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480/87

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
HENDRIK JANSEN Appellant
and
THE STATE Respondent
CORAM: HOEXTER, KUMLEBEN, JJA et NICHOLAS, AJA
HEARD: 5 May 1988
DELIVERED: 27 May 1988

JUDGMENT NICHOLAS, AJA
On the evening of 30 September 1986, two girls were walking together along a footpath leading through the veld from Postmasburg to the Ou Lokasie. They were Patricia

Seekoei
2 Seekoei, aged 16, anc Mina Piererse, aced 19. On cheir way they encountered three men. One of them caught hold of Mina. Patricia ran away, but stopped briefly under a pepper-tree and listened: she heard Mina scream once, then there was silence.
Early on the following morning, Patricia returned to the scene. Mina's body was lying in the veld about 40 metres from where she had been seized. She was dead. Her shoes and wrist watch were not on the body.
On post mortem examination it was ascertained that the cause of Mina's death was a stab-wound penetrating the right atrium of the heart. A considerable quantity of semen was observed in the vagina and the cleft between the buttocks.

Arising
Arising out of this incident, three men appeared before VAN RHYN JP and two assessors at a sitting at Post-masburg of the Kalahari Circuit Lccal Division. They were Piet Molouly as accused No. 1; Hendrik Jansen as accused No. 2; and Koos van Wyk as accused Ko. 3. They were charged on three counts: (1) the rape of Mina Pieterse; (2) robbery of her wrist-watch and shoes; and (3) her murder. Accused Nos. 1 and 2 pleaded guilty on count (1) and not guilty on the remaining counts. Accused No. 3 pleaded not guilty on all three counts. The result of the trial was that accused Nos. 1 and 2 were convicted on the rape charge, but acquitted, "weens gebrek aan getuienis", on counts (2) and (3). Accused Mo. 3 was acquitted on all counts.

In
4 In passing sencence, VAN RHYN JP deait wich ac-cused Nos. 1 and 2 on the basis of the evidence which each of them had given, "want daar is nie ander getuienis nie". He sentenced accused No. 1 to imprisonment for 10 years; No. 2 he sentenced to death. The learned Judge refused an application on behalf of No. 2 for leave to appeal against the death sentence, but the matter is now before this Court in consequence of leave granted upon a petition to the Chief Justice.
It is clearly established that in an appeal against a discretionary death sentence, this Court will not interfere and alter the sentence of the trial judge unless it appears chac che discretion encrusced to hin was not exercised in a

proper
5 proper or reasonable manner. But where there has been a misdirection on the part of the trial court (that is, "an error committed by the Court in determining or applying the Eacts for assessing the appropriate sentence"), and it is "of such a nature, degree, or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreason-ably", this Court is entitled to inrerrere, and to consider the sentence afresh. (S v Pillay, 1977 (4) SA 531 (A) per TROLLIP JA at 535 E-F.)

The accounts given by accused No. 1 and the ap-pellant were substantially the same. During the day of 30 Sepcember 1986 they met up wich a man named Kerneels Louters

ar
6 at the Postmasburg Hotel off-consumpticn licuor store. There they bought a 2-liter container of "Gold Cup suurwyn" which they consumed. During the rest of the day, they later bought, and consumed, a great deal more of this wine. In the evening they went to the location, where the appellant delivered sugar at his father's house. They returned to Postmasburg at about 8 p.m. Accused No. 3 (Koos van Wyk) was not with them. On their way they encountered the deceased and another girl coming from Postmasburg. Kerneels Louter tripped the de-ceased. She struggled. He dragged her some distance and threw her to the ground, and had intercourse with her. The appellant then had intercourse with her, and he was followed by No. 1. After getting up from the deceased, the two ac-

cused

7

cused Eound that there was blood on their clothes. Before
this, they said, neither of them had any knowledge that the
deceased had been injured. Kerneels Louters left the scene.
The appellant picked up the deceased. She was limp, and
they found that she was dead. They left her there, lying in
the veld, and went off to visit a friend.

Questioned in regard to the effect on him of the

liquor he had consumed, the appellant said:

"Ek het 'n goeie klompie drank gedrink maar ek was nie so dat ek nie weet wat aangaan nie ... Ek het nog geweet wat gaan aan ... (Ek) kon nog gemeenskap hou."

Asked in cross-examination whether he was not worried after
he had raped the girl, he said:

"Nee

8

"Nee, ek was nie eintlik bekcmmerd daaroor, hoekom, ek was dronk gewees, daarom was ek nie bekommerd nie, ek was bekommerá die anderdag-more gewees."

It was contended on behalf of the appellant that the learned trial Judge misdirected himself in two main re-spects: he placed excessive emphasis on the appellant's criminal background; and he did not pay sufficient attention to the role played by liquor.
In order to provide perspective, a brief reference may be made to the way in which the death sentence for rape has been applied in the Cape, in Nacal and subsequencly in the Union and the Republic over the last 100 years.

In 1882, DE VILLIERS CJ observed in Queen v Nonosi

l Buch

n

l Buch AC 154 at 155:

"By the law of this counzry a person committing rape is liable to be sentenced to death; but very few judges would now sentence a man to death f or rape, except under exceptional circumstances of such great atrocity as almost to leave no option."

Information regarding the later history was provided by the
researches of Professor Ellison Kahn, which were published
in two articles (Crime and Punishment 1910-1960, 1960 Acta
Juridica 191, and The Death Penaity in South Africa, (1970,

33 THRHR 108), from which I have drawn most of what is
contained in the two paragraphs which follow.

The death sentence was not regarded as compulsory

in the British colonies in South Africa, but it was made com-

pulsory by statute in Natal betweer. 1887 and 1899. The

law
10 law had to be altered, however, because it was iound chac juries were reluctant to convict, and when they did, the sentence was almost always commuted.
According toa note in (1891) 8 Cape Law Journal 232, the last sentence of death in the Cape other than for murder was for rape "rather more than 20 years ago". In 1897 the Cape Law Journal stated that "dearh sentences are now passed only in cases of murder". It was said in the South African Law Journal of 1909 that capital punishment for rape "is so rare as to be practically negligible". The Commission into Sexual Assaults on Women in 1913, under the chairmanship of Melius de Villiers, former Chief Justice of the Orange Free State, nevertheless recommended that the courts be left with

the

I

11

the discretionary power to impose capitai punishment for l
rape. When the legislature passed zhe Criminal Procedure and Evidence Act in 1917, it gave statatory recognition to the principle that the death sentence f or rape was competent but not compulsory (see sec. 338 of Act No. 31 of 1917.) (This position has been maintained in subsequent Criminal Procedure Acts, including the most recent - see s. 277(1)(b) of Act No. 51 of 1977.) Since 1913 there has been no of-ficial consideration of the question whether the death sen-tence for rape should be retained. The Lansdown Penal and Prison Reform Commission, 1947, did not mention the matter. (It may be added that capital punishmenr was not within the terms of reference of the Viljoen Commission on Penal Reform,

the

12 the report of which was published in 1976.) The daca in-dicate that capital punishment for rape was virtizally non-existent between 1926 and 1942, but that there was a re-surgence after 1942.
It does not appear that until 1972 the Appellate Division gave any indication as to the circumstances in which a trial court should impose the death sentence ln cases of rape and other cases where a discretionary death sentence was competent. Indeed, in R v Ramanka, 1949 (1) SA 417 (A) CENTLIVRES, JA referred at 420 to the fact that by s. 338 of Act 31 of 1917 sentence of death for rape was a competent sentence, and said:

"The Legislature therefore intended that the coach

penalty

13

penalty should, in appropriate circumstances, be imposed for the crime of rape. What these cir-cumstances are is left to the discretion of the

trial oourt."

In R v S, 1958 (3) SA 102 (A), again, FAGAN CJ said at 104
thar in so far as the matter was one of discretion, rules
that bind the trial court or might be construed as fettering
its discretion would be out of place. He added,

"Trial judges have to bear in mind that the re-sponsibility for determining the punishment lies squarely on their shoulders, and that their de-cisions in this regard are not subject to review by this Court except within the limited compass that I have indicated ..."

that is to say, where the judge

"... has misdirected himself in the law or on the facts, or has exercised his discretion capriciously or on a wrong principle or so unreasonably as to

induce

14

induce a sense of shock."

In S v K en 'n Ander, 1972(2)898(A),however, this
Court did give an indication of the type of case in which
a death sentence for rape was appropriate. WESSELS JA said
at 902 A-D:

"Na my mening is dit van die bepalings van art. 330(1) van die Strafproseswet, 56 van 1955, af te lei dat die Wetgewer beoog het dat die dood-vonnis in uiterste gevalle 'n gepaste straf sou wees. vir sover my kennis strek, is dit ook gevestigde praktyk dat die doodvonnis slegs in uiterste gevalle opgelê word, d.w.s., in gevalle waar dit by oorweging blyk dat selfs 'n lang tyd-perk van gevangenisstraf in die betrokke om-standighede nie gepaste straf sou wees nie."

Continuing, the learned Judge of Appeal said that it did

not appear from the judgment of the trial court chat the

question of sentence had been approached in this way, or

thac

15

that the trial judge had given any consideration to the
question whether a sentence of imprisonment would, in all
the circumstances, have been a sufficienr punishment. It
was held that the imposition of the extreme punishment in

that case was so inappropriate that the appeal court was
entitled and obliged to interfere.

The expression "uiterste geval" has sometimes

been misunderstood. It is not to be understood literally,

"want as 'n Verhoorregter die doodvonnis slegs in 'n letterlik, of werklik, uiterste geval kan oplê, sal hy waarskynlik altyd moet besluit dat die doodvonnis nie 'n gepaste vonnis sal wees nie, want hy sal hom waarskynlik altyd 'n erger geval kan voorstel as die een wat voor hom dien. 'n Verhoorregter se diskresie kan nie op so 'n wyse aan bande gelê word nie ..."

per RABIE CJ in S v Tshomi en 'n Ander 1983 (3) SA 662 (A)

at
16

at 666. The learned Chief Justice continued:

"Die stelling dat die doodstraf net in uiterste gevalle opgelê kan word, hou dus, in 'n geval soos die onderhawige, niks meer in nie as dat 'n Ver-hoorregter nie die doodstraf moet oplê nie tensy hy van oordeel' 'is dat die misdaad van so n ernstige aard is dat die doodstraf die gepaste straf sal wees. Hiermee word niks nuuts gesê nie want dit is bekende reg dat die Verhoorregter, wie se taak dit is om te besluit oor wat 'n gepaste straf sal wees, in die lig van die ernstigheid van die misdaad wat gepleeg is en al die ander feite van die betrokke geval moet besluit wat 'n gepaste straf sal wees."

WESSELS JA himself had defined what was meant by "uiterste
gevalle" in not dissimilar terms, namely, "gevalle waar dit
by oorweging blyk dat selfs 'n lang tydperk van gevangenis-

straf in die betrokke omstandighede nie 'n gepaste straf sou
wees nie". The principle has not been doubted that capital

punishmenc

17

punishment for race should only be imposed in cases in
which it is imperatively called for. In the eloquent
words of HOLMES JA, "Sentence to the gallows is the incom-
parable utter extreme of punishment" (in S v V, 1972 (3) SA

611 (A) at 614), and

"...the trial Judge has a discretion, to be exer-cised judicially on a consideration of all relevant facts including the criminal record of the accused, to decide whether it would be appropriate to take the drastically extreme step of ordering him to forfeit his life; or whether some alternative, short of this incomparable utter extreme, would sufficiently satisfy the decerrent, punitive and reformative aspects of sentence. The possibility of such an alternative should be considered by the trial Judge, in view of the words 'the Court may impose any sentence other than the death sentence' in the proviso to s 330(1) of the Code. And it should be weighed wich the most anxious deliberation for it is, literally, a matter of life and death."

(in

18 (in S v Lersolo, 1970 (3) SA 476 (A) at 476-477.)
In considering whether zhe case is one proper f or the imposition oc capital punishmenr, the trial judge should, as indicated in Letsolo, have regard to the main purposes of punishment, namely, detsrrence and prevention, retribution and reformation.
In the nature of things, any possibility of re-formation is excluded by capital punishment.

In regard to retribution, it is a remark of HOLMES

JA which is apposite once more. In S v Mathee, 1971 (3) SA
796 (A) at 771 D, he said that the evil of the accused's
deed may be

" ... so shocking, so elamant for extreme retri-

bution

19

bution, that society would demand his destruction as the only expiation for his wrongdoing."

Generally speaking, however, retribution has tended to yield
ground to the aspects of correction and prevention, and it
is deterrence (including prevention, which has been described
as the "essential", "all important", "paramount" and "uni-
versally admitted" object of punishment. See S v B, 1985

(2) SA120(A) at 124.

In cases of rape "the law operates to protect
women against outrage" (S v V, 1972 (3) 611 (A) at 614 G) -
to protect the public, and particularly females, from the
possibility of the accused repeating the offence. So, in

R v Roberts, 1957(4) SA 265 (A), the accused had been con-

victed of a sex murder. The jury had found extenuating

circumstancss

20

circumstances, bur VAN MYK J imposed the death sentence,
giving the following reasons for doing so (see p. 269 of
the report):

"The accused suffers from strong sexual urges and, under the influence of liquor, experiences a desire to rape and do violence to women. It is this criminal tendency that makes him the dangerous killer that he is.

I have given careful consideration to the ex-tenuating circumstances found by the jury, as well as to what Mr. Gorcon has said, but I must do my duty as I see it. My duty is to protect the public against the accused and orher would-be killers. The accused belongs to a class of person whose conscience is gravely impaired. They are deterred only by fear of detection and punishment. I believe the fear of the death sentence is still the strongest single dererring factor with this type of person. I have a strong feeling that if the accused were ever to be set free again this desire to rape and to co violence to women when under the influence of liquor may well manifest

itself

21

itself again. As I see it, anybody who should give the accused his liberty again will be risking somebody else's life. The accused com-mitted a horrible murder, a typical sex murder, and may strike again if given the opportunity."

It was held on appeal (see p. 272 A-B) that the trial judge
acted upon no wrong principle, he brought an unbiassed judg-
ment to bear on the question of sentence, and he exercised
his discretion judicially.

Among consideration which might well weigh with a

trial judge in considering whether to impose the death sen-
tence for rape, are the following: evidence which tends to
show that the accused has an ungovernable sex drive, or a

propensity, from whatever cause, to commit violent sexual

crimes against women, or the fact that the accused has,

despite

22

despite previous sentences, not been decerred from again com-
mitting rape.

Against this background, I now return to the
facts of the present case.

The crime committed by the appellant and No. 1 is

such as to fill one with revulsion. They stood by passively
as Kerneels Louters set upon the 19-year old girl who was

innocently walking along the footpath with her 16-year old

friend. They saw him throw her to the ground, drag her

away, and rape her. Pirst the appellant, and after him No.

1, then had intercourse with her, as she lay helpless on the

ground, probably on the verge of death, because, although

they said that they were not aware of it, she must already

have been mortally injured.

VAN RHYN

23

VAN RHYN JP said that he did not place it to
the account of the accused that someone killed her. He
did, however, take into account against both of them that
rape, which is always a very serious offence, is much more
serious when it is committed by more than one assailant.

It is apparent from the judgment that the learned

Judge did not impose the death sentence on the appellant as
retribution for the atrocity of his crime; it was his crimi-
nal record which operated decisively on VAN RHYN JP's mind.
He said as much during the argument on sentence:

"(Ek) sou nie die doodstraf oorweeg het as dit nie was dat hy sulke ernstige veroordelings het nie."

And that appears also from the sencence of 10 years' im-

prisonment
24 prisonment which he imposed on No. I whose crime was not less serious than that committed by bhe appellant. The only possible basis of distinction between them was their comparative ages and their respective criminal records.
VAN RHYN JP considered No. 1 to be 21 years old at the date of the commission of the offence, and the appel-lant was then aged 26 years. I do not think that this was or could be a basis for distinguishing between them. No. 1 was no immature innocent: he had had 9 years experience of conflict with the law and had suffered imprisonment.

No. l's substantial criminal record was described

as follows in the judgment:

"In 1977 toe was jy nog sommer 'n kind, toe breek jy in en jy steel en jy kry 6 houe.

In
25

In 1978 toe breek jy weer in. Toe word jy onder

toesig van 'n proefbeampte geplaas.

1980, dit is twee jaar later, kry jy jou eerste

tronkstraf van 4 maande, toe moes jy nog bitter

jonk gewees het. Maar jy kry toe al 4 maande

tronkstraf vir aanranding met die opset om ernstig
te beseer en jy gebruik 'n mes. Toe is dit nou die

eerste keer wat jy 'n persoon aanval.

In 1980 kry jy 12 maande gevangenisstraf waarvan

6 maande opgeskort is, weer omdat jy iemand met

'n mes aangerand het.

In 1981 toe kry jy 6 maande vir gewone aanranding,

jy het iemand met 'n vuis geslaan.

In 1982 kry jy 6 maande gevangenisstraf omdat jy

'n ander man se goed opsetlik beskadig het. Dit

was 'n ruit van 'n voertuig wat R350 werd is.

In 1983 kry jy 12 maande vir diefstal.

In 1986 kry jy 16 maande, waarvan 9 maande opge-

skort is vir diefstal van whisky.

Nie lank uit die tronk uit nie, toe verkrag jy

hierdie vrou, die dogter van 19 jaar oud ver-

krag jy haar."

The appellant's criminal record was certainly
more serious, as appears from the extract from his form

SAP 69

29

The appellant was arrested on the charges on which he stood trial in the Circuit Court only two weeks after his release from prison on 15 September 1986. On 12 January 1987, he was again convicted, this time on a charge of as-sault with intent to commit sodomy, perpetrated during the time he was in custody awaiting trial.
In considering the appellant's criminal record, VAN RHYN JP placed particular emphasis on his previous con-victions for rape and sodomy, and his subsequent conviction for assault with intent to commit sodomy. But he also gave detailed consideration to his numerous other convictions, committed during the period between 1974 and June 1983, for offences of common assault, assault with intent to do grievous

bodily
30 bodily harm, housebreaking with intent to steal and theft, and theft.
In regard to the convictions concerned with sodomy, the learned judge stressed that these were sexual offences. I do not think that that was in itself relevant to the impo-sition of the death sentence in this case. The commission of such offences does not indicate a propensity to commit sexual offences against females. VAN RHYN JP himself as-sumed that the sodomy offence in April 1984 was committed by consenting parties, and I do not think that there is any basis for considering that the assault with intent to commit sodomy committed in January 1987 was akin to an attempted homosexual "rape". As was pointed out in S v Jack, 1982

(4)
31

(4) SA736 (A) at 742E-G, where a court, in imposing sentence,
takes into account an accused's previous convictions as an
aggravating factor, it must guard against drawing inferences
which are not supported by the factual data on the form SAP 69.

In the light of the appellant's record generally,
the learned Judge said,

"Van die beskuldigde se moontlike rehabilitasie met lang gevangenisstraf kan daar eintlik geen ernstige sprake wees nie ..."

So far as concerns his proclivity for committing assaults,

house-breakings and thefts, I entirely agree. It seems

clear that for the protection of the public, his criminal

propensities required that he be removed from the society.

But the question was whether he should be removed from

society

32
society by the imposition of the death sentence, and I do not think that the possibility or even probability that the appellant will commit theft or housebreaking was a factor to be taken into account in considering that question. (Cf. S v B, 1981 (4) SA 851 (A) at 857 A.) Nor does the accused's history of convictions for assaults evidence a tendency to commit sexual assaults on females.
VAN RHYN JP emphasized that the accused was un-conditionally released from prison on 15 September 1986, and that he raped Mina Pieterse about two weeks later. The fact that an accused has not been deterred by his previous punishment for rape from committing the offence again may aggravate the subsequer.t offence. (Cf. R v Zonele and

Others
33 Others, 1959 (3) SA 319 (A) at 330). But the force of that consideration in the present case was greatly reduced in the light of an analysis of his convictions.
He was convicted of rape on 19 June 1980, at a time when he was already serving sentences of 6 months' and 3 years' imprisonment imposed on 6 and 18 February 1980 re-spectively, and it was ordered that the sentence of 5 years for rape should run concurrently with any sentence he was already serving. In effect therefore he was called upon to serve an additional 2 years for the rape. On 10 November 1982 (three years before his sentence would have been com-pleted in the ordinary course) he was unconditionally re-leased. He was sentenced to 5 years' imprisonment for

housebreaking

34
housebreaking with intent to steal and theft on 16 June 1983,
and was unconditionally released on 15 September 1986. In
the result, it is unlikely that the 1980 sentence for rape
was in September 1986 operating on his mind as much of a
deterrent.

Moreover, the learned Judge did not give suffi-

cient weight to the effect upon the appellant of the liquor
he had consumed. He said in his judgment:

"Ek neem in aanmerking dat hulle gedrink het. Ek neem dit baie duidelik in aanmerking. Maar jy het alles geweet wat jy doen. Jy het vir ons hier vertel wat jy gedoen het. Jy het vir ons vertel wat gebeur het. Daardie drank het jou nie veel aangetas nie."

It was not enough that the appellant was not so drunk as not

to know what he was doing, or as to affect his ability to cell

the

35

the court what he did. What the learned Judge should have considered was the probable effects of the large quantity of wine which the appellant had consumed, such as loss of self-control and reduced inhibitions.
In my opinion, the learned Judge misdirected himself in the respects I have indicated. Those misdirec-tions were such that he did not properly exercise his dis-cretion. Consequently, this Court is free to consider afresh the question of an appropriate sentence. In my opinion, the case is not one which calls for the imposition of the ultimate penalty, and an appropriate sentence would be one of 15 years' imprisonment.

H.C. NICHOLAS, AJA

35

the court what he did. What the learned Judge should have considered was the probable effects of the large quantity of wine which the appellant had consumed, such as loss of self-control and reduced inhibitions.
In my opinion, the learned Judge misdirected himself in the respects I have indicated. Those misdirec-tions were such that he did not properly exercise his dis-cretion. Consequently, this Court is free to consider afresh the question of an appropriate sentence. In my view the case is not one which calls for the imposition of the ultimate penalty, and an appropriate sentence would be one of 25 years' imprisonment.

H.C. NICHOLAS, AJA

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