Summary of Judgment

1. Introduction

This matter concerned an appeal-like reconsideration in the Appellate Division (now the Supreme Court of Appeal) focused on the appropriateness of two death sentences imposed for murder. The proceedings arose not from an ordinary appeal on conviction, but from the special statutory review mechanism introduced by section 19 of the Criminal Law Amendment Act 107 of 1990, read with the substituted section 277 of the Criminal Procedure Act 51 of 1977, which required the court to reassess whether the death sentence was the “appropriate sentence” under the amended regime.

The parties were Sibusisu Mzamali Mtungwa as the appellant and the State as the respondent. The appellant had previously been tried in the Witwatersrand Local Division before Vermooten J (with assessors), convicted on multiple counts including two murders, and sentenced to death on each murder count. He and a co-accused (Sibeko) had previously appealed; those appeals were dismissed and the earlier appellate judgment was reported.

Following the enactment of the Criminal Law Amendment Act 107 of 1990, a review panel established under section 19 considered the appellant’s death sentences. The panel concluded (in terms of section 19(10)) that the trial court would probably still have imposed the death sentences had the amended section 277 applied at the time. The matter therefore served before the Appellate Division in terms of section 19(12) for a determination whether, applying the new section 277, the death sentences were appropriate.

The general subject matter of the dispute was therefore sentencing—specifically, whether the facts and circumstances of the two murder convictions, evaluated under the post-amendment statutory framework and the Appellate Division’s established sentencing approach, justified confirmation of the death penalty.

2. Material Facts

The material facts accepted and relied upon by the court were rooted in an armed robbery attempt that occurred at approximately 20:30 on 28 November 1987 at the shop Lucky Take Away Foods in Lea Glen, Florida. The appellant, together with his co-accused and two other accomplices, went to the premises. At least some of the group, including the appellant, were armed with firearms. The group’s purpose was to rob the persons working in the shop.

Inside the shop were Luis and two other men, Da Vargem and Da Luz, who were engaged in work-related tasks. When there were no customers present, the armed group acted, pointing firearms at the three men with the apparent intention to rob them. Resistance arose when Luis attempted to obtain his own firearm; shots were fired by the attackers, and Luis was struck on the head. Luis nevertheless succeeded in obtaining a firearm and fired at the attackers. Further shots were fired by the attackers before they fled. Da Vargem and Da Luz were left dead in the shop, each having sustained fatal gunshot wounds.

A finding central to the sentencing reassessment was that the appellant fired the two shots that killed the deceased. That finding had been challenged in the earlier appeal but was upheld, and in the present proceedings it was not re-opened.

In considering factors relevant to sentence, the court relied on the appellant’s criminal history, which demonstrated repeated involvement in firearm-related robbery offences. In 1979 he was sentenced for attempted robbery involving a firearm and for unlawful possession of a firearm and ammunition, receiving a suspended term of imprisonment. In 1981 he was again sentenced for attempted robbery with a firearm and unlawful possession of a firearm and ammunition, receiving an effective custodial sentence. He was released on parole on 10 November 1987, and within 12 days—on 22 November 1987—he committed the first in a series of robberies for which he was convicted in the present matter. The offences in the series included robberies or attempted robberies in which the appellant or his accomplices were armed.

The court also considered, but treated with caution, the appellant’s earlier statement made before a magistrate describing the shooting as occurring after he was pushed or fell and after he was struck in the groin area, with “two Portuguese” being “on” him. The court emphasised that the statement did not clearly explain what precisely occurred, the nature of the alleged blow, or the meaning of the alleged aggression against him. The appellant’s trial testimony differed from this statement and was rejected by the trial court. The accepted evidence established at least that the robbery was attempted by armed offenders, resistance occurred, and the appellant shot and killed two unarmed people.

3. Legal Issues

The central legal issue was whether, applying section 277 of the Criminal Procedure Act 51 of 1977 as substituted by the Criminal Law Amendment Act 107 of 1990, the death sentence was the appropriate sentence for each of the two murders committed during the attempted armed robbery.

The dispute was predominantly one of application of law to fact within a sentencing framework, involving both evaluative and normative judgment. The court was required to identify and weigh aggravating and mitigating factors and then determine whether, in light of those factors and the applicable principles governing the imposition of the death penalty, the death sentence was justified as the appropriate sentence.

Within that inquiry, subsidiary issues included whether the murders were meaningfully mitigated by the trial court’s finding that the appellant acted with dolus eventualis rather than dolus directus, and whether the resistance encountered during the robbery and the appellant’s account of the immediate altercation constituted mitigating circumstances.

4. Court’s Reasoning

The court approached the matter on the basis that the principles governing the determination of whether the death sentence is the “appropriate sentence” under the substituted section 277 had already been discussed in numerous decisions of the court and did not require repetition. It proceeded, consistent with that established approach, by first identifying relevant aggravating and mitigating factors and then determining whether the death sentence was warranted.

On aggravation, the court attached significant weight to the planned and purposeful nature of the criminal conduct. The appellant and his accomplices went to the shop armed with loaded firearms with the intention to commit robbery, which the court treated as demonstrating a premeditated and calculated willingness to use violence to overcome resistance. When resistance occurred, the appellant did in fact shoot, and in doing so he killed two persons. The court treated the killing of two victims in the course of an armed robbery attempt as intrinsically serious.

The court regarded the appellant’s prior convictions and demonstrated recidivism as a further major aggravating consideration. The appellant had a history of attempted armed robbery and unlawful firearm possession; he had been released on parole shortly before the offences and rapidly resumed violent criminal conduct. The court reasoned that this history, and particularly the short interval between release and reoffending, indicated that prior imprisonment had not demonstrated a rehabilitative effect and that the appellant posed an ongoing risk in the context of firearm-related robbery.

In considering mitigation, the court addressed the submission that the murders were committed with dolus eventualis rather than dolus directus. The court accepted that the appellant did not necessarily leave for the robbery intending to shoot unless necessary, and that when he did shoot he did so to end resistance without caring whether he wounded or killed. It accepted that this corresponded to dolus eventualis. However, it concluded that, in the circumstances of an armed robbery where firearms were carried to overcome resistance, the absence of dolus directus did not operate as a substantial mitigating factor.

The court also considered the argument based on the appellant’s statement suggesting that he was in a desperate situation after being struck and confronted by two men. The court found the statement unclear in crucial respects, including the nature of the alleged blow and what was meant by the claim that two persons were “on” him. It further noted that the only eyewitness could not supply clarity on those points, and that the appellant’s trial testimony had been rejected. On the accepted evidence, the victims were unarmed, and the court concluded that the fact that resistance occurred during a robbery in which the offenders were armed to overcome resistance could not readily be treated as a positive mitigating factor. At most, the court treated it as removing a potential additional aggravating feature that would have existed if the killings had occurred without any resistance at all.

The court then evaluated whether, in light of the combined picture, the death sentence was the only appropriate sentence. It considered reliance placed on S v Mabizela and Another 1991(2) SACR 129 (A) but distinguished that case on its facts. In Mabizela, one appellant remained outside in a vehicle and lacked knowledge that weapons were loaded, while the shooter was relatively young and had a clean record and stable employment. The court contrasted those circumstances with the present case, emphasising that the appellant personally possessed a loaded firearm, personally fired the fatal shots, and had a significant prior record of firearm-related robbery conduct.

Finally, the court emphasised the prevalence and seriousness of armed robbery of this kind and the vulnerability of innocent shopkeepers and workers. It concluded that deterrence and retribution had to play a predominant role in sentencing for such offences, and that the case was one of particular seriousness warranting the heaviest legally available punishment.

5. Outcome and Relief

The appeal was dismissed and the two death sentences imposed for the murders were confirmed. No separate costs order was made.

Cases Cited

S v Mtungwa en ’n Ander 1990(2) SACR 1 (A)

S v Mabizela and Another 1991(2) SACR 129 (A)

Legislation Cited

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

Criminal Law Amendment Act 107 of 1990, section 19 (including sections 19(10) and 19(12))

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that, applying section 277 of the Criminal Procedure Act 51 of 1977 as amended, and having weighed the aggravating and mitigating features, the murders committed by the appellant during the attempted armed robbery were of such seriousness—particularly given the planned nature of the offence, the use of loaded firearms, the killing of two unarmed persons, and the appellant’s prior firearm-related robbery record and recidivism—that the death sentence was the appropriate sentence. The appeal against the death sentences was accordingly dismissed and the sentences were confirmed.

LEGAL PRINCIPLES

The court applied the principle that, under the substituted section 277 sentencing regime, the inquiry into whether the death sentence is the appropriate sentence requires an identification of relevant aggravating and mitigating factors, followed by an evaluative judgment as to whether the facts justify the ultimate penalty.

In the context of murder committed in the course of an armed robbery, the court treated planning and preparedness to use violence, the use of loaded firearms, and the killing of unarmed victims as materially aggravating. It further treated a serious history of similar offences and rapid reoffending after release as aggravation relevant to the prospects of rehabilitation and the need for deterrent sentencing.

The court applied the principle that the mere absence of dolus directus (where the perpetrator acted with dolus eventualis while using lethal force to overcome resistance in an armed robbery) does not necessarily constitute a substantial mitigating factor, particularly where the offender armed himself in anticipation of resistance and nonetheless deliberately fired shots in circumstances where death was foreseen and reconciled with.

The court also applied the evaluative principle that resistance encountered during an armed robbery, in circumstances where the offenders carried weapons to overcome resistance, will generally not amount to a positive mitigating circumstance; at most it may negate an additional aggravating feature that would have existed if lethal force had been used in the absence of resistance.

The court reiterated, through its application of the above considerations, that for serious firearm-related robbery murders, deterrence and retribution may properly assume dominant weight in the proportionality assessment when determining whether the death penalty is appropriate.