Summary of Judgment

1. Introduction

The proceedings were an appeal to the Supreme Court of South Africa (Appellate Division) against sentence following convictions on two counts of murder. The appellant, Mohaheng David Mdeni, had been convicted and sentenced to death in the Transvaal Provincial Division (on circuit) by Strydom J, with a finding of no extenuating circumstances in respect of each murder.

The respondent was the State. The appeal came before the Appellate Division because a panel, acting in terms of section 19(12)(a) of the Criminal Law Amendment Act 107 of 1990, had decided that the death sentences would probably have been imposed by the trial court had the amended section 277 been in operation.

The general subject-matter of the dispute concerned whether, on the facts accepted by the court, the appellant’s case presented mitigating features sufficient to justify a sentence other than death, and whether sentence disparity between the appellant and a co-perpetrator warranted interference with the death sentences.

2. Material Facts

The court accepted, on the basis of the trial court’s summary, that the appellant was a hired assassin. According to his confession, some weeks before the killings he had been employed by Mthuthi Nxumalo for a fee of R2 000 to murder two identified persons, namely Junius Nxumalo and Eric Nxumalo. The appellant stated that Nxumalo wanted them killed because they had allegedly been instrumental in Nxumalo’s dismissal from a tribal post in Gazankulu.

On the day of the murders, at approximately 9 pm, the appellant approached a friend, Vusimuzi Mndebele (accused 3 at the trial), to assist. The appellant had two firearms, one of which he handed to accused 3. They travelled from Johannesburg to Junius Nxumalo’s house in Gazankulu. They entered the kitchen and found Junius Nxumalo seated at a table. They each shot him several times. Junius Nxumalo died instantly from multiple injuries.

After that, the appellant and accused 3 drove to Eric Nxumalo’s nearby residence. At the gate they were confronted by two guards. The appellant and accused 3 opened fire on them. One guard, Bento Ntamelo, was struck several times, collapsed, and died at the scene, also due to multiple injuries. After that shooting, the appellant and accused 3 aborted their mission to kill Eric Nxumalo and fled.

As to the involvement of Mthuthi Nxumalo, the judgment noted that he had been accused 1 at the trial, but he had denied involvement; because the appellant’s confession was not admissible against him, Nxumalo was acquitted.

In relation to the appellant’s own position on the merits, the Appellate Division emphasised that the appellant’s trial defence had been an alibi. Consequently, his evidence did not address his motives or state of mind at the time of the murders; the court treated his confession as the only material source regarding his motive.

3. Legal Issues

The central legal questions were whether the appellant had established any mitigating factors (or extenuating circumstances) that reduced his moral blameworthiness to such an extent that the death sentence was not the only proper sentence for each murder, and whether the sentence should be revisited due to the fact that accused 3, though convicted of the same two murders, received a term of imprisonment rather than death.

The dispute primarily concerned the application of sentencing principles to the facts as accepted by the court, including an evaluative assessment of whether the alleged mitigating considerations were factually supported and whether, in the circumstances, they could justify a lesser sentence. It also involved a value judgment regarding the relative seriousness of the appellant’s role compared to that of the co-accused, and the extent to which parity in sentencing should influence the outcome.

4. Court’s Reasoning

The court first dealt with the submission that the appellant had not acted from purely mercenary motives, and that his motive was partly sympathetic or “politically inspired” due to Nxumalo’s alleged grievance against the intended victims, together with further alleged background information (including an allegation that the Nxumalos had been responsible for the death of two children), the appellant’s supposed susceptibility to Nxumalo’s status and age, and financial difficulties.

The Appellate Division rejected this line of argument on two principal bases. The first was that the suggested considerations could not, in any event, reduce the appellant’s moral blameworthiness in relation to the murder of the guard, Bento Ntamelo, who was killed when the appellant and accused 3 opened fire at the gate. The second was that the asserted mitigating considerations lacked any factual foundation and amounted to speculation. Because the appellant’s defence at trial was an alibi, his evidence did not explain why he carried out the killings, leaving the court to rely on the confession for motive. The court stated that the clear impression from the confession was that the promise of payment alone induced the appellant to undertake the murders, with no reference to the additional alleged factors. The court further noted that other evidence undermined the speculative mitigating narrative, including that the appellant had no connection to Nxumalo’s tribe, that he was a mature man of 37 years, that he was employed and had lived in Johannesburg for years, and that he owned property and a car, as well as possessing firearms.

Having concluded that sentencing had to proceed on the footing that the murders (or at least that of Junius Nxumalo) were committed purely for financial gain, the court then considered the second main contention: that the death sentences were not the only proper sentences because accused 3 was not sentenced to death but instead received 20 years’ imprisonment on each count (concurrent).

The court held that this disparity did not justify interference. It accepted that the trial judge was justified in treating the appellant as more deserving of extreme punishment because the appellant played the leading role: he made the arrangements with Nxumalo, supplied the firearms, and appeared to have had more opportunity for reflection than accused 3. The court also relied on authority for the proposition that the desire for uniformity of sentences between co-offenders convicted of the same crime “cannot be pressed too far”, and observed that it might be that accused 3 was fortunate to have escaped the death sentence.

In assessing the seriousness of the appellant’s conduct, the court endorsed the condemnation of the hired killer and referred to decisions where the death sentence had been confirmed for such crimes. It emphasised aggravating features present in this case: the appellant had ample time for reflection; the first murder was planned; both killings were executed in a cold-blooded manner with dolus directus; the victims were defenceless and had done the appellant no harm; and the appellant’s confession suggested a focus on payment, including that he had asked whether Nxumalo had money. The court also treated the appellant’s previous convictions, including for assault with intent to do grievous bodily harm and for unlawful possession of a firearm, as strengthening the conclusion that the most severe sentence was justified.

On this combined evaluation, the court concluded that, in respect of both murders, the death sentence was imperatively called for.

5. Outcome and Relief

The appeal was dismissed. The Appellate Division confirmed the death sentences imposed in respect of both murder convictions. The judgment did not record any separate or additional order as to costs.

Cases Cited

S v Marx 1989 (1) SA 222 (A).

S v Malepe 1991 (1) SACR 114 (A).

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

S v Smith and Others 1984 (1) SA 583 (A).

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

S v Mposula 1991 (1) SACR 52 (A).

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

Legislation Cited

Criminal Law Amendment Act 107 of 1990, section 19(12)(a).

Section 277 (as amended) (as referenced in the judgment).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the mitigating factors advanced on behalf of the appellant were speculative and unsupported on the record, particularly given that the appellant’s trial defence was an alibi and his confession indicated that he undertook the murders solely for payment. The court further held that the disparity between the appellant’s death sentences and the co-perpetrator’s custodial sentence did not warrant interference, because parity in sentencing is not decisive and the appellant played a leading role with greater opportunity for reflection.

On the accepted facts, including the planned and cold-blooded character of the killings, the presence of dolus directus, and the appellant’s prior convictions, the court found that the death sentence was the only proper sentence for both murders. The appeal was dismissed and the death sentences were confirmed.

LEGAL PRINCIPLES

The judgment applied the principle that alleged mitigating considerations must have a factual foundation in the record; sentencing submissions based on speculation, without evidential support, cannot reduce moral blameworthiness.

In cases involving a hired killer acting for financial gain, the court treated the offence category as particularly serious and regarded the death sentence as a sentence that may be confirmed where aggravating features are present, such as planning, time for reflection, cold-blooded execution, and defenceless victims.

The judgment reaffirmed that the principle of uniformity or parity in sentencing among co-offenders convicted of the same crimes is relevant but limited, and “cannot be pressed too far”. Differential sentences may be justified where the respective roles differ materially, including where one offender is the organiser or leader, supplies weapons, or has a greater opportunity for reflection.

The court’s approach reflected that sentencing in capital matters involves an evaluative assessment of moral blameworthiness and the presence or absence of mitigating factors, taking into account the offender’s role, motive, circumstances of the offences, and criminal history.