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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO 245/03
In the matter between
ANIETA NATASHA FERREIRA First
Appellant
BOSTON THYS CHILAMBO Second
Appellant
GEORGE KOESYN Third
Appellant
and
THE STATE
Respondent
CORAM: HOWIE P, MARAIS, LEWIS, HEHER JJA AND VAN HEERDEN AJA
Date Heard: 22 March 2004
Delivered:
Summary: Murder: life sentence: whether substantial and compelling circumstances warranted lesser sentence : first accused a woman living in intimate domestic partnership : repeatedly abused : paid co-accused to kill her partner.
J U D G M E N T
HOWIE P
HOWIE P
[1] The three appellants were
sentenced to life imprisonment for murder. With leave of the trial Judge,
Prinsloo AJ, they appeal against
their sentences.
[2] The murder involved the
killing of Cyril Parkman, a man then about 61 years of age. The first appellant,
a woman of 39 at that
time, had been living with him in an intimate relationship
for over seven years. He repeatedly and extensively abused her mentally
and
physically. She eventually caused the other appellants, young black men then
aged 22 and 20 respectively, to kill him. They
did. She paid them for doing
so.
[3] Because the murder was premeditated the trial court was obliged, in
terms of the Criminal Law Amendment Act 105 of 1997 (s 51(1)(a)
read with part I
of schedule 2), to impose life imprisonment unless there were ‘substantial
and compelling circumstances’
present, in which event, in terms of s
51(3)(a), a lesser sentence could be imposed.
[4] The learned Judge
considered, on his interpretation of the expression ‘substantial and
compelling circumstances’,
that the evidence established none. In fairness
to him this court’s judgment in S v
Malgas[1] had not yet been
given when sentence was passed. That decision, which resolved marked differences
of approach to the question displayed
in a number of High Court cases, was
considered by the Constitutional Court in S v
Dodo[2] to be correct.
[5] The
important part of the Malgas judgment for present purposes is that which
explains that the circumstances envisaged by the expression need not be
exceptional but
must provide ‘truly convincing reasons’
[3] or ‘weighty
justification’[4] for imposing
less than life imprisonment, or they must induce the conclusion that the
prescribed sentence would in the particular
case be unjust or disproportionate
to the crime, the offender and the legitimate needs of
society.[5]
[6] It is common cause
that the learned Judge took the wrong view of what the expression
‘substantial and compelling circumstances’
means and it is also
common cause that such circumstances did in fact exist in the case of the first
appellant (what they were I
shall indicate in due course). It is in contention
whether such circumstances were present in the case of the other appellants.
[7] The first appellant has been in prison since conviction on 27 November
2000 and over three years have passed since the imposition
of sentence on 26
January 2001. This being so, counsel for the first appellant, while contending
that the appropriate punishment
at trial would have been a non-custodial
sentence, accepted that the sentence to be substituted now, with imprisonment
actually having
been served, would be unrealistic were it to be wholly Non
custodial imprisonment. It was therefore submitted that the substituted
sentence
be one of such form and duration that immediate release would follow on this
court’s judgment. For the State it was
submitted that a sentence of the
order of 20 years’ imprisonment was required in the case of the first
appellant and that the
life sentences of the other appellants had to
stand.
[8] It is convenient to deal with the appellants in their numerical
sequence.
[9] In a written explanation accompanying her plea of guilty the
first appellant tendered a version of the salient facts. She also
recounted the
facts to Ms Kailash Bhana and Ms Lisa Vetten, employees of the Centre for the
Study of Violence and Reconciliation
in Johannesburg and attached to its Gender
Unit, the former as social worker, the latter as Gender Co-ordinator. They have
acquired
by research, by study and by dealing with cases of abused women
themselves, knowledge and expertise regarding victims who kill their
abusers.
[10] The first appellant did not testify but called Ms Bhana and Ms
Vetten to give expert and factual evidence on her behalf. What
they were told by
the first appellant they recorded in written reports which they confirmed in
evidence. That evidence was to the
effect (I shall come to it in more detail
later) that on the facts presented to them they considered that the first
appellant’s
reaction to the deceased’s abuse, including her decision
to have him killed, fitted a well-known pattern of behaviour of abused
intimate
partners. In accordance with that pattern the mind of the abused partner is
eventually so overborne by maltreatment that
no realistic avenue of escape
suggests itself other than homicide.
[11] In argument on appeal counsel for
the State (who did not appear at the trial) criticised the evidence as
one-sided, and as flawed
by certain conflicts between the plea explanation and
what the first appellant apparently told the two experts. That argument cannot
prevail. At the trial counsel for the State confirmed, without qualification,
the following statement by counsel for the first appellant
(who did not appear
on appeal):
‘I am informed by my learned friend for the State that the
State admits the contents of those two reports and that the State
has therefore
indicated that it will not be necessary to call any of the other witnesses
regarding the facts as set out in those
reports, those are accepted by the
State. I had intended calling various neighbours and the accused herself but
those facts are admitted.’
[12] In the light of that statement the
facts before the trial court were those recounted in the reports and confirmed
in evidence,
and it was on those facts that the existence of substantial and
compelling circumstances, and the eventual sentence, had to be determined.
It is
therefore not now open to the State to advance the sort of credibility arguments
it sought to raise. Nor is the alleged one-sidedness,
as an intended point of
criticism, of any assistance to the State. It is always open to the prosecution
where, because of a guilty
plea, there is no evidence on record as regards the
facts relative to the offence, and the defence does not propose to call the
accused,
to indicate unmistakably that facts in expert reports are accepted
purely for the purposes of assessing the expert’s opinion
and not as
evidence of the true facts. It will then be for the defence to reconsider
calling the accused to provide those facts and
its failure to do so may well be
at the accused’s peril. If the accused is called after all, the
prosecution can then test
the defence version under cross-examination. In the
present case the record indicates that the first appellant was available to be
called and that the State accepted that that was unnecessary. The fact that she
was the sole source of the relevant facts is in the
circumstances neither here
nor there. It need only be added that it was open to the State to consult with
the neighbours and other
persons interviewed by the two experts and call them as
witnesses if they advanced the prosecution case on sentence.
[13] The crucial
question, which the trial Judge considered could not be answered in favour of
the first appellant, was why she decided
on murder rather than to leave the
deceased. The answer, according to the witnesses, lies in the cumulative impact
of her whole personal
history.
[14] Summarising as briefly as is appropriate,
the evidence in this regard is as follows. Her sense of self-esteem was
distorted in
childhood by a mother who did not want a girl and rejected her and
abused her, verbally and emotionally, for example, accusing her
when a six year
old of ‘whoring’ with her father and denying her meaningful contact
with him. This predisposed the appellant
to need a father figure and, at the
same time, as a coping mechanism, to repress rather than express anger, and also
to tend to tolerate
abuse. At the age of sixteen her mother left her to fend for
herself.
[15] In her twenties she married and had four children. Her husband
abused her physically and emotionally. He often left her and the
children
destitute and threatened to kill her. After five years she left him. She placed
the children in foster care and obtained
work as a housekeeper, but for board
and lodging only. In due course she was on the point of taking up paid work when
an acquaintance
referred her to the deceased who offered to pay her more to be
his housekeeper. She agreed.
[16] He lived on a farm in the Rustenburg area.
He was about 20 years her senior. She lived in the staff quarters at first but
after
three months he said that he was in love with her and wanted her to move
into the main house with him, which she did. From then onwards
they lived
together. Early on the deceased was like a father to her and she came to love
him.
[17] However, the relationship deteriorated and became abusive. He
coerced and intimidated her in order to control her emotionally,
physically and
economically. He referred to her as his child and she had to call him ‘Mr
Parkman’. She accepted the role
of a child in response to his requests and
needs, and she reacted as a child in receiving punishment. He became
increasingly abusive
and eventually violent. This was aggravated by his tendency
to drink to excess. When drunk he was more abusive and violent than
usual.
[18] He treated her as an unpaid servant. He gave her daily tasks
including heavy manual work. If she failed to complete them he punished
her.
This included locking her in a room without food, sometimes for up to two weeks
at a time. She survived because a farm labourer
smuggled food to
her.
[19] When her children came to visit her on one occasion the deceased
was harshly critical of one of them. This so upset them all
that the foster
authorities denied further visits. In any event he instructed her not to have
any further contact with her children
and she resorted to telephoning them. The
deceased learnt of this from the details of his telephone accounts and hit her.
This was
where the history of physical assault began.
[20] With the passage
of time the assaults became more violent. Once he came home drunk and demanded
that she pour him a drink. She
asked him to wait as she was making herself a cup
of tea. He grabbed her and hit her with his fist, breaking her nose. He then
locked
her in her room. Neighbours helped her to escape down a stepladder. On
another occasion he tried to stab her with a knife. When she
tried to ward him
off he broke one of her fingers. Once he threatened her with a
firearm.
[21] When he injured her he rarely allowed her to obtain medical
help. When he did, he would speak for her and threaten her not to
divulge the
true cause of her injuries.
[22] The deceased made excessive sexual demands
and insisted that the appellant sleep naked so that her bedclothes would not
impede
him when he wanted intercourse. At times he throttled her during
intercourse so that her eyes bulged and she could not breathe, claiming
that he
did so because she liked this deviation. He throttled her so severely on one
occasion that she had to undergo corrective
throat surgery.
[23] The
appellant was subjected to constant criticism and demeaning verbal abuse,
sometimes in public. Often it was sexually degrading.
The deceased also made
absurd allegations of infidelity. He tried to isolate her from contact with
other people and made her totally
financially dependent on him.
[24] The
appellant left the deceased on at least four occasions. He traced her each time
and by begging forgiveness persuaded her
to return. His tactic was to be
contrite and apologetic, promising change and material advantages. He would
sometimes cry and once
he got down on to his knees. The impression was instilled
in her that she would never succeed in getting away from him.
[25] The
appellant called for police assistance on three occasions. Only once did they
arrive. They said the deceased was drunk and
that the appellant should get him
to sober up.
[26] The events leading up to the murder and their influence on
the appellant’s state of mind were set out as follows in Ms
Bhana’s
report:
‘This point [at which the abuse becomes intolerable] for the
accused was two weeks before the murder. Mr Parkman had assembled
approximately
15 of the black labourers and called the accused outside. When she did so he
told her to remove her underwear and show
her genitals to the men. The accused
refused to do this and the men disbanded while she walked back into the house.
Mr Parkman shouted
verbal abuse at her. “... you are so useless that not
even blacks want to [have sex with] you.” The accused responded
that she
did not want anyone to have sex with her, and thought that Mr. Parkman had not
heard this.
That evening, Mr Parkman repeated what the accused had said and
said he would “show her”. He then proceeded to rape her.
That same
evening, Mr Parkman threatened to hire black men to rape the accused if she ever
tried to leave him again. This was a crucial
turning point as the accused
cognitively appraised the threat as real, especially given the events of the
day. There are a few factors
which led the accused to appraise the threat as a
real danger to her physical and psychological integrity. Firstly, the timing of
the threat led the accused to appraise the situation as intolerable and
dangerous as she had been asked to display her genitals to
a group of men only a
few days prior. Second, following her refusal to comply Mr Parkman had raped her
and this has been recognised
within literature as the most extreme violation. It
is possible the accused’s state of mind following this event led her to
appraise the situation as one in which Mr Parkman had made and acted on a
threat, making the threat to have her raped an imminent
threat to her physical
and psychological integrity. Thirdly, Mr Parkman repeatedly threatened her with
the rape.
Her fear of Mr Parkman and that of the rape event compounded the
accused’s fear of the rape threat. The accused began to evidence
the
emotions and behaviour consistent with the Rape Trauma Syndrome viz.,
feeling dirty and violated, and fearful. She began to demonstrate post-traumatic
reactions, viz. hyper vigilance, avoidance and sleep disturbances. This
resulted in behavioural changes, namely sleep disturbances, where she would
wake
up in the early hours of the morning. Mr Parkman would wake up on a few
occasions and found her awake and insisted that she
was crazy. At that stage,
the accused was responsible for selling fruit to the black customers. Every time
she saw a black customer
at the gate she began to fear that this was the man or
men hired to rape her and wished to avoid situations in which she would have
to
interact with black men. Her fear escalated tremendously and she felt incredibly
unsafe. It is important to note that the accused
at this stage still did not
express her anger at Mr Parkman and this part of her was split off.
Two days
after this one of the employees (Richmond) approached her with a suggestion to
obtain muti from a Sangoma to sprinkle over
Mr Parkman’s food to make him
a better person. The muti was supposed to take effect in a week’s time.
The accused at
this stage was desperate to change her situation and was willing
to try the remedy. Within a week however there had been no change,
which led to
the accused to appraise the situation as becoming worse, even though there was
no objective change.
The accused’s perception that she had no viable
option to stop the violence and abuse was shaped by her prior experience of
the
cycle of violence. She genuinely believed that leaving Mr Parkman was not an
option, as he would find her because she thought
he had someone else monitoring
her movements. The split off part that harboured the inhibited anger that had
never been expressed,
together with the complex interplay of contextual factors
discussed above led to her action of wanting Mr Parkman murdered as the
finality
of death, in her mind, was the only way of escaping him and getting her life
back.’
[27] The murder was committed on the evening of 4 February
1999. The deceased was lying drunk on a couch when the second and third
appellants arrived. They had been introduced to the first appellant by the
deceased’s domestic worker. According to her plea
statement they had said
they would kill the deceased for R10 000. They strangled him while she waited in
her room. She paid them
R5 700, saying it was all she had. They said they would
take the deceased’s car as well. They carried his body to the car.
She
opened the boot for them and they drove away.
[28] What the established facts
did not show was where the first appellant obtained that money. If she was
totally financially dependent
on the deceased (and this fact was agreed) the
inference must be that it was his money. How easily she obtained it and whether
there
was more, and if there was, whether taking it would have enabled her
financially to achieve, and maintain, effective distance between
him and herself
are questions that were not explored. Nor does one know whether she even
considered that. The probable result of
escaping with his money, however, would
have been a theft charge and police pursuit. She had no effective family
support. She had
an ageing grandmother (since deceased) and she last saw her
father when she was a teenager.
[29] In her report Ms Vetten said that the
forms of abuse suffered by the first appellant and her psychological and
behavioural responses
were consistent with case studies in this country and
overseas. In her view the appellant had eventually come to feel trapped and
isolated. Her prior attempts to leave had not secured her release and the abuse,
far from diminishing, had got worse. The fact that
she did not carry out the
killing herself was also consistent with the case studies. The witness said:
‘The pattern of coercion and control to which she was subjected appears to have extended to every aspect of the existence, resulting in her entrapment within the relationship. The effects of the abuse upon Ms Ferreira were ultimately nothing short of disastrous.’
She concluded:
‘In common with other abused women I have worked
with who used third parties to kill their abusive partners, Ms Ferreira’s
decision was based on her personal inability to use physical violence against
the deceased. Being personally unable to defend herself
against Mr Parkman, she
turned to others. The decision to kill Mr Parkman appears to have been a
desperate act of self-preservation
aimed at maintaining what little physical and
psychological integrity Ms Ferreira felt she still
possessed.’
[30] The evidence of both witnesses was supported by
references they made to international literature comprising research and expert
opinion on the frequency and consequences of extensive abuse of female domestic
partners. Their expertise and objectivity were not
questioned in
cross-examination or by the court.
[31] The learned trial Judge, as his
questions to the witnesses and his judgment on sentence reveal, did not accept
that the first
appellant was unable to leave the deceased and by that simple
expedient put an end to the abuse. He considered the witnesses’
evidence
unconvincing and obviously held it against the first appellant that she had
elected not to testify. It was aggravating in
his view that the murder was a
carefully planned and premeditated contract killing.
[32] There is no
substance in the criticism that the first appellant did not testify. As I have
already indicated, her trial counsel’s
statement, quoted above, which was
confirmed by the counsel for the state, made it abundantly clear that the
prosecution accepted
the facts relayed by the first appellant to the two
witnesses and recorded in their reports and that it was unnecessary for her in
those circumstances to testify.
[33] As to the contract killing aspect, this
is unquestionably a feature that in reported cases has been regarded as a
severely aggravating
circumstance. The moral blameworthiness of the procurer,
however, must depend on the motive and subjective state of mind with which
a
contract killer is engaged. This is not a case where the first appellant’s
motive was anything other than to end the relationship
so as to preserve her
bodily integrity. I shall revert to that. The point is, therefore, that the
contract must be assessed in the
light of each case’s particular facts.
This was not a killing, from her point of view, perpetrated in the heat of, or
very
shortly after, the grossly abusive events of the day of the rape but
whether that is material is a question to which I shall also
return.
[34] The
learned Judge’s view that the first appellant could simply have walked
away from the relationship can be understood
in one of two ways. Either he did
not accept the witnesses’ expertise or he thought that they were
unconvincing because the
facts did not support them.
[35] I have difficulty
in either event with the learned Judge’s conclusion. If the witnesses in
this case spoke with acceptable
authority on the subject of abused women and the
reason why they sometimes kill their abusers (and, as I have said, neither the
facts
nor their expertise were in dispute), they conveyed, at the same time, the
explanation why the abused woman, subjectively, feels
unable to escape by any
other route than by homicide. A proper analysis and understanding of the
evidence given in this case shows,
in my view, that that is indeed what the
first appellant, subjectively, did feel and that what she experienced and
eventually did,
conformed, as regards a victim’s behaviour in response to
grave abuse, to a pattern which has been documented and written about
scientifically, legally and judicially in the major English-speaking
jurisdictions around the world.
[36] Counsel for the first appellant said
that for the purposes of the present case it was unnecessary to review the
international
scientific and legal literature; it was wholly adequate to decide
the matter on the evidence of Ms Bhana and Ms Vetten, supported,
as their views
were, by reference to the international works they cited.
[37] I agree with
that approach and would merely say this. There is an established body of
research which has given rise to internationally
published books and articles on
the effects of partner abuse.[6] The
foundational work which pioneered that study was by a clinical psychologist in
the United States of America, Dr Lenore E Walker,
who propounded a theory called
‘The Cycle Theory of
Violence.’[7] Her work has been
referred to in leading cases inter alia in Canada and Australia dealing
with the evidential question of the admissibility and cogency of expert evidence
on the subject of
woman abuse in the context of
self-defence.[8] The writings and the
judgments in that regard are also, of course, relevant where abuse is not the
kernel of a self-defence plea
but of a plea in mitigation of
sentence.
[38] What has to borne in mind in each case, however, as remarked
by Wilson J in Lavallee [9] is
that abused women may well kill their partners other than in self-defence and
that the issue in each case is not whether the accused
is an abused woman but
whether the killing was objectively justifiable in self-defence. I would add: or
subjectively seen as justifiable
in mitigation of sentence. In Osland a
similar point was made where it was said by Kirby J
[10] that the question is whether
the evidence in each case establishes that the abuse victim is suffering from
symptoms or characteristics
relevant to the legal rules applicable to that
case.
[39] The evidence shows that on the day that the deceased raped the
first appellant she was earlier subjected to intolerable degradation
before a
group of assembled labourers. Added to the fact of the rape there was the threat
to have her raped by black men. (The crude
utterances of the deceased, and the
first appellant’s reaction in that regard, point up the stark racial and
cultural divides
which permeated their social attitudes, all of which is
discomforting to read and recount but crucial to an understanding of her
subjective state of mind.) The deceased made that threat repeatedly. What is
most important is that he threatened to implement it
if she ever left him again.
Given her personal history and the pass to which her life had come, the reason
for killing rather than
leaving was adequately established by the evidence. She
felt exposed to that risk at the time when the killing occurred. What the
deceased’s threats amounted to was that she would be raped if she left and
could, at any time the mood took him, be raped again
if she stayed. Persistent
abuse of an order she had earlier been able to live with had become abuse of a
degree and depravity it
was not possible to live with.
[40] Her decision to
kill and to hire others for that purpose is explained by the expert witnesses as
fully in keeping with what
experience and research has shown that abused women
do. It is something which has to be judicially evaluated not from a male
perspective
or an objective perspective but by the court’s placing itself
as far as it can in the position of the woman concerned, with
a fully detailed
account of the abusive relationship and the assistance of expert evidence such
as that given here. Only by judging
the case on that basis can the
offender’s equality right under s 9(1) of the Constitution be given proper
effect. It means
treating an abused woman accused with due regard for gender
difference in order to achieve equality of judicial
treatment.[11] ‘Sexual
violence and the threat of sexual violence goes to the core of women’s
subordination in society. It is the single
greatest threat to the
self-determination of South African
women.’[12] It also,
therefore, means having regard to an abused woman accused’s constitutional
rights to dignity, freedom from violence
and bodily integrity that the abuser
has infringed.[13]
[41] It is
also necessary, it need hardly be said, that in the weighing up process due
weight be accorded to the fact that the offender
has taken the extreme step of
depriving the abuser of his constitutional right to life.
[42] For the first
appellant, counsel sought to emphasise the constitutional duty which the State
has to protect its citizens from
crime and to protect their fundamental rights.
It was argued that the State and society had failed the first appellant and that
this
was a factor to be taken into account in determining her moral
blameworthiness. The duty referred to, of course, exists but the submission
made
can have scant weight in this case. The police were called three times and came
once. The full extent of their knowledge of
the appellant’s plight was not
proved. Moreover she did not seek legal advice much less try to interdict the
deceased. If the
neighbours and any others who knew of her situation took no
action to help her this is not an omission attributable to the State
but to
ordinary human nature’s very prevalent disinclination to become involved
in another’s problems.
[43] Nevertheless, on the facts, and by reason
of all the considerations discussed above, I conclude that there are substantial
and
compelling circumstances which would make the prescribed sentence unjust in
the case of the first appellant. The sentence of life
imprisonment imposed upon
her must therefore be set aside and another sentence substituted in its
place.
[44] The criterion for determining moral blameworthiness, it is said,
is subjective.[14] This means that
one must look solely at what an accused believed and intended when deciding for
purposes of sentence whether moral
blameworthiness has been reduced.
(Substantial and compelling circumstances would seem self-evidently to reduce
it.) However, the
taxing question is whether degrees of reduction must be
determined in order to arrive at an appropriate sentence in comparable cases
and
whether that is an objective or subjective exercise or has elements of both
subjectivity and objectivity. Take these examples:
A, B and C are all abuse
victims guilty of the murder of their respective abusive partners in the
subjective belief that there was
no alternative way to protect their rights to
bodily integrity and freedom from violence. In each case there is a long history
of
substantially similar abuse and a triggering event which instilled that
belief. A committed the offence a day later, by herself.
B committed it one week
later, by herself. C committed it two weeks later, by hired contract killers.
There are objectively viewed,
distinctions between their respective
circumstances but do they constitute material differences for purposes of
sentence? Say A is
less resolute, or more decisive or possibly acts more
precipitately. Say B can, on the day, just summon the resolve to do it by
herself.
Say C is too physically and mentally frail ever to do it by herself.
Can one ignore those subjective differences and say that C is
more morally
blameworthy than the others because she had more time to reflect and appears to
have shown callousness by getting others
to commit the crime?
[45] It seems
to me that the true question to be answered is whether the threat from which
each sought to escape was still, subjectively,
perceived to be a real and
present danger (albeit not imminent enough to escape criminal liability
altogether) at the time of the
offence. If the answer is in the affirmative then
I think it is extremely difficult to conclude that the sentences of A, B and C
should differ. In each case the homicide committed will have been not too far
across the borderline between lawful and unlawful conduct.
If there were good
reason to impose a non-custodial sentence on A (and I think there would be such
reason) there would be, I think,
in the case of C as well, who approximates to
the first appellant. I say so because the threats she feared increasingly
pervaded
her thinking in the two weeks before the murder and in the interim she
tried an alternative expedient, albeit that it was, objectively,
destined to be
ineffective.
[46] The first appellant has, on the evidence, never presented a
threat to society or needed the imposition of a correctional sentence
regime. I
think that in all the circumstances an imprisonment sentence of six years would
have been appropriate on trial, suspended
on conditions. Such conditions could
have pertained, for example, to appropriate forms of community service. However
subsequent events
have removed the need to formulate such sentence in any detail
because the first appellant has by now served a sentence of direct
imprisonment
for over three years. All that can be done, therefore, is to order that the
substitute sentence now imposed is six years’
imprisonment, that portion
of which has not been served, to be suspended.
[47] Turning to the cases of
the second and third appellants, all that is on record are their respective plea
explanations and their
personal circumstances as outlined by their counsel. They
did not testify.
[48] The second appellant was 22 years of age at the time of
the murder. No previous convictions were proved against him. He left
school
after standard 2. The relevant part of his plea explanation reads as
follows:
‘Gedurende Januarie 1999 het Dora Modise my pa se woning te
Spruitfontein besoek en gemeld dat ’n sekere dame haar man
wil laat
doodmaak. Dora, wat vir hierdie dame as bediende gewerk het, het ook gemeld dat
die dame die moordenaar van haar man goed
sou betaal. Ek het toe aan Dora gemeld
dat ek eers met hierdie dame wil gesels.
Dora het later teruggekeer en gemeld
dat die dame (later aan my bekend as Anieta Ferreira, beskuldigde 1 in hierdie
saak) my wil sien.
Op Dinsdag, 2 Februarie 1999, het ek en my broer, George
Koesyn (beskuldigde 3 in hierdie saak), die woning van Anieta Ferreira besoek.
Laasgenoemde het bevestig wat Dora Modise my vroeër meegedeel het en gemeld
dat ons R90 000,00 sou ontvang as ons haar man sou
doodmaak. Anieta Ferreira het
ook aan my ’n vuurwapen gegee sodat ek die man kon skiet.’
Op
Woensdag 3 Februarie 1999, gedurende die oggend, het Dora by my vader se woning
aangekom en gesê dat Anieta Ferreira haar
vuurwapen soek, Ek het toe die
vuurwapen vir Dora gegee. Ek was nie van plan om die vuurwapen te gebruik nie
aangesien ek nie weet
hoe om ’n vuurwapen te hanteer nie.
Later die
middag, ongeveer 15:00, het Dora weer daar aangekom en gemeld dat Anieta
Ferreira beskuldigde 1, vir my en my broer wil
sien. Ons is gevolglik die aand
omstreeks 18:00 na beskuldigde 1 se woning. Op beskuldigde 1 se versoek het ons
in ’n klein
kamertjie op die boonste verdieping weggekruip. Beskuldigde 1
het later na ons toe gekom en gemeld dat ons die man moet “uitlos”,
want hy is nugter. Ek en my broer sê toe dat ons die volgende dag sal
terugkom en ons is toe weer na my vader se woning toe
waar ons geslaap
het.
Op Donderdag 4 Februarie 1999, omstreeks 19:00 die aand het ons weer by
die betrokke woning gearriveer. Beskuldigde 1 het ons deur
die venster gesien en
gemeld dat ons eers moet wag sodat sy die honde kan toemaak. Na sy dit gedoen
het, is ek en my broer in die
huis in. Anieta Ferreira het ons toe meegedeel dat
sy “klaar is met die man”. Sy het oogdruppels in sy bier gegooi. Sy
het gemeld dat ons nou die man kan doodmaak en as ons klaar is, sal sy ons
betaal. Ons moet ook die man met die kar wegneem en ontslae
raak van hom.
Ek
en my broer het toe die man, wat in die sitkamer op die rusbank aan die slap
was, doodgemaak. Ek het hom eers met ’n skoenveter
van my tekkie verwurg
om sy nek. Toe die man wakker word, het ek en my broer, George, hom met ons
hande gewurg totdat hy dood is.
Ek erken dus dat ek die oorledene vermoor het
deur hom te verwurg en die oorledene was later aan my bekend as Cyril Parkman.
Tydens
die moord was beskuldigde 1 ook in die sitkamer gewees en het na ons
gekyk.
Hierna is ek, my broer en beskuldigde 1 na die oorlede se slaapkamer
waar beskuldigde 1 ’n kluis oopgesluit het en geld daaruit
gehaal het. Sy
het die geld vir ons gegee en gemeld dat ons op 8 Februarie 1999 moet terugkom
vir die ander geld.
Ek en my broer het daarna die liggaam van die oorlede in
die kattebak van die motor, ’n blou Nissan Sentra, gelaai. Beskuldigde
1
het gemeld dat ons die motor moet neem en die man moet gaan weggooi. Ek het die
motor bestuur. Later het ons ’n ongeluk gemaak
met die motor en dit net
daar gelos. Ons is na ons moeder se woning waar ons toe oornag het.
Die
volgende dag is ons (ek en my broer) na Hartbeesfontein waar ons moeder en ouma
gebly het. Op 8 Februarie 1999 is ons toe weer
na beskuldigde 1 se woning waar
ons ene Bennet aangetref het. Die het gemeld dat beskuldigde 1 gearresteer is
vir moord en dat die
polisie nog twee verdagtes soek. Ons is toe weer terug na
ons pa se woning en die volgende dag na Hartbeesfontein waar ons toe ook
later
gearresteer is.
Wat die moord betref, wil ek verder meld dat ek tydens die
daad werkloos was en dat die belofte van ’n groot bedrag geld vir
my baie
aanloklik was.’
[49] The third appellant was 20 at the relevant
time. He comes from a poor and broken home. He said the following in his plea
statement:
‘... No 2 killed the deceased, Cyril Parkman, by strangling
him with [his] hands. I participated in the murder of the deceased,
Cyril
Parkman because I conspired and took part in the endeavour to kill him.
After
killing of the deceased, Cyril Parkman, I together with accused no 1 and no 2
put the deceased inside a boot of a car. I and
accused no 2 drove away with the
car (deceased inside the boot) whereon the car we were driving collided with a
tree.
I had intended killing the deceased Cyril Parkman because I was
promised money by accused no 1 ... I am remorseful about the killing
of the
deceased ... I was enticed solely by money promised by accused no 1 vis-a-vis
the negative economic circumstances I live under.’
[50] In passing
it should be said that where the three appellants’ plea explanations
conflict the version of one cannot be used
against either of the others. It is
trite law that a contrary version by a co-accused can only be used against the
other if the former
gives evidence in the case and confirms that
version.
[51] It is more than likely that, coming from impoverished
backgrounds and being essentially uneducated, the second and third appellants
were irresistibly attracted by the promise of what to them would have been an
enormous sum of money. However it will almost always
be persons in those
straitened circumstances who are sought out to kill for money even if, like the
two appellants, they are not
yet members of the criminal class.
[52] Nothing on record suggests that the second and third appellants knew
anything of the first appellant’s motive or the history
of her
relationship with the deceased. The sum total of the mitigating features in
their instance therefore amounts to their personal
circumstances : their
comparative youth, their having no previous convictions and their humble
backgrounds. There was nothing mitigating
in their case in the actual commission
of the offence such as, for example, intoxication, intimidation or unjust
treatment by the
deceased.
[56] Having regard to the nature of the crime they
committed – killing for money – and the limited extent of the
mitigating
factors referred to, the condemnation expressed in previous cases of
contract killing applies unrestrictedly to them. There are,
on the Malgas
test, no substantial and compelling circumstances which justify a lesser
sentence in their cases.
[54] If the question should arise in the minds of
those not familiar with the administration of the criminal law how it can be
that
for the same crime one offender is treated so differently from the others,
the answer is that the imposition of sentence is, broadly
speaking, heavily
influenced by each offender’s motive and intention. If, for example, A is
profoundly provoked by B and fatally
stabs him and C observes this and for no
mitigating reason joins in and also fatally stabs B, one would no doubt find a
similar wide
disparity between the respective punishments imposed on A and C.
And if, in the same example, A were of unsound mind at the time,
he would very
conceivably not be criminally liable at all while C could qualify for the
extreme penalty.
[55] In conclusion I would remark as regards the result of
the case against the first appellant, that it is based on the facts admitted
by
the prosecution, and on the expert opinions, that are peculiar to this matter.
It aims to set no sentencing norm. What was called
in the Osland case
[15] ‘unsanctioned
homicide’, if it involves intentionally and unlawfully depriving another
of the right to life, remains
murder; it remains the single most serious
criminal invasion of that person’s constitutional rights. Eligibility for
a much
ameliorated sentence for committing that offence will, in all cases,
including those involving violation of the accused’s own
constitutional
rights, essentially depend on the facts admitted or proved in each individual
case. That is a self-evident proposition
but it bears emphasis. The scourge of
domestic violence [16] must be dealt
with effectively by the State and society, and, if necessary by the courts. It
would be contrary to the values of the
Constitution to hold that that scourge
provides a licence to abused partners to take the law into their own hands in
the absence
of grounds for lawful self-defence.
[56] In the result the
following order is made:
1. The appeal of the first appellant is allowed and
the sentence of life imprisonment imposed on her is set aside. Substituted for
that sentence is the following:
Six years’ imprisonment commencing on
26 January 2001. That portion which has not yet been served as at the date of
this order
is suspended for three years on condition that the appellant is not
convicted of any offence involving the infliction of serious
bodily harm
committed in the period of suspension for which imprisonment without the option
of a fine is imposed.
2. The appeals of the second and third appellants are
dismissed.
__________________
CT HOWIE
PRESIDENT
SUPREME COURT OF
APPEAL
CONCURRED:
LEWIS JA
HEHER JA
VAN HEERDEN
JA
MARAIS JA:
[57] I agree with the judgment of Howie P in so far as it
relates to the second and third appellants. I am, with respect, unable to
agree
with it in so far as it relates to the first appellant.
[58] Domestic
tyranny in all its manifestations, psychological, economic, emotional and
physical, is nothing new. It has existed since
man and woman began to cohabit.
What is new is that those who are victims of domestic violence have become
readier to say so, society
has become more appreciative of their vulnerability,
more receptive of their complaints, and has come to recognise that it is an
evil
which cannot be tolerated and needs to be rooted out. To that end, additional
remedies have been evolved by the State. Civil
society, through the medium of
non-governmental organizations and other agencies, and with the help of the
media, has publicised
the prevalence of domestic abuse, provided succour and
moral and material support for those who have experienced or are experiencing
it, and ensured that it occupies the continuing attention of those in authority.
All of which is to the good. Doubtless, there is
yet more which can and should
be done.
[59] There may be some judges who are unaware of these problems and
of the feelings of desperation which the victims of such abuse
feel. But they
cannot be many. Exposure to the litany of domestic abuse in all its forms is the
lot of any lawyer who has been given
privileged access by clients in literally
hundreds of divorce cases to what goes on behind the closed doors of ostensibly
respectable
and law abiding households . And most judges, presiding as they have
in countless divorce courts, cases of ‘date rape’,
cases of domestic
violence culminating in serious bodily injury or death, and cases in which
interdicts against abusive domestic
behaviour are sought, are also no strangers
to these phenomena.
[60] We have been told by counsel for the appellant that
those of us who are men are not capable of stepping into the shoes of battered
women and of understanding the feelings of utter helplessness which they often
experience and what drives them to desperate measures
such as killing their
partners. If that contention is sound, judges (whether male or female) will have
to stop doing what they have
been doing for generations, namely, attempting as
best they can, to put themselves in the shoes of the persons who testify before
them, whether they be the witnesses, the litigants themselves, or, in a criminal
case, the accused. When assessing the credibility
of witnesses, the subjective
state of mind of an accused person, the honesty of a professed belief, or the
probability or improbability
of alleged conduct, courts have always had to take
into account such matters as age, gender, stage of development, level of
education,
state of health, life experience, temperament and personality of the
person concerned. The list is not exhaustive.
[61] The law reports abound
with cases in which recognition is given by judges to a subjective belief
alleged to have been held by
an accused person even although other persons who
might have claimed to have had such a belief would not have been believed. The
chief executive of a multi-national corporation who claims that he killed a
person because he genuinely thought that he was a ‘tokolosh’
out to
kill him is unlikely to be believed. An illiterate person
living in a remote
area of the country, unexposed to the trappings of modern life, unaware of
science, and by tradition deeply superstitious,
is likely to be believed. In
each case the court has to put itself into the shoes of the individual concerned
in assessing the truth
of the allegation. That is what the law requires to be
done and that is what is done. Imperfect the fit of the shoes may be but
one’s best effort must be made to stand in them.
[62] In the present
case it is common cause that ‘battered women’ often feel trapped in
a physically abusive relationship
from which they feel they cannot escape for
one or other reason and that in their despair, and in the belief that society
will not
help them, and that there is no other way out, they kill, or cause to
be killed, their partners. In principle, the enquiry at a trial
into whether the
accused did in fact genuinely have that belief is no different from the enquiry
which takes place in the type of
case in which the reason advanced for an
assault or killing of a parent by a son or daughter is claimed to be a
subjective belief
that he or she felt trapped financially, emotionally, or
psychologically by a domineering parent who reproached him or her daily
for a
lack of any talent or ability and whose claustrophobic effect upon the normal
development and fulfilment of his or her life
has condemned him or her to what
he or she regards as a non-life. Here again the assessment of the subjective
feelings of such a
person is a court’s common task.
[63] Counsel for
the appellant urged upon us that society had failed the first appellant in that
it gave her no other way out and
that she should be seen as the victim in the
case. I deal with the latter point first. That she was a victim of the
deceased’s
gross physical abuse of her and that she is fully deserving of
both sympathy for that and effective remedies for it is plain. That
she was also
a victim of society’s alleged failure to help her or provide her with
another way out is not. To that I shall
return. What is beyond dispute is that
the deceased was no less a victim. He was tried, convicted, sentenced to death
and caused
to be executed in a brutal and callous way by the appellant. No
options were given to him to enable him to escape his execution.
He was not
warned that he would suffer death or serious injury if he continued to molest
her. The assassins employed to murder him
could just as readily have been
employed to threaten to assault him or to actually assault him and warn him that
worse would happen
if he did not mend his ways. He was not a young man; his
eyesight was deteriorating markedly. He would hardly have been a match for
two
young men intent upon roughing him up sufficiently to instil in him real fear of
a return visit by them.
[64] As to society having failed the first appellant,
that is a grave and generalised charge which is, in my opinion, extravagantly
overstated. It is so that the police are often reluctant to act when complaints
about domestic violence are made but that tends to
happen when the nature of the
complaint does not, in their estimation, seem serious enough to warrant their
intervention in what
appears to them to be a domestic argument. That they may
often wrongly regard as not worthy of police intervention incidents which
constitute criminal offences such as common assault, is to be deprecated. But I
have yet to hear of the police refusing to act upon
an allegation of rape or
indecent assault of the kind which precipitated the first appellant’s
decision to have him murdered.
She was not married to the deceased and there
was, in my opinion, no reasonable ground for believing that the police would pay
no
attention to complaints of that kind. Indeed, there is no clear evidence that
she did entertain that belief.
[65] The fact of the matter is that she did
not, before deciding to have the deceased killed, give society a fair chance of
helping
her. She did not go to the police; she did not look to friends who had
been supportive of her for advice; she did not make use of
the services and
advice of either the Social Welfare Department or the well-publicised
non-governmental organizations which offer
assistance and advice to those who
suffer from this kind of abuse; she did not consult a lawyer or any of the legal
aid clinics which
exist. She was obviously not so traumatised that she was
incapable of rational and well-considered action. She carefully planned
the
death of the deceased. She set about locating assassins and found them. She
negotiated a fee with them. She facilitated their
entrance to the house while
the deceased was in a drunken stupor. She remained in the house during the
killing. She accompanied the
assassins to the deceased’s car and opened
the boot for them so that they could place the deceased’s body in it. She
had also attempted unsuccessfully to procure her domestic servant’s
‘boyfriend’ to shoot the deceased and provided
him with a firearm to
do it. All this at least two weeks after the last instance of abuse at his hands
had taken place. The juristic
form of her intention to kill was the most
offensive known to the law: a premeditated and deliberate desire to
kill.
[66] I accept, because it was admitted, that she believed she had no
choice but to kill the deceased. But that does not mean that
it was reasonable
of her to think so or that the manner of his despatch is irrelevant to the
question of an appropriate sentence.
Counsel for the appellant argued that the
reasonableness or otherwise of her belief was irrelevant to sentence. Equally
irrelevant,
so he argued, was the fact that she had planned the murder of the
deceased over a period of two weeks and instigated two other persons
to commit
the crime for reward. In my view, none of these submissions has any
merit.
[67] To say that a bona fide belief that it was necessary to murder a
person should be taken into account in mitigation of sentence
but that it was
objectively a grossly unreasonable belief should be entirely ignored is, in my
view, quite wrong. It is not, as counsel
contends, a neutral factor. Even if the
appellant had been convicted of only culpable homicide, the degree of her
culpability in
unreasonably concluding that she had no other choice would
obviously have had a bearing upon the assessment of her sentence. By what
process of reasoning does it become irrelevant when the verdict is one of
murder?
[68] Equally unacceptable is the submission that the premeditation
involved in this murder, the time which elapsed before it was accomplished,
and
the procurement of two others to participate in it for reward are neutral
factors. Those two men will spend much of the rest
of their lives in prison at
the taxpayers’ expense. She instigated their participation in the crime.
Had she not done so, that
would not have happened. One cannot assume that they
would have committed some other crime for which they would be incarcerated for
most of their lives. The public is fully entitled to feel outraged when
assassins are contracted to kill a human being in cold blood,
whatever the
motive of their employer might be.
[69] The more time she had to reflect, the
greater her moral obligation to explore other options and the more extensive the
opportunity
to avail herself of them. Here, I repeat, there was no explanation
from the first appellant as to why she found it necessary to incite
two other
persons to commit a cold-blooded murder for money. To say that her exploitation
of the poverty of two others and the enticement
of them to commit a murder which
would put them in jeopardy of arrest, conviction and lifelong imprisonment adds
nothing to her moral
guilt is, in my opinion, an insupportable proposition.
There were many ways in which she herself could have brought about his end.
She
was relatively young and able-bodied. She had access to a gun. The deceased was
often in a physically vulnerable state by reason
of intoxication. On the night
in question he was stuporose. She had succeeded in the past in adding a potion
to a beverage which
he drank. She was not so squeamish that she was unable to
bear to assist in dumping his body in the boot of his car.
[70] It is of
course so that the motives which prompt the hiring of contract killers may vary
from those which are undeserving of
any sympathy whatsoever to those which evoke
a great deal of sympathy. And these variations in motive are equally obviously
highly
relevant to the sentence to be imposed. But after all is said and done, a
contract killing for reward is involved. That is, I believe,
in the eyes of most
reasonable people, an abomination which is corrosive of the very foundations of
justice and its administration.
While there is clearly room for differentiation
of sentences in even contract killings because the degree of repugnancy of the
motive
in one case may be less than that in another, a court must face the fact
that, whatever the motive, a remedy which society rightly
regards as an
abomination has been unlawfully resorted to by the accused. If no greater
sanction for that than a non-custodial sentence
is said by this court to be an
appropriate response to a contract killing, I believe it will undermine public
confidence in the courts,
encourage a belief that those who instigate contract
killings will not necessarily be visited with incarceration, foster a perception
that, provided one’s motives are subjectively pure and no matter how
unreasonable and culpable one’s failure to explore
or make use of other or
less drastic options may be, society will not be greatly offended by one’s
engagement of killers to
do away with another human being. It is similar to the
kind of reasoning to which vigilante lynch mobs resort to excuse their actions:
a noble motive and a genuine lack of faith in the ability of the law to deal
effectively with the victim and protect the public from
his/her
violence.
[71] In my view, if there is a ‘pattern’ of behaviour
by women who feel driven to murder their partners to put an end
to domestic
violence then the remedy is not to tolerate it or visit it with a slap on the
wrist but to bring home to women that it
is not an answer that a civilised
society finds acceptable or undeserving of serious sanction. The answer is to
make women aware
of their rights and of their remedies, to insist that they use
them, to sensitise officialdom to their plight and compel responsiveness
to it.
It goes without saying that it is also the duty of courts to view domestic
violence in a most serious light and impose sufficiently
rigorous sentences upon
offenders to put paid to any perception that courts and the authorities are soft
on domestic violence. (I
may add that in an unreported judgment of Bosielo J in
State v Hoare in the Transvaal Provincial Division, delivered on 23 March
2001, reference was made by the court when sentencing the accused for
assisting
his mother to arrange a contract killing of her husband, to no less than three
other recent contract murders in which women
had hired assassins to kill their
husbands.)
[72] We live in a land in which the ethos of a constitutionally
entrenched right to life means that the continued existence of even
the most
psychopathic of serial killers has to be tolerated despite the daily threat to
the lives and limbs of wardens and other
prisoners that may pose. Yet we are
asked to say that the appellant, convicted of a coolly plotted murder of her
partner, a murder
accomplished by the hiring for reward of two assassins who
were then aided and abetted by her in their task by her giving them access
to
her stuporose partner and assisting them in disposing of the body, was deserving
of no more than a non-custodial sentence. No
matter how carefully explained the
reasons are for thinking that to be an appropriate sentence and no matter how
carefully distinctions
are drawn to explain the disparity between the fate of
the two assassins (life imprisonment) and the suggested fate of their employer
(a non-custodial sentence), I make bold to say that I believe that even the more
discerning members of the public will look at a
disparity of that order with
great unease. I cannot accept the submission.
[73] I should also record that
I cannot agree with the approach to the absence of evidence set out in para [28]
of the judgment of
Howie P. The onus of proof of mitigatory circumstances is
upon an accused. It was for the first appellant to explain where she got
the
money with which she paid the assassins. Speculation favourable to her in that
regard in the absence of any explanation from
her is, in my opinion, not
justified.
[74] Despite what I have said, it is still clear to me that the
deceased’s gross physical and psychological abuse of the first
appellant,
coupled with her clean record and other personal circumstances, did constitute
substantial and compelling circumstances
so that the imposition of a sentence of
life imprisonment was not mandatory. This court is therefore at large to impose
whatever
sentence it considers appropriate. Making full allowance for the
bestial treatment to which the appellant was subjected by the deceased
and her
subjective belief that ending his life was the only way out, I cannot bring
myself to concur in the notion that a wholly
suspended sentence of six years is
the sentence which the trial court should have imposed or that it is the
sentence which should
now be imposed. In my opinion, it trivialises the crime of
murder in general and contract killing in particular. In my view, nothing
less
than eight years’ imprisonment would be
appropriate.
_____________________
R M MARAIS
JUDGE OF APPEAL
[1] 2001 (3) SA 1222
(SCA).
[2] 2001 (3) SA 382 (CC)
paras 11 and 40.
[3] Paras 8 and
25C.
[4] Paras 18 and
25B.
[5] Paras 22 and
25I.
[6] See, too, South African
Criminal Law and Procedure Volume 13 ed by JM Burchell p
212
[7] Her first book was The
Battered Woman (Harper & Roll 1997) and in The Battered Woman
Syndrome (Springer, 1984) she summarised the Cycle Theory at
95-6.
[8] R v Lavallee
(1990) 1 SCR 852 [SCC] (Canada) (also reported at 55 C.C.C. (3d) 97) and
Osland v The Queen [1998] HCA 75 (10 December 1998)
(Australia).
[9] 55 C.C.C. (3d) 97
at 126.
[10] Para
160.
[11] Cf R v Malott
[1998] 1 SCR 123 (SCC) paras 38 and
40.
[12] Carmichele v
Minister of Safety and Security and Another (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) para
45.
[13] S v Chapman 1997
(3) SA 341 (SCA) 344J-345E; the Constitution, ss 10, 12(1)(c) and 12
(2).
[14] South African
Criminal Law and Procedure Volume 13 ed by JM Burchell p
219.
[15] Para
165.
[16] Van Eeden v Minister
of Safety and Security (Women’s Legal Centre Trust, as Amicus
Curiae) 2003 (1) SA 389 (SCA) paras 12, 13: S v Roberts 2000 (2)
SACR 522 para 20.
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