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1993
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[1993] ZASCA 178
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S v Mothoa and Another (61/92) [1993] ZASCA 178 (23 November 1993)
/CCC
CASE NO 61/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
KENNY MOTHOA
FIRST
APPELLANT
DAVID KHOZA
SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, GOLDSTONE JJA et KRIEGLER AJA
DATE HEARD
: 16 NOVEMBER 1993
DATE DELIVERED
: 23 NOVEMBER 1993
JUDGMENT NESTADT, JA
:
This is an appeal against death sentences imposed on the appellants
consequent upon their
2
convictions for murder.
The crime took place in the early
hours of the morning of 9 January 1991. The appellants entered the house of the
deceased in Daveyton
Extension, Benoni. Their purpose was to kill him. They had
been hired to do this by the deceased's wife. The first appellant was
armed with
a dagger and the second appellant with a so-called okapi knife. They each
stabbed the deceased a number of times as he
lay in his bed. The cause of death
is given in the post-mortem examination report as "haemorrage due to deep
lacerations of the chest
and neck".
In favour of the appellants to some extent is their comparative youth.
First appellant was at the time of the murder aged 23; second
appellant was 22.
Also, it was the deceased's wife who proposed that he be
3
killed. But this is as far as mitigating factors go. The first appellant
has a previous conviction (in 1983) for assault with intent
to do grievous
bodily harm (involving a knife) and one in 1991 for murder (also involving a
knife and in respect whereof he was sentenced
to seven years imprisonment of
which two years were conditionally suspended). Second appellant has
inter
alia
a previous conviction for assault with intent to do grievous bodily
harm (dating from 1983). I also cannot agree with Mr
Tee
, who ably argued
the appeal on behalf of the appellants, that appellants' moral blameworthiness
was reduced by the sympathy it was
said they felt for the deceased's wife. The
trial court found in this regard that the deceased had treated her extremely
harshly;
he had often seriously assaulted her; he attempted to kill her; and he
was blatantly
4
unfaithful to her. She had reported his behaviour to members of her
family as well as the police, but to no avail. There was, however,
no evidence
that the appellants were influenced by any of these factors. On the contrary, it
is plain that they undertook to kill
the deceased in consideration of a promise
of payment by the deceased's wife. According to the first appellant's confession
the wife
undertook that "sy vir ons 'n klomp geld gee wat ons vir die res van
ons lewe sal hou". In his confession, the second appellant admitted
that she
promised "sy gaan ons R1 500 gee as ons werk heeltemal klaar is".
This brings me to the aggravating features of the crime. They are
manifest. And clearly they outweigh what mitigating factors there
are. The
appellants (whose alibi defences were rejected) were
5
hired assassins. The murder was therefore planned. The way in which it
was to be carried out was discussed by them with the deceased's
wife in some
detail. Their mission was cold-bloodedly, brutally and mercilessly performed.
The deceased (whose estimated age was
55 years) was attacked in his own house.
He was quite defenceless. It would seem that he was awake as the appellants
entered his
bedroom. According to the first appellant' s statement he was told
not to move. He was then stabbed about seven times. The one wound
was an eight
centimetre deep laceration across the anterior surface of the neck. It severed
the trachea, oesophagus and carotid artery.
Another was a laceration through the
pectoral muscles into the upper lobe of the left lung. Obviously the appellants
acted with
dolus directus
.
6
with these considerations in mind, I turn to the question of what a
proper sentence is and in particular whether the death sentence
is the only
proper sentence. I shall accept that the appellants are capable of
rehabilitation. However, as has often been emphasised
by this Court, in a case
such as the present the deterrent and retributive objects of punishment must
predominate. This is because
hired killings (in the words of GOLDSTONE JA in
S v Mabaso and Others
1992(1) SACR 690(A) at 694 f) fill "any decent
person with revulsion and loathing. No civilised society will tolerate such
conduct."
(See too
S v Zondi
1992(2) SACR 706(A).) In consequence, so it
has been held, "(h)ired killers must be made aware that, save possibly in
exceptional
circumstances, the Court will impose the ultimate sentence upon
them" (
S v Dlomo and Others
7
1991(2) SACR 473(A) at 477 j - 478 a). This, of course, does not mean and
could not have been intended to mean that there is any onus
on an accused to
establish exceptional circumstances. It was simply a broad statement indicative
of a general approach to sentence
in matters of this kind, viz that the crime is
so serious, so reprehensible, that the death sentence would normally (but not
always)
be the only proper sentence. In my opinion, however, there are no
factors in
casu
that can avoid the conclusion that the ultimate penalty
is imperatively called for. In particular I cannot accede to counsel's plea
that
life imprisonment would suffice. In saying this I do not overlook the fact that
the deceased's wife, who was also (with appellants)
convicted of the deceased's
murder, did not receive the death sentence. She was sentenced to 25
years
8
imprisonment. Mr
Tee
fairly acknowledged that the appellants were
deserving of a more severe sentence. He argued, however, that the wife's
sentence was
excessively heavy and that by imposing it, the trial judge had, so
to speak, little room for the imposition on appellants of a (heavier)
sentence
short of the death sentence. I am unable to agree. Even assuming that the wife
may properly have received a lesser sentence,
I am convinced that as regards the
appellants the only proper sentence is the death sentence.
The appeal is dismissed.
NESTADT, JA
GOLDSTONE, JA )
) CONCUR KRIEGLER, AJA )