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IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE DIVISION

In the matter between

B.R.M. APPELLANT

and

THE STATE RESPONDENT

CORAM : HOEXTER, HEFER, JJA et NICHOLAS AJA.

HEARD : 19 FEBRUARY 1988.

DELIVERED : 11 MARCH 1988.

J U D G M E N T

HEFER JA :

Subsec (1) (a) of sec 277 of the Criminal Pro-

cedure Act No 51 of 1977 provides that sentence of death

shall ..... 2
2.

shall, subject to the provisions of subsec (2), be imposed

upon a person convicted of murder. Subsec (2) reads as

follows :

"(2) Where a woman is convicted of the murder of

her newly born child or where a person under the
age of eighteen years is convicted of mur-der
or where the court, on convicting a person of
murder, is of the opinion that there are ex-
tenuating circumstances, the court may impose
any sentence other than the death sentence."
(My emphasis)

In S v Ngoma 1984(3) 666 (A D) at p 671 CORBETT JA

said :

" ..... where it appears that the age of the

accused is near the critical borderline of 18
years, the correct determination of his age
becomes a matter of the utmost im-portance. From
the accused's point of view it may be a matter of
life or death."

In..... 3
 3.

In the present case it was indeed a matter of life

and death. The appellant and a co-accused were convicted of

murder. In appellant's case no extenuating circumstan-ces

were found. In sentencing him to death the learned judge in

the court a quo said that he was compelled by law to do so

"bécause he (the appellant) was not under the age of 18 and

extenuating circumstances were not proved". Why there was

this specific reference to appellant's age will presently

emerge.

After the appellant had been convicted, his counsel

addressed the court on the question of extenuating circum-

stances and argued that his youthfulness was such a circum-

stance. She informed the court of his date of birth,

according...... 4
 4.

according to which he was 18 years and about 4 months old at

the time of the murder. Counsel had obtained her

information from the appellant himself and there was no con-

firmation of the date eg by the production of his birth cer-

tificate or by a witness who could reliably speak of it. The

appellant is, moreover, an unsophisticated and apparently

uneducated person. Not without reason, therefore, the

learned judge was sceptical about the reliability of the

date furnished. The case was then postponed. Enquiries were

set afoot and the appellant was examined radiologically in

order to determine his age. But it was all to no avail

because, when the trial eventually proceeded, the learned

judge was informed that the appellant's birth certificate

could ........ 5
 5.

could not be produced, that none of his relatives could be

traced;and that the radiological examination revealed no

more than that he was 19 years or more at that stage (which

was little more than a year after the murder had been com-

mitted). The court was thus in no better position than it

had been before the postponement; apart from his coun-sel's

statement it had no information of the appellant's age. But

there was a real possibility that he could have been under

the age of 18 at the time of the murder and the question of

his age could therefore not be left unresolved. Counsel for

the State suggested that sec 337 of the Criminal Procedure

Act (which provides for the assessment by the court of an

accused's age by his appearance or from any avail-

able .......6
 6.

able information) be invoked. The learned judge refused

to assess his age in this manner. He expressed himself

as follows in the judgment :

"If this court was forced to make an assessment, I

think I might be inclined to say that (he is) more
than 18 at this stage. I do not know what a young
man looked like a year ago. Young people change
guickly in those years. I find myself unable to
make an estimation which can firmly put the
answer of the age of the accused the one way or
the other."

The following situation thus emerges : the appellant's

appearance was such, and the information given to the court

regarding the outcome of the radiological examination re-

vealed, that he might well have been under the age of 18

years at the time of the murder; this being the case, it

was ...... 7
 7.

was vitally important with a view to a proper sentence

to determine his age; but every effort to do so with any

measure of certainty had failed and there did not seem to

be any likelihood that further efforts would meet with

greater success. How then did the learned judge

eventually come to say that the appellant was not under

the age of 18?

What actually happened, was that the

learned judge ruled that there was an onus on the appel-

lant to prove that he was under the age of 18 when he

committed the murder and that he had not discharged the

onus. This appears from the following passage in the

court's judgment:

"It...... 8
 8.

"It has not been finally decided whether the

State or the accused should prove that the
accused is under the age of 18. Whereas the
accused must prove the extenuating circumstan-ces
it seems to me that similar considerations apply
to the question of age. Frequently the accused is
in a position to give information about age
which the State does not have ..... He claims to
have been born on 17 November 1967. Even on his
own claim he does not sug-gest that he was under
the age of 18 when the
crime was committed ...... As far as the fin-
dings of fact is concerned he does not even sug-
gest that he was under the age of 18, or in any
other way indirectly to create a degree of fac-
tual basis for thinking that he was under the
age of 18. This court would be speculating
totally if this court were to say that he was
under the age of 18."

Having thus overcome the problem of the appellant's

age and having found that there were no extenuating

circumstances, the learned judge sentenced him to death but

granted

him .... 9
 9.

him leave to appeal against his sentence.

Two questions were argued in this court. The first

is whether the learned judge in the court a quo correctly

ruled that it was for the appellant to prove his age, and

the second, whether the finding that there were no extenu-

ating circumstances is correct. Both these matters arise

from the provisions of sec 277(2) and, in order to distin-

guish between them, I shall refer to the provision relating

to persons under the age of 18 years as the second provi-

sion (the first being the one relating to a woman convicted

of murdering her newly born child) and to the one relating

to extenuating circumstances as the third provision. In the

discussion which follows any reference to the appel-

lant's
 10.

lant's or an accused's age should be construed, unless the

context indicates otherwise, as a reference to his age at the

time when the offence was committed; it is his age at that

time and not at the time of his conviction that is re-levant

(R v Rainers 1961 (1) SA 460 (A) ).

Counsel for the State supported the court a guo's view

that the second provision can only be invoked if the accused

proves that he was under 18 years of age when the murder was

committed. He based his argument on the analogy which he sought

to draw between the second and third pro-visions. The onus to

prove extenuating circumstances rests, of course, on the

accused (R v Lembete 1947 (2) SA 603 (A); S v Theron 1984 (2)

SA 868 (A) ), It was accordingly

argued .... 11
 11.

argued, that likewise it is for the accused to prove that he

was under the age of 18 if he relies upon the second pro-

vision. In my view the two cases are not analogous. Save

that they both operate in favour of the accused to the

extent that a sentence other than the death sentence may in

either case be imposed, the second and third pro-visions

really have nothing in common. Counsel for the State pointed

out that the youthfulness of the accused is often relied

upon in the context of extenuating circum-stances. This is

so; but a moment's reflection re-veals that the similarity

between a case where youthful-ness is relied upon in the

context of extenuation, and a

case.... 12
 12.

case to which the second provision is applicable, is more

apparent than real. It must be realized at the outset that

the second and third provisions create separate and

independent grounds for the court's discretion to impose a

sentence other than the death sentence. The position is

accurately stated in Hunt's South African Criminal Law and

Procedure (2nd ed) at p 376 :

"Where 'a person under the age of 18 years is

convicted of murder', the age of the convic-ted
person per se confers upon the court a
discretion to impose a sentence other than
death. In such a case it is thus not neces-sary
for the court to enquire whether extenu-ating
circumstances exist, since such an en-quiry
would do no more than confer a discre-tion
which already exists by virtue of the accused
person's age."

This is in accordance with the decision in Ngoma's case

(supra)....13
 13.

(supra) where it was said (at p 670) that

"(w)here a person convicted of murder was under

the age of 18 years at the time when the crime
was committed, the Court has a discretion as to
whether to impose the death sentence or not. On
the other hand, if the person concerned was not
under the age of 18 years, ie was 18 years old
or more, at the time of the commission of the
murder, then,unless there were extenuating cir-
cumstances, the death sentence is obligatory.
(See s 277(2) of Act 51 of 1977.) Thus only where
the accused was not under the age of 18 years at
the time when the offence was commit-téd is it
necessary for the Court to decide whet-her
extenuating circumstances, in the technical
sense, were present (although naturally such
circumstances would be relevant on the question
of sentence where the accused was under the age
of 18 years at the relevant time). "

(See also S v Harman 1978(3) S A 767 (A) at p 770.)

The grounds for the discretion in terms of the second

provision. are, moreover, not only independent of, but also

entirely ....14
 14.

entirely different from those giving rise to the discretion

in terms of the third provision. The approach of the courts

to the question of extenuating circumstances is trite. It

emerges from decisions like those in S v Babada 1964 (1) SA

26 (A) at p 27-9, S v Letsolo 1970 (3) SA 476 (A) at p 476

and Ngoma's case (supra at p 673) that the enquiry as to

their existence involves not merely the proof of facts or

circumstances which could have influenced the accused's state

of mind or mental faculties in the commission of the crime,

but also the further guestion whether they probably did

influence him, and whether the influence was of such a nature

that his moral blameworthiness is reduced. The first two legs

of the enquiry involve pure matters

of..... 15
 15.

of fact and the third one a moral judgment on the court's

part. In the case of a murder committed by a youthful

accused, although his age is obviously relevant (see Ngoma's

case at p 674), it is not his age or his youthfulness as such, but

the immaturity flowing therefrom, which may, in a proper case

and with due regard to other factors, afford grounds for a

finding of extenuating cases. As appears from the judgment in

S v Rooi en andere 1976 (2) SA 580 (A) at p 585 the real

question in such cases is

"of die beskuldigde as gevolg van onvolwassen-

heid, gebrek aan lewenservaring, onbesonnen-heid,
of vatbaarheid vir beïnvloeding met min-der
laakbaarheid bejeën behoort te word al dan
nie."

If all this is taken into consideration and compared

with....... 16
 16.

with the position in terms of the second provision, the

distinction is plain. In the case of an accused under the

age of 18 years all that is relevant is his age; no fact or

no circumstance need be shown which could have in-fluenced

or did influence his state of mind or mental facul-ties; it

matters not whether his youthfulness or immatu-rity played

any part in the commission of the crime; and, perhaps most

importantly, he need not cross the barrier of the court's

moral judgment in order to invest the presiding judge with

a discretion to impose a sentence other than death.

The suggested analogy of extenuating circumstances can

thus not be used to decide the question of the onus of

proof.... 17
 17.

proof for purposes of the second provision. How then is that

question to be decided?

In the Lembete case (supra at p 609) it was said that

the incidence of the onus "depends of course on the interpre-

tation to be given to the language of the section, and light

may be thrown on the question by the application of the gene-

ral principles in regard to the incidence of the onus".This is

the approach which I propose to adopt in deciding where the

onus lies in cases such as the present one.

There is little in the wording of sec 277(2) from

which the legislature's intention may be inferred. The words

"where a person under the age of eighteen years is convicted

of murder" provide no reliable clue. Nor can

anything ..... 18
 18.

anything be made of the fact that the mandatory death

sentence was introduced in subsec (l)(a) of sec 277 "subject

to the provision of subsection (2)"; it cannot be said that

exceptions to a general injunction were hereby created which

may be proved by some one who invokes one of the exceptions.

For two reasons I am, nevertheless, of the opinion that the

legislature did not intend to cast an onus on the accused.

The first one flows from a remark in Ngoma's case (supra at p

671) where CORBETT JA said :

" ..... it would be palpably contrary to public

policy and to the intention of the Legislature if
persons actually under the age of 18 years were
dealt with, in terms of s 277(2), on the factual
basis that they were 18 years or older."

I respectfully agree. And this is precisely what may happen

if ........ 19
 19.

if the onus were to be cast on the accused. Bearing in mind

that the incidence of the onus becomes relevant and decisive

only where there is uncertainty arising from the lack of

evidence relating to the fact in issue, it is clear that, if

the accused were to bear the onus , the second pro-vision

cannot be applied whenever there is no or insuffi-cient

evidence of his age. He will then be treated as if he were

18 years or older although (as in the present case) he may

well have been younger. Taking into account the

legislature's avowed intention of treating persons under the

age of 18 differently from others, such a result could, in

my view, not have been intended. Nor does it accord with

public policy.

The ........20
 20.

The second reason is that sec 337 of the Criminal

Procedure Act deals expressly with the situation where there

is no or insufficient evidence of an accused's age. As

mentioned earlier it permits the court to assess his age in

such a case by his appearance or from any available in-

formation. This is the answer which the legislature has

provided to the problem which would otherwise be solved by

the incidence of the burden of proof and it is hardly like-

ly that the Act would have contained such a provision had it

been the intention to cast the onus of proving his age on

the accused (or on the State, for that matter) for pur-poses

of the application of the second provision of sec 277(2). I

am not unmindful of the shortcomings of sec 337.

To........ 21
 21.

To assess an accused's age with any measure of accuracy by

his appearance is neither easy nor satisfactory; in cases

like the present one where he appears to be near the

prescribed age, it may indeed be impossible to say whether

he is under or above it. It is for reasons like these that

it has been said (e g in S v Seleke en Andere 1976 (1) SA

675 (T) at p 688) that sec 337 should only be used as a last

resort. Naturally, the impossible cannot be expected and if

the accused's age cannot be assessed with the required

degree of accuracy, nothing further can be done. But the

uncertainty which then exists, must enure for his benefit

and not against him. He should not be dealt with as if he

had already reached the prescribed age at the time of the

murder 22
 22.

murder.

The problem which arose in the present case is by no

means a novel one. The law reports abound with decisions in

cases where the accused's age was relevant fór purposes of

sentence e g in terms of secs 334 ter and quat and sec 335

of Act 56 of 1955 or in terms of sec 4(1) of the Dange-rous

Weapons Act 71 of 1968. In all these cases it was held to be

the duty of the presiding officer to satisfy him-self as to

the accused's age. (See e g R v Hadebe and Another 1960 (1) SA

488 (7); R v Hlongwane 1960(1) SA 309 (T); S v Seleke en

Andere (supra) ; S v Swato 1977 (3) SA 992 (0); cf R v

Matipa and Others 1959 (2) SA 396 (T); S v Manyololo 1969

(4) SA 356 (E); R v Malevu 1961 (1) SA 284 (N)23

 23.

284 (N) ). And in S v Danjana and Another (judgment delivered

on 25 May 1973 and reported only in 1973(2) P H H(5) 81 )

this court adopted the same attitude in a case similar to

the present one.

Although it is thê court's task to assess the ac-

cused's age, the State and the accused both have an interest

in ensuring as accurate an assessment as possible. Both par-

ties should, therefore, assist the court to the best oftheir

ability to obtain all relevant information. It should not be

left to the concluding stages of the trial (as so often

happens) before proper enquiries are set afoot.' It has be-

come pratice for the accused's age to be mentionéd in the

indictment and it appears that investigating officers do

take......24
 24.

take the trouble to make some sort of enquiry before a

charge is preferred. But the courts have had occasion to

remark on the unreliability of this type of information

because its source is seldom known or, where it is known, it

is usually of such a nature that it cannot be relied upon.

If proper enquiry is made timeously by the State and by

defence counsel, both parties, or at least one of them,

should be in a position to present the court with positive

evidence (thus rendering recourse to sec 337 un-necessary,)

or at least with sufficiently reliable informa-tion to make a

fairly accurate assessment possible. The court's burden will

be appreciably alleviated if all those charged with the

investigation and presentation of the

case.......25
 25.

case bears this in mind.

The remaining question is what this court should now

do to dispose of the case. It is clear that the ruling

relating to the onus led the learned judge to the erroneous

belief that the second provision of sec 277(2) did not ap-

ply and that he had no discretion to pass a sentence other

than the death sentence unless extenuating circumstances

were proved. Amidst the irresoluble uncertainty regarding

the appellant's age and in view of the fact that there was a

real possibility that he could have been under the age of 18

years at the time of the murder, he should not have been

dealt with as if he had already reached that age. There was

thus no need for the court to enquire into the existence

of...... 26
 26

of extenuating circumstances nor is it necessary for this

court to do so now. The learned judge has not exercised the

discretion which he had to impose a lighter sentence but

counsel were agreed that this court is in as good a position

as the learned judge to pass a proper sentence and requested

us to do so. Seeing that all the relevant information is

before us, we will accede to the request. In all the

circumstances of the case I consider a sentence of 12 years

imprisonment appropriate.

The appeal succeeds to the extent that the death

sentence imposed on the appellant is set aside. Substituted

therefor is a sentence of imprisonment for 12 years.

J J F HEFER JA

HOEXTER JA. )

CONCUR.
NICHOLAS AJA. )