Summary of Judgment

1. Introduction

The proceedings concerned a reconsideration of two death sentences imposed on the appellant following convictions for two counts of murder, together with various additional offences arising from the same sequence of events. The matter came before the Supreme Court of South Africa (Appellate Division) under the statutory reconsideration mechanism introduced by the Criminal Law Amendment Act 107 of 1990.

The parties were Oupa Alex Seheri as the appellant and the State as the respondent. The appellant had been convicted in the Witwatersrand Local Division, where no extenuating circumstances were found in relation to either murder, and he was sentenced to death on each murder count, with an effective 15 years’ imprisonment on the remaining counts.

The appellant was originally granted leave to appeal to the Appellate Division against the death sentences, but that appeal was dismissed. After the dismissal, the Criminal Law Amendment Act 107 of 1990 (“the new Act”) came into operation, creating a new dispensation for death sentence matters. The appellant’s case was then reconsidered by an appointed panel in terms of section 19(1) of the new Act, which concluded that the trial court would probably have imposed the death sentences even if the amended regime (including the amendment of section 277 of the Criminal Procedure Act 51 of 1977) had applied at the time.

The matter therefore returned to the Appellate Division in terms of section 19(12) of the new Act, requiring the court to consider afresh whether the death sentences were justified under the applicable test, namely whether, having due regard to mitigating and aggravating factors and the objects of sentencing, the death sentences were the only proper sentences. The dispute was situated within the broader subject-matter of sentencing for murder, including the relevance of alleged mental abnormality and the weighing of mitigation against aggravation in determining whether the ultimate penalty was warranted.

2. Material Facts

The court proceeded on the basis of the facts relevant to sentence as previously set out in the earlier appellate judgment, and summarised only those aspects material to the renewed inquiry into sentence. The appellant was a member of the ANC’s military wing and had entered the Republic illegally, with one of his tasks being to train ANC members in the use of firearms. On the evening of 24 January 1987, he was to instruct certain persons in the use of a Scorpion machine pistol (“the Scorpion”) that had come into his possession earlier that day, but they did not arrive.

The appellant then went to a shebeen (belonging to co-accused number 2 at trial), where he consumed liquor. The two deceased, referred to as Mlando and Xola, were present with friends. An altercation arose between the appellant and Xola after the appellant had burnt Xola’s trousers with a cigarette (possibly accidentally), but the altercation was found to be largely of the appellant’s making. A fight followed outside; Xola got the better of it. The appellant attempted to draw the Scorpion but was disarmed by Xola’s brother. Xola and the others left with the Scorpion and refused the appellant’s requests for its return.

The group went to Xola’s house and the Scorpion was given to Xola’s sister, Faith, to keep. She hid it under a dining room table. The appellant then gathered assistance in order to recover the Scorpion and armed himself with an AK 47 rifle (“the AK 47”). The appellant and his companions went to Xola’s house, where the appellant fired shots indiscriminately at persons outside, seriously wounding two people. Mlando was cornered and taken at gunpoint into the house, where Faith and her mother were present. The appellant demanded the Scorpion. Mlando struck Faith and told the appellant to shoot her, asserting she had the firearm. The appellant instead shot Mlando in the hip; Mlando later bled to death. Faith denied knowledge of the Scorpion. After the appellant left, Faith hid the Scorpion in a coal box at the back of the house.

The appellant later found Xola, brought him back to his house at gunpoint, and threatened to kill him in front of Faith and her mother. Faith indicated that she would be able to assist if the appellant wanted the Scorpion, which enabled him to locate and retrieve it. After recovering the Scorpion, the appellant returned to the house, forced entry, and again threatened to kill Xola. Xola was on his knees and Faith pleaded for mercy. The appellant initially relented and left with his companions.

Outside, accused number 2 asked if Xola had been killed. The appellant said no, adding that he had “taught him not to be forward”. Accused number 2 urged the appellant to “go and kill the dog and erase the evidence”. The appellant returned to the house, summoned Faith and her mother to the room where Xola remained on his knees, and shot Xola twice in the head with the AK 47, killing him instantly. The appellant and his companions then left.

In relation to mitigation, it was common cause that the appellant relied primarily on an alleged mental condition. Expert evidence was led from a clinical psychologist (Mr Graeme Friedman) and a clinical neuro-psychologist (Dr Victor Nell), who diagnosed the appellant as suffering from a personality disorder, with Dr Nell describing a condition termed the dyscontrol syndrome, involving unpredictable explosive outbursts and irrationality during rage. The trial court accepted Dr Nell’s evidence, though with misgivings, but found that whatever the appellant’s condition, it did not influence his conduct on the night. This court noted that those findings had been accepted and supported in the earlier appellate judgment and saw no basis to depart from them in the reconsideration.

The appellant’s own evidence was that he was “not much affected” by alcohol. The court treated it as relevant that the appellant’s predicament was largely self-created, and that his conduct throughout the events displayed control, calculation, and rational pursuit of his objective (recovery of the Scorpion), rather than loss of self-control consistent with the dyscontrol syndrome as described.

3. Legal Issues

The central legal question was whether, under the reconsideration regime introduced by the Criminal Law Amendment Act 107 of 1990, the death sentences imposed on each murder count were the only proper sentences when assessed with due regard to mitigating factors, aggravating factors, and the objects of punishment.

A critical subsidiary issue was whether the appellant’s alleged abnormal mental condition constituted a mitigating factor relevant to sentence, either because it reduced moral blameworthiness or because it causally influenced the commission of the murders. This was primarily an application of legal sentencing principles to the facts, informed by evaluative judgments about culpability, deterrence, retribution, and prospects of rehabilitation.

A further issue concerned the weight to be assigned to personal circumstances (including the appellant’s age, prior convictions, prospects of rehabilitation, and absence of remorse) relative to the gravity of the crimes and the manner of their commission. The inquiry necessarily involved a value judgment in sentencing, constrained by the statutory test for confirming death sentences under the new dispensation.

4. Court’s Reasoning

The court approached the matter on the basis that it was required to reconsider the death sentences afresh under section 19(12) of the new Act, applying the test whether the death sentence on each count was the only proper sentence after weighing mitigation and aggravation and considering the purposes of punishment.

On the asserted mental abnormality, the court accepted that expert testimony had described a mixed personality disorder and, more specifically, a purported dyscontrol syndrome involving irrational, unpredictable outbursts. However, it endorsed the trial court’s conclusion (which had already been upheld in the earlier appellate decision) that the appellant’s condition did not influence his conduct during the events in question. The court considered the appellant’s actions to have been controlled and calculated, rather than impulsive or irrational. It emphasised that anger or distress at being deprived of the Scorpion did not, without more, establish loss of self-control or impairment of foresight and intention.

The court treated the overall sequence as demonstrating rational pursuit of a goal. Even if the decision to shoot Mlando was taken on the spur of the moment, it was still characterised as a deliberate and callous act designed to intimidate. The court further held that the appellant’s subsequent conduct reflected continued self-control up to the point where he momentarily relented in response to pleas that Xola be spared. Importantly, when the appellant later returned and executed Xola, the court found no behaviour consistent with the syndrome described by Dr Nell; instead, the killing was carried out in a cold-blooded, methodical manner, including the insistence that Faith and her mother witness it.

As to the argument that the appellant’s rapid change of mind (from sparing Xola to killing him) was “irrational” and thus explained by abnormality, the court rejected that inference. It regarded the most plausible explanation suggested by the evidence as the elimination of Xola as a witness and the intimidation of Faith and her mother as potential witnesses. Even if no explanation were obvious, the court considered that the manner of execution remained calculated rather than irrational. On this basis, the appellant’s mental condition was ruled out as a causal or material factor and therefore did not operate as mitigation.

The court then weighed other mitigating factors. It took into account that the appellant was 33 years old at the time, with one juvenile conviction for housebreaking and theft, and was for practical purposes to be treated as a first offender, which counted in mitigation. The court also accepted that the appellant might be capable of rehabilitation, but qualified this by noting the absence of true remorse, which could militate against reformation.

Against this, the court identified substantial aggravation. The recovery operation was described as well planned and executed, with the appellant arming himself with an AK 47 and showing willingness to use it regardless of consequences. The indiscriminate shooting outside the house, the unnecessary shooting of Mlando (who posed no threat), and the callous leaving of Mlando to bleed to death were treated as serious aggravating features. In relation to intention, the court held that even if there was not direct intent to kill Mlando, the appellant must have foreseen death as a strong possibility; the court described his intent as, at the least, bordering on dolus directus. The killing of Xola was treated as an execution clearly performed with direct intent, compounded by its commission in the presence of Faith and her mother.

The court considered it relevant that the appellant killed twice, in separate but related incidents, and that the earlier killing did not deter the later execution. It concluded that the appellant’s conduct revealed him as a ruthless killer. In the final balancing, the court held that aggravating factors substantially outweighed mitigating ones. In assessing the objects of punishment, it determined that in a case of such seriousness, considerations of retribution and deterrence had to prevail over prospects of rehabilitation. On the standard articulated for the reconsideration, it found the death sentences to be imperatively called for and to be the only proper sentences on both counts.

5. Outcome and Relief

The appeal was dismissed. The court confirmed the death sentences imposed on each of the two murder counts. The judgment, as provided, did not record any alteration to the sentences on the remaining counts, nor did it expressly set out a distinct costs order.

Cases Cited

S v Seheri (160/91) [1992] ZASCA 40 (26 March 1992)

Legislation Cited

Criminal Law Amendment Act 107 of 1990

Criminal Procedure Act 51 of 1977

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division, reconsidering the matter under section 19(12) of the Criminal Law Amendment Act 107 of 1990, held that the appellant’s alleged abnormal mental condition did not causally influence his conduct during the murders and therefore did not constitute a mitigating factor. After weighing the limited mitigation (including first-offender status and possible rehabilitative prospects) against the substantial aggravation (planned armed operation, indiscriminate shooting, the callous shooting and abandonment of Mlando, and the cold-blooded execution of Xola), the court held that the death sentence on each murder count was the only proper sentence. The appeal was dismissed and the death sentences were confirmed.

LEGAL PRINCIPLES

The judgment applied the sentencing principle, under the reconsideration regime introduced by the Criminal Law Amendment Act 107 of 1990, that a death sentence may be confirmed only if, after considering the mitigating and aggravating circumstances and the objects of punishment, it is shown to be the only proper sentence.

It further applied the principle that an accused’s mental condition operates in mitigation only to the extent that it is shown to have been relevant and material to the conduct in question, including whether it causally affected self-control, rational decision-making, or moral blameworthiness. Where the evidence supports that the offender acted in a controlled, calculated, and rational manner, a personality disorder diagnosis, without demonstrated causal influence on the offences, does not mitigate sentence.

In the balancing of sentencing objectives, the judgment affirmed that in matters of exceptional seriousness featuring deliberate, brutal, and callous killings—particularly where the conduct is planned, intimidation is used, and executions are carried out in a calculated way—considerations of retribution and deterrence may outweigh prospects of rehabilitation, especially where remorse is absent.