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1985
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[1985] ZASCA 92
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S v Smith (521/1984) [1985] ZASCA 92 (20 September 1985)
LL
Case No 521/1984
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ZWELINZIMA GOODWILL SMITH
Appellant
and
THE
STATE
Respondent
CORAM
: TRENGOVE, BOTHA JJA et NICHOLAS AJA
HEARD
: 30 AUGUST
1985
DELIVERED
: 20 SEPTEMBER 1985
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
The appellant was convicted of murder in the Supreme Court of Ciskei. The
trial Court (PICKARD J and two assessors) found that there
were no extenuating
circumstances. Consequently the appellant was sentenced to death. The trial
Judge refused an application by the
appellant for leave to appeal against the
sentence imposed upon him. Thereafter, pursuant to a petition addressed to the
CHIEF JUSTICE,
the appellant was granted leave to appeal against the finding
that there were no extenuating circumstances and against the sentence
of death.
Hence the present appeal.
The deceased in this case died as a result of a stab wound inflicted upon him
by the appellant during the evening of 17 January 1983
in the house of one
Wezile Nqaba, who was called as a witness for the State, and whose account of
what happened in the house can
be sum= marised briefly as follows. Present in
the house with
/Nqaba ...
3.
Nqaba were the deceased and the letter's brother. The
appellant entered the house and spoke to the deceased.
Inter alia
the
appellant asked the deceased why he had gone to the appellant's house with
witches, and whether he had gone there to bewitch
him. The appellant then
verbally abused the deceased. He said also that he could not be arrested by boys
who were "Sebe policemen".
(The deceased was a student policeman.) The appellant
produced and displayed a "zoll" of dagga and said that the deceased wanted
to
take that away from him. After further reviling the deceased, the appellant
produced a weapon from under his belt. To Nqaba it
appeared to be an assegai
with a blue handle, about 45 cm in length (as indicated). In the meantime one
Ndumiso had also come into
the house. He tried to intervene between the appel=
lant and the deceased, but to no avail. The appellant went towards the deceased
and with an underhand motion stabbed him once in the abdomen. A scuffle
ensued,
/during ...
4.
during which a table was overturned, causing the lamp in the
room to be extinguished. All those present hurried= ly left the house.
On
searching for the deceased, Nqaba found him in a certain yard and arranged for
him to be taken to hospital.
The deceased'd brother was also called as a witness for the State. He
confirmed the evidence given by Nqaba, save in respect of some
minor details
which are of no consequence.
The appellant in his evidence admitted his stab= bing of the deceased, but in
contradiction of the State witnesses put up a different
version of the events in
Nqaba's house, which was directed at casting the deceased in the role of the
aggressor and himself in the
role of one who was acting in self-defence. The
trial Court rejected the appellant's evidence in this regard. It was not
contended
on appeal (nor could it successfully have been contended) that the
trial Court was not justified
/in ...
5.
in rejecting the appellant's evidence in this respect. There
is accordingly no need to refer to the details of
it.
The appellant also testified about certain events that occurred prior to the
episode in Nqaba's house. In brief, he said the following.
At his own house,
whilst he was outside, he noticed three men stand= ing at his gate. He knew them
to be policemen. One of them,
who was the deceased, entered his house. After a
while the appellant followed him. He found that the deceased was searching the
house.
On being asked why he was doing so, the deceased gave an obscene and
insult= ing reply. He proceeded to search the appellant's jackets.
On again
being questioned, the deceased told the appellant that he, the deceased, was not
Muningiselele. The latter, so the appellant
explained, was a policeman who had
on a previous occasion killed a person in the pre= sence of the appellant, and
who would have
killed the
/appellant ...
6.
appellant as well, had he not succeeded in escaping. The
appellant took this remark of the deceased to be a threat against his life.
He
grabbed the deceased by the shoulders. The deceased struck at the appellant with
his fist, the appellant retaliated, and there
was a fight. Ultimately the
appellant succeeded in forcing the deceased out of the house and out of the
gate, but the deceased returned
and was again expelled from the appellant's
premises. When the appellant went into his house, the deceased followed him once
again.
The appellant was "annoyed", took a bread-knife from the house, went
outside, and chased the deceased, who ran out of the gate. The
deceased and his
two companions "called" the appellant, who then chased after them. He first
pursued the deceased's two com= panions,
then turned back to look for the
deceased. He went to a kraal in the direction of which the deceased had run; the
deceased was not
there, and someone at that place told the appellant to leave
the deceased alone. On
/leaving ...
7.
leaving the place the appellant noticed that Nqaba's house was
open. He went in, looking for the deceased, because he was "annoyed"
and wanted
to demand an expla= nation for the deceased's conduct. The appellant's version
of what happened inside Nqaba's house need
not be recounted, for, as I have
said, it was rejected by the trial Court in so far as it sought to show that the
appellant acted
in self-defence. What must be mentioned, however, is that the
appellant was emphatic in his evi= dence that, when he stabbed the
deceased, he
did not in= tend to kill him. He did not execute the stabbing motion "with great
force". The appellant also said, however,
that when he left the house he saw the
deceased running away and that he threw the bread-knife at him. In
cross-examination he said
that he did so because he was,"annoyed"; for that
reason, he admitted, he "wanted" the knife to hit the deceased and he did not
care
where it would strike him.
There was before the trial Court nothing to
gain=
/say ....
8.
say the appellant's evidence of what had transpired between
him and the deceased before their encounter in
Nqaba's house; the trial Court did not reject that part
of the appellant's evidence; and it is upon that footing that the question of
extenuating circumstances falls to be considered.
In the Court a
quo
the main fact relied upon as an extenuating
circumstance was that the appellant had acted under provocation when he attacked
the
deceased. The trial Court held:
"The provocation here, if any, was so little that we cannot consider it to be a
factor to reduce the blameworthiness of the
offence."
On appeal it was argued on behalf of the
appellant that it was open to this Court to re-assess the effect of the
appellant's provocation
by the deceased on the appellant's moral blameworthiness
in killing the deceased, and to come to its own conclusion in regard thereto,
because the trial Court had misdirected itself in respect of the
/related ...
9.
related question of the form of
dolus
with which the
appellant killed the deceased. In convicting the appel= lant, the trial Court
found that there was
dolus directus
on his part. It was contended that
this finding was not justified on the evidence; that the trial Court should have
found
dolus eventualis
; that the latter form of
dolus
was a factor
to be weighed together with the provo= cation in assessing the cumulative effect
of possible ex= tentuating circumstances;
that the trial Court had wrong= ly
precluded itself from doing so; and that a considera= tion afresh of all the
relevant facts would
justify a finding that extenuating circumstances were
present. In my opinion the argument on behalf of the appellant is well founded,
for the reasons following.
At the commencement of the trial it was formally admitted on behalf of the
appellant that the deceased's death was caused by the stab
wound inflicted upon
him by the appellant. However, the precise manner in which the
/wound ...
10.
wound led to the deceased's death is shrouded in mystery. The
State did not call the district surgeon who performed the post mortem
examination on the deceased; instead, a written report of that examination was
handed in as an exhibit, with the consent of the defence.
According to the
report, the examination was conducted on 25 January 1983. In the indictment it
is alleged that the deceased died
on 23 January 1983, some 6 days after he had
been in= jured. The report gives as the cause of the deceased's death the
following:
"Septicaemia arising from stab wound of the abdomen". It records a "5
cm sutured in= cised wound to the left subcostal region of
the abdomen". It
appears from the report that the deceased was probably subjected to surgical
treatment whilst in hospital; ref=
erence is made to a "laparotomy scar left
side" and a "drain to abdomen". The cause for, and nature of, the treatment are
not explained.
The report records a number of puzzling observations; I do not
propose to mention
/them ...
11.
them, for in the absence of explanatory expert evidence it is
not possible to draw any relevant inferences there= from. On the whole
it
suffices to say that the report fails to disclose any self-explanatory
information on significant questions such as the following:
whether the stab
wound was a superficial or a deeply penetrating one; the degree of force likely
to have been used in inflicting
the wound; the reason for the supervening
septicaemia; and whether the stab wound, by itself, could appropriately be
described as
a serious or dangerous injury, or as a relatively slight injury
that would not have resulted in death but for the chance supervention
of
septicaemia.
It will be recalled that the appellant testified that he did not intend to
kill the deceased and that he did not use a great deal
of force when he stabbed
him. From what has been said above it is clear that there was no medical
evidence before the trial Court
to controvert the appellant's evidence in this
regard. The trial
/Court ...
12.
Court nevertheless disbelieved the appellant's evidence that
he did not intend to kill the deceased. In this connection the trial
Judge, in
the judgment on conviction, mentioned two facts: first, the nature of the
instrument used (I shall assume this to be a
reference to the assegailike weapon
described by the State witnesses, rather than the bread-knife mentioned by the
appellant); and
second, the fact that the appellant subsequently threw the
instru= ment at the deceased with the intention that it should stab him.
As to
the nature of the weapon, I consider that to carry but scant weight in the
absence of evidence about the exact nature of the
wound inflicted by means of
it. As to the throwing of the weapon, I consider that that shows that the
appellant must have been extremely
angry, but that his conduct does not justify
the inference of a direct intention to kill, in the absence of evidence relating
to
the distance between the appellant and the deceased at that moment, of which
there was none. In
/the ....
13.
the judgment on extenuating circumstances the trial Court
went further. Dealing with an argument based on the fact that the deceased
died
from septicaemia some time after he had sustained his injury (a fact apparently
ac= cepted by the trial Court), the learned
Judge observed:
"that is purely a fortuitous situation, when one considers the nature of the
stab wound in the abdomen, and the weapon used to inflict
it."
He added:
"It was an extremely brutal attack, which could only lead to
death."
In my view it is clear, with respect, that
the trial Court misdirected itself. Concerning the nature of the wound, the
brutality of
the attack, and the inevitability of death, there was no factual
basis in the evidence for the trial Court's findings. It follows,
in my
judgment, that the trial Court's finding of
dolus directus
cannot be sus=
tained. It should have found
dolus eventualis
and it
/should ...
14.
should have addressed the question of extenuating circum=
stances upon that basis.
That brings me to a reappraisal of the nature of the deceased's provocation
of the appellant and its effect on the latter. In rejecting
provocation as an
extenuating circumstance the learned Judge expressed the trial Court's view that
the appellant believed that the
policemen were searching his house in the course
of their police duties. A perusal of the record shows that this is not an
accurate
and fair reflection of the appellant's evidence. The appellant did say,
in answer to a question by the trial Judge, that
"it came to my mind that they were doing their
job"
but his evidence following immediately
thereafter makes it clear that he did not believe that the policemen were
carrying out their
official duties in a routine and normal way, or in a due and
proper manner. On the contrary, as
/has ...
15.
has been mentioned, he thought that his life was being
threatened because of the deceased's reference to Muningiselele. The trial
Court
misunderstood the ap= pellant's evidence on this point. In the judgment on
conviction the trial Judge said that the deceased's
state= ment that he was not
Muningiselele should have been com= forting to the appellant because it
indicated that the deceased did
not intend to kill people. But that is obviously
not how the appellant interpreted the deceased's remark. He explained that on
the
occasion when Muningi= selele killed people in his presence, he, the
appellant, had managed to escape. The implication is plain:
had he not succeeded
in escaping, he, too, would have been killed. And in that fact lay the sting of
the deceased's remark: since
the deceased was not Muningiselele, the appellant
would not succeed in escaping from him, but would be killed. The learned Judge
said in his judgment that the deceased's reference to Muningiselele was
"really
/very ...
16. very insignificant." With respect, I do not agree. It provoked the
appellant into action; he grabbed the de= ceased, and a fist-fight
ensued; and
the other events followed as summarised earlier. It was in fact the de= ceased's
implied threat to kill the appellant
that trig-gered off the entire course of
events that eventually led to the fatal attack on the deceased.
The trial Court was of the view that when the appellant entered Nqaba's
house,
"he came in revenge and retaliation of the fact that the police had searched his
home and his clothing, presumably for dagga
..."
With respect, I consider that view to be an
over-simplified and inaccurate assessment of the appellant's conduct. The
deceased had
entered his home when he was absent from it. On being questioned,
the deceased gave the appellant an obscene and insulting reply,
and then
impliedly threatened to kill him. The appellant was justified in regarding the
deceased's conduct as unlawful, and it is
plain that
/he ...
17.
he was angered by it. The events that followed could only
have heightened the appellant's anger. The appel= lant was not asked to
explain
in what manner he was "called" by the deceased and his colleagues from outside
his yard, but it is clear that he was provoked
by them into chasing after them.
He must have been very angry, for he persisted in looking for the deceased in
spite of being admonished
to leave him alone. His anger persisted when he
entered Nqaba's house, as is evidenced by the way in which he berated the
deceased,
by the way in which he assaulted the deceased despite the attempted
intervention of Ndumiso, and by the way in which he thereafter
threw the weapon
at the deceased.
In my judgment the considerations mentioned above serve to reduce the
appellant's moral blameworthi= ness for the murder of the deceased,
so as to
constitute extenuating circumstances. It follows that the trial Court's finding
that there were no extenuating circumstances
/must ...
18.
must be set aside, as also the death sentence imposed on the
appellant.
Having regard to all the relevant circumstances, I consider a sentence of 8
years' imprisonment to be appropriate.
The appeal is allowed. The appellant's con= viction of murder without
extenuating circumstances and the death sentence imposed upon
him are set aside,
and there is substituted therefor a conviction of murder with extenuating
circumstances and a sentence of 8 years'
im= prisonment.
A.S. BOTHA JA
TRENGOVE JA
CONCUR
NICHOLAS AJA