Brief Summary

Criminal Law — Death sentence — Appeal against sentence — Appellant convicted of murder and sentenced to death — Petition for clemency unsuccessful — Criminal Law Amendment Act 107 of 1990 introducing new criteria for imposition of death sentence — Appellant seeking to remit case to trial court for consideration of new evidence regarding sentence — Appellant's prior denial of involvement in murder contradicted by later confession — Court holding that new evidence and changed legal framework warrant remittal to trial court for reconsideration of sentence under new criteria.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took place in the Supreme Court of South Africa (Appellate Division) and concerned the reconsideration of a death sentence under a statutory transitional mechanism introduced by the Criminal Law Amendment Act 107 of 1990. The matter came before the court not as a conventional appeal initiated in the ordinary way, but because a statutory panel had formed an opinion triggering the Appellate Division’s duty to consider the sentence afresh under the new death-penalty regime.

The parties were Almond Nofomela as the appellant and the State as the respondent. The appellant had previously been convicted (together with a co-accused, Johnny Abraham Mohane) of murder and sentenced to death in 1987 in the Transvaal Provincial Division (before Human AJ and assessors) for the stabbing death of Johannes Hendrik Lourens on a farm near Brits in 1986.

The procedural history was central to the court’s jurisdiction and approach. The appellant’s earlier appeal (with leave granted against conviction only) had failed, and he thereafter petitioned the State President for clemency under section 326 of the Criminal Procedure Act 51 of 1977. The co-accused’s clemency petition succeeded (his sentence was commuted), while the appellant’s petition failed. On the appellant’s case, all recognised procedures relating to appeal or review had therefore been exhausted.

After the commencement of the Criminal Law Amendment Act 107 of 1990 on 27 July 1990, the appellant’s case fell to be considered by the statutory panel established under the Act for persons already under sentence of death who had exhausted appeal/review procedures. The panel concluded in terms of section 19(10)(a) that the death sentence would probably have been imposed even if the substituted section 277 (as introduced by section 4 of the 1990 Act) had applied at the time. That finding brought section 19(12) into operation, requiring the Appellate Division to consider the case as if it were an appeal against sentence under the new sentencing regime.

The dispute before the Appellate Division concerned whether the appellant should be permitted—through a remittal under section 19(12)(b)(iii)—to lead further evidence on sentence in the trial court, in light of the new statutory approach to the death sentence, or whether the existing record compelled confirmation of the death sentence.

2. Material Facts

It was common cause (or at least not directly disputed on the papers) that at the time of the murder the appellant was 31 years old and a sergeant in the South African Police, posted since about 1980 to a special unit at Vlakplaats under the command of Captain Dirk Coetzee, which he described as engaged in counter-insurgency operations. At the time of the murder he was on leave at Skeerpoort, near Brits.

At the trial, the appellant and his co-accused led no evidence in extenuation. The co-accused testified that the appellant killed the deceased, while the appellant denied complicity in the murder (although admitting that he accompanied the co-accused to the place where the murder occurred). The trial court found that the appellant had direct intent to kill and that the deceased had been stabbed five times with force, and it found that the co-accused assisted during the knife attack and was accordingly equally guilty.

After conviction and sentence, the appellant’s position regarding responsibility for the murder changed over time. In his petition for clemency to the State President, he reportedly persisted in denying responsibility for the deceased’s death. After the petition failed, his execution was scheduled for 20 October 1989. On 19 October 1989, he consulted Lawyers for Human Rights and deposed to an affidavit again denying that he committed the murder for which he had been sentenced to death.

In that same affidavit the appellant made extensive disclosures about alleged involvement in other assassinations, including the killing of Durban attorney Griffiths Mxenge and participation in other killings and kidnappings. The Minister of Justice granted an administrative stay of execution, and the disclosures led to further investigations and inquiries. One inquiry mentioned as potentially relevant was the Harms Commission of Enquiry into Certain Alleged Murders, culminating in a report in September 1990. During his evidence before that commission, the appellant for the first time admitted that he had in fact killed the deceased and that his earlier denial was false.

When submissions were later made to the statutory panel under the 1990 Act, and confirmed under oath by the appellant, he advanced a narrative relevant to sentence: he stated that the initial plan had been to rob the deceased; that there was no intention to kill or injure; that the deceased had ordered them off the land and called them a racial epithet; that the deceased slapped him; that a scuffle followed during which the deceased produced a firearm; and that in the course of that struggle the appellant stabbed Lourens while the co-accused held the deceased. He asserted that the murder was not premeditated and that the plan to rob emanated from the co-accused.

A clinical psychologist, Mr Vogelman, prepared a report annexed to the panel submissions, expressing a positive view of the appellant’s prospects of rehabilitation and possible future reintegration, with reference to his conduct and apparent attitudes after sentence.

The State opposed the appellant’s application to remit for further evidence on sentence on the basis that the proposed evidence had no reasonable prospect of acceptance, and that in any event it would not constitute mitigating factors sufficient to dissuade the trial court from concluding that death was the proper sentence.

3. Legal Issues

The central legal question was whether, in the context of section 19(12)(b)(iii) of the Criminal Law Amendment Act 107 of 1990, the Appellate Division should set aside the death sentence and remit the matter to the trial court with instructions to hear further evidence relevant to sentence.

That question required the court to determine the criteria governing such a remittal application, because section 19(12)(b)(iii) itself did not spell out a test. The determination was therefore primarily one of law (formulating the applicable approach in light of statutory purpose and existing principles on further evidence), followed by an application of law to fact (assessing whether the specific proposed evidence satisfied the identified requirements and whether it could reasonably affect sentence).

A further issue concerned the scope of relevance of evidence sought to be introduced: in particular, whether the remittal mechanism was intended to permit a broad re-opening of a concluded case, including new and contradictory versions, or whether it was confined to evidence logically connected to the shift from the prior regime (extenuating circumstances and onus on the accused) to the new regime (mitigating/aggravating factors and the State’s burden in seeking death).

4. Court’s Reasoning

The court began by situating the matter in the statutory framework created by the Criminal Law Amendment Act 107 of 1990. Section 4 introduced a new approach to the death sentence, and section 19 created a transitional procedure for persons already sentenced to death who had exhausted appeal/review procedures. Where the panel formed the view contemplated by section 19(10)(a), the Appellate Division was required by section 19(12)(a) to consider the matter as if it were an appeal against sentence and as if the substituted section 277 had applied at the time of sentencing.

Because section 19(12)(b)(iii) was silent on the criteria for remittal for further evidence, the court looked to established principles governing the reception of further evidence in criminal matters. It referred to section 316(3) of the Criminal Procedure Act 51 of 1977 (itself reflecting section 363(3) of the Criminal Procedure Act 56 of 1955) and to the threefold test articulated in S v de Jager 1965 (2) SA 612 (A). Those authorities emphasised both the court’s reluctance to re-open trials and the need for a satisfactory explanation, a prima facie likelihood of truth, and material relevance to the outcome.

The court explained that, as a matter of policy, criminal litigation requires finality, and that re-opening can invite the danger that evidence may be shaped after the fact to address weaknesses revealed at trial. It also stressed that the transitional provisions were not designed to allow an unrestricted re-opening of the entire case, but rather to ensure that those facing death sentences were dealt with under the new statutory approach. The court contrasted the position of accused persons whose sentencing proceedings were not complete at the time of the legislative change (who might reasonably be allowed to adjust their strategy) with persons like the appellant whose matters had been finalised long before the new regime.

The court treated the purpose of section 19 as permitting an accused to reconsider strategy to the extent that the change in the law could have affected how the case on sentence would have been conducted, particularly given the prior onus and the narrower concept of extenuation compared to mitigation. However, it regarded this as implying a limitation: the remittal mechanism was not designed to permit an accused, convicted after advancing a false version, to re-open proceedings to present a new and contradictory narrative that was available at the time but deliberately withheld. In that regard the court relied on the approach reflected in S v N 1988 (3) SA 450 (A) and related authorities.

The court also addressed the relevance of post-sentence material. Since section 19(12)(a)(i) required the Appellate Division to consider the case as if it were an appeal against sentence, the court treated ordinary appellate limitations as applicable, namely that material arising after sentence would generally not be considered (save possibly in exceptional circumstances), consistent with decisions such as Goodrich v Botha and Others 1954 (2) SA 540 (A), S v Immelman 1978 (3) SA 726 (A), and S v V en 'n Ander 1989 (1) SA 532 (A). It nevertheless acknowledged that relevance is not reducible to rigid rules, adopting the general conception of relevance described in R v Matthews and Others 1960 (1) SA 752 (A).

Synthesising these considerations, and “superimposing” them on section 316(3), the court formulated requirements an applicant would need to satisfy for a remittal under section 19(12)(b)(iii). These included relevance to mitigating/aggravating factors and the new discretion; the likelihood that the evidence would have been presented had the new regime been in place (absent exceptional circumstances); the likelihood that the evidence would be accepted as true; the reasonable possibility of a different sentence if accepted; and a reasonably acceptable explanation for the failure to lead the evidence at trial (again, absent exceptional circumstances).

Applying these requirements, the court grouped the appellant’s proposed evidence into three main categories (with a further residual category for consequential evidence) and evaluated each.

Regarding the proposed evidence of provocation/assault/threat and lack of premeditation, the court accepted that, if such evidence had been tendered at the time and accepted, it could have amounted to mitigation. The difficulty, however, lay in the statutory-purpose-related requirement that the evidence should reasonably be evidence the appellant would have presented had the new test applied at the time. The court found that the appellant had long persisted in asserting innocence, including on the eve of execution, and only later confessed; he also claimed to have been advised by superiors not to admit complicity. On the court’s reasoning, this meant there was no reasonable possibility that he would have presented the “provocation” account at trial even if the new regime had applied, because it depended on admitting the killing. The court further considered the credibility requirement and held that the appellant’s multiple lies over an extended period undermined the likelihood that the trial court would accept his new account as true. It also noted an absence of support in the record for the alleged taunting and threats, and found the probabilities inconsistent with the appellant’s new narrative given the planned robbery context. On this basis, the first category did not satisfy the requirements for remittal.

Regarding the contention that the appellant had been desensitised to violence by “hit squad” activities and had come to regard himself as “above the law”, the court assumed the premise for purposes of analysis but found it did not assist. The murder was committed during a planned robbery against elderly farmers, not during an ordered counter-insurgency mission. The court reasoned that training to kill did not extend to preying on innocent elderly people, and it treated the appellant’s status as a policeman as an aggravating factor rather than a mitigating one. It concluded that, even if accepted, this evidence would not reasonably lead to a different sentence and did not meet the requirements governing remittal.

Regarding the psychologist’s opinion that the appellant had rehabilitation potential, the court considered the submission that post-sentence conduct could shed light on personality at the time. It held that evidence about personality and intelligence was in principle available at the time of trial, and could not be introduced now unless a proper case were made that it would have been presented had the new test been in operation. The court recognised the appellant had been defended pro deo and lacked resources for psychological profiling, but treated that as a systemic feature not sufficient, on its own, to justify remittal under the transitional remittal provision. It also doubted that the trial court would realistically find that a policeman who killed during a planned robbery and who confessed to participation in multiple other murders would be promising material for rehabilitation, and it considered that the psychologist’s view, standing alone, was unlikely to produce a different sentence. A remittal on that limited basis was regarded as futile.

Having rejected the grounds for remittal, the court held that the application to lead further evidence could not succeed. Given the concession that on the original trial record an appeal against sentence would fail, the court concluded that the death sentence had to be confirmed.

5. Outcome and Relief

The Appellate Division refused the appellant’s application to have the sentence set aside and the matter remitted to the trial court for the hearing of further evidence on sentence in terms of section 19(12)(b)(iii) of the Criminal Law Amendment Act 107 of 1990.

The court accordingly dismissed the appeal on sentence and confirmed the sentence of death imposed on the appellant.

The judgment, as reported in the excerpt, did not set out any separate or special order as to costs.

Cases Cited

S v de Jager 1965 (2) SA 612 (A)

S v N 1988 (3) SA 450 (A)

S v Sterrenberg 1980 (2) SA 888 (A)

S v Masina and Others 1990 (4) SA 709 (A)

S v Njaba 1966 (3) SA 140 (A)

S v Myende 1985 (1) SA 795 (A)

R v Carr 1949 (2) SA 693 (A)

R v Jantjies 1958 (2) SA 272 (A)

R v van Heerden 1956 (1) SA 366 (A)

R v Siwesa 1957 (2) SA 223 (A)

Goodrich v Botha and Others 1954 (2) SA 540 (A)

S v Immelman 1978 (3) SA 726 (A)

S v V en 'n Ander 1989 (1) SA 532 (A)

R v Matthews and Others 1960 (1) SA 752 (A)

Legislation Cited

Criminal Procedure Act 51 of 1977 (including sections 277, 316(3), 326, 327)

Criminal Procedure Act 56 of 1955 (section 363(3))

Criminal Law Amendment Act 107 of 1990 (including sections 4, 19, 20)

Rules of Court Cited

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

Held

The Appellate Division held that an application to remit a death-sentence matter to the trial court under section 19(12)(b)(iii) of the Criminal Law Amendment Act 107 of 1990 is not an opportunity for an unrestricted re-opening of concluded proceedings. The applicant must satisfy criteria broadly aligned to the established test for receiving further evidence, adapted to the transitional purpose of the Act.

On the facts, the court held that the appellant’s proposed new evidence concerning provocation and lack of premeditation would not reasonably have been presented at trial (given his longstanding denial of guilt) and was unlikely to be accepted as true, particularly in light of credibility concerns and the probabilities. The court held further that the “desensitisation” explanation did not amount to mitigation in the circumstances of a planned robbery and that the appellant’s position as a police officer was aggravating. The rehabilitation evidence, largely based on post-sentence material, was found insufficient to justify remittal and was unlikely to result in a different sentence.

The application to lead further evidence was refused, and the death sentence was confirmed.

LEGAL PRINCIPLES

The judgment applied the principle that the re-opening of criminal proceedings for further evidence is exceptional and constrained by the need for finality in litigation, including the concern that evidence may be shaped after the event. In evaluating a remittal under the transitional death-sentence provisions, the court treated section 316(3) of the Criminal Procedure Act 51 of 1977 and the test in S v de Jager 1965 (2) SA 612 (A) as reliable guidelines, and it emphasised that the legislature did not intend an unrestricted reopening of concluded trials.

The judgment articulated that, for remittal under section 19(12)(b)(iii), the proposed evidence must be relevant to the sentencing enquiry under the new regime (mitigating and aggravating factors and the “proper sentence” discretion). It must also, save in exceptional circumstances, be evidence that there is a reasonable possibility would have been presented at the original sentencing hearing had the new statutory approach been in place at that time. Evidence aimed at introducing a new and contradictory version after conviction—where the accused deliberately advanced a false version at trial—does not align with the purpose of the transitional provisions.

The judgment further applied the principle that, when a matter is considered as if on appeal against sentence, evidence arising after sentence is generally not relevant for that enquiry (save possibly in exceptional circumstances), and that the relevance enquiry depends on logic and experience rather than rigid rules.

S v Nofomela (161/91) [1991] ZASCA 180; 1992 (1) SA 740 (AD); (28 November 1991)