S v Malaza

• Jurisdiction: South Africa
• Judgment Date: 08 March 1989
• Citation: 1990 (1) SACR 357 (A)

S v Malaza
1990 (1) SACR 357 (A)

1990 (1) SACR p357

Citation	1990 (1) SACR 357 (A)
Court	Appellate Division
Judge	Goldstone AJA
Heard	March 1, 1989
Judgment	March 8, 1989
Counsel	P J Heymans for the appellant at the request of the Court; A F du Toit for the State

Flynote : Sleutelwoorde

Murder — Extenuating circumstances — What constitutes — Belief in witchcraft — Deceased not a threat to accused or responsible for accused's misfortune — Trial Court's decision that belief in witchcraft in such circumstances not, on the facts, constituting extenuating circumstances.

Headnote : Kopnota

The appellant had been convicted in a Provincial Division of murder C without extenuating circumstances and sentenced to death. It appeared that the appellant had suffered from a 'diminution of his vitality' in that he could find neither a wife nor permanent employment. This situation caused the appellant anguish as he was unable to look after his widowed mother for whom he had a deep respect. It further caused the appellant to be D under psychological pressure to gain 'power'. The appellant consulted a witch doctor who advised him to drink the blood of a strong and successful person and to bury certain of his organs. The appellant killed the deceased in order to carry out this advice. A trial Court considered that, although a belief in witchcraft could be taken into account in determining whether there were extenuating circumstances, it depended on the facts of E each particular case whether such a belief did in fact amount to extenuating circumstances. The trial Court held further that, as the appellant's fears had nothing to do with the deceased, his belief in witchcraft did not make his act less blameworthy. In an appeal,

Held, that the deceased was in no way perceived by the appellant as having been a threat to him or responsible for his misfortune: the F deceased was a man with a good job who was regarded by the appellant as a suitable victim.

Held, further, that these were all circumstances properly taken into account by the trial Court in making its finding and the fact that the welfare of his mother was a factor which may have moved the appellant to have acted as he did, did not lessen the moral blameworthiness of his G deed. Appeal dismissed.

Case Information

Appeal from a sentence of death in the Orange Free State Provincial Division (Van Coppenhagen J). The facts appear from the judgment of Goldstone AJA.

P J Heymans for the appellant, at the request of the Court, referred to the following authorities: S v Theron 1984 (2) SA 868 (A); S v Babada H 1964 (1) SA 26 (A) at 27H-28A; S v Letsolo 1970 (3) SA 476 (A) at 476H; Du Toit Straf in Suid-Afrika at 18.

A F du Toit for the State referred to the following authorities: S v Mkize 1979 (1) SA 461 (A) at 463G; S v Peterson en Andere 1980 (1) SA 938 (A) at 945H; S v Petrus 1969 (4) SA 85 (A) at 94H-95A, 95G-96A; S v McBride 1988 (4) SA 10 (A) at 19H-20A, 21I-22D, 23D-24D; S v I Letsolo 1970 (3) SA 476 (A) at 476; S v Ngoma 1984 (3) SA 666 (A) at 673H-I; S v Maarman 1976 (3) SA 510 (A) at 512H; S v Ngubane 1980 (2) SA 741 (A) at 745D; R v Fundakubi and Others 1948 (3) SA 810 (A) at 819; S v Mokonto 1971 (2) SA 319 (A) at 320G-H; S v Nxele 1973 (3) SA 753 (A) at 757G; R v Myeni 1955 (4) SA 196 (A) at 198A-G; S v Dikgale 1965 (1) SA 209 (A) at 214; S v Sibanda 1975 (1) SA 966 (RA) at 967D-H; and J S v Modisadife 1980 (3) SA 860 (A).

1990 (1) SACR p358

A Cur adv vult.

Postea (March 8).

Judgment

Goldstone AJA:

The appellant stood trial in the Orange Free State Provincial Division on a...