S v Mabizela and Another (500/90) [1991] ZASCA 55 (21 May 1991)

S v Mabizela and Another (500/90) [1991] ZASCA 55 (21 May 1991)

The court held that, following legislative amendments, the death sentence for murder is no longer mandatory and must only be imposed if it is the only proper sentence. In the case of first appellant, the court found that although he participated fully in the planned armed robbery, there was insufficient evidence that he knew the firearms were loaded or that he subjectively foresaw a high risk of death. His previous convictions and role in the crime were aggravating, but the mitigating factors outweighed the need for the death penalty, making a lengthy term of imprisonment appropriate. For second appellant, although he was a first offender and in regular employment, he fired at the victim...

Citation
[1991] ZASCA 55
Parties
Appellant: Amon Nkosana Mabizela; Appellant: Mbuyiseni Ernest Mchunu; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 May 1991
Case Number
500/90
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeals upheld; death sentences set aside and replaced with imprisonment.
Judges
Hefer, Milne, Friedman
Legal Topics
Sentencing Discretion, Death Penalty, Mitigating and Aggravating Factors, Dolus Eventualis, Mandatory Sentences, Retrospective Application
Criminal Law Sentencing Discretion Death Penalty Mitigating and Aggravating Factors Dolus Eventualis Mandatory Sentences Retrospective Application

Case Brief

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Parties

Amon Nkosana Mabizela

Appellant

Mbuyiseni Ernest Mchunu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the death sentence remains the only proper sentence for each appellant after legislative amendments.
  2. 2 Whether mitigating and aggravating factors justify a lesser sentence than death.
  3. 3 How dolus eventualis affects the assessment of extenuating circumstances.

Ratio Decidendi

The court held that, following legislative amendments, the death sentence for murder is no longer mandatory and must only be imposed if it is the only proper sentence. In the case of first appellant, the court found that although he participated fully in the planned armed robbery, there was insufficient evidence that he knew the firearms were loaded or that he subjectively foresaw a high risk of death. His previous convictions and role in the crime were aggravating, but the mitigating factors outweighed the need for the death penalty, making a lengthy term of imprisonment appropriate. For second appellant, although he was a first offender and in regular employment, he fired at the victim...

Court Disposition

Appeals upheld; death sentences set aside and replaced with imprisonment.

Orders

  • The death sentence imposed on each appellant is set aside.
  • First appellant is sentenced to 25 years' imprisonment.