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1992
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[1992] ZASCA 184
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S v Dlanzi (302/91) [1992] ZASCA 184 (28 September 1992)
CASE NO 302/91
/CCC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
JEREMIAH MANDLEKOSI DLANZI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, NIENABER JJA et NICHOLAS AJA
DATE HEARD
: 15
SEPTEMBER 1992
DATE DELIVERED
: 28 SEPTEMBER 1992
JUDGMENT NESTADT, JA
This is an appeal against the death sentence. It was imposed by CURLEWIS J
sitting on circuit in the Transvaal Provincial Division
consequent upon the
appellant having been found guilty of murder.
The crime took place on a farm in the
2
district of Piet Retief on 24 December 1989. At about 9:30 that night the
appellant arrived at the kraal of Mondi Gamede. He entered
one of the huts
there. Asleep inside was Gamede's grandson. He was Bongani Khoza, aged seven.
The appellant stabbed him three times
in the chest. Two of the wounds were on
the left side. They respectively penetrated the heart and liver. The cause of
death was the
stab wound of the heart. Having committed what can only be
described as this dastardly act, the appellant fled the scene.
The appellant's defence was an alibi. It having been rejected by the trial
court, there was no explanation by the appellant for why
he acted in this way.
It appears from the State evidence, however, that the killing was connected with
the fact that the appellant
and the deceased's mother, a certain Samaria Mothe
had, until shortly before the night in question, lived together as husband and
wife. She then left him.
3
He did not know where she had gone. The appellant tried to trace her. He on
several occasions sought information as to her whereabouts
from Gamede (her
father). Gamede told the appellant that he did not know where his daughter was.
It would seem that the appellant
felt that he was not being told the truth and
that Gamede knew the whereabouts of his daughter. This angered the appellant. He
threatened
to kill Gamede and Gamede's wife. The inference in these
circumstances is that the appellant, for some unexplained reason, killed
the
deceased because of the grievance he had formed against the grandparents and
against the deceased's mother.
Plainly, what has been stated proclaims a number of seriously aggravating
factors about this crime. The appellant's victim was an
innocent, defenceless
child. He was mercilessly stabbed three times as he lay sleeping. The murder was
obviously
4
planned. And it was committed with
dolus directus.
On the other
hand, there are certain mitigating factors. The appellant was upset at Mothe's
disappearance. He regarded Gamede as being
responsible for his inability to find
her. This infuriated him. Hence the threats to kill Gamede. The one State
witness says the
appellant "was fuming, he said he wanted to hit the old man".
The appellant was thus in a highly agitated and emotional state of
mind. He felt
frustrated. At least these are inferences which it is reasonably possible to
draw. So, too, it is reasonably possible
that it was to give vent to his rage
that he decided to kill Mothe's child; that in doing so he was taking revenge on
her and Gamede.
However heinous his act was, the appellant should be sentenced
on the basis that he acted abnormally and in a frenzy. This, so it
seems to me,
must, in the circumstances of this matter, be regarded as reducing his moral
blameworthiness. Add
5
to this the fact that the appellant, aged 43, has no previous convictions,
and I do not think it can be said that the death sentence
is the only proper
sentence. The purposes of punishment will be better served by the imposition of
a lengthy period of imprisonment.
The appeal succeeds. The death sentence is set aside. There is substituted
therefor a sentence of 15 years' imprisonment.
NESTADT, JA
NIENABER, JA )
) CONCUR NICHOLAS, AJA )