Brief Summary

Criminal Law — Murder — Sentencing — Appellant convicted of twelve counts of murder, one count of rape, and three counts of robbery; sentenced to death on murder counts with no extenuating circumstances found. Appellant appealed against the absence of extenuating circumstances and the death sentences. The Criminal Law Amendment Act 107 of 1990 introduced discretion in sentencing for murder. Court held that the presence or absence of mitigating factors must be considered in determining appropriate sentences; the appellant's psychopathy was not deemed an extenuating circumstance.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned a sentencing appeal in the Supreme Court of South Africa (Appellate Division) arising from multiple convictions for serious violent offences, most notably twelve counts of murder. The proceedings before the Appellate Division were confined to the question whether the death sentences imposed on the murder counts should stand, with particular reference to the presence or absence of extenuating or mitigating circumstances.

The appellant was Phillip Mluleki Ndayave, and the respondent was the State. The appellant had been tried and convicted in the Queenstown Circuit Local Division before Jones J and two assessors.

Procedurally, the trial court convicted the appellant on twelve murder counts, one rape count, and three counts of robbery with aggravating circumstances. The trial court found no extenuating circumstances in relation to any of the murders and, under the law then applicable, imposed death sentences on each of the twelve murder convictions. The appellant sought leave to appeal against the finding of no extenuating circumstances and the consequent death sentences. Leave to appeal was refused by the trial judge but later granted on petition to the Chief Justice.

By the time the appeal was heard, the Criminal Law Amendment Act 107 of 1990 had come into operation. The Appellate Division approached the matter on the basis that it now had a discretion to determine, with due regard to the presence or absence of mitigating and aggravating factors, whether the death penalty was the only proper sentence on the murder convictions.

The general subject-matter of the dispute was therefore whether, on the facts accepted by the trial court and in light of psychiatric evidence (including evidence of psychopathic personality) and alleged substance use, any mitigating factors existed that should displace the death sentences, or whether the aggravating features were such that death remained the only proper sentence.

2. Material Facts

The court treated as material the background and pattern of the offences insofar as they bore on sentence, including motive, planning, manner of killing, and the absence of causal connection between any asserted mitigating condition and the offences.

The murders were committed over a defined period, from 22 December 1988 to 31 January 1989, in or near Stutterheim, Cathcart, and Queenstown. All twelve victims were women. The killings occurred in remote, overgrown areas, contributing to delayed discovery of many bodies and limiting the completeness of post-mortem examinations in most cases.

The trial court found, and the Appellate Division accepted for purposes of sentence, that all twelve women were strangled using pieces of their own clothing, and that in nine cases the cause of death was strangulation while in three cases the cause of death was either strangulation or a blow to the head with a pick handle. The trial court also found that each murder was committed with direct intention to kill, and that the appellant’s motives were sexual gratification and/or robbery, coupled with fear of identification by the victim.

The sequence of killings, as accepted by the court, began in Stutterheim. The first victim (22 December 1988) was found the next day; the appellant admitted strangling her with a jacket cord and was convicted of robbing her of money. Two further Stutterheim victims disappeared on 26 December 1988 and 2 January 1989 respectively; their remains were later found (one discovered independently, one pointed out by the appellant). The appellant testified that he had struck these women with a pick handle, alleging a dispute related to dagga sales, but the trial court rejected the contention that the victims were involved with him in selling dagga and rejected that explanation for the killings.

After the third Stutterheim killing, the appellant moved to Cathcart. On 9 January 1989 he left a house with a woman who was found the next day, partially undressed, strangled with a handkerchief. Medical evidence included injuries consistent with sexual violence. The appellant’s explanation for killing her, and later victims, was that he feared a rape charge would be laid against him.

The appellant then moved to Queenstown (from 10 January 1989) and killed eight women there. Three victims’ identities were never established. The dates of the first five Queenstown killings could not be determined precisely, but the bodies were discovered between 28 and 30 January 1989, with medical estimates placing deaths in mid-to-late January. The victims were found in overgrown areas near the municipal dumping ground or in closely clustered locations, and each had been strangled with clothing items such as panties, a belt, a petticoat, or a scarf. The appellant’s account included that, in one instance, he initially promised to pay for intercourse but then decided to kill the woman instead.

A particularly material incident for sentencing was the murder of a 16-year-old schoolgirl on 30 January 1989. The evidence accepted by the court was that she was killed earlier that same morning while travelling and needing travel documents; the appellant offered to assist, lured her to a deserted spot, and killed her. Signs of struggle were present, and the appellant was convicted not only of murder but also of rape and robbery in relation to this victim.

The final murder occurred on 31 January 1989, with the victim found the next day, largely naked, strangled with her panties. The appellant then took her clothing and sold items, grounding an additional robbery conviction.

The appellant was arrested on 8 February 1989, after earlier that day attempting to lure two more women to the area where several of the Queenstown murders had been committed. He was subsequently referred for psychiatric observation under the Criminal Procedure Act and examined by three psychiatrists, who concluded unanimously that he was fit to stand trial, was not mentally disordered within the meaning of the Mental Health Act, and at the times of the offences was capable of appreciating wrongfulness and acting accordingly. At trial, two psychiatrists testified that the appellant had a psychopathic personality, but did not place it at a level bordering on mental illness or reducing his ability to control his actions.

The court treated as undisputed for purposes of this appeal that the appellant used dagga and alcohol regularly, but accepted the psychiatric evidence that he denied excessive use and that these substances did not influence his conduct in committing the offences.

3. Legal Issues

The central legal question was whether, in light of the Criminal Law Amendment Act 107 of 1990 and the applicable provisions of the Criminal Procedure Act 51 of 1977, the Appellate Division should confirm the death sentences by finding that the death penalty was the only proper sentence on each murder count, having regard to the presence or absence of mitigating factors and the weight of aggravation.

A key subsidiary issue was whether the appellant’s psychopathic personality constituted a mitigating factor relevant to sentence. This required an evaluative determination involving the application of legal principles to psychiatric facts, including whether there was a causal link between the personality disorder and the commission of the crimes, and whether the disorder materially reduced control or moral blameworthiness.

A further subsidiary issue was whether the appellant’s use of dagga and alcohol operated as mitigation on the facts, which similarly involved applying legal standards to accepted expert evidence about the influence of substances on the appellant’s behaviour.

The matter therefore concerned primarily a sentencing value judgment informed by findings of fact and expert evidence, rather than the determination of guilt.

4. Court’s Reasoning

The court approached the appeal by emphasising that, although the earlier trial had been conducted under a regime in which the presence or absence of extenuation was decisive, the current legal framework required the Appellate Division to exercise a discretion as to whether death was the only proper sentence, taking into account mitigating and aggravating circumstances.

In relation to psychopathy, the court applied the established principle that psychopathy is not per se an extenuating circumstance. It relied on prior appellate authority holding that the existence of a psychopathic personality does not automatically reduce moral blameworthiness or provide mitigation. The court stated that whether psychopathy constitutes a mitigating factor depends on the nature and severity of the psychopathy and the nature of the crime and its circumstances. The court thus framed the enquiry as fact-sensitive and dependent on the degree of impairment and its relevance to the offending conduct.

Applying that framework to the psychiatric evidence, the court accepted that both psychiatrists described the appellant as psychopathic but that they did not regard the condition as bordering on mental illness or as reducing the appellant’s capacity to control his actions. The court also relied on the behavioural pattern across the offences, as described by the psychiatric evidence and supported by the appellant’s own account, to conclude that the appellant’s conduct was deliberate rather than impulsive.

The court agreed with the trial court’s conclusion that the appellant’s psychopathic personality played no role in the commission of the crimes. Central to this conclusion was the absence of a causal link between the personality disorder and the offences. The murders were characterised as planned and premeditated, not committed on the spur of the moment or as a result of inability to control aggression or violence. The court stressed that the appellant’s conduct was consistently rational, including that after intercourse he would “weigh the situation,” decide to kill, and then execute that decision without anger. The court also treated as significant his later ability to give detailed, rational accounts and to point out crime scenes.

As to drug and alcohol use, the court relied on the evidence that the appellant used dagga and alcohol regularly but did not abuse them excessively, and on the psychiatric opinion that these substances played no role in the offences. The court considered the objective features of the appellant’s conduct—deliberation, planning, and coherent post-offence recollection and cooperation—as inconsistent with intoxication materially influencing the crimes. On this basis it upheld the trial court’s finding that substance use did not constitute mitigation.

The court then considered the balance between mitigation and aggravation. It found no mitigating factor “of any substance.” It regarded the aggravating factors as “self-evident” and extremely serious. These included the multiplicity of murders, the sexual and robbery motives, the avoidance of identification, the vulnerability of the victims, and the pattern of serial killing. The court noted the appellant’s age at the time (32) and his previous convictions, including indecent assault and robberies involving the use of a knife. It also placed weight on the appellant’s poor prognosis, the exclusion of rehabilitation, and his continuing danger to the community, evidenced by the attempt shortly before arrest to lure additional women to the killing area.

The court further drew support from an earlier decision where deterrence and public protection were emphasised in relation to an offender with severe sexual violence tendencies. It reasoned that deterrence and prevention were relevant, and it added that the seriousness of the appellant’s conduct was such that the “perceptions, sensibilities and interests of the community” demanded the extreme penalty. This reflected an evaluative judgment about the demands of retribution and societal protection in the circumstances of serial, sexually motivated killings.

On this cumulative reasoning, the court concluded that, for each of the twelve murders, the death penalty was the only proper sentence.

5. Outcome and Relief

The appeal was dismissed.

The Appellate Division confirmed the sentences of death imposed in respect of each of the twelve murder convictions.

No separate order as to costs was recorded in the judgment.

Cases Cited

S v Mnyanda 1976 (2) SA 751 (A)

S v Pieterse 1982 (3) SA 678 (A)

S v Kosztur 1988 (3) SA 926 (A)

S v Van Vuuren en ’n Ander 1992 SACR 148 (A)

R v Roberts 1957 (4) SA 265 (A)

S v Majosi and Others 1991 (2) SACR 532 (A)

Legislation Cited

Criminal Law Amendment Act 107 of 1990

Criminal Procedure Act 51 of 1977, section 78(2)

Criminal Procedure Act 51 of 1977, section 277(2)(a) (as amended)

Mental Health Act 18 of 1973

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that neither the appellant’s psychopathic personality nor his use of dagga and alcohol constituted a mitigating factor on the facts, principally because the evidence showed no impairment of control and no causal link between these features and the commission of the murders. The murders were found to be deliberate, premeditated, and motivated by sexual gratification and/or robbery as well as avoidance of identification. Given the extreme aggravation, the appellant’s prior convictions, poor prognosis, and continuing danger to the community, the court held that the death sentence was the only proper sentence for each of the twelve murders and confirmed the death sentences.

LEGAL PRINCIPLES

Psychopathy does not automatically amount to an extenuating or mitigating circumstance; whether it mitigates sentence depends on the nature and severity of the psychopathy and the circumstances and character of the offence, including whether there is a causal connection between the condition and the criminal conduct.

Where psychiatric evidence indicates that a personality disorder does not border on mental illness and does not materially diminish the offender’s capacity for self-control, and where the offending pattern demonstrates rational, deliberate, and planned conduct, a court may find that the disorder provides no mitigation.

Regular use of intoxicating substances such as alcohol or dagga does not mitigate sentence where the evidence shows that such use played no role in the commission of the crimes and the offender’s conduct reflects deliberation and awareness.

In determining whether death is the only proper sentence, the court exercises a discretion by weighing mitigating factors against aggravating features, including the seriousness of the offences, the offender’s prior record, prospects of rehabilitation, the protection of the public, deterrence, and the community’s interest in a proportionate response to extreme criminality.

S v Ndayave (368/91) [1992] ZASCA 142 (14 September 1992)