S v Makatu (245/05) [2006] ZASCA 72; [2007] 1 All SA 470 (SCA); 2006 (2) SACR 582 (SCA) (30 May 2006)

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[2006] ZASCA 72
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S v Makatu (245/05) [2006] ZASCA 72; [2007] 1 All SA 470 (SCA); 2006 (2) SACR 582 (SCA) (30 May 2006)

THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
CASE NO: 245/05
Reportable
In
the matter between
JOSHUA
MAKATU Appellant
and
THE
STATE Respondent
Coram
: SCOTT, LEWIS, VAN HEERDEN JJA
Heard:
12 May 2006
Delivered:
30 May 2006
Summary: Appellant indicted and convicted for murder subject to
s
51(2)
of the
Criminal Law Amendment Act 105 of 1997
, but sentenced to
life imprisonment subject to
s 51(1)
of that Act. Sentence set
aside. Finding that murder was premeditated not supported by
evidence. Sentence reduced to 12 years’
imprisonment.
Neutral citation: This case may be cited as Makatu v State [2006]
SCA 70 (RSA)
JUDGMENT
LEWIS JA
[1] The appellant was indicted in the Venda High Court on three
charges: murder, subject to the provisions of s 51(2) of the Criminal
Law Amendment Act 105 of 1997 (‘the Act’); theft of a firearm;
and possession of a firearm in contravention of the Arms and
Ammunition
Act 75 of 1969. The charge of theft was withdrawn at the
commencement of the trial. The appellant pleaded guilty to the other
two
charges. He was convicted by Hetisani J on both counts, and
sentenced to five years’ imprisonment on the charge of unlawful
possession
of a firearm, and life imprisonment in terms of s 51(1) of
the Act on the charge of murder. The appeal, which lies with the
leave
of this court, is against sentence alone.
[2] Section
51(1), read with Part I of Schedule 2 of the Act, requires the
imposition of a minimum sentence of life imprisonment for
murder when
(inter alia) it is planned or premeditated. Section 51(2), read with
Part II of Schedule 2, of the Act requires the imposition
of a
minimum sentence of 15 years’ imprisonment for murder in other
circumstances. Hetisani J, although convicting the appellant
on a
charge governed by s 51(2), imposed a sentence of life imprisonment
in terms of s 51(1), having come to the conclusion after
hearing
evidence relating to sentence that the murder was premeditated.
[3] The
appellant argues that the imposition of a sentence in terms of
s 51(1), when the indictment refers to s 51(2), is
a blatant
misdirection. Even if the murder had indeed been premeditated – a
question to which I shall turn – an accused has the
right to know
at the outset what charge he has to meet. The State properly conceded
this point. Since the enactment of the Act this
court has held that
it is incumbent on the State to specify the case to be met in such a
way that an accused appreciates properly
not only what the charges
are but also the consequences.
[4] In
S
v Legoa
1
Cameron JA approved the principle set out in
S v Seleke
2
that:
‘
To
ensure a fair trial it is advisable and desirable, highly desirable
in the case of an undefended accused, that the charge-sheet
should
refer to the penalty provision. In this way it is ensured that the
accused is informed at the outset of the trial, not only
of the
charge against him, but also of the State’s intention at conviction
and after compliance with specified requirements to
ask that the
minimum sentence in question at least be imposed.’ (The translation
is that of Cameron JA in
Legoa
.
3
)
The court
nonetheless held in
Legoa
that there is no general rule that
the indictment must ‘recite either the specific form of the
scheduled offence with which the
accused is charged, or the facts the
State intends to prove to establish it’. The essential question to
be asked is whether the
accused’s ‘substantive fair trial right,
including his ability to answer the charge, has been impaired’.
4
The court held that the substantive fair trial right of the appellant
had been infringed. The offence charged was dealing in dagga.
The
charge-sheet did not specify the value, but the trial court had
convicted the appellant and sentenced him under s 51(2)(a)(i)
of the
Act, read with Part II of Schedule 2, to 15 years’ imprisonment (a
minimum sentence) because the value of the dagga exceeded
R50 000.
The appellant had pleaded guilty before knowing that the minimum
sentence provisions would be invoked: indeed the charge-sheet
had
referred to the penalties applicable under the
Drugs and Drug
Trafficking Act 140 of 1992
. The appellant had thus been misled. The
minimum sentence was accordingly set aside.
[5] Following
Legoa
this court in
S v Ndlovu
5
held that the relevant sentence provisions of the Act must be
brought to the attention of an accused in such a way that the charge
can be properly met before conviction. Mpati JA
6
said, after referring to
Legoa
):
‘
The
enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had had
a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime created
by the
Act a fair trial will generally demand that its intention pertinently
be brought to the attention of the accused at the outset
of the
trial, if not on the charge-sheet then in some other form, so that
the accused is placed in a position to appreciate properly
in good
time the charge that he faces as well as its possible consequences.
Whether, or in what circumstances, it might suffice if
it is brought
to the attention of the accused only during the course of the trial
is not necessary to decide in the present case.
It is sufficient to
say that what will at least be required is that the accused be given
sufficient notice of the State’s intention
to enable him to conduct
his defence properly.’
The court
set aside the minimum sentence imposed for the unlawful possession of
a firearm since the appellant had not been pertinently
warned that
the minimum sentence might be imposed, rendering the trial, in that
respect, substantially unfair.
[6] The
appellant in this matter was charged with murder that on conviction,
would render him liable to a sentence of 15 years’
imprisonment in
terms of the Act. He was convicted on that charge. He was then
sentenced on the basis that he had been charged with
and convicted of
what amounted to a different offence – premeditated murder that,
under s 51(1) of the Act, renders an accused
liable to imprisonment
for life. The imposition of that sentence is an obvious and grave
misdirection. It must be set aside and
this court is required to
consider the appropriate sentence.
[7] As a
general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder,
it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced with life
imprisonment – the most serious sentence that can be imposed –
must from the outset know what the implications and consequences
of
the charge are. Such knowledge inevitably dictates decisions made by
an accused, such as whether to conduct his or her own defence;
whether to apply for legal aid; whether to testify; what witnesses to
call and any other factor that may affect his or her right
to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the
usual rules in
relation to prejudice.
7
[8] I turn
now to the evidence led by the appellant in mitigation of sentence,
and which prompted Hetisani J to decide that he was
obliged to impose
a sentence of life imprisonment in terms of s 51(1) of the Act. The
appellant pleaded guilty to murdering his
wife at Siloam Location, in
the district of Dzanani, on 22 April 2003. The post-mortem report,
admitted with his consent, showed
seven gun shot wounds on her chest
and neck, the cause of death being gun shot wounds that lacerated her
large cardiac blood vessels.
It is not clear whether the seven wounds
were all entry wounds.
[9] The
appellant testified that he had been a soldier in the South African
National Defence Force for 18 years prior to the incident.
He and the
deceased had married in November 1997. They had one child together,
but had lived also with the deceased’s child from
a previous
relationship, and the appellant’s two children, also from a
previous relationship. At the time of the murder the appellant
and
the deceased were separated. Their relationship had soured, according
to the appellant, because the deceased had maintained contact
with
the father of her child without his knowledge; had taken money from
the appellant’s bank account with no acceptable explanation;
had
not used money he had given her for various purposes for those
purposes and had had extra-marital affairs but had refused to
sleep
with him.
[10] Two
days before the murder, the appellant’s and the deceased’s
families had met in an apparent attempt to effect a reconciliation.
The deceased had not been amenable and had refused to let a family
representative speak for her. She said she was not willing to
live
with the appellant any longer. On 22 April he had decided to go to
her office to tell her that he had a firearm belonging to
her
brother, Mr Khamusi Mulaudzi. Mulaudzi, the appellant testified, had
given the firearm to him for safekeeping when he was drunk
and not in
a position to be safely in possession of a weapon. The appellant had
the firearm in his possession when he went to the
deceased’s
office.
[11] It
subsequently transpired that the weapon had in fact been owned by Mr
Khathutshelo Ramantswana, who gave evidence for the State
in
aggravation of sentence. Ramantswana maintained that the appellant
had stolen the firearm from him on 19 April. At the time he
was drunk
and had fallen asleep in a taxi while in the company of the appellant
and Mulaudzi. Indeed, when Ramantswana had gone to
a police station
to report that his firearm had been stolen he was so drunk that the
police would not take a statement from him.
Mulaudzi, who also
testified in aggravation of sentence, denied that he had given the
weapon to the appellant.
[12] When
the appellant went into the deceased’s office she immediately told
him that she was not interested in him and that he
should move out of
the house that he was busy renovating for them. This triggered bad
memories of what she had done and said in the
past. ‘It was then
at that spur of the moment I felt hurt and started shooting at her’.
After firing shots at her the appellant
had turned the gun on
himself, apparently shooting himself through the chin, the bullet
exiting through his forehead. I shall revert
to his testimony about
the injuries inflicted to himself.
[13] Hetisani
J did not accept the evidence of the appellant that he had gone to
see the deceased to tell her that he had her brother’s
firearm. He
inferred from the fact that the appellant had obtained a firearm
shortly before he had killed his wife, and had used
that rather than
his service weapon, that he had planned her murder before going to
her office. The inference could be drawn also,
said the judge, from
the fact that the deceased appeared intent on divorcing the appellant
and he feared loss of her share of the
joint estate. He was, it was
suggested, motivated by greed.
[14] There
are other inferences to be drawn, however, and the evidence does not
support a finding that the appellant had taken the
firearm with the
intention of shooting his wife, nor that he was motivated by the fear
of losing her share in the joint estate. It
cannot be said that the
State established that his version was not reasonably possibly true.
Indeed, the State did not even attempt
to do so. The evidence of
Mulaudzi and Ramantswana was led after conviction and only in
aggravation of sentence. Of course if the
murder had been
premeditated by the appellant this would weigh very heavily in
determining the appropriate sentence for the appellant.
But
premeditation is not, in my view, established from the fact that the
appellant acquired unlawful possession of another person’s
firearm
shortly before killing the deceased, nor from possible motives of
depriving his wife of her share of the joint estate. I
consider,
therefore, that the conclusion of the court below that the murder was
premeditated is wrong.
[15] Section
51(2), read with part II of Schedule 2 of the Act, renders the
appellant (as a first offender) liable to a sentence of
15 years’
imprisonment unless ‘substantial and compelling circumstances exist
which justify the imposition of a lesser sentence’.
8
The meaning of the term ‘substantial and compelling circumstances’
justifying the imposition of a lesser sentence was set out
by this
court in
S v Malgas
.
9
In brief, the court held that in determining whether there are
substantial and compelling circumstances, a court must be conscious
that the legislature has ordained a sentence that should ordinarily
be imposed for the crime specified, and that there should be
truly
convincing reasons for a different response. But it is for the court
imposing sentence to decide whether the particular circumstances
call
for the imposition of a lesser sentence. Such circumstances include
those factors traditionally taken into account in sentencing
–
mitigating factors. Of course these must be weighed together with
aggravating factors.
[16] The
appellant is a first offender. (If he were not then the minimum
sentence would be 20 or 25 years depending on whether he
was a second
or subsequent offender.
10
)
He has served in the military for 18 years without incident. He
pleaded guilty. During the course of evidence he showed remorse.
He
was in a state of great anguish at the time when he killed the
deceased. He wished, for the sake of their children, to save the
marriage but the deceased had refused to do so. In his view, she had
cheated him both sexually and with the misuse of funds. The
appellant
had killed his wife when memories of her conduct had assailed him. He
had then attempted to kill himself. He sustained
serious injuries.
Although he recalled shooting himself only in the chin, he also had a
wound in his chest. His upper palate was
injured so that at the time
of the trial he could not smell anything. His nervous system was
damaged which has impaired the functioning
of a hand and a leg. He
had not been given appropriate treatment while awaiting trial in
prison. Furthermore the appellant is liable
for the support of his
children who live with indigent members of the family. His older
brother gave evidence in mitigation supporting
the testimony of the
appellant in all these respects.
[17] All
these circumstances, in my view, are to be taken into account in
determining whether a sentence of 15 years’ imprisonment
is unjust.
Likewise, however, I must take into account those factors that
aggravate the crime. The appellant shot his wife, the deceased,
several times. The brother of the deceased testified that the family
circumstances have become very hard since her death. Domestic
violence is rife and should be not only deplored but also severely
punished. Family murders are all too common. Society, the vulnerable
in particular, requires protection from those who use firearms to
resolve their problems. The sentence imposed must send a deterrent
message to those who seek solutions to domestic and other problems in
violence.
[18] Taking
all these factors into account, I am satisfied that although the
appellant should be given a lengthy sentence of imprisonment,
a
sentence of 15 years would be unjust. A sentence of 12 years’
imprisonment would send a strong deterrent message to the community,
but would take account of the very difficult personal circumstances
of the appellant.
[19] Although
the appellant does not suggest that the sentence of five years’
imprisonment for unlawful possession of a firearm
is inappropriate he
asks this court to order that it run concurrently with the sentence
for murder. It appears that the judge below
did not even consider
whether the sentence should run concurrently. Indeed, in his judgment
on sentence no mention is made of the
conviction for unlawful
possession of a firearm. The failure to consider whether the sentence
should run concurrently with that for
murder is a misdirection in
itself. In my view the two sentences should run concurrently.
[20] Accordingly
the appeal is upheld. The sentences imposed by the court below are
replaced with the following:
‘On
count 1 (murder) the accused is sentenced to 12 years’
imprisonment.
On count 2
(unlawful possession of a firearm) the accused is sentenced to five
years imprisonment, which is to run concurrently with
the sentence
imposed on count 1.’
_____________
C H Lewis
Judge of
Appeal
Concur
: Scott JA and Van Heerden JA
1
2003
(1) SACR 13
(SCA).
2
1976
(1) SA 675
(T) at 682H, a decision of a full court.
3
Para
23.
4
Para
21.
5
2003
(1) SACR 331
(SCA).
6
Para
12.
7
See
the provisions of
s 86
of the
Criminal Procedure Act 51 of 1977
,
especially
s 86(2).
8
">
8
Section
51(3)(a) of the Act.
9
2001
(1) SACR 469
(SCA).
10
Section
51(2)(a)(ii) and (iii).