Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the Appellate Division (now the Supreme Court of Appeal) against the imposition of the death sentence.

The appellant was Tsidiso Bevans Jafta Motsei, and the respondent was the State. The appeal was heard by Vivier AR, Friedman AR, and Preiss Wnd AR, with the judgment delivered by Vivier AR.

In the court of first instance, the Vrystaatse Provinsiale Afdeling (Free State Provincial Division), the appellant had been convicted by Kotze J and assessors on charges of murder, rape, and theft. He was sentenced to death for murder, 15 years’ imprisonment for rape, and 5 years’ imprisonment for theft. The appeal before the Appellate Division was directed only at the death sentence imposed for the murder conviction.

The general subject-matter of the dispute concerned the correct approach to, and outcome of, sentencing for murder under the post-1990 statutory regime governing the death penalty, specifically whether—having regard to mitigating and aggravating factors—the death sentence was “the appropriate sentence” on the facts found proved.

2. Material Facts

All three charges arose from an attack on a 29-year-old married woman from Riebeeckstad in the district of Welkom on Thursday, 15 March 1990. Three days before the attack, the deceased had employed the appellant as a gardener. At the time, the appellant ordinarily had permanent employment as a driver with a Welkom firm, but due to unrest in the area he could not work that week and had accepted temporary employment.

At approximately 11h00 on the day in question, the appellant left the deceased’s home with her in her motor vehicle, allegedly to look for flowers. What happened thereafter was not in dispute on appeal, and the Appellate Division proceeded on the trial court’s factual findings.

The appellant overpowered the deceased in the vehicle, forced her into submission with a knife, and compelled her to drive via a dirt road to an old, dilapidated pigsty situated in a remote and deserted open field near the black township Thabong. There he forced her into the pigsty and raped her.

After the rape, the appellant bound the deceased’s hands behind her back with wire, also bound her feet with wire, and then bound her hands and feet together. He placed a roll of paper in her mouth and tied a garment around her mouth. While she was helplessly bound in a semi-sitting position, with her legs folded underneath her, the appellant stabbed her 14 times from the front in the chest and abdomen with a knife. Three of the wounds penetrated the left lung and heart, and a fourth penetrated the liver. The wounds involving the lung and heart caused her death.

The appellant then took the deceased’s wallet, containing R18 in cash and various bank and credit cards, left the scene, and drove away in the deceased’s motor vehicle. Two days later he attempted to sell the vehicle to a scrap yard owner, Ntili, in Botshabelo. Ntili became suspicious and called the police. The appellant was arrested and in the early hours of the following day, 18 March 1990, he led the police to the murder scene and pointed out the deceased’s body.

At trial, the appellant’s evidence amounted to a complete denial of involvement in the murder, rape, and theft. The trial court rejected that testimony as false, and that rejection was not disputed on appeal.

3. Legal Issues

The central legal question was whether, under the statutory sentencing framework introduced by the Criminal Law Amendment Act 107 of 1990, the death sentence was, on the proved facts, the appropriate sentence for the murder conviction.

The appeal required determination of issues involving the application of law to fact and a value judgment in sentencing. In particular, the court had to assess which features of the case properly constituted aggravating and mitigating factors, and then to decide—by exercising its own independent sentencing discretion on appeal—whether the death sentence should be upheld.

A further, more specific issue raised by the appellant concerned the trial court’s finding that the appellant killed the deceased in order to eliminate her as a potential witness to the rape, and whether that inference was justified on the record.

4. Court’s Reasoning

The court situated the appeal within the legislative changes effected by the Criminal Law Amendment Act 107 of 1990, which had come into operation before the trial was finalised. The new regime replaced the former structure under which the death sentence could be mandatory and under which the enquiry focused on “extenuating circumstances”. Under the substituted section 277 of the Criminal Procedure Act 51 of 1977, the sentencing court must make a finding on the presence or absence of mitigating and aggravating factors, and may impose the death sentence only if, having regard to that finding, the presiding judge is satisfied that the death sentence is the appropriate sentence.

The court emphasised that “mitigating factors” under the new dispensation constitute a wider concept than the earlier notion of extenuating circumstances. It further noted that “mitigating or aggravating factors” include all factors which a court may properly consider in mitigation or aggravation of sentence. In this framework, the burden rests on the State both to prove aggravating factors and to negate mitigating factors.

The court then addressed the appellate standard under the new statutory appeal provisions. In terms of section 322(2A) of the Criminal Procedure Act (as inserted by the 1990 amendment), the Appellate Division may set aside a death sentence if it is of the view that it would not itself have imposed it, and may substitute the sentence it considers appropriate. The court therefore approached the matter on the footing that it must exercise an independent discretion, deciding for itself whether, on the record, the death sentence was the appropriate sentence.

On the merits, the court considered the aggravating factors identified by the trial court. Two in particular had been emphasised: the repeated infliction of stab wounds to the front of the body while the deceased was bound and helpless, and the conclusion that the appellant killed her to eliminate her as a witness to the rape. The appellant argued that the latter inference was incorrect, contending that if the intention had been to eliminate her as a witness, there would have been no attempt to gag her, and that it was more probable that the appellant acted in panic when he could not silence her. The Appellate Division was prepared to accept, in the appellant’s favour, that immediately after the rape his initial plan may have been to bind and gag her and then escape, rather than to kill her at that stage.

However, the court rejected the suggestion that the killing occurred because the appellant panicked. It noted that the appellant had not testified to panic despite having had the opportunity to do so, and that the objective circumstances did not support such an inference. The court stressed the nature and number of the wounds—particularly the multiple stab wounds in the region of the heart—as indicating deliberate, calculated, purposeful, and cold-blooded conduct rather than impulsive panic. It also considered the remoteness of the location, reasoning that there was no evident reason for panic given the distance from other people, and that there were other means available to silence the deceased without killing her. On this basis, the court concluded that the facts supported only one inference: the appellant changed his mind and decided to kill the deceased to eliminate her as a witness.

The court then turned to mitigation. It considered the two mitigating factors identified by the trial court—namely, that the murder was not planned long in advance and followed the rape, and that the appellant’s initial purpose after the rape may not have been to kill. The Appellate Division held that, on the facts of this case, the absence of long-term preplanning did not operate as mitigation, because the decision to kill was found to have been a considered decision, with sufficient time for reflection. It further regarded the appellant’s earlier possible intention not to kill as irrelevant in light of the later decision to kill and the manner in which it was carried out.

Additional reliance was placed by the appellant on his personal circumstances, including that he had only one prior conviction involving violence and that he had steady employment. The court declined to treat his criminal record as mitigating, pointing out that although there was only one relatively minor previous violent conviction, there were five other prior convictions, including for theft and for housebreaking with intent to steal and theft. The court characterised the record as showing a regressive crime pattern, with repeated offending soon after sentence or release, and with suspended sentences proving ineffective. It also noted that the appellant had been released from imprisonment only about six months before committing the present offences, which in the court’s view demonstrated poor prospects of reform. In this context, the fact of employment at the time of the offences was not accepted as mitigating, and the appellant was not viewed as a useful member of society.

Having found no mitigating factors of substance and having identified strong aggravating factors, the court evaluated whether any sentence short of death could be appropriate. It highlighted the horrific manner in which the deceased was killed while bound and in fear and pain, the appellant’s conduct after the killing, and his total lack of remorse, which the court treated as indicative of profound moral depravity. It concluded that the case was of exceptional seriousness, such that even life imprisonment would be inadequate and therefore not an appropriate sentence.

5. Outcome and Relief

The Appellate Division held that the death sentence was the appropriate sentence for the murder conviction on the facts proved and the applicable legal framework. The appeal against the death sentence was therefore dismissed, with the result that the death sentence imposed by the trial court remained in force. The judgment does not reflect any separate order as to costs.

Cases Cited

S v Masina and Others 1990 (4) SA 709 (A).

S v Senonohi 1990 (4) SA 727 (A).

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

S v S 1991 (2) SA 93 (A).

Ramba v Die Staat, unreported judgment of the Appellate Division, delivered 25 September 1990, case number 586/1989.

Legislation Cited

Criminal Law Amendment Act 107 of 1990.

Criminal Procedure Act 51 of 1977, section 277 (as substituted) and section 322(2A) (as inserted).

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The court held that, applying the sentencing regime introduced by the Criminal Law Amendment Act 107 of 1990 and exercising its own independent discretion under section 322(2A) of the Criminal Procedure Act 51 of 1977, the death sentence was the appropriate sentence for the appellant’s murder conviction. It affirmed the inference that the appellant decided to kill the deceased to eliminate her as a witness to the rape, found no mitigating factors warranting a lesser sentence, and concluded that the case was of exceptional seriousness such that even life imprisonment would be inadequate. The appeal was dismissed.

LEGAL PRINCIPLES

The substituted section 277 of the Criminal Procedure Act 51 of 1977 (as introduced by the Criminal Law Amendment Act 107 of 1990) requires a sentencing court, before imposing the death sentence, to consider and make findings regarding the presence or absence of mitigating and aggravating factors, and to impose death only if satisfied that it is the appropriate sentence.

Under the post-1990 framework, “mitigating factors” constitute a broader concept than the previous notion of “extenuating circumstances”, and the enquiry into mitigating and aggravating factors encompasses all factors properly relevant to sentence. The State bears the onus to prove aggravating factors and to negate mitigating factors.

In an appeal against a death sentence, section 322(2A) empowers the appellate court to exercise an independent sentencing discretion and to set aside and substitute the sentence if it concludes that it would not itself have imposed death.

Where the evidence supports it, a court may infer from objective facts—such as the manner, number, and placement of wounds and surrounding circumstances—that a killing was deliberate and calculated, and that it was committed with a particular motive, including the motive of eliminating a victim as a potential witness, even if an earlier intention may have been different.