S v Raath

• Jurisdiction: South Africa
• Judge: Louw J, Bozalek J and Goliath J
• Judgment Date: 10 December 2008
• Citation: 2009 (2) SACR 46 (C)
• Docket Number: A82/2008
• Hearing Date: 23 July 2008
• Counsel: A Caiger for the appellant. S Galloway for the respondent.
• Court: Cape Provincial Division

S v Raath
2009 (2) SACR 46 (C)

2009 (2) SACR p46

Citation	2009 (2) SACR 46 (C)
Case No	A82/2008
Court	Cape Provincial Division
Judge	Louw J, Bozalek J and Goliath J
Heard	July 23, 2008
Judgment	December 10, 2008
Counsel	A Caiger for the appellant.; S Galloway for the respondent.

Flynote : Sleutelwoorde

B Murder — Premeditated or planned murder — What constitutes — Concept suggesting deliberate weighing up of proposed criminal conduct, as opposed to commission of crime on spur of moment — However, continuum existing between murder committed in heat of moment and one conceived and planned over long period — Examination of all circumstances, including C accused's state of mind, required for finding as to planning — Period between accused forming intention to kill, and carrying out that intention, of cardinal importance, but not determinative of premeditation.

Murder — Sentence — Mitigating factors — What constitutes — Intoxication — Accused consuming considerable amount of alcohol prior to shooting — D Physical and psychological effects — Unlikely that accused performing such act if alcohol not playing substantial role in diminishing his inhibitions and his capacity for clear and rational thought — Accused's faculties significantly impaired and moral blameworthiness thus diminished.

Sentence — Prescribed sentences — Minimum sentence — Imposition of in E terms of Criminal Law Amendment Act 105 of 1997 — Charge-sheet — Charge-sheet not indicating whether State viewing murder as planned or premeditated, and attracting life sentence, or simply as unplanned murder attracting minimum 15-year sentence — However, appellant's plea explanation containing statement denying planning or premeditation — Clear F from this and from conduct of his defence, that appellant fully aware that State intending to make out case for planned or premeditated murder — Consequently, fair trial rights in no way infringed, and open to trial court to impose life sentence upon conviction.

Headnote : Kopnota

The appellant was convicted in the High Court of murdering his wife and of G assaulting her with intent to do grievous bodily harm. In imposing sentence, the trial court found that the murder had been planned and that, there being no substantial and compelling circumstances present, the only appropriate sentence was one of life imprisonment. A three-year sentence was handed down on the assault count, ordered to run concurrently with the life sentence. The appellant appealed against sentence only. The court H of appeal found that three issues required consideration: firstly, whether the appellant had been notified that he ran the risk of being sentenced to life imprisonment in terms of the Criminal Law Amendment Act 105 of 1997 and, if not, whether such prior notification was a requirement in law; secondly, whether the murder had in fact been 'planned or premeditated' as envisaged by the Act; and thirdly, whether the trial court had erred in I sentencing the appellant to life imprisonment.

Held, that although the charge-sheet specified that the provisions of s 51 of the Act were applicable, this notification was ambiguous, since it did not indicate whether the State viewed the murder as planned or premeditated, or simply as an unplanned murder which would attract a minimum sentence of 15 years' imprisonment. There was also nothing in the record J to show that the appellant had been advised of the State's intention to prove

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a planned or premeditated murder. However, the appellant's plea explanation A contained a statement in which he denied having planned the murder or having acted with premeditation. It was clear from these statements, and from the way in which his defence had been conducted, that the appellant was fully aware that the State intended to make out a case for a planned or premeditated murder. Consequently, his fair-trial rights had in no way been infringed, and it had been open to the trial court to impose a life sentence B upon conviction. (Paragraphs [12]-[14] at 51d–52 g.)

Held, further, that there was no statutory definition of a planned or premeditated murder; neither was there an authoritative pronouncement thereon in case law. The concept suggested a deliberate weighing-up of the proposed criminal conduct, as opposed to committing a crime on the spur of the C moment. However, there was a continuum between a murder committed in the heat of the moment and one which had been conceived and planned over months or years. Only an examination of all the circumstances surrounding a particular murder, including the accused's state of mind, would allow a conclusion as to whether or not there had been planning. In such an enquiry the period between the accused forming the intention to D kill, and carrying out that intention, was of cardinal importance, but it did not provide a ready-made answer to the question. (Paragraph [16] at 53 c–g.)

Held, further, that in casu there was nothing to suggest that the appellant had conceived a plan to shoot the deceased before the night in question. Only a few minutes passed between the appellant's becoming enraged with his E wife and his decision to fetch his firearm and shoot her. While it was true that from the moment he had conceived the idea he had brooked no opposition, this did not transform the deadly act of a man in an emotional rage into a planned or premeditated murder. Accordingly, the trial court had erred when it approached sentence on the basis that, unless substantial F and compelling circumstances were found to be present, it was obliged to impose life imprisonment. Sentence was therefore to be determined afresh. (Paragraphs [17]–[19] at 53 h–54e.)

Held, further, that there was a persuasive body of evidence to the effect that the appellant had consumed a considerable amount of alcohol prior to the shooting, and that this had affected him both physically and psychologically. G It was unlikely that he would have performed the acts he did if alcohol had not played a substantial role in diminishing his inhibitions and his capacity for clear and rational thought; his faculties were significantly impaired and his moral blameworthiness was thus diminished. There were also other mitigating factors: he was a first offender who had been a useful H and productive member of society; he had displayed genuine remorse virtually from the outset; and he was, according to the psychiatric evidence, a prisoner of his own inflexible and authoritarian personality. On the other hand, it was an aggravating factor that, without provocation, he had shot dead his wife in the presence of neighbours and his own children. In addition, there had been a history of the appellant behaving violently and I aggressively towards the deceased. With all these factors taken into account, and bearing in mind the 22 months he had spent in prison awaiting trial, an appropriate sentence for the murder was one of 22 years' imprisonment. (Paragraphs [25]–[32] at 55 f—57 i.)

Appeal upheld. Sentence of life imprisonment set aside and sentence of 22 years' imprisonment substituted therefor. J

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Annotations:

Cases cited

Reported cases

S v Cele 1990 (1) SACR 251 (A): dictum at 255 b - d applied A

S v Khiba 1993 (2) SACR 1 (A): referred to

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373): dictum at 23 a - e B applied

S v M 1994 (2) SACR 24 (A): dicta at 29 g and 30b - d applied

S v Makatu 2006 (2) SACR 582 (SCA): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): referred to

S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to. C

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-522.

Case Information

D Criminal appeal. The facts appear from the judgment of Bozalek J, in which Louw J and Goliath J concurred.

A Caiger for the appellant.

S Galloway for the respondent.

Cur adv vult. E

Postea (December 10).

Judgment

Bozalek J:

[1] On 23 November 2005 the appellant, then a 42-year-old non- F commissioned telecommunications officer in the South African Air Force, was convicted in the Cape High Court on counts of murder and assault with the intent to do grievous bodily harm. He had pleaded not guilty to both charges and had raised the defence of non-pathological criminal incapacity to the charge of murdering his wife, Christina Jacoba G Raath, by shooting her with his firearm.

[2] The accused was legally represented at his trial. In a meticulous and comprehensive judgment, Dlodlo J rejected the appellant's defences on both counts. In doing so he found that the appellant had planned to fatally shoot the deceased. On 25 November 2005 the learned judge H sentenced the appellant to life imprisonment on the count of murder and to three year's imprisonment on the count of assault with intent to do grievous bodily harm to his late wife. The court ordered that the two sentences would run concurrently.

[3] With the leave of the court a quo the appellant now appeals against I the life sentence imposed upon him. In his notice of appeal the appellant contends that the court a quo erred in not finding that 'substantial and compelling circumstances' existed which justified the imposition of a lesser sentence. In particular, it is averred, the court erred in finding that the fact that the appellant was under the influence of liquor had no effect on the commission of the offence. It is also contended that the court J overemphasised the deterrent, preventive and punitive purposes of

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Bozalek J

sentences and failed to take into account that the appellant had an A ...