Brief Summary

Criminal Law — Murder — Death sentence — Appellant convicted of two counts of murder, attempted murder, and robbery — Sentenced to death on murder counts — Appeal against conviction and sentence dismissed — Court considers whether death sentence is the only proper sentence in light of new legislative provisions — Appellant's actions deemed brutal and premeditated, with no extenuating circumstances found — Death sentences confirmed as appropriate given the heinous nature of the crimes and the need for societal protection.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings concerned the statutory reconsideration and confirmation of death sentences imposed on the appellant, following amendments to the sentencing regime for capital punishment. The matter came before the Supreme Court of South Africa (Appellate Division) in terms of the reconsideration mechanism created by section 19(12)(a) of the Criminal Law Amendment Act 107 of 1990.

The parties were Mshimane John Ndabeni as the appellant and the State as the respondent. The appellant had been convicted in the Durban and Coast Local Division (Law J and two assessors) on two counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. The trial court found no extenuating circumstances and imposed death sentences on the murder counts, together with terms of imprisonment on the remaining counts.

The appellant was granted leave to appeal against his convictions; the Appellate Division had previously dismissed that appeal on 13 November 1989. Subsequently, on 15 August 1991, a panel for the reconsideration of sentences established under section 19(10)(a) of Act 107 of 1990 found that the trial court would probably have imposed the death sentences had the amended section 277 of the Criminal Procedure Act 51 of 1977 been in force at the time. As a result, the Appellate Division was required to consider the death sentences afresh under the amended statutory approach.

The dispute, at this stage, concerned sentence only, and specifically whether—under the post-amendment framework—the death sentence was the only proper sentence for the murders committed.

2. Material Facts

The events giving rise to the convictions occurred during the night of 17 June 1987 at the hut of Mukile Madonsela, situated near Magwangwa in the district of Ingwavuma. Mukile Madonsela was living at the kraal with her children while her husband was working in Johannesburg.

There was no direct evidence of precisely what occurred during the attack, but the court drew inferences from the surrounding circumstances and the evidence of Mangundwane Madonsela, the deceased’s father-in-law. During the early hours of 18 June 1987, a grandchild came to Mangundwane’s kraal accompanied by Ngodi Madonsela, Mukile’s 9-year-old daughter, who was seriously injured. Ngodi was taken to hospital later that day but was dead on arrival.

Mangundwane then went to Mukile’s kraal. He found Qediswa Madonsela, Mukile’s six-year-old son, seriously injured and covered with a blanket inside a hut. Outside the hut he found Mukile’s body. The hut had been ransacked. Two radios were found lying outside the kraal, and a forced-open kist was found some distance away; it was empty.

The medical evidence was that Mukile and Ngodi died from severe head injuries. The weapon capable of causing these injuries, and also capable of causing the injuries sustained by Qediswa, was a bush-knife handed in at trial as exhibit 1. Qediswa survived but suffered paralysis on the right side of his body and severe mobility impairment.

The appellant lived in the same area. His defence at trial was an alibi. The Appellate Division (per Van Coller AJA) treated the evidence against him as circumstantial but overwhelming, and accepted that there could be no doubt that the appellant was the perpetrator.

The significant circumstantial facts accepted as material included that a blood-stained overall was found in the appellant’s hut on 22 June 1987 and, according to his father, it belonged to him; that shortly after the deaths the appellant was found in possession of three blankets identified as belonging to Mukile Madonsela and last seen by her husband in the kist taken from the hut; and that about two weeks after the murders the appellant, in the presence of the police, produced the bush-knife (exhibit 1) from shrubs at his home.

As to personal circumstances relevant to sentence, the appellant was married with children, had been employed in the construction industry for about ten years prior to arrest, had no schooling but had learned to read and write from fellow employees, and appeared to have been a law-abiding citizen until 1987. The trial court found him an untruthful and unreliable witness, but also intelligent and quick-witted. The judgment records uncertainty about his age, though the indictment reflected 33 years.

The court rejected as speculative contentions that the attack was precipitated by an emotional dispute or extreme provocation, holding there was no factual basis for such suggestions. In the majority’s view, the only inference was that the appellant went to the deceased’s home armed with a bush-knife and intent on robbery, and that the killings were committed to overcome resistance during the robbery or prevent identification.

3. Legal Issues

The central legal question was whether, applying section 277 of the Criminal Procedure Act 51 of 1977 as substituted by section 4 of Act 107 of 1990, and proceeding as required by section 19(12)(a) of Act 107 of 1990, the death sentence was “the only proper sentence” for the two murders.

The dispute was primarily one of the application of legal standards to established facts, involving the weighing of aggravating and mitigating factors and an evaluative assessment of whether the purposes of punishment could properly be met by a sentence less than death. It therefore involved a mixed inquiry of fact, value judgment, and the application of sentencing principle under the amended statutory regime.

A further issue, reflected in the separate judgment of Corbett CJ, concerned whether certain anomalous or unexplained features of the crimes generated sufficient uncertainty about motive and context to preclude a finding that death was the only proper sentence, notwithstanding the brutality of the killings and their occurrence during an apparent robbery.

4. Court’s Reasoning

The majority judgment (Van Coller AJA, with Nestadt JA concurring) approached the matter as required by the amended legislation, noting that the Appellate Division must consider the sentences as if the amended section 277 had been operative at the time of sentencing. It referred to the court’s prior decisions addressing the effect of the amendment and the “new approach” to capital sentencing.

The majority treated the murders as committed in the course of a robbery and characterised the appellant’s conduct as brutal and cruel, committed against defenceless victims in their home at night. It found that the only inference supported by the evidence was that the appellant killed to overcome resistance or avoid identification, and that the trial court’s finding that he went armed with a bush-knife and intent on robbery could not be faulted.

In evaluating mitigation, the majority held that the only mitigating factor was the absence of previous convictions involving violence. It considered the possibility of rehabilitation but held it could not outweigh the severity of the crimes. The judgment placed decisive weight on the deterrent and retributive objects of punishment in circumstances where the interests of society “come strongly to the fore,” drawing on authority emphasising societal concern where defenceless persons are attacked and killed in their homes.

The majority considered the aggravating circumstances to be “obvious and indeed very serious,” highlighting that a young woman and her child were murdered, that the attacks occurred in the victims’ home at night, and that the appellant acted with direct intention to kill. It concluded that this was one of those cases where the death sentence was “imperatively called for,” and therefore that death was the only proper sentence.

Corbett CJ delivered a separate judgment dissenting from the confirmation of the death sentences. He adopted as a starting point the approach set out in S v Nkwanyana and Others 1990 (4) SA 735 (A), emphasising that the inquiry is whether death is the only proper sentence, and that due regard must be had to mitigating and aggravating factors, together with the main purposes of punishment, including whether those purposes cannot properly be achieved by a sentence other than death.

While acknowledging that the murders were cruel and brutal and apparently committed in the course of a robbery, Corbett CJ identified a number of “strange features,” including that the appellant targeted a relative’s home where he was known; that there was no evidence of enmity; that the articles taken were only three blankets while radios were abandoned; and that the appellant had no prior criminal record at the time and appeared to have been a useful member of society with no clear financial pressure to commit robbery. These anomalies, left unexplained largely due to the appellant’s persistence in his denial, created a “sense of unease” as to what precisely occurred and what motivated the crimes.

Corbett CJ considered the appellant to be good material for rehabilitation and concluded, after anxious consideration of all the factors, that the death penalty was not the only proper sentence. He would have substituted life imprisonment on each murder count.

5. Outcome and Relief

The Appellate Division, by majority, dismissed the appeal and confirmed the death sentences imposed on counts 1 and 2 (the two murder convictions). The existing terms of imprisonment on the attempted murder and robbery counts, as imposed by the trial court, were not altered in these proceedings.

No separate costs order is recorded in the judgment in relation to these proceedings.

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] ZASCA 95; 1990 (4) SA 735 (A); S v Sesing 1991 (2) SACR 361 (A); S v Makie 1991 (2) SACR 139 (A); S v Khundulu and Another 1991 (1) SACR 470 (A); S v J 1989 (1) SA 669 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 277 (as substituted); Criminal Law Amendment Act 107 of 1990, sections 19(10)(a), 19(12)(a), and 4.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The majority held that, applying the amended capital sentencing framework, the murders were committed with direct intent in the course of a robbery against defenceless victims in their home at night, and that the aggravating circumstances were so serious that the death sentence was the only proper sentence. The appeal was dismissed and the death sentences were confirmed.

In dissent, Corbett CJ held that unexplained anomalous features relating to the choice of victims, the apparent lack of a rational robbery motive, and the appellant’s prior law-abiding life created sufficient uncertainty and weight in favour of rehabilitation to conclude that death was not the only proper sentence; he would have substituted life imprisonment.

LEGAL PRINCIPLES

The judgment applied the post-amendment approach to capital punishment under section 277 as substituted, read with the reconsideration provisions of Act 107 of 1990, requiring the appellate court to determine whether death is “the only proper sentence” after having due regard to mitigating and aggravating factors.

It reaffirmed that the assessment is not mechanically determined by the presence or absence of mitigating factors; rather, the sentencing court must weigh all relevant circumstances and consider the main purposes of punishment, including deterrence, prevention, reformation, and retribution, and whether these objects can properly be achieved by a sentence other than death.

The judgment further applied the principle that the death sentence is reserved for exceptionally serious cases and is justified where it is imperatively called for, with particular emphasis (in the majority reasoning) on the heightened societal interest where defenceless persons are attacked and killed in their homes, and (in the dissent) on the need for careful attention to the particular facts, including unexplained anomalies bearing on motive and context, before concluding that death is the only proper sentence.

S v Ndabeni (465/91) [1992] ZASCA 59 (31 March 1992)