Part 3 - Mitigating circumstances

Part 3 - Mitigating circumstances

As already stated, the court may now impose the death penalty only if it finds that there are aggravating circumstances which may warrant the imposition of the death penalty. But even if it finds that there are aggravating circumstances, it must then weigh them against all mitigating factors that are present and decide whether on balance the death penalty is warranted.

Previous case law on factors that constitute extenuation in murder cases remains relevant because what were previously referred to as extenuating circumstances can now be taken as mitigatory circumstances. On this see "Extenuating Circumstances: A Life and Death Issue" in 1986 Volume 4 Zimbabwe Law Review 60.

 

Cumulative effect of mitigatory circumstances

 

It was decided previously that the court must consider the cumulative effect of all possible extenuating circumstances and must not consider and dismiss each factor in isolation: S v Sigwahla 1967 (4) SA 566 (A) at 571 and S v Jaure 2001 (2) ZLR 393 (H). The same must apply now to mitigating factors: the court must consider the cumulative effect of these factors. This must be decided by the judge and the assessors.

Decision on mitigatory circumstances

 

In S v Jaure 2001 (2) ZLR 393 (H) the court pointed out that a murder trial concludes with the decision on whether or not there are extenuating circumstances. That question must be decided by the majority view of the court, that is to say the judge and the assessors, even if the judge is in the minority. Thus both the judge and the assessors must decide whether there are mitigating circumstances and whether the mitigating circumstances outweigh whatever aggravating circumstances are present

The death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist. If the judge concludes that the extenuating circumstances are far outweighed by the aggravating features; that is a matter for the judge alone though the assessors may give informal opinions on the issue to the judge. Under the new constitutional provisions, it would seem that the question as to whether aggravating circumstances exist that justify the imposition of the death penalty would have to be decided by a majority of the court.

Onus of proof

Previously in S v Jaure 2001 (2) ZLR 393 (H) it was observed that although the onus of proof of extenuating circumstances is said to be on the accused, counsel for the State can and should assist the court in arriving at an informed decision on extenuation. The court should examine all the evidence and consider whether extenuating circumstances are shown on a balance of probabilities, regardless of who produced the evidence. The same approach must apply to mitigating circumstances.

Hunt states that it was said to be trite that the onus of establishing extenuating circumstances was on the accused. This onus need not be discharged by the accused giving evidence himself. The court may deduce extenuating circumstances from the evidence already led, including the State's evidence. The onus could even be discharged where there was acceptable evidence aliunde to find extenuating circumstances, in spite of the evidence of the accused on the point being unacceptable.

 

It is submitted that it is wholly artificial to say that there was an onus on the accused at all. The Criminal Procedure and Evidence Act made no mention of onus, either expressly or impliedly. It provided simply, in s 337, that “if the court is of the opinion that there are extenuating circumstances”, it may impose a sentence other than the death sentence. There is indeed a line of cases which say that the onus is on the accused, but they all follow R v Lembete 1947 (2) SA 603 (A). This case was the first in which the question arose for decision. Greenberg JA made the point that before the court can be of the opinion that there are extenuating circumstances, it must find that such circumstances do exist, not merely find that the prosecution has failed to prove that they do not exist. The learned Judge of Appeal also considered that they need be proved by the accused on the balance of probability. His reasoning was, with respect, not very convincing: he based his conclusion on the premise that the onus rests on the person who asserts the affirmative.

 

Of course, the defence, rather than the State, would usually assert the presence of extenuating circumstances ─ it is in his interests to do so ─ but if the accused failed to assert them or if he was found to be untruthful, it was well established that the court was still entitled to find extenuating circumstances. Where there was credible evidence on the point, whether the evidence had been led by the State or by the accused, the court could make a finding of extenuating circumstances. To say in these circumstances that the accused had discharged the onus on him is artificial, as he has plainly not done so. The correct approach is that the court should, after convicting the accused, examine all the evidence and consider whether extenuating circumstances are shown on a balance of probabilities. It does not matter who has produced the evidence, as long as the evidence is there. There should be no question of onus.

 

Hunt provided a list of factors which have been considered as extenuating in various cases. These factors will now need to be considered as mitigating factors. Hunt’s list has been modified and re-ordered in what follows:

  1. Legal intention only
  2. Absence of premeditation
  3. Minor degree of participation
  4.  
  5. Old age
  6. Remorse, repentance and endeavours to assist victim before crime completed
  7. Pre-trial incarceration
  8. Accused is a first offender
  9.  
  10. Provocation and other emotional disturbance
  11.  
  12. Mental condition, other than mental conditions warranting special verdict
  13. Belief in witchcraft
  14. Mercy killing (consent of victim)
  15. Political, social or other motives which are not ignoble

 

Legal intention (constructive intent, dolus eventualis) only

This may be a mitigating factor.

Previously it was ruled that the fact that the murderer or accomplice had only legal intention to kill may be an extenuating circumstance. In S v Mharadzo 1966 (2) SA 702 (RA) at 703C; 1966 RLR quoted in S v Jacob 1981 ZLR 1 (A) pp G-H, Beadle CJ stated:

I do not wish it to be inferred from this that, where the Court finds that only a constructive intent to kill is proved, the Court must necessarily find that is a circumstance of extenuation, but I do suggest that, where only a constructive intent to kill is proved, the Court will examine the other features of the case very carefully indeed before rejecting a plea that the offence was committed in extenuating circumstances.

See also S v Leonard A-128-70.

 

The fact that there was no actual intent to kill but only legal intention is a factor which should normally be considered as mitigatory. Granted there are some cases where it looks as if there may well have been actual intent to kill but the accused is given the benefit of the doubt and a finding of murder with legal intent is made. However, usually the murderer with actual intent is more morally blameworthy than the murderer with legal intent. If the aim and object of the accused is to kill, this is a different character of murder than the situation where the court finds as a matter of inference the accused must have and therefore did foresee the real possibility of death and continued to act recklessly as to whether the death eventuated.

In S v Siluli 2005 (2) ZLR 141 the court ruled that where, on a charge or murder, only a constructive intent to kill is proved, the court need not necessarily find that this is a circumstance of extenuation, but the court should examine the other features of the case very carefully indeed before rejecting a plea that the offence was committed in extenuating circumstances. A constructive intent to kill is a factor which must be put in the credit side in the accuseds’ favour in that weighing-up process. The court cited with approval the approach in S v Sigwahla 1976 (1) 4 SA 4 (A) that depending with the circumstances conviction of murder with dolus eventualis on its own or together with other factors may constitute extenuating circumstances. See also S v Katsande HH-854-15.

 

In S v Chunda S-14-84 the fact that the accused had legal intent was far outweighed by the aggravating factors.

 

In S v Dube S-39-85 a soldier had killed a woman. He was found guilty of murder with legal intention but the court nonetheless found that there was no extenuation.

Absence of premeditation

Generally pre-meditated murders are more heinous that unplanned, spontaneous killings. The moral blameworthiness of most persons who commit non-premeditated murder is usually less than those who commit premeditated murder. In some situations this may not be so. Thus, for instance, if a person without planning to do so, on the spur of the moment decided to kill an innocent person who had not provoked him in order to rob him, and he uses very brutal methods to do so, the absence of premeditation obviously in no way reduces his moral blameworthiness. Very frequently, however, the non-premeditated murder is carried out with only legal intention in emotional circumstances. Typical of these types of cases are drunken brawls and various domestic quarrels. One writer has expressed the difference in seriousness between sudden impulsive killings and premeditated killings in these terms:

It has been convincingly argued that when a killing is impulsive, concepts which emphasise rational processes – forming an intention or contemplating a risk – have little meaning. The actor lost his self-control for whatever reason and the enquiry as [to] his mens rea will amount more or less to the negation of duress, insanity and fundamental mistake coupled with some minimal notion of foresight of consequences.

Planned and premeditated killing is different. Here the actor has written the script for the drama that ensues. Having reasoned his way to kill, he presents a unique threat to his intended victim’s life and, more generally, to the rules necessary for the preservation of social order. This is not to say that in all cases his crime is more serious than that of one who kills impulsively; we can think of very heinous instances of impulsive killing and less heinous examples of planned and premeditated killing. It is however to recognise that it is different and in general more seriously wrong than the other killings.

From a policy standpoint, it would seem that generally non-premeditated murders should be treated differently from premeditated murders. Deterrence cannot be a justification for a capital punishment in cases of sudden, impulsive, emotional killings. In such cases the accused acts without thinking about the consequences and the threat of the death penalty cannot act as a deterrent. From the standpoint of deterrence the death penalty should be reserved for cases in which the imposition of this sentence may serve to discourage other potential murderers. From the standpoint of retribution the issue is whether the sudden, impulsive killing by a person who is most unlikely ever to commit another murder should be treated on a par with the dangerous criminal who has used violence on a number of previous occasions against innocent people and has ultimately killed someone.

Minor degree of participation

The accomplice is convicted of murder on the basis that he participated or assisted in a murder knowing that the principal offender would kill or at least foreseeing the possibility that the principal might kill. If the accomplice was only a very minor participant in the enterprise this may be an extenuating circumstance. The nature of the circumstances, need, however, to be carefully examined. If, for instance, the accomplice plays a minor role in an armed robbery and he knew full well before the robbery commenced that his fellow criminals were armed with deadly weapons and had every intention of using them to kill, the minor extent of participation might not necessarily be extenuating. Where, however, the accomplice was convicted on the basis of legal intention in that he foresaw death as a possible and not probable outcome of the enterprise, minor participation would normally be extenuating.

In the case of S v Mbirinyu A-149-73 Beadle JC said, concerning the significance of the appellant as a socius criminis:

The fact that an accused is a socius and not a principal offender is always an important factor to be taken into account in assessing his moral blameworthiness, and the principal factor to be taken into account here is the extent to which the socius makes common cause with the principal offender, as there is a very wide range of moral blameworthiness in cases of this sort. The position of the socius might be that he played a very unimportant part in the actual commission of the crime but was nonetheless a socius. In such a case the moral blameworthiness of the socius would be very much less than that of the principal offender. In another case the part he played in the offence might be so great as to identify him completely with the principal offender, in which case his moral blameworthiness could be considered to be as great as that of the principal offender.

On the other hand, the fact that a fellow criminal shot the deceased will not necessarily mean that the death penalty should not be imposed on the accomplice. Thus in S v Matibe S-23-17 a murder was committed in the course of a robbery. When his fellow robber produced a pistol and shot the deceased the appellant did nothing to stop him. The appellant helped to dump the body. He participated in the disposal of the property belonging to the deceased and he shared in the loot. The court found that there was very little difference, if any, between the conduct of the appellant and the fellow robber who shot the deceased. The degree of participation in the crime was equal. The court dismissed the appeal against conviction and against the imposition of the death penalty.

Withdrawal from enterprise before murder carried out, but not disassociation such as to exempt from legal liability

This situation is dealt with in the Supreme Court case S v Ndebu & Anor S-72-85. In that case the accomplice had gone with another to rob a house. To the knowledge of the accomplice his fellow criminal was carrying a gun. The accomplice had fled from the house when a female inhabitant had screamed and the accomplice was not physically present when the principal offender fired the fatal shot. On all the facts, the Appeal Court found that the accomplice was nonetheless guilty of murder but it ruled that, as he had played a subsidiary role and as he had abandoned the common purpose just before the fatal shot was fired, there were extenuating circumstances

Remorse, repentance, endeavours to assist victim before crime completed and co-operation with the police

These may be mitigatory but probably only if combined with other factors. Repentance and endeavours by the accused to assist his victim before the victim’s death cannot, standing alone, amount to extenuating circumstances: S v Jaure 2001 (2) ZLR 393 (H)

In S v Hahlekiye HH-260-17 the court found that it was mitigatory that the accused had met the demands of the family of the deceased for compensation by paying the funeral expenses and part of the monetary compensation sought by the family. This showed contrition on the part of the accused.

 

The fact that the murder weapon was taken from the victim may not constitute a factor of extenuation see; S v Mubaiwa & Anor 1992 (2) ZLR 362 (S).

Pre-trial incarceration

The court can take into account in mitigation that the accused has spent a long period incarcerated before he was tried. However, this factor alone would not stop the death penalty being imposed in respect of a murder committed in serious aggravating circumstances.

Accused is a first offender

The court can take into account in mitigation that the accused is a first offender. However this factor alone would not stop the death penalty being imposed in respect of a murder committed in serious aggravating circumstances. Often persons tried for murder do not have previous convictions.

Youthfulness

If the youth was below the age of 21 at the time the murder took place he or she may not be sentenced to death.

 

Before the age below which the death penalty may not be imposed was raised to 21, there were a series of cases in which the courts ruled that youthfulness could amount to an extenuating circumstance. For example, in the case of S v Chininga S-79-02 the court said youthfulness on its own or together with other factors can constitute an extenuating circumstance. Youthfulness connotes immaturity, lack of experience of life, thoughtlessness and a mental condition of susceptibility to external influences, especially those emanating from adult persons. See also S v Ndlovu S-91-94

 

Where the murderer is only 21 or only a few years older than this, the young age of the offender may still be taken into account in deciding whether the death penalty should be imposed. In S v Makuchete & Anor HMA-10-18 two brothers - one aged 25 and the other aged 21 - brutally assaulted another person causing his death. The court took into account that their consumption of alcohol must have reduced or diminished their self-control and this might have been compounded by their youthfulness.

 

The courts are obviously very loathe to pass the death sentence on young offenders as youthfulness is associated with “immaturity, a lack of experience of life, thoughtlessness and especially a mental condition of susceptibility to external influences [particularly those emanating from] adult persons.” Thus the policy of the courts is to give sympathetic consideration to youthfulness because to measure the youth’s conduct using the yardstick of adult behaviour would be unfair. Considerations of humanity also apply as “no civilised State is anxious to send teenagers to the gallows” unless there are very exceptional circumstances. Previously in South Africa when the death penalty was still in operation the courts adopted the approach that prima facie a youthful murderer is to be regarded as immature and on that ground extenuating circumstances will always exist unless it is found that the youth acted out of “inherent wickedness” in committing the murder. If the youth acted under the influence of an older person or because of “inherent wickedness” the factors to be considered include motive, personality and mentality, past history, nature of crime, manner of commission and any other relevant factors.

In Zimbabwe, however, in the case of S v X A-132-74 Lewis JP expressed the opinion that the “inherent wickedness” test was not very helpful, was not easy to apply in every case and should not be applied as a rule of thumb. Later he stated that, in finding that there was no extenuation despite the youthfulness of the accused, “the trial court had not overlooked the general principle that a person of this age is, generally speaking assumed to be less mature than an adult” and the trial judge had examined to what extent it could be said that what he did was attributable to his immaturity. Subsequent to the reservations expressed by Lewis JP about the “inherent wickedness” the test has been applied by the Supreme Court in a number of cases and in S v Muchinika (No.2) S-93-87 Korsah JA cited these judgments and said that he saw no reason to depart from it. In this case the appellant was under 19 at the time he committed the murder. The Appeal Court found (at least impliedly) that the youth had committed the murder not out of inherent wickedness but because of personality defects which he had acquired as a result of being subjected to traumatic experiences at a tender age.

Only if the court is quite satisfied that the murder was in no way the product of youthful immaturity should it rule that the prima facie assumption falls away and no mitigation exists of the grounds of youthfulness. Where such mitigation exists on the grounds of youthfulness, it is submitted that it should take extremely strong aggravating circumstances to justify any decision that the death penalty should still be imposed. Again from the general policy standpoint we should be extremely reluctant to hang youthful offenders.

In S v Zimondi HH-179-15 the accused stabbed to death his girlfriend following an altercation with her. When deciding upon sentence the court took into account the age of the accused. This is what the court said:

 

The age of the accused at the time of the commission of the offence about 22 can certainly not be ignored. The court take judicial notice of the fact that immature adults and mature adults react differently and behave differently faced with the same set of facts or scenarios. Immaturity of the accused on matters of emotions and love can therefore not be ignored when one considers the moral blameworthiness of the accused for purposes of sentence…. The accused person even during trial per the court’s observation depicted demeanor which displays youthfulness at play given his playful oblivious stance during the serious trial. We will therefore take note of the fact that at time of commission of the offence, the accused was indeed an adult but an immature adult.

 

… given the accused’s age at the time of commission of the offence, 22 and even now 24 at the time of sentence, it is our considered view that the sentence to be imposed to a relatively young man or young offender should not be that we should break him. There is room for the accused given his age to turn and be a better citizen in the country. It is mainly with the consideration of the accused’s tender age at the time of commission of the offence that we will not consider life imprisonment as appropriate in the present circumstances, but we will consider a lengthy imprisonment term.

 

In S v Masango & Ors HH-726-16 a quarrel developed at a beer drink over a petty matter. The three accused stabbed the deceased with a knife and assaulted him with clenched fists and booted feet. The assailants were young persons aged 21, 24 and 23 respectively. They were found guilty of murder with constructive intention which the court found was a mitigating circumstance. The court accepted that the combined effects of youthfulness and intoxication reduced the moral blameworthiness of the accused. However, a deterrent sentence was appropriate. The court said: “Regrettably it has almost become a norm that petty disputes, particularly at beer drinks are resulting in needless deaths or loss of lives in this country. Such conduct must be declared deplorable and this court needs to reiterate and send a clear message that consumption of alcohol should not be used as an excuse to commit heinous offences such as the present one.” The first accused who had a previous conviction for assault was sentenced to imprisonment for 20 years whereas the other two accused were sentenced to imprisonment for 15 years.

 

See also the following cases which are summarized in the cases section at the end of this article: S v Masilela HB-83-17; S v Ncube & Ors HB-303-16. (The court said that the accused are youthful offenders whose irresponsibility stemmed from immaturity and that they were unsophisticated rural young men); S v Ndlovu & Anor HB-188-16; S v Sibanda HB-313-16; S v Ndlovu HB-332-16; S v Mapurisa HMA-16-18 (The court commented that murder cases were prevalent in the Masvingo province and it was disheartening that such murder cases were being committed by fairly young persons who readily resorted to violence at the slightest provocation or at no provocation at all); S v Nyarusanga HH-7-17; S v Khumalo HB-143-11; S v Sibanda HH-13-17.

 

Old age

The advanced age of an accused is a factor that will be taken into account. In S v Chitange HH-578-16 X, a 94 year old first offender, shot the deceased in the thighs and he bled to death. This shooting occurred after a dispute between X and the deceased over a field boundary. X co-operated with the police during investigations. He compensated the deceased’s family by payment of US$1 500, 00 and eleven cattle and bore all the funeral expenses according to local custom. The community accepted that X had atoned for his wrong-doing. As a senior citizen X should have exercised better judgment in dealing with the dispute. However, the sentence imposed would be tempered with a measure of mercy in the light of the advanced age of X and he was sentenced to 9 years imprisonment.

Intoxication

If the court finds that despite the fact that the accused had voluntarily consumed alcohol or drugs, he or she was still able to form the intention to kill, he or she will be convicted of murder but the court can still consider whether the intoxication amounts to a mitigating factor in the circumstances.

Voluntary intoxication is a defence to murder if the accused lacked intention to kill because of intoxication but now, in terms of s 222 of the Criminal Law Code, after acquitting the accused of murder the court must convict him of the separate offence of voluntary intoxication leading to unlawful conduct for which the accused will be liable to the same punishment as if he or she had been convicted of murder and intoxication had been assessed as a mitigating factor in his or her case. Thus voluntary intoxication can still be a mitigating factor.

What is in issue therefore at the stage of mitigation is the impact of the alcohol or drugs upon the accused’s mind and his behaviour when he perpetrated the murder. The degree of intoxication thus needs careful consideration. The quantity of alcohol or drugs consumed needs to examined but the important question is how the behaviour of the accused was affected by the quantity of intoxicant consumed. With some people it takes only a very small amount of alcohol to become extremely drunk whereas others can hold even considerable amounts and not become perceptibly drunk. Finally, therefore, the critical issue is how far was the accused’s conduct the product of the intoxicant? The answer may be not at all, only to a minimal extent, to a significant degree or to a very appreciable extent. Where the influence of the intoxicant was very significant, this should normally serve to reduce the moral blameworthiness of the accused despite that his intoxication was voluntarily induced. But, as Hunt points out, it has been held to be a misdirection in South Africa for the court to require proof that the accused “was so intoxicated that he would not otherwise have committed the murder.” If the liquor has to some extent impaired or affected the mental faculties or judgment then the court must consider whether this constitutes extenuation. It is not a pre-requisite that the accused was drunk to an advanced extent.

The general policy approach in South Africa is summed up in this quotation from Holmes JA in the case of S v Ndhlovu 1965 (4) SA 692 at 695:

Intoxication is one of humanity’s age-old frailties which may, depending on the circumstances, reduce the moral blameworthiness of a crime, and may even evoke a touch of compassion through the perceptive understanding that man, seeking solace or pleasure in liquor, may easily over-indulge and thereby do things which sober he would not do. On the other hand intoxication may, again depending on the circumstances, aggravate the aspect of blameworthiness... as, for example, when a man deliberately fortifies himself with liquor to enable him insensitively to carry out a fell design... [The] basic [is that] the court has a discretion to be exercised judicially upon a consideration of the facts of each case and, in essence one is weighing the frailties of the individual with the evil of his deed...

In S v Timothy A-178-71 X had drunk a considerable amount of beer and he probably would not have raped and killed had he been sober. The death penalty was still appropriate.

In S v Masaraure A-189-75 X was very drunk and if he had been sober he would not have killed. Nonetheless the death penalty was still appropriate.

In S v Gwete HH-728-16 the accused murdered his cousin following an altercation in which the cousin had remonstrated with the accused about the accused’s bad drunken behaviour. The court found as mitigating circumstances that the accused’s youthfulness was exacerbated by his drunken state which played a major role in the situation. He had been remorseful and the fact that he had killed his cousin will haunt him for the rest of his life. However, murder was a serious offence which demanded the imposition of a severe sentence. The accused was sentenced to 14 years imprisonment.

 

In S v Moyo HB-306-16 the two accused had been drinking heavily at a bottle store. They got into a quarrel with the deceased and had together severely assaulted the deceased with a hammer and he died from the assault. The court found that the offence was not committed in aggravating circumstances.

In considering sentence we accept that both accused persons are first offenders. They have spent 10 months in custody awaiting the conclusion of this case. They co-operated with the police but have shown no remorse. While accepting that the accused persons were drunk we wish the message to go far and clear that voluntary intoxication must never be regarded as a shield to cover such horrendous acts of violence like the one we dealt with in this case. Our society must learn that violence should never be resorted to in an effort to resolve disputes. Once again, life was needlessly lost in this case and we continue to call upon the citizenry to learn to respect the sanctity of life.

Each accused was sentenced to 22 years imprisonment.

 

In S v Makuchete & Anor HMA-10-18 two brothers, one aged 25 and the other aged 21, brutally assaulted another person causing his death. The court took into account that their consumption of alcohol must have reduced or diminished their self-control and this might have been compounded by their youthfulness.

 

Involuntary intoxication, that is intoxication that is not self-induced, can be a full defence to a charge of murder if the accused lacked the intention to kill as a result of someone else causing him to be intoxicated by, for instance, spiking his soft drink with an intoxicant without his or her knowledge. See s 220 of the Criminal Law Code.

Provocation and other emotional disturbances

Glanville Williams cites the statistic that in England “half of the intentional killings of adult males are in a rage or quarrel, and another 14 percent in jealousy or rage.” A sampling of the Zimbabwean murder cases similarly indicates that a high proportion of murders take place in circumstances where the accused lose their tempers following verbal provocation or after witnessing events which provoke them. Very frequently these people have been drinking and the consumption of alcohol is a contributory factor to the violent behaviour. Alcohol lowers inhibitions so that the intoxicated person may more easily lose his temper, over-react to any provocation and more readily respond with extensive violence. Many drunken brawls are as a result of a trivial incident. The domestic quarrel can also be sparked from an insignificant incident, or due to suspicion between spouses or partnerships.

Provocation can only be a partial defence to a charge of murder. If the defence is successful the court will find the accused guilty of the lesser offence of culpable homicide. Under s 239 of the Criminal Law Code there is a two-stage approach to this defence. The first stage is to decide whether the accused formed the intention to kill despite the provocation. If he or she did, the accused will be found guilty of murder. But even if the court finds that the accused still had intention to kill even though he or she had been provoked, it must find him or her guilty only of culpable homicide if it decides that he or she has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose control.

 

Section 223(3) of the Criminal Law Code imposes a further limitation on the defence of provocation. This is if

… a person, while in a state of voluntary intoxication, is provoked into any criminal conduct by something which would not have provoked that person had he or she not been intoxicated, he or she shall be guilty of voluntary intoxication leading to unlawful conduct.

 

Provocation can be considered in mitigation despite that the trial court has already rejected the defence of provocation or the combined defences of intoxication and provocation. This means that the court will already have found that the accused had not so lost his self-control in response to provocation that he had not formed the requisite intention for murder. Or, if he had also been drinking, the combined effects of drink and provocation were not such that the accused failed to form the intention to kill. It will also have been found under the second stage of the test for provocation that the action of the accused was not partially excusable on the basis that the reasonable person would have reacted similarly in the same circumstances by intentionally killing.

Thus by the stage of mitigation the court will already have ruled that the accused is guilty of murder as he had killed his victim with actual or legal intention and the action taken was unreasonable in response to the extent of provocation received. But now on the separate issue of moral blameworthiness “nothing which influenced [the accused’s] mind or emotions and thus his conduct can be ruled out of consideration merely because it was unreasonable for him to allow it to influence him...” Therefore the court must carefully consider the effect which the provocation (or drink and provocation) has had upon the accused’s mind and thereby on his conduct. It may be said that his mind was very little influenced, if at all, by these factors and that he knew full well what he was doing when he set upon his victim. (The nature of the accused’s conduct may be such that it shows that he was little affected by the provocation.)

On the other hand, although he may just have been able to form legal intent to kill, he may have been seething with rage and may not have been able to stop himself from fatally assaulting his victim. One problem that arises from the latter type of case is that the precipitating factor may have been of a very minor nature. If that is the case, should the courts rule that, despite the extreme anger of the accused, no extenuating circumstances exist because his action in relation to the provocation received was totally disproportionate and unreasonable? It is submitted that to adopt such an objective approach at the extenuation stage is not correct and is unfair to the accused. His moral blameworthiness is surely less in a situation when he acted precipitously and impetuously because his passions were inflamed even though the sparking incident may have been of a minor nature. Such a case is of a different character from the one of, say, the accused who deliberately and viciously attacks his enemy intending to cause his death, using the excuse of some slight provocation to launch his attack.

Hunt points out that emotional upset arising out of events spread over a long period of time and not strictly amounting to ‘provocation’ may sometimes constitute extenuating circumstances.

As regards marital quarrels and quarrels between lovers, in the case of S v Karuze 1971 (1) RLR 169 at 171 Beadle CJ adopted a fairly hard line approach to these situations, saying:

There are very few murders which are committed when emotions are aroused because of marital infidelity or suspected infidelity which are committed when the accused’s’ mind is not, to some extent, unbalanced by what has upset him. If every case where an accused committed a crime because his mind was temporarily unbalanced by something which had disturbed him was regarded as a case where extenuating circumstances existed, there would be relatively few murders when it would not be possible to argue that extenuating circumstances existed. The mere fact that a murder is not committed – if I may use the expression – in cold blood, does not mean that extenuating circumstances exist.

The Karuze case was an unusual one as the accused did not kill his wife whom he suspected of infidelity but instead a completely innocent child. Where, however, the accused believes his wife or lover to have been unfaithful and a full scale quarrel erupts over this and, during which the accused kills the woman having only legal intent to kill, it is submitted that a sympathetic approach should be adopted regarding extenuation. The approach to be taken by the courts, it is submitted, should be that adopted by the South African Appellate Division in the case of S v Meyer 1981 (3) SA 11 (A) summed up in the headnote as follows:

In general, and in the absence of evidence of aggravation, the mental tension which leads to a murder committed in a situation where the act in question is usually the consequence of a quarrel between people who have a love relationship with each other, a quarrel out of which jealousy and provocation often arises and which, because of the circumstances, can lead to sudden physical assault and even death, can be regarded as an extenuating circumstances, and indeed so extenuating that the death sentence ought not to be imposed. Even should there be premeditation in such a situation of conflict, extenuating circumstances could, depending on the facts, be found which would make a sentence other than the death sentence appropriate. Every case should naturally in every instance be treated on its own merits.

Compulsion

The Criminal Law Code provides that compulsion can be a defence to a charge of murder providing that all the stringent requirements are satisfied. Compulsion can be a defence to murder where an accused kills or assists in the killing of another because he is under an immediate and inescapable threat of being killed unless he so murders the other.

If the requirements for this defence are not fully satisfied (as is often the case, there frequently being ways available to break away from the compelling influence by, say, going to the police) the fact that the accused has not voluntarily carried out the murder but was compelled by threats of violence to himself or to members of his family is mitigatory because a murder carried out due to fear is less morally blameworthy than a murder carried out from motives of, say, revenge or greed. The court will, however, have to examine factors such as the nature and extent of the threat, whether or not the accused could easily have freed himself from the threat and whether or not the accused is to blame for placing himself in a position where such threats would be likely to be levelled against him by joining a criminal gang.

 

Self-defence

If all the requirements exist for this defence set out in s 263 of the Criminal Law Code the accused will be found not guilty of murder. However, if the defence fails because, for instance, the accused used disproportionate or excessive force to avert the attack, the fact that he or she was under attack can still be a mitigating factor on a charge of murder. See S v Toringa HH-582-16.

 

Mental condition, other than mental condition warranting special verdict

In the case of S v Nyathi A-12-74 at p 5 Beadle CJ stated

[i]t is true that judged by the standards of the ordinary decent man, the appellant is an abnormal man, but there are few criminals who commit cold blooded murders, and who are sentenced to death for those murders. There is some element of abnormality about all criminals who commit cold blooded brutal crimes of murder. The question here is to decide when that abnormality reaches a stage which justifies a court in imposing a sentence less than death. It would be highly undesirable, in my view, to attempt to lay down any hard and fast rules which would indicate when such abnormality was sufficiently great and when it was not. Each case must be judged on its own merits. The judge must make a value judgement and decide whether the circumstances are such, when all ... the merits of the case are weighed up, as to justify the imposition of a sentence other than death.

In our law the provisions relating to when the special verdict is to be rendered are very broad. It includes cases where the accused is suffering from a temporary disorder or disability of the mind at the time of the crime such as to make him not responsible at law for his actions. Given the breadth of these provisions, all serious permanent or temporary mental conditions which cause mental irresponsibility at the time murders are committed are encompassed. However, as Beadle CJ points out above, even though a special verdict is not warranted, any mental condition or abnormality which may have influenced the behaviour of the accused at the time is a possible extenuating circumstance. The nature and extent of the abnormality and the effect upon the accuseds’ behaviour must be carefully considered in determining whether this factor is extenuating. From a policy standpoint it would seem that where the accuseds’ conduct was heavily influenced by some mental abnormality or diminished responsibility such as a delusional belief or mental retardation, (but without the requirement for a special verdict), extenuating circumstances should be found as this type of murder is less reprehensible than a murder committed by a person with a normal mind.

Where a mental disorder or defect is such as to negate rather than diminish X’s mental capacity, X will be entitled to a complete defence in terms of s 227 of the Criminal Law Code.

On the other hand, diminished responsibility does not constitute a defence but is only taken into account in mitigation of sentence. Diminished mental responsibility, which falls short of constituting a mental disorder attracting a special verdict, may still constitute a mitigating circumstance. Thus the Criminal Law Code provides in s 218(1) that It will be mitigatory when X commits a crime when he or she is suffering from an acute mental or emotional stress, or a partial mental disorder or defect and this diminishes his or her capacity to appreciate the nature of his or her conduct or that his or her conduct was unlawful or to act in accordance with such appreciation.

Section 217 of the Criminal Law Code provides that “partial mental disorder or defect” means a mental disorder or defect as defined in s 226, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation.

Note that diminished criminal capacity caused by intoxication or provocation is dealt with under the rules relating to the defences of intoxication and provocation and not under the provisions relating to diminished responsibility. See sections 217 and 218 of the Criminal Law Code. The accused bears the onus of proving diminished responsibility on a balance of probabilities. See s 18 of the Criminal Law Code.

The plea of diminished responsibility is a plea by or on behalf of the perpetrator to the effect that his or her capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation was reduced by reason of some disorder or stress affecting the mind of the perpetrator.

The case of S v Gambanga 1998 (1) ZLR 364 (S) makes it clear that diminished responsibility may result from a “non-pathological incapacity” occasioned by severe emotional stress, and not only from a less than total mental disorder or defect as such. (See also S v Mutsipa S-3-90.)

If there are indications of mental instability on the part of the accused, this matter should be investigated. Odd, inexplicable and bizarre behaviour before, during or after the killing or from the way in which X instructs his lawyer or the way in which he behaves cannot be ignored, as it may provide the basis for establishing that there was at least diminished responsibility to an extent which constitutes extenuation. The defence lawyer has a duty to pursue this matter and to ask for a psychiatric examination where appropriate. The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering from diminished responsibility. See S v Chitiyo 1987 (1) ZLR 235 (S), S v Taanorwa 1987 (1) ZLR 62 (S), S v Chin’ono 1990 (1) ZLR 244 (H) and S v Mukombe 1991 (1) ZLR 138 (S).

Where the killing is apparently motiveless, this should alert the defence lawyer to the possibility that X may have been suffering from some form of mental instability when he committed the murder. Where the conduct of X was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour. See also S v Nyati 1974 (2) RLR 19 (A); S v Mapfumo A-48-79; S v Mutsipa S-3-90; S v Sibanda S-137-93; S v Musimwa S-198-94; S v O’Neill S-232-95; S v Dube 1997 (1) ZLR 229 (H).

In S v Masilela HB-83-17 there was no motive for the accused killing his elderly paternal grandmother who had had done a lot to assist him after the death of his mother. The accused has also smoked dagga before committing the murder. The late trial judge had imposed the death penalty but the Supreme Court ordered that the case be re-visited. The new trial court decided that the death penalty should not have been imposed.

In S v Muchimika S-93-87 although X, a youth, had carried out a cold-blooded killing, he had been brutalized and his personality had been affected by his war experiences and by being imprisoned at a tender age. The court found that there were extenuating circumstances.

In S v Bontanquoi S-171- 82 the court found that although first appellant was mentally backward and emotionally unstable these factors did not affect his actions when he carried out a premeditated robbery and murder.

The case of S v Stephen HH-40-92 is of considerable importance in relation to the issue of mental disturbance and mitigation in murder cases. In this case a man had killed one of his sons and had attempted to kill his second son and his wife. He had committed these acts whilst in a state of hysterical dissociation with only a very minimal degree of self-control. The court found that a person who is capable of some degree of self-control becomes capable of forming the mens rea for murder. Although he was suffering from a mental disorder or disability at the time he committed the crimes, he was still responsible at law for his actions and therefore a special verdict in terms of s 28 of the Mental Health Act was not returnable. Instead, the court found that he was guilty of murder, but with extenuating circumstances because of diminished responsibility. In the particular circumstances of this case the guilty verdict amounted really to a technicality. No moral blameworthiness attached to X. The court sentenced X to imprisonment until the court rose.

In S v Dube 1997 (1) ZLR 229 (H) X, an aide to President Banana shot and killed a police officer, D, at a sports stadium. D had remonstrated with X for urinating in public place. X said he was very intoxicated and had been provoked as D had referred to him as “Banana’s wife”. X said Banana had committed homosexual acts on him against his will and X said he had violently reacted to D’s comment. According to the psychiatric evidence X was suffering from post-traumatic stress disorder as result of these acts. However, there was a conflict between the evidence of two psychiatrists. One said the combination of this disorder and drunkenness amounted to mental disorder such that X was not responsible according to law for his actions. The other psychiatrist said that the disorder would not have prevented X from appreciating what he was doing or the consequences of his actions. The court decided that although post-traumatic stress disorder could fall within wide definition of mental disorder in the Mental Health Act, on facts found proved, it was not a disorder that prevented X from being aware of what he was doing or of consequences of his actions. The combination of alcohol, drugs and stress disorder would, however, have meant that X was suffering from diminished responsibility.

 

In S v Chikanda 2006 (2) ZLR 224 (S) the court pointed out that the borderline between criminal responsibility and criminal non-responsibility on account of mental incapacity or illness is not an absolute one, but a question of degree. A person may suffer from a mental illness yet nevertheless be able to appreciate the wrongfulness of his conduct and to act in accordance with that appreciation. Diminished responsibility only reduces the level of responsibility but does not completely absolve an accused person from his actions. Where the court finds that the accused at the time of the commission of the act was criminally responsible for the act but that his capacity to appreciate its wrongfulness was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing him. Medical reports suggesting that a person may have been suffering from a state of diminished responsibility at the time of the commission of the offence needs to be supported by some other evidence. On their own, such reports may not be conclusive. The decision as to whether there is diminished responsibility is to be made by the court and not just by medical experts. Where medical reports of diminished responsibility are not supported by some other facts from the evidence the court is entitled to reject the claim of diminished responsibility if there are other factors which justify that rejection.

 

In this case X, who had had a stormy relationship with his wife and was living apart from her, came to her house at midnight and stabbed her to death. Shortly afterwards, he grabbed his young child from the arms of her grandmother and stabbed her to death as well. The grandmother said in evidence that he was generally somebody who was not well and did not give respect to elders. He was not mentally normal, though not insane. The medical report on X said there was evidence of unstable abnormal behaviour and a tendency to violence, due to underlying suspiciousness of a paranoid nature. The trial court made a finding of diminished responsibility. The appeal court found that the conduct of X before and immediately after the killing did not seem to support the finding of diminished responsibility and the trial court had misdirected itself in so finding.

     Where diminished responsibility due to X’s fault [s 218(2)]

If the acute mental or emotional stress, or partial mental disorder or defect, is brought about through the person’s own fault, a court may regard such person’s responsibility as not having been diminished. The kind of situation contemplated is where a person who is required to take medication to relieve the symptoms of a partial mental disorder or defect knowingly fails to do so and thereafter commits a murder.

Political, social or other motives which are not ignoble

 

As regards social motives, Hunt cites a case where the accused believed that the person he killed was a witchdoctor who was a danger to the community and apparently this factor was taken into account in finding extenuating circumstances.

Regarding political motives, whatever may be the position in the political circumstances of South Africa where the oppressed majority fought to overthrow the apartheid regime, it would seem that in Zimbabwe the fact the murder was done with a political objective will not be extenuating but may indeed be aggravating. Thus in the case of S v Moyo, A-71-81 for instance, it was stated that the killing of political opponents does not render the crime any less blameworthy.

Belief in witchcraft

If the accused killed in order to obtain parts of a victim’s body for medicine, his belief in witchcraft would not be an extenuating circumstance. But in a case where the accused has killed a supposed witch to protect himself, his family or the community from the activities of the witch, the accuseds’avid belief in the evil power of witchcraft may be mitigatory. This is particularly so if the accused believes that the witch has caused deaths by witchcraft practices. To completely disregard a deeply held belief on the part of the accused on the basis that such a belief is unreasonable is totally unfair.

In S v Techu & Ors HH-271-15, despite the fact that the accused brutally murdered a woman in her home, the court found that it was highly mitigatory that the accused appeared to have been affected by this strong belief in witchcraft which appears to be prevalent in their area and believed that the woman was a witch.

 

In S v Hamunakwadi 2015 (1) ZLR 392 (H) the court dealt with the possibility of provocation operating a partial defence in a case of witch killing. The court pointed out that many cultures across Africa embrace traditional healers and a persistent belief in witchcraft. The African concept of a witch does not encompass the potentially benign witch who, in some western countries, enjoys the status of an alternative religion. To the contrary, there is little redeeming about African witches who, through sheer malice, either consciously or sub-consciously employ magical means to inflict all manner of evil on their fellow human beings. The attempts of the common law courts to address witchcraft-inspired violence differed markedly from the suppression tactics of the various legislative initiatives. Whereas legislation acknowledges the widespread violence and seeks to curtail it, the criminal law has often recognised the belief that gave rise to the violence and carved out a witchcraft-provocation defence that could be offered as a mitigating factor in cases of witchcraft-related violence. Under this theory, accused persons could reduce their crimes or punishments upon proof that they believed they, or persons under their immediate care, were bewitched and that this belief caused them to temporarily lose self-control. In some ways, this theory provides tacit recognition that in certain communities killing a “witch” is not merely explainable, or excusable, but praiseworthy.

 

In S v Chiurunge HH-295-15 X approached the deceased at her homestead and accused her of practising witchcraft. He force-marched her to a number of locations whilst severely assaulting her with a log, from which assaults she eventually died. X was sentenced to 18 years’ imprisonment. The court said:

This case once again brings to the force the negative impact of this deep rooted belief in witchcraft by a number of communities in our nation. I must confess this belief is extremely controversial and as a court we cannot claim to have a solution to the impact of this system which dates back to the creation of mankind. … The method used by the accused was clearly wrong in this case. There are scattered throughout this country local and traditional leaders whose duty is to deal with cases like the one which confronted the accused. The accused had no right to take the law into his own hands because he is not qualified to deal with the situation that he attempted to resolve. The life of the deceased was not so cheap to be ended in the way it did and the accused was expected to contain his beliefs no matter how strong they may have been. Chaos and anarchy will enslave this country if those of the mind of the accused person are not adequately punished for their conduct.

 

In S v Chikomo HH-557-16 the accused killed his mother-in-law by striking her on her head with a stone. The accused believed that the deceased was bewitching him and had placed noxious herbs in his drink causing him to become ill. The accused had been accused by the deceased of being possessed by demons which needed to be cast out. The court found that he was suffering from diminished responsibility on account of acute mental or emotional stress.

 

In S v Ndlovu & Anor HB-188-16 the deceased aged 67 was killed by the deceased’s son (accused 1) aged 19 at the time of the killing and 21 at the time of his trial and the deceased’s daughter-in-law (accused 2). Accused 1 forcibly entered the deceased’s bedroom and struck the deceased twice on the neck with a knobkerrie rendering him unconscious. Accused 1 then poured petrol all over the hut and ordered accused 2 to set the hut alight which she did and the deceased was burnt to death. Accused 1 had become angry after the n’anga told him the deceased was bewitching him. He decided to go and drink and smoke drugs to fortify himself to murder his father. The court took into account his strong belief in witchcraft and the fact that he had acted under the influence of a n’anga. However, the court said that the heinous killing nonetheless required the imposition of a lengthy term of imprisonment.  

In S v Chigayi & Ors HH-248-17 four brothers killed their father by burning him with molten plastic on the unfortunate belief that he was a wizard. They also burnt him as they were burning his “artifacts” by tying him to a pole. Further they denied him any medical attention that his senior wives attempted to give him. They were all found guilty of murder with actual intent. The court took into account the mistaken beliefs in witchcraft of the accused but said that the heinous nature of the murder required a stiff sentence.

In S v Hahlekiye HH-260-17 the court took into account that the accused’s belief in witchcraft played a major role in the commission of the murder. The two accused severely assaulted an 86 year old man who later died. The old man was believed by the accused to have used witchcraft against the accused’s family.

 

Mercy killing (consent of victim)

 

The Criminal Law Code provides that it is no defence to a charge of murder that the person acted in order to relieve suffering or the deceased person requested that his or her life be ended but the court may take any such factor into account in deciding upon an appropriate sentence.

 

If an accused kills a person who is terminally ill or is suffering from an incurable disease and who has pleaded with the accused to end his pain by terminating his life, this will be a very strong mitigatory factor but in any event there will not be aggravating circumstances which would justify the imposition of the death penalty.

 

In S v Hove 2009 (1) ZLR 68 (H) a young unmarried mother killed her 5 month old baby. The child had been ill from birth, having been diagnosed with HIV, and had been hospitalized in various health institutions for a period of 5 months. The child had experienced excruciating pain as a result of gaping wounds and open sores all over the body and was always crying uncontrollably due to the chronic pain. The accused had been told by medical personnel that there was no help they could offer the child and that the child was facing imminent death. The court held that the circumstances surrounding the commission of this offence cumulatively amount to extenuating circumstances. The concept of mercy killing cannot escape the attention of the court in certain circumstances and as such will play a determining factor in sentencing. While murder per se is reprehensible, this case called for mercy and therefore the accused’s moral blameworthiness was lower. While we are all responsible for our actions, sight should not be lost of the fact that society has a duty to accommodate and counsel wrongdoers, thereby preventing the resultant fatal consequences which may flow from those who are mentally and physical distressed. Such persons should receive the court’s sympathy rather than further condemnation. The accused would be detained until the rising of the court.

In S v De Bellocqui 1975 (3) SA 538 a woman had killed her baby who was suffering from a grave disease.

In S v Mayer 1985 (4) SA 332 (ZH) an elderly couple decided to commit suicide because they felt that they were destitute. X, the husband, killed his wife and tried to kill himself. He survived but he blinded himself in the suicide attempt. He was found guilty of murder but the circumstances were taken into account in mitigation of sentence.

In S v Hartmann 1975 (3) SA 332 (C) a doctor ended the life of his terminally ill father who had pleaded for him to do so. He was found guilty of murder but the circumstances were taken into account for the purposes of sentence.

In South Africa in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others 2015 (4) SA 50 (GP); [2015] 3 All SA 109 (GP) the court authorised a terminally ill person to end his own life by being assisted by a medical practitioner either by the administration of a lethal agent or by providing the applicant with the necessary lethal agent to administer himself. However, this decision was later overturned on 6 December 2016 by a decision of the Supreme Court of Appeal.

Partial excuse

Partial excuse is a somewhat misleading heading for the category of cases which Hunt has in mind here. The cases included are those where the accused have used excessive force in the course of self-defence, defence of property or the apprehension of a suspected offender. These accused would have been able to raise successfully full defence to charges of murder if they had used a reasonable degree of force. If they have used totally disproportionate force, however, the defences raised will fail and the accused will be convicted of murder. The reason why they used such force may still nevertheless constitute extenuation in Zimbabwe as well as in South Africa.

Absence of previous convictions

This will be taken into account but it is not a strong mitigating factor in a murder case. It seems to have been treated as a factor to be considered in respect of extenuation and it may be taken into account in mitigation. See for instance S v Zuze A-200-77

 

Evidence relating to the manner of the killing

 

Evidence relating to the manner of the killing (such as the extent of the planning, degree of brutality, number of blows struck etc.) may be relevant to the matter of extenuation in so far as this evidence may provide either evidence tending to substantiate or to contradict the alleged extenuating circumstances. See S v Mutsunge & Anor S-36-87 at p 9.

A few examples will serve to illustrate this point. If the accused alleged that he was extremely drunk at the time of the killing, this may be disproved by evidence of careful and methodical planning and execution. Or if the accused alleged that he completely lost his self-control as a result of provocation, the evidence of a seemingly rational and methodical course of conduct before and during the murder would tend to disprove the allegation of loss of self-control. On the other hand, a murderous attack of a wild and random nature may be consistent with and tend to verify alleged loss of self-control. However, if the court has already found that there were extenuating circumstances, it cannot then proceed to find that, because of the brutal and callous nature of the killing, these extenuating circumstances were neutralised or overridden and then proceed to impose the death penalty. That this is an entirely wrong approach was made quite clear by the Supreme Court in S v Mateketa S-99-85; S v Chaluwa S-75-55; S v Mutsunge & Anor S-36-87 and S v Muchimika S-93-87. Following the approach adopted by the South African Appellate Division, the Supreme Court ruled that the fact that the killing was a brutal nature cannot be used to justify a conclusion that the death penalty was still to be imposed despite the presence of extenuating circumstances. See S v Ndwalane 1985 (3) SA 222(A) which followed earlier decisions such as S v Supetrus 1969 (4) SA 85 (A)

Intoxication and provocation [s 218(3)]

Diminished capacity due to intoxication or provocation will be dealt with under these specific defences and not under diminished responsibility but it should be noted that in terms of section s 224 if X, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, this is only mitigatory.

Defence counsel should explore a second or third line of defence in apparently motiveless murders, such as intoxication, provocation or insanity. Although the State is not obliged to establish a motive for the murder, the absence of a motive "should always set alarm signals ringing in the mind of defence counsel": McNally JA 1988 Vol 1 No 2 Legal Forum 6. In determining the issue of extenuating circumstances, everything which influenced the mind or emotions of the murderer must be taken into account: S v Fundakubi 1948 (3) SA 810 (A).

Whether death penalty imposable if extenuating circumstances found

In Jaure 2001 (2) ZLR 393 (H) the court pointed out that the death sentence may still be imposed after the judge and assessors have found that extenuating circumstances exist, if the judge concludes that the extenuating circumstances are far outweighed by the aggravating features.

Proof of murder conviction

The fact that there is an ongoing murder trial must not be referred to when extenuation is being considered: S v Mubaiwa & Anor 1992 (2) ZLR 362 (S). Proof of a murder conviction should not be adduced if the court finds no extenuating circumstances: S v Mlambo 1992 (2) ZLR 156 (S). 

Hunt South African Criminal Law and Procedure Vol III Common Law Crimes (Second edition Juta 1982) pp 386

R v Lembete 1947 (2) SA 603 (A) which has been followed in numerous cases since. See, for example, R v Jairos 1966 RLR 115 (A) at 119I; S v Munemo 1986 (2) ZLR 71 (S), citing S v Theron 1984 (2) SA 868 (A) and S v Nyoni S-66-14

S v Mkhize 1979 (1) SA 461 (A) at 463; S v Felix & Anor 1980 (4) SA 604 (A)

S v Kamusewu 1988 (1) ZLR 182 (S)

Hunt South African Criminal Law and Procedure Vol III Common Law Crimes (Second edition Juta 1982) pp 381-86.

At the end of this section there is a compilation of Zimbabwean cases which give guidance on the application of these individual factors.

Whaley (1967) “Criminal in our Courts: Dolus eventualisResponsa Meridiana 117 and Feltoe (1985) “States of Mind” ZLJ.

P McKinnon (1985) “Two view of murder” 63 Canadian Bar Rev. 130

See J Andenaes (1966) “The general preventative effects of punishment” University of Pennsylvnia Law Review 949 and Bedau The death penalty in America (3 Ed) 1982 OUP Chapter 4. Strong doubts can be raised as to the deterrent impact of capital punishment even in relation to premeditated killings.

Section 48(2)(c)(i) of the Constitution.

The quotations in this paragraph are from the judgment of Rumpff CJ in S v Lehnberg & Anor 1975 (4) SA 553 (A) at 560.

Op cit p. 382

Hunt op cit 379

It is arguable that the application of what seemed to be an objective test in one case was unfair. In S v Ndhlovu A-33-73 the court accepted that what drove the accused to carry out the murder was his obsessional belief that his father had killed the accused’s wife. This belief, said the court, was not extenuating because it was “not based upon reasonable grounds and was wholly irrational in the circumstances” (because, for instance, police investigation found that there was no substance in the accused’s suspicions.)

Op cit p. 382. See the case of S v Zuze unreported A-200-77 where there had been a long history of discord leading up to the situation in which the step-son after verbal provocation killed his step-mother. See also the note on a recent South African case on emotional stress in (1985) 102 SALJ 240 where the author argues that this case was incorrect insofar as the case admitted a defence of ‘emotional stress’. This was, however, a case of cumulative provocation and is the sort of case where extenuation might apply.

Sections 243 and 244  of the Criminal Law Code

See Hunt op cit p. 384

For a commentary on the South African cases see Hunt op cit 381.

Op cit p 386

See L Aremu (1980) “Criminal Responsibility for homicides in Nigeria and supernatural beliefs” 29 ICLQ 112 and Feltoe (1975) “Witch murder and the Law” (1) Rhodesian Law Journal 40. In the case of S v Dube S-33-82 Fieldsend CJ said at p.4 that in the unfortunately numerous cases where the accused’s belief in witchcraft leads the accused to kill a person whom he believes is making the wicked deeds by witchcraft this “is almost always regarded as extenuating circumstances.” This case did not involve such a situation but rather was a case where the accused killed his father because of his obsessional belief that he was suffering personal misfortune as a direct result of his father’s failure to conduct the required ceremonies essential after his mother’s death to put her spirit to rest. It is arguable that the trial court, despite its finding of actual intent to kill, was incorrect in not treating the strongly held belief this his misfortune stemmed from offence caused to ancestral spirits as a sufficient extenuating circumstance to justify a penalty other than death.

Section 54 of the Criminal Law Code

See Hunt op cit p. 383. The case of R v Detsera 1958 (1) SA 762 (FSC) has been followed in Zimbabwean cases.