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[1991] ZASCA 72
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S v Lawrence (381/90) [1991] ZASCA 72 (30 May 1991)

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Certain
personal/private details of parties or witnesses have been
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IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
CASE NO.381/90
In the matter between
VICTOR JOHN LAWRENCE
APPELLANT
AND
THE STATE
RESPONDENT
CORAM:
HOEXTER, EKSTEEN et
GOLDSTONE, JJ.A.
HEARD
:
17 May 1991
DELIVERED
: 30 May 1991
JUDGMENT
GOLDSTONE JA
I
have
had the privilege of reading the judgment of Eksteen JA. Having
regard to the facts fully set out therein, the only question
which
falls to be considered is whether life imprisonment would be a proper
sentence. If it would, then it cannot be held that
the death sentence
is the only proper sentence.
Psychopaths are detained at prison
hospitals at
3
Zonderwater and Brandvlei Prisons.
The former is situated near Cullinan and is presumably the one to
which Dr Plomp referred in
his evidence. Concerning that institution
Dr. Plomp said the following:
"Kan ek daarby voeg, my
laaste gesprekke met die persone in bevel by daardie afdeling het
hulle vir my gesê hulle keur
nou baie strenger wie hulle daar
opneem en tensy psigopatie nie pertinent in die hofsaak genoem is nie
en daar 'n aanbeveling gemaak
word, kom so 'n persoon wat in die
gewone gevangenis is nie maklik ter sprake as hulle iemand selekteer
om soontoe oor te plaas
nie. Maar wanneer daar 'n hofaanbeveling is
dan gaan so 'n persoon ernstige oorweging kry vir opname in daardie
afdeling."
Dr Plomp did
not say from whom he received his information.
I
have no doubt that if a court sentences a
person suffering from severe psychopathy to life imprisonment the
prison authorities would
take active and adequate steps to ensure
that he was appropriately detained and treated. In
4
any event the failure so to do, f
or whatever cause, does not commend itself to me as a reason, in
itself, f or imposing the ultimate
penalty.
Dr Plomp was a defence witness. No
evidence was led on behalf of the State to establish that a person
such as the appellant cannot
properly or adequately be controlled in
prison, or that he would constitute a danger to other prisoners or to
members of the prison
service. The facts relating to the alleged
attack by the appellant upon a warder at the Nigel Prison were not
placed before the
Court a
quo
. Accordingly, it would be both
irregular and unfair to take hearsay evidence by a social worker into
account in deciding upon a
matter so extreme and f inal as the
imposition of the death penalty.
Having regard
to the passages cited by Eksteen JA from
S
v Eiman
1989(2) SA 863(A) at 873A-B,
I
respectfully agree that in a proper case,
and upon adequate evidence, the
5
probability
that a convicted criminal is likely to constitute a danger to prison
society is a factor which a court might take into
account in the
determination of a proper sentence. In the event that evidence is
adduced establishing the probability that a dangerous
criminal could
not be prevented from escaping from custody, that, too, could be a
factor which might properly be taken into account.
In the present
case there was no such evidence in respect of either of these issues.
At the cost of repetition,
I
would
stress that, in my opinion, more particularly in cases involving the
death penalty, a court should not make findings prejudicial
to an
accused on the basis of mere speculation. A proper and adequate
factual foundation should be laid if the State wishes such

considerations to be taken into account for purposes of sentence.
It remains to consider what
Eksteen JA refers to
6
as "the heinous and brutal
murder ... so clamant fbr extreme retribution" In my opinion the
ghastly and gruesome manner
in which the appellant murdered the
deceased and the particular way in which he indecently assaulted his
former wife proclaim the
very mental illness from which the appellant
suffers. The murder was clearly not planned. The appellant's meeting
with the deceased
on the night in question was quite fortuitous.
In
S v Pieterse
1982(3)SA
678(A), Rumpff CJ said at 685 C-D that:
"In die onderhawige saak is
daar na my mening
geen
verband tussen die psigopatiese
toestand
van
appellant en die verkragting en
moord van die
kind
nie."
That finding distinguishes
Pieterse's
case from the present one. Here there is no
question but that there is a diréct causal connection between
the psychopathy
of the appellant and his behaviour on the night of
the murder.
7
In my judgment reasonable and
right-thinking members of our society, fully cognizant of the mental
condition of the appellant, would
not demand that he be put to death
for his crime. Dr Plomp agreed with an American psychiatrist that in
respect of persons suffering
from this kind of mental illness:
"After the age 30, the more
flagrantly anti-social behaviour may diminish, particularly sexual
promiscuity, fighting and criminality."
Concerning treatment of such
persons, Dr Plomp's evidence reads as follows:
"Op hierdie stadium, sê
u is die behandeling nog nie bewys as suksesvol nie? - Nee
Maar dit mag verander? - Dit mag
verander." It is not unreasonable, in our day, to nurture the
hope that medical science may
yet find a drug or procedure to
control, if not cure, this extreme kind of mental abnormality.
8
In all the
circumstances of this case, therefore,
I
am
of the opinion that imprisonment for life is a proper sentence.
The appeal is upheld. The death
sentence is set aside. There is substituted a sentence of
imprisonment for life. Copies of the judgments
in this appeal are to
be served upon the appropriate official or officials of the
Department of Correctional Services, and their
attention is to be
directed to the findings concerning the psychopathy of the appellant.
R J GOLDSTONE
JUDGE OF
APPEAL
HOEXTER JA) CONCURS
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
VICTOR JOHN LAWRENCE
Appellant
AND
THE STATE
Respondent
Coram
: HOEXTER, EKSTEEN et
GOLDSTONE, JJ.A.
Heard
: 17 May 1991
Delivered
: 30 May 1991
J U D G M E N T
EKSTEEN
, J.A. :
The appellant
was indicted in the Witwaters-rand Local Division on a charge of
murder and one of rape; it being alleged that on
24 September 1988 he
raped and murdered S.K. in Boksburg North. In explaining his plea of
not guilty on both counts, the appellant
conceded having had
intercourse with the de-ceased on the night she died, but alleged
that it occurred with her consent. Because
of the circumstances in
which she was murdered, and to which
I
shall refer hereinafter, the trial Court
could not find that the deceased had been raped. The appellant was
consequently acquitted
on that charge. He was however convicted on
the charge
..../ 2
2
of murder. Despite the fact that
the Court found ex-tenuating circumstances, the learned trial Judge,
in the exercise of his discretion,
sentenced the appellant to death.
On an application to him, the trial Judge grant-ed leave to the
appellant to appeal to this Court
on sentence only.
The evidence led at the trial
reveals a particularly gruesome murder. It appears that the de-ceased
was a young girl of 19 years
of age at the time. She had just
completed her N3 examination (the equiva-lent of a matriculation
examination) at the Boksburg
Technical College. Her mother described
her as a shy, retiring child who did not smoke or drink. On the
evening of 23 September
1988 the deceased told her
../3
3
mother that she was going to a
"disco" with a female friend of hers who lived close by,
and that the friend's father would
bring them home. She left at about
6 p.m. and that was the last time that her mother saw her alive.
At about 4 p.m. the next afternoon
Sgt. Scheepers of the South African Police came to tell her that her
daugh-ter's body had been
found.
A young man, Arthur Charles Baker,
told the trial Court that he and a friend of his, one Kedian, also
attended the "disco"
which was held at the East Rand Hotel
in Boksburg East on the night of 23 September 1988. When they left at
about 12.30 a.m. on
the 24th they saw the deceased and the appellant
walking from the hotel towards the station. He and his friend asked
../4
4
them where they were going, and
when the appellant re-plied that they were going to Boksburg North,
Kedian offered to give.them
a lift in his car.
Baker says that both the
appellant and the deceased appeared to be perfectly sober, although
he could notice that the appellant
had had liquor. They carried
nothing with them in their hands. Kedian drove the car and Baker sat
next to him on the front seat.
The appellant and the deceased sat on
the back seat. The appellant appeared to be in an argumentative mood
and argued with Baker
as to whether the road they were travelling on
went over or under a bridge. After they had travelled for about 15
minutes the appellant
asked Kedian to drop them off. Baker, who had
ascertained
../5
5
that the deceased lived in Eighth
Street, offered to take them to her home. The deceased seemed
inclined to accept this offer, but
the appellant refused and
in-sisted on alighting just where they were. He got out of the car
and walked away without so much as
a "thank you". The
deceased, however, thanked them for the lift.
On Sunday 25
September Baker read a report in a Sunday newspaper about the
discovery of the body of the deceased in a
house
which was in the course of construction. Her photograph appeared next
to the article. He recognized the deceased at once and
imme-diately
went to the police to tell them what he knew.
The deceased's body seems to have
been
.... / 6
6
discovered at about 3 o'clock on
the afternoon of Satur-day 24 September in a room in a house that was
under construction, and which
was about 358 metres from where she
lived. The walls of the house had reached roof height but the roof
had not been put on yet.
The dis-covery was reported to the police
and at 4.30 that af-ternoon Sgt. Scheepers and Constable Hoyle
repaired to the scene.
Constable Hoyle took photographs of the body
and the surrounding area which were handed in as exhi-bits at the
trial. They reflect
something of the horror of their discovery. A
fuller description is given by Dr. Holloway who conducted the
post-mortem examination
on the body of the deceased. He described her
as a slightly built young woman whose physical strength would
../7
7
have been much less than that of
the appellant. Apart from several abrasions and bruises to the head,
face, and both arms the district
surgeon found that she had been
eviscerated through her vagina and perineum - i.e. her omentum and
intestines had been forcibly
pulled out through her vagina and
perineum. The vagina appeared to have been cut or torn from top to
bottom destroying the anterior
aspect of the vulva, the perineum and
the rectum. Through this gaping hole the intestines and the uterus
had been pulled. The uterus
itself was still attached to part of the
va-gina by the connecting tissue of the cervix, but it had prolapsed
through the introitus,
and was clearly visible on the outside of the
body as appears, too, from the photographs. Constable Hoyle, who took
the
.... / 8
8
photographs, gathered the omentum
and intestines which were lying ón the ground in front of the
body, and took them in a
plastic bag to the district surgeon. The
photographs depict the pool of blood in which the body was found as
well as the blood-spattered
wall in front of the body.
On the pavement in front of the
house where the body of the deceased was found, Sgt. Scheepers found
a small ornamental cross which,
according to her mother, the deceased
habitually wore round her neck. The chain to which it had been
attached was not there. In
the house, close to the body of the
deceased, a medallion was found, which, it is common cause, belongs
to the appellant.
../9
9
Warrant Officer Holmes arrested
the appellant
shortly after midday on Sunday 25
September 1988 on a charge of murder and handed him over to Sgt.
Scheepers. That same afternoon
he was examined by Dr. Fletcher. Dr.
Fletcher found three linear abrasions on appellant's left shoulder,
and another three on the
left side of his epigastrium. There were
also abrasions on the axillary fold behind the right shoulder, on his
right elbow, on
the dorsum of his right wrist, his left shin and
lower lumbar area. Punctate abrasions were found on the dor-sum of
his right hand,
right finger, both knees and dorsum of the left
wrist. There were also punctate abrasions on the left side of his
neck which resembled
fingernail abrasions. The frenulum of his upper
lip
../10
10
was torn by some form of violence
which pushed the upper lip away from the gum.
The next day, 26 September, the
appellant took Sgt. Scheepers to various places between the house
where the deceased's body had
been found and his own home, and at
each of these places articles of clothing and other possessions of
the deceased were found.
Thereafter the appellant was detained in the
police cells at Benoni until the end of October when he was
transferred to the prison
at Nigel.
On 2 November appellant asked Sgt.
Scheepers to come and see him and he then handed Scheepers a
hand-written document purporting
to explain what had happened on the
night the deceased was killed. In it he conceded
.../11
11
having met the deceased at the
"disco" and having been given a lift by two men in a white
Passat as far as the Boksburg
North Hotel. From there, he says, he
and the deceased walked to a church where he consumed some brandy
from a bottle which he had
with him. They then continued to an empty
house where they both got un-dressed and had intercourse. After they
had finished he
heard the deceased saying "Vic pasop", and
at the same time something hit him and knocked him unconscious. When
he came
to he found the deceased lying in a pool of blood. After he
had ascertained that she was dead he gathered up all their clothes
that were lying about and ran home. On the way he discarded various
items of clothing that belonged to the deceased.
../12
12
On 12 December
1988 appellant was brought before Mr. Botha, a magistrate in
Boksburg, and was re-ferred to a mental hospital for
observation. At
the conclusion of these proceedings the appellant asked whether he
could speak to the magistrate alone. Mr. Botha
asked him what he
wanted
to say whereupon the appellant
handed him a handwritten document headed "Pleitverduideliking".
In this document he repeated
that he did not know how the deceased
had met her death as he had been knocked unconscious by a third
person or persons.
At the
commencement of the trial on 26 September 1989 he pleaded not guilty
to both the charges put to him, and then handed
in
a lengthy statement
.../13
13
setting out the basis of his
defence in terms of
section 115
of the
Criminal Procedure Act 51 of
1977
. In his explanation he again conceded having met the deceased at
the "disco". He says the two of them spent the night

dancing and drinking beer. Together they con-sumed 8 bottles of beer.
Just before the
"disco" came to an end that night he says he bought a
bottle of brandy and two bottles of beer which he
and the deceased
intended drinking on their way home. He again refers to
their
having been given a lift to the Boksburg North Hotel, before
con-tinuing on their way to the deceased's home. As they walked

along, he says, he consumed the bottle of brandy and she drank the
two beers. He says he also swallowed
.../14
14
several tablets which, in his
statement he calls"Perig-non"tablets, but which later
transpired to be Peracon tablets.
Peracon tablets are described as
being a preparation used to control coughing. It is a cough centre
depressant, but may also depress
other vital centres and, taken in
sufficient quantities, may cause bizarre thought disturbances.
The appellant then goes on to
describe how, after consuming all the liquor, they entered the .
house which was under construction,
and had intercourse. This was
with the consent of the deceased. He had told the deceased about his
wife from whom he was di-vorced,
and when, after their intercourse,
the deceased referred to his wife as a harlot, he lost his temper.
../15
15
He pulled the deceased up and when
she fell down again, he took a stone which he thrust up her vagina.
She grabbed him by his shoulders.
He withdrew the hand with the stone
and then put his hand in her body again - and may have done so
several times. When she showed
no signs of life he took fright and
ran away. He says he had no intention of killing the deceased but
lost his temper completely
when the deceased insulted his former
wife.
Earlier that day he says he had
been drink-ing and smoking dagga, and before taking the Peracons he
injected himself with Welconal
and drank some Phensy-dil. He ascribes
his otherwise inexplicable behaviour in killing the deceased in the
way he did, to the con-sumption
of the liquor and the drugs.
../16
16
The appellant's allegation that
the deceased had consumed liquor at the "disco" and again
on their way to the scene of
her death is not borne out by the
analy-sis of a blood sample taken from her body at the post-mortem.
This analysis showed no traces
of alcohol in her blood, and therefore
tends to contradict the appel-lant's assertion.
In his evidence at the trial
appellant again related how he smoked dagga on the morning of 23
Septem-ber, and then in the afternoon
drank 3 or 4 double brand-ies
until about 6 p.m. Then he bought some drugs -pinks (i.e. Welconals),
Phensydil and Peracons - from
a dealer, and in an alley injected the
pinks into an artery in his thigh. He then went back to the place
../17
where
he
had been drinking earlier and continued drink-ing brandy until about
8 o'clock. He and one Clive, a friend of his, then drove
to
Johannesburg to fetch two girls with whom they had apparently made
some arrange-ment. The girls, however, were not there, so
they drove
back to the house in Boksburg, and again started drinking. Later on
Clive took appellant to the East Rand Hotel and
dropped him there. He
met the deceased and, in the course of their association at the hotel
he drank about 8 bottles of beer and
the bottle of Phensydil. The
deceased, he said, took no more than a sip of his beer every now and
then. Just before midnight he
bought a bottle of brandy and two
bottles of beer, which he took with him when he and the
../18
18
deceased left the hotel. He pushed
the bottle of brandy into his trousers under his belt and concealed
the two bottles of beer under
his jacket, and that, he suggests, is
why Baker failed to see them. He cannot explain how Baker could not
have noticed his degree
of intoxication.
After being dropped by Baker and
Kedian, he and the deceased walked to a church where they sat and
drank the liquor he had brought
with him. In his evidence-in-chief he
says that he drank the whole bot-tle of brandy and swallowed 5 or 10
Peracons. He was not
sure whether the deceased drank the two beers or
not. In cross-examination he was not sure whether he had consumed all
the brandy,
and thought that the
../19
19
deceased could have had some of
the beer.
They then went to the house which
was under construction there they had intercourse. He then saw
someone looking through a window
at them, so they gather-ed up their
clothes and went to the house next door which was also under
construction. He was not sure
whether they had intercourse there
again, but this was where the deceased made what he thought was a
deroga-tory remark about his
divorced wife. He was not sure what the
remark was but it sounded as though she had referred to his wife as a
harlot, although
she may have said something else. He then hit the
deceased and when she fell he pushed a stone up her vagina. He
professed not
to know whether she screamed or put up
.../20
20
any form of resistance, but then
seemed to think that she grabbed him by his shoulders. He put his
hand up her vagina but does not
know what he did. In
cross-examination he says that when he eventually removed his hand
from her vagina she appeared to be dead.
He cannot remember where he
sustained any of the scratch-es and injuries found by Dr. Fletcher.
The trial Court
found the appellant to be a "pathological liar" and
rejected his evidence in
toto
.
Besides the two earlier statements of the appel-lant which
fundamentally conflict with his testimony in Court and which the
appellant
concedes were a pack of lies, his evidence was so bad and
so unsatisfactory on a mere reading of it, that
I
am not persuaded that
../21
21 & 22
the trial Court was wrong in
rejecting it out of hand.
From the evidence of the appellant
it
appears that on 31 October 1984
he was sentenced to one years imprisonment for the theft of a motor
cycle; on 9 January 1985 to
two years imprisonment on two further
counts of the theft of motor cycles; and on 15 May 1985 to another
two years imprisonment
on a similar count. Portions of the sentences
were sus-pended and in effect the appellant spent 18 months in gaol
before being
released on parole on 9 August 1986.
On 29 February 1988 he was
admitted to Weskoppies Mental Hospital in terms of a reception order
issued by the magistrate of Boksburg.
There he was examined i.a.
../23
23
by Dr. Holloway who diagnosed him
as being a dangerous psychopath with suicidal tendencies, and
recommended his reception in an
institution for treatment. How-ever,
on 21 March 1988 the appellant jumped through a window and absconded.
On 1 August he committed
a serious sexual assault on his estranged
wife by drag-ging her into a room at a boarding house where she was
living, and, after
having forcibly had intercourse with her, tying
her hands to the bed and pushing a 500 ml. Coca-Cola bottle up her
vagina. Three
days later on 4 August 1988 he was again admitted to
Weskoppies Hos-pital but declined any form of treatment and left on
11 August.
On 1 November 1988 - i.e. after the commission of the
offence presently under consideration -
../24
24
he was sentenced to one years
imprisonment for the in-decent assault on his wife.
The present offence was committed
on 24 September 1988 and on 12 December 1988 he was committed to
Weskoppies Hospital for observation
in terms of sect-ion 77 of Act 51
of 1977. There two psychiatrists, Drs. J. A. Plomp and C. le Roux
found that although he had
an antisocial personality disorder he was
capa-ble of understanding court proceedings so as to make a proper
defence, and that
at the time of the commis-sión of the
offence he was not affected by any mental disturbance or defect so as
to prevent him
from appre-ciating the wrongfulness of his act, or
from restrain-ing him from the commission of the offence. On 24
../25
25
September 1989
another psychiatrist, Dr. Verster, was commissioned by thê
appellant's advisers to examine him, and Dr. yerster
came to the same
conclusion as Drs. Plomp and le Roux. Dr. Plomp was the only one of
these three psychiatrists who gave evidence
at the trial. He was
called by the defence and
I
shall
return to his evidence later.
The defence also called Mrs.
Krynauw, a social worker attached to the Weskoppies Hospital, and Dr.
de Miranda, the director and
head of clini-cal services of "Sanca"
in Johannesburg, and a part-time lecturer on the subject of alcohol
and drugs at
the University of the Witwatersrand. Mrs. Krynauw had
compiled two reports on the appellant - one during
..../ 26
26
January 1988 when he was admitted
to Weskoppies Hos-pital for the first time, and another during
Decem-ber 1988 when he was committed
for observation. In her reports
Mrs. Krynauw deals with the appellant's unhappy childhood. At the age
of about 3 or 4, after his
father's death he was declared to be a
child in need of care and placed in various institutions. His mother
was either unable or
unwilling to care for him and what parental love
and care he received as a child came from his maternal grandmother.
At as early
an age as 7 or 8 he began manifesting exceptionally
aggressive behaviour. That this aggressive streak in his character
has persisted
through the years is borne out not only in Mrs.
Krynauw's reports, but also
../27
27
by the
appellant's own evidence at his trial. He de-posed to having obtained
work as a carpenter on leaving school, and to having
been "fired"
by his employers for having hit his brother, Anton. Thereafter he
says he worked at various places - but
never for longer than 9 months
- and was generally discharged for fighting. On 1 November 1988, as
I
have indicated, appellant was sentenced to
one years imprisonment for the indecent assault perpetrated on his
former wife, and when
Mrs. Krynauw compiled her report on 25 December
1988, she referred to the fact that the appellant had physically
attacked a prison
warder in the prison at Nigel and that criminal
proceedings in respect of this assault
were apparently pending.
../28
28
Dr. de Miranda's evidence'
referred prima-rily to the effect which the various drugs appellant
alleged he had used that night would
have on a person. All the drugs
- Peracon, Welconal and Phensydil - were depressants, which, like
alcohol, depresses the vital
centres of the central nervous system,
thereby affecting the better developed judgment of a person. In South
Africa, Dr. de Miranda
says, Welconal is only distributed in tab-let
form, so before it can be injected in the way appel-lant said he did,
the tablets
had to be crushed and then mixed with some fluid, usually
water. It is then drawn up in a syringe and injected intravenously.
Nowhere
in his evidence did appellant depose to crushing and mixing
the Welconal tablets in a fluid, but rather
.../ 29
29
left the impression that he was
talking about some-thing already in a fluid form. The effect of the
alco-hol taken together with
any of these drugs would mere-ly serve
to aggravate the effects. Dagga taken with alcohol, he says, would
tend to exaggerate the
appel-lant's aggresive tendencies.
In his evidence Dr. Plomp pointed
out that if the appellant had smoked dagga during the morn-ing of the
day in question the effect
would have worn off by the time he
committed the murder. So, too, the effect of the Welconal, which he
said he in-jected at about
6 o'clock that evening, would have worn
off after about 4 hours - i.e. by about 10 p.m. The effect of the
dagga and of the Welconal,
even if
../30
30
appellant's
evidence in this respect be accepted, can therefore,for all practical
intents and purposes, be left out of account.
On the appellant's
evidence, then, we are left only with the consumption of the alcohol,
the Phensydil and the Peracons. His evidence
on this aspect of the
case is as unreliable and mendacious as the rest of his evidence. As
his own witness, Dr. Plomp, points out,
if the appellant had consumed
the 8 beers he says he did at the "disco", and then a
bottle of brandy after he had left
the hotel, he would have been in a
comatose state and verging on death. That amount of alcohol, he said
would be lethal. By virtue of the effects of
Phensydil and Peracon, the ingestion of these drugs could only have
aggravated the
condition,
../31
31
and could not have ameliorated it
in anyway. The appellant's evidence in this regard therefore cannot
be true. Moreover these deliberate
lies would seem to be a conscious
attempt to excuse him from all criminal responsibility for the death
of the deceased, or at least
to reduce his moral culpability for the
deed. Baker's evidence that the appellant was not obviously under the
influence of liquor
when he saw him, and that he carried nothing with
him at the time, was accepted by the trial Court, and would seem to
present a
much more reliable reflection of the appellant's condition.
So too appellant's suggestion that
the deceased not only consumed beer with him at the "disco",
but also drank two further
bottles of beer after
../32
32
leaving the hotel, was shown to be
devoid of all truth. Again this would seem to have been a deliberate
lie designed to lend credence
to his allegation that she willingly
accompanied him into the deserted house in order to have intercourse.
The evidence of her
mother and the fact that she had not consumed any
alcohol, and that the cross from her necklace was found on the
pavement outside
the house, tends to militate against such a
suggestion.
In finding extenuating
circumstances the learned trial Judge remarked that he and his
assessors had initially been of the view
"that the horrific crime
committed by the accused merited a finding of no extenuating
circumstances"
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33
but that eventually "with
some trepidation" they had come to the conclusion that they were
bound to find extenuation.
After referring in
extenso
to the
judgment of this Court in
S. v. Sibiya
1984 (1) SA 91
(A) the
learned Judge concluded:
"We
accordingly find, as
I
have
said, with some difficulty, that this is a border-line case but that
extenuating circumstances in respect of count 1 are unanimously
found
to have been established on the balance of probabilities being that:
When he murdered the deceased the
accused, although he knew what he was doing, suffer-ed from a mental
defect in the form of se-vere
psychopathy; and
that such psychopathy, coupled
with the in-take of alcohol and probably the use of drugs on the day
of the commission of the offence,
diminished the accused's moral as
opposed to his legal culpability for the crime."
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34
When it came to sentence however
the trial Judge, in the exercise of his discretion, sentenced the
appellant to death, remarking:
"I
have
considered all the circumstances of this particular case and
I
am of the view that the accused is an
absolute menace to society and that .... he should be removed from
society and that is the
only way in which this horrible murder can be
expiated."
The concept of
"extenuating circumstances"
has been replaced by the
provisions of Act 107 of 1990, ("the Act") and in an appeal
against a sentence of death this
Court is now empowered to set aside
the sentence and to impose such punishment as it considers to be
proper if it is of the opinion
that it would not itselfhave imposed
the sentence of death. (Section 13(b)).
.../35
35
Moreover in exercising its
discretion this Court must have regard to the provisions of section 4
of the Act which allows a trial
Judge to impose the death sentence
only when he is satisfied, after having due regard to the mitigating
and aggravating factors
found by the trial Court that the sentence of
death is the proper sentence(section 4). In
S. v. Nkwanyana
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at p. 745 D - G Nestadt J.A. held, in considering
whether the death sentence is the proper sentence, that:
" ...
I
agree with the view of E.M. Grosskopf J.A.
in
S. v. Senonohi
[1990] ZASCA 93
;
(1990 (4) SA 727
(A) at p. 734 E - F) that regard will be had to the
main purposes of punishment, namely deterrent, pre-ventive,
reformative and
retributive. This means that in deciding whether the
death sentence is the proper one, consideration will be given to
whether these
objects cannot properly be achieved by a sentence other
than the death
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36
sentence (generally a lengthy
period of im-prisonment). If they can, then the death sent-ence will
not be passed. This is because
'the proper sentence' (unlike 'a
proper sentence') must be interpreted to mean 'the only proper
sentence'. It follows that the
imposition of the death sentence will
be confined to except-ionally serious cases; where (in the words of
Nicholas A J A in
S v J
1989 (1) SA 669
(A) at 682 D, albeit
in a different context) 'it is imperatively called for'."
In the present case the appellant
was, in the view of all three psychiatrists who examined him, a
psychopath. Dr. Plomp was of the
view that he would be classed as a
"severe case of psychopathy". When asked if he would
classify him as a "five
star psychopath" Dr. Plomp replied
that he would prefer to put him in the "four star"
category. The essential featureof
psychopathy, or anti-social
personality disorder as
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37
it is currently termed in
psychiatric literature, is, in Dr. Plomp's view "a pattern of
irresponsible and anti-social behaviour
beginning in childhood or
early ado-lescence and continuing into adulthood .... People with
anti-social personality disorder tend
to be irri-table and aggressive
and get repeatedly into physical fights and assaults .... They
generally have no remorse about
the effect of their behaviour on
others". They are egocentric and manipulate other people for
their own ends without any regard
for their feelings. They are
inclined to be impulsive with a low frustration tolerance, and insist
on the immediate satisfaction
of their wants. They do not learn from
experience. For that which they are punished today, they will do
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38
again tomorrow. There is
therefore no hope of punish-ment leaving any reformative effect on
them.
The appellant,
as
I
have
indicated,shows
a high degree of
psychopathy and, in Dr. Plomp's view, the prognosis of improvement,
even with treatment, is bad. This, he says,
makes the appellant an
extremely dangerous person in society - not only for women but also
for men. In fact Dr. Plomp considers
that he would pose a dangerous
threat to any form of society, and even in a prison society he would
constitute a danger to his
fellow prisoners. His behaviour, says Dr.
Plomp, is predictable only in its unpredictability.
A psychopathic disorder is defined
in section 1 of the Mental Health Act, No. 18 of 1973 as:
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39
"a persistent disorder or
disability of the mind (whether or not subnormality of intelligence
is present) which has existed
in the patient from any age prior to
that of eighteen years and which results in abnormally aggressive or
seriously irresponsible
conduct on the part of the patient, and
'psychopath' has a corres-ponding meaning."
The section also includes a
psychopathic disorder under the concept of a mental illness. This,
however, Dr. Plomp points out, does
not mean that he is a psychotic,
orthat it makes him dull-witted or stupid. He does not suffer from
delusions or other comparable
mental illness which could deprive him
of the responsibility of appreciating the wrongfulness of his act or
of acting in accordance
with such appreciation. He fully appreciated
the wrongfulness of his act.
.../ 40
40
Two attempts were made to
determine the appellant's intelligence quotient (I.Q.). On the first
occasion an average of 90 was recorded.
The second attempt yielded a
lower figure, but in Dr. Plomp's view very little reliance could be
placed on this result because
the appellant was unco-operative and,
deli-berately tried to "sabotage" the result. In the light
of these tests Dr. Plomp
was of the opinion that the actual I.Q. of
the appellant could be about 95.
It was put to Dr. Plomp that a
1954 report of the World Health Organization classified persons with
an I.Q. of 68-85 as "borderline
mental retardation" -i.e.
persons who "possess little or no powers of abstract
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41
thinking" and who "are
virtually incapable of purpose-ful behaviour". Dr. Plomp did not
agree with this classification
and pointed out that many people
within that I.Q. range - i.e. 68-85 - conducted themselves well
enough in society; held down jobs
and earned a living; married and
had children and behaved in a responsible manner. Appellant's true
I.Q. was there-fore considerably
higher than persons falling in that
group. The question why the appellant should have wanted to sabotage
the tests so as to reflect
a false and lower I.Q. immediately
presents itself. Here too it seems to me that the appellant was
sufficiently in-telligent -
or rather shrewd enough - to realize that
the more dull-witted he could appear to be, the less
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42
a court would assess his
blameworthiness for the deed. This inference is consistent with the
tendency of a psychopath to manipulate
others to his own advantage,
and with Dr. Plomp's observation that psychopathy does not make one
dull-witted or stupid.
The allegation by the appellant
that his aggression towards the deceased was provoked by her
reference to the appellant's former
wife as a harlot (subsequently
watered down to "something that sounded like a harlot")
rests entirely on his own evidence
-evidence which has been shown, as
indicated above, to contain deliberate perversions of the truth
designed to excuse his actions
or to reduce his blameworthiness. Seen
in the light of his psychopathic intolerance of
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43
any frustrations of his desires,
his aggressive behaviour may as easily have been provoked by the
deceased's re-fusal to have intercourse
with him. That this
infer-ence is the more probable one is borne out by the fact that she
was a young, shy, retiring girl who hardly
knew the appellant, and
that she was perfectly sober at the time.
It was common cause in the
argument before us that the only alternative to the death sentence
worthy of consideration in the present
case was impri-sonment for
life. The provisions of section 18 of the Act, which is substituted
for section 64 of Act 8 of 1959,
makes life imprisonment a much more
effective means of removing a dangerous criminal from society
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44
than had formerly been the case.
(
S. v. Mdau
[1990] ZASCA 126
;
1991 (1) SA 169
(A) at p 176 D - 177 C.) If, in
the light of the-se provisions, life imprisonment would be a proper
sentence in this case, then
clearly the death sentence cannot be said
to be the only proper sentence.
In finding
extenuation the trial Court concluded that the appellant "suffered
from a mental defect in the form of severe psychopathy",
which,
"coupled with his intake of alcohol and probably the use of
drugs" dimi-nished his moral, as opposed to his legal,

culpability. As
I
have
indicated this "mental defect" did not render him incapable
of appreciating the wrongfulness of his act or from acting
in
accordance with such appreciation. What makes him different from
other people is that his
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45
will to resist the temptation to
commit unethical or criminal acts is less strong than in an ordinary
person. He succumbs more easily
to his wrong or evil desires due to
his insensitivity to the feelings of other peo-ple. (Cf.
S. v.
Mnyanda
1976 (2) SA 751
(A) at 763 F - G.) In this sense his
personality may be said to be impair-ed and anti-social. But he is
not psychotic or insane,
and he can control his emotions and
anti-social impul-ses. That is why psychopathy - and even severe
psycho-pathy - does not relieve
him from criminal responsibi-lity for
his actions, and at most can serve as a feature which to some extent
may diminish his moral
culpability. (S
. v. Mnyanda
(
supra
)
at p 766 H.) In a case such as the present one it must certainly be
taken into account
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46
as a mitigating factor to be
weighed together with the aggravating factors in determining the
proper sentence.
It is common
cause, as
I
have
indicated, that the appellant is such a dangerous and unpredictable
person, and such a threat to society that the prevent-ive
aspect of
punishment must be a dominant considera-tion, and that the appellant
must be removed from so-ciety in general. This can
be achieved either
by life imprisonment or by the death sentence. According to the
evidence of Dr. Plomp the prison authorities
main-tain a psychiatric
hospital at Cullinan where psycho-paths, may be kept. The authorities
have adopted a
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47
very strict system of selection
for any vacancies which may occur, so that even a recommendation by a
court will not necessarily
ensure his reception. What the crite-ria
for selection are, was not traversed. In any event Dr. Plomp was of
the opinion that this
hospital - as indeed any other institution -
has not achieved much success in its treatment of psychopaths, and he
con-sidered
the prognosis for improvement in the case of the
appellant in particular, as bad.
The prospect is therefore that
the appel- lant will be kept in an ordinary prison, where, on Dr.
Plomp's evidence, he will pose
a potential danger to the other
inmates. As appears from the report of Mrs. Krynauw he has already
attacked a prison warder
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48
shortly after his admission to the
Nigel Prison in November or December 1988. In
S. v. Eiman
1989
(2) SA 863
(A) at p 873 A - B, M.T. Steyn J.A. remarked:
"Ons Howe het alte dikwels te
doen met die so-genaamde 'tronkmoorde', by vele waarvan geweld-adige
psigopate betrokke is. Die
gevangenis-gemeenskap is ook geregtig om
teen sulke gevare beskerm te word."
The learned Judge then went on to
say:
"Sou appellant uit die
gevangenis ontsnap sou hy 'n gevaar vir die breër gemeenskap ook
wees, en ontsnappings uit ons
tronke is geen onbe-kende of rare
gebeurtenis nie."
Because of the
unconscionable and unscrupulous nature of the appellant's
psychopathic personality and its tendency to manipulate
others for
the attainment of his goals,
I
do
not think that imprison
ment - even life
imprisonment - can be an adequate
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49
protection of the safety and the
lives of others. The appellant has already manifested a fairly
consistent degree of criminality
as evidenced by his previous
convictions, as well as a consistent degree of aggression, as
evidenced by his frequent dismissals
from employment because of his
propensity to violence against fellow-employees, and culminating in
the vicious assault on
his former wife and the present
murder. There is no indication that punishment has deterred him in
any way or that it is likely
to do so in the future.
Moreover it seems to me that this
is a case where it may well be said that the enormity of the heinous
and brutal murder of this
young girl is so great, and so clamant for
extreme retribution
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50
"that society demands the
appellant's destruct-ion as the only expiation for his wrongdoing"
(per Holmes J.A. in
S. v.
Matthee
1971 (3) SA 769
(A) at 771 D). This Court in
S. v.
Pieterse
1982 (3) SA 678
(A) also had to deal with the murder of
a young girl by a certifiable psychopath, and in confirming the death
sentence imposed
on the appellant Rumpff C.J. remarkedat p 688 C
that:
"Na my mening strook die
vonnis met wat die ge-meenskap vandag in hierdie land verlang."
That was
essentially the view of the learned trial Judge in this matter, and
it is a view which
I
share.
In the result
therefore,
I
have,
after
serious consideration, come to the
conclusion that
life imprisonment would not
be a proper sentence, and
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51
that
the death sentence is in fact the only proper sent-ence.
I
would therefore dismiss the appeal.
J.P.G.
EKSTEEN, J.A.