S v Mkhize (364/90) [1990] ZASCA 152 (29 November 1990)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Murder — Sentencing — Appellant convicted of murder and sentenced to death; appeal against finding of no extenuating circumstances. Appellant, employed by the deceased, killed her following a dispute over unpaid wages after only two days of work. Appellant claimed provocation due to the deceased's refusal to pay and prior mistreatment. Trial court found no extenuating circumstances, imposing death penalty. Appeal court held that the death sentence was not the only proper sentence, considering mitigating factors such as lack of prior convictions and intense provocation; substituted death sentence with 20 years' imprisonment.

Comprehensive Summary

Summary of Judgment

Introduction

This was an appeal in the Supreme Court of South Africa (Appellate Division) concerning sentence in a murder matter where the trial court had imposed the death penalty after finding no extenuating circumstances.

The appellant was Zizwe Israel Mkhize, who had been convicted of murder in the Natal Provincial Division. The respondent was the State.

Procedurally, the trial court convicted the appellant of murder, found no extenuating circumstances, and—because the then-operative provisions of the Criminal Procedure Act compelled it—imposed the death sentence. The trial judge granted the appellant leave to appeal to the Appellate Division, limited to the finding that there were no extenuating circumstances. By the time the appeal was determined, legislative amendments had altered the death-sentence regime, and the appeal was dealt with under the amended framework.

The dispute concerned whether, on the established facts and in light of the new statutory sentencing approach (with its focus on mitigating and aggravating factors and an appellate court’s independent discretion), the death sentence remained warranted, and if not, what sentence should replace it.

Material Facts

The facts relevant to the killing were treated as not in dispute. The deceased was an elderly woman living with her sickly husband at their home in Hilton near Pietermaritzburg. The appellant was a 29-year-old man employed by the deceased as a gardener and had started work on Tuesday, 27 June 1989, after a period of unemployment during which he was desperate for work.

After working for two days, the appellant became dissatisfied with working conditions. He felt ill-treated by the deceased, objected to her reprimands, and believed she was giving him cat food to eat. These circumstances formed part of the background to the later confrontation.

On the morning of Thursday, 29 June 1989, while the appellant and the deceased were at the stables cleaning, the appellant raised the question of his salary, which led to a disagreement or misunderstanding. The appellant told the deceased he would no longer work for her and demanded payment for the two days worked. The deceased apparently refused to pay and told him to leave the premises.

The appellant left the stables in anger, went to his room (about 100 metres away), fetched a knife, returned, grabbed the deceased by the neck, and stabbed her. According to the appellant’s version he stabbed her three times in the chest, but the post-mortem evidence showed at least twelve stab wounds.

After the stabbing, the appellant left the deceased in the stable and returned to his room. He removed the work overall supplied by his employer, changed into his own clothing, went to the house, left the overall on the verandah, and demanded payment from the deceased’s husband. The husband told him to wait for the deceased. The appellant then left for his home at Sweetwaters near Hilton and was arrested that night.

After arrest, the appellant made a confession to a police captain and later made further admissions during a section 112(1)(b) questioning in the magistrates’ court after pleading guilty to murder. At trial he challenged the admissibility of these confessions on the basis they were not freely and voluntarily made, alleging assault and threats in a trial-within-a-trial. The trial court rejected the challenge and admitted the confessions.

For purposes of sentence and the assessment of extenuation/mitigation, the appellant did not testify. The appellate court proceeded on the basis that the appellant’s account of his motivations as contained in the statements was reasonably possibly true, noting that the State accepted those stated reasons as the true reasons for his conduct. The trial court had found the contents of the statements substantially true.

Legal Issues

The central question was whether, on the established facts, the case warranted the death sentence, taking into account factors bearing on culpability and sentence.

Because of intervening legislation, the appeal required determination not only of whether extenuating circumstances existed under the former regime, but—by operation of the transitional provisions—whether there were mitigating or aggravating factors and whether death was “the proper sentence” under the substituted section 277, as applied retrospectively for this appeal.

The dispute primarily concerned the application of law to fact and the exercise of a sentencing discretion (including evaluative judgment), rather than factual disputes about what occurred. The factual basis for the offender’s motivation and circumstances was accepted as reasonably possibly true on the record.

Court’s Reasoning

The court explained that, at the time sentence was passed, the trial judge had been obliged (under the then-operative sentencing provisions, including the former section 227 regime) to impose death once no extenuating circumstances were found. However, the Criminal Law Amendment Act 107 of 1990 had since abolished the compulsory imposition of the death sentence and amended the sentencing framework.

The court summarised the effect of the legislative changes as previously interpreted in recent (then unreported) Appellate Division decisions. The substitution of a new section 277 replaced the terminology of “extenuating circumstances” with “mitigating or aggravating factors”, and the court noted that “mitigating factor” was regarded as broader than “extenuating circumstances”, allowing consideration of factors not necessarily linked to the commission of the crime itself (such as post-offence behaviour or a clean record). The new section 277 further required that death be imposed only if, having due regard to the presence or absence of mitigating or aggravating factors, the court was satisfied that death was “the proper sentence”, construed as meaning the only proper sentence, thereby confining the death penalty to exceptionally serious cases.

On appeal, the court held that section 20(1)(a) of the amending Act required the matter to be dealt with as if the new section 277 and the appellate power in section 13(b) had been in operation at all relevant times. The Appellate Division therefore approached the matter by exercising its independent discretion, weighing mitigating and aggravating factors to decide whether death was the only proper sentence.

In identifying mitigating factors, the court placed weight on the appellant’s intense sense of grievance arising from the deceased’s unjustified refusal to pay wages for the two days worked. The court emphasised that the refusal to pay was not assessed in isolation but in the context of strained relations from the outset of the employment, the appellant’s resentment at perceived ill-treatment and reprimands, and escalating tension culminating in the refusal to pay and the instruction to leave the premises. The court reasoned that withholding wages would ordinarily provoke indignation and anger, and the multiplicity of stab wounds was treated as consistent with the appellant having been beside himself with rage.

A further mitigating factor was the appellant’s lack of prior convictions at age 29. The court considered this relevant to prospects of rehabilitation and the likelihood of reoffending, stating there was no reason to expect a similar crime in future and nothing suggesting he could not be rehabilitated.

In aggravation, the State emphasised that the stabbing did not occur instantly at the moment of confrontation, because the appellant went to fetch a knife from his room, which created an opportunity to reconsider. The court accepted this as an aggravating feature to be weighed. However, it also considered it significant that the appellant had not initially taken the knife with him, which indicated that the murder was not planned or premeditated.

The number of stab wounds was treated as demonstrating an intention to kill, while also reinforcing the court’s view that the appellant acted in a state of rage. The State’s submission that the victim’s advanced age constituted an aggravating factor was not accepted as aggravating in the particular circumstances of this case.

Balancing these considerations, the court concluded that the death sentence was not the only proper sentence. It then determined an appropriate alternative sentence, having regard to the seriousness of murder, and considered 20 years’ imprisonment to be proper.

Outcome and Relief

The appeal against sentence succeeded. The death sentence was set aside and replaced with a sentence of 20 (twenty) years’ imprisonment.

The judgment, as reported in the provided text, did not set out a distinct costs order.

Cases Cited

S v Masina and Others (case no 695/89) (Appellate Division) (judgment delivered during September 1990) (unreported, as described in the judgment).

S v Senonohi (case no 619/89) (Appellate Division) (judgment delivered during September 1990) (unreported, as described in the judgment).

S v Nkwanyana and Others (case no 52/90) (Appellate Division) (judgment delivered during September 1990) (unreported, as described in the judgment).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 112(1)(b).

Criminal Procedure Act 51 of 1977, section 227 (as referred to as the “old” section 227).

Criminal Law Amendment Act 107 of 1990, section 4 (substituting a new section 277).

Criminal Law Amendment Act 107 of 1990, section 13(b).

Criminal Law Amendment Act 107 of 1990, section 20(1)(a).

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

Rules of Court Cited

No rules of court were cited in the provided text of the judgment.

Held

The Appellate Division held that, applying the transitional provisions of the Criminal Law Amendment Act 107 of 1990, the appeal had to be determined under the substituted section 277 sentencing framework and the court’s independent appellate discretion.

On the accepted facts and after weighing mitigating and aggravating factors, the court held that the death sentence was not the only proper sentence for the appellant.

The court accordingly set aside the death sentence and substituted it with 20 years’ imprisonment.

LEGAL PRINCIPLES

The concept of “mitigating factors” under the substituted section 277 has a wider scope than the former notion of “extenuating circumstances”, permitting consideration of factors not necessarily tied to the commission of the offence itself, including an accused’s prior record.

Under the amended section 277, the death sentence may be imposed only if, after due regard to the presence or absence of mitigating and aggravating factors, it is “the proper sentence”, interpreted as meaning the only proper sentence, which confines the death penalty to exceptionally serious cases.

In appeals involving the death sentence under the amended regime, the appellate court exercises an independent discretion (as contemplated by the amending legislation) to determine whether death is the only proper sentence and, if not, to substitute an appropriate sentence after weighing mitigating and aggravating factors on the accepted record.