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1994
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[1994] ZASCA 29
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S v Pietersen (487/92) [1994] ZASCA 29 (24 March 1994)
\CCC
CASE NO 487/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
CHRISTOPHER PIETERSEN
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, VAN DEN HEEVER et HOWIE JJA
DATE HEARD
: 8 MARCH 1994
DATE DELIVERED
: 24 MARCH 1994
NESTADT, JA
:
This is an appeal against the death sentence. It was imposed by
WILLIAMSON J sitting in the Cape Provincial Division consequent upon
the
appellant having
2
been found guilty of murder.
The crime took place on the evening of 11
August 1990 in the district of Kuilsriver. It was
preceded by a series of events which occurred earlier
that day and which it is necessary to briefly recount.
The appellant was in the company of two others. They
decided to embark on what may be described as an orgy of
violence. The appellant in his evidence explained their
state of mind thus:
"Ja mnr Pietersen u het getuig dat die drie van u die Saterdag toe
hierdie dinge gebeur het, feitlik the hele dag uit was om te beroof
soos u dit
gestel
het. --- Korrek.
Dit beteken soos ek dit verstaan dat al drie van u
wou daardie Saterdag rooftogte pleeg. --- Korrek.
En elke keer as daar 'n geleentheid was om 'n rooftog te pleeg, dan was
die drie van u van plan om iemand te beroof. --- Korrek."
Within the next few hours they carried out their
nefarious intent. They randomly committed a number of
3
robberies. But the appellant, who was armed with
a
panga, went further. He also killed two people.
One
was a woman who was raped before being stabbed
and
strangled. In each case the victims were
innocent
people whom the appellant's group came across in
the
area. Details of these crimes appear from the
judgment
a
quo
. This is because they formed the
subject-matter
of various other counts that the appellant (with the
two
others as co-accused) faced in the court below. In
the
case of the appellant, he was convicted of two counts
of
robbery (with aggravating circumstances), one
of
culpable homicide, one of rape, one of murder (of
the
woman who was raped) and one of assault with the
intent
to do grievous bodily harm. He was sentenced to a
total
period of 30 years imprisonment for these
crimes.
It was shortly after the last of the crimes
4
referred to that the murder with which this appeal is
concerned was committed. The trial judge succinctly
described what happened as follows:
"Na die vorige insident is die beskuldigdes dans toe. By die dans ontdek
beskuldigde 3 sy klere is bloedbevlek. Hulle besluit om na
beskuldigde 3 (the
appellant) se huis te gaan om ander klere aan te trek. Op pad kom hulle Solomon
tee. Beskuldigde 3 vra hom vir
geld en gryp hom om sy nek. Hy skud hom en kry
R2,50. Daarna besef hy dat Solomon die man is by wie hy Mandrax koop en dat
hulle
mekaar ken. Hy dink Solomon sal later wraak neem en hy besluit dat Solomon
doodgemaak moet word. Solomon word toe met die panga aangeval
en op 'n
afgryslike manier stukkend gekap. Hy is doelbewus deur beskuldigde 3
doodgemaak."
(Arising from the theft of the R2,50, the
appellant was
convicted on a further count of robbery. For this he
was sentenced to two years imprisonment. His total
period of imprisonment was thus 32 years.)
Our task is to determine whether, having due
regard to the presence or absence of any mitigating or
5
aggravating factors as also the purposes of punishment, the death
sentence is the only proper sentence. Plainly, what has been stated
proclaims a
number of seriously aggravating factors. The deceased (aged 35) was a
defenceless victim of a ruthless and calculated
decision by the appellant to
kill him. The appellant's motive was a base one. It arose from his realisation
that Solomon knew him.
The appellant feared that having robbed him "hy gaan my
weer kry...hy en sy...bende...of hy kan vir die polisie gaan sê". The
appellant, having urged his two co-accused to help him kill the deceased,
attacked him in a most brutal, vicious manner. The doctor
who performed the
postmortem examination summed up his findings by saying that there were "'n
enorme klomp steekwonde" and that the
cause of death was "veelvuldige beserings
waarby
6
prominent is die kopbeserings en die beserings aan
die
borskas". Obviously the appellant's intention was
one
of
dolus directus
. The trial judge's impression
was
that he was not remorseful of what he had done. And
finally there is the consideration that the appellant
had shortly before killed two others. So he would seem
to have had little regard for the sanctity of human
life. This must make the crime even more serious. In
all the circumstances there can (subject to what I say
later regarding the appellant's innate disposition) be
no quarrel with the view of WILLIAMSON J that:
"(J)ou misdade (was) gruwelik, uiters selfsugtig en bale wreed...jy is a
gevaarlike mens en jy het geen respek vir jou medemens. Die
doelbewuste en
koelbloedige manier waarop jy besluit het om Solomon te vermoor sodat hy nie
wraak vir die roof op hom teen jou kan
neem nie, laat 'n mens sidder".
I must say that these factors would normally
7
compel one to conclude that the death penalty had to be imposed. There
are, however, certain weighty mitigating factors that must
be taken account of.
The appellant is a first offender. Obviously this is an important consideration
in his favour. But of even greater
significance is the appellant's age. He was
at the time nineteen years and five months. He was therefore still a teenager.
The tendency
of our courts is not to impose the death sentence on persons of
this age (
S vs Dlamini
1991(2) SACR 655(A) at 666-8). They are
prima
facie
regarded as emotionally and intellectually immature (
S vs
Cotton
1992(1) SACR 531(A) at 536 c) . In
casu
, even though the
appellant (who reached standard five at school) worked as a fisherman, there is
no reason to think that he had a
maturity beyond his years. I say this
notwithstanding
8
the fact that he was, it seems, the leader of the
group.
Thirdly, it is clear that the appellant acted (to
some
extent impulsively) under the influence of alcohol
and
drugs. I do not propose to describe what was consumed
and when this took place. It suffices to say that at
regular intervals during the day the appellant drank
beer and wine and also smoked what he referred to as
"buttons". This is apparently a mixture of dagga and
mandrax. Of more importance is what effect these had on
him at the time of the murder of Solomon. The
appellant's testimony in this regard was the following:
"(H)et u nog ge-'float'" --- Ja...Wat het u bedoel
deur ' float' ? ---- Ek het dronk geraak in my
kop...So het u die hele tyd ge-'float' so. --- Soos
ek daar gestaan het ja het ek duiselig geraak in my
kop.
Sal u vir ons kan miskien verduidelik wat dit
beteken, wat is dit. Is dit soos 'n droom? --- Ja
so, hy gee jou 'n wrede gevoel ook."
He goes on to describe how he felt after killing the
9
deceased. He intended to return to his house.
Instead
"het (ek) in die bos ingehardloop en
daar...gebly...Daai
is die tyd wat - toe kan ek mos nou nie glo van
die
dinge nie, want - want ek was - wat ek weer by
my
vollende positiewe kom, en wat die goed nou uit
my
uittrek, toe kan ek nou nie glo van die dinge - toe
het
ek in die bos ingehardloop". The impression one
gains
from this is that the appellant may not be a
naturally
callous person and that his conduct on the evening
in
question was possibly out of character. It is true
that
the appellant concedes that the plan to rob was
made
before he began to drink; and that he realised that
his
actions thereafter were wrongful. Moreover
the
appellant was mindful of the need (as he saw things)
to
prevent the deceased from later identifying him;
and
that he asked his two co-accused to help him kill the
10
deceased. Even so, it is clear that by the time various crimes were
committed and in particular the murder of Solomon, the appellant's
senses were
materially blunted. This is the effect of his evidence. And the court a
quo
, with justification, found the appellant to be a particularly candid
witness. Finally there is the consideration that it can hardly
be said that the
appellant, by the time the murder of Solomon was committed, had had time to
reflect on his previous crimes.
The value judgment that has to be made, namely whether the death sentence
is imperatively called for, is in the circumstances of this
case not an easy
one. I do not underestimate the gravity of the appellant's crime; nor the
feelings of outrage that it would cause
society to have. Obviously the
retributive and
11
deterrent purposes of punishment must be satisfied. But looking at the
whole picture, including the cumulative effect of the mitigating
factors
referred to, I do not believe that the death sentence is the only proper
sentence. In my opinion a proper sentence is one
of 25 years imprisonment (to
run concurrently with the appellant's other sentences). I should add that there
is reason to think that
the appellant's consumption of drugs is due to an
addiction. Presumably the prison authorities will provide the appellant with
treatment
for this.
The appeal succeeds. The death sentence is set aside. There is
substituted (in respect of count 3, being the murder of Jan Johannes
Solomon) a
sentence of 25 years imprisonment. This sentence is to run concurrently with the
other sentences of imprisonment
12 imposed on the
appellant.
H H NESTADT, JA
HOWIE, JA – CONCURS
JUDGMENT VAN DEN HEEVER JA
2
Despite the comparative youth of appellant and his having had liquor
before he killed Jan Solomon, I do not, with respect, agree that
those were
mitigating factors in the circumstances of this case. That he had no previous
convictions also carries little weight.
True, he had not previously been
convicted in a court of law. A criminal record normally gives the court an
indication of the manner
of man it has to deal with. The mere listing of the
other counts on which appellant was convicted in the present case, does not
reveal
the awesome extent of the violence and brutality of which he is capable.
The incidents which preceded the slaying of Solomon ("the
deceased") and took
place over many hours gives similar insight into his personality and
propensities. The deceased did not die as
the result of a momentary impulse, the
squeezing of a trigger, but in deliberate, persistent, personal and bloody
attack. The photograph
of and post mortem report relating to the deceased, show
that his face was segmented by four deep
3
parallel blows. Two of them shattered bone after
cleaving
flesh. There were wounds of the same kind to
the torso and left arm
and - apart from a number of
lesser injuries - at least three penetrating wounds in
the abdomen through which the gut had been eviscerated.
Those
lesser wounds which appellant did not inflict
personally, he
insisted his companions do.
In
S v CEASER
1977 (2) SA 348
(A) at 353
B-F,
Miller JA had this to say of "inherente boosheid" or
inner vice:
"A finding that a person acted from inner vice in the commission of a
crime does not imply that he has manifested vicious or wicked
propensities
throughout his life; nor is a long history of wickedness necessary to such a
finding. Primarily, the question in any
given case (in the context under
discussion, i.e. with reference to youth as a mitigating factor) is whether the
crime in question
stemmed from the inner vice of the wrongdoer, whether he be a
first offender or one with many previous convictions. It is in order
to answer
that question that the Court will examine, and take into account as indicia, the
wrongdoer's motive, personality and mentality,
past history and whatever else is
relevant to the inquiry. And, of course, it will take into account the nature of
the crime and
the
4
manner of its commission ... The concept of inner vice as the genesis of a
grave crime committed by a youth throws into proper contrast
the case of a crime
(perhaps equally dastardly) committed by another youth who has, largely because
of his youth and its attendant
degree of inexperience, acted in response to
outer
influences; e.g. under the pressure and stress of intense emotions
induced by another
(I interpose, as Cotton
was found to have acted in the case referred to in the majority
judgment)
or under the direct or indirect influence of one older than himself, or
under circumstances which to him, because of his youth and
inexperience, were
provocative or emotive."
Appellant and his
two companions decided already during
the morning to embark on a day spent in robbery.
Appellant
took the lead in the events that followed.
There is no suggestion
that in doing what he did he was
acting in response to any pressure,
stress or intense
emotion. On the far-fetched assumption that he lacked
the imagination to envisage the damage he would cause
by
wielding the panga as vigorously as he did, by the time
the deceased was killed his lack of imagination had been
5
supplemented by experience.
Appellant's deeds belie his words in the
passage in appellant's evidence from which the inference
is drawn that he is not naturally a callous person.
There are
rare cases where the violence involved in
robbery amounts to no more than snatching away by force
the handbag of a woman whose hand has not the strength
to retain possession of it. Normally robbery is doubly
callous, of both the person and the pocket of the
victim. Appellant and his friends were on the prowl
and prepared to prey on whoever came their way from the
time that they came to their decision. He was already
armed, and the panga was an improved replacement for
what he had had earlier, not a sudden temptation.
It is against that background also that the
effect of the liquor he had consumed must be assessed.
In
S v NDHLOVU
(2)
1965 (4) SA 692
(A) at 695 C-F.
Holmes JA said:
"Intoxication is one of humanity's age-old frailties, which
may, depending on the
6
circumstances, reduce the moral blameworthiness of a crime, and may even
evoke a touch of compassion through the perceptive understanding
that man,
seeking solace or pleasure in liquor, may easily over-indulge and thereby do the
things which sober he would not do. On
the other hand intoxication may, again
depending on the circumstances, aggravate the aspect of blameworthiness. ... as,
for example,
when a man deliberately fortifies himself with liquor to enable him
insensitively to carry out a fell
design."
So too the learned author of
Hiemstra's
SUID-AFRIKAANSE
STRAFPROSES
(5th ed p 680-1) agrees that:
"(a)fstomping van die mens se oordeelsvermoeë, selfbeheersing en
verantwoordelikheidsin deur drank- of ander bedwelming is sedert
die dae van
Noag 'n bekende menslike swakheid ... Vanselfsprekend is dit 'n relevante faktor
waar die doodvonnis oorweeg word. ...
Ewe vanselfsprekend is dit nie drank- of
dwelminname as sodanig waaraan oorweging gegee word nie maar die uitwerking
daarvan op die
beskuldigde se vermoëns, hetsy normatief, kognitief of
affektief".
The decision to
indulge in violence had been
taken long before appellant's faculties were affected.
His evidence of events before the three met up with the
deceased does not suggest a befuddled mind. Having
7 slashed
at the woman who had been raped to silence her, he did not brandish the panga as
they proceeded to the dance hall, but hid
it under his clothing at his side. He
knew better than to take it into the hall with him, so hid it under a rubbish
bin at the gate
outside. As soon as he got into the hall and the light, he
noticed the blood on his trousers and shoes, and took a logical self-interested
decision: "... daar het ek toe ... gesê ons moet gou-gou huis toe gaan,
want ek wil my ander klere gaan aantrek, ek is vol
bloed". When they left the
hall for this purpose, he took the panga and again concealed it at his side. And
the robbery which led
to the death of the deceased was merely a continuation of
conduct which had been decided on earlier, albeit the liquor probably
exaggerated
appellant's innate callousness and capacity for violence beyond what
might otherwise have found expression.
A sentence of imprisonment (moreover one that, being less than the total
imposed in respect of the
8
other events of the evening and to run concurrently with that, amounts to
a declaratory order rather than a punishment) does not in
my view satisfy the
usual sentencing criteria in the circumstances of this case. I would dismiss the
appeal.
L VAN DEN HEEVER JA