R v Von Zell (2)
Jurisdiction | South Africa |
Judge | Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and Hoexter JA |
Judgment Date | 03 October 1953 |
Citation | 1953 (4) SA 552 (A) |
Hearing Date | 30 September 1953 |
Court | Appellate Division |
Centlivres, C.J.:
The appellant was convicted of murder without extenuating circumstances by a jury in the Transvaal Provincial Division. The presiding Judge (MURRAY, J.) sentenced him to death. After leave granted, the appellant appealed to this Court both against the verdict and the sentence. This Court confirmed
Centlivres CJ
the conviction but set aside the sentence and sent the case back to MURRAY, J.,
'to pass sentence afresh on the basis as if the jury had found extenuating circumstances, and specified them as being: (1) the appellant's mental instability aggravated by malaria, drink and the A motor accident in which he was involved, and (2) the strains and stresses to which appellant was subjected because of his relations with his wife and her daughter, because of his wife's desertion and because of the legal proceedings which she instituted against him'.
(See R v von Zell, 1953 (3) SA 303 at p. 314 (A.D.).)
B When the case again came before MURRAY, J., it was contended on behalf of the appellant that under sec. 338 of Act 31 of 1917 the learned Judge was precluded from imposing the death sentence as it had to be assumed as a result of the order made by this Court that the jury C had found the extenuating circumstances set forth in that order and this, so it was argued, would preclude the imposition of the death sentence. MURRAY, J., rejected this contention and held that a discretion rested with himself whether or not to pass the death sentence. In the exercise of that discretion he decided to re-impose the D death sentence. The learned Judge having granted leave to appeal, the appellant now appeals to this Court.
Mr. Findlay, on behalf of the appellant, contended that once estenuating circumstances have been found the Court has no power to impose the death sentence. I shall assume in favour of the appellant that it is competent E for him to raise this contention in spite of the fact that it is clear from the judgment of this Court that the case was sent back to MURRAY, J., to exercise his discretion in regard to an appropriate punishment to be passed on the appellant. It is clear from the terms of the judgment given by this Court that it took the view that MURRAY, J., would be F entitled to exercise his discretion whether to pass the death sentence or some other sentence. Sec. 338 (1) of Act 31 of 1917 as amended by sec. 61 of Act 46 of 1935 is as follows:
'(1) Sentence of death by hanging shall be passed by a superior court upon an offender convicted before or by it of murder, and sentence of death by hanging may be passed by a superior court upon an G offender convicted before or by it of treason or rape: Provided that where a woman is convicted of murder of her newly born child, or where a person under sixteen years of age is convicted of murder, or where the jury, in convicting the accused of murder, has, in terms of sub-sec. (2) of sec. 206 expressed the opinion that there are extenuating circumstances (or in the case of a trial without a jury, where the court is of opinion that there are extenuating circumstances) the court may impose any sentence other than the death sentence.'
H Taking sec. 338 (1) in its existing form there is, in my opinion, no room for Mr. Findlay's contention which, in effect, asks this Court to read the word 'may' in the proviso as meaning 'must' or 'shall'. The word 'may' occurs twice in the section and it seems to me that in both cases it must be read in its ordinary meaning as giving the Court a discretion whether or not to pass the death sentence in the circumstances stated in the section. There
Centlivres CJ
is nothing in the Act which detracts from this view. On the contrary sub-sec. 2 of sec. 206 supports this view. Under that subsection it is provided that:
A '(2) When the accused is tried upon a charge of murder, the Judge shall require the jury to state, if they find the accused guilty of murder, whether, in their opinion there are any extenuating circumstances, and if they state that...
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