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[1993] ZASCA 174
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S v Dlamini (20/93) [1993] ZASCA 174 (22 November 1993)
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Certain personal/private details of parties or witnesses have
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Case No: 20/93 N v H
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THABISO LOVEMORE DLAMINI
Appellant
and
THE STATE
Respondent
Case No: 20/93
N v H
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THABISO LOVEMORE
DLAMINI
Appellant
and
THE STATE
Respondent
CORAM:
SMALBERGER,
NIENABER, JJA,
et
VAN COLLER, AJA
HEARD
:
15
NOVEMBER 1993
DELIVERED
: 22 NOVEMBER
1993
JUDGMENT
SMALBERGER, JA:-
The appellant was convicted in the
Natal Provincial Division by HUGO, J, and assessors of the rape and
murder of a seventeen-year
old girl, C.L.H. ("the deceased").
He was sentenced to eight
2
years' imprisonment on the rape
count. On the murder count he was sentenced to death. The present
appeal is directed solely against
the latter sentence.
The deceased lived with her
parents at Lynnfield Park in the district of Pietermaritzburg. On the
morning of 29 December 1991 she
went, as she was accustomed to do,
for a walk in a wooded and relatively isolated area close to her
home. Approximately two hours
later her body was discovered in some
bushes adjoining a road. She had been raped and brutally murdered.
There were signs that
she had been dragged some distance to the spot
where she was found. A later post-mortem examination revealed that,
apart from a
number of scratches, bruises and contusions, she had six
penetrating stab wounds of her neck, throat and chest. Three of these
(taken individually) were potentially fatal. Her cause of death was
recorded as "a penetrating incised wound [of the] throat".
3
There were, not suprisingly, no
eye-witnesses to the events preceding the deceased's death. The
appellant's conviction was based
upon certain admissions made by him
(including an admission that he had had intercourse with the
deceased), a statement made to
a police officer on 15 January 1992
(which was ruled admissible against him) and certain forensic
findings which linked him to
the attack on the deceased. The
appellant did not testify at the trial.
The trial court held, on the
evidence, that the appellant raped and thereafter fatally stabbed the
deceased with direct intent to
kill. This finding was not attacked on
appeal. In his statement to the police the appellant sought to
implicate one Bongani as
a party to the rape and murder of the
deceased. Despite the absence of any other evidence to this effect,
the trial court felt
itself unable to reject the notion that a second
person may have been involved. The
4
presence of such a person would
not, however, detract from the appellant's undoubted guilt, nor would
it serve to lessen his moral
culpability. No suggestion to the
contrary was made on appeal.
It is required of this Court to
determine whether, upon a proper consideration of all relevant
mutigating and aggravating factors,
the death sentence
in casu
is the only appropriate sentence.
The appellant comes from a low
socio-economic background. He was twenty years old when the offences
were committed. Much was made
in argument of his youth and alleged
corresponding immaturity. Intellectual and emotional immaturity is
not uncommon in youth -
a teenager is
prima facie
regarded as
being immature. It is immaturity, rather than youth
per se
,
that constitutes a mitigating factor. Despite his age the appellant
was by no means a callow, unsophisticated youth. He was a
person
seasoned in
5
crime. He had five previous
convictions (three for housebreaking and theft) and had already
served a sentence of three years' imprisonment.
He was in employment
at the time. He was someone with experience of life and its
vicissitudes. There is no question of his being
influenced by an
older person. Nothing in his actions or emotions at the time of, or
subsequent to, the offences speaks of youthful
immaturity on his
part. If anything, the contrary is true. To the extent, however, that
it might be said that he was somewhat immature,
it would not amount
to a significant mitigating factor in the present instance. At the
same time it must be acknowledged that his
age is relevant to the
propriety of the death sentence (
S v Dlamini
1992(1) SA 18 (A)
at 31 H).
It can be accepted in the
appellant's favour that the offences were probably not pre-planned
and that his initial intention may
have been only to rape the
6
deceased. That, however, does not
detract from the fact that, as far as the murder was concerned, he
had sufficient time to reflect
on what he was about. The murder can
only be seen as a cold-blooded, calculated act.
The appellant's prospects of
rehabilitation are remote. It is arguable, on a narrow view, that as
he has no previous convictions
involving physical violence, he is not
incapable of rehabilitation as far as any violent tendencies he may
have are concerned.
One must, however, look at the overall picture.
He already has an impressive list of previous convictions for one so
young. The
horrific nature of the offence, his callous indifference
to what he did, as evidenced by his conduct, and his total absence of
remorse do not make him a serious candidate for reformation.
The aggravating factors present
are weighty and largely self-evident. Paramount amongst these are
7
the nature of the crime committed
and the circumstances of the offence. The deceased was a young girl
on the threshhold of life.
She posed no threat to the appellant. She
had a perfect right to be out and about doing what she was without
fear of losing her
life. Her killing was a pitiless, senseless and
brutal act accompanied by a significant degree of violence. The
appellant had the
direct intent to kill the deceased. His probable
motive for killing her was a base one - to prevent her from later
identifying
him as her assailant. The appellant's previous
convictions, to which I have referred, and apparent total lack of
genuine remorse
for his conduct are also aggravating factors.
While the aggravating factors
totally overshadow any possible mitigating factors, it does not
necessarily follow that the death
sentence should be imposed. The
question remains whether on the facts of the present matter the death
sentence is the only
8
appropriate sentence. Any sentence
imposed must necessarily reflect society's undoubted and
understandable abhorrence of the crime
committed by the appellant.
While due and proper regard must be had to
the appellant's personal
circumstances and the objects of punishment, in matters such as the
present the interests of the community
at large and considerations of
deterrence and retribution must needs come to the fore. On an overall
conspectus of all relevant
considerations I am of the view that the
death sentence is the only appropriate one for the murder of the
deceased. (Cf
S v Sekgola
unreported judgment of this Court
delivered on 28 September 1993.) The appeal is dismissed.
J W SMALBERGER JUDGE OF APPEAL
NIENABER, JA )
VAN COLLER, JA ) CONCUR