S v Maxam

• Jurisdiction: South Africa
• Citation: 1992 (1) SACR 671 (A)

S v Maxam
1992 (1) SACR 671 (A)

1992 (1) SACR p671

Citation	1992 (1) SACR 671 (A)
Court	Appellate Division
Judge	Howie AJA
Heard	March 9, 1992
Judgment	March 23, 1992
Counsel	Mrs J Jones for the appellant; W J Downer for the State

Flynote : Sleutelwoorde

F Murder — Sentence — Death sentence — When the proper sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of the Criminal Law Amendment Act 107 of 1990 — Mitigating factor — What constitutes — General anxiety disorder — Appellant, a young man with no previous convictions, convicted of two counts of murder in that he had cold-bloodedly shot a domestic servant and a gardener at a farm-house into G which he and other young men had broken during the course of a burglary — Appellant having been an exemplary pupil, of good character and a leading political activist — Evidence from psychologist that appellant's innately anxious make-up so aggravated by ongoing political upheaval in township where he lived that when offence committed he was suffering from what was known as general anxiety disorder, which disorder had disrupted his H behavioural functioning — Court holding that existence of general anxiety disorder establishing mitigating factor no less related to the commission of the crimes than would have been the case had appellant been intoxicated — Appellant's ability to exercise usual sense of morality and self-discipline and therefore his ability to behave as he would normally I have done reduced — Inasmuch as the seriousness of the crime reduced to material extent by appellant's disorder, and in light of his good character and lack of previous convictions, death sentences set aside and replaced with 25 years' imprisonment on each count, such sentences to run concurrently.

Headnote : Kopnota

The appellant had been convicted in a Provincial Division of two counts of J murder and one count of housebreaking. The trial Court, acting in terms of

1992 (1) SACR p672

A s 277 of the Criminal Procedure Act 51 of 1977 as amended by the Criminal Law Amendment Act 107 of 1990, imposed the death sentence on each of the counts of murder. The appellant thereafter appealed against the death sentences in terms of s 316A of the Criminal Procedure Act. It appeared from the evidence that the appellant, who had no previous convictions, had B been one of a gang of young men who had broken into a house on a farm and stolen a quantity of goods and cash. In the course of the raid the appellant had fatally shot a domestic servant and a gardener employed on the farm. Also included in the evidence was that given by several 'character' witnesses, from which it appeared that the appellant had come from a stable background, had performed well at school and had held steady C employment thereafter, and was generally responsible, hard-working and reliable. It was common cause that the appellant had been a leading political activist in his township, which for some months before the murders had been racked by political unrest. A clinical psychologist testified that the appellant was a person of innately anxious make-up; that this disposition had been so aggravated by the serious ongoing political upheaval in his township that, when the offences in question had D been committed, the appellant had been suffering from what was known as general anxiety disorder; and that said disorder had disrupted appellant's general behavioural functioning. The trial Court was of the opinion that the disorder constituted a mitigating factor, but held that its existence was not related to the commission of the crimes in question. It further held that in the absence of a nexus between the appellant's disorder and E the offences, the disorder had failed in effect to reduce the general seriousness of the case, which was of such a nature that even life imprisonment was not an adequate sentence. In an appeal,

Held, that, although there was no doubt that the killings were crimes of exceptional seriousness, the evidence regarding the appellant's anxiety disorder did not merely establish the existence of a mitigating factor, F but one no less related to the commission of the crimes than would have been the case had the appellant's intellectual and behavioural function on the day been affected by intoxication: it had reduced his ability to exercise his usual sense of morality and self-discipline, and therefore his ability to behave as he normally would have done.

Held, further, that, although the crimes themselves were of exceptional G seriousness, the seriousness of the case as a whole, in the light of the aggravating and mitigating factors, was reduced to a material extent by the appellant's anxiety disorder, and that, in the light also of the 'character' evidence referred to above, the death sentence was not the only appropriate sentence.

Held, further, that the appellant's clean record, stable employment H history and sound personal qualities pointed to favourable prospects of reformation, and that a sentence of life imprisonment was therefore also inappropriate.

Held, accordingly, that the death sentence had to be set aside and replaced by sentences of 25 years' imprisonment on each count, such sentences to run concurrently. I

Case Information

Appeal in terms of s 316A of the Criminal Procedure Act against death sentences imposed in the Cape Provincial Division (Munnik JP and assessors). The facts appear from the judgment of Howie AJA.

Mrs J Jones for the appellant, at the request of the Court, referred to the following authorities: S v Nkwanyana and Others 1990 (4) SA 735 (A) at 743I and 745A-F; S v P 1991 (1) SA 517 (A) at 522G-523D; S v Mdau 1991 (1) SA 169 (A) at 174E and 176C-D; S v J 1989 (1) SA 669 (A) at 682I-J; J S v Ramba

1992 (1) SACR p673

A 1990 (2) SACR...