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IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
BHEKI RAPHAEL MHLONGO APPELLANT
and
THE 5TATE RESPONDENT
CORAM : HOEXTER, HEFER, JJA et NICHOLAS AJA. HEARD : 19 FEBRUARY 1988. DELIVERED : 11 MARCH 1988.
JUDGMENT HEFER JA :
Subsec (1) (a) of sec 277 of the Criminal
Pro-cedure Act No 51 of 1977 provides that sentence of death
shall 2
2.
shall, subject to the provisions of subsec (2), be imposed
upon a person convicted of murder. Subsec (2) reads as
follows :
"(2) Where a woman is convicted of the murder of her newly born child or where a person under the age of eighteen years is convicted of mur-der or where the court, on convicting a person of murder, is of the opinion that there are ex-tenuating circumstances, the court may impose any sentence other than the death sentence." (My emphasis)
In S v Ngoma 1984(3) 666 (A D) at p 671 CORBETT JA
said :
" where it appears that the age of
the accused is near the critical borderline of 18 years, the correct determination of his age becomes a matter of the utmost im-portance. From the accused's point of view
it may be a matter of life or death."
In 3
3.
In the present case it was indeed a matter of life and death. The appellant
and a co-accused were convicted of murder. In appellant's
case no extenuating
circumstan-ces were found. In sentencing him to death the learned judge in the
court a quo said that he was compelled by law to do so "bécause he
(the appellant) was not under the age of 18 and extenuating circumstances
were
not proved". Why there was this specific reference to appellant's age will
presently emerge.
After the appellant had been convicted, his counsel
addressed the court on the question of extenuating circum-stances and argued
that
his youthfulness was such a circum-stance. She informed the court of his
date of birth,
according 4
4. according to which he was 18 years and about 4 months old
at the time of the murder. Counsel had obtained her information from
the
appellant himself and there was no con-firmation of the date eg by the
production of his birth cer-tificate or by a witness who
could reliably speak of
it. The appellant is, moreover, an unsophisticated and apparently uneducated
person. Not without reason,
therefore, the lear-
ned judge was sceptical
about the reliability of the date furnished. The case was then postponed.
Enquiries were set afoot and the
appellant was examined radiologically
in
order to determine his age. But it was all to no avail because, when the
trial eventually proceeded, the learned judge was informed
that the appellant's
birth certificate
could 5
5. could not be produced, that none of his relatives could be traced;and that the radiological examination revealed no more than that he was 19 years or more at that stage (which was little more than a year after the murder had been com-mitted). The court was thus in no better position than it had been before the postponement; apart from his coun-sel's statement it had no information of the appellant's age. But there was a real possibility that he could have been under the age of 18 at the time of the murder and the question of his age could therefore not be left unresolved. Counsel for the State suggested that sec 337 of the Criminal Procedure Act (which provides for the assessment by the court of an accused's age by his appearance or from any avail-
able ...6
6.
able information) be invoked. The learned judge refused
to assess his age
in this manner. He expressed himself
as follows in the judgment :
"If this court was forced to make an assessment, I think I might be inclined to say that (he is) more than 18 at this stage. I do not know what a young man looked like a year ago. Young people change guickly in those years. I find myself unable to make an estimation which can firmly put the answer of the age of the accused the one way or the other."
The following situation thus emerges : the appellant's appearance was such, and the information given to the court regarding the outcome of the radiological examination re-vealed, that he might well have been under the age of 18 years at the time of the murder; this being the case, it
was 7
7. was vitally important with a view to a proper
sentence to determine his age; but every effort to do so with any measure of
certainty
had failed and there did not seem to be any likelihood that further
efforts would meet with greater success. How then did the learned
judge
eventually come to say that the appellant was not under the age of 18?
What actually happened, was that the learned judge ruled that there was an onus on the appel-lant to prove that he was under the age of 18 when he committed the murder and that he had not discharged the onus. This appears from the following passage in the court's judgment:
"It 8
8.
"It has not been finally decided whether the State or the accused should prove that the accused is under the age of 18. Whereas the accused must prove the extenuating circumstan-ces it seems to me that similar considerations apply to the question of age. Frequently the accused is in a position to give information about age which the State does not have ..... He claims to have been born on 17 November 1967. Even on his own claim he does not sug-gest that he was under the age of 18 when the
crime was committed As far as the fin-
dings of fact is concerned he does not even sug-gest that he was under the age of 18, or in any other way indirectly to create a degree of fac-tual basis for thinking that he was under the age of 18. This court would be speculating totally if this court were to say that he was under the age of 18."
Having thus overcome the problem of the appellant's
age and having found
that there were no extenuating circum-
stances, the learned judge sentenced
him to death but granted
him 9
9. him leave to appeal against his sentence.
Two
questions were argued in this court. The first is whether the learned judge in
the court a quo correctly ruled that it was for the appellant to prove
his age, and the second, whether the finding that there were no extenu-ating
circumstances is correct. Both these matters arise from the provisions of sec
277(2) and, in order to distin-guish between them,
I shall refer to the
provision relating to persons under the age of 18 years as the second provi-sion
(the first being the one relating
to a woman convicted of murdering her newly
born child) and to the one relating to extenuating circumstances as the third
provision.
In the discussion which follows any reference to the appel-
lant's
10. lant's or an accused's age should be construed, unless the
context indicates otherwise, as a reference to his age at the time
when the
offence was committed; it is his age at that time and not at the time of his
conviction that is re-levant (R v Rainers 1961(1) S A 460 (A)
).
Counsel for the State supported the court a guo's view that the
second provision can only be invoked if the accused proves that he was under 18
years of age when the murder was committed.
He based his argument on the analogy
which he sought to draw between the second and third pro-visions. The
onus to prove extenuating circumstances rests, of course, on the accused
(R v Lembete 1947(2) S A 603 (A); S v Theron 1984(2) S A 868 (A)
), It was accordingly
argued 11
11.
argued, that likewise it is for the accused to prove that he was under the age of 18 if he relies upon the second pro-vision. In my view the two cases are not analogous. Save that they both operate in favour of the accused to the extent that a sentence other than the death sentence may in either case be imposed, the second and third pro-visions really have nothing in common. Counsel for the State pointed out that the youthfulness of the accused is often relied upon in the context of extenuating circum-stances. This is so; but a moment's reflection re-veals that the similarity between a case where youthful-ness is relied upon in the context of extenuation, and a
case 12
12.
case to which the second provision is applicable, is more
apparent than
real. It must be realized at the outset that
the second and third provisions
create separate and indepen-
dent grounds for the court's discretion to
impose a sentence
other than the death sentence. The position is
accurately
stated in Hunt's South African Criminal Law and
Procedure
(2nd ed) at p 376 :
"Where 'a person under the age of 18 years is convicted of murder', the age of the convic-ted person per se confers upon the court a discretion to impose a sentence other than death. In such a case it is thus not neces-sary for the court to enquire whether extenu-ating circumstances exist, since such an en-quiry would do no more than confer a discre-tion which already exists by virtue of the accused person's age."
This is in accordance with the decision in Ngoma's case
(supra)....13
13.
(supra) where it was said (at p 670) that
"(w)here a person convicted of murder was under the age of 18 years at the time when the crime was committed, the Court has a discretion as to whether to impose the death sentence or not. On the other hand, if the person concerned was not under the age of 18 years, ie was 18 years old or more, at the time of the commission of the murder, then,unless there were extenuating cir-cumstances, the death sentence is obligatory. (See s 277(2) of Act 51 of 1977.) Thus only where the accused was not under the age of 18 years at the time when the offence was commit-téd is it necessary for the Court to decide whet-her extenuating circumstances, in the technical sense, were present (although naturally such circumstances would be relevant on the question of sentence where the accused was under the age of 18 years at the relevant time). "
(See also S v Harman 1978(3) S A 767 (A) at p 770.)
The grounds for the discretion in terms of the second
provision. are,
moreover, not only independent of, but also
entirely 14
14. entirely different from those giving rise to the
discretion in terms of the third provision. The approach of the courts to the
question of extenuating circumstances is trite. It emerges from decisions like
those in S v Babada 1964(1) S A 26 (A) at p 27-9, S v Letsolo
1970(3) S A 476 (A) at p 476 and Ngoma's case (supra at p 673)
that the enquiry as to their existence involves not merely the proof of facts or
circumstances which could have influenced
the accused's state of mind or mental
faculties in the commission of the crime, but also the further guestion whether
they probably
did influence him, and whether the influence was of such a nature
that his moral blameworthiness is reduced. The first two legs of
the enquiry
involve pure matters
of 15
15.
of fact and the third one a moral judgment on the court's
part. In
the case of a murder committed by a youthful ac-
cused, although his age is
obviously relevant (see Ngoma's
case at p 674), it is not his age or
his youthfulness as such,
but the immaturity flowing therefrom, which may, in
a proper
case and with due regard to other factors, afford grounds
for a
finding of extenuating cases. As appears from the
judgment in S v Rooi en andere 1976(2) S A 580 (A) at p 585
the
real question in such cases is
"of die beskuldigde as gevolg van onvolwassen-heid, gebrek aan lewenservaring, onbesonnen-heid, of vatbaarheid vir beïnvloeding met min-der laakbaarheid bejeën behoort te word al dan
nie."
If all this is taken into consideration and compared
with 16
16.
with the position in terms of the second provision, the distinction is plain.
In the case of an accused under the age of 18 years
all that is relevant is his
age; no fact or no circumstance need be shown which could have in-fluenced or
did influence his state
of mind or mental facul-ties; it matters not whether his
youthfulness or immatu-rity played any part in the commission of the crime;
and,
perhaps most importantly, he need not cross the barrier of the court's moral
judgment in order to invest the presiding judge
with a discretion to impose a
sentence other than death.
The suggested analogy of extenuating circumstances
can thus not be used to decide the question of the onus of
proof 17
17. proof for purposes of the second provision. How then is that question to
be decided?
In the Lembete case (supra at p 609) it was said
that the incidence of thé onus "depends of course on the
interpre-tation to be given to the language of the section, and light may be
thrown on the question by
the application of the gene-ral principles in regard
to the incidence of the onus".This is the approach which I propose to
adopt in deciding where the onus lies in cases such as the present
one.
There is little in the wording of sec 277(2) from which the
legislature's intention may be inferred. The words "where a person under
the age
of eighteen years is convicted of murder" provide no reliable clue. Nor can
anything 18
18.
anything be made of the fact that the mandatory death sen-
tence was introduced in subsec (l)(a) of sec 277 "subject
to the provision
of subsection (2)"; it cannot be said
that exceptions to a general injunction
were hereby created
which may be proved by some one who invokes one of the
ex-
ceptions. For two reasons I am, nevertheless, of the opi-
nion that
the legislature did not intend to cast an onus on
the accused. The
first one flows from a remark in Ngoma's
case (supra at p 671)
where CORBETT JA said :
" it would be palpably contrary to public
policy and to the intention of the Legislature if persons actually under the age of 18 years were dealt with, in terms of s 277(2), on the factual basis that they were 18 years or older."
I respectfully agree. And this is precisely what may happen
if 19
19. if the onus were to be cast on the accused. Bearing in
mind that the incidence of the onus becomes relevant and decisive only
where there is uncertainty arising from the lack of evidence relating to the
fact in issue, it
is clear that, if the accused were to bear the onus ,
the second pro-vision cannot be applied whenever there is no or insuffi-cient
evidence of his age. He will then be treated as if
he were 18 years or older
although (as in the present case) he may well have been younger. Taking into
account the legislature's
avowed intention of treating persons under the age of
18 differently from others, such a result could, in my view, not have been
intended. Nor does it accord with public policy.
The 20
20.
The second reason is that sec 337 of the Criminal Procedure Act deals expressly with the situation where there is no or insufficient evidence of an accused's age. As mentioned earlier it permits the court to assess his age in such a case by his appearance or from any available in-formation. This is the answer which the legislature has provided to the problem which would otherwise be solved by the incidence of the burden of proof and it is hardly like-ly that the Act would have contained such a provision had it been the intention to cast the onus of proving his age on the accused (or on the State, for that matter) for pur-poses of the application of the second provision of sec 277(2). I am not unmindful of the shortcomings of sec 337.
To 21
21.
To assess an accused's age with any measure of
accuracy by
his appearance is neither easy nor satisfactory; in cases
like
the present one where he appears to be near the pre-
scribed age, it may
indeed be impossible to say whether he
is under or above it. It is for
reasons like these that
it has been said (e g in S v Seleke en Andere
1976(1) S A
675 (T) at p 688) that sec 337 should only be used as a
last
resort. Naturally, the impossible cannot be expected and
if the
accused's age cannot be assessed with the required
degree of accuracy,
nothing further can be done. But the
uncertainty which then exists, must
enure for his benefit
and not against him. He should not be dealt with as if
he
had already reached the prescribed age at the time of the
murder 22
22.
murder.
The problem which arose in the present case is by no means a novel one. The law reports abound with decisions in cases where the accused's age was relevant fór purposes of sentence e g in terms of secs 334 ter and quat and sec 335 of Act 56 of 1955 or in terms of sec 4(1) of the Dange-rous Weapons Act 71 of 1968. In all these cases it was held to be the duty of the presiding officer to satisfy him-self as to the accused's age. (See e g R v Hadebe and Another 1960(1) S A 488 (7); R v Hlongwane 1960(1) S A 309 (T); S v Seleke en Andere (supra) ; S v Swato 1977(3) S A 992 (0); cf R v Matipa and Others 1959(2) S A 396 (T); S v Manyololo 1969(4) S A 356 (E); R v Malevu 1961(1)
284 23
23.
284 (N) ). And in S v Danjana and Another (judgment de-livered on 25
May 1973 and reported only in 1973(2) P H H(5) 81 ) this court adopted the same
attitude in a case similar
to the present one.
Although it is thê
court's task to assess the ac-cused's age, the State and the accused both have
an interest in ensuring as
accurate an assessment as possible. Both par-ties
should, therefore, assist the court to the best oftheir ability to obtain all
relevant
information. It should not be left to the concluding stages of the
trial (as so often happens) before proper enquiries are set afoot.'
It has
be-come pratice for the accused's age to be mentionéd in the indictment
and it appears that investigating officers
do
take......24
24. take the trouble to make some sort of enquiry before a charge is preferred. But the courts have had occasion to remark on the unreliability of this type of information because its source is seldom known or, where it is known, it is usually of such a nature that it cannot be relied upon. If proper enquiry is made timeously by the State and by defence counsel, both parties, or at least one of them, should be in a position to present the court with positive evidence (thus rendering recourse to sec 337 un-necessary,) or at least with sufficiently reliable informa-tion to make a fairly accurate assessment possible. The court's burden will be appreciably alleviated if all those charged with the investigation and presentation of the
case.......25
25. case bears this in mind.
The remaining
question is what this court should now do to dispose of the case. It is clear
that the ruling relating to the onus led the learned judge to the
erroneous belief that the second provision of sec 277(2) did not ap-ply and that
he had no discretion
to pass a sentence other than the death sentence unless
extenuating circumstances were proved. Amidst the irresoluble uncertainty
regarding the appellant's age and in view of the fact that there was a real
possibility that he could have been under the age of
18 years at the time of the
murder, he should not have been dealt with as if he had already reached that
age. There was thus no need
for the court to enquire into the existence
of 26
26
of extenuating circumstances nor is it necessary for this
court to do so now. The learned judge has not exercised the discretion which
he
had to impose a lighter sentence but counsel were agreed that this court is in
as good a position as the learned judge to pass
a proper sentence and requested
us to do so. Seeing that all the relevant information is before us, we will
accede to the request.
In all the circumstances of the case I consider a
sentence of 12 years imprisonment appropriate.
The appeal succeeds to the
extent that the death sentence imposed on the appellant is set aside.
Substituted therefor is a sentence
of imprisonment for 12 years.
J J F HEFER JA
HOEXTER JA. ) CONCUR. NICHOLAS AJA. )
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