S v Mamkeli

• Jurisdiction: South Africa
• Citation: 1992 (2) SACR 5 (A)

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

1992 (2) SACR p5

Citation	1992 (2) SACR 5 (A)
Court	Appellate Division
Judge	Hefer JA
Heard	February 28, 1992
Judgment	March 20, 1992
Counsel	G E Turner for the appellant; C F Fischer for the State

Flynote : Sleutelwoorde D

Appeal — Against death sentence under s 19(12) of the Criminal Law E Amendment Act 107 of 1990 — Jurisdiction of Court — Enquiry limited to propriety of sentence and Court having no jurisdiction to consider correctness of conviction — Appellant convicted of murder of schoolgirl — Court on appeal questioning correctness of conviction — Matter referred to State President for possible consideration of mercy in terms of s 325 of Criminal Procedure Act 51 of 1977 — Court, on basis that F appellant properly convicted, in any event setting aside death sentence.

Headnote : Kopnota

When a case comes before the Appellate Division under s 19(12) of the Criminal Law Amendment Act 107 of 1990, the Court's enquiry is limited to the propriety of the death sentence, and it has no jurisdiction to consider the correctness of the conviction.

G The appellant had been convicted in a Provincial Division of the murder of a schoolgirl and, no extenuating circumstances having been found, sentenced to death. The case subsequently came before the Appellate Division in terms of s 19(12) of the Criminal Law Amendment Act. The Court, having held that its jurisdiction was limited to the issue of sentence, nevertheless stated that, had it been in a position to reconsider the validity of the conviction, it would, in the light of the H evidence, have set it aside. The Court accordingly ordered that its judgment be submitted to the State President to enable him to consider extending mercy to the appellant in terms of s 325 of the Criminal Procedure Act 51 of 1977. The Court, turning to the sentence on the basis that the appellant had been properly convicted, held that, in view of all the circumstances of the case, the death sentence was not the only proper I sentence and substituted a sentence of imprisonment.

Case Information

Appeal in terms of s 19(12) of the Criminal Law Amendment Act 107 of 1990 against a death sentence imposed for murder in the Eastern Cape Provincial Division (Van Rensburg J and assessors). The facts appear from J the judgment of Hefer JA.

1992 (2) SACR p6

A G E Turner for the appellant, at the request of the Court, referred to the following authorities: R v L 1960 (3) SA 503 (A) at 505F-H; S v Matshoba and Another 1977 (2) SA 671 (A) at 677G-H; S v Mncube en 'n Ander 1991 (3) SA 132 (A) at 144E-F; R v Blom 1939 AD 188 at 202-3; S v Mtsweni 1985 (1) SA 590 (A) at 593E-H, 595B-E and 595I-596A; S v Steynberg 1983 (3) SA 140 (A) at 147G-148A; S v Khomo and Others 1975 (1) B SA 344 (D) at 345C-D and 346C-E; R v Tebetha 1959 (2) SA 337 (A) at 346B; S v Nkwanyana and Others 1990 (4) SA 735 (A); S v B 1981 (4) SA 851 (A); S v Mqwati 1985 (4) SA 22 (T); S v Senonohi 1990 (4) SA 727 (A) at 734I-J; S v Quandu en Andere 1989 (1) SA 517 (A).

C F Fischer for the State referred to the following authorities: R v Zavetsanas and Another 1912 TPD 908; Mokoena v Minister of Justice and C Another 1968 (4) SA 708 (A) at 717D-H; Sefatsa and Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A) at 837H-I, 838F and 839C-I; S v Matshoba and Another 1977 (2) SA 671 (A) at 677G-H; S v Langa en Andere 1981 (3) SA 186 (A) at 189G-H; S v Masina and Others 1990 (4) SA 709 (A); S v Nkwanyana and Others 1990 (4) SA 735 (A) at 745A-G; S v Ntuli 1991 (1) SACR 137 (A) at 142a-c; S v Senonohi 1990 (4) D SA 727 (A) at 734J-735A; S v Mlumbi en 'n Ander 1991 (1) SACR 235 (A); S v Khundulu and Another 1991 (1) SACR 470 (A) at 479h; S v Dlamini 1991 (1) SACR 128 (A) at 135e, 135f-g and 136a; S v Mqwathi 1985 (4) SA 22 (T); S v J 1989 (1) SA 669 (A) at 675C-D; R v Karg 1961 (1) SA 231 (A) at 235H-236C; S v Bezuidenhout 1991 (1) SACR 43 (A) at 51d-e; S v Mposula 1991 (1) SACR 52 (A); S v V 1991 (1) SACR 68 (E); R v Hobson 1953 (4) SA E 464 (A); Du Toit et al Commentary on the Criminal Procedure Act.

Cur adv vult.

Postea (March 20).

Judgment

Hefer JA:

Before the Criminal Law Amendment Act 107 of 1990 ('the Act') F came into operation on 27 July 1990, the imposition of the death sentence was, in terms of s 277 of the Criminal Procedure Act 51 of 1977 as amended, mandatory in the case of a person convicted of murder without extenuating circumstances. The decision as to the existence or otherwise of extenuating circumstances was regarded as being one essentially for the trial Court and, in the absence of misdirection or irregularity, this G Court would not interfere with the trial Court's finding unless it was one to which no reasonable Court could have come.

The Act brought about a fundamental change. Firstly, by s 4, s 277 of the Criminal Procedure Act was amended to the effect that the death sentence is to be imposed only if the trial Judge is satisfied - with due regard to the Court's finding as to the presence or absence of mitigating H or aggravating factors - that it is the proper sentence. As a result of this provision the enquiry relating to extenuating circumstances and the concomitant obligation to impose the death sentence for murder in the event of a negative finding fell away. Secondly, in terms of s 13(b), this Court became empowered to set aside the death sentence and to impose such punishment as it considers proper if it 'is of the opinion that it would not itself have imposed the sentence of death'. In an appeal against the I death sentence, this Court is thus no longer primarily concerned with the exercise by the trial Court of its functions; it is now enjoined to form its own opinion as to the propriety of the sentence in the circumstances of the particular case.

The present appeal is before us in terms of s 19(12) of the Act. In terms of s 19(1) a panel was constituted for the purpose of considering the cases of all persons under sentence of death who had been sentenced J before 27 July 1990

1992 (2) SACR p7

Hefer JA

A and who had, in respect of the sentence, exhausted all the recognised legal procedures pertaining to appeal or review or no longer had such procedures at their disposal. In terms of ss (10) the panel is required to make a finding as to whether or not the sentence of death would probably have been imposed by the trial Court had s 4 been in operation at the time sentence was passed. In the event of a positive finding by the panel the case comes to this Court for consideration under ss (12). When the Act B came into operation the appellant was under sentence of death for a murder committed without extenuating circumstances. An application for leave to appeal against the conviction had been turned down by the trial Judge and a similar application to the Chief Justice had suffered the same fate. Thereafter his case received the attention of the panel who returned a positive finding.

C Mr Turner, to whom we are indebted for the commendably thorough manner in which he prepared and presented the case on behalf of the appellant in this Court, directed his main argument not at the sentence but at the conviction, which he submitted was against the weight of the evidence. Mr Fischer, representing the State, argued however that, in an appeal under s 19(12), the enquiry is limited to the propriety of the sentence; in such D an appeal, he submitted, the Court has no jurisdiction to consider the correctness of the conviction. In view of this submission the question of the Court's jurisdiction falls to be decided first.

Although the answer to this question will eventually have to be sought in the provisions of s 19 itself, the enquiry may conveniently be commenced by examining some of the other provisions of the Act in the E light of the position pertaining before its commencement.

Before the Act came into operation a person convicted of an offence in a superior Court had no right of appeal and could, in terms of s 315(4) of the Criminal Procedure Act, only appeal to this Court with leave granted in terms of s 316 or on a special entry in terms of ss 317 and 318 or on a F question of law reserved under s 319. An appeal under s 316 could, depending on the extent of the leave granted, be against the conviction or against the sentence (or both) or any order following thereon. Where leave had been granted to appeal against sentence only, the Court was not competent to consider the merits of the conviction (S v Matshoba and Another 1977 (2) SA 671 (A) at 677G-H; S v Cassidy 1978 (1) SA 687 (A); S G v Langa en Andere 1981 (3) SA 186 (A) at 189H). Where it emerged in such a case that there were reasonable prospects of a successful appeal against the conviction, the only available remedy was to postpone the appeal against sentence with a view to...