S v Malinga (290/91) [1991] ZASCA 192 (29 November 1991)

S v Malinga (290/91) [1991] ZASCA 192 (29 November 1991)

The Supreme Court of Appeal held that the trial court erred in relying on the appellant's confession to a peace officer and his evidence in the trial-within-a-trial to establish direct intent in the Brinck murder. The only admissible evidence established that the appellant was part of a group and did not personally inflict the fatal wounds, and his intent was at most dolus eventualis. In the Grey murder, the court found that the appellant did not enter the house with the intent to kill, and the killing occurred in a desperate attempt to escape after being chased. The court concluded that, considering all circumstances and the requirements of the new sentencing legislation, neither murder...

Citation
[1991] ZASCA 192
Parties
Appellant: Vusi Malinga; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 1991
Case Number
290/91
Procedural Posture
Criminal Appeal / Appeal Against Sentence Following Conviction for Murder and Related Offences
Outcome
Appeal upheld; death sentences set aside and replaced with terms of imprisonment.
Judges
Eksteen, Joubert, Van Heerden, Vivier, F.H. Grosskopf
Legal Topics
Admissibility of Confessions, Dolus Eventualis, Sentencing Principles, Mitigating and Aggravating Factors, Death Penalty, Joint Criminal Enterprise
Criminal Law Admissibility of Confessions Dolus Eventualis Sentencing Principles Mitigating and Aggravating Factors Death Penalty Joint Criminal Enterprise

Case Brief

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Parties

Vusi Malinga

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence Following Conviction for Murder and Related Offences

Legal Issues

  1. 1 Whether the death sentences imposed for two counts of murder were appropriate in light of the new sentencing legislation.
  2. 2 Whether the appellant's confessions and pointing out evidence were admissible.
  3. 3 Whether the appellant acted with direct intent or dolus eventualis in the commission of the murders.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in relying on the appellant's confession to a peace officer and his evidence in the trial-within-a-trial to establish direct intent in the Brinck murder. The only admissible evidence established that the appellant was part of a group and did not personally inflict the fatal wounds, and his intent was at most dolus eventualis. In the Grey murder, the court found that the appellant did not enter the house with the intent to kill, and the killing occurred in a desperate attempt to escape after being chased. The court concluded that, considering all circumstances and the requirements of the new sentencing legislation, neither murder...

Court Disposition

Appeal upheld; death sentences set aside and replaced with terms of imprisonment.

Orders

  • The death sentences on counts 2 and 4 are set aside.
  • Count 2 (murder of Hendrik Grey): substituted with 15 years' imprisonment.