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1991
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[1991] ZASCA 133
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S v Mkhize (56/91) [1991] ZASCA 133 (27 September 1991)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
CASE NO: 56/91 In the appeal of:
BONGANI KHEVE MKHIZE APPELLANT
and.
THE
STATE RESPONDENT
Coram
: CORBETT CJ, NICHOLAS et VAN COLLER
AJJA
Date heard: 6 September 1991
Date delivered: 27 September 1991
2 JUDGMENT
VAN COLLER AJA
:
On 28 March 1990 the appellant was convicted of murder in the Natal
Provincial Division. The trial court, composed of Wilson J and
two assessors,
found no extenuating circumstances and the death sentence was imposed.
Appellant's application for leave to appeal
was refused, but leave to appeal
against the sentence was granted by this court.
The deceased was a nine year-old girl. She was the niece of appellant.
According to the medical evidence the deceased died as a result
of multiple stab
wounds. No less than 107 stab wounds were inflicted. Some of these wounds
penetrated
3 the heart and lungs. There were stab wounds to the chest, stomach, back and
legs. Even part of the tongue had been cut away. One
cannot but agree with the
trial judge's impression that there was a long, deliberate and sadistic attack
on the body of this child.
Appellant admitted that he killed the deceased.
Appellant and the deceased left his mother's kraal at about noon on 24
September 1987. The deceased accompanied appellant to fetch
his belongings from
another kraal. According to the evidence of appellant's mother, Tembile Mkhize,
appellant was sober and there
was nothing wrong with him. During
cross-examination she mentioned that there was no trouble between him and the
deceased but that
there was some ill-feeling between appellant and the mother of
the deceased. A state witness, Gaza Chili, testified that on the day
in question
he gave appellant and the deceased a lift in his car. He picked them up at a
place called Obisana and dropped them in
front of his store in the
4 Macekane
area between 5.00 and 5.30 pm. They were with him for approximately 20 minutes.
During this time he spoke to appellant
but detected nothing abnormal in his
speech or appearance. The body of the deceased was found on Friday 25 September
1987 near a
river about one and a half kilometres from the store owned by the
witness Chili. It is not clear from the evidence how f ar from
the kraal of
appellant's mother the body was discovered, but it does appear to have been in
the same area. The police found a blood-stained
shirt and a pair of shoes in the
vicinity of the body. The evidence established that the shirt belonged to the
deceased and that
the shoes were those of appellant.
Appellant's evidence was as follows. He drank stout and sorghum beer at a
store not far from his mother's kraal. His mother was present
at the store and
she also drank liquor. When he and the deceased left the store on the way to his
kraal, they were talking to each
other and she walked in front of him. The
deceased carried a bottle containing
5 Coca-Cola. After they had walked some
distance, the deceased handed the Coca-Cola bottle to him at his request. He
asked her to
do that so that she could walk faster. Eventually they reached a
river where he hit her with the bottle. He then stabbed the deceased
with his
knife while she was lying on the ground. Save for stating that he was . heavily
under the influence of liquor and that he
had not intended to kill her,
appellant could not explain why he attacked the deceased. He could also not
explain how it came about
that he left his shoes at the scene of the crime. A
perusal of appellant's evidence shows that his evidence was unsatisfactory and
evasive in many important respects. The trial court concluded that appellant was
an unmitigated liar and that he clearly knew what
he was doing when he stabbed
the deceased. The motive for the killing could not, however, be determined on
the evidence.
After appellant's conviction the trial was adjourned so that he could be
examined by a clinical psychologist. When the
6 hearing was resumed the
defence called Mrs Mkhize, the clinical psychologist who interviewed appellant
and who submitted a report
in respect of her findings. Mrs Mkhize has a master's
degree in clinical psychology and she is a senior lecturêr in psychology
at the University of Zululand. The evidence of this witness could not resolve
the . uncertainty with regard to the motive for the
killing. She stated that
there was nothing forthcoming from appellant to indicate what could have
influenced him. It is possible,
according to Mrs Mkhize, that appellant could be
a person with a "conduct disorder" - a more recent diagnostic term for
psychopathy.
According to the witness, this is a serious personality deviance,
often resulting in criminal behaviour. In severe cases this disorder
may
manifest itself ih the infliction of considerable harm to others. She conceded
that the origin of this protracted attack could
have been sexually related. It
must, however, be pointed out that, according to the medical evidence, the
deceased had not been sexually
tampered with. If appellant i s really
7 a
conduct-disordered person, provocation of whatever nature could, according to
Mrs Mkhize, have resulted in the infliction by him
of serious physical injury
upon another person.
In its judgment on extenuation the court
a quo
stated that it was
satisfied on the evidence that appellant, on the afternoon in question, was not
under the influence of alcohol
to such an extent as to render him unaware of
precisely what he was doing. This finding and the finding that appellant has not
seen
fit to tell the truth as to what happened, appears to be fully justified on
the evidence. Although the court
a quo
mentioned that it appeared
probable that the initial cause of the attack was some sexual or sadistic
aberration it could not make
any finding in this regard.
It is not necessary to consider the correctness of the finding of the court
a quo
that "there i s no evidence as to
8 circumstances which could
constitute extenuating circumstances." Since the trial in this matter, the
Criminal Law Amendment Act
107 of 1990 has come into operation. The compulsory
imposition of the sentence of death has been abolished and the concept of
"extenuating
circumstances" has been eliminated under the provisions of this
Act. The effect of the amendment has been considered in a number
of recent
decisions of this court. It is not necessary to repeat what has been stated with
regard to the new approach. Suffice it
to refer to the following summary of
Nestadt JA in
Sv Matshili and Others
[1991] ZASCA 48
;
1991 (3) SA 264
(A) at 268 C - D
about the effect of the amendment and the task of this court:
"In brief, our task is to consider the sentence afresh. We have to decide
whether, having due regard to the presence or absence of
mitigating and
aggravating factors, and bearing in mind the main purpose 'of punishment, the
death sentence is the only proper sentence.
So no longer is it necessary for an
accused to prove extenuating circumstances in order to 'avoid its
imposition."
9
The aggravating factors in this case speak for themselves. A young and
defenceless girl was brutally murdered. There can be no doubt
that the attack on
the child was a deliberate one and that appellant acted with
dolus
directus
. The trial court also found that the attack was a planned . one. It
seems to me, however, that it cannot be determined on the evidence
when
appellant decided to kill the deceased. It is reasonably possible that the
attack could have taken place on the spur of the
moment. That the attack was
planned a cbnsiderable time before it actually took place is not, in my view,
the only reasonable inference
that can be drawn from the facts and it cannot
therefore be considered as an aggravating factor.
What is indeed a serious aggravating factor is the fact that appellant was
convicted of rape during November 1979. He was sentenced
to 4 years imprisonment
of which half was conditionally suspended for 5 years. There is no clarity
on
10 the record with regard to the exact age of appellant. It does appear
though, that he was approximately 25 years old when the murder
in question was
committed. It follows, and some allowance must be made for this, that the rape
must have been committed when appellant
was only seventeen years of age. During
1983 appellant was sentenced to one year imprisonment in respect of
housebreaking and theft.
Apart from these convictions, appellant has three other
previous convictions in respect of theft and housebreaking, dating back to
1974
and 1975. At that stage he must have been approximately 13 and 14 years of age.
It does not appear that the fact that appellant
was sent to a reform school in
1974 and that he subsequently served two prison sentences has had any
reformative effect. It is also
significant that Mrs Mkhize testified that she
does not know of a rehabilitation programme which could assist appellant.
The evidence of the clinical psychologist is important with regard to
mitigating factors. The trial court's view of Mrs
11
Khize's evidence i s as follows:
"Mrs Mkhize put up a detailed and helpful report as to her interviews with the
accused, but it is clear that she found nothing organically
wrong with the
accused or that he was suffering from any recognised defect of the intellect.
Her assumption from her interviews was
that the accused, from an early age, had
deliberately chosen to behave in a certain way. This involved a complete
disregard of the
feelings of others. A summary of her evidence would perhaps be
that the accused chose the path of evil."
It is true that Mrs
Mkhize said in answer to a leading question that appellant chose the páth
of evil. It is, however, also
clear that her evidence strongly suggests that
appellant is suffering from a conduct disorder. A psychiatrist was present
during
the trial and although he and a second psychiatrist had kept appellant
under observation and reported on his condition prior to the
commencement of the
trial, they were not called by the state to contradict the evidence of Mrs
Mkhize. There appears to be no reason
why Mrs Mkhize's evidence should not
be
12 accepted. I have already referred to certain extracts from her
evidence. To this may be added that, according to her evidence,
appellant did
not express or display any feelings about the murder. If one has regard to the
nature of the crime and the large number
of stab wounds; the fact that the
evidence disclosed no reason or motive for this gruesome . attack; and the
irrational conduct of
appellant, then it seems probable that appellant suffered
from some disorder or disability of the mind at the time. This conclusion
is
strengthened by the evidence of Mrs Mkhize. It is not necessary to decide
whether or not appellant is in fact suffering from a
conduct disorder of the
nature described by Mrs Mkhize. If he suffered from some disorder or disability
of the mind at the time when
he committed the murder and if it was in fact
related to the commission of the murder then it may constitute a mitigating
factor.
We are no longer concerned with extenuating circumstances and it is
therefore not necessary that the defect should have been substantial.
Cf
S v
Sibiya
1984 (1) SA 91
(A). However, a substantial
13 mental disability
must necessarily weigh more heavily than one of a lesser degree. In the instant
case it is not possible to determine
the extent of appellant's mental disorder.
I am satisfied, however, that it should be accepted as a mitigating factor of
some consequence.
There can also be no doubt that there i s a causal connection
between this mental disability and the purposeless and brutal murder
committed
by appellant.
There are very few other mitigating factors. The fact that appellant is an
unsophisticated person who received very little education
can be regarded as
mitigating factors. Little weight, however, can be attached to these factors
because it appears from the evidence
that appellant is articulate and according
to Mrs Mkhize, he "could be functioning far above the average range of
intelligence".
It seems to me that the following view of the trial judge,
expressed immediately prior to the death sentence being imposed, can also
not be
ignored:
14
"I think it only right that I should also, at this
stage, say that had I had a discretion as to an
alternative sentence, I would have imposed an
extremely long sentence in the light of the evidence
we have heard."
Apart from the fact that the aggravating circumstances far outweigh the
mitigating factors, it is clear from the evidence that appellant
is a danger to
society. He committed theft, rape, and now this brutal murder. The prospects of
rehabilitation are negligible. Appellant
should be permanently removed from
society. It remains to consider whether life imprisonment would be a proper
sentence. If it would,
then the death sentence would not be the only proper
sentence. Taking all the circumstances into account, it seems to me that this
is
not a case where society would demand the supreme penalty. It also seems to me
that a sentence of life imprisonment would satisfy
the deterrent, retributive
and preventive elements of sentencing.
15
The appeal is upheld. The death sentence is set aside and it is ordered that
appellant be imprisoned for life. A copy of this judgment
is to be sent to the
appropriate official of the Department of Correctional Services and his
attention is to be directed to the findings
concerning the mental disorder of
the appellant.
VAN COLLER AJA
CORBETT CJ )
) CONCUR NICHOLAS AJA )