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1991
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[1991] ZASCA 194
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S v Pietersen (190/91) [1991] ZASCA 194 (29 November 1991)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
CASE NO: 190/91 In the appeal of:
PIET PIETERSEN
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
CORBETT CJ, NICHOLAS et PREISS
AJJA
Date heard: 19 NOVEMBER 1991
Date delivered: 29 NOVEMBER 1991
JUDGMENT
The appellant, a farm labourer on a lonely cattle outpost in the district of
Uniondale, 1ived in a cottage on the farm with a woman,
Mietjie Smith, with whom
he had been associated for several years. During May 1990 he appeared before van
Heerden AJ and assessors
in the Cape Provincial Division (Eastern Circuit Local
Division). He was charged on five counts which included no less than three
counts of murder. The remaining counts consisted of a charge of assault with
intent to do grievous bodily harm, in which Mietjie
Smith was the complainant,
and a charge of theft which was bound up with the first charge of murder. For
the sake of clarity I propose
to refer to the three counts of murder as the
first, second and third murder respectively.
The appellant, who was represented by counsel, pleaded guilty to all the
charges save the one of assault with intent to do grievous
bodily harm, but
changed his plea to
2
one of guilty on that remaining count during the course of the trial. On
the two less serious counts he was in due course sentenced
to varying periods of
imprisonment. On each of the three counts of murder, no extenuating
circumstances having been found, he was
sentenced to death. Leave to appeal
against the death sentences was refused by the trial court but thereafter
granted by this Court.
The powers of this Court on appeal against a death sentence, as derived from
the Criminal Law Amendment Act 107 of 1990, have been
outlined in a number of
decisions of this Court, which it is unnecessary to discuss in detail. Briefly
speaking, this Court is enjoined,
after weighing up the aggravating and the
mitigating factors present in the proceedings, to consider whether the sentence
of death
is the only proper sentence. The power is to be exercised even though
the trial in the court
a quo
was completed before this Act was
promulgated. The first and second murders were committed by the appellant
3
several years ago. It was impossible to fix a more accurate date, nor was the
identity of either of the victims ever ascertained.
This uncertainty, however,
does not affect the validity of the convictions. In regard to the third murder,
the victim was a fellow-labourer
on the farm,Piet Windvogel, also an elderly
man.
The three murders bear a striking and chilling similarity. In the first and
second murders, the victim was an elderly stranger who
happened upon the outpost
and spent a little while in the presence of the appellant and Mietjie Smith.
Liquor was consumed in the
form of wine and a local concoction. In each case the
appellant unaccountably became aggressive, accused Mietjie of being a party
to
an attempt to have sex with each of the strangers and proceeded immediately to
bludgeon the unresisting victims with a pick handle,
and (although this portion
of the evidence is by no means clear) in the case of the first murder to stab
the victim with a knife
as well. In the case of the third
4
murder the appellant, during the course of a social encounter where wine and
brandy were consumed, suddenly accused the victim of
nodding at Mietjie and
without further ado attacked his victim and caused his death. There is some
dispute as to whether an axe or
a knife was used on this occasion. The third
murder took place during February 1989. Almost immediately after the assault
upon Piet
Windvogel the appellant stabbed Mietjie on the left side of her face.
I may mention that a medical examination of Mietjie revealed
numerous scars
which Mietjie said had been caused by stabbings, beatings and burning, inflicted
upon her by the appellant during
the course of their relationship.
At his trial the appellant said that in the case of both the
first and
second murders he had left the scene for a short
while and returned to find
the strangers having intercourse
with Mietjie. This defence was rejected by
the trial court
and rightly so. It is not only inherently improbable, but
it was roundly denied by Mietjie who was found to be a
5
credible witness. The trial court also found that a possible motive for
these two murders was theft. In the case of the first murder
the appellant took
the victim's bicycle and sold it. In the case of the second murder he
appropriated a pair of trousers and a jersey
belonging to the victim and
destroyed the rest of the victim's meagre possessions. What is undisputed is
that the appellant compelled
Mietjie to help him bury the victims on the farm.
It was only because of the chance discovery of one of the graves and Mietjie's
subsequent disclosures that the appellant was brought to book.
The fact of these senseless, brutal and relatively motiveless killings must
have prompted a suspicion that the appellant might not
be criminally responsible
for his acts. At some time before his trial he must have been referred for
investigation in terms of
s 79
(2) of the
Criminal Procedure Act 51 of 1977
. The
record of the trial is silent as to the circumstances in which this
investigation was
6
initiated. It will be recalled that the purpose of this investigation,
as appears from
s 78(i)
of this Act, was to ascertain whether the appellant
suffered from a mental illness or mental defect which made him incapable of
appreciating
the wrongfulness of his act or of acting in accordance with an
appreciation of the wrongfulness of his act. The report, signed by
two
psychiatrist, Dr Crafford and Dr Quail, was handed in at the commencement of the
trial by agreement between the prosecution and
the defence. In the result both
psychiatrists were agreed that the appellant was not certifiable, was fit to
stand trial and had
the capacity to appreciate the wrongfulness of his actions
at the time of the alleged offences.
The conclusions arrived at by the psychiatrists were in my view somewhat
qualified by a number of other findings which they recorded
in their certificate
in the following terms:
7
"While no delusions are present, he reports hearing voices which are
indistinct, audible in his head rather than his ears, intermittent,
and of some
years' duration. It is felt that these are pseudo hallucinations and are not
consistent with psychosis. Cognitive functions
(viz. orientation,
memory,judgement) are intact.
His intelligence is assessed as being in the range of Mild Mental Retardation
and this is confirmed on psychometric testing. Special
investigations are
consistent with the clinical findings.
79 (4)(b) 1. Clinical Diagnosis: NOT MENTALLY ILL
MIXED SUBSTANCE ABUSE MILD MENTAL RETARDATION"
The trial court, having rejected the appellant's story of
finding Mietjie
in the act of intercourse with the first and
second victims, duly found the
appellant guilty of murder on
each of the three counts. With that finding
there can be no
quarrel. Counsel for the appellant thereupon called
Dr
Crafford to give evidence in mitigation. The evidence went considerably
further than the certificate to which Dr Crafford had been
a party. This is
understandable since the evidence was based upon further interviews and
investigations. The evidence contains the
following significant passages:
8
"A summary of the facts obtained from interviews conducted today (that was
yesterday), and from the psychosocial is, i. that the accused
has,from his
adolescence,
been a jealous and suspicious person. ii In a series of
relationships with women, he has been physically violent towards them. iii
He
has been a week-end drinker for many years but holds his drink well. iv
Throughout the twelve years of his relationship with Mietjie
Smit, he has been
extremely and abnormally jealous of her having imagined liasons with other men.
Repeatedly and systematically over
this period, especially at week-ends, when
under the influence of alcohol, he has for trifling or no apparent reason
accused her
of infidelity and has then physically assaulted her, often until
blood flowed. "Having discussed the contents of this report with
Dr.Quail, per
telephone, my conclusions with which he concurs are, i. That the accused is a
week-end drinker
and has some stigmata of alcoholism ii That he has a severe personality
disorder with mixed paranoid and antisocial traits. His jealousy,
while not
delusional, is pathological. iii. A reasonable possibility exists that his
alcohol consumption over many years has aggravated
his paranoid personality
traits. iv The accused's low intelligence and paranoid personality it is felt,
may have limited to a degree,
hís ability to exert sound social judgment
in relation to the crimes he committed."
9
" There is a possibility on the basis of the CT scan that in this, in
the patient, there has been an accelerated neuronal loss in
the brain over a
period of many years of alcohol consumption."
" ... alcohol is known, as a recognised neurotoxin and it's possible that,
although there has not been clear collateral to the effect
that the person, that
the accused's personality traits over a period of time have been accentuated by
alcohol consumption. In other
words by organic factors. Court: You put it no
higher than the
possibility? Not higher than a
possibility."
"The accused's personality i s definitely pathological. His suspiciousness is
pathological, his jealousy is pathological. And the
short term effects of
alcohol?
The short term effects of alcohol
would disinhibit the accused
towards aggressive acts, to a degree. And combined with his personality traits
and his low intelligence,
what
would the normal reaction be? Well
I
don't think the accused's reactions were at all normal"
10
"As I can understand the motivations for this crime, I can only
understand them in terms of his suspiciousness and his jealousy."
"In general, what would the effect be of alcohol on a person with low
intelligence and pathological
personality traits? I think that
somebody with low intelligence has fear
options in situations where threatened to express his feelings verbally and
would be more
likely to express, generally speaking, his feelings in a
physically aggressive manner rather than verbally. As to the ... (intervention).
And under the influence alcohol, the disinhibitory effects of alcohol, to a
greater degree."
" ... it's very clear to me that the accused had a suspicious and very
jealous - jealousy and suspiciousness were very much parts
of his personality.
And certainly his own account to me, and to other psychiatrists at Valkenberg
Hospital, was that the motivation
for his crimes were that in fact his wife,
that he was in fact much older than his wife, that he was, she was much younger
than he
was, that in fact this had something to do with him being, the nature of
the relationship was that he was jealous of
11
her."
"Dr Crafford, these facts that have been put to you by the Court, would they
make any difference to your findings of the pathological
personality traits
of the accused?
No I don't think so, I think that the accused has a severe
personality disorder."
" Certainly his assaultive behaviour of his wife over years, his accusations
of infidelity towards his common-law wife, are certainly
abnormal and very
pathological and are very maladaptive personality traits.
These traits are
extremely fixed and they have certainly, have been very damaging to, not only to
himself, but to the women he's been
involved with in his relationship, in day to
day living."
If the suspicion is in his mind rather than, the slightest circumstantial
event, for example if his wife was half an hour late from
the shop, if that
triggers off accusations and an assault on her, at other times she said to me
that in fact there was no circumstantial
event that triggered off his
accusations of infidelity, that's not a rational thing. It is not
12
a rational thing."
"The more unfounded the suspicions, the greater my conviction that he does in
fact have a personality disorder, that in fact his belief,
his suspiciousness is
rooted in his personality rather than events."
The above passages range over a wide field but they are in my view
reconcilable. It seems to me that they indicate a condition of
mind on the part
of the appellant which leads him to exhibit unreasonable and unfounded jealousy
towards women and, in this case
towards Mietjie, especially when she was in the
presence of another man and even in the most innocent of circumstances. It is
unnecessary
in my view to consider whether the excessive jealousy which the
appellant displayed on each of the three occasions is pathological
in origin or
whether it stems from some other cause. It suffices to say that his reactions
were so excessive and so unfounded, resulting
in a virtual butchering of
three
13
elderly unresisting victims, that there is good ground for treating him
as a person whose judgment and control were deficient.
The court
a quo
was unimpressed by this evidence. Having rejected the
version of actual intercourse put up by the appellant, the court came to the
conclusion that extenuating circumstances did not exist.
In my view, the approach adopted by the court
a quo
is open to
challenge. The rejection of the appellant's account does not, in my view,
require that the fact of his disturbed judgment
be ignored. It is significant
that immediately before he launched his attack upon each of the victims, he
accused Mietjie of sexual
impropriety with them. Given his low intellect, he
could hardly have been preparing an excuse for his unlawful conduct in advance.
These accusations provide proof of his unreasoned and unreasonable fits of
jealousy.
14
It is now appropriate to weigh up the aggravating factors and the
mitigating factors. As to the former, it goes without saying that
the appellant
committed no less than three brutal and unprovoked killings. His victims were
all elderly, innocent and defenceless
men. He helped himself to some of their
possessions and dumped the victims unceremoniously into graves which he dug on
the farm.
The killings were executed with cold and terrible efficiency. He
showed no remorse and even tried to mislead the police in their
investigations.
The fact that he committed so serious a crime on no less than three occasions is
in itself an aggravation. He is
a man given to violence. His appalling treatment
of Mietjie is one example, as is his record of previous convictions which
contains
a list of four offences, serious in nature, of which violence towards
others is a hallmark. He is an undoubted danger to the community
and there is
clearly no prospect of his rehabilitation. He is already in his early
fifties.
15
Against these features is the single factor of his excessive jealousy.
In my view, however, it is the most important feature in this
case. Exacerbated
as it was by the consumption of alcohol, it is probable that his jealousy
erupted in a frenzy of passion which
reduced in him the ability to control his
conduct. The very nature of some of the aggravating features which I have listed
above,
more especially the brutality of the killing, the similarity in their
pattern, his treatment of Mietjie, the lack of provocation
and (possibly) his
past record of violent conduct, indicate a man of low intellect who became
bereft of control. This solitary feature
is in my view so marked and so
significant that it should ordinarily suffice to avoid the imposition of the
death penalty.
It has been argued that a sentence of imprisonment is inappropriate because
the appellant might well constitute a danger to other
prisoners. This
possibility was tentatively
16
advanced by Dr. Crafford and then virtually abandoned. It does not
appear from the record that any violent incident has occurred during
his
incarceration to date. Dr Crafford is in any event hardly able to testify about
conditions in a goal. This is a matter about
which it is unsafe to speculate. No
doubt the prison authorities will have special regard to his psychological
condition and will
take such preventive steps as may be required.
I am of the view that this case merits lifelong imprisonment, the more so
because there is no prospect that he will emerge from prison
as a reformed and
rehabilitated man. There are, of course, the other purposes of punishment,
namely deterrence, prevention and retribution.
There is a compelling need to
deter others from committing offences of this nature. Society will not
countenance such brutal and
unprovoked conduct. For the same reasons the
retributive effect of sentence requires recognition in the present case, as an
imperative
consideration. (S v MDAU
17
1991 (1)SA 169 (A), at p. 177 B-C). This is the type of situation where the
circumstances call for punishment which is so severe that
a lesser period of
imprisonment will not suffice.
In the result the appeal against the sentences of death on Counts 1,3 and 5
succeeds. The death sentences are set aside and there
is substituted in each
case a sentence of imprisonment for life.
H.J. PREISS ACTING JUDGE OF APPEAL
CORBETT CJ )
CONCUR NICHOLAS AJA)