Summary of Judgment

1. Introduction

This was an appeal in the Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) concerning sentence in a criminal matter, specifically an appeal directed only at the imposition of the death sentence on multiple murder counts.

The parties were Kwanele Msizi (first appellant) and Phakamile Cishe (second appellant) as appellants, and the State as respondent.

The matter came before the Appellate Division after the appellants were tried in the South Eastern Cape Local Division before a judge sitting with assessors. They were convicted of three counts of murder, four counts of attempted murder, and six counts of theft. The appeal was noted in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977 (as amended), and it was confined to the death sentences imposed on the three murder counts (counts 2, 3 and 4).

The general subject-matter of the dispute was whether, on the facts found proven and having regard to aggravating and mitigating features, the trial court was correct in concluding that the death penalty was the only appropriate sentence for the murders arising from attacks on police patrols in Zwide, Port Elizabeth.

2. Material Facts

On the evening of 18 November 1990, two police officers, Constable C J De Wet and Sergeant J S Gerber, were on patrol in Zwide near Port Elizabeth. A third person, Gotyana, was also in the police vehicle, although the evidence did not explain how he came to be there. During that patrol, the vehicle was fired upon with AK-47 rifles, and all three occupants were fatally shot.

On 26 December 1990, there was a further attack on police in Zwide. On that occasion, shots were fired and hand grenades (“stokgranate”) were thrown at police members. No one sustained significant injuries, but the incident gave rise to the attempted murder charges.

The appellants’ participation in both attacks was in issue at trial, but the Appellate Division recorded that it was clearly proved, primarily through statements made by the appellants after their arrest in January 1991, together with other evidence. The judgment noted that, at trial, the appellants opted for a denial of involvement coupled with explanations for their statements that were found to be transparently false, and the court treated their post-arrest statements as central to proof of participation.

The proven narrative, as accepted by the court, was that toward the end of 1990 the appellants were involved in the theft of multiple motor vehicles in and around Port Elizabeth. At some stage the second appellant travelled to King William’s Town for an unknown purpose. After his return, the first appellant took him to a scrapyard where two heavily armed PAC “terrorists” were hiding. There the appellants received basic training in the handling of AK-47 rifles.

On the night of the first attack, the appellants travelled in a stolen vehicle to the scrapyard. It was already agreed that they would assist the two armed men to attack police. The two armed men got into the back of the vehicle with AK-47s. The first appellant drove, and the second appellant sat in front, with a third AK-47 between them. They searched for police in New Brighton and Soweto, found none, and then proceeded to Zwide. When a police vehicle approached, they stopped; everyone except the first appellant got out and fired at the police vehicle. They then drove away, dropped the two armed men at the scrapyard with their weapons, and the appellants hid the vehicle.

On the night of 26 December 1990, they again used another stolen vehicle to collect their associates at the scrapyard, and they also had training in the use of hand grenades. Each appellant was given a grenade. While the two armed men again carried AK-47s in the back, the group searched for police in Zwide. They found two police vehicles parked next to each other with police members in and around them. At close range, their associates fired at the police. The group could not drive away because the first appellant lost control of the vehicle, which collided with a fence, forcing them to flee on foot. While fleeing, each appellant threw a grenade at the vehicles.

3. Legal Issues

The central question before the Appellate Division was whether, on the murders in counts 2, 3 and 4, the trial court correctly found that the death sentence was the only appropriate punishment after weighing aggravating and mitigating factors.

The dispute was primarily one of the application of sentencing principles to the facts found proven, and it involved an evaluative judgment concerning the relative weight of alleged mitigation. In particular, the court had to evaluate whether factors advanced on the appellants’ behalf, including an alleged political motive, the second appellant’s youth (19 years old), his lack of previous convictions, and alleged influence by the first appellant and/or the armed men, materially reduced moral blameworthiness so as to justify a sentence other than death.

4. Court’s Reasoning

The Appellate Division approached the matter as one of sentence, requiring consideration of both aggravating and mitigating features, and determining whether any mitigating circumstances were sufficiently weighty to justify a punishment other than death. The court expressly aligned itself with the trial judge’s conclusion that, in the circumstances, the death penalty was the only fitting sentence for the murders.

On mitigation, the court accepted that the second appellant was 19 years old at the time and had no previous convictions, but found that, beyond these features, there was “really nothing” that could properly be treated as mitigating in the case. The court rejected the argument that the murders were committed with a political motive and as a symbolic act of resistance. It reasoned that whatever the armed men’s motives might have been, those could not simply be imputed to the appellants. The court emphasised that the only direct source regarding the appellants’ reasons for participation was their own statements, and those did not support the political motive advanced on appeal. Instead, the statements indicated that the appellants were eager to receive weapons training and even hoped to obtain weapons for themselves, seeing them as useful tools in relation to the wrongdoing in which they were already engaged. The court regarded their participation as likely aimed at impressing the armed men by assisting in attacks on police.

The court also dealt with the submission that the second appellant was probably influenced by the first appellant, and that both were later influenced by the armed men. It described this contention as pure speculation, finding no indication in the statements or other evidence of such influence. In assessing the second appellant’s conduct, the court pointed to his demonstrated willingness to use the firearm available in the front of the car without encouragement, which the court considered inconsistent with a narrative of domination or coercion.

On aggravation, the court identified several prominent features. It stressed that two victims were police officers engaged in their ordinary duties of community protection (including protection of the community of which the appellants themselves were members), and the third was an innocent bystander. The court highlighted the cold-blooded search and “hunt” for a police vehicle, which proceeded from searching in other areas to continued pursuit in Zwide. It also emphasised the nature of the attack itself, carried out at close range with three semi-automatic rifles, with the police vehicle hit by 47 bullets, and with at least five bullets fired by the second appellant. The court further treated the appellants’ attitude as aggravating, noting evidence that they derived enjoyment from the act, boasting the next day about how pleasant it was to shoot the police, and participating in a further attack about a month later.

In the overall balancing exercise, the court found that the aggravating features far outweighed the limited mitigation. It considered that, in such a case, punishment had to be directed at retribution and prevention, and had to reflect the community’s revulsion. The court held that this conclusion applied also to the second appellant despite his youth, because his conduct did not reflect impulsive youthful rashness; the judgment referred to his disappearance from schooling near year-end and his subsequent full-time involvement in criminal activity with the first appellant, as well as his committed participation in the attacks. The court described the matter as an extreme case calling for the ultimate retributive punishment for both appellants.

5. Outcome and Relief

The Appellate Division dismissed the appeal. The effect was that the death sentences imposed on the appellants for the three murder convictions (counts 2, 3 and 4) remained in force.

The judgment, as provided, did not record any separate or additional order in relation to costs in the appeal.

Cases Cited

No external cases were cited in the provided judgment text.

Legislation Cited

Criminal Procedure Act 51 of 1977 (as amended), section 316A(1).

Rules of Court Cited

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

Held

The court held that, after weighing the aggravating and mitigating factors, there were no substantial mitigating circumstances beyond the second appellant’s age and clean record, and that the aggravating features—particularly the deliberate “hunt” for police, the lethal close-range AK-47 attack killing two police officers and an innocent third person, the appellants’ own active participation, and their subsequent boasting and repeated involvement—overwhelmingly justified the conclusion that the death penalty was the only appropriate sentence. The appeal against the death sentences was accordingly dismissed.

LEGAL PRINCIPLES

Sentencing for murder required an evaluative balancing of aggravating and mitigating factors, and the appellate court would consider whether, in the circumstances found proven, the trial court was correct to conclude that the ultimate sentence was the only appropriate one.

An alleged political motive could not be accepted as mitigating on the basis of assertion alone; it had to be supported by the evidentiary material relied upon by the court. Where the accused’s own statements did not support such a motive, and where any political motivations might instead have belonged to co-perpetrators, the court would not attribute those motives to the accused without a proper basis.

Claims that an accused acted under influence or manipulation, whether by a co-accused or others, required an evidential foundation; absent indications in the statements or other evidence, such influence was treated as speculative and not mitigating.

Youth and the absence of prior convictions could constitute mitigating considerations, but youth would not necessarily reduce moral blameworthiness where the conduct demonstrated deliberate, sustained, and active participation in grave violence rather than impulsive youthful recklessness.