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1992
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[1992] ZASCA 72
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S v Coetzee (520/91) [1992] ZASCA 72 (21 May 1992)
Case No 520/91 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JACQUES COETZEE Appellant
and
THE STATE Respondent
CORAM: E M Grosskopf, Milne JJA et
Kriegler AJA
DATE OF HEARING
: 8 May 1992
DATE OF JUDGMENT
: 21 May 1992
JUDGMENT
/MILNE JA
2
MILKE JA:
The appellant was convicted of the rape and murder of a 14 year old school
girl. On the rape charge he was sentenced to 10 years'
imprisonment. On the
murder charge no extenuating circumstances were found and the death sentence was
imposed. With leave of the
trial court he appealed to this court against the
rape conviction and against the finding that there were no extenuating
circumstances
and accordingly against the sentence of death. The appeal was
dismissed on 25 May 1990. Thereafter, in terms of section 19 of the
Criminal Law
Amendment Act 107 of 1990, the case was considered by the panel appointed under
that section and the panel found that
the sentence of death would probably have
been imposed by the trial court had section 277 of the Criminal Procedure Act as
substituted
by section 4 of the 1990 Act been in operation at the time sentence
was passed.
3 The matter now comes before this court in terms
of
section 19(12)(a) of the 1990 Act.
The factual background is fully dealt with in the judgment of this court. It
is not reported but was delivered on 25 May 1990 in Appeal
Case No 533/89. I do
not propose to repeat the facts but the relevant back-ground may be briefly
summarised as follows:- At the time
he committed the offences in question the
appellant was 20 years and 8 months old and the deceased was nearly 15 years
old. The deceased
was a virgin and a devoted young Christian. She and the
appellant lived with their respective parents in Eshowe. Both mothers were
members of the same church and the appellant's mother had visited the house of
the mother of the deceased on several occasions before
the date when these
offences were committed. The deceased was in Std 7 and in order to travel to and
from school she used a road
which passed through the Dhlinza forest. She left
the school at about
4 2.30 p.m. on 21 July 1988 and on her way home she
was
raped and murdered by the appellant. The relevant
findings of the trial court as to the precise
circumstances in which the deceased met her death were
the following:
"We are left with circumstantial evidence only as to the events in Dhlinza
forest on the 21st of July 1988. The following circumstances
are beyond
dispute.
The deceased's blazer was found neatly folded. Her shoes were found
unbuckled. There is no evidence before us of signs of any struggle,
either along
the paths or in the vicinity of where these clothes were found. The deceased's
bra (sic) had been removed without apparent
damage to, it. These circumstances,
to our mind, show that there may have been some voluntary association with the
accused on the
part of the deceased. Although we find it to be unlikely in the
circumstances we must consider the possibility that there was some
petting
between these two people prior to the intercourse and the death of the deceased
and, on the basis only of it being reasonably
possibly true, we give the benefit
of the doubt in this regard to the accused.
We also know, and this is a circumstance of some importance, that the
deceased was a shy, inexperienced, Christian and obedient girl
who was also
menstruating at the time. These circumstances, to our mind, make it almost
impossible to believe that she would have
consented voluntarily to intercourse.
If one takes, in addition to these circumstances, the conduct of the accused
following upon
the intercourse, the inference is to our mind
5
inevitable that there was no consent to intercourse. It is
possible that the deceased was already unconscious at the time of intercourse.
The blow to the back of the head could have caused a loss of consciousness. The
injury to the vagina was caused shortly before death,
but it is not possible to
speculate further on that possibility. It is sufficient to find that the
circumstances were such that we
can infer nothing else than that there was no
consent to intercourse.
The accused must, therefore, be found guilty on the first count.
As far as the second count is concerned we have the following undeniable
circumstances. The deceased was found with a ligature tightly
wound around her
neck tightened with a stick. There was an injury to the back of her head which
probably caused unconsciousness.
She had been hidden under branches and leaves.
There were no signs of manual strangulation. There were no finger-marks around
the
ligature which may have been expected if a deceased attempts to free herself
of the strangulating ligature. This may be an indication
that the deceased was
already unconscious when the ligature was placed around her neck.
It is argued on behalf of the accused that the Court should accept his
version, namely that he thought she was already dead, and that
if a conviction
of murder were to follow it should be on the basis of dolus eventualis in the
sense that although he thought she
was dead he recognised the possibility that
she was alive and strangled her knowing of that possibility. I cannot accede to
this
argument. The version related by the accused is so bizarre as to defy
credence. I cannot for a second believe that a person who believes
that a person
has been accidentally killed, would try to make an accident look like murder. It
is
6
conceivable that a person would try to make murder look like an accident, not
the other way round. The only inference to be drawn
f rom the f act of this
strangulation is that it was done with the intention to cause death. No other
inference is open.
I have had some regard to the comparative youthfulness of the accused and his
degree of development as I am enjoined to do in the
Mtsweni case. I can find
nothing in the accused's background, his degree of development, that would make
the fact that he lied take
a different complexion to the one that I have put on
it. The only reason for his having lied, both in respect of the rape charge
and
of the murder charge, can only be to disguise or lessen his implication in these
offences.
The unanimous finding of the Court is that the accused put the ligature around
the deceased's neck with the direct intention to kill
her. He is found guilty
also on the second count as charged."
These findings were left
undisturbed by the judgment of this court and on that basis it was submitted on
the appellant's behalf that
the following version was reasonably possibly
true:
"(a) Die beskuldigde en die oorledene het mekaar geken;
(b)
Die oorledene het
vrywilliglik saam met die beskuldigde in Dhlinzabos
ingegaan;
(c)
Daar was, minstens op die basis
van 'n redelike moontlikheid, liefkosinge tussen
hulle;
(d)
Die beskuldigde het onder die
invloed yan wellus die oorledene verkrag;
(e)
Mediese getuienis en die appellant se getuienis dui daarop dat beide
partye seksueel onervare was;
(f)
Die
oorledene was kort na die verkragting
7
bewusteloos geslaan [by the appellant] waarskynlik as gevolg van ' n hou tot
die kop waarskynlik toegedien van agter af terwyl sy
weggehardloop het om die
verkragting te rapporteer;
(g) Die beskuldigde het die oorledene vermoor deur haar met haar skooluniform
gordel te verwurg deur 'n stok te gebruik om die gordel
op te wen soos 'n
tourniquet, terwyl die oorledene bewusteloos was;
(h) Die verwurging het waarskynlik 'n aanvang geneem baie kort na die
verkragting, 4 tot 5 minute op die meeste;
(i) Die beskuldigde was ongewapen en die moord was nie voorbedag nie in die sin
dat daar geen voorafbeplanning was nie;
(j) Die beskuldigde het die oorledene vermoor om haar te verhoed om die
verkragting aan te meld."
I agree that this version
is, on the evidence,
reasonably possible and the question of sentence
must
accordingly be approached on that basis.
It follows from (a), (b) , (c) and (d) above that it has not been excluded as
a reasonable possibility that it was only in the course
of the "liefkosinge"
that the appellant formed the intention of raping the deceased. It also follows
from (h), (i) and (j) that it
8
was only in the last few minutes before her death that
the appellant formed the intention of killing the deceased. It is necessary
to amplify (j) slightly. The appellant said in evidence
that after he had had
inter-course with the deceased she said that she would tell her mother what had
been done to her. He, in effect,
attempted to dissuade her but when his pleas
fell oh deaf ears he became angry.and eventually, after he had struck her and
she had
slapped him twice, he started to strangle her manually, she fell and hit
her head against a pipe whereupon he strangled her in the
manner described in
(g) above. The trial court decided "... that the evidence of the accused must be
rejected as being false and
unreliable", but it is apparent that this rejection
relates, in the main, to his evidence that the deceased had consented to
intercourse
and that she had struck her head against a pipe. It was accepted in
the judgment of this court that only a few minutes had elapsed
between the
completion of the rape and the strangling of the
9
deceased and that his intention to kill her was formed
only when she
made it clear that she would not be
dissuaded from reporting what had happened to her mother.
Steyn JA who delivered the judgment of this court said
the following in this regard:
"Die feit dat sake na die verkragting vinnig verloop het en binne ongeveer
vyf minute afgespeel het, regverdig nie die gevolgtrekking
dat appellant toe
impulsief opgetree het nie. Hy het inteendeel vinnig 'n aantal berekende
alternatiewe opsies oorweeg en toegepas
oor hoe om die skielike krisis te
hanteer wat vir hom ontstaan het toe die oorledene sê dat sy haar moeder
gaan vertel wat
hy aan haar gedoen het. Hy het aanvanklik met haar geredeneer en
probeer oortuig om dit nie te doen nie. Eers daarna, toe sy op die
vlug geslaan
het om van hom weg te kom en die onmiddellike gevaar hom in die gesig gestaar
het dat sy tog aan haar moeder gaan rapporteer,
het hy haar te lyf gegaan en
doodgemaak om daardie gevaar te vermy."
On the question of impulsiveness it must be borne in mind that calculated
conduct may follow an impulsive decision. Furthermore, as
pointed out by
Professor Edwards and Dr Dunn, there may still be an element of impulsiveness in
apparently calculated
10 conduct. They both took the view that there was such
an
element in this case. This view derives some support
from the fact that the whole course of "berekende"
conduct lasted only a few minutes. In considering the
question of impulsiveness it is also necessary to bear in
mind the particular person that one is concerned with.
This brings me to the personal circumstances of the appellant. He was
chronologically a minor at the time he committed these offences
(he was 20 years
and 8 months old). It is however clear from the evidence of Dr Dunn, a
psychiatrist, and Professor Edwards, a professor
of psychology and a registered
clinical psychologist, who both gave evidence at the trial, that the appellant
was "significantly"
emotionallý and intellectually immature. They
estimated that his intellectual development was equivalent to that of a 16 year
old. Furthermore, his level of intelligence was bordering on that of a person
with mild mental retardation. It is also clear from
the
11
evidence of the appellant himself and a social worker's
report that,
from the age of 14, until the age he was
when he committed the offences in
question in this case,
the appellant was either in prison or in similar
institutions as a result of having committed criminal
offences involving dishonesty - but none involving
violence. In my judgment the appellant's counsel was
right in submitting that the appellant's family
background was of such a nature that there was no role
model to serve as an example for him and that normal and
healthy moral values were never instilled in him in his
family life. It is also clear from the evidence of Dr
Dunn and Professor Edwards that the appellant suffered
from an anti-social personality disorder or, in other
words, a serious degree of psychopathy. Their evidence
was to the effect that a psychopath possesses the
following characteristics:
"emotional immaturity, callousness, inability to learn by experience, weak
impulse control and lack of insight with accompanying impulsiveness
of conduct
without regard to the consequences."
12
These facts were also considered by the trial
court
and by this court but it was found that they played no role in the commission of
the murder. Counsel for the State, rightly
in my view, conceded however that,
having regard to the changes effected by section 277 of the Criminal Procedure
Act as substituted
by section 4 of Act No 107 of 1990 particularly in regard to
the onus, a different approach is now called for. There is now no longer
an onus
on an accused person to prove that his mental and emotional maturity were a
factor in the commission of the crime before
such factors can be taken into
account in considering the appropriateness of a death sentence. His immaturity,
low level of intelligence,
poor family background and lack of judgment are now
circumstances to be taken into account when considering whether the death
sentence
is the only proper sentence unless the State is able to prove that they
did not play any role in the commission of the offence. The
test to be applied
by this court is therefore different
13
from that which had to be applied and was applied when
the matter
was previously dealt with by the Appellate
Division. Steyn JA, referring to
the remarks of Rumpff
CJ in S v Lehnberg en 'n Ander 1975(4) SA 553 (A) at
561G-H, said:
"As twintigjarige het die bewyslas op hom [appellant] gerus om op 'n oorwig
van waarskynlikheid te bewys dat sy graad van onvolwassenheid
regtens 'n
versagtende omstandigheid was."
The immaturity, intellectual poverty and
psychopathy of the appellant having been properly raised
in the evidence of the appellant and the expert witnesses
already referred to, it was for the State to establish
that they did not play a signif icant role. On the basis
already mentioned that it must be accepted that:
(a)
Having indulged in some
love-making that was not objected to by the deceased the appellant was carried
away by his passipns and raped
her.
(b)
His
decision to murder the deceased was formed
and
14 carried out within a few minutes after the rape.
(c) The
reasonable possibility has not been excluded
that his emotional immaturity, "border-line"
intelligence and the absence of any kind of normal
background which would give him a proper sense of
values, all played a substantial part in his
decision.
To this group of factors it must be added, for what it
is
worth, the evidence of Professor Edwards that as a result
of the appellant's psychopathic condition he was less
able than the normal person to reject murder as an
instantaneous solution for his dilemma. I say "for what
it is worth" not as any reflection on Professor Edwards
or his evidence, but because the matters that bothered me
in considering the whole concept of psychopathy and its
effect as a mitigating circumstance in S v Phillips &
Another 1985(2) SA 727 (N) at 739B - 724C, still bother
me. At the least, however, it seems that psychopaths
tend to have a diminished ability to control themselves.
15 It is now necessary to consider the aggravating
factors. There are certainly aggravating factors of a
very serious nature.
The first is that the murder was
committed with direct intent, the second is that it was
committed in order to avoid the detection of the
appellant's previous rape - in other words it was his own
previous conduct that put him in the dilemma and the
third is the pathetic circumstances of the deceased. The
murder of a 14 year old girl of the kind the deceased
was, is an offence likely to arouse feelings of the
utmost repulsion in the community. The community however
must be taken to have expressed its will through the
legislature and the legislature has made it plain that
persons under the age of 18 are not to be sentenced to
death. As pointed out by the appellant's counsel it
seems probable that the rationale behind this approach is
that persons under 18 are considered not to have
sufficient mental and emotional maturity to deserve the
ultimate penalty. Another approach is to say, as did
16
Rumpff CJ in Lehnberg's case supra at 561B:
"... ek dink ook nie dat die regspleging van 'n beskaafde staat begerig is,
behalwe in buitengewone omstandighede, om tienderjariges
te laat ophang
nie."
See also S v Dlamini 1991(2) SACR 665 (A) at 667i-668a.
Whichever approach one adopts, it would seem logical that
when the evidence establishes that an accused person over
the age of 18 is by reason of his paucity of intelligence
and his emotional immaturity, in effect, a sixteen-year
old he should also not be liable to be sentenced to
death. It is, however, unnecessary to decide whether
this process of reasoning is a valid one: at the very
least the appellant's immaturity is a material factor in
considering sentence.
Two further factors must be mentioned. Strangulation is for the reasons
mentioned by Malan JA in R v Lewis 1958(3) SA 107 (A) at 109E-F
usually a
particularly deliberate and abhorrent kind of murder.
17 This aspect is
probably not quite so prominent where, as
here, the trial court accepts that it is reasonably
possible that the
deceased was already unconscious when
the appellant applied the ligature to the throat of the
deceased. The other factor to be considered is the
question of the rehabilitation of the appellant. The
prospects are not bright. During the period February
1981 to December 1987 the appellant was convicted on
three occasions of theft, on two occasions of
housebreaking with intent to steal and theft, and on one
occasion of removing a motor vehicle without the consent
of the owner. He was also convicted of escaping from
custody. For these offences he received a variety of
sentences including eventually a sentence of imprisonment
for 3 years. After he committed the offences involved in
this case he escaped from custody and once again
committed a housebreaking with intent to steal and
theft. For these offences he was sentenced to 3 years
and 6 years imprisonment respectively. In these
18
circumstances it is difficult to quarrel with the view of
the trial judge that it is improbable that further imprisonment will be of
any value to the appellant. There is the further circumstance
that the prospects
of rehabilitation of a psychopath are apparently poor -though they are somewhat
better according to Prof Edwards
in the case of an introverted psychopath, as is
the appellant, than in the case of an extroverted psychopath. Both the expert
witnesses
also agreed that certain aspects of psychopathy tended to burn out
after the age of forty. The prospect of some improvement in the
appellant if he
is kept in prison until some time in his forties cannot therefore be ruled
out.
Weighing up the mitigating factors and the aggravating factors and giving due
consideration to the objects of punishment I am satisfied
that the death
sentence is not the only appropriate sentence in this case. I was disposed to
think that a sentence of
19
imprisonment for life is the appropriate sentence, but I
have been persuaded that that would be excessive in all the circumstances,
and in particular the fact that the appellant was only
twenty years old when he
committed the offence. I propose therefore to pass a sentence which, if it is
not interfered with, will
ensure that the appellant is incarcerated for a
sufficiently long period to diminish the risk of his committing further serious
offences.
The appeal is upheld against the death sentence, and a sentence of 25 years'
imprisonment is substituted in its place, such sentence
to be ante-dated to 9
August 1989 in terms of section 282 of Act 51 of 1977 and to run concurrently
with the sentence imposed on
the rape charge.
A J MILNE Judge of Appeal
E M Grosskopf ]
] CONCUR Kriegler AJA ]