S v Matlhola

• Jurisdiction: South Africa
• Judge: Kotzé AJA
• Judgment Date: 09 May 1990
• Citation: 1991 (1) SACR 402 (BA)
• Hearing Date: 04 May 1990
• Counsel: D D Mosupye for the appellant D Joubert for the State
• Court: Bophuthatswana Appellate Division

Kotzé AJA:

On 24 July 1989 the appellant, an unmarried girl, 26 years of age, gave birth to a female baby girl and suffocated her to death with a blanket. This led to her being tried by Lawrence AJ on a charge of infanticide. Upon conviction - extenuating circumstances being present - she was sentenced to 18 months' imprisonment. This is an appeal by H her against the severity of the sentence pursuant to leave granted by the Chief Justice.

The circumstances of extenuation referred to above are set out fairly in the judgment a quo. They are:

(a)

Appellant was in an emotional state.

(b)

The father of the baby (the appellant's boy friend) repudiated I her and all responsibility for the maintenance of the baby.

(c)

Appellant lost her employment as a result of her deed. This meant the termination of her paltry monthly salary of R100 which, in any event, was totally inadequate for the support of the baby, her seven-year-old child and her widowed mother.

(d)

Birth took place in the appellant's room at her place of employment.

(e)

J No one was present at the birth.

Kotzé AJA

(f)

A The appellant hid her pregnancy and was motivated by the disgrace which she believed would ensue.

(g)

The killing of the baby was spontaneous and unpremeditated.

(h)

The appellant was contrite and made full disclosure of her deed to her employer the day thereafter.

Counsel for the appellant informed us that infanticide is not rife in B Bophuthatswana: he could only trace two such trials in the records of the Registrar of the Court a quo. It is, moreover, common cause that the present is the first appeal of its kind to reach this Court. The element of deterrence is accordingly not a factor of considerable importance.

The state of emotion of a mother who is driven to the desperate act of taking the life of her newly born child is an extremely difficult factor C to gauge. It is something which is incapable of objective determination - it is one of the things which only a mother who has experienced pregnancy and subsequent birth can understand and appreciate. Yet it may not be an easy matter for a young mother to convey to others, least of all a Court considering the degree of her culpability, the state of the turmoil of her mind at the relevant time. It is for this reason that judicial nescience must not be stretched to the extreme length of D requiring from her a vivid description of her emotional state...