Summary of Judgment

Introduction

The matter concerned a criminal appeal to the Supreme Court of Appeal against both conviction and sentence, brought in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977.

The appellant, Joseph Muyula Mkhwanazi, appealed against convictions secured in the Witwatersrand Local Division, where the respondent was the State. The trial court (M J Strydom J sitting with two assessors) convicted the appellant on housebreaking with intent to commit robbery and robbery with aggravating circumstances (count 1) and murder (count 2), and imposed the death sentence on both counts.

The dispute on appeal primarily concerned whether, on the proved facts, the appellant’s conviction for murder was sustainable (particularly in relation to mens rea), and what the appropriate outcome should be regarding sentence given constitutional developments affecting capital punishment.

Material Facts

On the night of 22 May 1993, the complainant in the robbery count, Mrs Weinstein, a 73-year-old widow, was at home in Yeoville, Johannesburg. She lived in the house with her daughter and an 86-year-old male tenant. On the evening in question, the complainant and the tenant were at home; the complainant’s daughter went out and returned around midnight.

Some time before midnight, the complainant encountered two male intruders in the passage outside her bedroom. When she confronted them, they immediately attacked her. One threatened her with a dagger while the other forced bed socks into her mouth. She was choked, dragged into her bedroom, robbed of her wristwatch and gold chain, rendered unconscious, and later regained consciousness tied up. The intruders returned to question her about a firearm and money; despite her indicating where the firearm could be found, she was assaulted again, tied with a telephone cord, and restrained with her feet tied to furniture. When her daughter returned and shouted for help, the intruders left.

Afterwards, it was discovered that the tenant had been murdered and was found dead in his bed. A post-mortem conducted by Dr Klepp, a senior specialist in forensic pathology, concluded that death was caused by a fractured cervical spine, with the spinal cord severed. The evidence attributed the injury to a forceful and rapid backward movement of the head, causing almost instantaneous death.

The appellant closed his case without testifying on the merits, despite evidence implicating him. A key State witness, Patrick Nene, testified that in May 1993 he stayed in a room in Berea Road, Bertrams, near the complainant’s residence, together with his brother Emmanuel and others including a person known as Clement. Nene knew the appellant. On the night of the incident, the appellant and Clement were in Nene’s room until about 21:00, when they left, and returned after midnight with three suitcases containing various items including radios, tape decks, a video machine, and liquor.

Nene testified that the appellant and Clement gave him one of the suitcases, which he used. Later, police arrived at Nene’s room in the company of the appellant and Emmanuel, and the appellant pointed out “his” suitcase to the police. This suitcase was produced at trial and identified by the complainant’s daughter as belonging to Mrs Weinstein. The judgment records that Nene’s testimony relating to the suitcase was not challenged in cross-examination.

Nene further testified that the day after the appellant and Clement returned with the goods, the appellant told him that he and Clement went to a place where they “did something wrong” and that somebody died, that they tied up an old woman, strangled her, and forced something into her mouth, and that they returned with stolen goods. The judgment treated this as an extra-judicial admission aligning with the objective facts. It was put to Nene that the appellant would deny making such a report, but the appellant did not testify to contradict it.

Legal Issues

The appeal required determination of whether the convictions on both counts were sustainable on the evidence, but the principal contested question was whether the State proved the appellant’s mens rea for murder.

The core issue was an application of legal principles to facts, namely whether, in the absence of evidence that the appellant personally killed or assisted in killing the deceased, the proven participation in a robbery enterprise nonetheless supported a murder conviction on the basis of foresight and recklessness, in the form of dolus eventualis, within the framework of common purpose.

A further issue arose as to sentence: whether the death sentences could stand given the constitutional invalidation of capital punishment after the trial, and what procedural course was appropriate for the imposition of substituted lawful sentences.

Court’s Reasoning

In relation to the robbery and housebreaking, the court considered the evidence implicating the appellant to be conclusive. It emphasised the trial court’s acceptance of Nene as a credible witness and addressed criticism that certain aspects of Nene’s testimony were not included in his police statement. Nene’s explanation—that his statement was provided in response to police questioning and he could not recall whether certain aspects were raised—was noted, and the appellate court did not regard this as undermining the decisive incriminating features.

Central to the reasoning was the evidence connecting the appellant to property taken from the complainant’s residence. The appellant’s association with the suitcase identified as belonging to Mrs Weinstein, the timing of the appellant’s movements on the night in question, and the unchallenged evidence that the appellant later pointed out the suitcase to police, were treated as strongly implicating him in the crimes committed at the Weinstein home. The appellant’s decision not to testify meant that this evidence stood without contradiction.

The court also relied on the appellant’s reported admissions to Nene the following day. The contents of the reported admission corresponded with the objective features of the attack on the complainant and the fact of a death occurring at the scene. The judgment treated this correspondence as making fabrication unlikely, and it recorded that there was no suggestion that the admission was not freely and voluntarily made. While it was put to Nene that the appellant would deny making the statement, the appellant did not give evidence to that effect, and the admission remained part of the State’s case.

On the murder conviction, the court addressed the submission that mens rea had not been proved. It reasoned that the person who broke the deceased’s neck must have acted with direct intention to kill, supported by Dr Klepp’s evidence that considerable force was required to cause the fatal injury. However, the court accepted that there was no evidence establishing that the appellant was the person who killed the deceased or that he assisted in the killing.

The court nonetheless held that the appellant was a party to a common purpose to commit robbery. It reasoned that in entering a house where lights were burning, the appellant would have realised that occupants were probably present and that resistance to robbery might occur and would need to be overcome. In that context, the court concluded that the appellant foresaw the possibility of death ensuing but proceeded regardless, exhibiting recklessness as to that consequence. On that basis, the court held that the appellant possessed the necessary mens rea for murder in the form of dolus eventualis.

The court also referred to the violent manner in which the complainant was treated as reinforcing the inference that the perpetrators showed little respect for life. The appellant’s report to Nene that someone died at the place where they “did wrong” was treated as an implied acknowledgment of responsibility for the death. These considerations supported the conclusion that the murder conviction was proper.

On sentence, the court held that the death sentences could not stand. It noted that the sentences were imposed after the commencement of the Constitution of the Republic of South Africa Act 200 of 1993, and in any event, the Constitutional Court had since held in S v Makwanyane and Another 1995(3) SA 391 that legislation authorising capital punishment was inconsistent with the Constitution and invalid, and that from 6 June 1995 the State was forbidden to execute persons already sentenced to death. The consequence was that the death sentences had to be set aside and replaced with lawful punishment.

The court considered that the matter should be remitted to the trial court for the imposition of proper sentences on each count. It recorded that counsel for both parties requested remittal for resentencing. It also expressed the view that, although the robbery involved a very serious assault, the death sentence was not the proper sentence on count 1, but the operative conclusion was that both death sentences had to be set aside due to the constitutional position and lawful sentences imposed in substitution.

Outcome and Relief

The appeal against conviction on counts 1 and 2 was dismissed, and the convictions were confirmed.

The appeal against the death sentences imposed on both counts was upheld. Both death sentences were set aside.

The matter was remitted to the trial court for the reimposition of sentence on counts 1 and 2. The judgment, as provided, did not set out a separate costs order.

Cases Cited

S v Makwanyane and Another 1995(3) SA 391 (CC)

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 316A(1))

Constitution of the Republic of South Africa Act 200 of 1993

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the evidence, including the appellant’s connection to the stolen suitcase identified as belonging to the complainant and the appellant’s extra-judicial admission as testified to by Nene, proved beyond reasonable doubt that the appellant participated in the robbery at the Weinstein residence.

It further held that, although there was no evidence that the appellant personally killed the deceased, the appellant was party to a common purpose to commit robbery in circumstances where he foresaw the possibility that death might result from overcoming resistance and nevertheless proceeded. On that basis, the appellant had the required mens rea for murder in the form of dolus eventualis, and the murder conviction was upheld.

The court held that the death sentences could not stand because capital punishment had been declared unconstitutional. Both death sentences were set aside and the matter remitted to the trial court for lawful resentencing on both counts.

LEGAL PRINCIPLES

The judgment applied the principle that participation in a criminal enterprise under common purpose may found liability for a consequence offence, including murder, where the requisite mental element is established on the evidence.

It applied the principle of dolus eventualis by treating foresight of the possibility of death, coupled with persistence in the conduct despite that foresight, as sufficient mens rea for murder, even where the accused is not proved to have been the actual killer.

It applied the constitutional principle, as determined by the Constitutional Court in S v Makwanyane and Another 1995(3) SA 391 (CC), that legislation authorising the death penalty is unconstitutional and invalid, requiring death sentences imposed under such legislation to be set aside and replaced with lawful punishment, with remittal to the trial court being an appropriate procedural course for resentencing.