Comments: The concept of premeditation in South African criminal law: Quo vadis?

• Jurisdiction: South Africa
• Pages: 347-362
• Date: 24 May 2019
• Author: GP Stevens
• Citation: (2015) 28 SACJ 347
• Published date: 24 May 2019

The concept of premeditation in

South African criminal law:

Quo vadis?

GP STEVENS

University of Pretoria

‘Except only the defendant’s intention to produce a given result, no other

consideration has affected our feeling that it is or is not just to hold him

responsible for the result as its foreseeability.’ (Edgerton, 1929 as quoted

by CK Morewedge, K Gray and DM Wegner ‘Perish the forethought:

Premeditation engenders misperceptions of personal control’ in Self Control

in Society, Mind, and Brain (2010) 3.)

1 Introduction

‘One squeeze of the trigger is all it takes’; ‘it can happen in an instant’;

‘something can be premeditated as soon as it happens’; the latter

phrases are commonly encountered when assessing for the presence

of premeditation in respect of the cri me of murder (see SS Smith ‘It can

happen in an instant: Rethi nking pattern in structions for Kansas on

premeditated murder’ (2006) 16 Kansas Law & Pub Pol’y 1).

Unlike many other jurisdic tions where evidence of premeditation

serves to distinguish  rst-degree murder from second-degree murder,

evidence of ‘premeditation’ within the South Af rican crimin al law is

relevant only within the context of bail applications a nd sentencing

(see for example the position in other jurisdictions in LM Romero

‘A critique of the wilful, deliberate and premeditated formula for

distinguishi ng between rst and second degree murder in New Mexico’

(1988) 18 New Mexico LR 73-94; SM Gri fn ‘Crimi nal law – whether

the elements of deliberation and premeditation adequately disti nguish

rst degree from second degree murder: State v Garci a’ (1994) 24 New

Mexico LR 437-447; MJZ Mannheimer ‘Not the crime but the cover up: a

deterrence-based rationale for the premeditation- deliberation formula’

(2011) 86 Indiana LJ 880-936; M A Pauley ‘Murder by premeditation’

(1999) 36 Am Crim LR 145-166; M Kremnitzer ‘On premeditation’ (1998)

1 Buffalo Crim LR 627).

Within the South A frican crimi nal law context, the Crimi nal Law

Amendment Act 105 of 1997 (hereinafter referred to as the ‘Act’)

provides for discretionary min imum sentences in respect of certa in

serious offences. Section 51(1) of the Act provides as follows:

347

(2015) 28 SACJ 347

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‘(1) Notwithstanding any other law, but subject to subsections (3) and (6), a

regional court or a High Court shall sentence a person it has convicted of an

offence referred to in Part I of Schedule 2 to imprisonment for life.’

Part I of Schedule 2 to the Act provides inter alia for the of fence

of murder when ‘… (a) it was planned or premeditated’ (see also SS

Terblanche A Guide to Sentencing in South Africa 2ed (2007) 49-50;

CR Snyman Criminal L aw 6ed (2014) 440-441; J Burchell Principles of

Criminal Law 4ed (2013) 566; Du Toit et al Commentary on the Criminal

Procedure Act (2013) in RS 50 28-18-18A). Accordingly, an accused

convicted of premeditated murder will receive life imprison ment

unless substantial and compelli ng circumstances exist to depa rt from

the prescribed min imum sentence (see s 51(3)(a) of the Act; S v Malgas

2001 (1) SACR 469 (SCA) at para [25]; S v Dodo 2001 (1) SACR 594

(CC)). Despite the fact that the most severe punishment is prescribed

for murder which was planned or premeditated, the Act contains no

denition of these two concepts. The concept of premedit ation also

presents itself at the outset of the pre-t rial stage when an accused

charged with premeditated murder wishes to apply for bail. Section

60(11) of the Crimina l Procedure Act 51 of 1977 (hereinafter referred

to as the ‘CPA’) provides as follows:

‘Notwithstanding any provision of this Act, where an accused is charged

with an offence referred to – (a) in Schedule 6, the court shall order that the

accused be detained in custody until he or she is dealt with in accordance

with the law, unless the accused, having been given a reasonable opportunity

to do so, adduces evidence which satises the court that exceptional

circumstances exist which in the interests of justice permit his or her release;

(b) …’ (see Du Toit et al Commentary on the Criminal Procedure Act (2013)

(RS 59, 9-42-48).

Schedule 6 of the CPA provides for inter alia murder when it was

‘planned’ or ‘premeditated’ (see also S v Dlamini; S Dladla; S v Joubert;

S v Schietekat 1999 (2) SACR 51 (CC) where s 60(11)(a) was held to be

in line with the Constit ution of the Republic of South Africa, 1996).

However, due to the lack of a denition of the concept, the prosecution

as well as the defence face challenges in terms of both the substa ntive

proof of premeditation as well as disproving it.

An accused charged with murder when it was ‘planned’ or

‘premeditated’ will accordingly have to prove at the outset of the bail

application the presence of exceptional circumstances justi fying his

or her release on bail on a balance of probabilities (Du Toit et al

op cit 9-42A; S v Rudol ph 2010 (1) SACR 262 (SCA) at para [9]; S v

Ehrlich 2003 (1) SACR 43 (SCA) at para [1]). Neither the Act nor the CPA

currently provides any elucidation relating to this concept.

Despite the grave impact of a charge of ‘premeditated’ murder, this

concept remains a grey zone to which the legislature ref rains from

348 SACJ . (2015) 3

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