Summary of Judgment

1. Introduction

These were appellate proceedings in the Supreme Court of South Africa (Appellate Division), in which the appellant, Dalious Nkosi Shandu, appealed against sentence imposed after convictions in the trial court. The respondent was the State.

In the court of first instance the appellant and three co-accused were convicted of murder and robbery with aggravating circumstances. The appellant was additionally convicted of the unlawful possession of a firearm and ammunition. The trial court imposed the death sentence for the murder, 12 years’ imprisonment for the robbery, and 4 years’ imprisonment for the firearm and ammunition offences.

The appeal was limited to the death sentence. No appeal lay against the convictions or the other terms of imprisonment. The dispute accordingly concerned the proper sentence for a murder committed in the course of a planned robbery against an elderly person in his home, and whether any mitigating factors or other considerations meant that the death penalty was not the only proper sentence.

2. Material Facts

The material facts were those found by the trial court, and accepted as the factual foundation for sentence. The deceased was a retired man who lived alone in a semi-detached flat in a retirement village in Eshowe.

The court a quo found that on the afternoon of 21 September 1990 at approximately 15h30 the deceased returned to his flat and remained there. After dark that evening, persons who had arrived earlier that afternoon in a blue motor vehicle gained access to the deceased’s flat. The deceased’s resistance was overcome by force, and the court considered it probable that he was threatened with a firearm.

The assailants ransacked the flat and removed numerous goods, placing them in the deceased’s motor vehicle parked in the adjoining garage. The use of the deceased’s vehicle was found to be calculated to effect removal of the goods as unobtrusively as possible. The deceased was then forcibly put into his own car and driven to a secluded spot in a State forest (the judgment noting that the distance mentioned as 59 kilometres should in fact have been 70 kilometres). The location was found to be isolated and not frequented.

At that spot the deceased was removed from the vehicle and shot in the head. His body was set alight with an inflammable substance such as petrol in order to remove traces, and became extensively charred. The killing was found to be intentional in the sense of dolus directus. The trial court further found that those who removed the deceased from his home did so with the intention that he be permanently removed, and that to that extent the gang members acted with common purpose or in concert to achieve that objective.

As to the appellant’s role, the trial court found he was one of the gang and that he played a leading role in the commission of the crime. In the appeal it was contended that the appellant’s older brother Musa (who later died when police attempted to arrest him) had planned or “orchestrated” the offence, and that the appellant’s role was overstated. The appellate court recorded that the trial court accepted it was reasonably possible Musa had targeted the deceased’s house, but nonetheless found the appellant played a major role. The appellate court treated the following as material to that conclusion: the appellant was found driving the deceased’s car in Durban six days after the murder; he took virtually all the spoils of the robbery and concealed them; and his version that he became involved only after Musa had already committed the murder and robbery was rejected by the trial court as false.

3. Legal Issues

The central issue was whether the death sentence was, on the facts as found and in the light of relevant sentencing principles, the only proper sentence for the murder.

This required determination of an evaluative sentencing question involving the application of legal principles to the established facts, including an assessment of whether there were mitigating factors of real significance and whether, when weighed against aggravating features and the purposes of punishment, those mitigating factors justified a sentence other than death.

A subsidiary issue, relevant to the sentencing evaluation, was whether there was any basis to interfere with the trial court’s factual finding that the appellant played a leading or major role in the crime, because that finding materially affected the assessment of moral blameworthiness and sentence.

4. Court’s Reasoning

The appellate court approached the appeal on the basis that the convictions stood and that it was concerned only with the propriety of the death sentence. It addressed, first, the challenge to the trial court’s finding that the appellant played a leading role. The appellate court held there was no basis to interfere with that finding, emphasising the appellant’s possession and use of the deceased’s vehicle shortly after the crime, his control over and concealment of the stolen goods, and the rejection of his exculpatory version as false. These considerations supported the conclusion that the appellant’s involvement was substantial and that he was not a peripheral participant.

The court then evaluated the mitigating factors advanced on appeal. Three were relied upon: diminished blameworthiness due to consumption of liquor during the robbery; limited formal education and disadvantaged upbringing, including negative influence from criminally-involved brothers; and the possibility of reform.

On intoxication, the court reasoned that there was no direct evidence that any of the accused drank liquor that night, and while there was evidence suggesting alcohol was consumed in the deceased’s home, there was no proof identifying the appellant as one of those who drank (except that fingerprints connected a beer glass to another accused). The appellant’s own version was that he did not even enter the deceased’s home. Even assuming in the appellant’s favour that it was reasonably possible he had drunk during the robbery, the court held there was no evidence that it influenced him in a way that could mitigate the offence.

On background and education, the court accepted the appellant’s difficult circumstances in early life but considered that he had nonetheless overcome that background to a significant degree. He had passed Standard 6, had taught himself to be a motor mechanic, and was earning enough to support dependants. The court also noted that the appellant was 28 years old and was the eldest of the four accused, a consideration bearing on maturity and responsibility.

On prospects of reform, the court found they were remote. It relied on the appellant’s prior convictions involving violence, including a robbery for which he received an eight-year sentence, his escape from custody, and the fact that the present offence was committed while he was at liberty after escaping. In the court’s view there were no mitigating factors of real significance.

Having found mitigation insubstantial, the court considered aggravating features which, in its assessment, strongly pointed to the severest punishment. It emphasised that the crime was planned in advance, that the victim was an elderly man (69) living alone in a retirement village, and that the perpetrators travelled from Empangeni to Eshowe. It highlighted the manner of execution: overpowering the deceased in his own home, forcibly transporting him to an isolated forest location, assaulting him (with broken ribs), shooting him in what the trial court characterised as a cold-blooded execution, and burning the body to destroy evidence. The court further treated as a serious aggravation the motive to avoid detection and punishment for the robbery, which could have been carried out without killing or seriously injuring the deceased, and it noted the value of the stolen goods (R7 335.00). It also referred to evidence that similar attacks on elderly and defenceless persons in the area had increased in recent years, bearing on deterrence.

In deciding whether the death sentence was the only proper sentence, the court applied the approach summarised in S v Tloome 1992(2) SACR 30 (A), namely that the main objects of punishment—retribution, prevention, deterrence and reformation—must be weighed, and that where elderly victims are murdered in their own homes with robbery as motive, retribution and deterrence tend to come to the fore. The court held these observations applied to the present case. In its ultimate evaluation, it characterised the murder as particularly shocking, committed for the worst motives, and concluded that the death sentence remained the only proper sentence.

5. Outcome and Relief

The appeal against the death sentence was dismissed. The effect was that the death sentence imposed for the murder remained in place. The judgment did not make a distinct costs order in relation to the appeal.

Cases Cited

S v Tloome 1992(2) SACR 30 (A)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that there was no basis to interfere with the trial court’s finding that the appellant played a major role in the offences, and that the mitigating factors advanced (alcohol consumption, disadvantaged background and limited education, and the possibility of reform) were not established or were not of real significance on the evidence and facts found.

It further held that the aggravating features—planned targeting of an elderly victim in his home, forcible abduction to an isolated place, execution-style killing, burning of the body to conceal evidence, and murder committed to avoid detection for the robbery—together with sentencing objectives, especially retribution and deterrence as articulated in S v Tloome, meant that the death sentence was the only proper sentence. The appeal was accordingly dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that, in deciding whether to impose (or confirm) the death penalty for murder, a court must weigh the main purposes of punishment, namely retribution, prevention, deterrence, and reformation, and evaluate whether, considering all relevant factors, death is the only proper sentence.

It applied the further principle that where the murder involves elderly victims in their own homes and the motive is robbery, considerations of retribution and deterrence will commonly be prominent in the sentencing balance, particularly where the murder was unnecessary to accomplish the robbery and is committed to avoid detection.

The judgment also reflected the approach that asserted mitigating factors must be supported by an evidential foundation and must be shown to have real mitigating force; speculative claims (such as unproven intoxication or unsupported assertions of impaired responsibility) do not reduce moral blameworthiness absent evidence demonstrating their effect.