S v Smith and Others

• Jurisdiction: South Africa
• Judge: Wessels JA, Cillié JA, Hoexter JA, Smuts AJA and Hefer AJA
• Judgment Date: 17 November 1983
• Citation: 1984 (1) SA 583 (A)
• Hearing Date: 16 August 1983
• Court: Appellate Division

Wessels JA:

The appellants, who appeared before VAN DYK J and two assessors in the Witwatersrand Local Division, were convicted of murder and sentenced to death. At the end of the trial the State successfully applied in terms of the provisions of s 35 (1) (a) of Act 51 of 1977 for an order declaring that E the sum of R10 000, which had been seized by the police in the circumstances to be indicated hereunder, be forfeited to the State. The presiding Judge granted leave to first appellant to appeal to this Court against her conviction as well as the sentence of death imposed upon her. Her application for leave to appeal against the order declaring the sum of R10 000 to be forfeited to the State was dismissed. She has, however, F addressed a petition to this Court for leave to appeal against the aforementioned forfeiture order. First appellant also seeks an order appointing a commissioner to take the evidence of her father, Arthur Richard Mullucks, in England on the issue of extenuating circumstances for the purpose of placing such G evidence before this Court for consideration by it at the hearing of the appeal. The presiding Judge granted leave to second and third appellants to appeal to this Court against the sentence of death imposed upon each of them. At the hearing of the appeal before this Court, first appellant's counsel intimated that her appeal against the conviction of murder would not be pursued.

During the hearing of the appeal before this Court, doubt arose H as to the basis upon which the death penalty was imposed by the presiding Judge in the case of the first and second appellants. Certain passages in his judgment create the impression that he imposed the death penalty in the exercise of his discretion, and not because it was a mandatory penalty, which would have been the case if the composite verdict of the Court (ie the presiding Judge and his two assessors) were to have been one of guilty of murder without extenuating circumstances. The presiding Judge was accordingly requested to furnish

Wessels JA

a report in terms of the provisions of s 320 of the Criminal Procedure Act 51 of 1977 to clarify certain points which arose during the course of argument before this Court. He did so, and it appears from the report that it was the unanimous verdict of the Court (ie the presiding Judge and the two assessors) that A the appellants had failed to discharge the onus resting upon them in regard to the issue of extenuating circumstances. Copies of the report were furnished to counsel, who were invited either to submit further argument in writing to this Court or to address this Court on the report furnished by the presiding Judge. Counsel intimated that they would prefer to address this Court. In the result, this Court heard further B argument on the question of extenuating circumstances. At the resumed hearing, it was submitted by counsel on first appellant's behalf that the presiding Judge had not given an opinion such as is referred to in s 320 of Act 51 of 1977, but purported to explain what was done by the Court a quo, consisting of himself and the two assessors. In view of my C conclusion in regard to the question whether the Court a quo correctly held that the appellants had not establshed by a preponderance of probabilities that extenuating circumstances reduced their moral blameworthiness to an extent which empowered the presiding Judge to impose a sentence other than the death penalty, I do not find it necessary to deal with the nature or effect of the report in question. At the resumed D hearing of the appeal, it was contended by counsel on first appellant's behalf that the judgment in R v Lembete 1947 (2) SA 603 (A), in which it was laid down for the first time by this Court that on the issue of extenuating circumstances the burden of proof rested on the accused, should be reconsidered and that it should be held that the correct legal position is that, if E the State contends that the death penalty is mandatory in any particular case, the burden of proof in regard to the issue of extenuating circumstances rests on the State; it must negative beyond any reasonable doubt the existence of such circumstances as are relied upon by an accused. Obviously, it would be required of an accused to raise the issue in the course of his F defence just as it is required of an accused who relies upon self-defence on a charge of murder to raise such defence as an issue during the course of the trial. The accused is nevertheless not required to establish his plea that he acted in selfdefence. Having regard to my conclusion on the issue of extenuating circumstances, it is not necessary for me to G consider whether Lembete's case supra was correctly decided or not. However, in my opinion, the trial Court erred in holding that first and second appellants had not discharged the onus resting upon them on the issue concerning extenuating circumstances. The question relating to extenuating circumstances must be viewed against the following background. First appellant and the deceased married in England during H 1975. It was first appellant's third marriage. The first two marriages were terminated by divorce. First appellant's father was a man of some considerable wealth, and he appears to have maintained first appellant and the deceased on a lavish scale at all times and particularly so when deceased was unemployed. After living on the dole in England for some time the couple emigrated to South Africa because of the better prospects of employment. They eventually settled in La Lucia, a smart

Wessels JA

residential area near Durban, in a home the purchase of which was financed by first appellant's father. Although the marriage was happy at times, it appears that in time the relationship deteriorated to such an extent that first appellant instituted A divorce proceedings against deceased. The chief source of the unhappiness was the deceased's addiction to alcohol. It would appear that deceased was not averse to the marriage being terminated, provided that he be given a generous cash settlement. It all came to naught, however, because the deceased suggested that the parties should become reconciled. It appears that first appellant was willing to fall in with B deceased's suggestion. Both parties consulted a psychiatrist although the deceased stopped seeing the psychiatrist after a few visits. The deceased's conduct, especially when he was intoxicated, rendered continued cohabitation with him intolerable for the first appellant. The deceased persisted in his refusal to agree to a divorce. An C added complication was that the deceased now made it plain that he was in a position to blackmail first appellant's father, and that he would not hesitate to cause his financial ruin. It was about at that time that first appellant's father brought considerable pressure to bear upon her to end her relationship with the deceased. Ways and means of disposing of him were discussed. First appellant's aunt (Mrs Daisy Sleet) D visited her some short time before the deceased's death for the express purpose of assisting her to dispose of the deceased. The following is stated in the judgment:

"That accused No 1 had been subjected to coercion has, to a certain extent, been proved. It has undoubtedly also been proved that accused No 1 was often humiliated and intimidated by the deceased, especially when he was under the influence of liquor, which would appear to have been fairly regularly. On E the probabilities it would appear that the deceased also, more than once, threatened to blackmail accused No 1's father and that she believed that he was in a position to do so. Whether he would ever have dared to proceed further than mere threats would, on the evidence, appear to have been extremely unlikely. We accept that the cumulative effect of these factors to some extent influened accused No 1 in her decision to get rid of the deceased and that in that snse it can be regarded as mitigating F factors. However, since we are, in her case particularly, dealing with a person's state of mind and have to decide on the probabilities whether, and if so, to what extent, the cumulative effect of these factors to which I have referred, did have a bearing on the commission of the crime sufficiently appreciable to abate this accused's moral blameworthiness in doing what she did, we have come to the conclusion that on the probabilities it did not. This accused failed to give evidence. She failed to tell the Court to what extent she had been G influenced by the factors mentioned above. She failed to explain how she could ever bring herself so far as to conspire with an assassin to commit such a callous and sordid murder. She failed to explain how she could continue over a period of months to plan, plot and execute more than one attempt on her husband's life.

We are of the view that, as a grown-up, experienced person, although of an immature personality, the influence to which she H was exposed and the general misbehaviour of her husband were not of such a nature that it reduces her moral blameworthiness to any appreciable extent and that the real reason for her part in the crime is apparently to be found in her callous nature, undoubtedly fanned since childhood by the environment in which she had grown up."

In the judgment of the Court a quo reference is made to the judgment in the case of S v Babada 1964 (1) SA 26 (A) where it is stated at 27 that the enquiry about the existence of extenuating circumstances is a three-fold one, namely (1) are there any circumstances which were calculated to influence the accused's mental attitude? (2) if there were

Wessels JA

such factors, was the accused subjectively influenced by them; and (3) did these circumstances in the opinion of the Court serve to reduce the moral blameworthiness of the accused to an extent which...