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After having convicted the appellant of murder, the Court enquired into the presence or absence of extenuating circumstances. Extensive submissions in this regard were made by counsel who appeared for the appellant . The Court then proceeded to record a finding that there were extenuating circumstances. However,
without calling upon counsel for the appellant, the Court proceeded to pass the sentence of 20 years imprisonment. Appellant's counsel should have been afforded an opportunity to address the court in mitigation or to have led evidence which could have been relevant in the determination of an appropriate
penalty. For the reasons that follow, it is not necessary to consider what the consequences, if any, of this procedural irregularity are.
When adjudicating upon the question of the presence of extenuating circumstances the Court said the following:
"In all the circumstances of this case, there was absolutely no lawful excuse for the killing of the deceased by the accused. The accused must be held responsible for his acts. He clearly went to the bushes with an intention of killing the deceased." (Own emphasis)
In passing sentence, the Court reiterates that premeditation had been established and says:
before she screamed. reasonable inference to be drawn in these circumstances is that nothing untoward occurred prior to the stabbing and which could have inflamed the passions of the appellant. It is clear on all evidence that he was deeply distressed that his common law wife had left him and that he made repeated attempts at achieving a reconciliation. In these circumstances it was not at all improbable that there may have been a conversation prior to the stabbing and that the attack upon the deceased was committed on the
spur of the moment and not necessarily planned and premeditated. where Van Wmscn JA says the following: "While Section 270 has its legitimate uses, I doubt very much whether it was intended by the legislature to create the opportunity for a wholesale departure from the rule that evidence in
a criminal case should generally speaking be placed before the court viva voce as provided for in Section 177(1) of the Criminal
Procedure and Evidence Act. It is of paramount importance for the achievement of the aims of justice that, as a general rule and with rare exceptions, a witness in a case should appear personally before the court so as to be seen and
heard in evidence before it thereby enabling the court to judge what manner of man it is that it has before it. Furthermore the cross-examination of a witness whose evidence is sought to be relied upon affords one of the most effective ways of testing the honesty and reliability of that evidence. Neither of these ends can be served without viva voce evidence. It is accordingly ill-advised, save in exceptional circumstances,
to by-pass such accepted and well-tried methods of ascertaining the truth. It was, I am convinced, never the intention of the legislature that in criminal proceedings the whole gamut of a State case should be encapsulated in the narrow compass of a statement of agreed facts. Section 270 sought to do no conviction is confirmed but the sentence imposed by the Court a quo is set aside and in its place is ordered: "14 years imprisonment".
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"You must have planned and executed the slaying of this defenceless woman. You robbed her of life in the most abrupt and sudden manner. You stalked her whilst she was in the bushes and lawfully going about her domestic chores." (Own emphasis)
It was not disputed before us that the appellant had been correctly convicted of murder. It is clear that it was the appellant who had stabbed his wife (the deceased) in her neck and that he had done so with the intention of killing her. However,
whether the crime was a planned and premeditated one was dependant upon the inferences to be drawn from the evidence.
In the first place the court a quo relied on the testimony of the witness PW1. This witness says that on the day in question he and another person, one Jan Theetso - since deceased - together with
the deceased were collecting firewood to put in a wheelbarrow. The witness and Jan would collect the firewood and the deceased, after
he and Jan had collected the wood, placed it in the wheelbarrow. The witness says that he heard the deceased crying out. The cry
was to the effect that "somebody has killed me or wounded me." He then ran in the direction from where the cry came and he saw the appellant running away. He estimates the distance they were apart when he heard the scream as being some 25 paces. He also says he did not hear the deceased talking
The other evidence upon which the judge relied was the evidence of the appellant's aunt. This evidence was introduced into the record by an admission of the statement of the aunt. This was to the effect that the appellant had told her that he had killed the
deceased as he had complained about her. {It was common cause that the deceased and the appellant had lived together for about 10 years but she left him and had moved in with another man. There was an attempt at reconciliation which failed and the appellant was rejected by the deceased's family.)
In my view, neither of these two pieces of evidence are necessarily supportive of the finding made by the learned judge that this was a premeditated murder. It is clear that immediately prior to the assault the deceased was not under observation by the witness PW1. He and Jan were collecting wood - with all the attendant noise which accompanies such a task. There was never a proper enquiry as to whether a discussion between the deceased and the appellant would have been audible or whether she was even visible to PW1 and Jan. Indeed the finding of the trial court that the evidence established that PW1 had said that at the distance he was from the deceased he could have heard any conversation is not supported by the evidence on record. It does not therefore seem to me that the only
The appellant did not depose to this version. Indeed his version was that he was assaulted by PW1, Jan and his wife and that it was in the course of the assault that he committed the crime with which he was charged. This evidence was however correctly rejected by the court below. The question still remains however, whether on the other acceptable evidence the only reasonable inference to be drawn from all the facts is that appellant went to the scene with a settled intention to kill the deceased. We are satisfied that this is not the only reasonable inference to be drawn from the established facts.
The admission of the statement of the aunt without her giving oral evidence was an ill-advised - indeed an unacceptable procedure. See in this regard SEBONI VS THE STATE 1984 B.L.R. 69
7
admissions by the accused to relieve the State of the necessity of proving matters of a generally formal nature." (Emphasis added) See also S. V. THOMO 1969(1) S.A. 385 (A) at 388.
However, that may be, and even if this were to be acceptable evidence, the statement is not proof of the fact that appellant premeditated the killing, it is merely a confirmation of the fact that this was the motive for the commission of the offence.
In these circumstances the Court a quo passed a sentence upon an incorrect premise. Clearly a premeditated murder is more reprehensible
than an unpremeditated one. It follows that we are obliged to reconsider the propriety of the sentence imposed on the appellant as we have been requested to do by his counsel. The crime does however remain an extremely serious one and
a lengthy period of imprisonment is clearly appropriate.
Having regard to all the circumstances of this case we have
concluded that a sentence of 14 years imprisonment is one which
correctly reflects the abhorrence of society of the offence
committed by the appellant, as well as meeting the requirements
of deterrence and the possibility of the rehabilitation of the
Appellant.
It follows that the appeal against the sentence is upheld. The
DELIVERED IN OPEN COURT THIS 27th DAY OF JANUARY 2000.
J.H. STEYN (JUDGE OF APPEAL)
I agree
...
P. H. TEBBUTT (JUDGE OF APPEAL)
I agree
. .
LORD D.B. WEIR (JUDGE OF APPEAL)
URL: http://www.saflii.org/bw/cases/BWCA/2000/9.html
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