Summary of Judgment

1. Introduction

The proceedings concerned the reconsideration by the Appellate Division of the sentence of death imposed on Jack Baardman following his conviction for murder. The State was the respondent.

Baardman had been indicted in the South East Cape Local Division on two counts of murder. He pleaded not guilty, was convicted on both counts, and—no extenuating circumstances having been found—was sentenced to death on each count. The trial judge refused leave to appeal, and a petition to the Chief Justice for leave to appeal was unsuccessful.

Following the enactment of the Criminal Law Amendment Act 107 of 1990, the death sentences were considered by a panel appointed under section 19 of that Act. The panel concluded that, in respect of count 1 (the murder of Johanna Joubert), the death sentence would probably have been imposed even if the substituted section 277 of the Criminal Procedure Act 51 of 1977 had applied at the time of sentencing; in respect of count 2, the panel concluded the opposite. The matter came before the Appellate Division under section 19(12)(a) for reconsideration of the death sentence on count 1 as if it were an appeal against sentence and as if the substituted section 277 had been in operation at the time.

The general subject matter of the dispute was whether, on the proved facts and under the new statutory framework for capital punishment, the death sentence for the murder of Johanna Joubert should be confirmed.

2. Material Facts

The events were situated on the farm Klipdrift in the district of Graaff-Reinet. Johanna Joubert (the deceased) was the wife of Christiaan Joubert, the farm owner, and she taught at a school on the farm. Baardman was employed as a farm labourer on the farm. Another labourer, Gert Nuveldt, and his “houvrou”, Lenie Williams, also featured in the factual matrix.

On the morning of 1 September 1988, the deceased was teaching at the schoolhouse and Christiaan Joubert left the farm to take wool to Port Elizabeth. He returned late at night to find the farmhouse quiet and dark. In a room outside the house (“the lobby”), he found a letter that aroused suspicion. After forcing entry into the house and discovering his wife was missing, he questioned labourers, including Nuveldt and Baardman, who claimed to know nothing of her whereabouts. Joubert noticed scratch marks on Baardman’s face and chest, which Baardman explained as resulting from falling into a sluice while irrigating.

On the morning of 2 September 1988, Joubert reported the disappearance to the police. Captain Dicker arrived, questioned Baardman about the scratches, and received shifting explanations (first a fall, then a pimple scratched). Baardman was arrested. During subsequent interrogation, he indicated he would point out where the deceased’s body was. Later that afternoon he led Captain Vermeulen to an aardvark hole some distance from the farmhouse where the deceased’s body was unearthed.

The court treated it as established that Baardman had intentionally killed the deceased. The trial court had rejected Baardman’s evidence as that of an “extremely unsatisfactory witness” who fabricated evidence as it suited him, and Baardman’s counsel accepted there was little basis to support acceptance of his version. The Appellate Division regarded the trial court’s finding of intentional killing as plainly correct and did not undertake a full evidentiary analysis, referring only to features bearing on sentence.

The post-mortem findings regarding the deceased included multiple abrasions to the front of the neck, bleeding into neck muscles and the thyroid gland, and bruising of the glottis and vocal cords. Dr Lang’s opinion was that death was caused by constricting force applied to the neck, consistent with throttling. Extensive bleeding in deep tissues over the scalp was also found, capable of being caused by a blow to the head or violent contact with the ground.

A further material fact, treated by the court as relevant to sentence, was that Lenie Williams had disappeared earlier (on 5 June 1988), and her disappearance remained unexplained until 7 September 1988, when Baardman led police to another aardvark hole where skeletal remains were unearthed. Dr Lang could not determine the cause of death anatomically, but found material and a hemp cord tied with double hitch knots in the form of ligatures around the upper cervical vertebrae. The Appellate Division treated the killing of the deceased as part of a pattern connected to the killing of Lenie.

A letter found by Joubert in the lobby was proved not to be in the deceased’s handwriting. It was proved to have been written by Baardman’s niece, Sophie Adams, at Baardman’s dictation approximately a week before 1 September 1988. The court treated this letter as significant because it supported the inference that the disappearance of the deceased was planned and that the letter was prepared in advance as part of a cover-up.

On motive, the trial court had stated that the evidence did not reveal Baardman’s motive for killing either victim. The Appellate Division considered a motive inferable from the facts, namely that Lenie’s killing and then the deceased’s killing were connected to Baardman’s attempt to secure his wife Patricia’s reinstatement in employment in the Joubert household after she had previously been dismissed for dishonesty and replaced by Lenie. The Appellate Division treated this inference as consistent with the proved facts and as excluding other reasonable inferences.

3. Legal Issues

The central legal question was whether the death sentence for the murder of Johanna Joubert should be confirmed when the case was reconsidered under the substituted section 277 regime, applied through section 19 of the Criminal Law Amendment Act 107 of 1990.

The dispute concerned the application of law to fact and involved a sentencing value judgment. The court had to evaluate aggravating and mitigating features on the proved facts and determine whether the case justified the ultimate penalty under the governing statutory framework as it was required to be assumed to have applied.

A related issue was whether there were mitigating factors (in the sense relevant to the appropriateness of the death sentence under the applicable approach), given the trial court’s earlier finding that there were no extenuating circumstances.

4. Court’s Reasoning

The Appellate Division noted that the principles governing the imposition of the death sentence under the substituted section 277 had already been considered in several reported decisions, and it did not repeat them. It proceeded on the basis that the first inquiry is into the presence of aggravating factors, and then into whether there are mitigating factors sufficient to avoid the death penalty.

On aggravation, the court regarded the case as plainly serious. It reasoned that the deceased’s injuries indicated a violent and brutal attack. The court rejected any suggestion of provocation, drawing attention to the finding that the killing had been planned at least a week earlier, when the forged letter was dictated and written for use after the deed. The deceased was described as a defenceless woman, and the murder was seen as connected to the earlier killing of Lenie Williams, reinforcing the conclusion that the deceased’s killing formed part of a wider pattern rather than an isolated incident.

Although the trial court had stated that the evidence did not reveal a motive, the Appellate Division considered motive highly relevant to sentence and accepted as a legitimate inference the State’s suggested scenario. It reasoned that the killing of Lenie could be connected to Baardman’s desire to have his wife, Patricia, regain her employment in the Joubert household, and that when this did not occur after some months, Baardman removed the deceased, who had dismissed Patricia. The letter was regarded as intended to explain the deceased’s disappearance and to convey that Lenie would not return. The court acknowledged that the trial court had characterised this scenario as speculation, but concluded that it could properly be inferred as the only reasonable inference on the proved facts, particularly given Baardman’s failure to disclose any motive and the absence of alternative plausible motives such as robbery or sexual assault. The letter was also treated as evidence of a cunning ruse designed to conceal the crime, even if Baardman failed to anticipate that handwriting analysis would expose the forgery.

In considering mitigation, the court addressed the factors advanced on Baardman’s behalf. It accepted the factual assertions that he was 27 years old, a first offender, and that there was no prior background of violence, but held that his conduct in this case demonstrated that he was a cold and calculating killer who ruthlessly removed obstacles to his objective. The submission that he was a family man and did not pose a danger to the community was rejected in substance by reference to the fact that he had killed two women by throttling within a period of roughly three months.

The court further considered the argument that Baardman cooperated with police and that this could demonstrate remorse. It did not accept that this amounted to sustained remorse, noting that at trial Baardman advanced a version implicating Joubert as his wife’s murderer, which the court treated as plainly false. The submission that he derived no benefit from the killings was accepted as a factual proposition, but the court viewed this as resulting from the failure of his scheme rather than as a mitigating circumstance.

On the totality of these considerations, the court concluded that there were no mitigating factors and that the matter was an extreme case that imperatively called for the ultimate penalty.

5. Outcome and Relief

The Appellate Division confirmed the sentence of death imposed for the murder of Johanna Joubert (count 1).

The judgment did not set out a separate order as to costs, and the relief granted was confined to confirmation of the death sentence in respect of count 1 under the section 19 reconsideration process.

Cases Cited

No specific reported cases were cited by name or citation in the judgment.

Legislation Cited

Criminal Law Amendment Act 107 of 1990.

Criminal Procedure Act 51 of 1977, section 277 (as substituted by section 4 of the Criminal Law Amendment Act 107 of 1990).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on reconsideration under section 19 of the Criminal Law Amendment Act 107 of 1990 and applying the substituted section 277 framework, the murder of Johanna Joubert involved manifest aggravating features, including brutality, planning, and concealment, and formed part of a pattern linked to a prior killing. The factors advanced in mitigation did not warrant a lesser sentence. The case was accordingly treated as an extreme one calling for the ultimate penalty, and the death sentence on count 1 was confirmed.

LEGAL PRINCIPLES

A reconsideration conducted under section 19 of the Criminal Law Amendment Act 107 of 1990 requires the appellate court to approach the matter as if it were considering an appeal against sentence and as if the substituted section 277 of the Criminal Procedure Act 51 of 1977 applied at the time sentence was imposed.

In assessing whether the death sentence is appropriate under that framework, the court proceeds by identifying aggravating features and then evaluating whether mitigating features exist and, if so, whether they suffice to avoid the imposition of the ultimate penalty.

In the sentencing enquiry for murder, motive is a material consideration in determining sentence even though proof of motive is not required for conviction; where a motive is not directly proved, it may be inferred from the proved facts if that inference is consistent with the facts and other reasonable inferences are excluded.

Claims of cooperation with the police and remorse are assessed in light of the accused’s conduct as a whole; subsequent conduct inconsistent with remorse, including the advancement of a false exculpatory version, may justify rejection of remorse as a mitigating factor.