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Case no 11/91 E du P

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

SIKHUMBUZO LAWRENCE MVULENI Appellant
and
THE STATE Respondent

Coram: JOUBERT, KUMLEBEN et F H GROSSKOPF JJA

Heard: Delivered:

17 May 1991 29 May 1991

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JUDGMENT F H GROSSKOPF JA:
The appellant was convicted by SUTEJ J, sitting with assessors in the Eastern Cape Division, on two counts of murder, one count of theft and one count of attempted theft. The appellant appeals with leave of the Court a quo, but only against the finding that there were no extenuating circumstances in respect of the two murder charges, and against the death sentences which were imposed in respect of them.
Since the appellant's trail the Criminal Procedure Act 51 of 1977 has been amended by Act 107 of 1990. The mandatory imposition of the death sentence in a case where no extenuating circmstances have been proved, has fallen away. The trial Court (and on appeal this Court) now has to make a finding on the presence or absence of mitigating or aggravating factors. In the light of such finding, and with due regard to the main purposes of punishment, the Court

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has to decide whether the death sentence is the only proper sentence in the circumstances. The principles which are applicable have been laid down in a series of decisions in this Court and it is unnecessary to restate those principles. It is common cause that the appellant murdered Mr Slootmans ("the first deceased") and his wife, Mrs Slootmans ("the second deceased"), during the late afternoon of Thursday 1 June 1989. The first deceased, who was 65 years of age at the time of his death, was the owner of the A & B Service Station, a garage at Queenstown. The second deceased, who was 58 years of age, assisted the first deceased in the running of the garage business. It is not in dispute that the appellant bludgeoned both deceased to death in the workshop of the garage. He hit the first deceased several times over the head with a heavy iron bar, and perhaps also a hammer, thereby crushing his skull. Thereafter he made use of a big hammer to inflict similar head injuries on the second deceased. In determining the

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circumstances and events which led up to this brutal attack, the trial court had to rely mainly on the appellant's own version of the facts.
The appellant started working for the first deceased on Monday 22 May 1989, i.e. some ten days prior to the murders. The appellant had previously been employed as a taxi driver in Umtata, allegedly earning from R180 up to R310 per week. The appellant apparently assumed that the first deceased would be paying him a comparable weekly wage, but he never pertinently raised the question of his wages with the first respondent at the time of his employment. He was, however, not satisfied when he received only R70,85 at the end of the first week. Another cause of dissatisfaction on the part of the appellant was that he had to assist in the workshop and wash motor cylce engines, while he believed that he had actually been appointed as a driver. In short, the appellant was discontented with his working conditions and his wages.

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It is the appellant's evidence that he approached the first deceased on 31 May 1989 for the first time to complain about his wages and working conditions. It is his evidence that the first deceased became angry when he expressed dissatisfaction with his weekly wages, and when he objected to washing motor cycle engines the first deceased warned him that he was going too far. Against this background one would have expected the appellant to have considered terminating his employment. According to the evidence of the two petrol pump attendants who worked at that garage that is exactly what the appellant decided to do. They testified that during lunch-time on Thursday 1 June 1989 the appellant informed them that it was his last day at work and that he was leaving for Cape Town shortly. He told them that the reason why he was leaving was that he had to work as an assistant in the workshop while he had actually been employed as a driver. The appellant further mentioned to the one assistant, Danile Mrwebi, that his girl-friend was

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staying in Cape Town and that he intended to go and work there at the docks. According to Mrwebi the appellant actually made enquiries during lunch-time about the taxi fare to Cape Town. The only reasonable inference in my view is that the appellant had by then already made up his mind to leave. The appellant conceded that he had mentioned to Mrwebi that his girl-friend was in Cape Town, but he denied that he had told the two petrol pump attendants anything more than that. The trial Court accepted the evidence of the two attendants in preference to that of the appellant, and I respectfully agree with that finding.

The appellant returned after lunch on that Thursday to work in the workshop as usual. According to his evidence he did not broach the subject of his unsatisfactory working conditions or his low wages again that afternoon. In view of his prior decision to leave, there would indeed have been no reason to discuss these problems any further. On the appellant's version there was also no mention made of his

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decision to terminate his employment. There appears to have
been no reason, therefore, why the first deceased would
unexpectedly have insulted the appellant, but that is what
happened according to the appellant. His evidence is that
while they were working on a motor cycle in the workshop late
that afternoon, the first deceased asked him out of the blue -

"Hey, Lawrence, why are you trying to be wise, you bloody fucking Kaffir?"

I find it strange that the first deceased would have used
such insulting language unexpectedly and without any
provocation, but I cannot say that the appellant's version is
not reasonably possibly true. It is the appellant's evidence
that he objected to being called a "Kaffir". He regarded it
as an insult and he says that he was provoked by that remark.
According to the appellant he then made a similar insulting
remark about the first deceased, whereupon the first deceased

tried to hit him. The appellant's evidence is that a big
hammer was close to hand. He picked it up and started

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hitting the first deceased over the head with it. The appellant's allegation that he used only the hammer is untruthful inasmuch as it was proved that at least some of the first deceased's head injuries had been caused by the heavy iron bar which was found blood-stained and lying next to the body of the first deceased. It is common cause that that particular iron bar was normally used to secure the door on the inside of the passage. The appellant, however, was adamant that he had not used that iron bar to kill the first deceased, but only the big hammer.
It is the appellant's evidence that he was shocked when he realised what he had done. He felt sorry for the first deceased and very bad about what had happened. This is completely refuted by his subsequent conduct. The appellant thereafter lured the second deceased into the workshop to murder her as well. For no apparent reason he hit this unsuspecting and unarmed elderly woman over the head with the big heavy hammer and crushed her skull. It was submitted

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on behalf of the appellant that his state of agitation persisted over the course of both murders. This assertion is similarly contradicted by what he thereafter did.
Shortly before five o'clock that Thursday afternoon Mrwebi noticed that the appellant was closing the glass door leading into the showroom. The appellant thereupon asked the two petrol pump attendants to come inside and assist him. He informed them that he had killed both the deceased and he asked the attendants to help him collect the money. He suggested that all three of them could then drive off in the first deceased's BMW motor car. However, they refused to assist him and Mrwebi asked a passer-by to call the police. The police arrived shortly thereafter and arrested the appellant as he was about to leave the premises in the BMW. The police later found R117,25 in the pockets of appellant's overall and windbreaker. The appellant admitted that he had taken the car keys and the money, but he explained that he had done so in order to drive to the police

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station to tell them what had happened, and to give them the money for safe-keeping.
The Court a quo came to the conclusion that there was insufficient evidence to find that the appellant had killed the two deceased with the intent to rob them, but on the other hand the Court rejected the appellant's explanation in connection with the taking of the money and the keys. The appellant was accordingly found guilty of theft of the money and attempted theft of the motor car. In my view these convictions have some bearing on the sentences on the two murder charges. It certainly would have been a further aggravating feature if the murders were found to have been committed with the intention to rob. On the other hand, the fact that the appellant saw fit to steal the money and attempted to steal the motor car immediately after committing these attrocious murders, reveals something of the character of the appellant. In my judgment this conduct of the appellant, in itself, is an aggravating feature.

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After the appellant had been convicted in the Court a quo his counsel led the evidence of a clinical psychologist, Dr Brooke, in order to prove that there were extenuating circumstances. The Court a quo found that the evidence of Dr Brooke was of a speculative nature and that it failed to establish any extenuating circumstances. Counsel for the appellant urged us to accept the evidence of Dr Brooke and to find as a reasonable possibility that the appellant had "significant brain damage" as a result of a head injury sustained in a motor vehicle collision in 1974; that such brain damage was causing "an inability to deal with conflict or confrontation"; and that the brain damage is likely to have been "a significant contributing factor" as far as his murderous behaviour was concerned.
It appears from the record that the magistrate of Queenstown referred the appellant for observation in terms of the provisions of section 79 of Act 51 of 1977 to the Valkenberg Hospital in Cape Town. The joint report of the

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two psychiatrists who examined the appellant at Valkenberg ("the Valkenberg report") sets out that the appellant "had the capacity to appreciate the wrongfulness of his actions at the time of the alleged offence period and his ability to act accordingly was not impaired by mental illness or defect". The Valkenberg report mentions the fact that the enquiry included an assessment by a clinical psychologist. It further appears from the Valkenberg report that clinical tests showed no signs of any brain damage on the part of the appellant, despite the history of the significant head injury in 1974.
This latter finding was disputed by Dr Brooke who concluded, on the strength of certain assumptions and untested hearsay information, that the appellant was probably suffering from brain damage. Dr Brooke conceded, however, in the course of his evidence that psychiatry was outside his field of expertise, and that he was not qualified to express an opinion on matters such as organic brain damage. The only

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authorities on which he relied in his report were two text-books on psychiatry. Dr Brooke further conceded during cross-examination that if the appellant had indeed been comatose for several months after his head injury in 1974 (which information was accepted by Dr Brooke), he would have expected to find definite signs of brain damage. The fact that no such signs were found at Valkenberg casts serious doubt on the reliability of Dr Brooke's information.
In my judgment there is no evidence to substantiate a finding of brain damage. It is mere conjecture on the part of Dr Brooke, based on unreliable hearsay evidence. According to the Valkenberg report there were no signs of any brain damage, and Dr Brooke is not qualified to express an opinion to the contrary. No reliance can therefore be placed on the findings and conclusions of Dr Brooke in this case.

It has been pointed out that the appellant was untruthful when he alleged that he had used the hammer to kill the first deceased. He in fact used the heavy iron bar,

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which means that the murder weapon was most probably carried from the door to the spot where the first murder was committed. The appellant's version that he acted in a sudden rage is therefore open to serious doubt. Nevertheless, the possibility that this was not a premeditated murder cannot be ruled out, and the presence or absence of mitigating and aggravating factors must therefore be considered against the background as supplied by the appellant's own evidence.
There can be no doubt that the first murder was a cruel and brutal murder carried out in a gruesome fashion. The appellant clearly had the direct intention to kill the first deceased. The interests of society would normally require that the ultimate penalty be imposed for such a senseless murder on an elderly and unarmed person. There are, however, certain mitigating factors which should also be considered. The personal background of the appellant is briefly as follows. He was 25 years old at the time of the commission of the crimes. He had passed standard 9 at school

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and had since worked for various employers. An important mitigating factor is his clean record. A further aspect which in my view ought to be considered in this regard is the appellant's dissatisfaction with his conditions of employment and wages, as well as his disappointment with the first deceased's attitude when he tried to discuss the problem with him. The evidence of the petrol attendants lends some support to the view that this was a real source of discontent. It must further be accepted for the purposes of this enquiry that the appellant became very angry when the first deceased insulted him in the manner described. The cumulative effect of all these factors amounted to some provocation in my opinion. I regard this as a borderline case, but in my opinion the death sentence is not the only proper sentence for the first murder. (See S v Senonohi 1990(4) SA 727(A)). In my judgment an adequate sentence in all the circumstances is one of life imprisonment.

The second murder was far more serious in my view.
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On the appellant's own version there was no reason whatsoever for killing this elderly defenceless woman. There is no suggestion that the second deceased had ever been unfriendly, unsympathetic or antagonistic towards the appellant. Moreover, in the case of the second murder there was not only a direct intention to kill, but also a measure of premeditation. Once he had killed the first deceased the appellant could no longer rely on his clean record as an indication of his non-violent nature. Immediately after killing the second deceased, and despite his alleged sense of shock and feeling of remorse, the appellant proceeded to steal the money and attempted to steal the car. I can find no mitigating factors with regard to the second murder. The serious aggravating features need not be repeated. If one has regard to the enormity of the offence and the other aggravating features this is indeed a case where the interests of society require that the death penalty be imposed. (S v Bezuidenhout 1991(1) SACR 43(A) at 51e; S v S

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1991(2) SA 93(A) at 102H - 103C). In the light of these conclusions it follows that in my opinion the death sentence is the only proper sentence in respect of the second murder. The following order is accordingly made:

1.	The appeal against the death sentence on count 1 is allowed and the sentence is changed to one of life imprisonment.
2.	The appeal against the death sentence on count 2 is dismissed.

F H GROSSKOPF JA

JOUBERT JA KUMLEBEN JA Concur

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