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1994
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[1994] ZASCA 66
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S v Masiza (617/92) [1994] ZASCA 66 (19 May 1994)
Case No 617/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
DAVID
MASIZA Appellant
and
THE STATE Respondent
CORAM
: Van Heerden, Nienaber et Harms JAA
HEARD
: 2 MAY 1994
DELIVERED
: 19 MAY 1994
JUDGMENT
/NIENABER JA
2
NIENABER JA
:
The deceased was only eight months old when she died. The appellant, 20
years old at the time, was accompanying her parents and carrying
the child when
he slipped away from them in order, so he admitted, to have sexual intercourse
with her. Twice he tried to penetrate
her. Her vagina was torn open as far as
the rectum. Then he abandoned her in the open veld. This was at night, in the
winter, on
the highveld. Her body was discovered some two days later. The
appellant was captured by members of the African National Congress
and was about
to be taken before a so-called street committee when the investigating officer
rescued and arrested him. Eventually
he appeared before Cloete J, sitting with
assessors, in the Vereeniging Circuit Local Division, charged with one count of
rape and
one count of murder. On each count he was convicted and sentenced to
death. This is an appeal, in terms of section 316A of Act 51
of 1977, against
both the convictions and the sentences.
There is some dispute about events prior to the death
of
3 the deceased. According to her parents the
appellant had been
known to them for several years. On the evening or Saturday
6
July 1991 he was accompanying them en route to block E at
the
hostels at Sebokeng near Vanderbylpark where they lived.
The
deceased's mother was carrying the deceased's twin brother
and the
appellant was carrying the deceased. She had on a
dress and a
diaper. The appellant was walking a few paces
behind the parents. He
excused himself saying that he wanted
to urinate. He remained behind. They never saw their
daughter
again. The next morning they reported the matter to
the police. The deceased's body was discovered the following
Tuesday in a grassy patch some 10 paces from a footpath,
300
meters or so from the hostel where the deceased was last
seen
by them. She still had on her dress but her diaper was in
a
plastic bag next to her body.
The appellant's version is that he met the
deceased's
parents, with their two children, at a
stokvel at hostel 1,
Sebokeng, on the Saturday morning. A stokvel has been
described as an African syndicate or club of closed
membership
4 operating mainly on food and liquor sales at parties
held at
members' homes in rotation, with an entrance fee to
members
and their guests as low as 50c (cf Branford, A Dictionary
of
South African English). On this occasion, according to the
appellant, the entrance fee was R20,00. In return he was
entitled to drink as much as he wanted. He drank during the
entire day and by nightfall was thoroughly intoxicated, or so
he claimed. In his evidence-in-chief the appellant stated:
"Right, what happened that evening? -- I don't recall everything that
happened that particular evening. As I have already said, I
saw the two state
witnesses, that is Johannes and Julia at that stokvel. Their two children were
also there at the stokvel. At a
certain stage the deceased was with me and I saw
myself trying to put my private part into her private part, but I cannot tell
how
did she come to me, because that was the first thing that happened in my
life and thereafter I saw myself already at home. I don't
know how did I get
home, but I think I walked home and on my arrival at home at one stage I wanted
to urinate and at that time I
saw blood stains in the vicinity of my trouser's
fly. I then got frightened and I went to Bophelong to one of my relatives and I
started thinking what could have happened, but even at that stage I could not
recall what happened."
Under cross-examination his
memory deteriorated even
further and he eventually declined to respond to any
5
questioning about the episode. His professed loss of memory
cannot be reconciled with the various versions he had
tendered
before the trial commenced. On 12 July 1991, six days
after
the incident, he had made a statement to a magistrate,
the
admissibility of which was not contested. In it he
said:
"Op Saterdag 1991-07-06 was ek by Hostel 3, Sebokeng. Daar was 'n stokvel by
een kamer en ons het daar drank gedrink. Dit was ek,
die klaer en die klaer se
vrou. Ek het wel die verkragting gepleeg. Ek het die kind gevat en na die oop
veld langs die hospitaal
gevat en haar verkrag. Die kind is nog klein maar ek
kon nie die ouderdom skat nie. Ek het net die kind 'n bietjie verkrag - ek het
gemeenskap gehou met haar. Ek het die kind daar gelos. Ek het nie 'n lang tyd
met haar gevat nie. Ek het toe huis toe gegaan. Ek
het probeer om my geslagsdeel
in die kind se geslagsdeel te sit maar dit kon nie, ek het 'n tweede keer
probeer maar dit kon nie
ingaan nie. Ek het die kind toe gelos en huis toe
gegaan. Gister het die kind se pa saam met die Comrades gekom en gesê
hulle
gaan my brand. Die speurder kom en vat my weg van die Comrades
af."
On 15 July 1991 the appellant pleaded guilty to a
charge
of murder and, on being questioned by the
magistrate, stated:
V Wat het gebeur, daar by die hostel?
A Dit was ek en die oorledene se ouers. Ons was by
'n
"Stock Fell" gewees en ons het almal
gedrink. Die
"Stock Fell" was by Sebokeng Hostel.
Ek het met die kind, die oorledene, wat 'n
kleinkind
van my is, na buite toe
gegaan.
6
Ek het probeer gemeenskap hou met die kind, maar
ek
kon haar nie penetreer
nie.
Ek het twee keer probeer
om te penetreer maar kon
dit nie regkry nie.
Ek het toe die kind daar gelos en gaan
slaap.
Ek het later gehoor op
Donderdag die 11.7.1991
gehoor die kind is
oorlede.
Ek het baie bier
gedrink asook "Gin" Jenewer. Ek
kan nie alles onthou wat daar gebeur het
nie."
A plea of not guilty was thereupon
entered. At the trial
proper certain photographs taken of a pointing
out were
formally admitted by the defence. The state rid not lead
evidence about the pointing out but in his evidence-in-chief
the appellant said, apropos of a photograph taken a few yards
from the place where the deceased's body was discovered:
"In photo number 2 I was pointing out the place where the incident happened,
because I also told them it might be around there where
I am pointing.
What might be around there where you pointed out? --I said to the police, it
might be the place where I did this to the deceased.
Did what to the deceased? — Where I attempted to rape the
deceased."
In the light of these explanations the
differences in
detail as to what occurred at the hostel before the appellant
disappeared with the deceased, have little bearing on the
real
7 issues in the case.
The first such issue is whether the medical evidence supports a
conviction of murder rather than of culpable homicide.
The post
mortem examination was conducted by Dr A s Niemann on 11 July 1991. He also
testified. The main points made by him were the
following:
(a) He described the appearance of the body in
his
report in the following terms:
"Die anus en die vagina is groot oopgeskeur met fekale materiaal wat die
hele area
besoedel."
(b)
Although
the injuries suffered by the deceased were serious not a great deal of force
would have been required to inflict them, since
the tissues of a nine month old
child (which was the doctor's estimate of her age) are particularly
soft.
(c)
According to Dr
Niemann it was not possible for him to conclude whether the deceased died
immediately after these injuries were inflicted
on the deceased, or only after a
few
8 hours. That is the reason why he
found the cause of death to
be: "Moontlik verkragting". Under cross-examination he
elaborated as follows:
"Would the injuries as described have caused the death of the deceased? --
Well I can speculate on this, what I would think that after
these injuries the
child could have been unconscious for a period of time and this being in winter
time during July, which is a very
cold period of the year, and the child lying
in the open, everything together can be the cause of death. But that is merely
speculating
now, but it could have happened."
And
again:
"Alles in ag genome kan ek hierdie tipe afleiding maak dat die kind in die
winter in die veld gelê het na erge besering en dan
dat blootstelling
moontlik bygedra het tot die oorsaak van die dood."
The argument based on the evidence of Dr Niemann, if
1
understood it correctly, was this. Dr Niemann was
unable to
state exactly when the deceased died. She could have died
immediately as a result of the injuries described by Dr
Niemann. Accordingly it remains a reasonable possibility that
death was instantaneous when the appellant raped her. If that
is so the subsequent exposure of the deceased to the elements
became causally irrelevant. And since little force was
9
required to inflict these injuries it cannot be said that the
appellant must of necessity have appreciated, when he
raped
her, that this would cause her death. Consequently,
lacking
the requisite dolus, he should at worst for him have
been
convicted of culpable homicide.
There may have been some merit in this approach if
the
appellant had testified that he had noticed, after
violating
the deceased, that she was dead or dying and that he then
left
her body in the veld. But that was not his evidence. And
in
the absence of such testimony Dr Niemann's reluctance to
commit himself to the precise moment when the deceased died
cannot support the hypothesis that the appellant believed her
to be dead when he abandoned her in the veld. The sexual
assault and the abandonment of the deceased comprised one
uninterrupted course of conduct spurred on by a single state
of mind, namely, that the appellant was conscious of the
likelihood that she might die but remained indifferent to her
fate. She did die. He caused her death. In law he intended
it to happen.
10 But it was also argued on behalf of the appellant that
he
was so befuddled by drink as to have been incapable
of forming
the requisite intention to murder. Admittedly, according to
counsel, he did have the intention to rape - since the sexual
assault on the deceased could only have been deliberate - but
he lacked the intention to murder. That is why counsel
persevered with the appeal against the murder conviction but
not the rape. 1 am not clear how a man can simultaneously be
too drunk to murder but sober enough to rape. But it is not
necessary to pursue the point since it is plain on the facts,
as the court a quo found, that the appellant, judging from his
appearance, his actions and his subsequent accounts of what
had happened, was not behaving mindlessly, without realisation
of the enormity of his actions. The deceased's parents both
testified that the accused was walking and talking normally;
they entrusted the child to his care; he carried her under his
lumberjacket; he dodged them with the pretext that he wanted
to urinate; thereafter he carried her into the veld for 300
paces or so; he undressed her and placed her diaper in a
11
plastic bag; after raping her he made good his escape until the Comrades
caught up with him two days later. Afterwards, on different
occasions, he gave
substantially the same account, with enough detail to make it plain that his
professed amnesia under cross-examination
was a mere pretence. Given that he
acted impetuously, perhaps even irrationally, in the sense that if he had given
the matter any
thought he would have realised that his involvement would
inevitably be exposed, it was still not the behaviour of a man who was
unmindful
of what he was doing.
The appellant's conviction on the rape charge was not, and his conviction
on the murder charge cannot, be disputed. The appeal against
the appellant's
convictions is to be dismissed.
1 turn to the appeal against the sentences. The appellant was twice
sentenced to death. Leaving aside, for the moment, the constitutionality
of such
a sentence in the light of sections 9 and 11(2) of the Constitution of the
Republic of South Africa, Act 200 of 1993, as
amended, this
12 court
is enjoined to determine whether those sentences were
the only proper sentences in the circumstances. That was
the
considered view of the court a quo, mainly on the grounds
that
the aggravating features greatly outweigh the mitigating
features and that "this is the type of case where ...
retribution should come to the fore." The demands and hence
the interests of society must undoubtedly be taken into
account and may indeed be an overriding factor. In this
instance the conduct of the appellant was so depraved, so
perverse, that a lesser sentence than the death sentence might
well not appease the outrage felt by the community, in
particular that section of the community most directly touched
by the death of the deceased. His conduct, in a word, was
sub-human and one can readily appreciate why the court a quo
treated it as an extreme case meriting the extreme penalty.
Yet his behaviour must not be judged solely on
the
strength of its tragic consequences. And if it is
viewed in
context there are one or two factors rendering it marginally
less reprehensible. The appellant, to begin with, was a
13
youngster. He had also been drinking at the stokvel
since
early that morning. This is confirmed by the deceased's
father. He drank beer and what he later described as "hot stuff". Liquor can
arouse senses and inhibit sensibilities. It is for the state to discount it as a
mitigating factor, to show that it did not materially
affect the appellant's
behaviour. The appellant was most likely not thinking rationally when he
abducted the deceased. He had been
carrying the child in the presence of her
parents. He was known to them. If anything happened to the deceased, if it was
thought
that someone had interfered with her, he would immediately be suspected.
It might be that he mistakenly believed that he could have
intercourse with her
without it being detected but at the very least he must have realised that to
carry her into the night for more
than 300 paces would cause concern and
suspicion and require him to account for his absence with the child. And once
she was in fact
injured he probably panicked. He fled leaving the deceased to
her fate. It is doubtful if he consciously desired her to die.
That
14 would have served no purpose. She was too young to
implicate
him in any event. Her death was a sequel to the rape, the one
evolving from the other. If, therefore, the death
sentence
were to be the only proper sentence it should be imposed
for
the rape rather than the murder, even though, notionally at
any rate, murder ranks as a more serious crime than rape.
The case is on the borderline. But in the end one cannot ignore the
possibility that the liquor the appellant had consumed during
the day, combined
with his immaturity, impaired his faculties and loosened his grip on events. He
undoubtedly had the volition to
act. He knew what he was about. But he was less
in command of himself than he would have been if he had not been drinking. And
in
the final analysis one cannot confidently say that it did not contribute to
the enfolding of the events ending in the death of the
deceased.
The court a quo came to the opposite conclusion: while the state had not
discharged the onus of proving that the accused's conduct
was not influenced by
liquor, it did not, in
15 the court's view, play a significant role.
What decided the
matter for the court a quo was the appellant's reaction
the
next morning, after the effect of the liquor had
presumably
worn off and he noticed that there was blood on his
trousers.
Yet he made no effort to discover whether the deceased
was
still alive and whether he could render her assistance. This
consideration, in my opinion, is not conclusive.
It
demonstrates his state of mind the next morning, that he
was
solely concerned about himself and suffered no real remorse.
It does not show that the liquor had not affected his better
judgment the night before.
Viewed dispassionately it seems to me that one cannot discount the
features I have mentioned: his youthfulness, the liquor he had
consumed and, in
the context of the murder count, the possibility that he lost his head when he
realised that the child was injured
and that he would be held
accountable.
On that approach the death sentences were not the only proper sentences
to be imposed. In the result no
16
constitutional issue is involved and no obstacle exists which
prevents this court from disposing of the appeal.
What then should be the proper sentences? The
appellant
proved himself to be so depraved, so lacking
in remorse, that
he ought for ever to remain an outcast from
society. Anything
less than life imprisonment would in my opinion not be
adequate. But to impose life imprisonment for the rape and a
lesser sentence of imprisonment for the murder, to run
concurrently with the life imprisonment, would not reflect the
reality that in sequence and intent the rape and the murder
constituted a single continuing event. This appears to me to
be one of those exceptional cases where, because of its own
peculiar circumstances, it would not be inappropriate to take
several counts together and to impose a globular sentence.
This court has in the past commented unfavourably on that
practice when adopted by lower courts. Thus it was stated by
Trollip JA in S v Young
1977 (1) SA 602
(A) 610E-G:
"That procedure [i.e. taking different counts together for the purpose of
sentence] is neither sanctioned nor prohibited by the Criminal
Procedure Act, 56
of 1955.
17
Where multiple counts are closely connected or similar in point of time,
nature, seriousness, or otherwise, it is sometimes a useful,
practical way of
ensuring that the punishment imposed is not unnecessarily duplicated or its
cumulative effect is not too harsh on
the accused. But according to several
decisions by the Provincial Divisions (see, e.g., S. v. Nkosi,
1965 (2) S.A. 414
(C), where the authorities are collected) the practice is undesirable and should
ony be adopted by lower courts in exceptional circumstances.
The main reason for
frowning upon the practice mentioned in these cases is the difficulty it might
create on appeal or review, especially
if the conviction on some but not all of
the offences were set aside. As any sentence imposed by this Court is
definitive, that objection
to the practice is, of course, not
applicable."
(See also S v Mofokeng
1977 (2) SA 447
(0)
448H-449A; S v
Immelman
1978 (3) SA 726
(A) 728H; S v Tshomi en 'n
Ander 1983
(3) SA 662 (A) 665F-666H; S v Nkosi
1993 (1) SACR 709
(A)
7l7h-i; S v Keulder
1994 (1) SACR 91
(A) 101j-102b).
None of the problematic features mentioned in the
cases
relating to this procedure is of application in
this one, and
I accordingly propose to follow it.
The following order is made:
1. The appeal against the convictions on counts 1
and
2 is dismissed.
18
2. The appeal against the sentences imposed in
respect
of counts 1 and 2 is upheld.
3. The
death sentences imposed are set aside and the
following sentence is
substituted in their stead: A sentence
of life imprisonment in
respect of counts 1 and 2, taken
together for that purpose.
P M Nienaber JA
Van Heerden JA)
Concur
Harms JA)