S v Marx

• Jurisdiction: South Africa
• Judge: Pickering J, Nepgen J and Revelas J
• Judgment Date: 22 May 2009
• Docket Number: CA 398/2008
• Hearing Date: 18 May 2009
• Counsel: T Price for the appellant. N Henning for the State.
• Court: Eastern Cape Division

S v Marx
2009 (2) SACR 562 (ECG)

2009 (2) SACR p562

Citation	2009 (2) SACR 562 (ECG)
Case No	CA 398/2008
Court	Eastern Cape High Court, Grahamstown
Judge	Pickering J, Nepgen J and Revelas J
Heard	May 18, 2009
Judgment	May 22, 2009
Counsel	T Price for the appellant.; N Henning for the State.

Flynote : Sleutelwoorde

Sentence — Correctional supervision — When appropriate — Appellant shooting and killing his wife after being taunted and verbally abused by her — Given I extent of appellant's emotional disintegration and fact that he was acting at the time under circumstances of severely diminished responsibility, sentence of correctional supervision appropriate — Appellant, although deserving of punishment, not type of person who should be removed from society — Deterrence of either appellant or others not important factor, having regard to highly unusual concatenation of events and extremely J remote possibility of recurrence thereof.

2009 (2) SACR p563

Murder — Sentence — Imposition of — Factors to be taken into account — A Diminished responsibility — Given extent of appellant's emotional disintegration and fact that he was acting at the time under circumstances of severely diminished responsibility, sentence of correctional supervision appropriate — Appellant, although deserving of punishment, not type of person who should be removed from society — Deterrence of either appellant or others not important factor, having regard to highly unusual concatenation of B events and extremely remote possibility of recurrence thereof.

General principles of liability — Criminal capacity — Sane automatism — Proof of — Submitted that at critical time appellant had been acting in state of automatism attributable to cause other than mental pathology, ie in state of sane automatism excluding culpability — In casu, conceded that appellant C correctly convicted of murder of his wife.

Headnote : Kopnota

The relationship of the appellant and his wife had deteriorated markedly during the course of their 19-year marriage, and she had become verbally abusive and aggressive towards him, and humiliated him in public. On the evening D in question she had taunted and abused appellant, and this, coupled with other factors, had acted as a trigger for the appellant to shoot her. He was later convicted of the murder of his wife and sentenced to 10 years' imprisonment. On appeal against both conviction and sentence,

Held, that there was no merit in the appeal against conviction. However, at the time of the commission of the offence the appellant was acting under E circumstances of severely diminished responsibility, which were relevant to sentencing. (At 569d and 569h.)

Held, that the court, had it been sitting as a court of first instance, would have imposed a sentence strikingly different from the sentence imposed in the court a quo. In the circumstances of the case, having regard to the extent of F the appellant's emotional disintegration and the fact that he was acting at the time under circumstances of severely diminished responsibility, a sentence of correctional supervision would be appropriate. (At 570f–g.) Deterrence of either appellant or others was not an important factor, having regard to the highly unusual concatenation of events and the extremely remote possibility of a recurrence thereof. Neither was the case one which was clamant for retribution. (At 572c–d.) G

Held, accordingly, that a correctional supervision order coupled with stringent conditions would be fair and just. (At 572h.)

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132): dictum at 182f applied and dictum at 190b–e followed H

S v Aspeling 1998 (1) SACR 561 (C): referred to

S v Cunningham 1996 (1) SACR 631 (A): dictum at 636b–c followed I

S v D 1995 (1) SACR 259 (A): dictum at 266d applied

S v Henry 1999 (1) SACR 13 (SCA): dictum at 19g-20c applied

S v Ingram 1995 (1) SACR 1 (A): applied

S v Potgieter 1994 (1) SACR 61 (A): compared

S v R 1993 (1) SACR 209 (A) (1993 (1) SA 476): dictum at 221g applied

S v Shapiro 1994 (1) SACR 112 (A): dicta at 123c-f and 124b–d applied. J

2009 (2) SACR p564

Legislation cited

Statutes

The A Criminal Procedure Act 51 of 1977, ss 276(1)(h) and 276A(1)(a): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-400 - 2-401.

Case Information

Appeal against conviction and sentence from a decision of Sangoni J in B the same division. The facts appear from the judgment of Pickering J (in which Nepgen J and Revelas J concurred).

T Price for the appellant.

N Henning for the State.

Cur adv vult. C

Postea (May 22.)

Judgment

Pickering J:

D The appellant, a 41-year-old man, appeared in the High Court, Grahamstown, before Sangoni J, charged with murder, it being alleged that on 3 May 2007 he killed his wife, Marietta Marx, by shooting her with a .38 special calibre revolver. To this charge he pleaded guilty. In a lengthy written plea explanation submitted by him in terms of s 115 of Act 51 of 1977 he averred, however, that at the time of the shooting he was E suffering from 'serious diminished responsibility'.

Mr Henning, who appeared for the State at the trial, thereafter indicated that the State was not prepared to accept the plea on the basis as tendered, save for two paragraphs thereof, namely paras 31 and 32. These paragraphs read as follows:

'31.

F I accept that when I fired three shots at my wife the deceased I must have known what I was doing and I accept that I knew what I was doing. Any vagueness is probably because of the nature of the crime I committed and is attributed to post trauma memory loss.

32.

I admit therefore that on the day named in the charge sheet and at the place named in the charge sheet I shot my wife Marietta Marx G an adult female person three times. I admit the correctness of the post-mortem report and admit that the shots that I fired led to her death.'

Although the basis of the plea as tendered, namely diminished responsibility, is 'not a defence but is relevant to sentence because it reduces H culpability' (see Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132) at 182f), a plea of not guilty was thereafter entered on appellant's behalf in terms of s 113 of Act 51 of 1977.

At the conclusion of the defence case there was, however, a change of I tack, it now being submitted on behalf of appellant that the State had failed to prove its case beyond reasonable doubt and that the evidence disclosed that at the critical time the appellant had been acting in a state of automatism attributable to a cause other than mental pathology, in other words, in a state of sane automatism excluding culpability. This J defence was rejected by Sangoni J and appellant was convicted of murder

2009 (2) SACR p565

Pickering J

as charged. He was thereafter sentenced to undergo 10 years' imprisonment A of which five years were suspended on certain conditions.

Appellant appeals now with the leave of the court a quo against both his conviction and sentence.

As appears from what is set out above it was not in issue at the trial that B deceased had died on 3 May 2007 in consequence of the three gunshots fired at her by appellant, two of which shots struck her on the right cheek and one on the posterior thorax.

At the time of her death deceased was 38 years of age. She and appellant had been married to each other for approximately 19 years. Four C daughters, now aged 19, 18, 9 and 3 years respectively, were born of the marriage.

It appears from the testimony led at the trial that the relationship between the appellant and deceased had deteriorated markedly during the course of their marriage. According to appellant his love for deceased D had remained constant throughout the marriage, but deceased's feelings for him had changed. She became verbally abusive and aggressive towards him and humiliated him in public by, inter alia, calling him a 'kruppel gat'. It is common cause in this regard that appellant had injured his hip in a motor vehicle accident, leaving him with a permanent limp. E

Deceased eventually instituted proceedings for divorce against appellant. The summons was served on him on 18 April 2007. Prior thereto appellant had begun to suspect that deceased was involved in an unduly intimate relationship with other men, including a much younger man, Basson. Appellant was frequently told by his mother and sister of F allegations in the community concerning deceased's infidelity, but he closed his mind to these allegations, not wishing to believe them. He did not raise his concerns about the gossip with deceased, for fear that doing so would precipitate an intense emotional confrontation. It appears from the evidence that his fears concerning deceased's infidelity were not groundless. G

A certain Mr Alberts who resided with appellant and deceased in their home at Steytlerville during 2006 testified that he and deceased had had a sexual relationship with each other throughout the time that he lived with them. Appellant, however, was unaware thereof, whatever his H suspicions may have been. Alberts also testified that the aforementioned Basson used to visit deceased regularly, sometimes at the house until past midnight. He confirmed...