South Africa: Supreme Court of Appeal

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between

MJEZENI ZIYAGOLIMA NKOSI APPELLANT

and

THE STATE RESPONDENT

CORAM : HEFER, F H GROSSKOPF JJA et KRIEGLER AJA. HEARD : 3 SEPTEMBER 1991. DELIVERED: 6 SEPTEMBER 1991.

JUDGMENT HEFER JA :
This is an appeal in terms of sec 316 A(l) of the Criminal Procedure Act 51 of 1977,as amended by Act 107 of 1990,against the appellant's conviction on a charge
2. of murder and the sentence of death which the trial court imposed.
There is plainly no merit in the appeal against the conviction. Two days after the murder the appellant made a statement to a magistrate in which he confessed that he had killed the deceased; and three days later when he appeared before another magistrate in terms of sec 119 of the Criminal Procedure Act he pleaded guilty to the charge and explicitly admitted in terms of sec 220 that he had deliberately shot the deceased to death. His evidence at the trial to the effect that he had not been involved in the killing and that the confession and admis-sions had been forcefully induced by the police was right-ly rejected. This being the case his conviction was in-evitable and I turn to the sentence.
At the time of the murder the appellant was a 41 year old uneducated railway employeee earning a salary of about R300 per month. He had one previous conviction

3. for drinking a prohibited brew. How such an obviously
law-abiding person with no violent propensities came to be involved in a murder appears from his confession and the record of the sec 119 proceedings. The appellant grew up with the brothers Johan and Amos Nxumalo. There was bad blood between Johan and Amos which culminated in an attempt on the former's life. His assailants did not kill him but they did succeed in depriving him of an eye. After an unsuccessful attempt to have them convic-ted, and further provocation on Amos' part, Johan deci-ded to have his brother killed. With a promise of a beast and a calf he persuaded the appellant to perform the deed with a firearm which Johan had borrowed for the purpose. Thus armed - and apparently quite by chance -the appellant met Amos on a road in the rural area where all the parties resided. He shot and killed Amos and returned the firearm to Johan.

In his judgment on sentence the trial judge said:

4.

" Balancing then the mitigating feature in the case against the aggravating factors, the ques-tion that remains is whether I am satisfied that the sentence of death is the only appropriate sentence for this case. I think there can be little doubt that a long period of imprisonment would very likely meet the requirements of any reformation or rehabilitative impact of the sen-tence on the accused. He would probably not repeat this sort of offence again, even on a fairly short period of imprisonment. But that is by no means the only consideration and there are at least two other important factors which I think I may take into account.

In the first place I think it must be said that even in an unsophisticated, and even primi-tive community, the idea that the life of another person can be extinguished for no more com-pelling reason than an opportunity for the kil-ler to enrich himself, is sufficiently repellant to require that the offence can only be expiated . with the killer's own life. Secondly I think that this sort of killing that is purely and simply for economic reward, is a situation where the element of deterrence, as one of the four aspects of punishment, justifies a degree of pro-minence in the reaching of a conclusion. If it should ever be thought by people who kill merely for reward, whether in the relatively simple cir-cumstances of the instant case or in circumstan-ces of greater public disorder, such as political differences that spill over into killing and vio-lence, or industrial action which results in grie-vances being visited with the death of opposing

5.

persons, any belief that a hired killer may not be called on to answer for his offence with his own life would be perceived as an encouragement to resort to and carry out such killings.

I conclude therefore that for this sort of offence, unredeemed by any mitigating factor save a lack of previous convictions, the only appropriate sentence is the extreme one. "

Appellant's counsel in this court argued that the

trial judge had over-emphasised the element of deterrence.

I do not agree. In S v Mlumbi en 'n Ander 1991(1) SACR

235 (A) at 251 g-h STEYN JA said:

" n Kontrak-sluipmoord is 'n verfoeilike vergryp wat mense van vroegtyd af al met afgryse vervul. Dit is ook 'n soort misdaad wat dodelike gevaar inhou vir enige menslike gemeenskap. Dit is trouens die soort gruweldaad wat 'n besonder som-bere betekenis gee aan die eeue-oue uitdrukking 'homo homini lupus'. Die hedendaagse Suid-Afri-kaanse gemeenskap word ernstig deur sulke gedrag bedreig, en durf dit nie duld nie."

Having referred to this passage in his unreported judg-
ment in the State v Sipho Alton Gonondo Dlomo and two
others (case No 69/90, judgment delivered on 2 September

1991) GOLDSTONE JA remarked:

6.

"In any event in a case such as the present it is the deterrent and retributive objects which come to the fore. Hired killers must be made aware that, save possibly in exceptional circum-stances, the courts will impose the ultimate sen-tence upon them."

I am nevertheless of the view that the death sentence should not have been imposed in the present case. Appellant is plainly not a professional assassin. Nor did he commit the murder for mercenary reasons only; he was aware of what had happened between the two brothers and it is more than likely that he was drawn into the feud, not merely by the promise of a reward, but by the desire to correct a wrong which he conceived to have been perpe-trated upon a friend. Taking this into account and having regard to the personal mitigating factors mentioned above as well as the trial judge's observation that "a long period of imprisonment would very likely meet the requirements of any reformative or rehabilitative impact of the sentence", society would not, I consider, demand his life. However,

7.

he must obviously be punished severely.
The result is that the appeal against his convic-tion is dismissed but that the appeal against the sentence is upheld. The death sentence is set aside and the appel-lant is sentenced to imprisonment for 20 years.

J J F HEFER JA.

F H GROSSKOPF JA ) CONCUR
KRIEGLER AJA )