S v Whitehead

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Ogilvie Thompson JA, Holmes JA and Muller AJA
• Judgment Date: 31 August 1970
• Citation: 1970 (4) SA 424 (A)
• Hearing Date: 21 August 1970

D Ogilvie Thompson, J.A.:

Appellant was tried by MUNNIK, J., sitting with assessors in the Port Elizabeth Circuit Local Division, on a charge of murder and a further charge of assault with intent to murder. He was E convicted as charged. Extenuating circumstances having been found in relation to the murder, the sentence imposed on that count was 15 years' imprisonment. The sentence on the count of assault with intent to murder was 7 years' imprisonment. It was directed that the sentences should not run concurrently.

F An application for leave to appeal against the verdict on the second count (viz., that of assault with intent to murder) and against the sentences on both counts having been refused by the learned trial Judge, the appellant presented a petition to this Court for that relief. Pursuant to the provisions of sec. 363 (8) of the Code, leave to appeal against the said conviction was refused, but was granted in respect of G the sentences.

The crimes in issue were both committed during the night of 18th December, 1968, in the residence of appellant's father, Ronald Alexander Whitehead, at 6 Hallack Place, Port Elizabeth. His victims were, H respectively, his stepmother Velma Grace Whitehead - aged 36, and to whom I shall refer as the deceased - and her husband, the aforementioned Ronald Alexander Whitehead.

Although the present appeal is restricted to the question of sentence and the facts are very fully set out in the judgment of the Court a quo, the case presents some somewhat unusual aspects and, for a proper appreciation of the problem before us, it is necessary to make, as briefly as the circumstances permit, some preliminary mention of the

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extended background against which these two crimes were committed, and of their salient features as reflected in the evidence.

A Appellant's mother, who divorced Whitehead in 1957 - that is to say, when appellant was nearly 7 years old - moved to Cape Town from Port Elizabeth, where she and Whitehead had lived during their married life together. In terms of the order of divorce, appellant's mother was awarded custody of appellant who, at the end of 1957, joined her in Cape B Town where she later married one John Parker. In Cape Town appellant lived first with his mother and, after her remarriage in June, 1959, in the Parker household. He went to school in Cape Town and each year spent a substantial portion of his holidays in Port Elizabeth with his father, Whitehead, who married the deceased in April, 1958, and by whom he, in due course, had two children.

C It was a vital part of the defence case in the Court below that, primarily because of his being a child of a broken marriage who nevertheless hero-worshipped his father, appellant, although admittedly of above average intelligence, was emotionally immature and a disturbed D personality; and that the crimes in issue were committed in the course of an emotional storm or explosive episode triggered off as deposed to by appellant in his evidence and more fully described later in this judgment. In consequence, much of the protracted trial - and, indeed, also of the argument before this Court - was taken up in describing E appellant's general conduct and behaviour between the time of the divorce and the tragedy of 18th December, 1968, and with the evidence of the two expert witnesses called by the defence, namely, Dr. Cooper, a consultant psychiatrist, and Mr. van Zyl, a clinical psychologist. Quarrels during the subsistence of the marriage of appellant's parents, his allegedly literally having been the subject of a physical F tug-of-war between his parents when his mother came to fetch him in Port Elizabeth during January, 1958, and appellant's avowed persistent love for, and hero-worship of, his father were advanced by the defence in explanation of appellant's allegedly coming to regard his mother - who apparently always lavished affection upon him - as an G hysterical and nagging person who was primarily responsible for the divorce. Dr. Cooper said at the trial that in his opinion appellant hero-worshipped his father to a marked degree, and that appellant's aforementioned attitude towards his mother was a form of identifying himself with his father. At the trial appellant deposed that, because of H his affection for his father, he throughout wanted to be in Port Elizabeth, preferably living with his father, but even, if need be, at boarding school. Because this was denied him, he felt rejected. This alleged rejection, together with Whitehead's somewhat inconsistent treatment of appellant, was claimed by the defence, both in the Court below and before us, to have been largely responsible for appellant's disturbed personality and recalcitrant behaviour. During April, 1963, Whitehead was severely injured in a motor accident and was confined to hospital for an extended

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period. This is contended by the defence to have accentuated appellant's emotional tensions. In was during 1963 that appellant's mother first consulted Dr. Cooper about appellant.

A [The learned Judge then dealt with the appellant's school career and continued.]

As the above summary of appellant's scholastic career would suggest, the evidence of record reveals that, despite his mother's undoubted, albeit possibly at times somewhat over-indulgent, affection and Parker's loyal B endeavours, appellant through the years became increasingly recalcitrant about applying himself to his studies, either at school or cram-school, and progressively unamenable to discipline, whether scholastic or domestic. Parker's patience with appellant ultimately became exhausted; so much so that he at one stage actually left his wife C and her son and went to live elsewhere. From time to time appellant's mother found it necessary to appeal to Whitehead for assistance in coping with appellant. Whitehead's view was that boarding school was the only practicable solution. Whitehead's attitude towards his son appears to have been an alternating mixture of harshness and indulgence. For D instance, the record contains mention of a harsh and abusive letter written by Whitehead to appellant which, however, his mother fortunately kept from his eyes. Again, in January, 1968, all four parents met to discuss the problem presented by appellant's behaviour. During this discussion, Whitehead lost his temper with appellant, sent him to his E room and there proceeded verbally to abuse and physically to assault him. The record indicates that this was not the only occasion when Whitehead struck the appellant; but, as is perhaps only to be expected, there is a considerable disparity in the accounts of these assaults respectively given by Whitehead and the appellant. On behalf of the defence it was argued that, despite these - admittedly F infrequent - assaults, appellant showed little or no animosity towards Whitehead, and that this affords further proof of his affection for his father. In material ways Whitehead was certainly generous to appellant. Indeed, in some respects - excessive pocket money and the like - he was G probably at times injudiciously indulgent. Here again the defence case is that it was paternal proximity and affection, rather than material things, which appellant craved and of which he felt deprived. However that may be, the considerable material inducements (on one occasion the promise of a Honda motor-cycle; on another, the giving to appellant of a H post-dated cheque for R1,000 payable against production of his matriculation certificate) held out by Whitehead to appellant for the latter to apply himself to his studies proved entirely unsuccessful. Indeed, from about June, 1968 - the Parkers had on 29th May, 1968, proceeded on a visit overseas, leaving appellant with friends in Tokai - appellant would appear to have become very interested in motor cars and night clubs to the further detriment and neglect of his studies. By September, 1968 appellant had become even more undisciplined,

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defying his stepfather, and often staying out very late at night. In an endeavour to improve the situation, appellant's mother placed him in an hotel for the month of October. She also, with the approval of her A husband, took a flat into which she moved, together with appellant, on 1st December. During 1968 appellant became greatly enamoured of, if not, indeed, wholly infatuated with, Miss Molly Cooper. The latter (no relation of Dr. Cooper) was not called as a witness at the trial, but B the record contains nothing to suggest that her reputation is anything other than it should be. Restrictions susequently imposed upon his communicating with Miss Cooper are claimed by the defence to have contributed to appellant's emotional stress; and, as will more fully appear below, it is appellant's case that a derogatory remark made by the deceased concerning Miss Cooper triggered off his fatal attack upon her.

C To conclude this reumé of the general background of the case, two further matters must be briefly mentioned. The first is that when, on or about 1st December, 1968, appellant was arrested in Cape Town in connection with some alleged offence - unspecified in the record - in D relation to a motor car, it was Whitehead who came from Port Elizabeth to obtain his release on bail. According to Whitehead's evidence at the trial, the magistrate, in granting bail, stated that he did so upon condition that appellant...