Brief Summary

Criminal Law — Robbery with aggravating circumstances — Attempted murder — Appellant and accomplice attacked complainant in his shop, inflicting multiple stab wounds and stealing cash and property — Appellant recognized by complainant during the attack — Conviction for robbery with aggravating circumstances and attempted murder upheld — Death sentence imposed for robbery — Court required to consider mitigating and aggravating factors in sentencing, with death sentence only appropriate if it is the only proper sentence — No mitigating factors found, and brutality of the attack justified the death sentence.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an appeal in the Supreme Court of South Africa (Appellate Division) against the imposition of the death sentence following a conviction for robbery with aggravating circumstances. The appeal was directed only at sentence, not conviction.

The appellant, Jerry Morten, was the accused person at trial and the person sentenced to death on the robbery count. The respondent was the State. The matter came before the Appellate Division after the trial court convicted the appellant of robbery with aggravating circumstances (as defined in section 1 of Act 51 of 1977) and attempted murder, and imposed death for the robbery and seven years’ imprisonment for attempted murder.

The dispute on appeal concerned the appropriateness of the death sentence in light of the statutory approach introduced by the Criminal Law Amendment Act 107 of 1990, and the Appellate Division’s duty to consider whether death was “the only proper sentence” in all the circumstances.

2. Material Facts

In the early morning of 12 January 1988, the complainant, Mr Thakordas Dajie, proprietor of Bops Radio and T.V. Shop in Kinross, received a telephone call at home requesting that he open his shop early to receive a television set for repairs. He agreed to meet at 07h00 and drove to the premises.

On arrival, Dajie observed a yellow van outside and two men near the door. After he opened the shop and went inside, the two men followed. One of them, later identified as Piccanini Mlinyane (accused no. 2), engaged Dajie in conversation in the workshop area. The other man, the appellant, entered wearing a balaclava and armed with a reasonably large knife, demanded Dajie’s revolver and money, and then—while accused no. 2 restrained Dajie from behind—stabbed him in the ribs. The attack continued, with the appellant repeatedly stabbing Dajie and accused no. 2 assaulting him, until Dajie lost consciousness.

During the assault, Dajie pulled off the appellant’s balaclava and recognised him as “Jerry”, a person who had previously done odd jobs for him. The stabbing, however, began before this recognition and continued thereafter. The assailants took the safe keys, removed approximately R14 000 to R15 000 in cash and various unbanked cheques, and the appellant drove away in Dajie’s Datsun bakkie, which was never recovered. Dajie also reported that personal items (including a chain and wristwatch) were taken.

Medical evidence accepted by the court established that Dajie suffered numerous severe stab wounds, including 17 stab wounds to the chest, additional wounds elsewhere, bruises, and multiple rib fractures. His condition was critical and he survived due to prompt medical attention. The consequences were lasting: Dajie’s ability to work and run his business was seriously impaired, and he was compelled to sell the business.

The appellant’s version at trial conceded involvement in the incident to the extent that he admitted going to the shop with another man, assaulting Dajie (but only by slapping), taking the safe keys, stealing the money and cheques, and taking and driving away the bakkie. He denied stabbing Dajie and suggested that his companion was responsible for the injuries. The trial court rejected the appellant’s evidence, describing him as a poor witness. The appellant also made a confession admitting complicity in the robbery while denying the stabbing, and he attempted at trial to alter material aspects of that confession regarding the identity of his accomplice.

3. Legal Issues

The central question on appeal was a sentencing issue: whether, having regard to the applicable statutory framework and the facts found proved, the death sentence imposed for robbery with aggravating circumstances was the only proper sentence.

The issue required an evaluative application of legal principle to established facts. The court was required to identify aggravating and mitigating factors (as contemplated by the Criminal Law Amendment Act 107 of 1990) and to determine whether the statutory threshold for the imposition (and confirmation on appeal) of the death sentence was met. The appeal also raised, as part of the sentencing framework discussed by the court, the principle that sentencing must avoid duplication of punishment where overlapping facts underpin multiple convictions, although no separate argument was advanced on that point and there was no appeal against the attempted murder sentence.

4. Court’s Reasoning

The court approached the appeal within the framework created by the Criminal Law Amendment Act 107 of 1990, which altered the methodology for imposing the death sentence by requiring a finding on the presence or absence of mitigating and aggravating factors before death may be imposed. The Appellate Division reaffirmed its interpretation that the statutory phrase “the proper sentence” in this context means “the only proper sentence”, adopting the approach previously articulated in the reported authorities.

The court also emphasised that, in an appeal against a death sentence, it exercises an independent discretion. This means that, even while having due regard to the trial court’s findings, the appellate court must itself determine whether it would have imposed the death sentence, and if not, it may substitute such punishment as it considers proper in terms of the empowering provisions of the 1990 Act.

On the relationship between the two convictions, the court acknowledged that the same factual matrix may legitimately sustain convictions for both robbery with aggravating circumstances and attempted murder. However, in sentencing, courts must guard against duplicating punishment by counting the same facts twice across different sentences. The court reviewed the relevant authority on this point and noted that, in the present matter, the trial judge treated the robbery as the more serious offence warranting the death sentence, and the attempted murder sentence did not reflect the full severity of the injuries. The court further observed that there was no appeal against the attempted murder sentence and no submission on duplication, and therefore it did not need to decide the matter on that basis.

Turning to the aggravating circumstances, the court attached significant weight to the appellant’s long criminal record spanning more than three decades, including multiple convictions for housebreaking and theft, repeated periods of imprisonment, a declaration as an habitual criminal, and convictions for escaping from custody. The timing was treated as significant: the appellant had been released on parole in September 1986 and committed the present offences in January 1988. This history was used to support the inference that imprisonment had not had a reformative effect and that the appellant remained habitually inclined to criminal conduct.

The court also regarded the robbery as carefully planned, involving the luring of the complainant to the shop early in the morning before customers arrived, to enable a surprise attack in the workshop. The attack was characterised by extreme brutality and a wanton excess of violence. The court considered the appellant’s motive to be simple avarice coupled with a callous disregard for the complainant’s life and property. The severity and number of stab wounds, the complainant’s near-fatal condition, and the permanent disruption to his life and livelihood were treated as aggravating.

The court found no remorse, noting that the appellant sought in both his confession and evidence to shift blame onto others, including by implicating his co-accused and later positing an “imaginary” third person. It stated that it was unable to identify any mitigating factors worthy of consideration, and none were suggested in argument. It nevertheless made clear that the absence of mitigation was not, by itself, decisive; the statutory test remained whether death was the only proper sentence in all the circumstances.

In assessing whether any lesser sentence could adequately address the crime, the court considered the appellant’s demonstrated propensity to escape custody and concluded that even life imprisonment would not appear to provide adequate protection for society. In the evaluative balance, and with reference to the notion of retribution in particularly shocking cases (as expressed in earlier authority), the court concluded that the gravity of the appellant’s conduct was such that the death sentence was the only proper sentence.

5. Outcome and Relief

The Appellate Division held that the death sentence imposed for robbery with aggravating circumstances was, on the facts and in the statutory context, the only proper sentence.

The appeal was accordingly dismissed, with the result that the death sentence on the robbery count remained in force. No alteration was made to the sentence for attempted murder, which was not the subject of the appeal. The judgment, as reported, did not set out a separate costs order.

Cases Cited

S v Nkwanyana and Others 1990 (4) SA 735 (A).

S v Moloto 1982 (1) SA 844 (A).

R v Cain 1959 (3) SA 376 (A).

S v Mathebula 1978 (2) SA 607 (A).

S v Witbooi 1982 (1) SA 30 (A).

S v Matthee 1971 (3) SA 769 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 1 (definition of robbery with aggravating circumstances).

Criminal Law Amendment Act 107 of 1990, section 4.

Criminal Law Amendment Act 107 of 1990, section 13(b).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, applying the post-1990 statutory approach to capital sentencing and exercising its independent discretion on appeal, there were no mitigating factors and substantial aggravating factors, including a carefully planned robbery, extreme violence resulting in life-threatening and lasting injuries, absence of remorse, and an extensive history of serious prior offending including escapes from custody.

It further held that, in the circumstances, the death sentence was the only proper sentence for the robbery with aggravating circumstances. The appeal against the death sentence was dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that, under the Criminal Law Amendment Act 107 of 1990, a court may impose the death sentence only after making a finding on mitigating and aggravating factors, and only if death is “the proper sentence”, interpreted by the Appellate Division to mean “the only proper sentence” in all the circumstances.

It confirmed that, on appeal against a death sentence, the Appellate Division exercises an independent discretion. Even where the trial court has made relevant findings, the appellate court must itself decide whether it would impose death; if it would not, it is empowered to substitute a sentence it considers proper.

The judgment also reaffirmed the sentencing principle that, while the same facts may support multiple convictions (such as robbery with aggravating circumstances and attempted murder), a sentencing court must guard against duplication of punishment by counting the same aggravating facts twice when imposing separate sentences, even though those facts may remain relevant to characterising the seriousness of the robbery as aggravated.

S v Morten (300/90) [1991] ZASCA 23 (22 March 1991)