Summary of Judgment

Introduction

The proceedings were an appeal to the Supreme Court of South Africa (Appellate Division) concerning the confirmation of death sentences imposed for murder. The appeal did not revisit the merits of the convictions; it concerned sentencing under the statutory framework introduced after the trial.

The parties were Naftan Mchunu (first appellant, accused no 1) and Mphikwa Ndlela (second appellant, accused no 4) as appellants, and the State as respondent. Two other co-accused (accused nos 2 and 3) had been tried with them in the court of first instance but were not appellants in this appeal.

In the Natal Provincial Division, NIENABER J (sitting with two assessors) convicted all four accused of murder. Accused nos 2, 3 and 4 were also convicted of common assault. The trial court found no extenuating circumstances in respect of accused nos 1, 3 and 4 and, under the law then applicable, imposed the death sentence on each of them. Accused no 2 received 15 years’ imprisonment for murder. The trial judge refused leave to appeal against the “no extenuating circumstances” finding and the consequent death sentences, and subsequent petitions for leave to appeal were unsuccessful.

After the trial, the Criminal Law Amendment Act 107 of 1990 came into operation. In terms of the reconsideration mechanism created by that Act, a panel found (under section 19(10)(a)) that the death sentence would probably have been imposed on accused nos 1 and 4 had the substituted section 277 of the Criminal Procedure Act 51 of 1977 been in force at the time of sentence. The matter therefore came before the Appellate Division as an appeal in terms of section 19(12) of the 1990 Act.

The general subject-matter of the dispute was whether, on the established facts and with reference to aggravating and mitigating features, the death sentence was the only proper sentence for each of the two appellants under the post-1990 statutory sentencing approach.

Material Facts

During the early morning of 31 March 1987, the deceased, a 35-year-old woman, was arrested at her home in the Ntzinga area. The arrest was executed by accused nos 2, 3 and 4, who were constables stationed at Impendle. Accused no 4 was the investigating officer. The deceased was taken to the charge office at Impendle, later charged with trading without a licence, and released that same day.

After her release, the deceased complained that she had been assaulted by accused nos 2, 3 and 4. On 1 April 1987, she laid a charge of assault against them. That evening, accused nos 2, 3 and 4 approached Mandla Zondo, a shopkeeper, and asked him to assist them by killing the deceased. Zondo refused.

The next day, the station commander took a statement from the deceased and arranged a medical examination. After discovering a rubber tube in the police vehicle used to convey the deceased, he informed accused nos 2, 3 and 4 that a charge of attempted murder would be brought against them. Later that day, accused nos 3 and 4 returned to Zondo’s shop and asked to speak to Zondo’s shop assistant, accused no 1. They requested that accused no 1 kill the deceased; he agreed for R2 000.

Later that week, the deceased was pointed out to accused no 1 by the other accused, and they provided him with a 9 mm pistol. On 7 April 1987, the deceased attended an identification parade at the Impendle Police Station and identified accused nos 2, 3 and 4 as the men who had assaulted her.

That afternoon, accused nos 3 and 4 fetched accused no 1 from the shop and drove him to a mealie field near the deceased’s home, where they left him to await her. The deceased returned from Impendle, alighted near her home, and walked across the mealie field along a footpath. Accused no 1, lying in wait, fired two shots at her with the 9 mm pistol. One bullet struck her in the face and the other in the back of the neck, killing her instantly.

The trial court found that accused no 2, although not present when the deceased was killed, was from the beginning deeply involved in the plot. It held that accused nos 2, 3 and 4 conspired to kill the deceased to eliminate her as a witness against them and that they used accused no 1 as the instrument to do so. These findings formed the factual foundation for assessing the appellants’ moral blameworthiness and sentence.

Legal Issues

The central legal questions concerned the appropriateness of the death sentence for each appellant under the statutory reconsideration-and-appeal framework created by the Criminal Law Amendment Act 107 of 1990, specifically in an appeal brought under section 19(12) following a panel’s opinion under section 19(10)(a).

The dispute required the court primarily to apply established sentencing principles to the facts as found at trial, rather than to resolve factual disputes about what occurred. The inquiry was evaluative: whether, considering the proven circumstances of the murder, the aggravating features, and any mitigating features accepted on the record, the death sentence was the only proper sentence for each of accused no 1 (the hired killer) and accused no 4 (the police officer who participated in procuring the killing).

A subsidiary issue was whether certain alleged mitigating factors advanced on behalf of each appellant could properly be accepted, given the trial court’s findings (including the trial court’s rejection of portions of accused no 1’s extenuation evidence).

Court’s Reasoning

The Appellate Division noted that the principles governing appeals against death sentences under the new legislation had been stated in recent decisions and did not require repetition. The court therefore directed itself to applying those principles to the facts of the case as found.

In assessing sentence, the court emphasised the obvious and weighty aggravating factors applicable to both appellants. Accused no 1 was characterised as a hired assassin acting for reward, and his conduct was treated as particularly serious because it involved deliberate, paid killing. Accused no 4 was a policeman who solicited an outsider to kill an innocent person, not for any immediate or provoked reason, but to eliminate a witness and thereby cover up criminal conduct committed in his capacity as a police officer. The court endorsed the trial court’s description of accused no 4’s conduct as “truly chilling” in its implications for public trust in police integrity and discipline.

The court further highlighted that both appellants acted with dolus directus and that the killing was not impulsive. It followed days of careful plotting and preparation, allowing time for reflection. This deliberation was treated as compounding the gravity of the offence, because it negated any suggestion of an uncontrolled or situational reaction.

The judgment located the seriousness of hired killing within the Appellate Division’s established approach. It referred to prior decisions treating the use of a hired assassin as a highly serious aggravating feature and treated the present facts—especially the involvement of a police officer in commissioning the killing—as even more reprehensible.

Turning to mitigation, the court assessed the factors advanced on behalf of accused no 1. His youth (21 at the time) and his lack of previous convictions were accepted as mitigating factors that had to be taken into account. However, the claim that he acted under the influence of Zondo had been raised only when he testified in extenuation and had been rejected by the trial court as untrue. The Appellate Division was not persuaded that the trial court erred in rejecting that evidence. As to the submission that accused no 1 was influenced by the other accused, the court pointed out that accused no 1 had not claimed such influence and that there was no factual basis for it on the record.

As regards accused no 4, several mitigating factors were put forward, including youth (26 at the time), a clean record, background and character, alleged influence by others, and a supposedly lesser role. The Appellate Division accepted only his age and clean record as mitigating. The remaining submissions were rejected as without merit, because accused no 4 was the most senior and experienced among the constables, conducted negotiations with Zondo and accused no 1, acted as spokesperson, and played a leading role rather than acting under influence.

The court framed the decisive inquiry as whether, on a proper weighing of aggravation and mitigation, the death sentence was the only proper sentence for each appellant. It regarded assassination for reward as inherently heinous and found no special circumstances capable of diminishing the heinous nature of the crime on these facts. The court held that, in such circumstances, the deterrent and retributive purposes of punishment outweighed other considerations. It adopted and applied the sentiment expressed in the unreported decision of S v Mabaso and Others (delivered 20 March 1992), emphasising that hired killing provokes revulsion and that civilised society will not tolerate it, with deterrence and retribution predominating in sentencing.

On that basis, the court concluded that this was an exceptionally serious case in which the death sentence was “imperatively called for” for both appellants.

Outcome and Relief

The Appellate Division dismissed the appeals brought by accused no 1 and accused no 4 under section 19(12) of the Criminal Law Amendment Act 107 of 1990.

The court confirmed the death sentences imposed on accused no 1 and accused no 4.

No distinct costs order is recorded in the judgment.

Cases Cited

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

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

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

S v Mabaso and Others (case no 301/91, Appellate Division, judgment delivered 20 March 1992) (unreported)

Legislation Cited

Criminal Law Amendment Act 107 of 1990 (sections 19(8), 19(10)(a), 19(12))

Criminal Procedure Act 51 of 1977 (section 277, as substituted by section 4 of the Criminal Law Amendment Act 107 of 1990)

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The court held that, having regard to the proved facts and the balance of aggravating and mitigating factors, the murders constituted an exceptionally serious instance of planned, deliberate hired killing, commissioned by police officers to eliminate a witness. It held further that the limited mitigating factors accepted for each appellant (youth and absence of previous convictions) were insufficient to displace the predominance of deterrent and retributive sentencing considerations on these facts. Accordingly, the court held that the death sentence was the only proper sentence for each of accused no 1 and accused no 4, and it confirmed those sentences.

LEGAL PRINCIPLES

The judgment applied the principle that, under the post-1990 statutory scheme governing reconsideration and appeal in death sentence matters, the appellate court must evaluate whether, on a proper weighing of established aggravating and mitigating factors, the death sentence is the only proper sentence on the proven facts.

It reaffirmed that hired killing for reward is treated as intrinsically heinous and is regarded by the Appellate Division as a particularly serious aggravating feature in sentencing. Where a hired assassin is used, deterrent and retributive purposes of punishment may predominate.

It further applied the principle that the involvement of a police officer in procuring the killing of a witness—particularly to cover up criminal conduct committed in the course of policing duties—constitutes severe aggravation, reflecting a profound breach of public trust, and may elevate the reprehensibility of the offence.

The judgment also applied the approach that alleged mitigating factors must be grounded in the record and accepted findings. Where the trial court has rejected extenuation evidence as untrue, and no misdirection is shown, an appellate court will not accept that evidence as mitigating. In addition, mitigation submissions lacking a factual basis in the accused’s own case or the court’s findings cannot be treated as mitigating.