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1991
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[1991] ZASCA 41
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S v Matlala (233/90) [1991] ZASCA 41 (28 March 1991)
Case
No 233/90 /wlb
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the appeal of:
MICHAEL MATLALA
Appellant
(Accused No 1 in court
a quo
)
and
THE STATE
Respondent
CORAM:
Hefer,
Nestadt et Milne JJA
DATE OF HEARING:
7
March 1991
DATE OF JUDGMENT:
28
March 1991
JUDGMENT
-1-
MILNE JA:
The appellant
and his former co-accused (whom
I
shall
call Accused 2) were charged with three coUnts: on count one with
housebreaking with intent to rob and robbery with aggravating
circumstances; on count two with rape; and on count three with
murder.
The appellant pleaded guilty to
counts one and two but not guilty to the murder charge. Accused 2
pleaded not guilty to all the charges.
The appellant and Accused 2
were convicted on all three counts. The appellant was sentenced to 14
years' imprisonment on count one
and to the death sentence on counts
two and three. Accused 2 was sentenced to 12 years' imprisonment on
count one and to the death
sentence cm counts two and three. The
trial court refused the appellant and Accused 2 leave to appeal but
in a
-2-
petition to the Chief Justice the
appellant was granted leave to appeal against (a) the conviction and
sentence in respect of the
murder charge and (b) the sentence in
respect of the rape. Accused 2 took the matter no further.
Save that there is no reliable
evidence as to which of the two killed the deceased the relevant
facts are, to a large extent, not
in dispute. They are as follows.
The deceased was a widow of 88 who lived on her own in a suburban
home. At the time when these offences
were committed Accused 2 worked
for her as a part-time gardener and in fact lived in an outside room
on the premises. As a result
of doing some work inside the house
Accused 2 learnt that the deceased kept quite a substantial sum of
money in the house and he
and the appellant planned to break in and
take this money. During the night of 2/3 December 1987 the appellant
and Accused 2 entered
the deceased's house through
-3-
a window, the burglar-guarding on
the window having first been bent so as to afford access to the
window. The deceased was raped firstly
by Accused 2 and then by the
appellant. The appellant and Accused 2 then left the deceased's home
with one blanket, three sheets,
one hand-towel, four pillow slips and
approximately R103 in cash. (They did not f ind the bulk of the
money). At some stage which
does not emerge clearly from the evidence
the deceased was manually strangled to death. She was found dead in
her bed the next day
at about 5 p m. The front door and the back door
had been locked and when her body was found the deceased had in her
hand the lock
of the security gate to the front door. Underneath her
hand was the key for this gate.
There is no doubt that the
deceased was strangled
-4-
to death and no doubt that either
the appellant or the Accused 2 strangled her. There was no proof
beyond reasonable doubt as to which
of them strangled her. The
appellant, by implication, suggested that Accused 2 had done so. This
was on the basis that after they
had each raped the deceased, the
deceased still being alive at that stage, and as they were leaving
the premises by the garden gate,
Accused 2 went back to the house
while he, the appellant, went on his way home and never returned. In
a statement which the appellant
had freely and voluntarily made to a
magistrate he made the same suggestion. Accused 2 gave a series of
versions which differed in
material respects from each other. It was
common cause that he had also made a confession freely and
voluntarily to a magistrate.
In his confession Accused 2 said that he
had strangled the deceased after a quarrel with her about money. In
that statement he
-5-
made no mention of the appellant.
In the proceedings in terms of section 119 of the Criminal Procedure
Act, Accused 2 pleaded guilty
to the murder and the rape and said
that the appellant had no knowledge of these charges. When he was
questioned in terms of section
112, however, Accused 2 denied that he
had raped or throttled the deceased or attacked her in any way. He
gave evidence at the trial.
His first version was that the appellant
had told him that he, Accused 2, must have intercourse with the
deceased and that he then
did and that the appellant had then
strangled her; but eventually in cross-examination he came forward
with the version that he himself
had helped to kill the deceased and
that he had done so to avóid identification. He said that she
was dead when they left
and that this is why they had not tied her
up.
The appellant's version may be
briefly summarized
-6-
as follows. At the suggestion of
Accused 2 he agreed to help him take money which Accused 2 said the
deceased had in the house. Accused
2 bent the burglar guards and thus
enabled them to get into the deceased's house through a window.
Accused 2 woke the deceased, who
was in bed asleep and asked for
money. The deceased wanted to scream and then Accused 2 "het toe
haar mond met die hand toegedruk".
Accused 2 told the appellant
to look for money but the appellant could not find money and took the
blanket, sheets and other articles
already referred to. Accused 2
asked him to hold the deceased and Accused 2 would show the appellant
where the money was. The appellant
held her while Accused 2 searched
under the bed for money. Accused 2 then undressed her and had
intercourse with her. When Accused
2 had finished having intercourse
he, the appellant, had intercourse with her. They leftthe deceased on
the bed and
-7-
"Ek
en die seun (Accused 2) is toe by die voordeur uit. Hy het my tot by
die straat vergesel en gesê hy gaan terug om sy
goed te gaan
haal. Ek het toe weggegaan en het hom nie weer tot vandag gesien toe
ons arresteer is nie".
The
appellant also testified that after they had raped the
deceased
she had walked to the front door and unlocked the
security
gate at their request, and that they had then
accompanied
her back to the bedroom where she had laid down
on the
bed. This is highly improbable, particularly in the
light of
the medical evidence that there was a 3 cm tear in
the
deceased's vagina which would have bled heavily, and the
fact that
there was no evidence of any blood between the
bedroom
and the front door of the house. Counsel for the
State also
pointed to various other unsatisfactory aspects
of the
appellant's evidence. For example, in his evidence
he said
that Accused 2 had just put his hand over the
deceased's
mouth whereas in his statement to the magistrate
he had
said that "hy haar keel toegedruk het". The
-8-
appellant's
version was that after they had raped the deceased they had left her
on the bed and left the premises without tying her
up or damaging the
telephone or indeed doing anything to prevent her from telephoning
the police -this notwithstanding the appellant's
allegation that he
and Accused 2 had accompanied the deceased back from the front door
to her bed because they were frightened that
she might telephone the
police if they did not accompany her. It was also submitted that the
appellant's version did not account
for various other injuries on the
deceased's body which are described in the post mortem report and to
which
I
shall
refer later. This is a valid criticism.
It follows that some parts at
least of the appellant's version cannot reasonably be true.
However, particularly in the light
of the fact
-9-
that Accused 2 admitted in his
confession to the magistrate that he had strangled the deceased and
pleaded guilty to the murder in
the section 119 proceedings it
certainly cannot be said to have been proved that it was the
appellant who strangled her.
The judgment of the court a quo
sets out the
evidence of all the witnesses in
great detail but the only
reasoning that one has is the
following:
"Die hof het eenparig tot die
slotsom gekom dat daar hoegenaamd geen twyfel bestaan dat ons hier te
doen het met 'n koue, voorafbeplanning
om in te breek of toegang te
kry tot die huis van die oorledene met die opset om die hoeveelheid
geld waarvan Beskuldigde nr 2 bewus
was met geweld van die oorledene
te neem as dit nodig was." (So far so good)
"Die getuienis is
oorweldigend dat toe daardie plan dat sy uitgelok word om die deur
oop te sluit nie werk nie,
hulle
met geweld toegang deurdie
venster gekry het en haar wakker gemaak het, en soos nr 2 gesê
het, haar eers oorrompel het en gedwing
het om die voordeur en die
veiligheidshek oop te sluit, en haar daarna teruggeneem het, haar
verkrag het, en in die proses van verkragting
haar ook verwurg het.
Ons is tevrede dat
-10-
op hierdie stadium beskuldigdes
besef het dat sy minstens Beskuldigde nr 2 goed ken en dat ten einde
te verseker dat sy nie getuienis
teen haar (sic) kan gee nie,
hulle
voortgegaan het om deur verwurging haar lewe te neem." (my
underlining)
This is, with
respect, not very helpful.
I
say
that because there is no attempt
to separate the conduct of
the appellant from that of Accused
2. This is briefly
adverted to in the following
passage at the conclusion of
the judgment:
" Wat klagte 3 betref, is dit
duidelik dat wat ge-beur het inderdaad is soos wat in die besonder
uit die getuienis van Beskuldigde
nr 2 blyk, dat sy oorweldig is en
dat na die rooftog en die verkragting hulle besef het dat hulle nou
die gevaar loop om uitgeken
te word en dat die drukking op die keel
gedoen was hetsy deur nr 1 of deur nr 2 of albei deurdat die een hom
vereenselwig het met
die handelinge van die ander, en dat daardie
handelinge gerig was daarop om haar lewe te ontneem en gevolglik
bevind die hof dat
hulle ook wat klagte 3 betref, skuldig is aan
moord soos aangekla."
No basis is set out for the
finding that there was a common
purpose which is implicit in the
court's reasoning. In the
-11-
above passage the trial court
appears to have placed reliance upon the evidence of Accused 2. It is
abundantly apparent from the evidence
of Accused 2 that he was a
totally unreliable witness.
It is accordingly clear that the
conviction on the murder charge cannot stand in the absence of proof
that the appellant and Accused
2 had a common purpose to murder.
There was clearly a common purpose to break into the house and rob
the deceased, but the appellant
was not proved to have foreseen that
in the execution of the robbery the deceased might be killed. True,
he admitted that he knew
that the deceased was elderly and frail ahd
that if she were attacked she could easily die. There is, however,
nothing to indicate
that he believed that more than minimal force
would be needed to effect their purpose. Neither of them was armed in
any way and indeed
it seems probable that one of
-12-
the reasons why
she was selected as the victim of the robbery was her patent
inability to offer any resistance. Counsel for the State,
however,
submitted that (a) the
appellant had a
motive for wanting the deceased to
be
killed because he appreciated the risk of her identifying Accused 2
which would get him in trouble as well as
Accused 2 and (b) that the probabilities were overwhelming that when
the appellant and Accused
2 left the house the deceased was already
dead; from which it followed that the appellant must have been
present when she was throttled.
He submitted that, in the
circumstances, the requirements had been satisfied for the
application of the principle of common purpose
as set out in
S
v Mqedezi & Others
1989(1) SA 687
(A) at 705I - 706B.
Support for counsel's first
proposition is to be found in the following passage of the
appellant's evidence:
-13-
"Nadat julle haar verkrag
het, moes u tog besef het dit is h ernstige saak en as sy bly lewe om
vir Nr 2 te identifiseer dan
was julle regtig in die moeilikheid? ---
Ja, ons het geweet dat deur die uitkenning van Beskuldigde 2 en 'n
rapport aan die polisie
sal ons in die moeilikheid beland."
This, however, loses much of its
force in the light of the
appellant's evidence that he and
Accused 2 had agreed
beforehand that the latter would
leave immediately after the
robbery so that, presumably, the
police would not be able to
trace him.
It was submitted that the fact
that both. the appellant and Accused 2 had left the deceased untied,
and the telephone in working order
meant that she must have been dead
at the time when they left. There is considerable force in this
argument but it is not the only
reasonable inference. On the
appellant's version the deceased had been raped twice. The medical
evidence establishes that this
-14-
would have caused serious
bleeding. The appellant may well have believed that she would be too
weak to take any steps to telephone
the police in time to prevent
them from getting away. There is no evidence as to the time it would
have taken for the police to get
there. On the evidence, it remains,
in my judgment, a reasonable possibility that the deceased was alive
when the appellant left
and, that as the appellant suggests, Accused
2 went back to, as it were "finish her off", in order to
eliminate any risk
of her identifying him. She knew Accused 2 well -
he lived and worked on her property. She had never seen the appellant
before.
Quite apart from this aspect of
the matter there is a further obstacle which the State has failed to
-15-
overcome. Even
if the deceased was dead by the time the appellant and Accused 2 left
the house, there is no firm evidential basis
for holding that the
appellant was proved to have manifested his sharing of a common
purpose
with the
perpetrator
to murder by himself performing some act of
association
with the conduct of Accused 2. He did, on his own version, perform an
act of association with the conduct of Accused 2
when the latter
raped her. He said that Accused 2 asked him to hold the deceased's
wrists while he searched for money. He did so
and admitted in answer
to a question by the trial judge that he had continued to hold her
wrists while Accused 2 raped her. It was,
however, not that conduct
which killed the deceased.
For all the aforegoing reasons it
follows that the conviction of the appellant on the murder charge
cannot stand.
-16-
I
deal
now with the sentence of death imposed on the appellant on the rape
charge.
The trial judge said in this
regard
" Wat verkragting betref, is
dit 'n uiters ernstige misdaad en veral verkragting van 'n weerlose
en brose ou mens soos wat die
oorledene was. Dit gaan egter verder.
Wat belangrik is, is die wyse van verkragting, en soos mnr Van der
Merwe tereg gesê het,
as dit 'n baie ernstige geval is,
afhangende van die omstandighede, het die hof ook die diskresionêre
bevoegdheid om die doodvonnis
op te lê. Dit sal die hof alleen
doen wanneer hy tot die slotsom kom dat 'n ander gepaste straf nie
toepaslik sou wees nie.
Ek kan my moeilik indink dat daar
'n ernstiger en 'n
meer wreedaardiger geval van
verkragting kan wees as waarmee ons in die geval van hierdie twee
beskuldigdes te doen het. Ek kan my
moeilik indink dat die samelewing
'n groter afsku kan openbaar behalwe miskien waar 'n klein dogtertjie
wreedaardig verkrag word,
as wanneer 'n ou dame in haar laat
tagtigerjare, amper negentig jaar, deur twee persone soos die twee
beskuldigdes so ernstig verkrag
word dat sy soveel beserings opgedoen
het aan haar liggaam en aan haar privaatdeel dat as dit nie was,
volgens professor Loubser
se getuienis, dat sy verwurg was nie, sy
moontlik kon gesterf het van die bloeding wat hulle veroorsaak het
met die geweld wat hulle
toegepas het indien sy nie spoedig mediese
behandeling gekry het
-17-
nie. Die hof is van mening dat dit
daardie kategorie verkragting is waar die gemeenskap met reg kan vra
dat die uiterste vonnis opgelê
word ...".
The learned trial judge, in my
respectful view, erred in finding, in effect, that this was a
particularly violent rape. There were
some injuries to the body of
the deceased other than the injury to her private parts but they were
not serious. They were: a small
tear on the bridge of her nose, a
superficial abrasion on the chin, the injuries caused in the
strangulation (which must be disregarded
for the purpose of
considering the sentence for rape), a very superficial abrasion on
the corner of the jaw, a superficial "brush
burn" abrasion
on the right knee (such as is caused by rubbing the skin with a rough
material), bruising of the left forearm
with a possible bite mark and
various areas of bruising of the mucous membrane of the mouth
consistent with the use of a gag. The
injury to the deceased's
private parts
-18-
consisted of a tear 3 cm in length
in the vagina into which
some pubic hair, possibly the
deceased's own, had been
driven. It was this tear which
would have caused serious
bleeding and in the words of Prof
Loubser
"Hierdie skeur sou as ernstig
bejeen kan word in die sin dat dit vry ernstige, selfs
lewensgevaarlike bloeding tot gevolg kon
hê en ook sekerlik dat
in die natuurlike verloop daarvan, dit wil sê as dit nie bétyds
geneeskundig en veral sjirurgies
versien sou word nie, sou dit deur
ernstige infeksiekomplikasies ook moontlik lewensbedrygend kon gewees
het."
This evidence of Prof Loubser
prompted the trial judge to
ask the question
"Kan u sê wat dit
veroorsaak het, is dit vereenselwigbaar met 'n gewone seksuele daad,
of nie?"
This elicited the reply
"Dit is in die ouderdomsgroep
van die oorledene sekerlik nie 'n buitengewone geweld wat hierdie
brose struktuur versteur het
nie."
The trial court may well
therefore, have
misdirected itself in this regard.
-19-
Be that as it may, the legal
position with regard to the imposition of the death sentence has been
changed by the provisions of the
Criminal Law Amendment Act, 107 of
1990 ("the Act"). It is now unnecessary to consider that
the court a quo correctly exercised
its discretion in deciding to
impose the death penalty. Whether it is the appropriate sentence in
the present case must now be determined
by this court in the exercise
of its own discretion. The effect óf the Act in rape cases was
considered by this court in
S v P
1991(1) SA 517 (A). In that
case appellant had been convicted on 13 counts which included rape,
robbery, housebreaking, culpable
homicide and assault with intent to
do grievous bodily harm. In respect of three of the four counts of
rape the appellant was sentenced
to death. The three rapes were
committed within a period of two and a half months in conjunction
with housebreaking and theft. The
trial court had taken into
-20-
account the
fact that the appellant was only 21 years of age at the time when he
committed these offences, the absence of
violence
in the previous offences committed by the appellant and the fact that
the three complainants were not
virgins.
He
nevertheless took into account against the appellant that
the
first complainant had been severely affected by the rape as had the
second complainant, who was six months pregnant at the time
of the
rape. The rape had also had a traumatic effect on the third
complainant. Reference was then made to earlier decisions of
this court in construing the Act, to the effect
that regard is to be had to the main purposes of punishment namely
deterrent, preventative,
reformative and retributive and to the
consequence that in deciding whether the death sentence is the only
proper one, consideration
would be given to whether these objects
could not properly be achieved by a sentence other than the death
sentence. GOLDSTONE JA
held at 523D that
-21-
" As far
as the deterrence of other prospective rapists is concerned it has
never been established, as far as
I
am
aware, that the death sentence is more efficacious than a long period
of imprisonment."
With regard to retribution,
reference was made to the
remarks of NICHOLAS AJA in
S v
J
1989(1) SA 669 (A) 682H-J
where he said the following
" In regard to retribution,
it is a remark of HOLMES JA which is apposite once more. In
S v
Matthee
1971(3) SA 769 (A) at 771D, he said that the evil of the
accused's deed may be
'... so shocking, so clamant for
extreme
retribution, that society would
demand his
destruction as the only expiation
for his
wrongdoing'.
Generally speaking, however,
retribution has tended to
yield ground to the aspects of
correction and
prevention, and it is deterrence
(including prevention)
which has been described as the
'essential', 'all
important', 'paramount' and
'universally admitted'
object of punishment."
In
S v P
the complainants
were not seriously physically
injured and there was no evidence
that established that they
would endure long-lasting
psychological , affects in
consequence of their experiences.
There was, however, the
22-
seriously aggravating circumstance
that the appellant in that case had, within a relatively short period
of time, committed four separate
acts of rape. The court there held
that the death senténce for each of the three rapes in
question might well be an appropriate
sentence but after much anxious
consideration concluded that the death penalty was not the only
proper sentence. The death sentence
was altered to one of
imprisonment for life.
I
am
in respectful agreement with this approach. Each case must, of
course, be decided on its own facts. In this case there are certainly
some aggravating features. The first is the age of the deceased. The
second is that the crime was committed in the privacy of the
deceased's home,
S v G
1989(3) SA 695 (A) at 705G. A further aggravating factor is that the
appellant assisted Accused 2 by continuing to hold the deceased's
wrists when Accused 2
-23-
raped her. On the other hand,
there is no reason to doubt the appellant's evidence that he was
induced impulsively to rape the deceased
when he saw Accused 2 raping
her. What is more, there is no proof that it was his rape that caused
the injury to her private parts.
He has no previous convictions
involving the commission of sexual offences and his only conviction
for violence was as long ago as
1979 when he was given a whipping as
a juvenile in terms of section 294 of Act No 51 of 1977. Here, as in
SvP, the evidence does
not establish at all that a very long sentence
of imprisonment will not result in the reform or rehabilitation of
the appellant.
The record of the appellant's previous convictions
reveals only two prison sentences viz: a sentence of six months
imprisonment for
theft in 1982, and a sentence of 2 years'
imprisonment for housebreaking with intent to commit theft and theft
on 20 March 1987.
He served slightly less than nine months of this
sentence. He
-24-
has never, therefore, served a
long period of imprisonmént.
The approach of this court in
S
v S
1987(2) 307 (A) is
instructive. In
that case the appellant, a man of
38 years
of age with five previous
convictions for assault with
intent to commit grievous bodily
harm and two previous
convictions for rape, broke into
the house of an elderly
woman at night,assaulted, raped
and throttled her. On the
murder charge he was found guilty
of culpable homicide,
there being no proof of intent to
kill and sentenced to
eight years' imprisonment. He was
sentenced to three years'
imprisonment on the housebreaking
charge and was sentenced
to death on the rape charge. At p
314E SMÁLBERGER JA said
"Ofskoon dit nie die enigste
relevante oorweging is nie, bly die moontlikheid van 'n veroordeelde
se rehabilitasie 'n geldige
porweging by die bepaling of
die
diskresion
ê
re
doodstraf 'n gepaste vonnis is (S
v
Sithole en Andere
1983(3)
SA 610 (A) op 615C), tensy die erns van die misdaad oorwegings van
rehabilitasie oordonder (
S v Mooi
(
supra
op 631A)). Die
onderhawige
-25-
is egter nie so 'n geval nie,
ondanks die feit dat die appellant se slagogger 'n bejaarde, weerlose
vrou was. Alhoewel die appellant
'n lang lys vorige veroordelings
het, was hy nog nooit 'n werklike lang termyn van gevangenisstraf
opgelê nie, en kan die moontlikheid
van sy rehabilitasie nie
uitgesluit word nie. Die gemeenskap sal effektief beskerm word as die
appellant vir 'n lang tydperk uit
hul midde verwyder word. Dit sal
ook tot gevolg hê dat wanneer die appellant uiteindelik
vrygelaat word, hy heelwat ouer en
waarskynlik minder aggressief sal
wees, met 'n
gepaardgaande afname in sy drange.
Terwyl die appellant se vorige veroordelings, veral die twee vorige
veroordelings vir verkragting,
as verswarend beskou kan word, is dit
die erns van die misdaad wat gewoonweg die bepalende faktor sal wees
by oorweging van die diskresionêre
doodstraf. Die ónderhawige
geval behoort myns insiens nie binne die kader van gevalle waar die
doodstraf gepas sal wees nie."
In that case the death sentence
was set aside and a sentence
of 15 years' imprisonment was
substituted. See also the
unreported decision of this court
in
Paulus Swarts v Die
Staat
, delivered on 30
November 1990.
In this case the appellant has, as
already
-26-
mentioned, no
previous convictions involving the commission of sexual offences but
the age of the deceased makes the offence a more
serious one.
Although the rape was, not, on Prof Loubser's evidence a particularly
violent one, the appellant must have known that
to rape a woman of
that age would be likely to injure her and would be a shattering
experience for her. The fact that he assisted
Accused 2 by continuing
to hold the deceased while Accused 2 raped her, is a serious
aggravating factor. If the internal injury was
caused by Accused 2' s
rape he was a party to that rape. In the result, the offence merits a
very long period of imprisonment indeed.
I
would accordingly set aside the death
sentence imposed in respect of the rape and substitute a sentence of
imprisonment for 25 years.
In the result, the appeal succeeds
and the
-27-
appellant's conviction and
sentence on count three are set aside and the sentence of death
imposed on count two is also set aside
and a sentence of 25 years is
substituted in its place. The sentence imposed on count one is to run
concurrently with the sentence
of 25 years.
A J MILNE
Judge of Appeal
NESTADT JA: CONCURS
IN THE
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between
MICHAEL
MATLALA Appellant
(Accused
No
I
in court a
quo)
and
THE STATE
. Respondent
CORAM :
HEFER, NESTADT et MILNE JJA. HEARD : 7 MARCH 1991. DELIVERED : 28
MÁRCH 1991.
JUDGMENT
HEFER JA.
HEFER JA
:
I
agree,
for the reasons stated in my brother MILNE's judgment, that the
conviction and sentence on count 3 have to be set aside.
I
also concur in the setting aside of the
death sentence on count 2 and.the substitution therefor of a sentence
of 25 years' impri-scnment.
It appears from the trial judge's
judgment
on sentence
that.he
imposed the death sentence on count
2
because he regarded the rape as such a serious and vicious one that
society would call for the ultimate sentence.
I
mention this because, although - as
poin-ted out
inter alia
in
S v Masina and Others
1990(4) SA 709 (A) at 714 D-E and I-J - this court now exercises an
independent discretion in terms of sec 322 (2A)(b) of the Criminal
Procedure Act as amended by sec 13(b) of Act 107 of 1990 and may set
aside a death sentence if it is op the opinion that it would
not
itself have imposed it, the trial judge's judgment is still
impor-tant. The amending legislation has not relegated the
3. trial court to the status of a
mere finder of facts; nor can the passing of the death sentence by
the trial judge be regarded as
a formal requirement for the mat-ter
to come to this court. After all, as HOLMES JA said in the unreported
judgment in
S v Kok
(delivered on 13 September 1973 and
referred to in
S v M
1976(3) SA 644 (A) at 651 D, this court
lacks "the atmosphere of the trial court, and the learned
judge's sight and
impression of the appellant "
Equally importantly,
members
of this court do not always share the trial jud-
ge's
knowledge of local conditions which may be rele-vant to the question
of sentence. His reasons for im-posing the death sentence
deserve
careful scrutiny and consideration. The appeals which presently come
to this court are mostly matters in which sentence was
pas-sed before
the
amending legislation came into
operation and in many of them the trial judge's judgment on sen-tence
is of very limited assistance.
But in others
4.
(like the present one) where a
discretionary death sen-tence was imposed, there is no reason why the
judgment on sentence should not
receive due consideration, as it does
in my brother MILNE's judgment.
I
share
my brother's view that the rape in the present case was not a
particularly violent one. But, due to the age and frailty of the
victim, not much vio-lence was required to subdue her. According to
appel-lant's own evidence he only had to hold her arms while
Accused
2 raped her; thereafter, while he was gratify-ing his own lust, she
offered no further resistance. This could only have been
because she
feared the results of resistance or was no longer in a condition to
offer any. And in any event there is the internal
injury which
eit-her the appellant or Accused 2 inflicted on her. Even without
much violence they thus injured her very serious-
ly.
That the appellant's act was an
impulsive one
5.
one
is another factor without much mitigating force.
I
do not for one moment believe that it was
sheer sex-ual aro
ú
sal
that caused him (or Accused 2 for that mat-
ter)
to interrupt their search for the money. Se.xual
assaults
upon elderly women occur with disturbing regu-larity in cases not
dissimilar to the present one and one wonders why it is
that men
whose minds are firmly set on robbery suddenly turn to rape, in
circumstances
where sexual
arousal seems highly unlikely. Whether Accused 2
did
so in order to terrorise his victim even further, we will never know.
But whatever his reason might have been,
I
do not think that the appellant can reap
any material benefit from the fact that he impul-sively followed
Accused 2's example. On
the contrary, it counts heavily against him
that he not only assisted in Accused 2's foul deed but followed it
with an equally detestable
one of his own.
That the appellant had no previous
convictions
6.
for any sexual
or violent offence other than the one dur-
ing
1979 referred to by my brother MILNE, obviously counts
in
his favour. On the other hand, his last previous con-
viction
was for housebreaking with intent to commit theft
and
theft. After serving less than half of the two years'
imprisonment
imposed upon him for
that offence he was
re-leased from prison. And within a month of his release, 30 his
counsel informed the trial court, he committed
the present offence
which involved an even more serious house-breaking. He seems to have
little respect for the invio-lability of
other people's homes.
Considering all the features of
the case there can be no doubt that the aggravating factors outweigh
the mitigating ones to a very
considerable degree. The trial judge
considered it to be one where society could rightly call for the
death sentence. The learned
judge probably had in mind the well-known
remarks of SCHREINER JA in
R v Karg
1961(1) SA 231 (A) at 236
A-B that
7.
".....the element of
retribution, histori-
cally important, is by no means absent
from
the modern approach. It is not wrong that
the natural
indignation of interested persons
and of the community at large
should receive
some recognition in the sentences that
Courts
impose "
The learned judge of appeal
proceeded to point out, more-
over, that
"it is not irrelevant to bear
in mind that if sentences for serious crimes are too leni-ent, the
administration of justice may
fall into disrepute and injured persons
may incline to take the law into their own hands."
This
approach
to
matters of the present kind is
by no means wrong but, even where
the accused's conduct
is so heinous that harsh public
condemnation and a demand
for severe treatment can safely be
anticipated, the ques-
tion still is
"whether the evil of his deed
is so shocking, so clamant for
extreme
retribution, that
so-ciety would demand his
destruction
as the
only
expiation
for his wrongdoing."
(I
have
emphasized the key words in HOLMES JA's remark
8. in
S v Matthee
1971(3)
SA 769 (A) at 771 D. See also
S v Nkwanyana and Others
1990(4)
SA 735 (A) at 748 in
f in
- 749 C. ) It is only,when one is
able to answer this question in the affirmative that the death
sentence can be justified by the
demands of society.
In.the
present case
I
am
sure that society
will indeed demand very
severe expiation but
I
cannot
confidently say that it will demand the
extreme penalty. In whatsoever way one wishes to describe the
appellant's
dastardly deed,
I
cannot safely say that it only deser-ves
his destruction.
J J F HEFER JA. NESTADT JA,CONCURS
.