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1992
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[1992] ZASCA 13
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S v Dhlamini (467/91) [1992] ZASCA 13 (5 March 1992)
Case No
467/91 /wlb
IN THE
SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the
matter between:
WELLINGTON
DHLAMINI
Appellant
and
THE
STATE
Respondent
CORAM
:
HOEXTER,
MILNE et GOLDSTONE JJA
DATE OF
HEARING
: 24 February 1992
DATE OF JUDGMENT
: 5 March 1992
JUDGMENT
/MILNE
JA....
MILNE JA:
On 7
September 1988 the appellant was convicted of murder and robbery with
aggravating circumstances. On the murder charge he was
sentenced to
death, no extenuating circumstances having been found, and on the
robbery charge he was sentenced to 10 years' imprisonment.
Leave to
appeal against the convictions and sentences was refused by the trial
court and by this court. Thereafter, in terms of the
amendments
effected by the Criminal Law Amendment Act 107 of 1990 the matter was
considered by the panel in terms of section 19(8)
of that Act. The
panel found that the trial court would probably have imposed the
death sentence if section 277 of the Criminal Procedure
Act as
amended had been in operation at the time the sentence was imposed.
The matter now comes before us in terms of section 19(12).
2
The
appellant's convictions arise out of the
events
which occurred on 27 October 1986. The factual picture which emerges
from the evidence is as follows. At about 7.15 a m on
that day Mr and
Mrs Meyerowitz left their house in Parktown, Johannesburg. At that
time, the deceased, who had been employed by them
as a housemaid for
about 11 years, was present. At some time between then and 2.45 p m
on the same day, the appellant entered the
premises and encountered
the deceased. The deceased had clothes pegs in one hand and a bunch
of keys in the other. These keys included
the keys to the back gate
and security gate of the premises. The appellant strangled the
deceased manually. Either before or after
strangling her he forced
open the doors of two wardrobes, seven built-in cupboards and a steel
cupboard behind one of the wardrobes.
He stole clothing, money, a
gold bracelet and various other items belonging to the Meyerowitz's,
the total value of which was between
R4 000 and R5 000. In addition
to the injuries caused by the strangulation the
3
deceased, who was 64 years of age, had abrasions on the
top of her
right shoulder and bruising on her upper and
interior
chest, the right lower forearm and the left
forearm.
The appellant had, during the period 1978 -
1981, been
employed as a part-time gardener during the
absence on
leave of the regular gardener. On the
evidence
of Mr Meyerowitz (which was accepted by the
trial
court) the appellant and the deceased were known to
each other
"because he worked with her on the Sundays or
Saturdays."
The
appellant denied that he had had anything to do with the death of the
deceased and in fact alleged that he was in a different
suburb of
Johannesburg on the day in question. In a statement to the police,
however, he said that on a day in October 1986 he had
done painting
at 47 Loch Avenue, Parktown (the address of the Meyerowitz's) and
that he was hired by one George Ncobo to do such
work. The trial
court rejected his evidence.
4
The
question to be decided is whether, in the particular circumstances of
this case, the death sentence is the only proper one, giving
due
consideration to any mitigating and aggravating factors and the
well-known objects of sentencing. In considering the question
of
mitigating factors it is necessary to have regard to the personal
circumstances of the appellant. The appellant's counsel submitted
in
her heads of argument that insufficient evidence had been led as to
the personal circumstances of the appellant and that "further
evidence should be led in this regard". She was requested to
file an affidavit indicating the general nature of the evidence
sought to be led. Such an affidavit has now been filed which deals
fully with the personal circumstances of the appellant. It is
apparent that the appellant's counsel experienced considerable
difficulties in obtaining and placing in proper form this
information;
she is to be commended for her refusal to be deterred by
5 these
difficulties, and for the clear and precise manner
in which
the appellant's case was presented. Counsel for
the State
consented to the court receiving the affidavit
as
evidence, but he submitted that such evidence could
not
reasonably lead to a different sentence.
I
agree
with
this submission and
I
did
not understand the
appellant's
counsel to suggest that the affidavit really
takes the
matter materially further. There is
accordingly
no basis for remitting the matter to the
trial
court and strictly speaking this court should not
receive
the affidavit. In the light of the pragmatic
attitude
of counsel for the State, however, we shall
receive it
for what it is worth.
It was
submitted
that the youth of the
appellant
was a mitigating
factor. At the
time he
committed
these offences he
was 24 years
old, he was
married
and had a child aged
about 4.
For several years
he had
been earning his own
living and
supporting his
6 wife and
child. There is no factual basis for suggesting
that
immaturity played any part in the commission of
these
offences. Cf S v Lengane 1990(1) SACR 214 (A) at
220c-d.
It was
further submitted that although it was established that some degree
of premeditation and planning was involved in the robbery,
it was at
least a possible factor in the case that at the time he ehtered the
premises the appellant had not formed the intention
to kill anyone.
In this regard it is relevant that the appellant had last worked at
the premises in question some five years previously
and then only
during Saturdays and Sundays. The incident took place on a weekday
during the morning or possibly the early afternoon
and it was
submitted that it is accordingly reasonably possible that the
appellant did not know that the deceased would be there.
(One cannot
derive any assistance from the appellant's evidence in this regard
since he raised an
7 alibi
which was rejected by the trial court.) The
appellant
certainly knew that the deceased had been
employed
as a domestic servant when he last worked for
the
Meyerowitz's and had the incident occurred soon after
that, it
would be highly probable that he would have
believed
that the deceased would be cm duty during the
day.
Circumstances might however have changed in the
intervening
five years and
I
shall
assume that it is
reasonably
possible that when the appellant entered the
premises
his primary intention was to break in and steal;
and that
it was not proved that he had considered what he
would do
if he encountered the occupiers or their servant
on the
premises. This is, to some extent, a mitigating
factor.
There are
serious aggravating factors. The first is the manner in which the
crime was committed. The deceased was an elderly domestic
servant who
was obviously going about her lawful occasions on the
8
premises
of her employer when she and the deceased
encountered
one another. The uncontested medical
evidence
was that there must have been some sort of a
struggle.
It would have been necessary for the appellant
to have
applied considerable pressure to the neck of the
deceased
for four to five minutes. In the circumstances
of this
case it is inevitable that the appellant must
have seen
her dying under his hands. In R v Lewis
1958(3) SA
107 (A) at 109E-F MALAN JA said
"The
inherent danger of the application of pressure to the throat and neck
for even a very brief period must be present to the
mind of even the
most dull-witted individual and, apart from explanation, in
performing such an act the assailant either realises,
or recklessly
disregards, its probable consequences. The application and pressure
manually, as in the case before us, is an aggra-vating
circumstance
because the assailant is throughout not only fully alive to the
degree of force exerted by him but he is, by reason
of his manual
contact of the throat, warned of the victim's reaction to the
pressure applied."
There is
nothing to indicate anything to the contrary in
the
appellant's evidence since he (falsely) denied that
he was in
any way involved in the death of the deceased.
9
It
follows that dolus directus was proved. Moreover, the
murder was
committed either in order to enable the
appellant
to complete his plan to break in and steal or,
what is
worse, because he knew the deceased could
identify
him as the culprit.
The
appellant had a number of previous convictions. In 1980 he was
sentenced to receive a whipping of 5 cuts for housebreaking with
intent to steal and theft of jewellery. In May 1983 he was convicted
of theft and the passing of sentence was suspended. On 19 December
1984 he was sentenced to 6 months imprisonment, all of which was
suspended, for assault with intent to commit grievous bodily harm.
On
4 February 1986 he was sentenced to 9 months imprisonment for fraud
involving a cheque - this 9 months had not expired by the
time the
murder and robbery were committed and he must accordingly have been
released on parole before committing these offences.
He also has a
subsequent conviction on 8
10
September 1987 for housebreaking with intent to steal and
theft for
which he was sentenced to imprisonment for 4
years. It
does not appear from the record whether this
housebreaking
was committed before or after the murder
and
robbery in the instant case. If it was committed
before
then this was his third offence involving theft
from
premises. If it was committed after the murder then
it
indicates that despite the fact that the appellant
knew that
he had killed in order to commit the robbery
from the
Meyerowitz's or to avoid detection, he callously
continued
on his career of housebreaking. There is no
evidence
as to the exact stage when the deceased and the
appellant
encountered one another. Bearing in mind that
he must
obviously have opened the steel cupboard with
some
instrument like a crowbar it is more than probable
that he
did this after killing the deceased. In any
event, the
inference is inevitable that before he left
the
premises he did encounter the deceased and having
murdered
her he left with his booty. He was therefore
11
not
deterred by a realization of the enormity of his crime from carrying
out his original purpose.
It is
apparent therefore that the aggravating circumstances overshadow the
rather slight mitigating factor already referred to. It
does not
necessarily follow of course that the death sentence is the only
proper sentence. One must have regard to the objects of
sentencing.
This kind of cowardly attack on elderly persons for the purpose of
committing robbery has become so frequent that it
can rightly be
described as epidemic. In these circumstances the deterrent and
retributive aspects of punishment play a decisive
role. See S v
Khundulu & Ano
1991 SACR 470
(A) at 479i, S v Sesing 1991(2) SACR
361 (A) at 365g and S v Makie 1991(2) SACR 139 (A). We were pressed
with the decision in S v
Cele & Ano 1991(2) SACR 246 (A) in which
the court substituted sentences of 20 years' imprisonment for the
death sentences. It
was submitted that the aggravating factors
12 present
in that case were at least as serious as those
present in
the instant case. Compare, however, Ndepa v
The State
(unreported decision of the Appellate Division
in Case No
160/91 delivered on 26/11/91) where the court
accepted
that the 25 year old accused had no serious
previous
convictions and that his original intent had not
been to
murder but merely to break in and steal, but
nevertheless
considered the death sentence the only
proper
sentence.
Be that as
it may, each case must be decided on its own f acts and it must be
noted that in Cele' s case neither of the appellants
had any previous
conviction for crimes of violence and one of them had never been to
gaol.
In my
judgement the death sentence is the only proper sentence in the
circumstances of this case. The
appeal
accordingly fails and the sentence of death is confirmed.
A J MILNE
Judge of Appeal
HOEXTER JA
] CONCURS
CASE NO 467/91
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
) In the matter between:
WELLINGTON DHLAMINI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HOEXTER, MILNE, et
GOLDSTONE JJA
DATE HEARD
:
24
February 1992
DATE DELIVERED
: 5 March
1992
JUDGMENT
GOLDSTONE JA
:
I
have
had the privilege of reading the judgment of my brother Milne JA. For
the reasons which follow
I
am
unable to agree that in this case the death sentence is the only
proper sentence.
At the outset
I
would like to express my own moral
outrage
and indignation at the cruel manner in which the appellant murdered
the deceased. However one must take care not to allow
that outrage
and indignation to cloud
one's judgment in
deciding, as we are bound by law to do,
2
whether this is one of those
"exceptionally serious cases" where the imposition of the
death sentence "is imperatively
called for":
S v
Nkwanyana and Others
1990(4) SA 735(a) at 754 F.
As mentioned by Milne JA, the
judgment in
S v Cele
and Another
1991(2) SACR 246 (A)
was relied on by counsel for the appellant. There the two appellants
had committed a series of armed robberies.
They waylaid passing
motorists on a public road. During each of two of the robberies they
stabbed and killed one of their victims.
Both appellants were found
guilty in respect of each of the murders. It was proved that in
respect of the first murder the second
appellant inflicted the fatal
wounds. In respect of the second murder both appellants joined in the
fatal attack. It was held by
this Court that the death sentences
which had been imposed by the trial court were not the only proper
sentences and long periods
of imprisonment
3 were substituted. In his
judgment Smalberger JA said the following at 248 e-i:
"All murders are serious. The
two of which the appellants were convicted are particularly so. The
manner and circumstances in
which the offences were committed
constitute an aggravating factor. Innocent, unsuspecting persons were
set upon by the appellants
whose motive was to rob them. Their
conduct was not impulsive. It was planned in the sense that they
preyed on any unfortunate victim
they came across or were able to
waylay in the area in guestion. They were prepared to meet any
resistance with violence, and were
indifferent to the fate of their
victims. But it cannot be said that the intention to kill was
foremost in their minds. This is evidenced
by the fac.t that a number
of their robbery victims were left unharmed. It was only to overcome
encountered resistance, or in order
to forestall resistance, that
they resorted to degrees of violence sufficient for such purpose.
Morally this does not make their
conduct any less opprobrious, but it
does indicate that it was not a passion for
4
violence
per se
not an a
priori
decision to murder, which governed their conduct.
The two
appellants are both in their early thirties. Both have previous
convictions, but none for crimes of violence. The second appellant
has never been to gaol. Apart from the the offences they committed
(and
I
do not
seek to minimise their seriousness) there is nothing in their past
history to suggest that the two appellants are such dangers
to
society that it is imperative that they be removed permanently
therefrom. Nor can it be said that imprisonment is unlikely to
have a
rehabilitating effect upon them. Although this is very much a
borderline case, it seems to me that society will be sufficiently
protected, and the objects of sentence satisfactorily achieved, if
the appellants are imprisoned for a substantial period of time.
Accordingly it cannot be said that the death sentence is the only
proper sentence. In my view a sentence of 20 years' imprisonment
should be substituted for the death sentence on each of counts 1 and
4 in respect of both appellant."
I
concurred
in that judgment and
I
have
found no
5 reasons for departing now from
any of the principles enunciated therein. In particular it was there
held that:
the absence of a "passion
for violence";
the absence of a history
suggesting that the appellant is a danger to society and that it is
imperative to remove him from society;
and
the likelihood that imprisonment
will rehabilitate the accused,
are all relevant mitigating
factors in deciding whether the death sentence is the only proper
sentence.
In all cases of this kind the
court is enjoined to have due regard to the presence or absence of
any mitigating or aggravating factors.
Having done that the court,
having regard to the objects of sentencing, must decide whether the
death sentence is the only proper
sentence. It is not particularly
helpful to compare the facts of other cases. As pointed out by Milne
JA each case must be decided
on its own facts. Having said that,
however, it is equally
6 important that this Court, as
the court of last instance, should attempt to be consistent in the
principles it applies in its approach
to the exercise of its
discretion. This is especially so in capital cases. If there is a
public perception that guestions of life
and death are dependent on
the subjective inclination of one judge or another the respect for
the criminal justice system may well
be eroded.
In the present case all three
mitigating factors referred to in
Cele's
case are present, or
in any event, have not been excluded by the State upon whom rests the
onus of proof.
As assumed by
Milne JA, and as
I
hold,
the State did not establish that the appellant broke into the
Meyerowitz home having made "an a
priori
decision to murder". There was no evidence to establish that he
expected anyone to be at home, let alone the deceased whom he
had
probably not seen for some years. There was no
7
evidence to
suggest that the accused had a murder weapon in his possession - the
fact that he manually strangled the deceased strengthens
the
probability that he did not plan to resort to violence. In passing,
I
would mention that in the
Cele
case (
supra
)
the two appellants were armed with and used knives in fatally
stabbing their two victims.
The criminal
record of the appellant, the detail of which appears from the
judgment of Milne JA, is
not such that, in
my view, it can be said that the appellant
is
such a danger to society that it is imperative that he be permanently
removed therefrom. Again in passing,
I
would point out that in
Cele's
case the appellants had each been convicted of two murders in the
course of a planned series of robberies over a comparatively lengthy
period of time.
And thirdly, it cannot be said
that a lengthy period of imprisonment is unlikely to have a
rehabilitating effect on the appellant.
8
I
am
in full and respectful agreement with Milne JA with regard to the
serious aggravating factors.
I
need
not repeat them.
I
would
add, however, that the most serious, in my opinion, is the
probability that the motive for the murder was the appellant's desire
to avoid being identified by the deceased.
Having due
regard to the mitigating and aggravating factors,
I
have come to the conclusion that this is
another of those borderline cases where it cannot be said that,
(paying due regard to the
objects of sentencing), the death sentence
is the only proper sentence. Taking into account all the
circumstances, and, in particular,
the mitigating factors referred to
above,
I
am not
convinced that in this case the death sentence is imperatively called
for.
I
would set
aside the sentence of death and substitute therefor a lengthy period
of imprisonment. In my opinion, imprisonment for 20
years would be an
9
appropriate period. Such
imprisonment should run concurrently with the sentence of 10 years'
imprisonment imposed by the trial court
in respect of the robbery
charge.
R J GOLDSTONE
JUDGE OF APPEAL