S v Lushozi and Another

• Jurisdiction: South Africa
• Citation: 1993 (1) SACR 1 (A)

S v Lushozi and Another
1993 (1) SACR 1 (A)

1993 (1) SACR p1

Citation	1993 (1) SACR 1 (A)
Court	Appellate Division
Judge	Eksteen JA
Heard	November 6, 1992
Judgment	November 20, 1992
Counsel	R Seegobin for the first appellant (at the request of the Court); A E Potgieter for the second appellant (at the request of the Court); G J Leppan for the State

Flynote : Sleutelwoorde

Murder — Sentence — Death sentence — When the proper sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of Criminal Law Amendment Act 107 of 1990 — Mitigating factors — Political unrest in area where offences committed — Second appellant's kraal attacked and burnt to ground and sugar cane field and a wattle plantation also burnt — C Appellants and others mounting reprisal raid some months later in which 10 people killed — Sentence of death imposed on appellants on each of 10 counts of murder — On appeal found that heinousness of offences tempered to certain extent by political unrest in area caused by political differences between, and intolerance of, factions of political organisations — Appellants, 26 and 51 years old and first offenders, D caught up in spiral of political violence — In circumstances, death sentence not the only proper sentence — Death sentences on each count replaced with 25 years' imprisonment, ordered to run concurrently with each other and certain other sentences imposed on other convictions.

Headnote : Kopnota

E The two appellants had been convicted in a Provincial Division of 10 counts of murder, one of attempted murder and three of arson. On each of the 10 counts of murder, the appellants were sentenced to death. On the remaining counts they were each sentenced to a total of 30 years' imprisonment. The offences had all been committed during the course of a raid by some 19 men on three kraals in the area. The raid was in reprisal F for a raid on the second appellant's kraal some six or seven months earlier in which the second appellant's kraal had been burnt to the ground. A sugar cane field and a wattle plantation had also been burnt. The second appellant had suffered considerable loss as a result. The second appellant believed that the people of the kraals which they subsequently raided were responsible for the raid on his kraal. It appeared from the evidence that there was considerable political unrest in G the area, caused by the political differences between the ANC or UDF faction and members of Inkatha. These organisations were intolerant of each other and their intolerance found expression in the excesses committed by the one against the other, resulting in the inevitable reprisals. The first appellant was 26 years old and was a first offender, and the second appellant was 51 years old and also a first offender. The H Court, in an appeal against the convictions (which was dismissed on the facts) and the sentences of death, held that the appellants could not be seen as men normally given to violence, but appeared, in fact, to have been ordinary law-abiding members of society, humble in their calling and without any intellectual pretensions, caught up in the spiral of political violence which had swept the area in which they lived. The Court pointed I out further that political issues were generally charged with emotion, and that emotion drove out reason. The Court held that the State had not negatived these mitigating factors and, having weighed them against the aggravating factors (namely that the crimes were premeditated and brutal and that the killers had had the direct intention of killing), that the death sentence could not be said to be the only proper sentence in this J case. The death sentences were set aside and

1993 (1) SACR p2

A replaced with sentences of 25 years' imprisonment on each of the 10 counts of murder. These sentences were ordered to run concurrently with one another and with the sentences, totalling 30 years' imprisonment, imposed on the convictions of attempted murder and arson.

Case Information

Appeal from convictions and sentences of death imposed in the Natal B Provincial Division (Broome J). The facts appear from the judgment of Eksteen JA.

R Seegobin for the first appellant (at the request of the Court) referred to the following authorities on the question of sentence: S v Nkwanyana and Others 1990 (4) SA 735 (A) at 742F-H, 748J; S v Senonohi 1990 (4) SA 727 (A) at 733I-J; S v Masina and Others 1990 (4) SA 709 (A) C at 719B; S v Ncaphayi en Andere 1990 (1) SACR 472 (A) at 494j-495c; S v Matshili and Others 1991 (3) SA 264 (A) at 271G, 274A; S v Ramba 1990 (2) SACR 334 (A) at 342e-f, 342h; S v McBride 1988 (4) SA 10 (A) at 25E-F; S v Banda and Others 1991 (2) SA 352 (B) at 365B-D.

A E Potgieter for the second appellant (at the request of the Court) referred to the following authorities on the question of sentence: S v Ramba 1990 (2) SACR 334 (A) at 342; S v Ncaphayi en Andere 1990 (1) SACR 472 (A) D at 495; S v Mncube en 'n Ander 1991 (3) SA 132 (A) at 154; S v Senohohi 1990 (4) SA 727 (A) at 734H-I; S v Van Rooi en Andere 1976 (2) SA 580 (A) at 584G-H; R v Taylor 1949 (4) SA 702 (A) at 716; S v Melinda 1971 (1) SA 798 (A) at 806C-D; S v Smith and Others 1984 (1) SA 583 (A) at 596D-E, 617G; S v Mdau 1991 (1) SA 169 (A) at 174D-E; S v Nkwanyana and Others 1990 (4) SA 735 (A) at 745; S v Malepe 1991 (1) SACR 114 (A); S v Masina and Others 1990 (4) SA 709 (A) at 719.

E G J Leppan for the State referred to the following authorities on the question of sentence: S v Nkwanyana and Others 1990 (4) SA 735 (A) at 745D-E; S v Matthee 1971 (3) SA 769 (A) at 771A-E; S v Mposula 1991 (1) SACR 52 (A); S v Bezuidenhout 1991 (1) SACR 43 (A); S v Makie 1991 (2) SACR 139 (A) at 143g-i; S v Sesing 1991 (2) SACR 361 (A) at 365d-h; S v Mthembu 1991 (2) SACR 144 (A) at 147d-e; S v Ramba 1990 (2) SACR 334 (A); F S v Ncaphayi en Andere 1990 (1) SACR 472 (A).

Cur adv vult.

Postea (20 November 1992).

Judgment

Eksteen JA:

The two appellants were indicted together with another person on 10 counts of murder, one of attempted murder and three of arson. Both appellants were convicted on all counts. Their co-accused was acquitted on all counts. Both the...