S v Marais

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
• Judgment Date: 21 September 2010
• Citation: 2010 (2) SACR 606 (CC)
• Hearing Date: 21 September 2010
• Docket Number: CCT 54/10
• Counsel: The names of counsel and the attorneys not supplied.

The court:

Introduction

[1] The H applicant, Ms Ruby Charmaine Marais, is currently serving a sentence of life imprisonment, having been convicted of the 'contract murder' of her husband. Her case is agonising because it raises the horrific spectre of domestic violence and, in particular, the dilemma of an I abused woman who may resort to murdering her partner by engaging others to kill him. On this the Supreme Court of Appeal had much to say in the leading judgment of S v Ferreira and Others. [1] It found contract killing arranged by a battered woman, and depending on her subjective

The Court

state of mind and motive, may constitute self-defence, provided that the A killing is objectively justifiable and is thus a complete defence to a charge of premeditated murder.

[2] The applicant was convicted of premeditated murder by Dlodlo J sitting on circuit in the Western Cape High Court (High Court) with two assessors. Thereafter, the High Court refused her application for leave to B appeal against the murder conviction, but granted her leave to appeal to the full court of the High Court against sentence only. Unhappy with the refusal, Ms Marais petitioned the Supreme Court of Appeal for leave to appeal against her conviction. On 19 May 2010 it refused leave to appeal without furnishing reasons for the decision. C

[3] The applicant, through her daughter, a practising attorney, has now approached this court for leave to appeal against her conviction and sentence by the High Court. It is not inappropriate to observe that the applicant's appeal against sentence is still pending before the full bench of the High Court. To this matter we revert when we later consider D whether it is in the interests of justice to hear an appeal on sentence whilst it is still pending before the High Court. However, first, we narrate a few salient facts.

[4] Ms Marais was charged as accused 6, together with five other people, for the murder of her husband, Mr Jacobus Petrus Marais. The essence E of the charge was that she had arranged the murder by engaging the other accused to commit a so-called 'contract murder' of her husband. However, before the trial commenced, Mr Ivan Sefoor (accused 1) and Mrs Caroline May (accused 5) became State witnesses. [2] The other accused were Mr Ricardo Piedt (accused 2), Mrs Hester Ronika Afrika (accused 3) and Mrs Elizabeth Lawerdien (accused 4). Mr Piedt was F found to be the person who delivered the multiple stab wounds that killed the deceased, and he, Mrs Afrika and Mrs Lawerdien, together with the applicant, were convicted as co-perpetrators of the murder.

[5] During her trial the applicant raised the defence that she was a G battered woman who had been suffering at the hands of her deceased husband for many years. She had come to a point where she could no longer stand the abuse, assaults and what she saw as repeated rape by her husband. She explained that she had arranged with Mrs May and Mrs Afrika for the deceased to be given a 'hiding', but that, when she arranged her husband's 'hiding', she was not herself, because she had abused tranquilisers. She testified that she had H arranged for the 'hiding' to take place some 30 m from the front door of their residence, in the hope that the deceased would phone her from his mobile phone for help, that she would then help him and that thereafter he would treat her better and with more respect. I

The Court

A [6] The High Court rejected the applicant's defence as improbable and untrue. It found that she was not a battered woman and that she had committed a calculated murder because of financial greed and gain.

[7] In this court the applicant challenges the conviction and related sentence imposed upon her by the High Court. Her pivotal complaint is B that the trial court breached her right to a fair trial guaranteed under s 35 of the Constitution when it dismissed her defence of being a battered woman and consequently found her guilty of murder.

[8] The State opposes her application for leave to appeal. It contends that her defence was correctly rejected on the facts, and that she was C properly convicted of premeditated murder which was motivated by monetary considerations. The murder was well planned over a number of weeks. It was accordingly not surprising that the Supreme Court of Appeal rejected her petition for leave to appeal.

Should leave to appeal be granted?

D [9] It is by now trite that an application for leave to appeal should be granted only if two important considerations are satisfied. The first is whether the application raises a constitutional issue. The second is whether, if it does, it is in the interests of justice to hear the appeal. Where the interests of justice lie will depend on a myriad of relevant E considerations, chief of which, but not solely decisive, are prospects of success.

Constitutional issue?

[10] We have explained that the applicant contends that she has been F denied a fair trial guaranteed by s 35 of the Constitution. At best, her case is that, in rejecting her defence to the charge of murder, the trial court wrongly found that she was not a battered woman. Had it found so, she would have been entitled to an acquittal. The instant question to resolve is whether her complaint presents a constitutional issue.

G [11] In S v Boesak we observed that a litigant's dissatisfaction with the factual mistakes of the Supreme Court of Appeal, regarding the evidence which had been presented by the State against the accused at trial, does not, in itself, constitute a constitutional matter. [3] Later, in Rail Commuters Action Group and Others v...