Summary of Judgment

1. Introduction

The proceedings were an appeal-related reconsideration of death sentences imposed after convictions for murder, arising from a contract killing. The matter came before the Supreme Court of South Africa (Appellate Division) under the statutory mechanism introduced by later amending legislation governing capital sentences.

The parties were Phine Michael Mabaso, Mvayisa Siphamandla Sithole, Bhekisitha Nzuza, and Mfiluswa Bhacile Zuma as the four appellants, opposed by the State as respondent. The appellants had been tried together with a fifth accused, John Benghu, in the Zululand Circuit Local Division.

In the trial court (Law J sitting with assessors), all five accused were convicted of murder. Extenuating circumstances were found in Benghu’s case and he received a term of imprisonment. No extenuating circumstances were found in respect of the four appellants, and each was sentenced to death on 2 July 1988. Leave to appeal was granted to appellants 1, 2, and 4 against conviction; and all four appellants received leave to appeal against sentence. On 24 May 1989 the Appellate Division dismissed the conviction appeals of appellants 1, 2 and 4, and dismissed all four appellants’ appeals against the death sentences.

After the coming into operation of the Criminal Law Amendment Act 107 of 1990 on 27 July 1990, the death sentences were reconsidered by the panel appointed under section 19 of that Act. The panel concluded that the trial court would probably have imposed the death sentences even if the amended section 277 of the Criminal Procedure Act 51 of 1977 had been operative at the time. The matter then came before the Appellate Division in terms of section 19(12) of the 1990 Act.

The dispute concerned whether, on reconsideration under the new statutory regime and having regard to mitigating and aggravating factors, the death sentences should be confirmed or replaced with lesser sentences.

2. Material Facts

The court proceeded on a factual basis that had been fully set out in the earlier appellate judgment, and repeated only those facts necessary to make the present judgment intelligible. The relevant facts concerned the planning and execution of a hired killing and the roles played by each appellant.

The first and second appellants, aged 24 and 25 respectively, were hired by the third and fourth appellants, aged 34 and 49, to murder the deceased. The deceased was the driver of a bus operating on a route that, until shortly before the murder, had been the exclusive preserve of a taxi service operated by the third and fourth appellants. The advent of the bus service caused substantial loss of business to the third and fourth appellants. It was not challenged during the trial that the competition from the bus service “would kill the taxi drivers’ business”.

The third and fourth appellants offered to pay the first and second appellants to kill the deceased. They supplied the firearms used, and provided transport to the place where the first and second appellants boarded the bus driven by the deceased. They waited for the two killers at the bus stop where the first and second appellants had been instructed to shoot the deceased. After the killing, the firearms were returned and the first and second appellants were paid. The court regarded it as clear that the purpose of the killing was to induce the owner of the bus service to abandon the route, thereby removing lawful competition.

As to personal circumstances relevant to sentence, the fourth appellant had previous convictions for common assault and malicious injury to property dating from 1968, which the court considered should be ignored for present purposes. The third appellant had no prior convictions for crimes involving violence. The first and second appellants had no previous convictions at all. All four appellants were thus treated as first offenders, and each was in employment at the time of the murder. The court accepted that these circumstances indicated prospects of rehabilitation, supported further by stable home and family circumstances, and by the comparative youth of the first and second appellants and the lack of prior criminal involvement by the third and fourth appellants despite their age.

A disputed matter relevant to sentence concerned evidence of a mental illness allegedly suffered by the third appellant. The trial court had found it not established on a balance of probabilities that such condition influenced his participation in the murder. On reconsideration, the appellate court addressed whether, under the new statutory framework and in light of the psychiatric evidence, this could constitute a mitigating factor.

3. Legal Issues

The central questions before the court were directed to sentence, not conviction, and were concerned with whether the death sentences remained the only proper sentences upon reconsideration in terms of section 19(12) of the Criminal Law Amendment Act 107 of 1990.

The dispute primarily involved the application of sentencing principles to established facts, including an evaluative assessment of mitigating and aggravating factors. Within that assessment, the court had to decide whether any factors amounted to special or exceptional circumstances warranting a sentence other than death in the case of a hired killing.

A further legal issue arose from the third appellant’s submission that under the new Act the onus of negating mitigating factors rested on the State, and that the State had not discharged that onus concerning the alleged mental illness and diminished responsibility. The court thus had to evaluate the psychiatric evidence in the context of that submission and determine whether diminished responsibility had been excluded to the requisite standard for purposes of sentencing.

4. Court’s Reasoning

The court approached the matter by identifying and weighing mitigating and aggravating features in accordance with capital sentencing principles applicable at the time, and by reference to its prior decisions emphasising the particular gravity of contract killings.

On mitigation, the court treated as relevant that all appellants were effectively first offenders, that all were employed, that each appeared to come from stable family circumstances, and that these considerations collectively suggested rehabilitation prospects. The first and second appellants’ youth was considered to strengthen those prospects, while the third and fourth appellants’ reaching middle age without serious criminal involvement was similarly treated as supportive of rehabilitation prospects.

However, the court rejected several submissions advanced as mitigating. It did not accept that the first and second appellants’ lack of professional assassin status, or the absence of brutality accompanying the murder, constituted mitigating factors. The court characterised these as the absence of potential aggravation, rather than positive mitigation. It also rejected the contention that the short time between being hired and the murder was mitigating, reasoning that on any version the hired killers had time to repent and must have been acutely aware, while travelling on the bus, of what they were about to do. The court accordingly described the murder as cold-blooded and calculated.

On the third appellant’s alleged mental illness, the court considered the psychiatric evidence as it bore on diminished responsibility at the relevant time. The evidence of Dr Lind for the defence was that the third appellant suffered from an underlying anxiety state with recurring acute episodes during which diminished responsibility could occur, but that between episodes he would be normal. Dr Lind conceded that if the third appellant had been in an acute anxiety state he would have been incapable of driving long distances, whereas he had admittedly driven long distances twice on the day of the murder. He further conceded that the appellant must therefore have been in a normal state and not suffering diminished responsibility at the relevant time. Two psychiatrists for the State opined that the third appellant suffered from a neurotic condition that could periodically produce hysteria, but that there were no indications of diminished responsibility at any relevant time. On this evidence, the court concluded that it had been established beyond reasonable doubt that the third appellant’s mental state at the time of planning and at the time of the killing was not abnormal, and thus did not constitute a mitigating factor.

The court also dealt with the motive advanced on behalf of the third and fourth appellants, namely that their motive was not greed but fear of losing their livelihood due to competition from the bus service. Accepting the factual contention that their business was threatened, the court nonetheless held it difficult to see how this could mitigate the murder of an employee of a lawful competitor in order to intimidate that competitor into abandoning its enterprise. The court added that if the motive were only greed, it might have been aggravating, but the absence of greed did not operate positively as mitigation in this context.

On aggravation, the court treated the matter as a paradigmatic hired/contract killing, emphasising the revulsion and danger such crimes pose to society and the predominance of deterrent and retributive purposes of punishment in such cases. It relied on prior authority stressing that hired killers must understand that, save in exceptional circumstances, courts will impose the ultimate sentence, and that society is unlikely to regard even a life sentence as adequate retribution in the ordinary hired-killing case.

The court evaluated authorities cited by the defence where death sentences imposed on hired killers had been set aside. It distinguished those decisions on the basis that each involved special or exceptional circumstances. In S v Dombeni, the appellant’s participation was found to be minor and impulsive, and he was recruited on the evening the murders were committed. In S v Mjezeni Ziyaqolima Nkosi, the court had found that the appellant likely acted not merely for mercenary reasons, but also due to a desire to correct a perceived wrong done to a friend. These features were not present in the appellants’ case.

While accepting the general proposition that a death sentence is not automatically the only proper sentence for a hired killer, the court held that the present matter disclosed no special or exceptional circumstances justifying departure from the ultimate penalty. Having given due consideration to the appellants’ personal circumstances, the court concluded that the aggravating features far outweighed the mitigating factors. It further held there was no basis to treat any of the four appellants differently, noting that it was unnecessary to resolve which is more morally blameworthy as between hirer and killer in order to dispose of the sentencing question in this case.

5. Outcome and Relief

The appeals were dismissed. The court confirmed the death sentences imposed on each of the four appellants. No separate or additional costs order was recorded in the judgment.

Cases Cited

S v Mlumbi en 'n Ander 1991(1) SACR 235 (A)

S v Dlomo and Others 1991(2) SACR 473 (A)

S v Dombeni 1991(2) SACR 241 (A)

S v Mjezeni Ziyaqolima Nkosi (Case No 36/91, judgment delivered 6 September 1991)

Legislation Cited

Criminal Law Amendment Act 107 of 1990

Criminal Procedure Act 51 of 1977 (as amended), section 277

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division, hearing the matter under section 19(12) of the Criminal Law Amendment Act 107 of 1990 following panel reconsideration of pre-amendment death sentences, held that there were no mitigating factors amounting to special or exceptional circumstances in this contract killing. It rejected reliance on the absence of brutality, the non-professional status of the killers, the short period between hiring and killing, and the alleged mental illness of the third appellant as mitigating considerations on the evidence. It further held that the aggravating features inherent in a planned hired murder predominated, and that the only proper sentence for each appellant remained death. The appeals were dismissed and the death sentences confirmed.

LEGAL PRINCIPLES

The judgment applied the principle that contract or hired killing is regarded as an especially grave category of murder, one which civil society cannot tolerate, and in which the deterrent and retributive purposes of punishment assume particular prominence.

It reaffirmed that, while the death sentence is not mechanically automatic in every hired-killing case, a sentence other than death will generally require special or exceptional circumstances. The court assessed whether such circumstances were present by evaluating the totality of mitigating and aggravating factors rather than by treating the absence of certain aggravating features as affirmative mitigation.

The court further applied the principle that asserted mitigation based on mental illness or diminished responsibility must be supported on the evidence as bearing on the accused’s mental state at the relevant time; where the evidence establishes that the accused was normal at the time of planning and commission, the condition will not operate as a mitigating factor for sentence.

Finally, the judgment illustrated that personal mitigating factors such as first-offender status, employment, and rehabilitation prospects may be acknowledged yet still be outweighed by the severity and societal implications of a planned, remunerated murder, particularly where no special or exceptional circumstances are present to justify a lesser sentence.