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[1986] ZASCA 131
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S v S (211/86) [1986] ZASCA 131; [1987] 4 All SA 114 (AD) (27 November 1986)
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CASE
NO. 211/86
/CCC
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In
the matter between
T.M.S.
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
BOTHA
JA,
BOSHOFF
et
NESTADT AJJA
HEARD
:
14 NOVEMBER 1986
DELIVERED
:
27 NOVEMBER 1986
JUDGMENT
NESTADT, AJA
:
This/
2.
This
appeal is against the death sen-tence imposed on
appellant,
consequent upon him having
been found guilty of murder. The
issue is whether the trial court, consisting of Page J and two
assessors sitting in the Natal Provincial
Division, was correct in
finding that no extenuating circumstances existed.
The crime took
place on the morning of 20 November 1985 in the rural area of
Inhlazuka in the district of Richmond. The deceased
was a black,
fourteen year old girl. She had been sent by her mother to buy some
groceries at a shop in the vicinity of their kraal.
On her way back
home she
was accosted by appellant who, in
a nearby secluded spot, raped her and then killed
her/
3.
her by cutting her throat with a
knife or similar instrument.
Appellant was born on 16 December
1966, He was therefore approximately 18 years and 11 months old at
the time of the offences (he
was found guilty of rape as well). This
meant that, being a youth, he was
prima facie
to be regarded
as immature. It would follow from this that extenuating circumstances
existed unless, having regard to factors such
as his mentality,
education and past history as also the nature of the crime and the
manner of and motive for its commission, his
personality or
development was, afterall, such that the inference of immaturity was
rebutted or neutralised.
In/
4.
In this
event he could be regarded as having acted from inner vice (inherente
boosheid) thus justifying a finding that no extenuating
circumstances
existed. This, in summary, is the broad effect, as
I
understand it, of the leading cases on the problem
of sentencing a youth found guilty of murder (see
S
v Lehnberg en 'n
Ander
1975(4) S A 553(A);
S
v Mapatsi
1976(4) S A 721 (A);
S v Ceaser
177(2) S A 348(A) and
S v Ngoma
1984(3) S A 666(A)).
The trial court, though hampered
by the absence of any credible evidence by appellant, adopted
this
approach. After
having,
on the issue of extenuation,
heard the somewhat unhelpful
testimony of a social worker who had interviewed appellant, it found
the following:
(i)/
5.
(i)
Appellant had had a disturbed home background
but
this did not cause him any significant
psychological trauma.
(ii)
He was of limited intelligence. He had in 1981 left school before
completing Std 3.
Nevertheless,
he gave the impression, in the witness box, of being a relatively
mature person for his age. This was confirmed by
his ability to
devise the untrue defence which he advanced the day after the crime
and subsequently.
(iii)
The murder was not to be viewed in isolation;
it
was intimately connected with the rape that preceded it. And the
latter crime,
being/
6.
being dictated by,"the
passion of lust"
and
committed on the spur of the moment,
was to some degree
attributable to appellant's inability to control his emotions as
effec-tively as a more mature person would have.
(iv) On the other hand there was
no suggestion that the deceased had enticed appellant to have
intercourse with her or provoked
him in any way.
(v)
The murder was committed with
dolus
directus
.
(vi) Appellant's motive was to
silence the
decsased so that she could not
bring him to bcck for the rape. On the authority of
S
v
/
7.
S v Ramatsheng
1977(3) S A
510(A), this was
not mitigating.
(vii) In acting as he did
appellant was not subject
to
anyone's influence.
Based on these findings the trial
court's conclusion,
was:
"Giving full weight to the
fact that his immaturity and consequent lack of emotional control had
a bearing on his decision
to rape the deceased and even accepting
that these factors also had some bearing on his decision to kill her
thereafter, we are
unable to accept that such bearing operated in any
way to lesson the moral blameworthiness of that decision... (W)e
consider that
the decision of the Accused to murder the deceased was
so inherently evil that it must have originated from innate vice."
Certain/
8.
In
argument on behalf of appellant, it
was suggested that there
were certain blemishes in the
court a quo's reasoning:
(i) One is its reliance on
appellant's demeanour in the witness box to infer that he was mature.
In
S v van Rooi en Andere
1976(2) S A 580(A) at 585 E, Corbett
JA cautioned against doing this in the following terms:
"Ek
mag ook byvoeg
dat ek
nie oortuig
is dat 'n
jeugdige
se graad van
volwassen- heid so geredelik
aan
sy optrede in die getuiebank gemeet
kan
word nie."
It is apparent
however,that it is not stated that it is wrong to
do it. Moreover, in casu, it was not the only factor that was used to
assess appellant's
maturity. His resourcefulness
in/
9.
in fabricating
a false defence was also (correctly, in my view) taken into account
in this regard. (ii) Another possible criticism
is the finding that
appellant killed the deceased in order "to stop her cries which
could attract people in the vicinity"
(as also to forestall any
possi-bility of her subsequently identifying him as her assailant).
I
am not sure that this is justi-fied on the
evidence. It was that she was heard to scream. But this may have been
whilst she was
being killed. However, this is not a criticism of any
significance. It cannot'affect the
conclusion/
10.
conclusion
as to the motive for the murder.
(iii)
Lastly, there is the court's reliance on the
principle
of
S
v Ramatsheng
(
supra
).
That was factually a different case. There the accused was an adult
aged 24, and the crime preceding the murder was not one of
rape but
of robbery. Nevertheless, bearing in mind that Page J was fully alive
to its dis-tinguishing features,
I
do not
think anything
turns on this point.
Indeed,counsel
for appellant disavowed
reliance
on any misdirections. And rightly so. It
was
not shown that the trial court in assessing whether
extenuating/
11.
extenuating
circumstances existed failed to take into account any relevant
factors. The suggestion advanced
in
argument that appellant, in killing the deceased, acted in panic, is
not borne out by any evidence; it is simply speculation.
In these
circumstances the
submission
was simply that no reasonable court could
have
come to the ccnclusion that appellant's youth was not such as to
sufficiently reduce his moral blame-
worthiness
so as to constitute extenuating circumstances.
In
this regard
S v
Matabane
1975(4) S A
564(A) was re-ferred to. Here the death sentence on a seventeen year
old, convicted of murder, was set aside and a
period of 20 years
imprisonment substituted. That was a
case/
12.
case,
however, not where extenuating circumstances were in issue but
whether the court's discretion had been
properly
exercised. In any event each case must be decided on its own
particular facts. Here the crime was a particularly heinous
one. The
medical evidence
was that
the wound had laid the neck open to the spine; all the antericr neck
structures had been severed; it would have taken some
considerable
force to inflict the injury. This was not a case where death ensued
as part of the rape
itself; the murder was a separate
and
subseguent act. Appellant would not appear to have
shown
any remorse. He failed (or was unable) to satisfactorily explain what
caused him to act as he
did/
did.
In my
opinion, the careful judgment
of
Page J was a balanced one. Looked at in the light
of
all the relevant factors the conclusion,. inherent in
it,
that the
prima facie
inference of immaturity arising
from
appellant's youth, had been rebutted and that appellant had
accordingly failed to prove extenuating
circumstances, cannot
be faulted.
The appeal
fails and is dismissed.
NESTADT,
AJA
BOTHA, JA
)
)
)
BOSHOFF,
AJA )