Brief Summary

Criminal Law — Murder — Joint enterprise — Appellants convicted of murder and robbery after planning and executing the killings of their employers, an elderly couple, during a robbery. The appellants, both farm workers, armed themselves and awaited the couple's return, subsequently murdering them in a premeditated attack. The issue was whether the death sentences imposed were appropriate given the circumstances of the case. The court held that the appellants acted with direct intent to kill, and the brutal nature of the crimes, coupled with their prior criminal records, justified the death sentences as the only fitting punishment.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal in the former Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) against sentence, specifically the imposition of the death penalty on two counts of murder. The matter concerned two separate appeals heard together, brought by Petrus Tshabalala (first appellant) and John Mokoena (second appellant) against the State as respondent.

The appellants had stood trial in the Orange Free State Provincial Division before Beckley J and two assessors. They were convicted on two counts of murder, two counts of theft, and two counts relating to the unlawful possession of firearms and ammunition. Each appellant received the death sentence on each murder count, with additional terms of imprisonment for the theft and firearms-related convictions. The appeals were confined to the death sentences only; the convictions and the other sentences were not the subject of the appeals.

The dispute before the Appellate Division therefore concerned the proper approach to sentence in the context of a planned robbery culminating in the killing of an elderly farming couple at their home, and whether, on the facts accepted by the court, the death sentences were the only appropriate sentences for each of the murders.

2. Material Facts

The deceased, Mr J H Wium (64) and Mrs J M Wium (60), lived on and farmed the property Erfstuk in the Senekal district. The appellants were farm employees living on the property. At the relevant time the first appellant had worked on the farm for approximately three months, while the second appellant had been employed for less than three weeks. They were the only male employees on the farm.

On the morning of Wednesday, 20 March 1991, the Wiums left the farm for town and returned late that afternoon. During their absence, the appellants entered the Wiums’ house, located and used the key to the firearm safe, and removed various firearms and ammunition. Each appellant armed himself with a pistol. The court accepted that their initial purpose was to look for money; the only money they found was a bag containing old coins, which was later pointed out to the police by the second appellant as hidden in his hut.

A feature emphasised by the court was that the appellants had ample time and opportunity during the day to remove stolen items from the farm if theft alone had been their aim. A second vehicle (a bakkie) was available on the property. Despite this, they removed nothing during the day and instead remained on the farm, armed, waiting for the Wiums to return.

When the Wiums arrived late that afternoon, the appellants lay in wait outside the home, immediately demanded money, and murdered both victims. The evidence accepted by the court established that Mrs Wium was shot twice with a 6.35 mm pistol while still seated in the cab of the bakkie; both shots entered her upper back on the left, and one bullet penetrated her lung and pericardial sac, causing death. The court treated this as a cold-blooded killing. The first appellant’s earlier admissions (made during magistrates’ court plea proceedings) included that he fired two shots at Mrs Wium.

Mr Wium was found dead later that night in the grass some distance behind the bakkie. A bloodstained three-pronged pitchfork and a pick were located nearby. The post-mortem findings accepted by the court included multiple round penetrating injuries to the chest and abdomen arranged in groups of three consistent with a three-pronged implement, and extensive skull fractures and brain haemorrhaging requiring the application of great force, likely with the pick. The cause of death was attributed to both head and chest injuries. No bullet wounds were found on Mr Wium’s body.

After the murders, the appellants stole the second bakkie, loaded substantial stolen property onto it (including household and personal items, five rifles, and ammunition), and drove to the second appellant’s home in Qwaqwa, where the police surprised and arrested them the same night. Each appellant had a pistol at hand. The second appellant escaped shortly after his arrest but was apprehended two days later near the Lesotho border.

Neither appellant testified at the trial. The first appellant had previously pleaded guilty in the magistrates’ court to both murder charges and made admissions including his shooting of Mrs Wium and his participation in restraining Mr Wium while the second appellant stabbed him with a pitchfork; the court treated these admissions as reflecting the first appellant’s role but not as evidence against the second appellant. The second appellant’s account appeared in a confession to a magistrate, in which he stated that he and the first appellant suspected money was stored in the firearm safe and decided to steal it, and that they had discussed the possibility of killing the Wiums. He described a plan allocating who would shoot which victim. He admitted shooting at Mr Wium (though asserting uncertainty whether he hit him) and admitted stabbing him with a pitchfork. The court treated the confession as evidence against the second appellant, and not against the first appellant.

On the accepted facts, the court held there was no doubt that it had been the appellants’ common purpose to murder both victims, and that both participated in the attacks in execution of that purpose, even though each attempted to blame the other for particular injuries.

3. Legal Issues

The central question on appeal was whether, given the facts accepted by the trial court and the Appellate Division’s own assessment, the death sentences imposed for each of the two murders were the only appropriate sentences for each appellant.

The dispute was not directed at the appellants’ guilt, but concerned the application of sentencing principles to the established facts and the evaluative judgment required in determining whether there were sufficiently weighty mitigating factors to justify a sentence other than death. The inquiry was therefore principally a matter of value judgment informed by legal principle, involving the weighing of aggravating and mitigating circumstances on the record.

4. Court’s Reasoning

The court approached the matter by identifying the principal aggravating features emerging from the accepted evidence and evaluating whether any mitigating factors could realistically displace the conclusion that death was the only appropriate sentence.

A major factor in the court’s reasoning was the motive of personal financial gain and the fact that the events reflected planning and deliberation rather than spontaneity. The appellants had entered the house during the Wiums’ absence, opened the firearm safe, armed themselves, and then waited for hours for the victims’ return. The court considered that, if theft had been the sole object, there was no practical reason to remain on the farm and await the couple, particularly given the availability of a vehicle and the opportunity to remove property earlier. The court inferred that at some point during the day, and probably before the attack commenced, the appellants decided to murder the couple, and that arming themselves with pistols was consistent with that intention.

The court further reasoned that the manner in which the attack began and unfolded supported an inference of a deliberate intention to kill. It regarded it as improbable that the appellants lay in wait merely to obtain money and not also to kill. The court pointed to the fact that the victims were murdered almost immediately after arrival, after which the appellants searched for money, rather than first coercing the victims to reveal the location of money. The court also emphasised that the victims would have been able to identify their attackers, and that the appellants would therefore have had a strong incentive to eliminate them if they intended to protect their identities.

In assessing the gravity of the murders themselves, the court underscored the victims’ vulnerability. The deceased were elderly and unarmed, confronted by armed employees. Mrs Wium was shot from behind while seated in the bakkie, which the court described as a cold-blooded killing. Mr Wium was killed in a brutal and violent manner involving multiple stab wounds consistent with a pitchfork and severe head trauma likely inflicted with a pick, resulting in both chest and head injuries being fatal. The court treated these features as demonstrating a high degree of moral blameworthiness and the presence of direct intent to kill.

Turning to mitigation, the court found it difficult to identify substantial mitigating circumstances. Both appellants were over 30 years of age and not immature youths. Both had prior convictions. The first appellant had a record including prior convictions for theft (including theft of livestock) and at least one for assault; the second appellant had two prior convictions, with the more recent being attempted robbery for which he had been sentenced to four years’ imprisonment and released after approximately three years, committing the present crimes about three months later. The court noted an absence of remorse and concluded that, against this background, neither appellant appeared to be a good candidate for rehabilitation.

The trial court had treated post-arrest cooperation as a mitigating factor, but the Appellate Division held that little weight could be attached to it given the appellants’ later conduct during trial, which the court viewed as obstructive rather than consistently cooperative. The court referred, in this regard, to the manner in which the second appellant largely refused representation by his pro Deo counsel and attempted to advance a supposed religious delusion, which psychiatric observation did not support; the first appellant later attempted something similar. The court stressed it was not treating this as aggravation, but as reducing the significance of any claimed cooperation.

As to the first appellant’s earlier claim that he had been influenced or persuaded by the second appellant, the court held that the evidence did not provide a basis for that conclusion as a reasonable possibility.

The second appellant’s confession had alleged heavy drinking during the day and intoxication at the time of the murders. The court accepted that some influence of alcohol was a reasonable possibility not excluded by the State, and the trial court had treated it as mitigating. However, the Appellate Division regarded the claim of extreme drunkenness as exaggerated when tested against the second appellant’s conduct after the murders, including loading stolen property, driving the stolen bakkie approximately 180 km to Qwaqwa despite limited driving experience, and later successfully escaping from police custody. Any alcohol influence, in the court’s assessment, could not outweigh the substantial aggravating features.

Finally, the court situated its assessment within its recent sentencing approach in similar matters. It referred to authority indicating that deterrence and retribution come strongly to the fore where older persons are murdered in their homes in circumstances of the kind present. On this basis, and having weighed all factors, the court concluded that the death penalty was the only appropriate sentence for both appellants on each murder count.

5. Outcome and Relief

The Appellate Division dismissed both appellants’ appeals against sentence. The death sentences imposed on each appellant for each of the two murders were confirmed. No alteration was made to the other sentences, which were not under appeal, and the judgment as provided did not record a separate costs order in relation to the criminal appeals.

Cases Cited

S v Tloome 1992 (3) SA 568 (A)

Legislation Cited

No legislation was expressly cited in the provided extract of the judgment.

Rules of Court Cited

No rules of court were expressly cited in the provided extract of the judgment.

Held

The court held that, on the accepted facts, the murders were planned, cold-blooded, and executed with direct intent in the course of a scheme motivated by financial gain, with the appellants lying in wait for and killing two elderly, unarmed victims at their home. The court held further that there were no mitigating factors of sufficient weight to displace the conclusion that the death sentence was the only appropriate sentence for each appellant on each of the two murder counts. The appeals against the death sentences were accordingly dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that sentencing for murder requires a weighing of aggravating and mitigating factors to determine whether the extreme penalty (on the law as it then stood) is the only appropriate sentence on the particular facts.

The judgment applied the approach that, in cases involving the murder of older persons in their homes under circumstances of premeditation and vulnerability, the sentencing aims of deterrence and retribution may properly assume particular prominence.

The judgment further applied the principle that where offenders act with a common purpose to kill and both actively participate in the execution of that purpose, the allocation of blame for specific injuries between them does not negate their shared responsibility for the killings as executed.

The judgment also applied the principle that alleged mitigating factors such as intoxication and post-arrest cooperation must be evaluated in light of the totality of the facts, including conduct demonstrating planning, effective execution of post-offence actions, and the consistency and genuineness of any claimed cooperation; where such factors are present only to a limited degree, they may be outweighed by strong aggravating circumstances.

S v Tshabalala en 'n Ander (101/92, 234/92) [1992] ZASCA 201 (23 November 1992)