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[2016] ZAGPJHC 308
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Taunyane v S (A140/2015) [2016] ZAGPJHC 308; 2018 (1) SACR 163 (GJ) (28 September 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
number: A140/2015
Reportable:
YES
Of
interest to other judges: YES
Revised.
28/9/2016
In
the matter between:
VICTOR
VIKI SEABELA
TAUNYANE                                                             APPELLANT
and
THE
STATE

RESPONDENT
SUMMARY
The
appellant appealed his conviction on the charge of Murder read with
the provisions of section 51(1) of Act 105 of 1997 and sentence
of
life imprisonment. The issue on appeal was whether the murder was
planned or premeditated. The court a quo only made a finding
that the
murder was premeditated in the judgment on sentence.
On
appeal the court remarked that the court a quo’s finding on
planning or premeditation in the course only of sentencing
may create
a number of difficulties. The most relevant difficulty in the present
instance is that the sentencing stage was not
the time when the
matter should have been considered or argued or adjudicated for the
first time. Planning or pre-meditation is
decided having regard to
the onus of proof and should have been dealt with before conviction
to serve as a basis for the determination
of an appropriate sentence.
In
the result, the court a quo was found to have misdirected itself in
convicting the appellant of premeditated murder when it had
not dealt
with this issue before conviction. This misdirection prejudiced the
appellant as he could not have known what standard
of proof was
applied and how such standard was discharged when the court made a
finding of premeditation at the sentencing stage
of the proceedings.
Consequently,
the appeal court set aside the conviction of premeditated murder
which was substituted by a conviction of murder with
dolus
directus
. No compelling and substantial circumstances justifying
deviation from the minimum sentence of 15 years’ imprisonment
were
found to exist. However, the court made allowance for the two
years spent by the appellant in prison awaiting trial and imposed
a
sentence of 18 years’ imprisonment.
JUDGMENT
SATCHWELL
J:
Introduction
1.
By leave of
the Supreme Court of Appeal, appellant appeals his conviction of the
murder of Johannes Tshitemba, on 18
th
June 2006 and in respect of which conviction he was sentenced to
serve a term of life imprisonment.
[1]
Failure
by the court
a quo
to convict of an offence referred to in
Part 1 of Schedule 2
2.
Appellant was charged with three counts – “Murder read
with the provisions of section 51(1) of Act 105 of 1997”
as
well as unlawful possession of a firearm and unlawful possession of
ammunition. It is complained that the learned acting judge
in the
trial court made no mention of planning or premeditation in his
judgment on conviction and that it was only when passing
sentence
that the learned acting judge first raised the issue of
premeditation.
3.
I note that the court stated in the judgment on sentence that the
prescribed sentence is life imprisonment “if the court
finds
that it was premeditated”, and then went on to examine the
evidence and concluded that “it is clear that the
killing in
this case by you was premeditated”.  It was on that
finding and on that basis, that the learned acting judge
sentenced
the appellant to life imprisonment.
4.
The state has argued that the indictment makes it clear that the
appellant was charged with “murder read with section 51(1)
of
Act 105 of 1997” to which he pleaded not guilty and that the
trial court found the appellant guilty of “murder read
with
section 51(1) of Act 105 of 1997”.
5.
Section 51(1) of the Statute provides that a court shall sentence a
person to imprisonment for life where a court has convicted
such
person “of an offence referred to in Part I of Schedule 2”.
Part 1 of Schedule 2 refers to “Murder”
as
committed in no less than eight different circumstances. These range
from murder where the victim was killed “in order
to unlawfully
remove any body part of the victim” through to murder where the
death of the victim was “a law enforcement
officer performing
his or her functions”. Murder which was “planned or
premeditated” is merely one of these various
scenarios in Part
1 of Schedule 2.
6.
In the present matter, the state seeks to rely on Part 1 of Schedule
2 but the summary of substantial facts gives no indication
as to
which portion of Part 1 is alleged to be of application. The defence
was entitled to request further particulars which does
not appear to
have been done in this case.
7.
Certainly,
by way of inference, both the represented accused and the court are
in a position to exclude all other types of ‘murder’
save
one which is ‘planned or premeditated’ from being of
application to the present indictment.   Although,
I  am
somewhat concerned that an accused person and his legal
representative  should be expected (in the absence of a
request
for further particulars)  to infer which portion of Part 1 of
Schedule 2 and, therefore, of subsection 51(1), is
the subject
matter of a prosecution, I cannot see that the appellant has been
prejudiced as to his  defence: the appellant
was informed of the
charge “with sufficient detail to answer it”
[2]
,
the facts were known to him, he was legally represented and none of
the other circumstances of murder set out in Part 1
of Schedule 2,
could ever have been  under consideration.
[3]
8.
The difficulty which, to my mind, arises in the present appeal is
that there is no reference by the trial judge in the judgment
on
conviction to planning or premeditation, which silence suggests that
this important issue may not have been argued before the
court.
9.
For the
trial judge to make a finding on planning or premeditation in the
course only of a sentencing judgment may create a number
of
difficulties.  To my mind the most relevant difficulty in the
present instance is that the sentencing stage was not the
time when
the matter should have been considered or argued or adjudicated for
the first time.
[4]
10.
Section 51(1) requires the court to have “convicted of an
offence referred to in Part 1 of Schedule 1”.
It is prior to
the conviction stage that the matter must have been fully ventilated,
argued and considered. Only then can the necessary
finding be made.
It is only when such a conviction is determined and full reasons
given in respect of an identified offence ‘referred
to in Part
1 of Schedule 1’, that an  appropriate sentence can be
handed down.
11.
That a conviction  of murder  must be identified as being
‘planned or premeditated’   at
the conviction
stage indicates the standard of the  burden of proof which
applies to the description of or the circumstances
of the murder of
which an accused is convicted.
12.
I do not suggest that a new class of ‘murder’ (other than
those identified as murder committed with ‘
dolus directus’
,
‘
dolus indirectus’
,  or,  ‘
dolus
eventualis’
) has been created in  Act 105 of 1997.
I understand that the court has always been required to indicate at
the time
of conviction the  class of intention with which an
accused acted and is also now required to indicate whether or not
such
murder was committed within any one of the  circumstances
set out in Part 1 of Schedule 2.
13.
For this particular appeal, the relevance of this consideration is
the nature of the burden of proof which applies to
a finding of the
circumstances set out in Part 1 of Schedule 2. For a court to convict
of murder which was ‘planned or premeditated’
it
certainly seems that the usual standard of ‘proof beyond
reasonable doubt’ must be applied at the conviction stage
as to
the existence or otherwise of planning or premeditation.
14.
In the result, I am of the view that the acting judge in the court
a
quo
misdirected himself in setting out a conviction of a planned
or premeditated murder in in his judgment on sentence when he had not

dealt with this issue in his judgment on conviction.
15.
Of course, the question is whether or not the appellant was
prejudiced in any way by the finding of ‘premeditation’

only being made at sentencing stage.   I am of the view
that there was such prejudice which lies in the absence of any

indication, as indeed there could not be in the judgment on
sentencing, what standard of proof was applied and how such standard

was discharged when the court made a finding of ‘premeditation’.
The
facts
16.
The
undisputed background to the events of the day in question is that
appellant was married to a lady by whom he had children.
He was
imprisoned at one time during which his wife entered into a
relationship with the deceased. On his acquittal on appeal and

release from imprisonment, appellant had contact with his wife,
children and the deceased.  He was not pleased with the
relationship
between his wife and the deceased. On occasion,
appellant visited his children where they lived with their mother.
His arrival
at this house was known, even by the deceased’s own
daughter, Thato Mohapelo,
[5]
to
be “visiting his children”.
17.
It is common cause that the day when the deceased was killed was
“Father’s Day”. Appellant arrived at
the house, he
made certain statements, a neighbour attempted to escort him away and
he then fired a total of six shots at the deceased
who died on the
scene.
18.
The two witnesses whose evidence is relevant as to the events which
took place on the day in question are Ms Maria Nobandla
and Mr
Shadrack Alam. They were both present with the deceased at the
entrance to the home of appellant’s children. They
were called
as state witnesses and they were obviously friendly with both the
appellant and deceased which suggests that they had
no longstanding
hostility against appellant prior to the killing to which they were
witness.
19.
Ms Nobandla and Mr Alam both testified that appellant arrived, was on
the other side of the deceased’s motor vehicle,
called to and
insulted the deceased and showed the deceased his firearm to which he
also made verbal reference. Ms Nobandla physically
intervened with
appellant and pulled him aside whereafter the appellant appeared to
commence walking away from the scene. Thereafter,
appellant aimed his
gun at the deceased, shot at him and missed, shot again and hit the
deceased and then, as the deceased attempted
to escape, appellant
followed him and shot him at least four more times whilst the
deceased was lying on the ground. Ms Nobandla
believes that she heard
a total of six shots fired whereas Mr Alam heard at least two shots
fired.
20.
Appellant’s version was that he had come to visit his children,
the deceased assaulted him, Ms Nobandla separated
them, the deceased
then pulled out a gun and then he “…realised that my
life was in danger”.  It was when
appellant and the
deceased “wrestled for possession of the firearm that is where
the shot ran”. They continued fighting
for possession of the
gun and “it also continued shooting” and then “the
firearm ended in my hands”. According
to appellant he also fell
down, “the firearm fell to the other side” and he then
made his getaway.
21.
Although cartridges found at the scene were admitted into evidence,
there is no evidence if or where a firearm was ever
found.
22.
The post-mortem report records that the cause of death was “multiple
gunshot wounds” of which six appear to
be gunshot wounds with
both entry and exit noted.
23.
I am in agreement with the learned trial judge that the version of
the appellant   should be rejected.
There is no
indication that the deceased was ever in possession of a firearm; no
firearm was found at the scene; the evidence of
both Nobandla and
Alam is sufficiently corroborative of each other to confirm the
overall scenario and to eliminate collusion.
24.
In the result, I would not disturb the finding that appellant is
guilty of murder committed with a direct intention to
kill the
deceased.
Planning
or pre-meditation
25.
The concept of a planned or premeditated  murder is not
statutorily defined.   As was pointed out in
Raath supra
our courts have tended to approach this question on a casuistic
basis.
26.
However, in
Raath supra
planned or premeditated
murder was described as follows (
p
53 para [16]):
‘
Clearly
the concept suggests a deliberate weighing-up of the proposed
criminal conduct as opposed to the commission of the crime
on the
spur of the moment or in unexpected circumstances. There is, however,
a broad continuum between the two poles of a murder
committed in the
heat of the moment and one which had been conceived and planned over
months or even years before its execution...
Only an examination of
all the circumstances surrounding any particular murder, including
not least the accused’s state of
mind, will allow one to arrive
at the conclusion as to whether a particular murder is ‘planned
or premeditated’. In
such an evaluation the period of time
between the accused forming the intent to commit the murder and
carrying out this intention
is obviously of cardinal importance but,
equally, does not at some arbitrary point, provide a ready-made
answer to the question
of whether the murder was ‘planned or
premeditated’.’
Raath
was quoted with approval by the Supreme Court of Appeal in
Kekana
v The State
(629/2013)
[2014] ZASCA 158
(1 October 2014).
27.
The distinction between ‘planning’ and ‘premeditation’
was  made on the basis of dictionary
definitions in
Raath
supra
but has subsequently been examined in  some
detail in
S v PM
2014 (2) SACR 481
(GP) where it was found
that the concepts were  distinct from each other –
premeditation referring “ to something
done deliberately after
rationally considering the timing or method of so doing, calculated
to increase the likelihood of success,
or to evade detection or
apprehension” while planning refers to “a scheme, design
or method of acting, doing, proceeding
or making which is developed
in advance as a process, calculated to optimally achieve a goal”
(at para [36]).
28.
The period of time which may elapse between a perpetrator forming an
intention to commit the murder and carrying out such
murder is of
importance but does not, as was said in
Raath supra
“prove
a ready-made answer to the question of whether the murder was
‘planned or premeditated’ or, as was said
in
Kekana
supra, “
time is not the only consideration”.
The
Evidence of Planning or Premeditation
29.
Having found that the appellant did wrongly, unlawfully and
intentionally kill the deceased, it was appropriate
for the trial
court to convict him of murder.  That he pursued the deceased
after the first shot and then fired four further
shots into the body
of the deceased as he lay on the ground, proves that this was murder
committed with direct intention.
30.
In deciding whether or not appellant killed the deceased in
circumstances where such killing was planned or premeditated,
the
test is not whether there was an intention to kill.  That had
already been dealt with in finding that the killing was
an act of
murder. The question now is whether or not appellant “weighed –
up” his proposed conduct either on
a thought-out basis or an
arranged-in-advance basis (as set out in
Raath supra
at [16]),
or, whether or not appellant “rationally considered  the
timing or method” of the killing, or, prepared
a “scheme
or design in advance” for achieving his goal of killing the
deceased (as set out in
PM supra
at [36]).
31.
The following facts must, to my mind,  be taken into account:
a. Appellant had endured
a period of incarceration during which his family life disintegrated.
It is not a question of fault on
the part of any of the adults
involved but it must be acknowledged that appellant was distressed
and disturbed and sought help
from social workers. Understandably,
his feelings towards the deceased were not friendly as evidenced in
their previous interactions.
It may be thought that this background
suggests a motive for wanting to eliminate the deceased but motive or
suggestions alone
are insufficient to found a finding of
premeditation.
b. Appellant went to the
home of his children. It seems to be agreed by everyone that he had
previously visited his children and
that this particular visit was
understood to be taking place because it was Father’s Day.
c. Appellant carried a
loaded gun on this visit to his children.  Whilst it may be
thought coming armed to the scene is suggestive
of advance
preparation for a killing, there is no evidence in support thereof.
Ms Nobandla gave evidence that appellant told them
all, including the
deceased, that he carried his firearm 24 hours each day and night. It
must be accepted that, regrettably,
appellant was always
illegally armed and that carrying a loaded firearm is insufficient to
find, beyond reasonable doubt that the
appellant planned to kill the
deceased.
d. Upon his arrival at
the gate of the home where his daughters lived,   appellant
called upon the deceased to come closer
and the deceased responded
“you must come closer because you are the one who is looking
for me”.  At this time
appellant opened his jacket and
showed all three persons at the gate that he was carrying the
firearm. Appellant then swore at
the deceased. Nobandla grabbed
appellant by the arm, pulled him aside and told him to leave the
deceased alone as he was creating
a scene in front of other people in
the street. On the evidence of both Nobandla and Alam, all the
aggression came from appellant
and the deceased was silent and
unresponsive. Appellant’s behaviour was certainly provocative.
But I find it difficult
to accept that it clearly indicates that
appellant was acting in accordance with any pre-conceived design or
process. It would
be somewhat surprising if he had come to the house
with the plan to kill the deceased in an open street with passers-by
able to
observe what he was doing.  Before his arrival he could
see that Nobandla and Alam were at the house. Yet he carried on. He

did not immediately carry out any murderous action upon which he may
have earlier decided. Instead, he focussed on the deceased
and
taunted and swore at him. He did not say to the deceased, Nobandla or
Alam   that he had come to kill the deceased.
He was
provocative but not violent.  He showed his firearm but did not
immediately use it. Nobandla was not so scared or terrified
by his
mien or behaviour that she felt unable to usher him away. Indeed the
reason she gave for so doing was that he was attracting
attention
from others in the street and not that she feared that he might do
something violent. In short, the scene at the entrance
to the house
where Nobandla and Alam watched appellant approach and  then
verbally insulting the deceased gives no indication
of any action to
carry out or implement a pre-planned objective such as killing the
deceased.
e. Once Nobandla has
ushered appellant away he seemed to walk away.  It is Nobandla
who puts a gloss on his walking-off as
being a ‘pretence’.
That is her interpretation of his apparent departure because of what
came next, which is that he
did not actually depart. But there is
nothing to suggest that this walking-off was a ruse on the part of
appellant. There is no
evidence to suggest that it was part of any
deception or for what other purpose. Appellant could have shot the
deceased then and
there. He could have shrugged Nobandla off. He did
not have to pretend to leave and then turn round and turn towards the
deceased.
The deceased was not more vulnerable because appellant had
moved away.
f. Appellant did return.
He fired a first shot at the deceased which missed him.   He
fired a second shot which did hit
the deceased, who called out “Are
you aware son that you have stroked (sic) me. You have got me”.
The deceased
then ran off towards his vehicle parked at the gate.
Appellant fired a third shot,  then a fourth shot, whilst both
he and
the deceased were at the vehicle, then two further shots at
the deceased who was on the ground.  He then walked off and left

the scene. There can be no doubt that appellant intended to kill and
did in fact kill the deceased. The last four shots which he
fired
make this quite clear – he did not intend to wound but to
kill.  The period of the shooting must have been very
quick –
there was insufficient time for the deceased to get into his motor
car at the gate between the second and the fourth
shot. This is the
point at which one has to enquire whether or not these events were
planned or premeditated.
32.
When one evaluates all the evidence against the comments in both
Raath supra
and
PM supra ,
I am unable to find that
there is a deliberate course of action which  was so planned as
to increase the likelihood of success
or enable evasion of
apprehension thereafter. I cannot see any evidence of rational
consideration or arrangement. I have great
difficulty in finding
facts which unequivocally reveal anticipation.
33.
It is not required in our law that there be a trigger point which
provokes the killing in the heat of the moment.
As was pointed
out in
Raath supra
there is indeed a continuum between two
poles, the one being a murder committed in the heat of the moment and
another conceived
and planned over months or years.
34.
Timing is of importance.  In the present case, there
is no evidence which, beyond all reasonable doubt,
indicates that
appellant arrived on the scene determined upon a murder or, that he
walked along the street eyeing the deceased
and then decided to kill
him.
35.
At the hearing of this appeal we were reminded of the dicta in
R v
Blom
1939 AD 188
at 202 and, when one has regard thereto, I find
myself unable to exclude every other reasonable inference which could
be drawn
in the present case.  Appellant may indeed have snapped
once he realised he was allowing himself to be escorted away by
Nobandla
because he was drawing attention to himself and the
deceased.   Appellant may have snapped because of his
experience
of alienation whilst in prison, his shame in front of
everyone known to him, his failure to control his temper meant he was
being
removed from his children’s home because he was creating
an embarrassment in front of others. Appellant may have decided as
he
was leaving, that he had had enough and that he would end the charade
that he was married and the father or three daughters
when, in fact,
his ability to meet with his daughters on Father’s Day was
frustrated by the presence of his wife’s
boyfriend at the
entrance to the house.  These are some amongst many possible
inferences. I do not suggest that one or all
are correct.  I
merely attempt to illustrate that the evidence before us does not
exclude all other inferences save that of
premeditation and the
evidence before us does not lead only to an inference of
premeditation.
36.
The evidence of the wife of appellant is that he phoned her later
that evening and informed her that he had killed the
deceased (which
she must have already known) and that he had intended to burn his
body after killing him.  Appellant confirms
the phone call but
denies this aspect of the conversation. In view of the credibility
finding against appellant in the court
a quo
and the inherent
improbability of his version, I would be inclined to accept that he
did make such a statement.  But this
is after the event and may
or may not be indicative of premeditation or of machismo or
braggadocio. It is hardly conclusive of
planning or premeditation.
37.
I am not satisfied that the State has proven beyond a reasonable
doubt that appellant is guilty of murder committed in
circumstances
of planning or premeditation.
38.
In the result I would uphold the appeal against the conviction of
murder as contemplated in Section 51(1), ie murder
committed
with planning or premeditation, as set out in Part 1 of Schedule 2 of
Act 105 of 1997.  I would qualify the conviction
of ‘murder’
and with a finding of “murder with
dolus directus
”.
I would set aside the finding in the judgment on sentence of a murder
which was premeditated.
Sentence
39.
Act 105 of 1997 prescribes a minimum sentence of 15 years’
imprisonment to be imposed upon a person who is convicted
of the
offence of murder.   The court may only deviate therefrom
in the event that substantial and compelling circumstances
are found.
40.
To the extent that mitigating or aggravating circumstances are argued
to exist to cumulatively amount to substantial and
compelling
circumstances, they have already been discussed in this judgment.
41.
On the one hand, there is the pain and aggravation of incarceration
resulting in release on appeal, the separation from
his wife and
children only to find on release that there is to be no
reconciliation and reunification and their marriage eventually
ending
in divorce in August 2006. The Appellant was confronted with the
existence of and the involvement of the deceased in the
life of his
own family. He was obviously a grown man and shamed or embarrassed in
the presence of neighbours, both adults and children.
42.
However, he brought this tragedy upon himself.  He chose to
carry a loaded firearm. He enabled the shooting and killing
of the
deceased. Whatever his distress at his family situation, neither
adultery nor intrusion into family life could possibly
justify the
killing of any party to any of the relationships. It is not a
question of stating that the deceased did not deserve
to be killed
but that appellant had no lawful justification for killing anyone at
all. The deliberation with which he hounded down
the deceased and
fired a total of at least seven shots at him – four whilst the
deceased was lying on the ground - is a most
aggravating
circumstance.
43.
I cannot find substantial and compelling circumstances which would
justify a lesser sentence of imprisonment than the
minimum prescribed
sentence of fifteen years imprisonment.
44.
The learned acting judge in the court
a quo
did no more than
state “It would seem you have spent some time in custody
because of these offences” but unfortunately
the only
indication one can glean from the record of the period of
incarceration whilst awaiting trial is that the murder was committed

on 18
th
June 2006 and that sentence was imposed on 26
th
June 2008.  On the assumption that appellant has spent  almost
two years in custody as an awaiting trial prisoner,
I would
impose a sentence of eighteen years’ imprisonment with effect
from 26
th
June  2006.
Order
1.
The appeal against conviction is upheld only to the extent that, in
regard to the appellant’s conviction of murder by the
court a
quo, the following is added “with
dolus directus
but
absent meditation or pre-planning”.
2.
The appeal against sentence is upheld to the extent that the sentence
imposed by the trial court is substituted with the following:
“
The
accused is sentenced to 18 (eighteen) years’ imprisonment.
The
commencement of the sentence is backdated to 26 June 2008”.
DATED
AT JOHANNESBURG ON THE 28
th
SEPTEMBER 2016
____________________
SATCHWELL
J
I
agree
____________________
VAN
OOSTEN J
I
agree
____________________
MASIPA
J
Counsel
for appellant: Adv E Guarneri
Attorneys
for appellant: Johannesburg Justice Centre
Counsel
for respondent: Adv JM Serepo
Office
of the DPP
Date
of hearing: 9 September 2016
Date
of judgment:  28 September 2016
[1]
[1]
Appellant obtained leave to appeal from the court
a
quo
against the sentence of life imprisonment imposed on him by reason
of a finding at the sentencing stage that he was guilty of
‘planned
or premeditated murder’.  at the first  hearing of
this appeal, the learned judges required that
leave to appeal the
conviction  of murder  be obtained by way of petition from
the Supreme Court of Appeal which petition
was granted.
[2]
S v
Legoa
2003 (1) SACR 13 (SCA).
[3]
This situation is not akin to that which was considered by an appeal
court in
S
v Raath
2009
(2) SACR 46
(CPD), where the indictment made reference only to
s 51 and did not specify ss (1) or (2)  which  the court
found
to be an ‘ambiguous’ notification of the
application of Act 105 of 1997.
[4]
The record on appeal gives no indication of any argument on
‘planning or premeditation’ prior to conviction.
[5]
Who identified the appellant as “my father’s girlfriend
husband” at page 22 of the Record.