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1993
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[1993] ZASCA 92
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S v Mchunu (358/92) [1993] ZASCA 92 (2 June 1993)
CASE NO. 358/92
J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MADODA ALFRED
MCHUNU
Appellant
and
THE STATE
Respondent
CORAM
: BOTHA, JA et NICHOLAS, VAN COLLER,
AJJA
DATE HEARD
: 10 MAY 1993
DATE DELIVERED
: 2 JUNE
1993
J U D G M E N T
VAN COLLER, AJA:
The appellant was convicted in the Durban and Coast Local Division of murder
(count 1) and
2
of housebreaking with intent to commit robbery and robbery (count 2) .
On 8 June 1992 the trial judge, Broome J, sentenced the appellant
to death on
the murder charge. On count 2 he was sentenced to 15 years' imprisonment. The
appellant's co-accused, his girlfriend,
was also convicted on counts 1 and 2 .
She was sentenced to 20 years' imprisonment on the murder charge and to 10
years' imprisonment
on count 2. The sentences were ordered to run concurrently.
The appellant's appeal is only against the death sentence.
The events which gave rise to the charges as revealed by the evidence are the
following. The deceased was a 56 year old widow, who
lived alone in her house in
Pinetown after her husband's death in November 1991. She was a frail woman,
weighing approximately 39
kilograms. At about midnight on the night of 27-28
March 1992 the appellant and his co-accused left the latter's room and walked
to
the deceased's house, a
3
distance of approximately 10 kilometers. The appellant, who knew that the
deceased was living alone, was armed with an Okapi knife.
At the deceased' s
home the appellant climbed onto the roof and removed a few tiles. Gaining access
in this manner he broke through
the ceiling and got into the living room. The
appellant said in his evidence that he went through the roof in order not to
alert
the deceased. The appellant's co-accused stood guard outside the house.
The appellant encountered the deceased in the passage and
immediately proceeded
to stab her. She fell and died in the passage. The appellant's co-accused then
entered the house and they gathered
and removed the items detailed in the
indictment. They loaded the stolen items into the car of the deceased and the
appellant reversed
out of the garage. It appears that the appellant experienced
difficulty in reversing the car which went off the driveway. The appellant
and
his
4
co-accused then left the car and took what they could carry and walked
away. The trial court found that the appellant selected the
house, that he
intended to eliminate the one and only occupant and that he immediately made
short work of the deceased the moment
they encountered each other in the
passage. Therefore, according to the trial court, it was the clearest possible
case of
dolus directus
.
Professor Botha, a forensic pathologist who
conducted the post mortem examination, said in his evidence that the deceased
died as
a result of multiple penetrating stab wounds. About 39 stab wounds had
been inflicted of which 12 could probably be categorised as
defensive injuries,
these being on the hands, wrists and the arms.
There was uncertainty at the trial with regard to the appellant's age. The
evidence of the appellant's mother that she thought that
he was born in
5
1971 was described by Broome J as quite unreliable. A radiologist put
his age at 19 to 22 years. The trial court, also taking into
account the
appellant's appearance and the fact that he was the father of two children, was
satisfied on all the evidence that he
was at least 21 years old at the time of
the trial. The appellant has no relevant previous convictions.
There are few
mitigating factors in this case. The fact that the appellant was only 21 years
old at the time when the murder was committed
and that he has no previous
convictions can be taken into account in his favour. The aggravating factors,
however, far outweigh the
mitigating factors. A frail elderly woman was attacked
in the middle of the night in her own house. Entry was obtained through the
roof
and once the intruder was in the house there was no possibility of escape for
her. She suffered a savage and brutal attack in
which no less than 39 stab
wounds were
6
inflicted on her. The appellant was not known to the deceased and there was
no reason to kill her in order to deprive her of her possessions.
The appellant
could easily have overpowered the deceased without killing her. I agree with the
finding of the trial court that this
was a premeditated killing. The appellant
admitted in his evidence that he took the knife along in order to injure the
deceased and
that this was agreed upon with his co-accused even before they went
to the house. Although the appellant was unemployed he received
financial
assistance from his mother and brothers. He admitted under cross-examination
that he went to the house of the deceased
because "I like good things . . . and
like money . . .". The crimes were therefore not committed because the appellant
was destitute,
but out of greed.
It remains to consider, with regard also to the main objects of punishment,
whether or not the death
7
sentence is the only proper sentence. In view of the appellant's youth one
considers the death sentence with reluctance. The calculated
and determined way
in which the crimes were committed, however, rules out any argument for
immaturity in his case. Although the possibility
of rehabilitation cannot be
excluded this is another of the increasingly frequent fatal attacks on the
elderly within their own homes.
In these circumstances the deterrent and
retributive aspects of punishment play a decisive role and the interests of
society come
strongly to the fore. See
State v Tloome
1992(3) SA 568 (A)
at 577H-I and
S v Sesinq
1991(2) SACR 361 (A) at 365g. Mr Markram, who
appeared on behalf of the appellant, submitted that in view of the suspension of
the
execution of the death sentence by the executive authority, it can no longer
be in the public interest to impose that sentence. According
to this argument
the death sentence has lost
8
its deterrent and retributive effect and can therefore not be regarded as the
only proper sentence to impose. This Court had occasion
to deal with an argument
in similar vein in the unreported judgment in the case of
Dennis Williams v
The State
, case no 311/92 dated 24 May 1993. I concurred in the judgment of
Eksteen JA who said the following at pages 10-14:
"Mr Daubermann limited his argument before us to the appeal against the
sentence. His main argument was that owing to a so-called
'moratorium' which the
executive authority seems at present to be applying to the execution of death
sentences imposed by the courts,
that sentence has lost all its deterrent and
retributive effect, and that consequently courts of law should no longer impose
such
sentences as they served no good purpose.
However cogent this argument may be from a political platform or in an
academic debate, it is not one which can be entertained by
this Court. In the
first place this 'moratorium' is not contained in any law or proclamation, and
so its
9
nature and ambit - whether it contains any provision for exceptional
circumstances, or how long it is to be applied - cannot be ascertained.
In any
event, and even if we were to assume that some general 'moratorium' existed as a
matter of government policy in respect of
all death sentences imposed by the
courts, it could still not serve to deter this Court from carrying out its duty
in terms of the
law. Sec 277(2) of the Act [Act 51 of 1977] provides that:
'(2) The sentence of death shall be imposed -
(a)
(b) if the presiding judge ... is satisfied that the sentence of death is the
proper sentence.'
In
S v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 745 F this Court,
in considering the abovementioned section, held that
'the imposition of the death sentence will be confined to exceptionally
serious cases; where ... 'it is imperatively called for'.'
Where the presiding judge, after considering all the mitigating and
aggravating factors, is satisfied that it is so imperatively called
for, then he
is enjoined to give effect to the law and impose the death sentence. (
S v
Nkambule
1993 (1)
10
SACR 136 (A) at 146 f.)
That this whole argument was one very much
ad hoc
became apparent by
Mr Daubermann's ready concession that should the 'moratorium' be terminated
forthwith, his whole argument would
fall away. Nothing more need therefore be
said on this score."
I have not been persuaded that those views are wrong.
Having considered
all the circumstances I am of the view that this is an extreme case where the
death penalty is imperatively called
for.
The appeal is dismissed.
A P VAN COLLER
ACTING JUDGE OF APPEAL
BOTHA, JA )
) CONCUR NICHOLAS, AJA )