Brief Summary

Criminal Law — Sentencing — Death penalty — Appellant convicted of multiple murders and robbery — Sentenced to death for two murders and imprisonment for robbery and additional murder — Appeal against death sentences — Court to consider circumstances of the crimes and appellant's background — Appellant's actions characterized as cold-blooded and premeditated — No substantial mitigating factors found — Death sentences upheld as appropriate given the severity of the crimes and lack of evidence supporting claims of provocation or impulsive behavior.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) directed only at sentence, namely the imposition of the death penalty on two murder counts.

The appellant was Richard Mathonsi, and the respondent was the State. The matter came before the Appellate Division after the appellant had been tried and convicted in the Witwatersrand Local Division before M J Strydom J and assessors.

In the trial court the appellant was convicted on multiple counts arising from separate incidents, including robbery with aggravating circumstances, three murders, and firearms-related offences. He was sentenced to death on two of the murder counts (count 2 and count 4), and to terms of imprisonment on the remaining counts. The present appeal challenged only the two death sentences, but the appellate court considered the broader sequence of events because it was relevant to the sentencing assessment.

The general subject matter of the dispute was whether, having regard to the appellant’s personal circumstances, the nature of the murders, and the overall pattern of offending, the death sentences imposed on count 2 (the murder of Isaac More) and count 4 (the murder of Lindiwe Shongwe) were justified and should be upheld.

2. Material Facts

The court treated the following factual narrative as material to sentencing, and it substantially adopted the trial court’s account of events.

On 3 June 1990 at approximately 16h00, Victor Simango was driving his employer’s blue Toyota Hilux in Dobsonville. While stopped at a stop sign at the corner of Mphepheta and Main Street, two men approached. One pointed a firearm at Simango, reached through the open driver’s window, removed the vehicle keys, and ordered Simango out. The other ordered Simango’s passenger, Lucky, to get out. The two men drove away in the vehicle. The appellant was one of the robbers. He was convicted on this incident (count 1) of robbery with aggravating circumstances and sentenced to 10 years’ imprisonment.

Minutes after the robbery, Alpheus Malope and his friend, Isaac More, were driving in Main Street and stopped at another stop sign at the intersection with Robert Road. The stolen Toyota Hilux pulled up alongside them. The appellant, seated as a passenger in the Hilux, used abusive language and accused More of poor driving. More got out, approached the Hilux, and asked why the appellant said he drove badly. The driver of the Hilux told More to “voertsek”. As More turned and began walking back to his vehicle, the appellant shot him in the back at close range. The shot was fatal. The appellant was convicted of murder on this incident (count 2) and sentenced to death.

Later the same day, at about 17h00, the appellant encountered the mother of David Ntoagae (the deceased in count 3) near her house in Dobsonville. The appellant had a firearm and told her that he would not fight with David again. He then drove off in the blue bakkie, followed by friends in another vehicle. That evening David left his home around 19h30 and arrived at Foreman’s shebeen around 20h00, where he sat with friends. The appellant was also present. Later, David and the appellant left the shebeen and became involved in an argument, during which the appellant drew a firearm and shot David dead, after which the appellant ran away. On this murder (count 3) the appellant was sentenced to 15 years’ imprisonment.

A further incident occurred almost four months later, on 23 September 1990, at about 20h15, when Magdeline Zwane and Lindiwe Shongwe attended a stokvel in Dobsonville. During the evening a young man named Bowa made a request of Lindiwe; she refused and Bowa slapped her, causing her to cry. The appellant approached Lindiwe, asked why she was crying, and was told about Bowa. The appellant spoke to Bowa. Lindiwe and Magdeline then went to a toilet; the appellant followed them and pulled Lindiwe out into the street. Lindiwe cried and screamed, and the appellant assaulted her. Magdeline left and, on the way, met Lindiwe’s boyfriend, Jabalani Mabunda, and told him what had happened. Mabunda went to the stokvel, found Lindiwe, and took her home. While Mabunda and Lindiwe stood outside her home talking, the appellant fired a shot at her from a nearby shadowed area. The bullet penetrated her lung and heart; she fell and later died. The appellant ran away and jumped into the back of a car that drove off. The appellant was convicted of murder on this incident (count 4) and sentenced to death.

In addition, the appellant was convicted of offences under the Arms and Ammunition Act 75 of 1969 and sentenced to a total of 21 months’ imprisonment, ordered to run concurrently with the 10-year sentence on count 1. The court record indicated that the sentences on count 1 and count 3 were not ordered to run concurrently, producing an effective term of 25 years’ imprisonment in addition to the two death sentences.

As to personal circumstances relevant to mitigation, the appellant was 24 years old at the time of the offences. The trial judge referred to two previous convictions in 1983, but the appellate court noted that the record appeared to reflect that only one prior conviction (housebreaking with intent to steal and theft) had been proved. In any event, at the time of that earlier conviction the appellant was 17, received six strokes (light cane), and had no history of violent offences. Evidence indicated that he ran a successful clothing business, lived with a woman in respect of whom lobola had partly been paid, had two children (one from that relationship and one from an earlier relationship), and maintained his children.

3. Legal Issues

The central issue was whether, on a proper sentencing assessment, the trial court had correctly concluded that the death penalty was the appropriate sentence for the murders charged in count 2 and count 4, rather than a lesser sentence such as life imprisonment.

The dispute primarily concerned the application of sentencing principles to established facts, involving evaluative judgment as to the relative weight of aggravating and mitigating factors, the appellant’s prospects of rehabilitation, and the community interest in deterrence and protection.

A subsidiary issue arose in relation to count 4, namely whether the trial court was justified in drawing the inference that the appellant went to the deceased’s home with the intention of killing her, and whether alternative inferences (such as an impulsive shooting prompted by jealousy or an attempt to resume a relationship) were reasonably supported by the evidence.

4. Court’s Reasoning

In addressing count 2 (More), the court treated the aggravating features as compelling. The shooting was described as cold-blooded and without provocation, with the appellant firing at close range into the deceased’s back as the deceased walked away. The court considered that the appellant probably acted with direct intent to kill, but stated that even if one assumed dolus eventualis, the extreme recklessness and high risk of death inherent in the conduct meant that the appellant’s moral blameworthiness was not materially less than in a case of direct intention.

Counsel for the appellant emphasised that the shooting was not premeditated and occurred in the heat of the moment. The court accepted that the murder was not planned and that this factor had to be given appropriate weight. However, the court rejected the suggestion that the appellant’s possible anger materially mitigated the offence, reasoning that any anger would have been based on a trivial and unreasonable ground (the alleged poor driving caused no harm and apparently no real danger), and the shooting did not occur instantaneously but after a brief interaction and at a moment when the deceased was already returning to his own vehicle. On the facts as accepted, the court did not regard “anger” in those circumstances as reducing the seriousness of the murder.

In relation to count 4 (Shongwe), the court likewise treated the aggravating features as strong. The murder followed an earlier assault and coercive conduct by the appellant toward the deceased, and later the deceased was shot outside her home from a position of concealment. The trial court had inferred that the appellant went to the deceased’s home to kill her, supported by the time that had elapsed and the circumstances indicating that the appellant had the opportunity to cool off and yet arrived by car near her home, shot immediately, and fled in a vehicle that appeared to be waiting.

Before the appellate court it was argued that the trial court’s inference was not the only reasonable one, and that it was possible the appellant went to seek reconciliation, saw the deceased with another man, and then acted impulsively. The appellate court rejected this submission because it found there was no evidential foundation for the alternative theory. The appellant had denied any involvement in the murder, and there was no evidence that he attempted any conversation or approach at the deceased’s home; on the accepted State evidence he shot immediately. Suggestions that he may have been motivated by Mabunda’s presence were characterised as speculation not supported by evidence or inherent probabilities. The court also noted the evidence that there was no relationship between the appellant and the deceased at the time, and it regarded the appellant’s attempt to suggest otherwise as unreliable when weighed against Magdeline Zwane’s evidence and the appellant’s general lack of credibility.

Having rejected the proposed alternative inferences, the court held that, in the absence of any explanation from the appellant, the only reasonable inference was that he went to the deceased’s home for the purpose of killing her. In support of the approach to inference, the court referred to S v Rama 1966(2) SA 395 (A) and S v Steynberg 1983(3) SA 140 (A). Premeditation was therefore treated as an additional aggravating feature on count 4. The court also considered the suggestion that the appellant had consumed alcohol that evening, accepting it was possible or likely, but finding there was nothing indicating that intoxication played a significant role in the murder; it was therefore not a strong mitigating factor.

After analysing the aggravating and mitigating features specific to each murder, the court considered the appellant’s broader circumstances and the sentencing purposes. It accepted that the appellant was still a young man and, for practical purposes, a first offender as an adult, and that his life before these events appeared not to have been seriously blameworthy. The court stated that one would ordinarily wish to afford such a person an opportunity to reform. However, it attached decisive weight to the fact that the appellant was not convicted of a single isolated murder but of a robbery and three murders committed within a period of less than four months, each displaying brutality and cold-bloodedness to varying degrees. The pattern of offending supported the trial court’s view that the appellant was prepared to kill when he did not get his way.

On that basis, the court expressed serious doubt about the appellant’s prospects of rehabilitation and concluded that protection of the public had to receive the highest priority. The court considered whether life imprisonment would adequately protect the public, but concluded that the casual and morally reprehensible manner in which the murders were committed, and the risk of repetition, warranted the severest sentence available. It stated that such a sentence was justified to protect the public, deter others, and express societal revulsion.

5. Outcome and Relief

The appellate court dismissed the appeals against the death sentences.

The death sentences imposed on count 2 and count 4 were accordingly confirmed. The judgment did not record any separate or additional order as to costs in relation to the appeal.

Cases Cited

S v Rama 1966(2) SA 395 (A)

S v Steynberg 1983(3) SA 140 (A)

Legislation Cited

Arms and Ammunition Act 75 of 1969

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that, considering the seriousness of the two murders in issue, the absence of meaningful mitigation, the inference of premeditation in the murder of Lindiwe Shongwe, and the broader pattern of violent offending (including multiple murders within a short period), the trial court was justified in imposing the death penalty on counts 2 and 4. The appeals against those death sentences were dismissed.

LEGAL PRINCIPLES

A sentencing court must weigh aggravating and mitigating factors with reference to the recognised purposes of punishment, including deterrence, prevention/protection of the public, and the expression of the community’s condemnation, while also considering the offender’s personal circumstances and prospects of rehabilitation.

Where a murder is committed by shooting the victim at close range in circumstances exhibiting extreme recklessness, the offender’s moral blameworthiness may remain very high even if the case is approached on the footing of dolus eventualis, rather than direct intention.

Alleged anger is not necessarily mitigating; its weight depends on whether there was a reasonable basis for it and whether the circumstances show a genuinely impulsive loss of control. Anger founded on trivial or unreasonable grounds, particularly where there was time for reflection, may carry little or no mitigatory force.

Inferences as to intention and premeditation must be grounded in the evidence and the inherent probabilities. Where the proven facts support a particular inference and alternative theories are unsupported by evidence and amount to speculation, a court is entitled to draw the inference that is the only reasonable one on the record, consistent with the approach in S v Rama 1966(2) SA 395 (A) and S v Steynberg 1983(3) SA 140 (A).

Alcohol consumption is not, without more, a substantial mitigating factor in sentencing for murder; its significance depends on whether it is shown to have materially affected the offender’s conduct or mental state in relation to the offence.

S v Mathonsi (694/91) [1992] ZASCA 200 (23 November 1992)