Brief Summary

Criminal Law — Sentencing — Death penalty — Appeal against death sentence for murder — Appellant, as leader of a group, ordered the execution of a 62-year-old man accused of witchcraft — Appellant threatened the victim's son to participate in the murder — Trial judge found significant aggravating factors, including the planned and cruel nature of the crime — Appellant's youth and lack of prior violent convictions considered as mitigating factors — Appeal dismissed; death sentence upheld as the only appropriate punishment given the circumstances.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was an appeal against sentence, specifically an appeal against the imposition of the death penalty following a conviction for murder.

The appellant was Fano Mafu, and the respondent was the State. The appeal was heard in the Supreme Court of South Africa (Appellate Division) before Nestadt JA, Van den Heever JA, and Harms AJA. Judgment was delivered on 15 September 1992 after the appeal was heard on 3 September 1992.

The procedural history was that the appellant was tried in the Natal Provincial Division (on circuit) before Page J, where he was convicted of murder and sentenced to death. The present proceedings concerned only whether the death sentence was properly imposed on the facts accepted by the trial court.

The general subject-matter of the dispute was the appropriate sentence for a murder committed in the context of group violence, where the appellant was found to have played a leading and directing role in the killing of an elderly man accused of witchcraft, including the coercion of the deceased’s minor son to participate in the events leading to the death.

2. Material Facts

On 16 January 1990, at about 5 pm, a group of young persons known as the “comrades” apprehended Ndokuzempi Mkhize (the deceased), who was described as being 62 years old in the principal judgment. The appellant, who was 21 years old, was the leader of the group.

The deceased was escorted to his kraal and was accused of practising witchcraft. The appellant instructed that the kraal be searched for herbs or “muti”, but none was found. Certain members of the group then expressed the view that the deceased should be freed, but the appellant insisted that the deceased should instead be killed.

The deceased’s son, Kenneth, aged 17, was present. The appellant handed Kenneth a bottle containing petrol and instructed him to pour it over his father. Kenneth refused, whereupon the appellant, who was in possession of a knife, threatened to stab Kenneth if he did not comply. Kenneth then poured the petrol over the deceased. The appellant provided Kenneth with matches and instructed him to set the deceased alight. Kenneth threw the matches down and fled. The appellant then set the deceased alight himself, and the deceased died as a result.

Additional material facts emphasised in a concurring judgment were that the deceased was degraded during the escort to his home and made to sing what Kenneth described as “toyi-toyi slogans”. It was also noted that, before Kenneth was instructed to pour petrol on his father, the deceased had already been severely injured, including bleeding head wounds, a broken leg, and an injury described by Kenneth as part of the heel not being in place. When Kenneth initially refused to pour petrol, the deceased intervened by telling him to pour the petrol because he could do nothing, but this did not elicit compassion from the appellant.

As to disputed matters, the appellant denied that he insisted on the killing and alleged that he was compelled by members of the group to set the deceased alight. That version was rejected, and it was accepted that the appellant played the dominant, if not sole, role in the actual killing and that he acted with dolus directus.

3. Legal Issues

The central legal question was whether, given the accepted aggravating and mitigating factors, the death sentence was imperatively called for and constituted the only proper sentence.

The dispute was not directed at the existence of the conviction (murder) but at sentencing, and therefore principally concerned the application of sentencing principles to the established facts, culminating in an overarching value judgment as to whether death was required rather than a lesser sentence permitting rehabilitation.

A further issue arose in the separate judgment regarding the correctness of reasoning that invoked what “right-minded members of society” would regard as appropriate punishment, including whether any form of “reasonable man” approach was apt in the sentencing context, and what role considerations of community perceptions and retribution should properly play.

There was also a division between members of the court on whether the case should be approached as involving a political motive or the impact of a context of unrest. One member considered that regard should be had to the surrounding conditions, while another expressly stated that the murder was not committed with a political motive and that the appellant did not claim such a motive.

4. Court’s Reasoning

The majority approach (as expressed in the principal judgment and supported by a concurring judgment) proceeded by identifying mitigating circumstances and then weighing them against aggravating circumstances to determine whether the ultimate sentencing threshold for death was met.

In mitigation, the court took account of the appellant’s comparative youth and the fact that he had had no schooling. It also treated as mitigating that, although the appellant had two previous convictions, they were not for crimes of violence and were committed many years earlier. The trial court’s observation was referenced to the effect that the appellant had shown leadership qualities and was not considered “basically criminal by nature,” suggesting some potential for rehabilitation if a sentence allowed for it.

The aggravating factors were, however, regarded as exceptionally serious. The appellant was not seen as having been emotionally swept up by events or influenced by others; instead, he was accepted as the leader who insisted on killing the deceased when others suggested release. His rejected account of being compelled by others meant that the accepted factual basis was one of initiative and control, and the appellant was treated as having played the dominant role in execution of the murder. The crime was characterised as involving dolus directus, and it was assessed as planned rather than impulsive.

The majority further evaluated motive and method. The motive was described as stemming from the appellant learning that the deceased had disapproved of his son’s involvement with the “comrades,” after which Kenneth stopped attending meetings. The killing was seen either as punishment or intimidation, and in either form as a base motive. The method of killing—setting an elderly and defenceless man alight after coercing his son to pour petrol—was described as cruel and savage, with particular emphasis on the abhorrence of involving the deceased’s son through threats of stabbing.

The principal judgment considered, but did not treat as decisive, the submission that the appellant might have been a “creature of his times and background,” potentially accustomed to violence, and it assumed the possible influence of an environment of unrest. Even on that footing, it accepted the trial court’s view that it was difficult to believe the appellant’s sensibilities could have been so blunted that he did not appreciate the enormity of the deed. The majority’s overall assessment was that the aggravating factors far outweighed mitigation and that the case fell into the category of particularly bad murders where death was regarded as the only proper sentence.

In a separate judgment, a dissenting member agreed that the death sentence was a proper sentence given the appellant’s callousness and method of execution, but disagreed that it was the only proper sentence. This judgment criticised the trial judge’s reference to what “right-minded members of society” would think, reasoning that this could suggest an inappropriate “reasonable man” test in sentencing. It emphasised instead that the sentencing judicial officer must make an individual value judgment within the legislative context, having regard to community perceptions insofar as they can be surmised, while also protecting the accused against society’s potentially vindictive sentiments.

The dissenting judgment accepted that, for a crime of this horrendous nature and malum per se, the moral justification for sentence would principally be retribution, with other aims of punishment playing little role. It articulated retribution as requital for evil done, while noting that proportionality does not imply equivalence in kind between punishment and the harm caused. On that foundation, it expressed the view that the court should not close its mind to the surrounding circumstances beyond the courtroom, describing the area as akin to a “combat zone” where intimidation and blunted moral sensibilities formed part of life. On that basis, and without purporting to lay down a general rule for political murders, it concluded that death was not imperatively called for and that a term of 18 years’ imprisonment would do justice.

A concurring judgment aligned with the majority and added further factual emphasis concerning degradation of the deceased, the pre-existing injuries, and the appellant’s lack of compassion in response to the deceased’s intervention. It also expressly rejected the characterisation of the murder as politically motivated, stating that the appellant did not claim such motive and that the conduct fell outside ordinary definitions of politics, describing the appellant instead as a perpetrator of terroristic coercion against the community.

5. Outcome and Relief

The appeal was dismissed, with the result that the death sentence imposed by the trial court remained in place.

No separate order as to costs was recorded in the text provided.

Cases Cited

S v Majosi and Others 1991 (2) SACR 532 (A) was cited for the proposition that the sentencing judicial officer will take into account the “perceptions, sensibilities and interests of the community” insofar as these can be surmised.

S v Heita and Another 1992 (3) SA 785 (NmHC) was cited as an illustration, drawn from that court’s experience, of the potential pressures of public vindictiveness and the need for courts to guard against it in sentencing.

Legislation Cited

No legislation was expressly cited in the text provided.

Rules of Court Cited

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

Held

The Appellate Division (majority) held that, despite mitigating factors such as the appellant’s youth, lack of schooling, and the non-violent nature and age of prior convictions, the aggravating features of the murder were overwhelming. These included the appellant’s leadership role, his insistence on the killing, the planned nature of the crime, his direct intention, the base motive linked to punishment or intimidation, the extreme cruelty of killing by burning, and the coercion of the deceased’s minor son under threat of stabbing.

On the majority’s value judgment, this combination placed the matter among particularly grave cases in which the death penalty was regarded as the only proper sentence, and the appeal against sentence therefore failed.

A dissenting judge would have allowed the appeal against sentence and substituted a lengthy term of imprisonment, concluding that death was not imperatively called for, especially when regard was had to the broader environment described as resembling a combat zone. However, that view did not prevail.

LEGAL PRINCIPLES

The judgment applied the principle that sentencing for murder, including whether the death penalty is justified, requires a careful weighing of mitigating and aggravating factors, culminating in an overall value judgment as to whether death is imperatively required.

It affirmed that where an accused’s version seeking to reduce culpability is rejected, sentence must be assessed on the accepted factual basis, including the accused’s role, intent (including dolus directus), and the degree of planning as opposed to impulsiveness.

It reflected that youth, limited education, and prior convictions not involving violence may be mitigating, and that prospects of rehabilitation may be relevant, but these factors may be outweighed where the crime is exceptionally brutal, planned, and executed with cruelty and coercion.

From the separate judgment, principles were articulated that the sentencing officer must make an independent value judgment rather than applying a “reasonable man” approach, that community perceptions may be considered only insofar as they can be surmised, and that courts must protect society against offenders while also protecting offenders against society’s potentially vindictive impulses.

It was also expressed that in cases of horrendous crimes that are malum per se, the principal moral justification for punishment may lie in retribution, understood as requital for evil done, and that proportionality does not require punishment to be equal in kind to the harm caused.

S v Mafu (378/91) [1992] ZASCA 146 (15 September 1992)