About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1992
>>
[1992] ZASCA 206
|
|
S v Munyai and Others (58/92) [1992] ZASCA 206 (25 November 1992)
CASE NO 58/92
/CCC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
NELSON NEMAKHAVHANI
MUNYAI
FIRST APPELLANT
FRANS TSHILENGO NETSHIROMBENI
SECOND APPELLANT
WILSON TSHIDZHIELWI NELUKALO
THIRD APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, NESTADT et KUMLEBEN JJA
DATE HEARD
: 5
NOVEMBER 1992
DATE DELIVERED
: 25 NOVEMBER 1992
JUDGMENT
NESTADT, JA
:
The three appellants were part of a group of
2
persons who on the night of 28 June 1988 committed a so- called medicine
murder in Venda. The victim was a two and a half year old
boy. After his head
was struck against a rock, he was gruesomely dismembered.
These events led to VAN DER WALT J, sitting with assessors in the Venda
Supreme Court, convicting the appellants (and certain others)
of murder. This
appeal is against the death sentences imposed on each appellant consequent upon
a finding that there were no extenuating
circumstances.
Having regard to the provisions of the Venda Criminal Law Amendment
Proclamation, 16 of 1991 (which is in similar terms to the South
African
criminal Law Amendment Act, 107 of 1990) our task is to decide whether, having
due regard to the presence or absence of any
mitigating or aggravating factors,
the death
3
sentence is, in each case, the only proper sentence.
It is necessary to
particularise the circumstances of the crime in a little more detail. They are
the following. The third appellant
was about
to open a new business. It was a motel. He apparently believed that its
success would be secured or enhanced if his ancestral spirits
were appeased;
parts of a human body were needed in order to achieve this. They would be buried
on the property on which the business
was to be conducted. He accordingly
recruited the first appellant to find someone who would be killed and whose
organs would then
be used for the purpose referred to. The first appellant was
to receive R200 for his services. With the assistance of one of his
co-accused
(she was also found guilty of murder by the trial court and sentenced to 10
years'
4
imprisonment) the first appellant carried out his mandate. On the day in
question and on his
instructions she took the child to a pre-arranged spot in the mountains.
Present there were the three appellants and certain others.
At the instance of
the first appellant the child was handed to the second appellant. He took it by
the legs or thighs and dashed
its head against a rock. This killed the child or
at least rendered him unconscious. Whilst the first appellant held its one arm,
second appellant using a knife then cut off the child's lips, half of the tongue
and the penis. In addition he amputated certain
other limbs and decapitated the
deceased's head with an axe. The first appellant then handed certain parts of
the body to the third
appellant who took them away in a bag. What remained was
put in another bag by the first
5
appellant and removed from the scene.
I propose to deal firstly with the appeals of
second and third appellants. There is really very little that can be said in
their favour. It is true that neither has any previous
convictions and that the
second appellant has never been to school and is obviously an unsophisticated
person. But that is as far
as mitigation goes. Both appellants are mature,
middle-aged persons who must obviously have been fully aware of the heinousness
of
their actions. Second appellant was the actual killer who according to the
trial judge was probably paid for what he did. The third
appellant was the
instigator of the crime. He was furthermore at the scene; he watched as the
deceased was killed; and he carried
away with him parts of the body. I agree
with Mr
Morrison
, who argued the
6
State case with ability and fairness, that his belief in the supernatural is
not a mitigating factor in
casu
. This is not a so-called witchcraft case
(as to which, see eg S
vs Motsepa en ' n Ander
1991(2) SACR 462(A)
especially at 470 f-g) where the deceased is killed out of a fear of harm
befalling the accused or members of
his family or community. The third
appellant's motive was purely financial, viz that his business should prosper.
It is hardly necessary
to dwell upon the horrific and reprehensible nature of
the crime. It is self-evident. And, according to the trial judge, it is of
a
type which is not infrequently committed in Venda. This is a case where the
aggravating factors are such that the deterrent and
retributive objects of
punishment must play a dominant role. In my opinion, the death sentence is
imperatively called for.
7
I turn to the appeal of the first appellant. His moral guilt is not less than
that of the other appellants. Perhaps it can rightly
be regarded as greater. He
put the murderous scheme into operation. He had almost a month to reflect on
what he was doing. He took
an active part in the killing. He not only assisted
the second appellant, but in large measure supervised what happened. And above
all, the person whom he selected or at least approved of as the victim was his
own grandson. There was no evidence that he was actuated
by anything other than
the promise of payment of R200. The monstrous wickedness of his deed is almost
beyond comprehension. Despite
the fact that he too is a first offender and that
he is an unsophisticated person with a low level of education, there is in the
circumstances, and but for one factor,
8
no basis on which he should not also be sentenced to death. That one factor
is his age. At the time of the trial (in June 1990) he
was 77 years old. That
means he is now 79. One instinctively baulks at the thought of a person of this
advanced age being sent to
the gallows. And, it seems to me, the objects of
punishment do not require this. It is true that there is Roman-Dutch authority
to
the effect that, save where there is a loss of mental capacity and in
relation to the imposition of corporal punishment, old age
is, generally
speaking, not a ground for leniency (see the writers referred to by RUMPFF JA in
S vs Zinn
1969(2) SA 537(A) at 541 G - 542 A). Nevertheless, our courts
have (as for example in
S vs Heller
1971(2) SA 29(A) at 55 C) treated old
age
per se
as a mitigating factor when deciding on an appropriate period
of imprisonment.
9
This has been done on the basis of compassion coupled I think with the
perception that the community expect old people to be treated
with sympathy (D P
van der Merwe:
Sentencing
5-26). Perhaps the reason for this is embodied
in the saying "pity at least is due to a feeble octogenarian (OED sv
"Octogenarian").
Even in the absence of any evidence that the first appellant
suffered from diminished insight or responsibility, I think that this
approach
should apply here. Of course, in sentencing, misplaced pity must be guarded
against (see the footnote on p 72 in vol 2 of
Gane's translation of Voet
5.1.57). But the first appellant is close to 80. This being so and
notwithstanding the extreme repugnance
of his crime, society would understand
that, unlike in the case of the second and third appellants, the imposition of
the death sentence
on the first
10
appellant is inappropriate. It is therefore not the (only) proper sentence.
The proper sentence, in my view, is one of life imprisonment.
In the result:
(1) The appeal of the first appellant succeeds. The death sentence imposed on
him is set aside. He is, instead, sentenced to life
imprisonment.
(2) The appeals of the second and third appellants are
dismissed.
NESTADT, JA
VAN HEERDEN, JA ) CONCUR KUMLEBEN,
JA )