S v Nofomela

• Jurisdiction: South Africa
• Judge: Nienaber JA
• Judgment Date: 28 November 1991
• Citation: 1992 (1) SACR 277 (A)
• Hearing Date: 18 November 1991
• Counsel: D A Kuny SC (with him D Marais) for the applicant E C J Wait for the State
• Court: Appellate Division

S v Nofomela
1992 (1) SACR 277 (A)

1992 (1) SACR p277

Citation	1992 (1) SACR 277 (A)
Court	Appellate Division
Judge	Nienaber JA
Heard	November 18, 1991
Judgment	November 28, 1991
Counsel	D A Kuny SC (with him D Marais) for the applicant; E C J Wait for the State

Flynote : Sleutelwoorde B

Murder — Sentence — Death sentence — Criminal Procedure Act 51 of 1977 as amended by s 4 of Criminal Law Amendment Act 107 of 1990 — Application in terms of s 19(12)(b)(iii) of Criminal Law Amendment Act for order setting aside death sentence and remitting matter to trial Court for C hearing of further evidence on sentence — Requirements for successful application set out.

Headnote : Kopnota

The requirements posited in s 316(3) of the Criminal Procedure Act 51 of 1977 ('the principal Act') provide reliable guidelines as to the approach to be adopted by the Appeal Court when seized with an application for an order in terms of s 19(12)(b)(iii) of the Criminal Law Amendment Act 107 D of 1990 ('the new Act') setting aside the death sentence and remitting the matter to the trial Court for the hearing of further evidence. The Legislature did not, however, contemplate an unrestricted reopening of the trial allowing the appellant carte blanche to adduce new evidence at will. At least three limiting factors come into play: first, the matter of policy that there must be an end to litigation; second, and because s 19 E is concerned only with cases where the death sentence has been imposed, the fact that the trial Court is confined to matters relevant to its finding on the presence or absence of mitigating and aggravating factors and the exercise of its discretion that the sentence of death is the proper sentence; third, and keeping in mind that the purpose of s 19 is to give the appellant ex post facto benefit of the test introduced by s 4 of the new Act, the fact that the proposed evidence must have a bearing on F how the appellant would have conducted his case on sentence if the new test had been in place at the time sentence was passed by the trial Court. The sluices are thus not opened to the appellant to let in a stream of evidence which does not flow from the contrast between the manner in which he conducted and would have conducted his case before the trial Court. The section, in particular, is not designed to permit an accused who has been G convicted in the face of a false version to reopen the trial so as to launch a new and contradictory defence which was available to him at the time, and which he now claims to be the truth, but which he deliberately withheld from the trial Court. The Appeal Court must therefore, as a first step, be satisfied that the proposed evidence is of such a nature that it is reasonable to suppose that the appellant would have presented such H evidence if the new test had been in operation at the time sentence was passed. This would encompass material of which the appellant was aware and which was available to him when sentence was passed but which he may have withheld because the onus was against him or because it was irrelevant, as well as evidence of which he was unaware but which he may well have led I had he been aware of it and had the new test been in operation. On the other hand, however, any material which is of such a nature that it would not have been presented to the trial Court even if the test had been what it now is, as well as evidence which was not in existence at the time of sentence, would be excluded. There is one qualification: one is here dealing with relevance, and relevance can never be based on hard and fast rules, so that some allowance should always be made for unforeseen and J extraordinary cases. In summary, and superim-

1992 (1) SACR p278

A posing the above observations on the requirements of s 316(3) of the principal Act, an appellant, in order to succeed with an application in terms of s 19(12)(b)(iii) of the new Act, would have to satisfy the Court (a) that the proposed evidence is relevant to the issues of mitigating or aggravating factors and the exercise by the trial Court of its discretion in the light of the test introduced by the new Act; (b) B that, save for exceptional circumstances, there is a reasonable possibility that the appellant would have presented such evidence to the trial Court if the test had then been what it is now; (c) that the proposed evidence would presumably be accepted as true by the trial Court; (d) that, if accepted, such evidence could reasonably lead to a different sentence; (e) that, save for exceptional circumstances, there C is a reasonably acceptable explanation why such evidence was not led at the trial (situations falling under (b) above comply with this requirement).

In the instant case the appellant wished to place the following evidence before the trial Court: (1) That he had been provoked, assaulted and threatened by the deceased, that he had lost his temper, and that the D killing had not been premeditated. The Court held that, although this might well have qualified as mitigation, there was, bearing in mind, inter alia, that the appellant persisted in proclaiming his innocence, no reasonable possibility that he would have led this evidence at his trial if the new Act had by then been passed. He had also told so many lies that little, if any, credence could be attached to his latest E version of what happened on the day of the murder. Thus, neither requirement (b) nor requirement (c) was satisfied. (2) That he had become 'desensitised to violence' as a result of the brutalising experiences to which he had been exposed for a number of years as a member of a 'hit squad' of the South African Police. The Court held that this explanation, even if it was assumed to be true, fell short of requirements (b), (d) and (e). (3) The opinion of a clinical F psychologist that he was capable of rehabilitation, having regard to his behaviour since sentence was passed on him. The Court held that evidence as to the appellant's personality and intelligence had been available at the trial, and could have been led, and thus could not be led now, unless a case was made out that it would have been led if the test had been different then (requirement (b) not satisfied). Furthermore, the G Court held that it was unlikely that the clinical psychologist's opinion, standing alone, would result in a new sentence (requirement (d) not satisfied). The application for an order setting aside the death sentence and remitting the matter to the trial Court for hearing of further evidence was accordingly dismissed.

Case Information

Application in terms of s 19(12)(b)(iii) of the Criminal Law Amendment H Act 107 of 1990 for an order setting aside a death sentence imposed in the Transvaal Provincial Division (Human AJ) and remitting the matter to the trial Court for the hearing of further evidence on sentence. The facts appear from the judgment of Nienaber JA.

D A Kuny SC (with him D Marais) for the applicant.

E C J Wait for the State referred to the following authorities: S v I Bapela and Another 1985 (1) SA 236 (A); S v Bezuidenhout 1991 (1) SACR 43 (A); R v Carr 1949 (2) SA 693 (A); S v Ceasar 1977 (2) SA 348 (A); S v Eiman 1989 (2) SA 863 (A); S v Malgas en Andere 1991 (1) SACR 284 (A); S v Matthee 1971 (3) SA 769 (A); S v Mbonambi and Another 1991 (1) SACR 123 (A); S v Mlumbi en 'n Ander 1991 (1) SACR 235 (A); S v Mokoena 1990 (1) SACR 296 (A); S v Njaba 1966 (3) SA 140 (A); S v Nkwanyana and Others 1990 (4) SA 735 (A); S v Sampson 1987 (2) SA 620 (A); S v J Senonohi 1990 (4) SA 727

1992 (1) SACR p279

A (A); S v Sithole en Andere 1983 (3) SA 610 (A); R v Siwesa 1957 (2) SA 223 (A); S v Sterrenberg 1980 (2) SA 888 (A); S v Vontsteen 1972 (4) SA 551 (A).

Cur adv vult.

Postea (28 November 1991).

Judgment

Nienaber JA:

The appellant and one Johnny Abraham Mohane were convicted and sentenced to death in 1987 for a murder which they were found to have committed in 1986, when Johannes Hendrik Lourens was stabbed to death on his farm near Brits. Their appeal to this Court, with leave granted by it against conviction only, failed. Both of them thereupon petitioned the State President for clemency in terms of s 326 of the C Criminal Procedure Act 51 of 1977. Mohane's petition succeeded and his sentence of death was commuted. The appellant's petition did not. He had accordingly exhausted all the recognised legal procedures pertaining to appeal or review open to him. B

Thereafter, on 27 July 1990, the Criminal Law Amendment Act 107 of 1990 ('the Act') became law. Section 4 thereof introduced an entirely new approach to the imposition of the death sentence. Whereas before, D the onus was on an accused convicted of murder to prove the existence of extenuating circumstances, the onus is now on the State in asking for the imposition of the death sentence to negative mitigating and to establish aggravating factors. The Act also provided for the appointment of a panel (consisting of Judges, ex-Judges and other persons)

'who in the opinion of the Minister are fit to serve on the panel on E account of their knowledge of and experience in the administration of justice'

(s 19(1)(a)(ii)) whose function it is to

'consider the case of every person under sentence of death -

(a)

who was sentenced to death before the date of commencement of s 4; and

(b)

F who has in respect of that sentence exhausted all the recognised legal procedures pertaining to appeal or review or no longer has such procedures at his disposal, whether or not such a person has lodged a petition referred to in s 327 of the principal Act . . .'.

(Section 19(8)(a) and (b).) The appellant's case was such a one. It came before the panel on 27 March 1991. The panel made a finding in terms of G s 19(10)(a) of the Act that, in its opinion...