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[1987] ZASCA 98
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S v Disten (106/87) [1987] ZASCA 98 (24 September 1987)
106/87/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
PIET DISTEN
Appellant
AND
THE
STATE
Respondent
CORAM: JOUBERT, JACOBS, JJA et NICHOLAS, AJA
HEARD
: 10 September 1987
DELIVERED
: 24 September 1987
JUDGMENT
NI
CHOLAS, AJA
Extension Inn is an hotel in the coloured area cf Upington. It is situated on
the east side of
the
2 the Keimoes road. On the west side of the road is a piece of
vacant ground, which, though sometimes referred to as a "park", is
no more than
open veld with a few trees, and grass and stones. One tree stands about 22
metres from the western verge of the Keimoes
road. It is about 4 metres high. At
a point about 29 metres south of the tree, the road is joined by a footpath,
which leads across
the veld to Blikkies coloured township.
On the evening of Saturday 1 March 1985 there was a dance at Extension Inn.
During the function, a man named Ricardo Clarke was stabbed,
and,after it was
over, a number of people were assaulted and robbed, and one was murdered.
Arising
3
Arising out of these
incidents
, three men stood trial at the end of
April 1986 before the Orange Circuit Local Division of the Supreme Court sitting
at Upington.
The court consisted of BASSON J and two as-sessors. The accused
were Petrus Phillips (accused No. 1); Charlton Esterhuizen (accused
No. 2); and
Piet Disten (accused No. 3). There were seven counts in the indict-ment.
Piet Disten was acquitted on counts 3 and 4
because of lack of evidence of identification. These
counts will not again be referred to. On the other
counts he was convicted and sentenced as follows:
Count 1. Assaulting Ricardo Clarke with in- 2 years
tent to do grievous bodily harm imprisonment
Count 2
4
Count 2. Attempting to murder Patrick 5 years' imprison-Jansen
ment
Count 5. Robbing Basie Titus with ag- 2½ years' im-gravating
circumstances prisonment
Count 6. Robbing Jacobus Booysen with 2½ years' im-aggravating
circumstances prisonment
Count 7. Murdering Jacobus Booysen with- Death
out extenuating circumstances The trial judge refused an application by
Disten for leave
to appeal against the finding on count 7 that there were
no extenuating circumstances and against the death sen-
tence, but leave was granted on a petition to the Chief
Justice.
The three accused were present at the dance.
They were in a group which included Hendrik Tieties (a
16-year old youth and one of the main witnesses for the
State
5 State), and two others. During the evening they smoked dagga,
and some of them consumed liquor. There was some evidence that Mandrax
was added
to the dagga pipe . Tieties said in evidence that Petrus Phillips (No. 1
ac-cused) smelt of liquor, and was under the influence,
but he could still walk
and talk properly. Piet Disten (No. 3 accused) was in the same condition. Piet
Disten said when giving evidence
that he consumed about five glasses of wine and
beer. He was affected by the liquor ("die wyn het in my bloed ingewerk en ek het
dronk geraak van die wyn"), and by the dagga. At some stage during the evening a
friend dropped a Mandrax pill into his wine -"hy
het gewerk aan my. Hy het my
taamlik dronk gemaak."
In
6
In answer to questions by BASSON J, he said that the liquor
made him drunk, but that he was not so drunk that he did not know what
was going
on about him. He could still think properly. He knew what he was doing and could
appreciate the difference between right
and wrong.
During the dance, a quarrel arose between Ricardo Clarke and one Gerrit
Scheepers. They came to grips. Ricardo was getting the better
of Scheepers.
Disten was unarmed at that stage, but Charlton Ester-huizen handed him an Okapi
knife, and Disten stabbed Ricardo with
it in the back. Disten said that he would
get Ricardo outside after the dance, but when the dance
was
7 was over,Ricardo had left. (This assault was the subject of Count
1.)
The dance finished shortly after midnight. People made their way out of the
hotel and across the Keimoes road towards the path leading
to Blikkies. A mobile
police station unit was parked in the veld near the path, but because there was
only one policeman on duty
and he could not leave the unit, the police had no
influence on the course of the events which followed.
The three accused and some others took up station under the tree. From there
they sallied out from time to time to attack passers-by
who were on their way
home to Blikkies.
Basie
8
Basie Titus, a 22 year old man, was one of
them. He was in a
group which included his girl-friend,
Sarie Olivier; Jacobus Booysen; and
Booysen's partner.
After the dance they waited a while for transport and
then
decided to walk home. Near the footpath' they were con-
fronted by Phillips and Disten, both of whom had knives.
Disten caught Titus by the shoulder, ordering him to
stand still. He went through his pockets and took from
him two amounts of R32,50 and Rl,85 respectively, and
Sarie's watch which Titus had in his back pocket. Disten
tried to remove Titus's trousers, but Titus knocked away
his hand. No. 1 accused stabbed towards his neck, but
he ducked and sustained only a scratch. Disten then
stabbed
9 stabbed towards Titus's chest, but caused only a super-ficial
injury. Disten and accused No. 1 then turned to Booysen and searched
him. Disten
tried to drag Booysen to the tree, but Booysen resisted. Accused No. 2 went to
Disten's help, and together they dragged
Booysen to the tree. Disten took off
Booysen's trousers and shoes and gave them to Esterhuizen. Disten stabbed
Booysen on the chest.
Booysen broke away in the direction of the mobile police
station. He did not get far, but collapsed on the ground, and was later
removed
from the scene by ambulance.
Booysen died as a result of the injuries he sustained. On
post mortem
examination, the cause of death was established as a stab wound into the
aorta.
The
10 The robbery of Basie Titus was charged in
Count 5
; the
robbery of Booysen in
Count 6
; and the mur-der of Booysen in
Count
7
.
Another victim was Patrick Jansen, the com-plainant in
Count 2
.
He was walking in the company of his wife Sarah and three other people. He had
just cros-sed the road, when he saw three men emerge
from under the tree and
come quickly towards them. Jansen stood his ground. There was a struggle, in the
course of which Piet Disten
and accused No. 1 stabbed him, one in the chest and
the other from behind. The three ran back to the tree. Jansen collapsed
unconscious,
and he knew nothing more until he woke up the next day in
hospital.
When
11
When medically examined he was found to have sustained two
stab wounds: one in the armpit, the other in the chest. He was in a critical
conditicn, as a stab wound had punctured the right ventricle and he lost a great
deal of blood. His life was saved only by emergency
surgery. In the trial
court's judgment on extenuating circumstances, BASSON J referred to three
matters as being possibly extenuating:
Disten's background; his youth; and the
influence of liquor, dagga and Mandrax. The conclu-sion of the court was that
taking all
these aspects into account, it could not, with the best will in the
world, conclude that the accused's age showed that he was im-mature:
the accused
was an adult who lived like an adult
and
12 and wanted to live like an adult. The liquor and the drugs etc
had no effect on him that evening: he con-ducted himself, as he
himself said,
like a sober person. The court could not in all the circumstances find any
ex-tenuation.
I shall deal in turn with each of these three matters.
BACKGROUND
CIRCUMSTANCES
.
Evidence in this regard was given by Piet Disten's mother, Mrs. Rachel
Disten, and by a qualified social worker, Mrs. Van Rooy. Mrs.
Disten, it
appeared from her evidence, was a simple woman, uneducated and of low
intelligence. She had difficulty in understanding
the
13 the questions which were put to her, and in answering them when
she did understand. Mrs. Van Rooy had not inter-viewed Disten.
She was in
attendance at the trial because the senior public prosecutor had requested a
probation of-ficer's report concerning accused
No. 2, and she was called by
Disten's legal representative because of her general background knowledge. She
knew something of the
Disten family as a result of the case of Mannetjie
Witbooi, who was convicted of murder (also committed at Upington) without
extenuating
circumstances in 1980. The finding of no extenuating cir-cumstances
and the sentence of death were set aside on ap-peal by this Court:
see
S v
Witbooi
1982(1) SA 30 (A), especially at 34 D-F.
Mrs
14 Mrs Disren said that Piet was born on 25 September 1965.
His father left Upington to look for work in Johannesburg when Piet was
5 years
old. He never returned to Upington - he was murdered in Johannesburg. The mother
was left without support, and had to bring
up 8 children with what she could
earn from washing and ironing. She was unable to exercise proper supervision
over the children.
Piet started school, but did not at-tend for long. He got
into bad company and drank and smoked dagga. When his mother remonstrated
with
him, he said that he would do what she told him, but then did as he pleased.
Unable to control him , she approached Welfare,
and he was sent to a
"verbeteringskool" where
he
15 he was kept for 2½ years until February 1985, a month before
the date of the crimes of which he was convicted. Mrs. Van Rooy
said that Disten
had grown up in unstable family circumstances: the mother was alone responsible
for supporting the children and
she had to move from place to place in an effort
to get suitable ac-commodation. At one stage they found a lodging at Witbooi's
place.
(It appears from the report of his ap-peal, that Mannetjie's stepmother
was a Mrs. Hendrik Disten. She might well have been a relative.)
Mannetjie was a
gangster and his influence on Piet was very strong and very prejudicial. Piet
got no recognition from his mother
- she could not exercise sufficient
supervision
and
16
and control; and he found recognition with the gang,
by
whom he felt accepted and with whom he felt at home.
BASSON J said in the course of the judgment
on extenuating circumstances:
"Die Hof moet natuurlik ook die beskuldigde se agtergrond in ag neem, maar
die beskul-digde se moeder het hier vir ons getuig dat
sy het haar bes probeer
met die beskuldigde. Sy het in moeilike omstandighede die beskul-digde
grootgemaak, maar die beskuldigde
het hier van 14/15 meen ek, het sy gesê,
het hy al sy eie pad begin volg en alhoewel hy vir haar gesê het hy sal
doen
soos sy sê, het hy kort
daarna.net
weer anders gedoen. Die beskuldigde het doodeenvoudig sy eie kop gevolg. Dit het
genoodsaak dat die beskul-digde na 'n verbeteringskool
moes gaan, soos nou deur
die Verdediging uitgebring, waar hy ongeveer twee en 'n half jaar was. Hy was
net uit die verbeteringskool
uit toe kom hy hier in Upington en die aand maak
hulle amok kan 'n mens sê."
In
17
In my opinion the trial court here adopted
a wrong
approach.
It appears to have formed the opinion that
Disten was of bad character.
That opinion was probably
correct, but it was irrelevant. What the Court
should
have considered was whether the accused's bleak and dis-
piriting
background,over which he had no control (such as
his disadvantaged childhood, the almost total lack of
supervision and good example,and the dire influence of
Mannetjie Witbooi) had formed him into the person who
committed the murder. By failing to consider this aspect,
the trial court failed to consider whether his background was an extenuating
circumstance, and so misdirected itself.
It is a matter for comment that the accused's
background was not more fully investigated. The trial
Court
18
Court should have been in possession of reliable informa-rion in regard to
such matters as the accused's stage of maturity, his experience
of life, his
powers of judgment and his susceptibility to influence by others. Without such
information, particularly in the case
of a teenager such as the accused, it is
difficult toconceive that a trial court can make a proper finding on the
life-and-death
question of the existence or not of extenuating cir-cumstances.
(Cf.
s v Van Rooi en Andere
, 1976(2) SA 580 (A) at 585 A-B.) At the least
the trial judge should have called for a probation officer's report and for
evidence
from the staff of the reform school. It is not known whether a
psychological assessment of Disten could have
been
19 been obtained, but it was almost a prerequisite to a proper
assessment of his case. YOUTH.
Disten was born on 25 September 1965, so that
he was still a teenager on 1 March 1985, the date of the murder.
In the judgment of the trial court on ex-
tenuating circumstances, BASSON J said:
"Maar die blote feit dat die beskuldigde destyds 19 was, beteken nie dat hy
onvol-wasse is nie. Die Hof moet dit ook oor-weeg. Beskuldigde
verskyn nou voor
die Hof. Hy is nou 'n jaar ouer, maar daar is by die Hof geen twyfel dat die
beskuldigde soos hy vandag hier voor
die Hof staan 'n volwassene is nie. Om vir
die beskuldigde vandag nog as 'n kind te behandel sal die
grootste
20
grootste fout van 'n mens se lewe wees, die
beskuldigde is nie meer 'n kind nie, hy is
'n volwassene, hy kom en gaan soos hy wil,
hy doen soos hy wil, hy neem sy eie besluite,
hy is nie meer 'n kind wat vatbaar is vir
dissipline van 'n ouer en dié soort mense nie."
Here the trial
court seriously misdirected itself. The fact that Disten was a teenager at the
date of the crime shows
prima facie
that he was immature. (See
S v
Lehnberg en 'n Ander
, 1975(4) SA 553 (A) at 561.) Whether he was mature at
the date of the trial (April 1986) (a matter on which BASSON J laid emphasis)
was irrelevant: what was important was his level of maturity at the date of the
crime.
The important guestion - namely,whether Disten's conduct ought to be regarded
as less blame-
worthy
21 worthy because of immaturity, lack of
experience of life, undeveloped judgment, etc, does not appear to have been
considered by
the trial court.
Nor in my opinion did the trial court have
before it information on which it could properly come to the conclusion that the
accused
was an adult. The fact that Disten came and went and did as he pleased,
and that he did not accept the shackles of discipline, is
not necessarily
evidence of maturity. On the contrary, all it may show is that he is a wayward
youth. Moreover, he had been submitted
to the discipline of a reform school for
2 years, and there had not been time before his ar-rest for an assessment to be
made of
his maturity or his
adjustment ...
22
adjustment to a free life.
INFLUSNCE OF ALCOHOL, DAGGA
AND DRUGS
.
BASSON J said that the trial court accepted that Disten had
consumed liquor on the night in question, and smoked dagga and possibly
had
taken other drugs. He said that what the court had to consider was their effect
on the accused. The conclusion was that his con-duct
was not that of a person
who did not know what he was doing: he did not act impulsively - his acts were
indi-cative rather of planning,
and deliberate execution of the plan over a
period. The learned judge said that the accused himself said that he was normal,
and
that other witnesses said that he knew what he was doing.
Most
23 Most of this is beside the point. At this stage of the case the
question was not whether the ac-cused knew what he was doing. The
questicn now
was whether the liquor and drugs he had taken had blunted his normal judgment,
or made it more difficult for him to
control himself, or made him reckless, or
otherwise re-duced the blameworthiness of his acts. These matters the trial
court did not
consider and the omission consti-tuted a misdirection.
CONCLUSION
.
Because the trial court misdirected itself in the respects indicated, it now
becomes the duty of this Court to consider the question
of extenuating cir-
cumstances
24
cumstances afresh; and if it finds that they were
pre-
sent, to substitute its opinion for that of the trial
court.
The applicable principles were put in a nut-
shell in the judgment of JOUBERT JA in
S v Mongesi
en
Andere
, 1981(3) SA 204 (A) at 207 C-H:
"Die bewyslas om die bestaan van versagtende omstandighede op 'n oorwig van
waarskynlikhede vas te stel, rus op 'n beskuldigde. Ten
einde dit te kan doen,
moet daar 'n feite-basis vir die Verhoorhof wees waarvan die bestaan van die
versagtende omstandighede afgelei
kan word. (
S v Ndlovu
1970(1) SA 430
(A) te 433H.) 'n Versagtende omstandig-heid is 'n baie wye begrip omdat dit dui
op 'n feit of omstandigheid, aanwesig
by die pleeg van die moord, wat die morele
skuld, die ver-wytbaarheid, van die beskuldigde ten opsigte van die dood van die
oorledene
verminder of minder laakbaar maak. (
S v Petrus
1969(4) SA
85
25
85 (A) te 94
in fine
-95A.) Die benadering wat deur 'n
Hof in 'n bepaalde geval gevolg moet word by 'n ondersoek om die bestaan van
versagtende omstandighede
vas te stel, is deur hierdie Hof soos volg
neergelê:
(1) of daar omstandighede is wat op die geestes-vermoëns of die
gemoedstoestand van die beskuldigde betrekking kon gehad het,
indien wel
(2) of sodanige omstandighede in die bepaal-de geval die geestesvermoëns of
gemoeds-toestand van die beskuldigde subjek-tief
beïnvloed het, en
(3) of die subjektiewe beïnvloeding van die beskuldigde se
geestesvermoëns of ge-moedstoestand van so 'n aard was dat die
beskuldigde
se optrede ten opsigte van die dood van die oorledene volgens die objektiewe
oordeel van die Hof daar-deur minder laakbaar
of verwytbaar
word."
In regard to (1), it is clear that there exist
such
circumstances in the present case, namely, Disten's
background; his youth;
and the fact that he had taken liquor
(including
26
including Mandrax) and smoked dagga on the evening in
question. These are all circumstances which bear on his state of mind at the
time of the commission of the crime. In regard to (2), such circumstances in
their cumulative effect probably did affect his state
of mind. As to (3) the
influence on his state of mind was in my opinion of such a nature that his
conduct in regard to the death
of Booysen was, viewed objectively, less
blameworthy. The accused was
prima facie
immature, and one gets the
impres-sion that this was in part a brutal game, committed by irresponsible
youths, aimed not so much
at plunder, as . at exercising power in order to
intimidate, by depriving victims of their trousers and shoes. In addition, there
was
the
27 the effect of liquor and drugs, and the accused's
back-ground.
The conclusion is, therefore, that the finding of the trial
court should be varied.
Counsel for both the State and the appellant were agreed that this Court
should itself impose sentence if it should find extenuating
circumstances. The
crime of which the appellant was convicted was a serious one, and it calls for
condign punishment.
The three accused,with others, lay in wait in the darkness of the tree, in
order to descend upon innocent passers-by (some of whom
were probably not in a
state of sobriety to offer serious resistance). They
used
28 '
used knives wantonly, and with a reckless and callous
disregard for the consequences to their victims.
After serious consideration
however, I have come to the conclusion that the case does not call f or the
ultimate punishment, and that
a sentence of imprisonment should be imposed. Por
the protection of the community it must necessarily be for a long term, but
there
must be considered the cumulative effect of this sentence and the
sentences imposed on the other counts.
The appeal is upheld. The verdict on Count 7 is varied and the sentence set
aside. For the verdict and sentence on that count the
following is substituted:
"Accused No. 3 is found guilty of murder with extenuating
circumstances
29
circumstances. He is sentenced to 15 years imprisonment. All
the sentences in respect of Counts 1,2,5,6 and 7 are ordered to run
concurrently."
H C NICHOLAS, AJA