S v Smith

• Jurisdiction: South Africa
• Judge: Kumleben JA
• Judgment Date: 17 November 1989
• Counsel: M Witz for the appellant B L Sheer for the State
• Hearing Date: 07 November 1989
• Court: Appellate Division

Kumleben JA:

The appellant was charged in the Witwatersrand Local Division of the Supreme Court with the murder of Martin William Cornish. The Court (Vermooten AJ) found her guilty as charged, though with C extenuating circumstances, and sentenced her to six years' imprisonment. The appellant now appeals, with leave of the Court a quo, against the conviction and sentence.

It was common cause that on 22 May 1987 the appellant fired three shots from a revolver, one of which penetrated the chest of the deceased in the region of his left armpit and proved fatal.

At the trial appellant pleaded not guilty. Her defence, as set out in D her statement in terms of s 115 of the Criminal Procedure Act 51 of 1977, was that at the time the shots were fired she was 'under extreme emotional distress' resulting in 'a state of criminal incapacity'.

There were few, if any, material facts in dispute (as opposed to the inferences to be drawn from them). The appellant recounted the history E of her association with the deceased from the time they first met until his death. His wife and his sister, Mrs Van der Merwe, who were called as witnesses for the State, described the shooting itself. A mutual friend of the appellant and the deceased, Mr Theron, also a State witness, told of certain remarks passed by the appellant before the fatal incident.

In this case, for the purpose of deciding on the correctness of the F conviction and for a proper consideration of the sentence imposed, it is necessary to refer in some detail to the evidence of the appellant. (In the course of the narrative I shall interpose some comment and some evidence of the other three witnesses to whom I have referred.)

The appellant and the deceased first met in June 1986. She was at the time a 19-year-old student at the University of the Witwatersrand. She G had passed the first-year course for a Diploma in Education and was midway through her second year. He was more than twice her age, 39 years old, and a block man at a butchery. He was married and had a young daughter. He had one child of a previous marriage and two as a result of an extra-marital relationship.

Initially she resisted his advances but soon became attracted to him. She visited him daily at the butchery after her lectures. In due course H she gave up her studies since, as she put it, she was totally in love with him. Her parents were unaware of the relationship until the deceased's wife came to their home and confronted them with the situation. On this occasion the deceased, in the presence of his wife, said that he loved the appellant dearly and wished to divorce his wife in order to marry her.

In October 1986 he left his wife and came to stay at the appellant's I home. (She had threatened to leave home if her parents did not consent to this.) They spent a weekend on the South Coast of Natal together. He expressed his love for her and said that he wanted her to bear him a child. Nothwithstanding all this, on their return to Johannesburg he said that he was going to see his daughter. For this reason, or on this pretext, he returned to his wife. By Wednesday of that week he was again in touch with the appellant, saying that he loved her and had returned J to his wife only to be with the child. A week later, on his return from

Kumleben JA

A a short holiday with his wife, he promptly arranged to see the appellant. At that stage the appellant was concerned about their relationship and sought counselling from a pastor of the Rhema Church. She was reluctant to renew the relationship because she had promised both his wife and her parents that she would not continue to see him. He, however, was persistent and professed his deep love for her. Her B state of mind at that stage is best described in her own words:

'I thought it in the best interests of all of us that I should not (see him again), but my heart did otherwise. I could not, I loved him so much I just went back to him.'

C In January 1987 he told the appellant that he and his wife were going to consult an attorney to obtain a divorce. He moved out of their flat and went to live in a caravan. There the appellant visited him daily, often staying with him until the early hours of the morning, and cared for him by cooking for him and tending his daily needs.

On Friday, 13 January 1987, he did not turn up at the caravan. The appellant suspected that 'it was the same old story' - as indeed it D was. He had gone back to the flat and, when the appellant went there, she found him drinking wine with his wife and another couple. She was very upset. His wife told her that they had become reconciled and that she must stay out of their lives. Though distraught, she agreed to this. (Incidentally, the deceased had broken a promise to her that he would not return to his wife without first telling the appellant.) Nothing daunted, within a short time he again telephoned the appellant and E falsely explained that he had gone to the flat to discuss the divorce with his wife...