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[1993] ZASCA 130
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S v Byleveld (314/91) [1993] ZASCA 130 (23 September 1993)
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Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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Case No 314/91
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MARTHINUS HERMANUS
BYLEVELD
Appellant
and
THE
STATE
Respondent
CORAM
: NESTADT,VIVIER, JJA
et NICHOLAS, AJA
HEARD
: 9 September 1993
DELIVERED
: 23 September 1993
JUDGMENT
2
NICHOLAS, AJA
At about 6 o'clock on the morning
of Saturday 22 April 1989 a station wagon left Sasolburg
en route
for Hendrina. The occupants were Henning Smit ("Henning");
Manning's brother Solomina Smit ("Solomina"); and
Gregory
Muldoon, who was married to Manning's cousin. From Hendrina they
drove on to Pullenshope, a township situated about 20
kms from the
town, in order to visit their uncle, Marthinus Smit ("Marthinus").
They arrived at his house at about 9
a.m. and found him there with
his nephew, Marthinus Byleveld ("Byleveld"). They were
sitting drinking whisky and the
visitors joined them. They continued
to drink throughout the day.
At about 6 p.m. the whole party
set off for Hendrina in order put in petrol for the return journey to
Sasolburg. Marthinus's 7 year
son went with them. From the filling
station they drove to the Hendrina hotel. Henning remained outside in
the car with Marthinus's
son. The others
3
went into the hotel, where they
stayed for 60-90 minutes, playing a game of snooker or pool. Each of
them drank 3 or 4 double tots
of whisky or brandy.
They left to go back to
Pullenshope. Just out of Hendrina they stopped next to two black
hitch-hikers and gave them a lift. After
travelling some distance
they stopped to let off the black men. Byleveld, Marthinus and
Solomina got out of the vehicle and demanded
money from the
hitch-hikers, who tried to run away. One of them made good his
escape, but the other got away only after Byleveld
had caught hold of
him by the back of his jacket and ripped it off him. About R50 was
found in a pocket, and with this they returned
to the hotel. They
spent the money on drinks over the next hour.
Leaving the hotel once more, they
took the Bethal road, in order to go to a farm where Marthinus, who
was driving, said that a sheep
could be bought. En
route
they
stopped at the roadside and picked up a black woman who was
hitch-hiking. Byleveld, who had been sitting next to Henning
4
on the rear seat, moved over to
the back compartment of the vehicle, and the woman took his place.
From behind her Byleveld started
to handle the woman's breasts and to
touch her in the area of her private parts. She protested ,
"Stop-stop, die baas pla
my." Marthinus did nothing at that
stage, but later, when his young son expressed a need to urinate, the
vehicle was brought
to a stop. The woman opened the door and got out
and tried to run away. She was unsuccessful. Byleveld and Solomina
each caught
hold of her by an arm and slapped her. Byleveld gave her
a blow and she fell to the ground. He removed her knickers and took
off
his trousers and had intercourse with her. He then thrust his
fist up her vagina. Marthinus gave him an empty "dumpy"
beer bottle which he pressed up her vagina. He followed this with
another beer bottle. He slapped her and jumped on her and kicked
her.
She was beside herself, shouting and screaming. Eventually she was
left lying by the roadside, groaning with pain.
5
The party returned to Hendrina
once more and drew up at the petrol pumps of "Hendrina
Implements". Byleveld washed his
arm and hand, which were
covered with blood. He got into an altercation with the petrol
attendant, one Lazarus Mahlangu, from whom
he tried to snatch his
money-bag, and he hit him on the mouth.
They set out again on the Bethal
road and arrived at the farm of Ruben Hirschowitz near the town.
Byleveld and Solomon went to the
sheep kraal, where Byleveld caught a
sheep and brought it back to the vehicle. They returned to
Pullenshope where the animal was
slaughtered.
At about 9 'clock on the following
morning (Sunday 23 April 1989), Sgt Daniel Mahlanga of the South
African Police found the dead
body of a woman lying in the grass
beside the tarred road between Hendrina and Bethal. It was later
identified as that of S.M..
Arising out of these incidents,
Byleveld was on 14 May 1991 arraigned as accused No. 1 on 5 counts in
the
6
Eastern and South Eastern Circuit
Court. They were:
The murder of B.M..
The rape of B.M..
Indecent assault on B.M. by
touching her breasts and private parts and pressing a beer bottle up
her vagina.
Theft of a sheep from Ruben
Hirschowitz.
Assault on Lazarus Mahlangu at
Hendrina Implemente.
As accused Nos 2 and 3
respectively, Marthinus Smit and Solomina Smit were charged on counts
1, 2 and 4. Before a court composed
of Curlewis J and two assessors
each of the three accused pleaded not guilty on all counts, but
during the course of the trial
Byleveld amended his plea on counts 4
and 5 to one of guilty.
The main witnesses for the State
were Henning Smit and Gregory Muldoon. The above chronicle of the
events of 22 April 1989 is largely
a conflation of their evidence.
The
7
defence admitted the contents of
the report of the
post
mortem
examination
conducted on the body of B.
M. by Dr Kruger. The important
findings and
observations appear from the
following extracts.
"dat die vernaamste
lykskouingsbevindings in verband met hierdie liggaam die volgende was
-Veelvuldige kneusings gesig, mond,
nek en (L) temporale area -
wydverspreide intraserebrale bloeding. 340 ml. Lion Lager bierbottel
deur vagina in die buik gedruk
met intra-abdominale bloeding. Erge
kneusings van vulva-fourchette en vaginawand. Bloed bevattende
vloeistof in bierbottel... dat
die oorsaak/oorsake van die dood die
volgende was - Intraserebrale bloeding. Erge beserings van onderbuik
en skok."
LYS WAARNEMINGS
4.
Uitwendige
voorkoms van liggaam en toestand
van ledemate: Veelvuldige
kneusings van
gesig, lippe, tandvleise, nek. Boonste en
onderste
ledemate en vulva wydverspreide
intensiewe kneusings van (L)
temporale area.
KOP EN NEK
Skedel: Geen frakture.
Skedelinhoud: Wydverspreide
intraserebrale bloeding ...
Oog-, neus- en oorholtes: Normaal
Mond, tong en farinks: Kneusings
van lippe en tandvleise.
9.
Nekstrukture:
Kneusings.
BORS
8
10 Borskas en diafragma: Normaal.
BUIK
16. Buikholte: Bloeding onderbuik.
340 ml Lion
Lager bierbottel met bloederige
vloeistof in
onderbuik gekry.
26. Geslagsorgane: Erg kneusing
van vulva
fourchette en
vagina met bloeding.
Daar is 'n gat deur die vagina gedruk tot
in die buikholte deur 'n bierbottel - met bloeding in die laer
buikholte. Daar is baie
bloed aan die bloes, 'skirt' en onderklere en
kouse. Laasgenoemde is erg geskeur. Geen broek aan nie."
Byleveld gave evidence in his own
defence, but neither Marthinus Smit nor Salomina Smit testified.
In his evidence Byleveld said that
he arrived at the house of his uncle Marthinus at Pullenshope on
Friday 21 April 1989. They rose
early on the Saturday and started
drinking. The Sasolburg party arrived at about 9 o'clock and they
drank brandy and beer together
throughout the day. In the evening
they went to Hendrina, took in petrol and had drinks (5 or 6 doubles)
at the hotel, where they
played "pool". He told of the
picking up of the two hitch-hikers
9
and robbing one of them of R50,
with which they returned to the hotel; of a proposal by him that they
should go and buy a sheep;
and of their departure for a farm which
Marthinus said he knew. He told how they picked up the woman. He said
that while she was
sitting in the rear seat and he was behind her in
the back compartment, he put his hand in her bosom in a search for
money. He
described how the woman was assaulted and he admitted that
he drove his fist into her vagina and then pushed a beerbottle up
her.
Asked what the woman did while this was going on, he replied,
"In daardie stadium was ek heel bedwelmd, hulle se sy net bale
geskreeu." The others told him how he had assaulted her. He said
that there were some parts he could remember, but he did
not
recollect how he had assaulted her. Because he had revived to some
extent as a result of the cold air and the rain, he could
remember
going back to Hendrina and having an argument with the pump
attendant. He remembered driving to the farm and passing the
place
where the woman was lying. He said, "op
10
daardie stadium [net ek] niks
daaraan gedink nie."
The trial court convicted Byleveld
on counts 1 and 2, on count 3 (in respect of the indecent assault
committed inside the vehicle)
and on counts 4 and 5. The learned
judge said that the trial court rejected the defence submission that
as a result of his consumption
of liquor the accused was incapable of
forming an intention to kill. While it accepted that he had consumed
a large quantity of
liquor, the evidence was that all the accused
were hard drinkers. The court rejected Byleveld's evidence that he
could not remember
how he had tortured and raped the victim. They
were unanimous that he well knew precisely what he was doing, and
they had - no
doubt that his intention was to kill her.
Mrs Karin Havenga, a consulting
psychologist, gave evidence in mitigation. To this I shall return.
The trial court made findings in
regard to mitigating and aggravating factors. Curlewis J said that,
taking into account everything
that could be said in favour
11
of the accused, the only sentence
that could be imposed was the death sentence. He said that he could
not remember that he had ever
encountered "'n meer veragtelike
en walglike handeling".
Byleveld was sentenced to death in
respect of count 1. He was sentenced on count 2 to imprisonment for 7
years, and on each of counts
3, 4 and 5 to imprisonment for 1 year.
Byleveld noted an appeal to this
court against his conviction and sentence on the murder count. In
arguing the appeal against the
conviction, however, his counsel
limited himself to an argument that Byleveld's form of intention was
not
dolus directus
as found by the trial court, but
dolus
eventualis
.
There is on the record some
uncertainty about the details of the final phase of the assault.
Henning Smit said in his evidence in
chief: "Hy het op haar maag
gespring. Hy het haar op die regterkant in die ribbes geslaan ...
geskop ... Dit is al plek waar
hy vir haar geskop het." He said
12
nothing about blows or kicks on
the victim's face or head. Muldoon said that he did not see Byleveld
abusing the woman: at the time
he was vomiting out of the window and
he heard the woman screaming and the next thing that he knew they
were on their way again.
On
post mortem
examination Dr Kruger
found the rib cage and diaphragm to be normal: he did not mention
bruising or abrasions in the area of the
chest or the abdomen. But he
did find multiple bruising of the face, lips, gums and neck, and
wide-spread intracerebral haemorrhage.
The explanation for the
discrepancy must be that Henning erred in regard to the places on the
woman's body at which the attack
was directed. In the circumstances
that would not be surprising. Henning was sitting in the car; and the
events took place at night;
and apparently there was some rain.
It is plain that the injuries
listed in items 5-9 of the report were the result of a violent attack
on the head and face region.
These were inflicted after the assault
on
13
the woman's genitalia. The facts
justify the inference that they were inflicted for no other purpose
than to terminate the life
of this ill-used woman.
In regard to the appeal against
sentence, it is now for this court to consider afresh, and
untrammeled by the findings of the trial
court, the question whether
the sentence of death was the only proper sentence.
The starting point is the accused
as a person -
What manner of man is he? Rumpff
CJ said in
S v Du Toit
1979(3) SA 846 (A) at 857-8:
"...wanneer [die beskuldigde]
as strafwaardige mens vir oorweging aan die beurt kom, moet die voile
soeklig op sy persoon as
geheel, met al sy fasette, gewerp word. Sy
ouderdom, sy geslag, sy agtergrond, sy geestestoestand toe hy die
misdaad gepleeg het,
sy motief, sy vatbaarheid vir beinvloeding en
alle relevante faktore moet ondersoek en geweeg word. En hy word nie
met primitiewe
wraaksug beskou nie, maar met menslikheid en dit is
hierdie menslikheid wat in elke geval, hoe erg ook al, vereis dat
versagtende
omstandighede ondersoek moet word."
Mrs Karin Havenga furnished two
psychological reports, being
exhibits B and M, which bear the
dates of 11 and 14 May 1991
14
respectively, and she also gave
oral evidence (The date on Exhibit M appears to be incorrect because
she refers in the report to
" in depth consultations with the
accused on 22 and 24 May 1991 at Pretoria Central Prison".)
In Exhibit B Mrs Havenga was able
to give only her
first impressions, gained from a
brief interview with
Byleveld, who did not keep an
appointment for a second
consultation. The following are
extracts from this report:
"Die beskuldigde was ±
½
uur laat vir sy konsultasie. Hy het my
met 'n aggressiewe houding ontvang. ... Die beskuldigde het verder
aggressief geraak toe
die erns van sy
saak
aan hom uitgewys is a.g.v. sy
'nonchalante',
traak-my-nie-agtige houding.
Die indruk wat hy skep, is een van
'n geweldige aggressiewe persoonlikheid. Hy toon geen emosies of
berou t.o.v. sy misdade nie.
He tree onverantwoordelik op en besef
blykbaar nie die erns van sy saak nie. ...
Die beskuldigde is volgens my
mening, wat beperk is tot 'n kort interaksie, 'n bale aggressiewe
persoon wat moeilik beheer het oor
sy aggressie, indien hy enige
beheer het, en wat nie verantwoordelikheid wil of kan dra vir sy
optredes nie. Hy is manipulerend
in sy gedrag en laat besluitname en
verantwoordelikheid aan ander oor. Sy houding lok dan ook verdere
aggressie uit by ander wat
hom dan
15
rede gee om uiting te
gee
aan sy aggressie. As
gevolg van sy alkohol
misbruik,
wat aanwesig blyk
te wees, vererger dit
dan
verder sy
lewensfunksionering."
She concluded Exhibit B by saying
-
"Ek sou aanbeveel dat die
beskuldigde volledig deur 'n psigiater en/of 'n geneesheer geevalueer
word, omdat ek self nie 'n
betroubare evaluering kon uitvoer nie."
In Exhibit M, however, Mrs Havenga
said that, although she had in Exhibit B recommended a psychiatric
examination, she felt that
with the additional information she had
obtained a fairly clear clinical picture of the accused could be
formulated. Apart from
her interviews with the accused she had
communicated by telephone with Mr Dreyer, the vice-headmaster of the
special school at
Witbank where the accused had been a pupil; had had
telephone conversations with his mother and his ex-wife; and had made
a psychometric
evaluation.
The accused was born on 12 October
1963 and thus was 27 years old at the date of his conviction. He
attended
16
two primary schools, which were
normal academic stream. He was placed in a special school in high
school because of his low intellectual
abilities. Mr Dreyer followed
up all the accused's school records, and gave her the following
information. The accused was a quiet
pupil with good manners, who
attended school regularly. He was a school prefect and leader of the
cadets. He also sang in the school's
operas. His actual level of
functioning was low, which is why he was placed in a special school,
where more individual attention
is given and the environment is
fairly structured. He left school in 1980 with a standard 8
sertificate (Special School).
He married in about 1983. His wife
left him in 1986 because of his alcohol abuse, and his physical abuse
of her and the children
when he had been drinking. His occupational
history is very erratic; he had been employed in about 14 positions
in the preceding
10 years, most of the changes being made in
consequence of alcohol abuse and
17
misconduct.
In the light of psychometric tests
Mrs Havenga
formed the opinion that his
intellectual level of functioning
was below average - on the border
of mental retardation.
The following information was
obtained from the South African
Wechsler-Bellevue Intelligence
Test for Adults, which, as
well as testing intelligence, is
also valuable for clinical
assessment:
"- The accused lacks greatly
in long-term memory which
may
explain some incoherence in his
testimony.
The accused has a low self-esteem,
both physically and emotionally.
The accused has fairly good social
skills in spite of his impaired intellectual functioning. He can
anticipate and manipulate social
situations quite well... The accused
has an
extremely poor
pattern of logical thought process and
his abilities concerning common sense are practically nonexistent.
The accused is very impulsive in
his thought processes and also in his actions. He acts without
thinking about the consequences."
Mrs Havenga concluded Exhibit M
with the
following -
18
"CONCLUSIONS AND
RECOMMENDATIONS
The accused does not appear to be
psychotic or emotionally extremely disturbed.
The accused has an intellectual
ability which borders on mental retardation. Due to his problems
surrounding adaptability, which
can be seen in his bad work record
and poor interpersonal relationships, the accused can be regarded as
functioning on a mentally
retarded level of a mild nature.
The accused appears to have a
alcohol abuse disorder (alcoholism), which further influences his
functioning in all facets of life.
The accused has a low
impulse-control and poor logical thought patterns, which become
basically non-existent with the intake of
alcohol. He then becomes
totally disinhibited in his behaviour.
The accused appears to have
sexually abnormal preferences (sexual disorder: moderate paraphilia)
which are not necessary to note
in detail, but which are similar in
nature to the incidents which took place on the evening of the
murder. This was told by his
ex-wife and confirmed by the accused.
It is difficult to comment on the
prognosis and rehabilitation of the accused. The possibility exists
but is hindered by his low
intellectual functioning.
The accused needs to be placed in
a structured environment because he does not have the ability to
structure his own life constructively
and positively.
The accused is easily influenced
and has been in trouble before because of this. It is
19
doubtful whether the accused would
have carried out the incidents in this case on his own initiative.
It is improbable that the accused
was aware of the consequences, implications and nature of his
actions at the time of commitment,
due to his low intellectual
functioning which was further impaired by alcohol abuse.
In general the accused functions
on a very low level and has limited insight into situations of any
nature."
Counsel for Byleveld submitted
that there were a
number of mitigating factors. I
deal with each of them in
turn.
Intoxication
. It is beyond
question that Byleveld had a massive intake of liquor during the day
and evening of 22 April. In the judgment on
sentence Curlewis J
accepted that this was so, but said that the court had already found
that this did not have the result that
the accused did not know what
he was doing, and what he had done and what would happen if he
treated the woman in the way he did.
Counsel for the State argued
that the evidence showed that despite the amount of liquor consumed
by the accused he retained a
20
high measure of motor
co-ordination. That may be so, but it is beside the point. The
question relates not to the effect of intoxication
on his physical
ability to act, but to its effect on his mind. It is clear in my view
that his appreciation of the consequences
and implications of his
conduct was severely blunted. This bizzarre conduct itself provides
an indication of how severely his mind
had been affected by alcohol,
and the fact that he so grossly misconducted himself in the presence
of his relatives, including
a small boy, suggests a total lack of
shame and an absence of any appreciation of the enormity of his acts.
Murder not planned
. It can
be accepted that Byleveld did not, when the deceased took her seat in
the station wagon, then conceive a plan to murder
her. It may well be
true that when he put his hand in her bosom he was searching for
money. The probability is that his thoughts
then took another
direction and he went on to handle her private parts. She managed to
get out of the car, but when
21
she tried to run away he threw her
to the ground and raped her and he then proceeded, possibly because
of his paraphilia, to maltreat
her genitalia in the way in which he
did. But if that was the scenario, I do not think that the fact that
the fatal assault was
not pre-planned was a mitigating factor:
rather, if there had been pre-planning that would have been a
strongly aggravating factor.
No previous convictions
.
The fact that Byleveld had a clean record is a factor to be taken
into account.
Influence by others
. In her
viva voce
evidence Mrs Havenga said that she believed that the
accused could be very easily influenced, and that she thought that he
was
influenced by his uncle (accused no. 2) and by the group
situation. In Exhibit M she said that it was doubtful whether the
accused
could have carried out the incidents in this case on his own
initiative. The evidence, however, is all the other way. Byleveld was
throughout the evening in the forefront of events and taking the
initiative, without
22
prompting from any of his
companions.
Remorse
. He expressed no
remorse at the trial. It is questionable whether he has the capacity
to feel remorse. In her evidence Mrs Havenga
said that Byleveld told
her that he was remorseful about what had happened. However, because
he is emotionally very labile, he
does not really show many feelings
and she could not really say whether he was remorseful or not.
Co-operation with police
.
This may be so, but it is not of great moment.
In regard to circumstances of
aggravation, the outstanding factor is the enormity of the crime
itself. A black woman, said to be
40 years old, alone on a country
road, is picked up at night and given a lift in a vehicle containing
5 white men. She is subjected
to an indecent assault, and when she
tries to escape, is thrown to the ground and raped, and then
subjected to humiliating treatment,
obscenely tortured and brutally
assaulted, and
23
finally left helpless and groaning
with pain on the roadside.
The question then is whether
taking into account the mitigating and aggravating factors, the death
sentence is the only proper sentence
for this accused for this crime.
Although given in the context of
the provisions of
the previous s. 277 of the
Criminal Procedure Act
, the
judgment of Holmes JA in
S v
Matthee
1971(3) SA 769 (A) at
771 A-E is still apposite -
"Once extenuating
circumstances have been found and a trial Judge has a statutory
discretion to impose 'any sentence other
than the death sentence',
factors ordinarily relevant for
consideration would include the following -
whether the very circumstances
found to be extenuating, e.g. intoxication or provocation, did not
in themselves contribute to
the brutality of the deed, so that the
element of heinousness should not be emphasised out of perspective;
whether, in the particular
circumstances of the case, the alternative of imprisonment, if
necessary for life, would not be regarded
by society as an adequate
deterrent to others;
whether the discipline and
training of a lengthy period of imprisonment might have reformative
effects, so that the accused's
continued existence would not be a
real danger
24
to society; and (d) whether the
evil of his deed is so shocking, so clamant for extreme retribution,
that society would demand his
destruction as the only expiation for
his wrongdoing.
These considerations are not to be
applied as rigid rules of thumb, but as aids in the exercise of a
judicial discretion in all
the circumstances of a particular case."
It is, I think, clear that in this
case the accused's state of intoxication did contribute to the
brutality of the deed, which was
probably the result of liquor
operating on the sorry creature which the accused is: deficient in
intellect to a level near mentally
retarded, with a seriously flawed
psyche, apparently emotionless, and highly aggressive when under the
influence of alcohol. But
although this does make this monstrous
crime explicable I do not think that its heinousness is reduced.
It seems to me that there is
little prospect that imprisonment would result in any change for the
better in the accused. He functions
on a mentally retarded level, and
his learning capacity is limited. He is and is likely to remain
25
a danger to society. Apparently he
is without emotion and suffers no remorse. He has low impulse control
and acts impulsively without
thinking about the consequences. He is
completely disinhibited after taking alcohol.
In my view this is pre-eminently a
case of the kind which Holmes JA described in para (d) of his
judgment. The evil of the accused's
deed is shocking in the extreme.
The mere telling of it produces revulsion and abhorrence. I have
little doubt that the view of
society would be that the death
sentence is imperatively called for.
The appeal is dismissed.
H C NICHOLAS, AJA
VIVIER,
JA concurs