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1990
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[1990] ZASCA 9
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S v Makie (414/89) [1990] ZASCA 9 (8 March 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(AP
PELLATE
DIVISION)
CASE NUMBER 414/89
In the matter between:
THAMSANQA MAKIE APPELLANT
and
THE
STATE RESPONDENT
Caram
: BOTHA, VAN HEERDEN JJA et GOLDSTONE AJA. Date heard: 23
February 1990
2 JUDGMENT
GOLDSTONE
AJA:
The appellant in this case was convicted by Williamson J and assessors
in the Cape Provincial Division on one count of murder and one count
of
attempted murder. On the count of murder no extenuating
circumstances
were found to be present and the appellant was sentenced to
death. On
the count of attempted murder the appellant was sentenced to four
years'
imprisonment.
The trial was the sequel to events which occurred on the late afternoon of
Sunday, 10 August 1986. The appellant and the deceased,
who had been living
together as man and wife, had an argument. The appellant walked off with their
young child. The deceased ran
to the home of one Albert Sogaxa. She told him
that the appellant had taken her baby. She asked Sogaxa to help her. Sogaxa, his
daughter,
Yoliswa Nqulwana and the deceased
3 drove in the deceased's motor
car to the home of the deceased's father,
one Nyiki. The latter joined them in Sogaxa's motor car and they drove
off
in search of the appellant and the child. They soon came across the
appellant
who was walking along the road carrying the child. Sogaxa stopped
the motor
car and the deceased and Nyiki crossed the road and approached
the appellant.
According to the State witnesses, the appellant made a
movement as if to hand
the child to Nyiki. With that he stabbed Nyiki
twice with a knife- once on the outer aspect of his left upper arm
and
onoa on the back of his neck. The appellant then proceeed to attack
the
deceased. At some point she was lying on the ground on her stomach.
The
appellant knelt next to her and stabbed her repeatedly. One of the
wounds
was fatal.
The version of the appellant was that he had taken the child with him
with
the consent of the deceased. Whilst he was walking down the road with
the child he felt someone grab him from behind. He thought that he was
being attacked and he took his knife out of his pocket. The attacker
attempted to take his child from him. He stabbed at the person and in
4 so
doing dropped the baby. Whilst he was stabbing his still unknown attacker,
the deceased ran between them and as a consequence he stabbed her.
The Court
a quo
, for good reasons, rejected the version of the
appellant. No evidence was led in an attempt to establish extenuating
circumstances.
The Court was therefore unable to make any findings as to what
had led up to the trouble between the appellant, the deceased and
Nyiki. The
leamed Judge
a quo
expressed his regret that the appellant had not taken
the Court into his confidence and, that being so, he held that no extenuating
circumstances had been established. Hence, the death sentence.
Scme months after the conviction, an application was made in terms of
section
316
of the
Criminal Procedure Act, 51 of 1977
, for leave to appeal against the
conviction and against the imposition of the death penalty. In terms of the
provisions of
section 316(3)
of ths Act, leave was also sought to lead further
evidence relevant to the issue of extenuating circumstances.
The appellant was recalled to the witness stand. He testified about two
5
serious head injuries he had sustained when he was a youth- one in 1976
and the other in 1981. In the first incident, when he was about 15
years
old, he was hit on the head with a hammer. He lost consciousness and
required
stitches in his scalp. In the second incident, when the appellant
was
about 21 years old, he was struck with a panga across the bridge of
his
nose. In the process, he received a head injury and lost his left
eye.
A glass eye was fitted. According to the appellant, these
injuries,
especially the second one, resulted in a change to his personality.
Ih
particular, he would easily lose his temper and become infuriated by
petty
matters.
The appellant also testified in scme detail conceming the history of his
relationship with the deceased and her father. The courtship began ih
1983. He was strongly disapprove of by Nyiki. In particular, the latter
objected to the fact that the appellant belonged to a different
church.
Eventually the deceased left home and moved in wïth the appellant in his
parents' home. Some months later the appellant
paid to Nyiki the sum of R1200 in
respect of lobola. From that time the deceased and the appellant
6 regarded
themselves as a married couple.
The relationship between the appellant and the deceased soon began to
deteriorate. Nyiki attempted to intervene but to no avail.
During 1985 the couple had a child. After the arrival of the child the
relationship between the appellant and the deceased worsened.
The appellant made
extended visits to her parents' home. On one occasion the appellant's mother
intervened and arranged a meeting
with Nyiki. The meeting was singularly
unsuccessful and especially so when Nyiki alleged that the
R1200 received from the appellant did not represent lobola but damages
for having impregnated his daughter. The meeting ended with the appellant
calling Nyiki a crook.
It would appear that Nyiki then reported the appellant's alleged misconduct
to the "People's Court". The appellant appeared before
the "People's Court"
where he was not allowed to testify in his own defence. He was sentenced to 60
lashes. The punishment was carried
out in front of Nyiki and the
7 deceased.
After 45 lashes had been administered, the deceased intervened
and stopped the beating. This was a very degrading and painful experience
for the appellant.
On the day prior to the murder, ie. 9 August 1986, the deceased arrived
at
the appellant's home with their child. The latter was ill and they
took him
to a doctor. The medicine prescribed by the doctor did not help
the child and
on the Sunday morning the deceased suggested to the appellant
that they take
their child to a witchdoctor later that day. The appellant
agreed.
Prior to the visit to the witchdoctor, the appellant drank some beer and
brandy. Whilst waiting to see the witchdoctor he drank gin
and more beer. On the
way back after the consultation it began to drizzle. The appellant Invited the
deceased to spend the night
with him. She refused, saying that she had a choir
practice. The appellant had heard that the deceased had been seeing another man
at choir practices and he was jealous of that association. He became annoyed and
grabbed the child from the deceased.
8
The deceased ran off to find help. It was shortly after that the deceased
retumed with her father, Sogaxa, and Yoliswa Nqulwana. When Nyiki called the
appellant and attempted to take the child, he lost his
temper and stabbed Nyiki.
He lost control of himself and attacked and stabbed the deceased. He said he
intended to hurt her but not
to kill her. He then went home. When he had heard
that the deceased had died, he gave himself up to the police.
Insofar as the events were within her knowledge, the appellant's mother, Mrs
Thelma Makie confirmed them. In particular, she spoke
of the appellant's changed
personality after the panga attack. She described it as a "drastic change in his
behaviour". With little
provocation, he would become angry. That evidence was
also corroborated by a family friend, Miss Fialiwe Lusa.
Evidence was led also of a psychiatrist and a clinical psychologist. Both
were of the view that there was a probability that the appellant
had suffered
brain damage and more particularly to the frontal lobe area. Dr Richard Oxtoby,
a clinical psychologist, adopted the
view expressed in a textbook
9 by
William Lishman that persons who had sustained that type of injury
"fail to maintain satisfactory relationships, lack perseverance, were
sometimes demanding, disinhibitted, interfering and aggressive...
Typically, the
patient is subject, under minor provocation, to sudden explosions of violent
behaviour which scmetimes brings him
repeatedly before the courts."
The psychiatrist, Dr Adriana Loen, is employed by the State at Weskoppies
Hospital in Pretorial After the conviction and sentence
of the appellant he was
referred to Dr Loen by the Department of Justice. Dr Loen agreed with the
general approach of Dr Oxtoby and
said that it was probable that the stress
factors operating on the appellant on the evening in question resulted in an
explosive
situation in whidh the appellant lost control of himself.
In a report to this Court, Williamson J states that he found appellant's
further evidence to have been substantially truthful. He
states also that
10
if the evidence had all been before him at the relevant time he would
have
found extenuating circumstances to be present and would have not imposed the
death sentence. He suggests that if he were to pass sentence
afresh, he would
impose a sentence of the order of 12 years' imprisonment, and order it to run
concurrently with the sentenoe imposed
on count 2, ie. 4 years'
imprisonment.
In terms of
section 316(4)
of.the
Criminal Procedure Act, 51 of 1977
, the
further evidence received by Williamson J is deemed, for the purposes of this
appeal, to be evidence taken or admitted at the
trial. The result
is that this Court is now obliged to consider afresh the guestion of
extenuating circumstances in the light of the further evidence.
The evidence discloses that there were very stressful factors in the life of
the appellant. Some of them, it is true, were of his
own making. He would appear
to have remained attached to the deceased and was jealous of her relationship
with another man. There
was long-standing conflict with his father-in-law and
the wounds, literally and figuratively, of his
11
experience with the "People's Court". The evidence indicated further that
when he stabbed the deceased, the appellant had lost complete
control of
himself. He was unable to cope with the situation. That inability would appear
to have been, at least in part, the result
of the brain damage which had been
sustained by the appellant. The liquor he had consumed on the day in question
may well have contributed
to his loss of control. His perception of the
provocative behaviour of the deceased and her father was not unreasonable. The
cumulative
effect of these circumstances, in my judgment, do constitute
extenuating circumstances which make the death sentence inappropriate:
see
S
v Meyer
1981 (3) SA 11
(A) at 16G-17B;
S v Shoba
1982 (1) SA 36
at
41A-B. Indeed, that was properly conceded by counsel who appeared on behalf of
the State.
In my judgment, the sentence proposed by the leamed Judge
a quo
is too
harsh. In any event, the appellant has been in the death cell for about three
years. The provisions of
section 282
of the
Criminal Procedure Act, 51 of 1977
do not permit a sentence of imprisonment in the circumstances of this case to be
antedated:
S v Mgedezi and Others
1989 (1) SA 687
(A)
12 at 716H-
717C;
S v Petersen
1989 (3) SA 420
(A) at 426I- 427B. In order
to avoid gross unfairness to the appellant, the period already served
by
him in prison should be deducted from the period already served by
the
period of imprisonment to which this Court considers the appellant
should
originally have been sentenced.
In all the circumstances, I am of the opinion that a sentence of 10 years'
imprisonment would have been appropriate. Having regard
to the period already
served by the appellant that period 'must be reduced to seven years. That
sentence shall run concurrently with
that of 4 years' imprisonment imposed in
respect of the count of attempted murder.
The order of the Court is as follows:
The death sentence imposed on the appellant in respect of his conviction for
murder is set aside and in place thereof he is sentenced
to seven years'
imprisonment, such sentence to be served together and concurrently
13
with the sentence of 4 years' imprisonment imposed cn the count of
attempted murder.
GOLDSTONE AJA
BOTHA JA )
VAN HEERDEN JA ) Concur.