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1990
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[1990] ZASCA 155
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S v Dlamini (30/90) [1990] ZASCA 155 (29 November 1990)
1.
Case no 30/90 /MC
IN TSE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
LUCKY MDUDUZI DLAMINI
Appellant
and
THE STATE
Respondent
CORAM: BOTHA, EKSTEEN JJA et PREISS AJA
BEARD: 19 November 1990
DELIVERED: 29 November 1990
JUDGMENT
PREISS AJA.
2/...
2.
PREISS AJA:
The appellant appeared before a judge and assessors in the Northern Circuit
Local Division of Natal upon a number of charges including
two counts of
murder". Count 5 related to the death of a certain Mr Gunter and count 6 related
to the death of Mrs Gunter, his wifé.
The victims were a middle-aged
couple who
lived a sequestered life on the farm Grootgeluk in the Vryheid
district. They had rented out the grazing on their farm and retained
for
themseives no more than a small orange orchard. Their sole occupation seems to
have been the saie of oranges to passers-by. Their
home consisted of a simple
four-bedroomed dwelling which was separated from an outbuilding some 15 metres
distant.
3/...
3.
The grazing on the farm had been let to a Mr Janse van
Rensburg who used to visit the couple every Tuesday when he came to inspect
his
cattle. He last
saw the deceased alive on Tuesday 19 July 1988. On the
following Tuesday, 26 July 1988, he visited the house and knocked on the
front door. There was no response although he noticed that
the kitchen window
was open. The absence of the occupants was unusual; they always told him when
they planned to be away. On the
following Tuesday, 2 August 1988, he visited the
house once more and again received no response. The kitchen window was still
open.
By now his suspicions were aroused. He tried the kitchen door, found it
unlatched and entered the house. In the main bedroom he found
the corpse of Mrs
Gunter. He summoned the assistance of an acquaintance and then found the corpse
of Mr
4/...
4.
Gunter in the outbuilding. Both bodies were in an advanced state of
decomposition. The contents of the house were such as to indicate
that they had
not been tended for a long time.
Post-mortems revealed that both victims had been severely injured by blows to
the head administered with a substantial degree of force.
Virtually each one of
the blows would have had fatal consequences.
At his trial the appellant denied that he had entered the house or the
outbuilding and denied all knowledge of the two murders. The
trial court had no
difficulty in rejecting his evidence entirely. It found that he had administered
the blows which caused the death
of both victims. There is no doubt about the
correctness of that finding. Two palm prints of the appellant's right hand were
found
in the house, one
5/...
5.
on a dressing-table drawer in a spare bedroom and the other on a wardrobe
door in the main bedroom. The appellant was found in possession
of a beret and a
jersey which belonged to Mr Gunter. There was evidence that he had sold a
firearm, a .22 rifle, to one Sabelo Yaka,
and that he had sawn off part of the
barrel and part of the butt in order to convert it into a handgun. He produced
the sawn-off
portion of the barrel to the police. The serial number on the rifle
had been partialy obliterated by the separation of the barrel
but what remained
tallied with Mr Gunter's licence. A Vryheid gunsmith identified the rif le by a
welding repair which he had made
at Mr Gunter's request.
In addition to these objective features the trial court made use of a series
of admissions by the
6/...
6.
appellant which were recorded in s 119 proceedings in the
magistrate's court, Vryheid. In that court the two murders, counts 5 and
6 in
the trial court, were recorded as counts 1 and 2. A robbery, alleged to have
been committed at the same time and place, was
count 3. The questions and
answers are recorded as follows:
"KLAGTE EEN
V Het jy op die plaas Groot Geluk vir
Courtney Alexander
Gunther doodgemaak?
A Ja,
V Wanneer was dit?
A Dit was op 'n Donderdag en ek dink twee weke terug.
V
Dit was die 21 Julie 1988? A
Dit kan so wees.
V
Hoe het jy hom
gedood?
A Ek het hom met 'n byl 'n pik en 'n
hamer
7/...
7.
aangeval. Dit was in die motorhuis.
V Hoe het dit gekom dat julle mekaar in die
motorhuis ontmoet?
A Ek het vir hom 'n werk gedoen deur die huis se fasiebord te herstel. Hy
moes my op die betrokke dag R60 betaal. Daar het toe 'n
rusie ontstaan oor die
geld. Oorledene het gesê hy het nie geld om my te betaal nie. Hy sê
ek moet lemoene gaan pluk
en dit neem as betaling. Ek word toe kwaad en vat die
hamer en kap hom twee maal.
V Waar op sy liggaam kap jy hom?
A Twee keer agter op sy kop.
V Hoe gebeur dit dat jy hom van agter
slaan?
A Ek en oorledene het in die motorhuis gewerk en was besig om planke te saag.
Ek wys hom 'n stuk hout aan sy anderkant en vra dat
hy dit vir my aangee. Hy
draai weg van my om die hout aan te gee en ek slaan hom met die hamer teen sy
agterkop.
V Het jy hom verder aangeval?
8/...
8.
A Tussen die twee houe het hy geskreeu vir sy vrou om die geweer te bring. Na
die 2de hou het hy geval. Ek hardloop huis toe. By die
huis se deur kom ek sy
vrou tee. Sy het 'n geweer by haar. Ek gryp die loop en ruk dit af grond toe en
slaan haar met die hamer op
haar kop.
V Wat gebeur toe?
A Ek vat die geweer en patrone en gaan terug na garage. Oorledene staan toe
net op en ek slaan hom met die pik. Ek weet nie presies
waar nie. Pik was swaar.
Ek kon nie reg slaan nie. Ek vat toe h kort byl met steel van plus-minus 1/2
meter. Ek siaan toe die oorledene
met agterkant van byl op sy kop. Ek is toe
weer terug na huis waar ek weermag barret geneem het. Ek het ook 'n kamera
geneem asook
'n verkyker. Ek het toe weggeloop en die twee oorledenes net so
gelos.
V Wou jy die oorlede man doodmaak?
A Ek wil nie leuens vertel nie. Ek wou gehad het dat hy doodgaan want ek was
vir hom baie kwaad.
9/...
9.
V Is dit reg om iemand dood te maak vir
R60?
A Dit is nie reg
nie.
V Die man was nie gewapen nie?
A Nee.
KLAGTE TWEE.
V Nadat jy die oorlede vrou Jeanetha
Christina Gunther met die hamer op
haar
kop geslaan het wat het gebeur?
A Sy het geval.
V Enige ander aanval op haar?
A Ek het nadat sy geval het en ek die vuurwapen gevat het haar nog 3 of 4
keer met die hamer gekap.
V Was dit terwyl sy klaar op die grond lê?
A Ek het haar drie
vinnige houe geslaan
terwyl sy val. Nadat sy geval het, het ek haar net een hou geslaan.
V Waarom het jy haar met die hamer gekap?
A Sodat ek die vuurwapen in die hande kon kry voordat sy my kon skiet.
V Was daar enige aanduiding dat sy jou wou
10/...
10.
skiet?
A Ek weet die Blanke vrouens kan skiet en sy het geweet ek het man beseer
want sy kon in die motorhuis sien vanwaar sy gestaan het.
V Beweer jy dus dat jy jou teen haar wou
verweer en haar nie wou dood
nie?
A Ek het my reg gemaak vir enige gebeurlikheid, daarom het ek gewapen na haar
gegaan. As sy egter nie die geweer gehad het nie sou
ek haar nie aangeval het
nie.
V Was beide reeds dood toe jy die plek
verlaat?
A Hoewel hulle beide nog asem gehaal het, het ek gesien dat beide besig is om
dood te gaan.
V Was enigiemand anders op die plaas?
A Nee.
Hof is nie oortuig dat beskuldigde al die elemente van die misdryf op klagte
2 erken nie. Hy opper 'n verweer van noodweer en 'n
pleit van
ONSKULDIG
word aangeteken.
11/...
11.
KLAGTE DRIE
V Het jy die geweer met geweld
van die vrou
afgeneem?
A Nee.
V Waarom sê jy so?
A Sy was in die proses om
te val so toe ek die geweer vat het sy dit klaar gelos gehad.
V Was jou doel om haar te beroof?
A Nee maar nadat
beide van hulle gelê het en niks meer kon doen nie het ek besluit om die
geweer en die ander goed te steel.
V Het jy geweet dis verkeerd om die goed
soos genoem in klagte drie te
vat? "
(No answer to the last question is recorded.)
The trial court concluded that the account given by the appellant in the s
119 proceedings, despite his denial in evidence, constituted
a
12/...
12.
relatively accurate picture of what must have taken place. Objective
corroboration was furnished by the nature of the injuries sustained
by each of
the deceased, the possession of the rifle by the appellant (which accorded with
his admission that he had taken a firearm),
his possession of a beret and a pair
of binoculars (which he admitted that he had taken), and the presence of the two
palm prints
in the house. Furthermore, his statement contained certain
exculpatory matter which was a further assurance of its correctness, despite
his
evidence that he had been forced by the police to produce a made-up story.
The appellant was found guilty of murder on count 5 as well as on count 6. In
the light of the overwhelming evidence to which I have
referred there can be no
quarrel with that finding.
13/...
13.
When it came to sentence, however, the trial court drew a distinction between
the two counts. On count 5, the murder of Mr Gunter,
the court found that
extenuating circumstances were present and imposed a sentence of 18 years
imprisonment. These circumstances
were elicited from the contents of the s 119
proceedings. PAGE J dealt with the matter in the following terms :
"On that statement he had been deprived by Mr
Gunter of the money to which he believed he
was entitled for
his work and this had made
him extemely angry, so angry that he wanted
to
kill him. We are well aware of the
punctiliousness which the Zulus demand
(and
observe) in money matters and of the rage
which they experience when
they believe they
have been cheated. It has been submitted
that the
conduct of the Accused in using a
subterfuge to make Mr Gunter look away
before
14/...
14.
striking him shows that he was not so carried away by rage that he could not
think clearly; but we do not consider that the fact that
he was still able to
reason effectively negates the influence of his anger as an extenuating
factor.
Of greater cogency is the reliance by the State on the fact that
having assaulted Mrs Gunter he returned to Mr Gunter to administer
the
coup
de gráce
, It was submitted that by that stage his initial outrage
must have subsided to the extent that it was no longer operative as an
extenuating
factor. As was pointed out by his counsel, however, the intervening
period was not so long, nor the intervening events of such a
nature as to ensure
that he had fully regained control of himself at that stage and we are satisfied
on a balance óf probabilities
that his resentment of the treatment he had
received from Mr Gunter remained an operative factor throughout his murder. As
such it
sufficiently detracts from the Accused's moral blameworthiness in
respect of that
15/...
15.
murder to justify us in returning a verdict of guilty of murder with extenuating
circumstances on count 5."
Dealing with count 6 PAGE
J went on to consider whether extenuating circumstances were present and came to
the conclusion that there
were none. The learned judge stated:
"As regards count 6, - the murder of Mrs Gunter, the only factor that has been
advanced and, indeed, the only factor that could be
advanced as an extenuating
circumstance, is the fact that the Accused was aware that Mr Gunter had called
for Mrs Gunter to bring
a gun and that he feared that she might shoot him. It
was not suggested, even by the Accused, that his resentment of Mr Gunter's
treatment of him extended to Mrs Gunter. One is left, therefore, with a
situation of a man who is in the process of committing one
murder and is
threatened in
16/...
16.
the course thereof by someone whom the victim has summoned to his aid. If, in
order to avert the threat posed by such a person, the
murderer kills him, then
there is no doubt that his fear of that person was a f actor which influenced
him in the killing. But does
it detract in any way from the moral
biameworthiness of what he has done? The situation in which he finds himself is
one due entirely
to his own unlawful act. The threat posed by the person
intervening is not unlawfully to attack the murderer but lawfully to prevent
him
from consummating his crime. We do not think that such motivation in any way
detracts from the moral blame-worthiness of the
act. Although we have not been
referred to any authority dealing precisely with the present situation, those
cases in which a criminai
seeks to avoid the conseguences of his crime by
killing the victim or some other potential witness, pose a moral problem bearing
some resemblance to that in the present case. Cf
S v Ramatshenq
1977(3)
SA 510(A);
S v Kosztur
1988(3) SA
17/...
17.
926(A). If it is morally indefensible to
kill to
avoid the consequences of one's
crime, it must surely be equally indefensible
to kill to avert interference in its
commission. It is clear on the facts of the
present case that the Accused ran to the
house to neutralise Mrs Gunter immediately
after Mr Gunter called out for her aid. He
met her whilst she was still in the main
bedroom and not only disarmed her after
striking the first blow, but continued with
four further blows each of which in itself
was sufficient to cause her death. We are
unable to find any shred of moral
justification for this conduct and our
verdict on count 6 is accordingly one
of
guilty of murder without
extenuating
circumstances."
On this count the appellant was
sentenced to death.
18/...
18.
The appellant through his counsel applied for leave to appeal
on several grounds. In the result leave to appeal was granted by PAGE
J on count
6 only, but in respect of both the conviction and the sentence.
In argument
before us counsel for the appellant confined his submissions to the question of
sentence only. In this respect he exercised
a wise discretion in my opinion. As
I have indicated the evidence connecting the appellant with the murderous
assault upon Mrs Gunter
was overwhelming. The appellant's statement in the
magistrate's court, the wealth of circumstancial detail in that statement and
the many features of objective corroboration which I have listed constitute
proof of his guilt beyond reasonable doubt.
Subsequent to the appellant's conviction but
19/...
19.
prior to the hearing of this appeal the Criminal Law
Amendment Act No 107
of 1990 was promulgated, namely,
on 27 July 1990 (the Act). Section 20(1)(a)
of the Act
serves to ensure that its provisions apply to this
pending appeal. The effect of the Act has been
considered in a series of hitherto unreported judgments
of this court. They are
Masina and Others v S
(Case
No 695/85 delivered on 13 September 1990);
Senonohi v
S (delivered on 17 September 1990);
Nkwanyana and
Others v S
(case no 52/90 delivered on 18 September
1990);
Bezuidenhout v S
(case no 76/90 delivered on 28
September 1990) and
Mdau v S
(delivered on 28
September 1990). It is sufficient in my view to refer
to these decisions in outline and only insofar as they
affect the present appeal.
The compulsory death sentence has been
20/...
20.
abolished. A court is now vested with a discretion. The obligation to impose
a death sentence only arises where the presiding judge
is satisfied that it is
"the proper sentence" ie the only proper sentence. In deciding on this issue the
presiding judge is enjoined
to have due regard to the presence or absence of any
mitigating or aggravating factors. The former is wider in concept
than.extenuating
circumstances. The State is fixed with the onus of establishing
the presence of aggravating factors and the absence of mitigating
factors. Proof
beyond reasonable doubt is required. Where both aggravating and mitigating
factors are found to be present they must
be weighed against each other in order
to determine whether a sentence of death is the proper penalty. In deciding this
latter question
a court will have regard to the
21/...
21 .
main purposes of punishment, namely, deterrence, prevention,
reformation and retribution. If these purposes can be achieved by any
other
sentence then the death sentence will not be passed since,
ex hypothesi
,
it is not the only proper sentence. The death sentehce is accordingly to be
reserved for exceptionally serious cases.
The Act also defined and extended
the powers of the court of appeal so that it exercises a discretion of its own.
It must itself consider,
upon a weighing up of the aggravating and mitigating
factors, whether a sentence of death is the proper sentence. If this Court
therefore
takes the view that it would not itself have imposed the death
sentence it may impose such other sentence as it considers to be proper.
It will
thus be appreciated that this Court's
22/...
22.
power to interfere is substantially wider than was previously the situation,
where an appeal court would only interfere on well-known
limited
grounds.
Applying the above principles I turn now to a consideration of the
sentence of death which the trial judge passed on count 6, the
murder of Mrs
Gunter.
The trial court found, in my view correctly, that the account given by the
appellant at the s 119 proceedings in the magistrate's
court was a reasonably
accurate and acceptable version of what must have occurred on the fateful day.
PAGE J referred to a few differences
between the statement and the objectively
ascertainable facts. First, there was no medical proof of the blow or blows
which the appellant
claimed to have struck at the back of Mr Gunter's head. The
learned judge accepted, however, that the appellant
23/...
23.
could have clumsily been describing a blow delivered to the
adjacent temporo-parietal area. Secondly, the appellant could not have
encountered Mrs Gunter at the door of the house; it must have been at the door
of the main bedroom. Thirdly it is incorrect, as the
appellant claimed in the
statement, that Mrs Gunter could have observed what was going on in the
outbuilding from inside the house.
The learned judge nevertheless concluded that
these three features did not detract from the essence of the version put forward
by
the appellant in his statement. I agree.
The aggravating factors would include the
following:
(a) The savagery and brutality of the
assault - the victim sustained at least four, and
24/...
24.
possibly five, severe blows to the head. Each of these blows
would have been fatal and each one involved the application of a fair
degree of
force. All the biows were aimed at the victim's head.
(b) The appellant had a
hammer in his hand.
He took it with him when he left the outbuilding
to
enter the house in search of Mrs Gunter. He foresaw
that he might have
to use it.
(c)
He could have seized the
rifle after striking only one disabling blow but he continued to bludgeon his
victim as she sank to the ground.
The last blow was struck as she lay on the
floor.
(d)
His victim was a middle-aged woman
of slight build; according to the post-mortem report she weighed no more than 47
kilograms. There
may have
25/...
25.
been a weight loss accompanying the decomposition of the
body, but it could not have been substantial.
(e)
The appellant had no less
than seven previous convictions. Two were for crimes involving violence, namely,
robbery committed in November
1983 and assault with intent to do grievous bodily
harm committed in August 1986. On the other hand, neither of these offences
seems
to have been serious; on the robbery count the violence consisted of
threats and the sentence was 12 months imprisonment. On the
other count the
weapon was a stick and the sentence no more than a modest
fine.
(f)
The appellant was convicted by the
trial court on three additional charges in respect of offences committed shortly
before the murders,
namely, one count of escaping and two counts of
housebreaking
26/...
26.
with intent to steal and theft. He was also convicted on a charge of robbery
committed after the murders. The latter was a serious
offence; in the course of
its commission the appellant fired a shot. Furthermore, after the assaults upon
the two victims, the appellant
searched the house and removed several items
including the rifle, and was accordingly convicted on a further count of
theft.
(g) The deceased met her death while she was lawfully engaged in
attempting to save her husband and defend herself. The appellant
did not need to
attack her; he could have run away after striking Mr Gunter in his rage. In
other words, his unlawful assault upon
Mr Gunter created the very situation
which he attempted to overcome by neutralising Mrs Gunter and thereafter
continuing the attack
upon Mr Gunter.
27/...
27.
(h) The appellant, at least by his untruthful denial in evidence at his
trial, showed no remorse for his deeds.
The mitigating factors, on the other hand, consist of the
following:
(a) The assault on the occupants of the farm
was unplanned. It
was precipitated by Mr Gunter's
refusal to pay the appellant his R60. This
takes the
present case out of the class of crimes so often
encountered in
our courts where occupants on loneiy
farms are singled out for attack in the
course of
planned robberies or thefts.
(b) The most important single mitigating
factor is the sense of outrage
and loss of self-control
which characterised the appellant's attack upon
Mr
Gunter. PAGE J painted a graphic picture of the
' 28/...
28.
effect upon the appellant of a refusal to pay and an attempt to discharge the
debt by the delivery of oranges. The learned judge described
how such treatment
would incense a person such as the appellant.
What is particularly significant in the conclusion of the trial court is the
finding that the appellant's sense of outrage and loss
of control was such as to
constitute extenuating circumstances in respect of count 5 even though the
appellant, after felling Mrs
Gunter, returned to the outbuilding and thereafter
despatched Mr Gunter. A question poses itself in the following terms - if the
second attack upon Mr Gunter was reduced in seriousness by the appellant's sharp
sense of grievance, can it be argued that he regained
temporary control over
himself during
29/...
29.
the preceding attack upon Mrs Gunter? I think not. Everything
points to a series of attacks precipitated by Mr Gunter's refusal to
pay, and
characterised by the appellant's consequent frenzy.
The trial court was alive
to this apparent inconsistency but found justification in the moral
blameworthiness of the attack upon Mrs
Gunter. The learned judge sought an
analogy in the type of crime where an accused kills to wipe out a potential
eye-witness. The
concept of moral biameworthiness was of course a relevant
consideration in the assessment of extenuating circumstances prior to the
Act.
This was the law which governed the conduct of the trial. This Court is now at
large to consider whether on a weighing-up of
the aggravating and the mitigating
factors it would itself have imposed the death sentence
30/...
30.
as the only proper sentence.
Despite the number of listed
aggravating factors it seems to me that the appellant's rage, frustration and
loss of control - features
which were recognised by PAGE J as reducing the
appellant's moral blamewórthiness on count 5 - must inevitably have
operated
upon the appellant's state of mind during the intermediate attack upon
Mrs Gunter. It runs, as it were, like a thread throughout
both the attacks. I
conclude that this is the one dominating feature of the course of events. I am
accordingly of the opinion that
the death sentence is not the only proper
sentence in this case. The question of an appropriate alternative
sentence presents some difficulty. The prospect of the appellant's
rehabilitation is somewhat remote. He
31/...
31 .
has a fairly serious record of previous convictions although he has never
served a long period of imprisonment. His two convictiohs
for murder were
accompanied by convictions on four other counts at least one of which (count 8,
robbery) was serious. In his evidence
the appellant stated ingenuously that "I
am a man whose living is dependent upon burglaries".
Apart from count 5, the trial court so arranged the various sentences that
the period of effective incarceration was 21 years - 18
years for the murder of
Mr Gunter plus 3 years for the series of other offences, by ordering certain
sentences to run concurrently.
I am of the view that the purposes of punishment,
namely, deterrence, prevention, reformation and retribution can most
appropriately
be achieved by a lengthy gaol sentence. His conviction for a
double
32/...
32.
murder, perpetrated in so brutal a fashion, requires in
my view that
whatever sentence is imposed in place of
the sentence of death, at least some portion should be
added to the
effective 21 years imposed by the trial
court.
The order of the court is that the appeal is
allowed. The death sentence is set aside and the
following is substituted for it :
Twenty (20) years' imprisonment, of which sixteen (16) years' imprisonment
will run concurrently with the sentence imposed on count
5.
This means that the effective period of imprisonment will be increased to
twenty five (25) 'years.
S.J. PREISS AJA.
BOTHA JA)
EKSTÉEN JA) Concur.