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[1992] ZASCA 127
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S v Mokgomola (635/91) [1992] ZASCA 127 (1 September 1992)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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1
/MC
Case no 635/91
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
PATRICK
MOKGOMOLA
Appellant
- and -
THE
STATE
Respondent
CORAM:
VIVIER,
VAN DEN HEEVER JJA et
KRIEGLER AJA.
HEARD:
20
August 1992.
DELIVERED:
1
September 1992.
JUDGMENT
VIVIER JA./
2
VIVIER JA:
The appellant was convicted in the
Witwatersrand Local Division by O'DONOVAN AJ and two assessors on two
counts relating to the
unlawful possession of a firearm and
ammunition (counts 1 and 2); one count of malicious injury to
property (count 3); two counts
of murder (counts 4 and 5); one count
of housebreaking with intent to rob and robbery with aggravating
circumstances (count 6);
one count of rape (count 7) and one count of
attempted murder (count 8). The Court held that there were no
extenuating
circumstances in
respect of the murder counts and under
the then prevailing law
the trial Judge imposed the death sentence on each of counts 4 and 5.
In respect of the other convictions
varying periods of imprisonment
were imposed, leaving the appellant with an effective sentence of
imprisonment of twenty-three
3
years and six months. The trial
Judge refused an
application for
leave to appeal against the convictions
and sentences imposed
on counts 4 and 5.
Subsequent to the trial the
Criminal Law Amendment Act 107 of 1990 ("the Act") was
enacted and the appellant's case was
considered by the panel
constituted in terms of sec 19 of the Act. The panel decided that had
sec 277
of the
Criminal Procedure Act
51
of 1977
, as substituted by sec 4 of the Act, been in
operation
at the time sentence was passed, the sentence of death would probably
have been imposed by the trial Court. The appellant's
case was
accordingly referred to this Court, in terms of sec 19(12) of the
Act, on the question of sentence.
The
relevant facts relating to counts 4 and 5
are briefly the
following. The two deceased, Andries Sithole ("Sithole")
and Paulinah Manyathela
4
("Paulinah") lived
together as man and wife in a room on certain premises near the
Jukskei River at Halfway House. On
Sunday evening 23 February 1986
the
appellant visited the
shebeen which Sithole was running in the room, and during the course
of the visit offered
a firearm for sale to Sithole. The latter
summoned the police and when they arrived at the shebeen they found
the appellant in possession
of a 9 mm Parabellum pistol and some
rounds of ammunition. The appellant was arrested and subsequently
appeared with one Thomas
Dlamini, from whom he had obtained the
pistol, in the Magistrate's Court at Wynberg. The appellant was never
tried as he obtained
bail and then failed to appear when the trial
resumed. Dlamini was duly convicted and sentenced.
On
31 August 1987, after Dlamini had
served his sentence, he met
the apellant near Glen
5
Austin at Halfway House. The
appellant promptly tried to kill him by firing six shots at him with
a firearm, two of which struck
Dlamini in the stomach and arm (count
8). Earlier that month, on 12 August 1987, the appellant had broken
into the house of a Mrs
H. at Blue Hills, raped her and robbed her of
her possessions (counts 6 and 7).
In a written confession made
before a magistrate the appellant said that he thereafter thought
about Sithole and Paulinah and what
they had done to him. During the
evening of 18 January 1988 he went to their room, and when they
refused to open the door he broke
the window and threatened to set
the room alight. When the door was eventually opened he forced
Paulinah at gunpoint to tie Sithole's
hands behind his back with
wire. He forced them out of the room and into Sithole's vehicle which
was parked
6
outside. He drove them to a spot
some 400 meters away and, after ordering them out of the vehicle, set
it alight, saying that he
was doing so because that was the vehicle
Sithole had used when he had gone to fetch the police the night he
was arrested, and
that he did not want Sithole to dream of his
vehicle when he was dead. He then marched his victims to a deserted
and overgrown
area on the banks of the Jukskei River where he told
them that he was going to kill them for what they had done to him. He
thereupon
shot Paulinah
twice in
the back of the head, killing her instantly.
Sithole was then
informed that he would be killed at the place where he lived. He was
taken back to a spot near the river some 500
meters from where he
lived and more than a kilometre from where Paulinah had died, where
the appellant killed him by shooting him
in the back of the head.
When Sithole's body was
7
subsequently discovered it was
found that he had been
gagged
with a handkerchief which was held in place by a
wire
extending across the mouth and tied behind the neck.
In his evidence at the trial
before his conviction the appellant denied any knowledge of the two
murder charges. His evidence was
rejected by the trial Court as
totally false. The appellant did not again testify on the issue of
extenuating circumstances.
I am unable to find any mitigating
factor of substance in the present case. None can be gleaned from the
appellant's personal circumstances:
he was 36 years old when the
crimes were committed; he had passed standard three at school; he
worked as a painter and he was married
with two schoolgoing children.
In the written heads of argument filed on
8
behalf of the appellant it was
suggested that additional evidence relating to his personal
circumstances existed and that the Court
should
exercise
its power of remittal under sec 19(12)(b)(iii)
of the Act. No
formal application on notice of motion
with
supporting affidavits for an order for remittal in
terms of
the subsection was, however, placed before the Court. The suggestion
that the case be remitted for the hearing of further
evidence was,
rightly in my view, abandoned by counsel who appeared for the
appellant at the hearing of the appeal. Furthermore,
this
is not an appropriate case for the Court to invite
an
application for an order for remittal in terms of sec 19(12)(b)(iii)
of the Act. There is no reasonable chance that the proposed
evidence,
which is set out in a report to the panel, could lead to different
sentences on the murder charges. See S v Tloome
9
1992(2) SACR 30(A) at 38e - 39d.
The aggravating factors are clear.
The murders were well planned and executed. The sole motive was a
desire for revenge. The two
deceased were killed nearly two years
after they had reported to the police that the appellant was in
possession of a firearm and
ammunition. What the deceased had done to
the appellant was not morally wrong. The appellant deliberately
effected vengeance without
anger. It was a cruel, cold-blooded,
merciless
execution of innocent
people whose persistent pleas for mercy over a considerable period of
time on the fateful
evening were ignored by the appellant.
Another aggravating factor is the appellant's criminal record. He
admitted six previous convictions:
three for housebreaking with
intent to steal and theft, one for
theft,
one for the unlawful possession of a firearm and
10
one for rape. All these
convictions had been
incurred some time before the
murders were committed. The crimes which he committed during the
previous year
and which formed
the subject of counts 6, 7 and 8 show,
however, that he had
not reformed and they reveal his real character. His prospects of
rehabilitation must be regarded as very poor.
In all the circumstances, and not
losing sight of the main objects of punishment namely deterrence,
prevention, reformation and
retribution, I am of the view that this
is a case of such extreme seriousness that the death penalty is the
only proper sentence
in respect of counts 4 and 5.
In
the result the appeal is dismissed and the
death sentences
imposed in respect of counts 4 and
5
are
confirmed.
W. VIVIER JA.
VAN DEN HEEVER JA )
KRIEGLER AJA ) Concur.