Summary of Judgment

1. Introduction

The matter concerned a sentence appeal in the Appellate Division (now the Supreme Court of Appeal) arising from a conviction for murder and attempted robbery with aggravating circumstances, where the appellant had been sentenced to death on the murder count.

The parties were Joseph Manetja as the appellant and the State as the respondent.

The procedural history was material to the court’s jurisdiction and approach. The appellant and two co-accused (referred to as “Silas” and “Thomas”) were tried in the Transvaal Provincial Division before Heyns J and assessors. All three were convicted of murder and attempted robbery with aggravating circumstances. In relation to sentence, the trial court found that extenuating circumstances were present only in respect of the co-accused, not the appellant, and the appellant (then 46 years old) was sentenced to death on the murder count. The appellant’s applications for leave to appeal against both the conviction on the murder charge and the death sentence were refused by the trial judge and later by the Appellate Division. After the commencement of Act 107 of 1990, the present appeal served before the Appellate Division in terms of section 19(12) of that Act.

The general subject matter of the dispute was whether, on the facts found (and properly findable), the death sentence was the only appropriate sentence, particularly given the trial court’s finding that the appellant acted with direct intent (dolus directus / oogmerkopset) to kill, as opposed to dolus eventualis.

2. Material Facts

On 13 January 1988, the deceased, J C C Cloete, was attacked in a kraal on his smallholding in the Pretoria district. He was struck twice on the head with a hammer, after which his hands and feet were tied with rope and wire. He died shortly after the blows were inflicted.

At the time of the incident, the deceased’s wife was outside and relatively near the kraal. After the deceased had been rendered powerless, two men seized her, forced her into the house, and assaulted her in various ways. A third man entered and spoke to one of the assailants. While all three were still in the house, she succeeded in escaping.

The trial court found that all three accused were present during the attack in the kraal and that it was the appellant who inflicted the hammer blows. It further found that the co-accused acted with dolus eventualis, but that the appellant caused the deceased’s death with oogmerkopset (direct intent to kill). The trial court’s conclusion on the appellant’s intent relied not only on the hammer blows but also on the appellant’s subsequent conduct in ordering that the deceased be tied up, leaving him in the kraal “without any help”, and continuing with the robbery.

Certain facts bearing on sentence were also relied upon. The attack and robbery were found to have been planned in advance. The plan contemplated that the deceased (described as reasonably elderly) would be violently neutralised by three perpetrators at a relatively isolated smallholding after being lured away from his home by a deceptive stratagem, with the motive being purely financial gain.

The appellant had prior convictions relevant to sentence. He had been convicted in 1966 of culpable homicide, in 1977 of assault with intent to rape, and more recently in 1983 of armed robbery. He had been released on parole on 25 November 1987, less than two months before the present murder. At the same time, the court noted that the first two offences were committed many years earlier, and that no physical violence had been used in the armed robbery.

A central disputed aspect for present purposes was the degree of intent: whether it was proved beyond reasonable doubt that the appellant desired the deceased’s death (dolus directus) at any stage, or whether the evidence supported only that he foresaw the possibility of death and was reckless as to that outcome (dolus eventualis).

3. Legal Issues

The central legal questions were whether, in the statutory appeal brought under section 19(12) of Act 107 of 1990, the Appellate Division could consider the correctness of the trial court’s factual finding that the appellant acted with dolus directus, and, if that finding could be revisited for sentencing purposes, whether the evidence proved beyond reasonable doubt that the appellant acted with direct intent to kill rather than dolus eventualis.

A further legal question, dependent on the above, was whether the death sentence was, on a correct view of the appellant’s intent and the totality of aggravating and mitigating factors, the only appropriate sentence, or whether a lesser sentence was justified.

The dispute thus concerned primarily the application of legal standards of intention (dolus directus versus dolus eventualis) to the facts, and then the value judgment inherent in sentencing, namely whether the threshold for imposing the death penalty (as framed in the court’s sentencing approach) was met.

4. Court’s Reasoning

The court first dealt with the respondent’s reliance on S v Mamkeli 1992 (2) SASV 5 (A). It explained that Mamkeli decided that where an appeal serves before the court under section 19(2) of the 1990 Act, the court is not empowered to consider the correctness of a conviction with a view to setting it aside. In the present matter, however, the conviction itself was not in issue: the appellant accepted that the murder conviction was correct. The challenge was directed at a factual finding (the form of intent) that was not necessary for conviction but was significant for sentencing. The court reasoned that, if it accepted the appellant’s contention, the conviction would remain, but the appropriateness of the death sentence would be assessed on the footing of the finding the trial court ought to have made. The court regarded that as the only meaningful way to assess whether the death sentence was the only proper punishment.

Turning to intent, the court noted that the trial court had not found that the hammer blows were themselves delivered with direct intent to kill. The appellate court identified indications suggesting that, at the time of striking, the appellant did not necessarily intend to kill. First, evidence was given by Silas that, while walking to the smallholding, the appellant said words to the effect that they were not going to “spill blood” but only to take money. The court considered that evidence to be reasonably possibly true. Second, the appellant’s instruction that the deceased should be tied up led, in the court’s view, to only one reasonable inference: that the appellant thought the deceased was not dead, but merely unconscious, and might regain consciousness. The court added that, if the appellant had wanted to murder the deceased, he would likely have continued to assault him immediately with the hammer or stabbed him with the knife he had.

The court then evaluated the trial court’s reasoning that direct intent was shown because, after the initial assault, the appellant caused the deceased to be tied up and left without help while proceeding with the robbery. While the appellate court accepted that an inference that the appellant thought the helpless deceased would die was not unreasonable, it held that it was at least equally possible that the appellant thought the deceased might survive and later be freed. On that basis, the court concluded that it could not find, beyond reasonable doubt, that the appellant acted with dolus directus at any stage. It held that the finding the trial court ought to have made was that the appellant foresaw the possibility of death resulting either from the hammer blows or from the combination of the assault and the rendering of the deceased helpless, and that he was indifferent to that possibility—i.e., dolus eventualis.

In assessing sentence, the court stated that, apart from the above, there were no other noteworthy mitigating factors, while the aggravating factors were formidable. It considered the appellant’s prior convictions as indicating that he was not a stranger to violence, but it also qualified the weight of those convictions by reference to their age and the absence of physical violence during the armed robbery. It emphasised further aggravation in the planning of the robbery, the contemplated violent disabling of the deceased by three perpetrators, the isolated setting and deceptive luring of the deceased, and the purely financial motive.

However, the court held that the decisive emphasis had to fall on the assumption that the appellant did not desire the deceased’s death. It further stated that it could not find beyond reasonable doubt that the appellant had envisaged death as a strong possibility. In this context it referred to the medical evidence that there was no skull fracture and that it was likely, or in any event reasonably possible, that the deceased received glancing blows. Weighing these considerations, the court concluded, albeit with some hesitation, that the death sentence was not the only appropriate sentence. It reasoned that society nonetheless required protection from the appellant’s criminal, and particularly violent, tendencies, and that this could best be achieved by substituting a sentence of life imprisonment.

5. Outcome and Relief

The appeal succeeded.

The court set aside the death sentence imposed on the appellant for the murder conviction and substituted it with a sentence of life imprisonment.

No separate costs order was mentioned in the judgment.

Cases Cited

S v Mamkeli 1992 (2) SASV 5 (A)

Legislation Cited

Act 107 of 1990, section 19(12)

Act 107 of 1990, section 19(2)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that, although the appellant’s murder conviction stood and was not challenged, it was competent and necessary for purposes of sentence to reconsider the trial court’s factual finding that the appellant acted with dolus directus where that finding was not essential to the conviction but was relevant to whether the death sentence was the only appropriate punishment.

On the evidence, the court held that it was not proved beyond reasonable doubt that the appellant acted with direct intent to kill at any stage. The correct finding, for sentencing purposes, was that the appellant acted with dolus eventualis, having foreseen the possibility of death and having been indifferent to that outcome.

In light of that finding, and despite strong aggravating circumstances, the court held that the death penalty was not the only appropriate sentence, and it substituted life imprisonment to protect society from the appellant’s demonstrated violent propensities.

LEGAL PRINCIPLES

The judgment applied the principle that, in a statutory appeal framework concerned with sentence, an appellate court may consider and, where justified, depart from a trial court’s factual findings relevant to sentence, even where the conviction itself is not in issue, particularly where the challenged finding was not necessary to establish guilt but materially affects the appropriateness of the ultimate sentence.

The court applied established distinctions between dolus directus (oogmerkopset) and dolus eventualis, treating direct intent as requiring proof beyond reasonable doubt that the accused desired the prohibited consequence, whereas dolus eventualis is established where the accused foresaw the possibility of that consequence and proceeded recklessly/indifferently.

In relation to capital sentencing, the court applied the approach that the death sentence may be imposed only if it is shown to be the only appropriate sentence after weighing mitigating and aggravating factors, and that uncertainty (or reasonable doubt) about the presence of direct intent to kill may materially affect whether that threshold is met.