S v Ferreira and Others

• Jurisdiction: South Africa
• Judge: Howie P, Marais JA, Lewis JA, Heher JA and Van Heerden AJA
• Judgment Date: 01 April 2004
• Citation: 2004 (2) SACR 454 (SCA)
• Docket Number: 245/03
• Hearing Date: 22 March 2004
• Counsel: W H Trengove SC (with K Pillay) for the firs appellant. L P Dicker for the second and third appellants, instructed by the Legal Aid Board (heads of argument having been prepared by D J Kotze). A Coetzee for the State.
• Court: Supreme Court of Appeal

Howie P:

[1] The three appellants were sentenced to life imprisonment for murder. With leave of the trial Judge, Prinsloo AJ, they appeal against their sentences.

[2] The murder involved the killing of Cyril Parkman, a man then B about 61 years of age. The first appellant, a woman of 39 at that time, had been living with him in an intimate relationship for over seven years. He repeatedly and extensively abused her mentally and physically. She eventually caused the other appellants, young black men then aged 22 and 20 respectively, to kill him. They did. She paid them for doing so.

[3] Because the murder was premeditated the trial Court was C obliged, in terms of the Criminal Law Amendment Act 105 of 1997 (s 51(1)(a) read with Part I of Schedule 2), to impose life imprisonment unless there were 'substantial and compelling circumstances' present, in which event, in terms of s 51(3)(a), a lesser sentence could be imposed.

[4] The learned Judge considered, on his interpretation of the D expression 'substantial and compelling circumstances', that the evidence established none. In fairness to him this Court's judgment in S v Malgas[1] had not yet been given when sentence was passed. That decision, which resolved marked differences of approach to the question displayed in a number of E High Court cases, was considered by the Constitutional Court in S v Dodo[2] to be correct.

[5] The important part of the Malgas judgment for present purposes is that which explains that the circumstances envisaged by the expression need not be exceptional but must provide 'truly convincing reasons' [3] or 'weighty F justification' [4] for imposing less than life imprisonment, or they must induce the conclusion that the prescribed sentence would in the particular case be unjust or disproportionate to the crime, the offender and the legitimate needs of society. [5]

[6] It is common cause that the learned Judge took the wrong view of what the expression 'substantial and compelling G circumstances' means and it is also common cause that such circumstances did in fact exist in the case of the first appellant (what they were I shall indicate in due course). It is in contention whether such circumstances were present in the case of the other appellants.

[7] The first appellant has been in prison since conviction on H 27 November 2000 and over three years have passed since the imposition of sentence on 26 January 2001. This being so, counsel for the first appellant, while contending that the appropriate punishment at trial would have been a non-custodial sentence, accepted that the sentence to I

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be substituted now, with imprisonment actually A having been served, would be unrealistic were it to be wholly non-custodial imprisonment. It was therefore submitted that the substituted sentence be one of such form and duration that immediate release would follow on this Court's judgment. For the State it was submitted that a sentence of the order of 20 years' imprisonment was required in the case of the first appellant and that the life sentences B of the other appellants had to stand.

[8] It is convenient to deal with the appellants in their numerical sequence.

[9] In a written explanation accompanying her plea of guilty the first appellant tendered a version of the salient facts. She also C recounted the facts to Ms Kailash Bhana and Ms Lisa Vetten, employees of the Centre for the Study of Violence and Reconciliation in Johannesburg and attached to its gender unit, the former as social worker, the latter as gender co-ordinator. They have acquired by research, by study and by dealing with cases of abused women themselves, knowledge and expertise regarding victims who kill their D abusers.

[10] The first appellant did not testify but called Ms Bhana and Ms Vetten to give expert and factual evidence on her behalf. What they were told by the first appellant they recorded in written reports which they confirmed in evidence. That evidence was to the effect (I shall E come to it in more detail later) that on the facts presented to them they considered that the first appellant's reaction to the deceased's abuse, including her decision to have him killed, fitted a well-known pattern of behaviour of abused intimate partners. In accordance with that pattern the mind of the abused partner is eventually so overborne by maltreatment that no realistic avenue of escape suggests itself F other than homicide.

[11] In argument on appeal counsel for the State (who did not appear at the trial) criticised the evidence as one-sided, and as flawed by certain conflicts between the plea explanation and what the first appellant apparently told the two experts. That argument cannot G prevail. At the trial counsel for the State confirmed, without qualification, the following statement by counsel for the first appellant (who did not appear on appeal):

'I am informed by my learned friend for the State that the State admits the contents of those two reports and that the State has H therefore indicated that it will not be necessary to call any of the other witnesses regarding the facts as set out in those reports, those are accepted by the State. I had intended calling various neighbours and the accused herself but those facts are admitted.'

[12] In the light of that statement the facts before the trial Court were those recounted in the reports and confirmed in evidence, I and it was on those facts that the existence of substantial and compelling circumstances, and the eventual sentence, had to be determined. It is therefore not now open to the State to advance the sort of credibility arguments it sought to raise. Nor is the alleged one-sidedness, as an intended point of criticism, of any assistance to the State. It is always open to the J

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prosecution where, because of a A guilty plea, there is no evidence on record as regards the facts relative to the offence, and the defence does not propose to call the accused, to indicate unmistakably that facts in expert reports are accepted purely for the purposes of assessing the expert's opinion and not as evidence of the true facts. It will then be for the defence to B reconsider calling the accused to provide those facts and its failure to do so may well be at the accused's peril. If the accused is called after all, the prosecution can then test the defence version under cross-examination. In the present case the record indicates that the first appellant was available to be called and that the State accepted that that was unnecessary. The fact that she was the sole source of the relevant facts is in the circumstances neither here nor there. It need C only be added that it was open to the State to consult with the neighbours and other persons interviewed by the two experts and call them as witnesses if they advanced the prosecution case on sentence.

[13] The crucial question, which the trial Judge considered could not be answered in favour of the first appellant, was why she D decided on murder rather than to leave the deceased. The answer, according to the witnesses, lies in the cumulative impact of her whole personal history.

[14] Summarising as briefly as is appropriate, the evidence in this regard is as follows. Her sense of self-esteem was distorted in childhood by a mother who did not want a girl and rejected her and E abused her, verbally and emotionally, for example, accusing her when a six-year-old of 'whoring' with her father and denying her meaningful contact with him. This predisposed the appellant to need a father figure and, at the same time, as a coping mechanism, to repress rather than express anger, and also to tend to tolerate abuse. At the age of sixteen her mother left her to fend for herself. F

[15] In her twenties she married and had four children. Her husband abused her physically and emotionally. He often left her and the children destitute and threatened to kill her. After five years she left him. She placed the children in foster care and obtained work as a G housekeeper, but for board and lodging only. In due course she was on the point of taking up paid work when an acquaintance referred her to the deceased who offered to pay her more to be his housekeeper. She agreed.

[16] He lived on a farm in the Rustenburg area. He was about 20 years her senior. She lived in the staff quarters at first but after H three months he said that he was in love with her and wanted her to move into the main house with him, which she did. From then onwards they lived together. Early on the deceased was like a father to her and she came to love him.

[17] However, the relationship deteriorated and became abusive. He coerced and intimidated her in order to control her emotionally, I physically and economically. He referred to her as his child and she had to call him 'Mr Parkman'. She accepted the role of a child in response to his requests and needs, and she reacted as a child in receiving punishment. He became increasingly abusive and eventually violent. This was aggravated by his tendency to drink to excess. When drunk he was more abusive and violent than usual. J

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[18] He treated her as an unpaid servant. He gave her daily A tasks including heavy manual work. If she failed to complete them he punished her. This included locking her in a room without food, sometimes for up to two weeks at a time. She survived because a farm labourer smuggled food to her.

[19] When her children came to visit her on one occasion the B deceased was harshly critical of one of them. This so upset them all that the foster authorities denied further visits. In any event, he instructed her not to have any further contact with her children and she resorted to telephoning them. The deceased learnt of this from the details of his...