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1991
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[1991] ZASCA 170
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S v Shezi (274/91) [1991] ZASCA 170 (27 November 1991)
Case No 274/91 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
ELLIOT MZOTHENI SHEZI
Appellant
versus
THE STATE
Respondent
CORAM: E M GROSSKOPF, MILNE et GOLDSTONE JJA
DATE OF HEARING: 21 November 1991 DELIVERY DATE: 27 November 1991
JUDGMENT
/MILNE JA
-1-
MILNE JA:
On 3 May 1988 the appellant was convicted of murder and robbery. The trial
court found that there were no extenuating circumstances
and sentenced him to
death on the murder charge. On the robbery charge he was sentenced to 10 years'
imprisonment. The trial court
granted leave to appeal against the sentence of
death and that appeal ("the first appeal") was dismissed by this court on 29 May
1989.
This all took place before the coming into force of Act No 107 of 1990 ("the
amending Act"). In terms of section 19 of the amending
Act the matter was
considered by the panel referred to in that section. The panel found that the
trial court would probably have
imposed the death sentence had
section 277
of
the
Criminal Procedure Act No 51 of 1977
as substituted by
section 4
of the
amending Act been
-2-
in operation at the time the sentence was passed.
The matter now comes before this court in terms of section 19(12) of the
amending Act. Section 19(12)(b)(ii) enjoins this court to
apply the same test as
that applied in appeals under
section 316A
of the
Criminal Procedure Act as
amended. This is a substantially different test from that applied by this court
when it heard the first appeal. There the court had
a much more limited power of
interference and, what is more, the enquiry itself is now a wider one. That is
apparent from a number
of decisions of this court to which it is unnecessary to
refer.
The factual background is as follows: the appellant, then a man of 23, had
worked as a gardener for the deceased and her husband at
their home in
Vanderbijlpark for approximately two years at the time when he committed
-3-
these offences. During this period the appellant and
the
deceased had apparently been on quite good terms. On 3 June
1987 the
appellant murdered the deceased in or near the
deceased's garage by stabbing
her approximately 24 times
with a hunting knife. At least 8 of these wounds
were
fatal; namely, the four stab wounds to the head which
penetrated the
deceased's brain and four stab wounds which
penetrated her liver. The
appellant having originally
pleaded not guilty, eventually conceded while
giving
evidence that he had murdered the deceased and that he had
on that
same day removed a radio, a cine-camera, clothing,
watches and various other
items from the house belonging to
the deceased. The trial court found the
appellant guilty of
robbery and it is implicit in this that these items
were
taken by the appellant after he had murdered the deceased.
There was
no direct evidence other than the appellant's
evidence as to why he killed
the deceased. He gave a number
-4-
of different versions as to why he had attacked the deceased
namely
(i) The deceased threw tea into his face.
(ii) The deceased attacked him with a broom stick and a
garden fork. (iii) The deceased refused to pay him money which she
had said she was going to pay him. (iv) The deceased caught him while he was
in the act of
stealing from the house.
The trial court rejected all of these versions and found the
appellant to be an out and out liar. The learned judge
commented
"So maak hy dit vir ons baie moeilik om vas te stel wat sy
geestesvermoëns of gemoed was ten tyde van die pleging van die misdaad.
Die
enigste persoon wat vir ons kan sê is die beskuldigde self. Al wat ons
het, is leuens en leuens en leuens."
This comment is justified on the evidence and indeed the
-5-
trial court made no finding as to the appellant's motive. It was submitted
for the State that the only reasonable inference from the
proved facts was that
the appellant's motive was purely and simply robbery. It is, however, difficult
to reconcile the extraordinary
savagery of the attack and the number of lethal
wounds with the notion that the appellant's motive was robbery. One or two
lethal
blows would have sufficed. There is the further factor that the appellant
and the deceased had got on well together during the preceding
two years. The
appellant had, furthermore, what is for practical purposes a clean record. (His
only previous conviction was for unlawful
possession of dagga in 1986 for which
he was sentenced to a fine of R30 or 15 days' imprisonment) In these
circumstances it seems
more probable than not that the reason for the attack was
that the appellant was beside himself with rage. Because of the contradictory
and patently untruthful nature of the
-6-
appellant's evidence it is not possible to determine the cause of his rage
but the factors I have referred to satisfy me that on a
balance of probabilities
robbery was not the motive for the killing.
There are undoubtedly aggravating factors. The deceased was 59 years old and
completely defenceless. This was a horrifyingly savage
attack. Murderous attacks
on elderly persons occur with distressing frequency and they are on the
increase. They are, furthermore,
offences which are
"... vir die gemeenskap inherent verderflik" and the interests of the
community accordingly carry more weight. S v Bezuidenhout 1991(1)
SACR 43 (A) at
51e.
For the appellant it was submitted that the following were mitigating
factors:
-7-
(a)
the relative youth of the
appellant;
(b)
his low educational
standard;
(c) the fact that he is a product "of deprived socio-economic background";
(d) that the form of intention the appellant had was dolus eventualis;
(e) the fact that the appellant is for all practical purposes a first
offender.
The appellant's relative youthfulness is
certainly a mitigating factor and is, furthermore, relevant when considering the
prospects
of reform. I am far less certain about (b) and (c). For reasons which
it is not appropriate to examine here, the vast majority of
the population of
this country have a low educational standard and come to a greater or lesser
extent from a "deprived background".
I doubt whether of themselves they
constitute mitigating
-8-
factors in the absence of any evidence as to their effect upon the particular
individual e.g. that they produced a blunting of moral
sensibilities or a
diminution of the ability to refrain from serious crime. It may be a matter of
degree. Factors which were described
as "... swak maatskaplike agtergrond ..."
were regarded as strongly mitigating factors in Bezuidenhout's case supra at
50i.
I do not accept that the form which the
appellant's intention took was dolus eventualis. The
judgment of the trial court is not clear on the point and I
agree with the statement in the judgment of this court in
the first appeal that
"Te oordeel aan die beserings wat hy die oorledene toegedien het, kan ek my
nie voorstel dat hy enigiets anders as haar dood gewil
het nie."
Had the intent of the appellant taken the form of dolus
eventualis that would not in the circumstances have
-9-
constituted a mitigating factor since it is inevitable that the appellant
foresaw the possibility of death to the victim as strong
if not overwhelming. Cf
S v Mabizela & Another 1991(2) SACR 129 (A) at 132d-e.
I have already referred to the relative youthfulness of the appellant and the
fact that he is to be regarded as a first offender.
These factors tend to show
that there is a reasonable prospect of reform. Taken together with the fact
that, in my view, the murder
was, on the probabilities, not committed in order
to facilitate the robbery these factors pursuade me that the death sentence is
not the only appropriate one. This is, however, a border-line case and the
interests of the community require that the appellant
should be kept in prison
for a very long time.
The appeal succeeds; the sentence of death is set
-10-
aside and a sentence of 25 years' imprisonment is
substituted therefor.
A J MILNE
Judge of Appeal
E M GROSSKOPF JA ]
] CONCUR
GOLDSTONE JA ]