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[1989] ZASCA 172
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S v Cotton (115/1989) [1989] ZASCA 172 (1 December 1989)
LL
Case No 115/1989
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
VALENTINE COTTON
Appellant
and
THE STATE
Respondent
CORAM: VAN HEERDEN, MILNE, EKSTEEN, F.H.
GROSSKOPF JJA et NICHOLAS AJA
HEARD
: 29 NOVEMBER 1989
DELIVERED
: 1 DECEMBER 1989
JUDGMENT
VAN HEERDEN JA
:
2.
Early in the morning of 14 February 1987 the
body of
the late C P Nell ("the deceased") was found in
the bedroom of a flat in the
Hilton Plaza Hotel ("the
hotel") in Johannesburg. The cause of death was multiple penetrating wounds
involving both lungs and the main pulmonary tract. Prior
to his death the
deceased had been the manager of the hotel and had occupied the flat.
It also
appeared that the deceased's assailant(s) had removed an amount of R1 000 from a
safe in the hotel. A bunch of keys, including
the safe's key, which had been in
the possession of the deceased prior to his death, was missing.
As a result
of these events the appellant and two co-accused, Thring and Khumalo, were
arraigned in the Witwatersrand Local Division
on two charges, viz murder and
robbery with aggravating circumstances. The appellant was convicted on both
counts. His co-accused
were acquitted cm the first count and found guilty of
3.
theft on the second count.
The findings of the trial court on which the
appellant's convictions were based, may be summarised as follows. For a period
of some
three months from November 1986 the appellant was a lodger in the hotel.
He shared the room with his mistress. At the beginning of
February 1987 the
deceased ordered the appellant to vacate the room. The reason was the
appellant's failure to pay his account. The
appellant and his pregnant mistress
then had to search for other accommodation. On the evening of 13 February 1987
the appellant
and his co-accused proceeded to the hotel. The appellant entered
the building and later assisted Thring and Khumalo in gaining entrance
through
fire-escape doors. The threesome then made their way to the flat where, on the
appellant's instructions, Thring and Khumalo
took up positions in the kitchen
and the bathroom. The appellant waited in the bedroom. When the deceased entered
the flat he was
grabbed and choked
4. by the appellant. Thereafter he was
stabbed with a knife by the appellant and also by Thring and Khumalo, acting on
the instructions
of the appellant. Having regard to the weapon which was used
and the part of the body of the deceased where the wounds were inflicted,
the
only reasonable inference was that the appellant intentionally caused the
deceased's death.
The court also found that the appellant removed the
deceased's keys, unlocked the safe and took possession of the aforesaid amount.
Although not expressly so stated, the court was clearly of the view that a
motive for the stabbing of the deceased was to get hold
of the keys.
The
appellant denied that he entered the hotel during the evening in question and
said that he had no knowledge of the attack on the
deceased. As is apparent from
the above summary, his evidence was rejected by the trial court.
The appellant did not again testify when the
5. question of extenuating circumstances fell to be considered. His counsel,
however, called a psychia-trist, Dr Berman. It then transpired
that some time
prior to the trial a magistrate had issued a direction in terms of
s 78(2)
of
the
Criminal Procedure Act 51 of 1977
. This resulted in an enquiry into the
appellant's criminal responsibility being conducted by Dr Berman, the senior
psychiatrist of
Sterkfontein Hospital, and by a private psychiatrist, Dr Fine.
Eventually they brought out a joint report in which they concluded
inter
alia
that the appellant was a psychopath, but that there was nothing to
suggest that his ability to appreciate the wrongfulness of his
acts at the time
in question, or to act in accordance with an appreciation of such wrongfulness,
was affected by mental illness or
a mental defect.
When addressing the trial
court on extenuating circumstances, counsel for the appellant submitted that the
magistrate's direction
did not
6.
comply with the provisions of
s 79(1)(b)
of the Act inasmuch as he failed to
enquire from the appellant whether the latter wished to appoint a third
psychiatrist in terms
of para (b)(iii). The trial judge (Vermooten AJ) then gave
a ruling to the effect that the magistrate's direction "was not in accordance
with law" and that the joint report therefore had no legal efficacy as a report
in terms of
s 79.
The basis of the ruling was that the magistrate should have
informed the unrepresented appellant of "his right to have his own psychiatrist
appointed", and that his failure to comply with this duty constituted an
irregularity.
After some further discussion the court found that there were
no extenuating circumstances and imposed the capital sentence on the
first
count. On the second count the appellant was sentenced to 12 years'
imprisonment.
Subseguently the appellant obtained leave
7.
from this court to appeal against his convictions, and
also against the
death sentence based on the aforesaid
finding. As regards the convictions,
leave was granted
solely on the following grounds:
"Het daar 'n onreëlmatigheid plaasgevind deur-dat die landdros wat ... [die
Petisionaris] kragtens Artikel 78(2) van Wet 51
van 1977 vir observasie verwys
het t.o.v. sy geestes-toestand blykbaar versuim het om by die Petisionaris te
verneem of hy verlang
om h psigiater van sy keuse aan te stel kragtens Artikel
79(1)(b)(iii), of hom van sy regte in die verband te vergewis? Indien wel,
raak
sodanige onreëlmatigheid enigsins die Peti-sionaris se
skuldigbevindings?"
The following
rider was added to the order
granting leave to appeal:
"Afskrifte van die verrigtinge voor die landdros sover hulle betrekking het op
die Petisionaris se verwysing vir observasie moet
die appeloorkondes
vergesel."
A transcript of the
proceedings before the
magistrate was not handed in at the trial. The ruling
of Vermooten AJ was
apparently based solely upon
information supplied by counsel. However, it was not
8.
common cause, or even contended, that there was a
positive indication that the magistrate had failed to
draw the appellant's
attention to "his right to have
his own psychiatrist appointed". Indeed,
when
addressing Vermooten AJ counsel for the respondent
said:
"... I do have the full court proceedings of the magistrate, there is no
indication as to say whether the accused was offered an
opportunity or
not".
And
"There is no evidence under oath before this court that the court [i e, the
magistrate] did not in fact act in terms of
section
79
It is therefore difficult to
understand why,
when giving his ruling, Vermooten AJ stated that "according to the
information given by counsel" the magistrate failed to inform the
appellant of
his right to have a third psychiatrist appointed in terms of
s 79
(1)(b)(iii).
In compliance with the aforesaid rider a
9.
certified transcript of the relevant proceedings was
placed before this
court by counsel for the appellant.
It transpires that on 17 June 1987 the
appellant (as
accused 1) appeared before the magistrate. With a view
to
the committal of the appellant for observation the
prosecutor then led the
evidence of a police officer.
What occurred subseguently, is recorded as
follows:
"
KRUISVERHOOR BESKULDIGDE
(deur middel van tolk). Geen - ek stem met
alles saam. Ek versoek om vir observasie verwys te word. State Prosecutor no
further witnesses.
Accused 1 nothing else to say. State Prosecutor no address.
In terms of
Section 78(2)
of Act 51/77 the court directs that the mental
condition of accused 1 should be enquired into and be reported on in accordance
with
provisions of
Section 79.
Accused 1 is referred to Sterkfontein
Hospital."
It will be observed that it
does not appear
from the transcript that any psychiatrist was appointed
by the magistrate.
However, the magistrate also
completed two J 138 forms, the heading of which is
"Warrant for Removal of Person detained under
10.
Provisions of Chapter 13 to Institution for Enquiry".
From these it would
appear that the magistrate in terms
of
s 79(1)
(b) appointed Dr Fine and the
Medical
Superintendent of Sterkfontein Hospital (or presumably
a
psychiatrist appointed by the Superintendent).
In so far as it is material,
s 79(1)
reads as
follows:
"(1) Where a court issues a direction under
section 77(1)
or
78
(2), the relevant
enquiry shall be conducted and reported
on
-
(b) where the accused
is charged with
an offence for which the sentence of death may be imposed ....
(i) by the medical superintendent of a mental hospital designated by the court,
or by a psychia-trist appointed by such medical superintendent
at the reguest of
the court;
(ii) by a psychiatrist appointed by the court and who is not in full-time
service of the State; and
11.
(iii) by a psychiatrist appointed by the accused if he so
wishes."
In this court counsel for the appellant
supported the ruling of Vermooten AJ. He submitted i) that the magistrate should
have enquired
from the appellant whether he wished to appoint a third
psychiatrist under
s 79
(1)(b)(iii); ii) that the magistrate failed to do so;
iii) that this failure constituted an irregularity; and iv) that the subsequent
trial of the appellant was tainted by the irregularity which prejudiced the
appellant.
It is hardly necessary to say that if the second submission is not
well-founded, the others need not be considered. For reasons which
will appear,
it is indeed unnecessary to do so, or to dwell on the question whether the
appellant should not have applied for a special
entry to be made on the record
in terms of
s 317(1)
of the Act.
It is, of course, true that the transcript of
12. the proceedings in the magistrate's court does not reflect that the
appellant's attention was directed to the provisions of
s 79
(1) (b) (iii). In
my view,
however, the silence of the transcript in this regard does not give
rise to an inference that the magistrate in fact did not refer
the appellant to
the said provisions. It will be recalled that the transcript also does not
reflect the appointment of psychiatrists
under
s 79
(1) (b) (i) and (ii). It may
therefore well be that in the magistrate's view nothing more had to be recorded
than the substance of
his direction in terms of
s 78
(2); i e, his decision that
an enquiry be made into the criminal responsibility of the appellant. When it
came to the mechanics of
giving effect to that decision, the magistrate
completed the J 138 forms. It was only at this stage that the question of the
appointment
of a third psychiatrist could have arisen. And since the appointment
of psychiatrists under
s 79
(1) (b) (i) and (ii) was not recorded - otherwise
than
13.
by the completion of the forms - it cannot be deduced that, when turning his
attention to
s 79
(1), the magistrate did not ask the respondent whether he
wished to exercise the right conferred by
s 79
(1) (b) (iii).
There are
indeed indications that the magistrate did make such an enguiry. During
examination-in-chief on the merits the appellant
disclosed that he had been
examined by two psychiatrists - obviously Dr Berman and Dr Fine. His counsel
refrained, however, from
eliciting from the appellant the reason why he had not
been examined by a third psychiatrist. And when Vermooten AJ heard argument
before he gave his ruling, counsel for the respondent pointed to the failure of
the appellant to testify that the magistrate had
not drawn his attention to his
right to appoint a third psychiatrist. As appears from the extracts quoted
above, counsel for the
respondent went on to make the further point that there
was no evidence that the magistrate had failed to do
14. so. Had counsel for
the appellant been instructed that the appellant had in fact not been informed
of his said right, one would
have expected him to apply for leave to recall the
appellant cm this point. Yet he did not do so. In fact, he did not proffer a
reply
to the argument of counsel for the respondent. In the result it cannot be
inferred that the magistrate committed the alleged irregularity.
In. passing
I should mention that Mr Marais, who appeared in this court for the appellant,
did not represent him at the trial.
I turn to the trial court's findings on
extenuating circumstances. The court took into account the appellant's age (the
crimes were
committed on his 19th birthday) but held that he had acted from
inner vice. The only other factor relied upon at the trial and considered
by the
court, was the appellant's psychopathic condition. The court was of the view,
however, that the careful planning and preparation
15.
leading up to the murder ruled out any guestion of diminished responsibility
because of that condition.
In this court counsel for the appellant submitted
that the combined effect of four factors constituted extenuation, viz, the
appellant's
youth, his psychopathic affliction, his low intelligence and a
clouding of his mind as a result of the intake of liquor or drugs.
In regard to
the fourth factor the submission lacks any factual foundation: the appellant' s
version that he went to bed early on
the evening of 13 February 1987 because he
was drunk (and that he consequently was not in the hotel when the deceased was
murdered),
was rejected by the trial court, and it does not appear from the
evidence of his co-accused that the appellant was at all under the
influence of
alcohol or drugs. As regards the third factor, Dr Berman did say that the
appellant's intelligence is "borderline, verging
on dull/normal", but it also
appears that the appellant passed standard
16.
7 at school and that at some stage he was in full-time employment as a
security guard at a salary of R800 per month. He is therefore
not dim-witted in
any sense of the word. Moreover, there is no indication that his relatively low
intelligence played any part in
the planning and the execution of the attack on
the deceased.
The appellant's age is, of course, a
prima facie
indication of immaturity. However, the crimes were planned well in advance; the
appellant was the prime instigator, and it was he
who directed the execution of
the design. Hence there was no question of the appellant acting in response to
influences exerted by
his co-accused. As regards other possible influences, the
appellant may have felt aggrieved (although he did not say so when testifying)
because the deceased had in effect evicted him and his pregnant mistress from
the hotel. It does not appear, however, that the eviction
caused stress which,
because of his
17. youth, the appellant could not cope with. Indeed, although
vengeance may have played a part, on the probabilities the primary
motive for
the attack on the deceased was to get hold of his keys and thus to gain access
to the hotel's safe. Finally, on the aspect
under consideration, there is Dr
Berman's expressed impression that the appellant "is handling his immaturity
remarkably well".
The trial court dealt fully with the appellant's
psychopathic condition and it suffices to say that the appellant failed to show
that
that condition was related to the commission of the murder. So, for
instance, Dr Berman concluded that "his being a psychopath did
not affect his
control over his actions" at the time in question.
In sum, the trial court
did not misdirect itself in regard to extenuating circumstances and its finding
was not one at which no reasonable
court could have arrived.
The appeal is dismissed.
H.J.O. VAN
HEERDEN JA
MILNE JA
EKSTEEN JA
CONCUR
F.H. GROSSKOPF JA
NICHOLAS AJA