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KATHLEEN LEWIS
APPELLANT

and
THE STATE
RESPONDENT

HEFER,JA.

IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE [DIVISION

IN THE MATTER BETWEEN

KATHLEEN LEWIS .... APPELLANT

and

THE STATE RESPONDENT

CORAM : JANSEN, HEFER, JJA, et NICHOLAS, AJA

HEARD : 28 FEBRUARY 1986.

DELIVERED : 25 MARCH 1986.

JUDGMENT

HEFER,JA :

On 16 November 1982 the appellant accom-

panied her husband and three young children in a

motorcar 2
2
motorcar to Wemmerpan in Johannesburg. There, she

attempted to kill the whole family, including herself,

by introducing exhaust fumes into the car by means of

a rubber pipe. Her attempts were thwarted by a pas-

serby. All the members of the family were removed to hos-

pital where they were treated and eventually recovered.

As a result of this incident the appellant

was charged in a regional Court with an attempt to mur-

der the children. She pleaded guilty and was convic-

ted. After conviction she testified under oath in

mitigation of sentence. She also called her husband,

a psychiatrist (Dr Slutzkin), and a probation officer

(Mr Thuynsma) as witnesses. The regional magistrate

sentenced 3

3.

sentenced her to imprisonment for 6 years, of which 2 years

were conditionally suspended. An appeal against the sen-

tence to the Transvaal Provincial Division was dismissed ,

but leave was subsequently granted to appeal to this Court.

In what follows I shal1 be quoting extensively from

the record of the evidence presented to the trial Court. Such

quotations are the ipsissima verba unaltered of the record

It emerged from the evidence of the appel-

lant and her husband that the latter was sentenced dur -

ing April 1981 to a long term of imprisonment for murder

He noted an appeal (apparently against the conviction

and after spending a year in prison, he was granted

bail pending the outcome of the appeal. The appeal

was heard in Bloemfontein on 4 November 1982. Appel-

lant and her husband were in Court when it was heard,

and....4
4
and it became clear to them that the appeal would not

succeed and that Mr Lewis would have to return to pri-

son . However, on 7 November 1982 a certain Botha,

who had been a State witness at Lewis' s trial. , told

the latter that he had lied at the trial and that "he

wanted to put matters right". In the event Lewis

and Botha went to see a member of the Attorney Gene-

ral's staff. There, according to Lewis, Botha "got

hell from the prosecutor and we were all sent away".

On 15 November 1982 Lewis spoke to Botha again who then

indicated that he was no longer prepared to confess

his perjury. What happened thereafter was described

by Lewis as follows :

"That 5

5.

"That evening after work I told my wife. The effect on my wife your worship was disastrous. She just seemed to collapse into tears. No matter how I tried to console her, it did not help. She never even came to bed that night. The morning of the 16/11/82 started disas -trously by my wife having a fit of some sort, I had to give her two tranquillizers and put her to bed. Later that day when the histeria had evaded I took her and the children to Wemmerpan for the rest of the afternoon. The Court knows the rest what happened at Wemmerpan."

The relevant part of appellant's own evi-

dence reads as follows :

" I had been having treatments ever since my husband was first arrested for murder on 5/12/1981, I was having treatment from the doctor for my nerves and on the day he was sentenced to nine years imprisonment I evidently collapsed and everything

from 6

6.

from then just went haywire, X couldn't, I couldn't work, I started to drink, I lost my job and I couldn't pay my rent and I lost my flat and I couldn't feed my children and the more I battled to get out of it the more i couldn't and the more I seemed to drink and take pills and then when my husband came out on the 8/4/1982 he got me right again, he got me to stop drinking but I still had to take the pills because I was still in a terrible state of nerves. I couldn't seem to do without the pills but things got very much better and right up to his appeal I seemed to be coming right and then we went to Bloemfontein I then saw that his appeal wasn't going to work and I started to drink again and I started to get confused and I don't know sometimes a day or two used to go by that I didn't know what I was doing, I used to have black periods and then when he told me that about Hennie Botha on the Monday the 15th the Monday, 1 just seemed to go to pieces again."

"Do.....7

7.

"Do you remember going histerical?

I remember my husband telling me and I remember starting to scream and that is the last I can remember.

On the 16/11/1982 before you went
to Wemmerpan or at Wemmerpan had you
been drinking at all? Yes.

Did you drink accessively or not?
Yes I had a lot to drink.

When did you start drinking?

I think when I got up, the next morning about 11.00.

And you started to drink straight

away? Yes and I was taking pills.

What tablets were you taking?

Tranquillisers,Activan . "
Elsewhere she testified that when her husband suggested on the day in question to take the children swimming, she asked him to take them to Wemmerpan. At that stage she had decided to commit suicide. She
thought that at the dam "I could wander off there and

nobody 8

8.

nobody could find me". Once there, after taking some

brandy and tranquillising tablets, she decided to kill

her husband and children too. She crushed some tran

quillisers in her husband's drink and gave each child

two tablets. The result was that he and the children

all went to sleep in the car, whereupon she connected

a length of washing-machine piping which happened to

be in the car, to the exhaust and passed it through one

of the windows. She started the engine and sat in

the car awaiting death until she lost consciousness.

(What happened thereafter, I have already described.)

Asked about her reason for wanting to kill her child-

ren , she said :

"I....9

effect

9.

"I wanted to commit suicide, I felt I didn't want to leave my children behind as I didn't want them to be a burden to other people and I always dreaded that my children would be put in a home."

Dr Slutzkin's evidence is to the following

" Can you tell the Court your findings re
garding the state of the accused .? When I

examined the accused I found that there was no evidence of mental disorder at the time of the examination. She denied feel ing depressed at that time and she said she felt in control of herself and there was no signs of any disordered thinking at the time of the examination.

And regarding the actual offence

itself? Regarding the offence there

had been a two year history during which time her husband had been in gaol and

during 10

10.

during this time she had been very depressed and there had been some history of overdosing and that during that time and she also has a previous history of post-partern depression, that is depression following the birth of a child and her husband told me that at one time she had become almost impossible to live with because of this state of depression she was in. Also during the two years that her husband was in gaol she had taken to drinking and taking tranquillizers. Just before the actual crime it appears that her husband was at home on appeal bail and there seemed to be some hope for him
for his appeal or truesome evidence that someone had promised him, new evidence . Then this person apparently backed down and this had a tremendous traumatic effect on the accused. It was described to me by her husband that it had a catastrophic affect on her and she went crazy, she was drinking,taking pills. He said the following morning she went berzerked and then she collapsed

and 11

11.

and then when she came round she asked to go for a drive to the Vaa1 river. He took her to Wemmerpan for some reason of his own, I think it was too far or something. There she said she had intended to commit suicide by taking an overdose and getting lost. While she was wandering around contemplating this she decided that it would be, the best thing to do the whole family in, herself and her husband and the children. It had something to do with an idea that this would be the perfect Utopia, a solution to all her problems perhaps an over idealization of this idea and - the idea that she would then save the children from al1 the trauma and her husband, all this trauma that they have been going through and also that if she just killed herself they wouldn't be subjected to further traumas in their life. At the time of this event she had been drinking a lot,she had had been taking a lot of pills as well. She had gone berzerk that morning and it seems to me that the whole behaviour had switched over into possibly a psychotic

state 12

12.

state or an irrational thinking of a sudden nature and at the time of this - when she actually decided on this crime on this course of action rather because the intend to me wasn't criminal, it just seemed to be a course of action that she was going to solve the life's problems like this. It seemed to me that she must have been irrational, irrational state of mind. It seemed to me that she couldn't be really held fully responsible for her actions at the time of the crime, the time of the... The position with the accused now
regarding her actual mental state?
Her actual mental state as I mentioned at the time of my examination in the prison , I think it is some five months after this event, she has taken a new view of things, she got a new perspective of life. She has taken a new view of things. She managed to come back to reality and see things in a completely different light, according to my discussion with her and furthermore I don't pick up any evidence of mental disorder. It seems that the mental state that she went into was one

of 13

13.

of these reactive states to a situation event and then it has cleared up.
In the future are you of the opinion that one day in the future the accused would be able to resume her role
as mother of the children? I would
think that this is possible. I would imagine that she would have to be monitored , to have either a probation officer or something like that where .. would guide her and so on and monitored how she is coping with her life and to just check on her when she - because now having this history of depression she could be prone to coming depressed again under stressful situations or even for no reason at all and she needs to be monitored and treated appropriate at the right times.
In your opinion what effect would a term of imprisonment have on the accu"

sed? Well, I think this would be very
traumatic to her. The period in prison that she has spent now has sort of enabled her to set her mind right to take a positive

approach 14

14.

approach and I think a long period in prison would seem a purposeless thing for her and her being a person as I said proned to depression would certainly, could fall under the state of depression again.

Does the accused show desire to resume her role as mother of her

children? She does, I think she

is realistic about the situation, she doesn't expect it to just fall into her lap. I think she realises that she has like to prove herself . "

Mr Thuynsma, the probation officer, confirmed in his evidence the contents of a written report which he had prepared earlier. The only relevant parts of the report are the following :

"It was evident during the investigation that the accused is now in contact with reality and can perceive reality in a

normal 15

15.

normal way. However, she is in definite need of intensive therapy to assist her in realizing her situation and coping with life. She is still very insecure, wil1 have to cope with the results of her actions and will have to cope with a life without her husband and children."

(The reference to the absence of the children relates to the fact that they had been committed to a children' s home where they were still detained at the time of the trial.)

"This is the accused's first offence and she is not observed as criminally orientated.

The precipitating factors for her offence are :

14.1 An unhappy and unstable marriage.

14.2 16

16.

14.2	Severe depressions.
14.3	Dependence of drugs (to alleviate depression) and alcohol.
14.4	Her husband's imprisonment on a a charge of murder and the subsequent failure of his appeal on this offence.
14.5	Her own sense of insecurity,loss of contact with reality, failure and poor self image."

"It is deemed very important that the accused is assisted in adjusting within the community, obtaining work and establishing a suitable home as well as maintain close contact with her children as her children are now her only base of security and purpose in life.

It is felt that the accused would not gain from imprisonment presently as she would be submitted to rehabilitative treatment removed from the community and

this 17

17.

this in effect only retard her eventual adjustment in society.

15. RECOMMENDATION

It is recommended that the accused be
dealt with in terms of Section 297(1) (a)
and (i) (dd) and (ee) of Act. 51/1977 on
the following conditions : "

The regional magistrate disposed of Dr Slutz kin and Mr Thuynsma's evidence in two brief sentences as follows :

"The findings of Dr Slutzkin and Mr Thuynsma are to a great extent based on the accused and her husband's version. This Court can not agree with the recommendations of the probation officer. "

I have two observations on these remarks.

The first relates to the fact that the findings of the

professional 18

18

professional witnesses were largely based on the appel-

lant and her husband's version. The correct way in

which this type of evidence falls to be dealt with was

explained by RUMPFF JA (as he then was) in S v Mngome-

zulu 1972(1) S A 797 (A D) at p 798 and, provided that

the facts on which the findings were based were proved

to the Court, no reason existed why Dr Slutzkin and Mr

Thuynsma's views should not have received proper consi-

deration. The second observation relates to Mr Thuyns-

ma 's recommendations. A probation officer's report

is something to which considerable importance is at -

tached (cf S v Adams 1971(4) S A 125 (C) at p 127

and S v Jansen and Another 1975(1) S A 425" (A D)

at 19

19.

at p 428 (both dealing with juveniles; S v Maxaku

1973(4) S A 248(C) at p 254), for it usually provides

the Court with all available information which wil1 as-

sist in understanding the problems of the accused (S v

H and Another 1978(4) S A 385 (E C D) at p 386) and in

determining the most appropriate form of punishment. Such

a report always requires careful consideration and often

critical analysis in order to ensure that the views of

a probation officer are not simply substituted for the

Court's own views (S v H and Another loc cit). But if

the recommendations contained therein are not followed,

the accused and a Court of appeal is entitled to know

why. In the instant case neither the appellant nor

this : 20

20.

this Court knows why Mr Thuynsma's recommendations were not followed.
Although it is not stated in the magistrate's reasons, a possible reason for the trial Court's summary dismissal from consideration of Dr Slutzkin and Mr Thuynsma's views (based, as they were, on what the appellant and her husband had told them) may be that the Court was not impressed by the appellant's evidence nor by that of her husband. Of the appellant the magistrate said :

" she was a pathetic and untrust
worthy witness. She made a very bad
impression in the witness box."

Of her husband he said :

"The 21

21 .

"The accused's husband also made a very bad impression. He blatantly lied in order to save his face. The Court has no hesitation in rejecting the evidence as false."

It is not clear what the evidence was which was thus rejected. Obviously, everything that the appellant said in evidence was not regarded as false, for the Court relied for some of its findings entirely on her evidence which was supported in many respects by that of her husband. In dealing with the appellant' s evidence the magistrate made a remark which may offer a clue to what he had in mind viz that "it is obvious from all the evidence that she did not alone or on the spur of the moment decide to commit this crime. She

took 22

22.

took all the blame in order to protect her husband"

(My emphasis.) This remark relates to the denial by

the appellant and her husband that the latter had had

any hand in the attempt on the children's lives. Al-

although it is by no means an obvious conclusion to ma,

I am prepared to accept that their denial in all proba-

bility was false. For reasons which will presently

appear, however, their untruthfulness in that regard

is of minor consequence.

The primary importance of their evidence

lay in its relevance to the circumstances which had

prompted the appellant to commit the offence. And,

as respondent's counsel rightly conceded in this Court,

there 23

23.

there is no justification for doubting the correct-

ness of their evidence in that regard. Thus, if my

earlier surmise is correct that the trial Court's as-

sessment of Dr Slutzkin and Mr Thuynsma's evidence was

influenced by an assumption that it was based on incor-

rect information given to them by the appellant and her

husband, the assessment itself is plainly incorrect.

Reverting then to the magistrate's reasons,

the following emerges :

(1) No mention whatsoever is made of the all

important circumstances in which the at-

tempt on the children's lives was made.

(2) Dr Slutzkin and Mr Thuynsma's professional

evaluation 24
24 2 4.

evaluation of the effect of those circum-

stances of the appellant's state of mind

was ignored.

The irresistible conclusion is that the regional magis-

trate, in determining what an appropriate sentence would

be, not only excluded highly pertinent information from

consideration but also failed to take advantage of valu

able professional guidance. By doing so, he precluded

himself from properly considering the matter at hand.

As appears from some of the decisions to which he re-

ferred and from some of the remarks in his reasons for

sentence (which I need not quote), he regarded the ap-

pellant's offence as simply another instance of wilful

child 25

25.

child abuse , against which the community is entitled

to be protected. This was obviously not such a case.

I would describe the appellant's offence as a tragic

culmination of a series of traumatic events which so af-

fected her personality that she had no further will to

live, and eventually reduced her to a state of irratio-

nality in which even the heinous crime of killing her" own

children became quite acceptable.

It follows from what I have said that the

magistrate misdirected himself and that this Court is

now free to consider afresh the question of an appro-

priate sentence.

The 26

26.

The offence is, of course, a serious one,

the more so since so-called family murders in which

whole families are wiped out and the murderer finally

takes his own life, appear to have become the order of

the day. The alarming incidence of this phenomenon has

caused it to become a major social problem the solution

of which unfortunately seems to keep evading sociologists

and criminologists alike. And that is the crime which

the appellant would have committed,had it not been for

the fortuitous intervention of someone who happened to

be in the vicinity. A very considerable degree of miti-

gation is, however, to be found in the circumstances in

which the offence came to be committed and in the

appellant's 27

27.

appellant's state of mind at the relevant time. I have

already stated my views in that regard and nothing fur-

ther need be said. A few remarks about the interests

of society - the third consideration usually mentioned

in a discussion of the question of sentence - will, how-

ever , not be out of place.

Related to the circumstances of the in-

stant case, the question simply is ; would the in-

terests of society best be served by sending the appel-

lant to prison? For the following reasons, the answer,

in my view, is negative. First, the appellant would

gain nothing from such a sentence. As appears from the

probation officer' s report, she is not "criminally orientated"

and 28
28

and requires no rehabilitation because of criminal pro-

pensities . On the contrary, it is reasonable to as-

sume , in accordance with Dr Slutzkin's evidence, that it

would only affect her detrimentally. Second, Mr Thuyns-

ma's views of the importance of assisting the appellant

to adjust within the community in the way described in

his report, appear to me to be correct. Third, every

conceivable effort should be made to repair the harm which

must inevitably have been done to the children, not only

by the attempt on their lives, but also by what preceded

it. Their father was convicted of murder and senten-

ced to a long term of imprisonment. As a result, their

mother who was already prone to bouts of depression,

became 29

29.

became even more depressed and addicted to liquor and

to tranquil1ising drugs; she lost her employment;

there were days when the children had no food; and then

came the tragic attempt on their lives, as a result of

which they were removed from their mother's custody and

detained in a home {apparently after being declared to

be in need of care}. A more dismal picture of any

child's life is hardly imaginable and I can conceive

of no benefit to these children by now sending their

mother to gaol too. Fourth, a sentence of imprisonment

would in the circumstances have little deterrent effect

either on the appellant or on others. I wish to empha-

size, as I did before, that this is not simply a case of

brutality 30

30

brutality towards a child, but that it concerns the last

desperate act of a person who was intent on destroying

herself. Such a person will not be deterred by the pros-

pect of a heavy sentence, should the attempt at suicide

be unsuccessful. Fifth, and in view of what I have just

said, a sentence of imprisonment can serve no other pur-

pose than that of retribution. In the circumstances of

this case no further retribution is, in my view, called

for, nor would society demand it.

Mr Thuynsma recommended that the appellant

be dealt with in terms of the provisions of section 297

(1) (a) of the Criminal Procedure Act 51 of 1977, i e that

sentence be conditionally postponed. I prefer to deal

with 31

31.

with her in terms of section 297(1)(b) by imposing sen-

tence and suspending its operation, for no other reason

than to bring the matter to finality. The question of

suitable conditions then arises. The first condition

should obviously be aimed at the prevention of a repetition

of the offence. Any others should relate to psychologi-

cal or psychiatric treatment for the appellant and to her

custody of the children, the main aim being her psychological

rehabilitation and the welfare of the children. But the

children are already protected and the appellant realises

that they will not be restored to her custody until she

proves herself. The Welfare Department is, moreover,

aware of the case and one may rest assured that the

children 32
32. children wil1 not be restored to the appellant 's custody prematurely. Save to the extent that the appellant will have to submit to the supervision of a probation officer, I have accordingly decided not to impose any further conditions.

The order which 1 make is the following: 1 . The appeal succeeds to the extent that the sentence of & years imprisonment which the regional magistrate imposed on 15 May 1983, is wholly suspended for 5 years with effect from that date on condition that the appellant -

(a) is not convicted of murder or attempted murder committed during the period of suspension, and

(b) 33
₃₃

(b) submits, in terms of section 297(1) (b

read with section 297("l)(a)(i)(ee) of

Act 51 of 1977, to the supervision and

control of a probation officer as defined

in the Children's Act 33 of 1960.

2. The Registrar of this Court is instructed to con-

vey this judgment to the Regional Director in Jo-

hannesburg of the Department of Health and Wel-

fare under reference number W 77601.

J J F HEFER, JA.

JANSEN,JA. )
CONCUR. NICHOLAS,AJA.)

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