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[1988] ZASCA 11
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S v M (11/1988) [1988] ZASCA 11; [1988] 4 All SA 456 (AD) (11 March 1988)
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IN THE SUPREME COURT OF SOUTH
AFRICA
APPELLATE DIVISION
In the matter between
B.R.M.
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HOEXTER, HEFER, JJA et NICHOLAS AJA.
HEARD
: 19 FEBRUARY 1988.
DELIVERED
: 11 MARCH 1988.
JUDGMENT
HEFER JA
:
Subsec
(1) (a) of sec 277 of the Criminal Pro-
cedure Act No 51 of
1977 provides that sentence of death
shall
2
2.
shall,
subject to the provisions of subsec (2), be imposed
upon
a person convicted of murder. Subsec (2) reads as
follows
:
"(2)
Where a woman is convicted of the murder
of
her newly born child or
where
a person under
the
age of eighteen years
is convicted of mur-der or where the court, on convicting a person
of
murder, is of the opinion that there are ex-
tenuating
circumstances, the court may impose any sentence other than the death
sentence."
(My emphasis)
In
S
v
Ngoma
1984(3) 666 (A D) at p 671
CORBETT JA
said :
"
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 im-
portance. From
the accused's point of view
it
may be a matter of life or death."
In
3
3.
In
the present case it was indeed a matter of life
and
death. The appellant and a co-accused were convicted
of
murder. In appellant's case no extenuating circumstan-
ces
were found. In sentencing him to death the learned judge in the court
a
quo
said that he was compelled by law to do so "bécause he (the
appellant) was not under the age of 18 and extenuating circumstances
were not proved". Why there was this specific reference to
appellant's age will
presently emerge.
After
the appellant had been convicted, his counsel addressed the court on
the question of extenuating circum-
stances
and argued that his youthfulness was such a circum-stance. She
informed the court of his date of birth,
according
4
4.
according
to which he was 18 years and about 4 months old
at
the time of the murder. Counsel had obtained her
information
from the appellant himself and there was no con-firmation of the date
eg by the production of his birth cer-
tificate
or
by
a
wit
ness
who could reliably speak of it. The
appellant
is, moreover, an unsophisticated and apparently
uneducated
person. Not without reason, therefore, the
lear
ned
judge was sceptical about the reliability of the date
furnished.
The case was then postponed. Enquiries were
set
afoot and the appellant was examined radiologically in order to
determine his age. But it was all to no avail
because,
when the trial eventually proceeded, the learned judge was informed
that the appellant's birth certificate
could
5
5.
could
not be produced, that none of his relatives could be traced;and that
the radiological examination revealed no
more
than that he was 19 years or more at that stage (which
was
little more than a year after the murder had been com-
mitted).
The court was thus in no better position than
it
had been before the postponement; apart from his coun-sel's statement
it had no information of the appellant's age. But there
was a real
possibility that he could have been under the age of 18 at the time
of the murder and the question of his age could
therefore not be left
unresolved.
Counsel
for the State suggested that sec 337 of the Criminal
Procedure
Act (which provides for the assessment by the
court
of an accused's age by his
appearance
or
from
any avail-
able
...6
6.
able information) be invoked. The
learned judge refused
to assess his age in this manner.
He expressed himself
as follows in the judgment :
"If
this court was forced to make an assessment,
I
think
I
might
be inclined to say that (he is)
more
than 18 at this stage.
I
do not
know
what
a young man looked like a year ago. Young
people
change guickly in those years.
I
find
myself
unable to make an estimation which can
firmly
put the answer of the age of the accused
the
one way or the other."
The
following situation thus emerges : the appellant's
appearance
was such, and the information given to the court regarding the
outcome of the radiological examination re-vealed, that
he might well
have been under the age of 18 years at the time of the murder; this
being the case, it
was
7
7.
was
vitally important with a view to a proper sentence to determine his
age; but every effort to do so with
any
measure of certainty had failed and there did not
seem
to be any likelihood that further efforts would meet with greater
success. How then did the learned
judge
eventually come to say that the appellant was not
under the
age of 18?
What
actually happened, was that the
learned
judge ruled that there was an
onus
on the appel-
lant to
prove that he was under the age of 18 when he
committed
the murder and that he had not discharged the
onus
.
This appears from the following passage in the
court's
judgment:
"It
8
8.
"It
has not been finally decided whether the State or the accused should
prove that the accused is under the age of 18. Whereas
the
accused
must prove the extenuating circumstan-ces it seems to me that similar
considerations apply to the question of age. Frequently
the
accused
is in a position to give information about age which the State does
not have ..... He claims to have been born on 17 November
1967.
Even on his own claim he does not sug-
gest
that he was under the age of 18 when the
crime
was committed
As far as
the fin-
dings
of fact is concerned he does not even sug-
gest
that he was under the age of 18, or in any other way indirectly to
create a degree of fac-tual basis for thinking that he was
under the
age of 18. This court would be speculating totally if this court were
to say that he was
under the age of 18."
Having
thus overcome the problem of the appellant's age and having found
that there were no extenuating circum
stances,
the learned judge sentenced him to death but granted
him
9
9.
him leave to appeal against his
sentence.
Two
questions were argued in this court. The first is whether the learned
judge in the court a
quo
correctly ruled that it was for the appellant to prove his age, and
the second, whether the finding that there were no extenu-ating
circumstances is correct. Both these matters arise from the
provisions of sec 277(2) and, in order to distin-guish between them,
I
shall
refer to the provision relating to persons under the age of 18 years
as the second provi-
sion
(the first being the one relating to a woman convicted
of
murdering her newly born child) and to the one relating to
extenuating circumstances as the third provision. In the discussion
which follows any reference to the appel-
lant's
10.
lant's
or an accused's age should be construed, unless the context indicates
otherwise, as a reference to his age at the time when
the offence was
committed; it is his age at that time and not at the time of his
conviction that is re-
levant (
R v Rainers
1961 (1) SA
460
(A) ).
Counsel
for the State supported the court a
guo's
view that the second
provision can only be invoked if the accused proves that he was under
18 years of age when the
murder
was committed. He based his argument on the analogy
which
he sought to draw between the second and third pro-
visions.
The
onus
to prove extenuating circumstances
rests,
of course, on the accused (
R
v Lembete
1947 (2) SA
603
(A);
S
v Theron
[1984] ZASCA 1
;
1984 (2) SA
868
(A) ), It was accordingly
argued
11
11.
argued,
that likewise it is for the accused to prove that
he
was under the age of 18 if he relies upon the second pro-vision. In
my view the two cases are not analogous.
Save
that they both operate in favour of the accused to the extent that a
sentence other than the death sentence may in either case
be imposed,
the second and third pro-visions really have nothing in common.
Counsel for the State pointed out that the youthfulness
of the
accused is often relied upon in the context of extenuating
circum-
stances. This is
so; but a moment's reflection re-
veals
that the similarity between a case where youthful-ness is relied upon
in the context of extenuation, and a
case
12
12.
case
to which the second provision is applicable, is more
apparent
than real. It must be realized at the outset that
the
second and third provisions create separate
and
indepen
dent
grounds for the court's discretion to impose a sentence
other
than the death sentence. The position is accurately stated in
Hunt's
South African Criminal Law and Procedure
(2nd
ed) at p 376 :
"Where
'a
person
under the age of 18 years is convicted of murder', the age of the
convic-ted person
per
se
confers upon the court a
discretion
to impose a sentence other than
death.
In such a case it is thus not neces-sary for the court to enquire
whether extenu-
ating
circumstances exist, since such an en-
quiry
would do no more than confer a discre-tion which already exists by
virtue of the
accused person's age."
This is in accordance with the
decision in
Ngoma's
case
(
supra
)....13
13.
(
supra
) where it was said
(at p 670) that
"(w)here
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 cir-
cumstances,
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 commit-
téd
is it necessary for the Court to decide whet-
her
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). "
(See also
S v Harman
1978(3) S A 767 (A) at p 770.)
The
grounds for the discretion in terms of the second
provision.
are, moreover, not only independent
of, but
also
entirely
14
14.
entirely
different from those giving rise to the discretion
in
terms of the third provision. The approach of the courts
to
the question of extenuating circumstances is trite. It emerges from
decisions like those in
S
v Babada
1964 (1) SA
26
(A) at p 27-9,
S v
Letsolo
1970 (3) SA
476
(A) at p 476 and
Ngoma's
case (
supra
at p 673) that the enquiry as to their existence involves not merely
the proof of facts or circumstances which could have influenced
the
accused's state of mind or mental faculties in the commission of the
crime, but also the further guestion whether they probably
did
influence him, and whether the influence was of such a nature that
his moral blameworthiness is reduced. The first two legs
of the
enquiry involve pure matters
of
15
15.
of fact and the third one a moral
judgment on the court's part. In the case of a murder committed by a
youthful accused, although
his age is obviously relevant (see
Ngoma's
case
at p 674), it is not his age or his youthfulness as such,
but
the immaturity flowing therefrom, which may, in a proper
case
and with due regard to other factors, afford grounds for a finding of
extenuating cases. As appears from the
judgment
in
S
v Rooi en andere
1976 (2) SA 580
(A) at
p 585
the real question in such cases is
"of
die beskuldigde as gevolg van onvolwassen-heid, gebrek aan
lewenservaring, onbesonnen-
heid,
of vatbaarheid vir beïnvloeding met min-der laakbaarheid bejeën
behoort te word al dan
nie."
If all this is taken into
consideration and compared
with
16
16.
with
the position in terms of the second provision, the distinction is
plain. In the case of an accused under the age of 18 years
all that
is relevant is his age; no
fact
or no circumstance need be shown which could have in-
fluenced
or did influence his state of mind or mental facul-
ties;
it matters not whether his youthfulness or immatu-rity played any
part in the commission of the crime; and, perhaps most importantly,
he need
not
cross the barrier of
the
court's moral judgment in order to invest the presiding
judge
with a discretion to impose a sentence other than
death.
The
suggested
analogy
of extenuating circumstances can
thus
not be used to decide the question of the
onus
of
proof
17
17.
proof
for purposes of the second provision. How then is
that
question to be decided?
In
the
Lembete
case (
supra
at p 609) it was said that
the
incidence of the
onus
"depends of course on the
interpre-
tation
to be given to the language of the section, and light may be thrown
on the question by the application of the gene-
ral
principles in regard to the incidence of the
onus
".This
is
the approach which
I
propose
to adopt in deciding where the
onus
lies in cases such as the present one.
There
is little in the wording of sec 277(2) from
which the
legislature's intention may be inferred. The
words
"where a person under the age of eighteen years is
convicted
of murder" provide no reliable clue. Nor can
anything
18
18.
anything
be made of the fact that the mandatory death sentence was introduced
in subsec (l)(a) of sec 277 "subject to the provision
of
subsection (2)"; it cannot be said
that
exceptions to a general injunction were hereby created
which
may be proved by some
one
who invokes one of the exceptions. For two reasons
I
am,
nevertheless, of the opi
nion
that the legislature did not intend to cast an
onus
on
the
accused. The first one flows from a remark in
Ngoma's
case
(
supra
at p 671) where CORBETT JA said :
"
it
would be palpably contrary to public
policy
and to the intention of the Legislature if persons actually under the
age of 18 years were dealt with, in terms of s 277(2),
on the
factual
basis that they were 18 years or older."
I
respectfully agree. And this is precisely what may
happen
if
19
19.
if
the
onus
were to be cast on the accused. Bearing in mind that the incidence of
the
onus
becomes relevant and decisive only where there is uncertainty arising
from the lack of evidence relating to the fact in issue,
it is clear
that, if the accused were
to bear the
onus
, the second pro-
vision
cannot be applied whenever there is no or insuffi-cient evidence of
his age. He will then be treated as if he were 18 years
or older
although (as in the present case) he may well have been younger.
Taking into account the legislature's avowed intention
of treating
persons under the age of 18 differently from others, such a result
could, in my view, not have been intended. Nor does
it accord
with
public policy.
The
20
20.
The
second reason is that sec 337 of the Criminal Procedure Act deals
expressly with the situation where there is no or insufficient
evidence of an accused's age. As mentioned earlier it permits the
court to assess his age in such a case by his appearance or from
any
available in-formation. This is the answer which the legislature has
provided to the problem which would otherwise be solved
by the
incidence of the burden of proof and it is hardly like-ly that the
Act would have contained such a provision had it been
the intention
to cast the
onus
of proving his age on the accused (or on the State, for that matter)
for pur-poses of the application of the second provision of
sec
277(2).
I
am
not unmindful of the shortcomings of sec 337.
To
21
21.
To
assess an accused's age with any measure of accuracy by his
appearance is neither easy nor satisfactory; in cases like the
present
one where he appears to be near the prescribed age, it may
indeed be impossible to say whether he is under or above it. It is
for
reasons like these that it has been said (e g in
S
v Seleke en Andere
1976 (1) SA
675
(T) at p
688) that sec 337 should only be used as a last
resort.
Naturally, the impossible cannot be expected and if the accused's age
cannot be assessed with the required degree of accuracy,
nothing
further can be done. But the uncertainty which then exists, must
enure for his benefit and not against him. He should not
be dealt
with as if he had already reached the prescribed age at the time of
the
murder
22
22.
murder.
The
problem which arose in the present case is by no means a novel one.
The law reports abound with decisions in cases where the
accused's
age was relevant fór purposes of sentence e g in terms of secs 334
ter and quat and sec 335 of Act 56 of 1955 or in
terms of sec 4(1) of
the Dange-rous Weapons Act 71 of 1968. In all these cases it was
held
to be the duty of the presiding officer to satisfy him-
self
as
to
the
accused's
age. (See e g
R
v Hadebe and Another
1960
(1) SA 488
(7);
R
v Hlongwane
1960(1) SA 309 (T);
S v Seleke en
Andere
(
supra
)
;
S v Swato
1977 (3) SA
992
(0);
cf
R v Matipa and Others
1959 (2) SA 396
(T);
S
v Manyololo
1969 (4) SA 356
(E);
R
v Malevu
1961 (1) SA
284
(N)
23
23.
284
(N) ). And in
S v
Danjana and Another
(judgment de
livered on 25
May 1973 and reported only in 1973(2) P H H(5) 81 ) this court
adopted the same attitude in a case
similar to the present
one.
Although
it is thê court's task to assess the ac-
cused's
age, the State and the accused both have an interest
in
ensuring as accurate an assessment as possible. Both par-ties should,
therefore, assist the court to the best oftheir
ability
to obtain all relevant information. It should not be left to the
concluding stages of the trial (as so often happens) before
proper
enquiries are set afoot.' It has be-come pratice for the accused's
age to be mentionéd in the indictment and it appears
that
investigating officers do
take......24
24.
take
the trouble to make some sort of enquiry before a charge is
preferred. But the courts have had occasion
to
remark on the unreliability of this type of information
because
its source is seldom known or, where it is known,
it
is usually of such a nature that it cannot be relied upon. If proper
enquiry is made timeously by the State and by defence counsel,
both
parties, or at least one of them, should be in a position to present
the court with positive evidence (thus rendering recourse
to sec 337
un-
necessary,)
or at
least
with sufficiently reliable informa-
tion
to make
a
fairly accurate assessment possible. The court's burden will be
appreciably alleviated if all those charged with the investigation
and presentation of the
case.......25
25.
case bears this in mind.
The
remaining question is what this court should now do to dispose of the
case. It is clear that the ruling relating to the
onus
led the learned judge to the erroneous belief that the second
provision of sec 277(2) did not ap-ply and that he had no discretion
to pass a sentence other than the death sentence unless extenuating
circumstances were proved. Amidst the irresoluble uncertainty
regarding the appellant's age and in view of the fact that there was
a real possibility that he could have been under the age of
18 years
at the time of the murder, he should not have
been
dealt with as if he had already reached that age. There
was
thus no need for the court to enquire into the existence
of
26
26
of
extenuating circumstances nor is it necessary for this court to do so
now. The learned judge has not exercised the discretion
which he had
to impose a lighter sentence but counsel were agreed that this court
is in as good a
position
as the learned judge to pass a proper sentence
and
requested us to do so. Seeing that all the relevant
information
is before us, we will accede to
the
request. In all the circumstances of the case
I
consider
a sentence
of 12 years imprisonment
appropriate.
The
appeal succeeds to the extent that the death
sentence
imposed on the appellant is set aside. Substituted
therefor
is a sentence of imprisonment for 12 years.
J J F
HEFER JA
HOEXTER
JA. )
CONCUR.
NICHOLAS
AJA. )