Summary of Judgment

1. Introduction

This was an appeal-related proceeding in the Appellate Division of the Supreme Court of South Africa (as it then was) concerning the appropriateness of the death sentence imposed for murder. The matter reached the court not through an ordinary grant of leave to appeal on sentence, but through the statutory reconsideration mechanism introduced by later legislation.

The parties were Petrus Toboko (first appellant) and Benedict Mokhothotso (second appellant) as appellants, and the State as respondent. Both appellants had been convicted in the Orange Free State Provincial Division (before Klopper AJ and two assessors) of housebreaking with intent to rob and robbery with aggravating circumstances (count 1) and murder (count 2). They received 18 years’ imprisonment on count 1, and, in the absence of extenuating circumstances, the mandatory death sentence on count 2 under the law then applicable.

The trial court refused leave to appeal against the murder convictions, and a subsequent petition to the Chief Justice for leave was also refused. After the commencement of the Criminal Law Amendment Act 107 of 1990, a panel appointed under that statute considered the cases and concluded that the death sentence would probably still have been imposed had the amended sentencing regime applied at the time. This statutory finding required the Appellate Division to consider the matter as if appeals against the death sentences were properly before it.

The dispute concerned sentencing for murder in the context of a planned armed robbery and home invasion, specifically whether, after weighing aggravating and mitigating factors, the death penalty was the only appropriate sentence.

2. Material Facts

Two elderly brothers, P J van Aswegen (the deceased) and J T van Aswegen (the complainant), lived on their farm in a remote part of the Dewetsdorp district. During the night of 29 September 1988, while both were asleep in separate rooms, the appellants broke into the farmhouse, gaining entry through a kitchen window. The first appellant was armed with a homemade knife, and the second appellant with a screwdriver; both weapons had been taken earlier from outbuildings on the property.

The complainant was awakened by a severe blow to the mouth that knocked out and broke teeth. He identified his attacker as the second appellant, who stabbed him with the screwdriver and also choked him. The complainant was threatened with death and compelled to hand over money and a firearm. The first appellant then joined them, and the complainant was forced down the passage to the deceased’s bedroom.

In the deceased’s room, the deceased was already bloodied and sitting or lying on the bed. When the first appellant approached, the deceased kicked him, causing him to fall against a wall. The first appellant then attacked the deceased fiercely with a knife, inflicting multiple stab wounds. The complainant did not observe the second appellant assaulting the deceased at that stage. Money was taken from the deceased’s cupboard. The complainant was thereafter forced to the garage, where he retrieved money from a vehicle’s cubbyhole and handed it to the appellants. After returning to the house, the complainant lost consciousness; when he later recovered, the appellants had left. It was later established that various items had been stolen from the house.

The deceased died from injuries sustained during the attack. The medical evidence established that the body bore 27 wounds, and that two different weapons (a knife and an object consistent with a screwdriver) were responsible for the penetrating injuries. The wounds attributable to each weapon were in equal number, and several were potentially fatal. The complainant sustained multiple superficial stab wounds with one penetrating wound, as well as rib cartilage fractures and bruising to the neck and abdomen.

Certain facts were contested at trial and resolved by the court. In particular, although the complainant did not see the second appellant attack the deceased, the trial court found that the fatal assault on the deceased was committed by both appellants. The court linked the second appellant to the assault on the deceased through (i) the presence of screwdriver-type wounds on the deceased, (ii) blood on the second appellant’s clothing matching the deceased’s blood group, (iii) a head hair of the deceased found on the second appellant’s clothing, and (iv) the second appellant’s shoeprints in the deceased’s room. The trial court inferred that the second appellant must have participated in the assault on the deceased before the complainant was attacked.

The trial court also found that both appellants acted with dolus directus (direct intention to kill), inferred from the nature, number, and location of the wounds inflicted on the deceased.

3. Legal Issues

The central legal question was whether, on the proved facts and in light of the relevant sentencing approach applicable to death sentence appeals, the death penalty was the only appropriate sentence for each appellant for the murder.

The dispute was primarily one of application of law to fact and sentencing evaluation. The material facts regarding the planning and execution of the robbery and the nature of the killing were treated as established for purposes of sentence, while the decisive task for the court was an evaluative weighing of aggravating and mitigating factors, including the purposes of punishment, to determine whether any sentence other than death could properly be imposed.

A further issue of application of fact to legal consequence arose from the court’s approach to parity between co-offenders: whether there was a principled basis to distinguish between the two appellants in sentence for the murder.

4. Court’s Reasoning

The court stated that the principles governing appeals against the death sentence were well known and required no elaboration. It approached the matter on the basis that it was required, after considering aggravating and mitigating circumstances, to decide whether the death sentences for the murder were the only appropriate sentences.

In assessing aggravation, the court emphasised the planned nature of the robbery. The appellants travelled a considerable distance to reach their target and took precautions before entering the house, including acquiring weapons from the premises. This was treated as inconsistent with impulsive conduct. The motive was identified as pure material gain. The victims were elderly, attacked in the privacy of their own home at night, and thus were particularly vulnerable and defenceless, a feature the court treated as significantly aggravating.

The court further characterised the killing as cruel and merciless, given the extent and severity of the wounds. Although it was not proved that the appellants went to the farm with a pre-formed intention to kill, the court held that the necessary intention was formed during the course of the robbery and that both appellants acted with direct intent to kill. The absence of genuine remorse during the trial was also treated as aggravating.

On mitigation, the court found little of substance. The appellants were not first offenders and both had prior convictions for violence; however, those convictions were relatively minor and committed when they were juveniles. The State accepted that the absence of any significant prior convictions could be regarded as mitigating, and the court accepted that position for purposes of the appeal.

Counsel for each appellant argued that one had acted under the influence of the other. The court accepted that the first appellant likely initiated the plan because he knew the farm from prior work there, but it held that this did not assist either appellant: whichever appellant initiated the robbery, the other participated willingly and even enthusiastically, leaving no basis for mitigation by reason of domination or undue influence.

Age and personal circumstances were considered. At the time of the offences the appellants were 24 and 23, and thus not juveniles. Both were married, employed, had children, possessed low levels of education, and came from disadvantaged socio-economic backgrounds. The court did not treat these factors as inherently mitigating, but considered that they indicated that rehabilitation could not be excluded as a possibility.

A further mitigating contention was rejected: it was argued that the deceased insulted the first appellant by kicking him, provoking the further assault. The court held there was no merit in this. It found that the deceased was already fatally wounded before he kicked the first appellant, and in any event the deceased’s conduct was defensive. The first appellant could not rely on the alleged insult as mitigation.

In determining whether the death sentence was the only appropriate sentence, the court held that no distinction could be drawn between the appellants: the aggravating and mitigating factors applied equally to both. While recognising that the aggravating factors substantially outweighed the mitigating factors, the court indicated that this was not, by itself, determinative and that sentencing purposes also had to be considered. In cases of this kind, however, the court held that deterrence and retribution had to take precedence over rehabilitation.

The court located its conclusion within prior Appellate Division commentary on the prevalence and seriousness of attacks on defenceless elderly persons on remote farms, and it endorsed the view that community interests, sensibilities, and the objectives of deterrence and retribution strongly come to the fore in such matters. On that basis, it concluded that the case was one where the community’s perceptions, sensibilities, and interests demanded the extreme penalty, and that no other sentence was appropriate.

5. Outcome and Relief

The appeal in respect of each appellant’s death sentence was dismissed, and the death sentences were confirmed.

No separate or express costs order is reflected in the judgment.

Cases Cited

S v Mnune (unreported judgment of the Appellate Division of the Supreme Court of South Africa delivered on 26 March 1992)

S v Shabalala and Others 1991 (2) SACR 478 (A)

S v Majosi and Others 1991 (2) SACR 532 (A)

Legislation Cited

Criminal Law Amendment Act 107 of 1990, sections 19(1) and 19(8)

Criminal Procedure Act 51 of 1977, section 277 (as amended)

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The Appellate Division held that, after weighing the relevant aggravating and mitigating factors and considering the purposes of punishment, the murder was of such gravity—committed in the course of a planned armed robbery and involving the brutal killing of an elderly victim in his home—that the death sentence was the only appropriate sentence for each appellant. The court further held that there was no basis to differentiate between the appellants on sentence, notwithstanding arguments that one may have initiated the plan.

LEGAL PRINCIPLES

The sentencing enquiry on appeal in death penalty matters requires a weighing of aggravating and mitigating factors to determine whether the death sentence is the only appropriate penalty on the proved facts.

In violent robbery-related murders involving vulnerable victims (including elderly persons attacked in their homes), the objectives of deterrence and retribution may properly be treated as predominant over rehabilitation when the court assesses appropriate punishment.

The presence of planning, the use of weapons, the vulnerability of victims, the brutality of the killing, direct intention to kill formed during the commission of the offence, and lack of remorse may cumulatively justify the conclusion that only the extreme penalty is appropriate.

Personal circumstances such as employment, marital status, parenthood, limited education, and disadvantaged background are not necessarily mitigating in themselves, although they may be relevant insofar as they relate to the possibility of rehabilitation; their weight depends on the overall sentencing balance.

Where co-perpetrators participate willingly and actively in a serious violent crime culminating in murder, an asserted dynamic of influence between them will not constitute mitigation absent a factual basis showing meaningful domination or reduced moral culpability, and parity considerations may justify imposing the same sentence when aggravation and mitigation apply equally to both.