unsophisticated
background and the
circumstances of the crime, and paying some regard to the fact that it was
committed with
dolus eventualis
, I am of the opinion that the only
reasonable conclusion is that extenuating
/ circumstances...
38
circumstances were present. I do not think that in all the circumstances the
commission of the crime should be attributed to inherent
wickedness ("inherente
boosheid") on the part of the appellant. The majority finding of the Court a
quo
that there were no extenuating circumstances should consequently be
set aside and a verdict of murder with extenuating circumstances
substituted.
The consequence of such a finding is that in respect of the murder conviction
the death sentence, is not obligatory and that sentence
must be considered
afresh. Counsel were agreed that that should be done by this Court. All the
facts relevant to the question of
sentence on the murder conviction which
appear
/ from
39
from the record having already been stated in considering the question
of extenuating circumstances. Obviously the crime committed
by the appellant was
a very serious one. The deceased was shot while she was relaxing quietly in the
apparent security of her home;
and the appellant then proceeded to steal the
deceased's wrist-watch. Having considered all the circumstances I think that an
appropriate
sentence in respect of the conviction of murder is 15 years
imprisonment. The sentence of 3 years imposed by the trial Court in respect
of
the conviction of robbery with aggravating circumstances should run
concurrently.
It is accordingly ordered that the appeal
is
allowed; the verdict of the Court a
quo
convicting
/ the appellant
40
the appellant of murder with no extenuating circumstances and the death
sentence imposed by the Court a
quo
are set aside; and there are
substituted a verdict that the appellant is guilty of murder with extenuating
circumstances and a sentence
of 15 years imprisonment. It is further ordered
that the sentence of 3 years imprisonment imposed by the Court a
quo
in
respect of the conviction of robbery with aggravating circumstances shall run
concurrently with the aforesaid
sentence of 15 years.
M M CORBETT
JOUBERT JA) SMUTS AJA)