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[2008] ZAWCHC 72
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Raath v S (A82 / 2008) [2008] ZAWCHC 72; 2009 (2) SACR 46 (C) (10 December 2008)
REPORTABLE
Republic of South
Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: A82 / 2008
In
the matter between:
EDWIN
PEDRO RAATH
Appellant
and
THE STATE
Respondent
Counsel
for the Appellant:
Adv. A
Caiger
Instructing
Attorneys:
Heyns &
Partners
Goodwood
Mr.
R Bezuidenhout
Counsel
for the Respondent:
Adv. S
Galloway
Dates
of hearing:
23 July 2008
Date
of judgement:
10 December
2008
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: A82/2008
In
the matter between:
EDWIN
PEDRO RAATH
Appellant
and
THE
STATE
Respondent
JUDGMENT : 10 DECEMBER 2008
BOZALEK,
J
:
[1] On 23 November 2005 the appellant,
then a 42-year old non-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 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 Raath, by shooting her using his firearm.
[2] The accused was legally
represented in 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 sentenced the
appellant to life imprisonment on the count of murder and to three
years 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 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
over-emphasised the deterrent, preventive
and punitive purposes of
sentences and failed to take into account that the applicant had an
inflexible, authoritarian and patriarchal
personality and attitude
towards the role of his wife and family and that these factors had
played an important role in his actions.
Various other factors,
including the appellant’s remorse and his devotion to his
children, are cited as mitigating factors,
all of which are said to
make up the substantial and compelling circumstances which the court
a quo
should
have found.
[4] In sentencing the appellant,
Dlodlo J approached the matter on the basis that, unless substantial
and compelling circumstances
were found to exist, he was obliged to
impose a sentence of life imprisonment for the murder. This approach
accorded with the provisions
of
s 51(1)(a)
of the
Criminal Law
Amendment Act, 105 of 1997
, read with the provisions of Part
of Schedule 2 to such Act which
provides for a minimum sentence of life imprisonment for murder where
such murder was “planned
or premeditated”. This, however,
raises the question of whether the appellant was properly advised,
prior to the commencement
of the trial, that this would be the case
which the State was seeking to make and that he therefore faced the
prospect of life
imprisonment.
[5] As a result of this Court’s
concerns concerning this and other aspects, counsel were formally
requested, prior to the
hearing of the appeal, to address the
following further questions:
“
1. had the
State proved that this was a murder which was ‘planned or
premeditated’ (beplan of met voorbedagte rade gepleeg)
as
referred to in Part
of
Schedule 2 of Act 105 of 1997?
2. was the accused, before the closing
of the State case and/or before being convicted, informed that he ran
the risk of being sentenced
to life imprisonment?;
3. having regard to a certain passage
in the court
a quo
’
s
reasons for sentence, had it approached the question of the effect of
alcohol upon the appellant correctly.”
[6] The issues which must be
considered in this appeal are then, in my view, the following:
1. was the appellant notified that he
ran the risk of being sentenced to life imprisonment in terms of Act
105 of 1997 and, if not,
was such prior notification a requirement in
law?;
2. was the murder ‘planned or
premeditated’ as envisaged by the Act?;
3. did the court
a
quo
err in sentencing the
appellant to life imprisonment on the count of murder?”
BACKGROUND
[7] At the time of the fateful
shooting the appellant and the deceased had been married for some 19
years and were living in Bredasdorp.
There were three children of the
marriage: a daughter then aged 17 years, a son, S, then 16 years old
and another son aged 13 years.
The marriage had become an unhappy one
and it appeared as if divorce was in the offing. From evidence led at
the trial it appeared
that the appellant was prone to violent and
aggressive behaviour towards the deceased and abused alcohol. In
January 2004, just
three months before the shooting, the deceased
obtained a family violence interdict against the appellant. This was
precipitated
by the deceased smashing two TV-sets in the house,
verbally abusing the deceased and threatening to kill her. It appears
that the
children were also dragged into the incidents. Following the
intervention of his commanding officer, the appellant moved out of
the family home and found alternative accommodation. With the
deceased’s apparent approval he moved back into the common
home
after two months but the problems in the marriage continued unabated.
[8] It would seem that the primary
source of tension between the couple was the appellant’s
inflexible and patriarchal view
of the deceased’s role as a
mother and wife and her refusal to conform to this role. The deceased
had taken up employment
working at a bar from early evening to late
at night, something of which the appellant strongly disapproved
particularly since
the family were as a result spending less time
together. For several years the couple’s children had been home
schooled but
the appellant increasingly believed that the deceased
was neglecting her responsibilities in this regard with the result
that the
children’s academic results had sharply declined. A
further aggravating factor appeared to be the couple’s quite
different
personalities. Whereas the appellant was inclined to be
reserved, if not reclusive, the deceased was outgoing and sociable.
She
had joined a particular church and their children were part of
its youth group. The attendance by the deceased and the two children
at a youth group sleep-over and film show appears to have been the
immediate catalyst to the fateful shooting.
[9] On the night in question the
Koekemoer family, which lived almost directly across the road from
the appellant’s home,
screened a film for the church youth
group. Amongst those who attended were the deceased and her two
younger children. The appellant
remained at home alone although he
had gone out drinking earlier in the evening. Approximately half an
hour after midnight, during
a break in the film show, S received a
telephone call from the appellant asking where they were. The
deceased sent him home to
check that the appellant was alright. S
went across with a friend and found the appellant sitting in the
lounge evidently angry
about the situation. The appellant forced S
into a bedroom to open a safe in which the appellant stored his
revolver. S was reluctant
to do so, telling his father that he must
not do anything because there were also children where the deceased
was. He testified
that he suspected that the appellant intended to
shoot the deceased. However the appellant forced S to open the safe
and then grabbed
the revolver. S continued to plead with the
appellant not to do anything to the deceased saying that there were
too many children
with her but the deceased’s only response was
to turn and hit S in the neck with the flat of the revolver. The
appellant
then stormed out of the house brandishing the revolver and
crossed the road to the neighbour’s house.
[10] Apparently sensing impending
trouble and determined to head it off, the deceased had emerged from
the neighbours’ home.
When the appellant saw the deceased he
lifted the revolver and fired a shot at her from a distance of
approximately 6 metres, fatally
wounding her. According to the
post-
portem
report the deceased died as a result
of a respiratory failure caused by the fatal bullet wound, the point
of entry being the posterior
left thorax and the point of exit the
anterior thorax. In other words, the deceased was shot from behind.
This accorded with evidence
that she turned to flee when she saw the
appellant bearing down on her brandishing his revolver.
[11] After the shooting, and until the
police arrived and arrested him, the appellant cradled the deceased
in his arms, tried to
assist her and implored her not to leave them
alone, presumably referring to himself their children.
WAS THE APPELLANT PROPERLY
ADVISED THAT HE FACED A LIFE SENTENCE?
[12] Turning to the question of
whether the appellant was adequately apprised that he faced a
possible life sentence, it must first
be noted that the charge sheet
simply advised the accused that the provisions of s 51 of Act 105 of
1997 were applicable. This
notification in itself was ambiguous,
however, because it did not specify whether the State viewed the
murder as planned or premeditated
or whether it saw this as a murder
“in circumstances other than those referred to in Part
”
,
in which event Part
of
Schedule 2, read with the provisions of s 51(2), provided for a
minimum sentence for a first offender of 15 years imprisonment.
This
ambiguity was not addressed in the summary of substantial facts
furnished to the appellant together with the charge sheet.
Nor can I
find any stage in the record of the proceedings when the appellant
was directly advised of the State’s intention
to prove a
planned or premeditated murder. Significantly, however, the
appellant’s plea explanation in terms of s 115 of
Act 51 of
1977 contains the following statements:
“
3.
Beskuldigde ontken dat hy enige moord beplan het.
4. Beskuldigde
ontken dat hy met voorbedagte rade gehandel het soos bedoel in art 51
van die Strafregwysigingswet, Wet 105 van 1997”
.
[13] In
S
v Legoa
2003 (1) SACR 13
(SCA) in considering whether the increased sentencing jurisdiction
provided for by Act 105 of 1997 could be invoked against an
accused,
the Court dealt with the related question of whether the charge sheet
should include reference to the specific form of
the offence which
triggered the increased sentencing jurisdiction. It noted that under
the new constitutional dispensation the
criterion for a just criminal
trial is “
a concept of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the
Constitution of the
Republic of South Africa, Act 108 of 1996 came into force
”
.
1
Cameron JA went on to say that one of
the specific rights constituting the right to a fair trial is the
right:
“
to
be informed of the charge with sufficient detail to answer it”.
What the ability to ‘answer’ a charge encompasses
in this
case does not require us to determine. But under the constitutional
dispensation it can certainly be no less desirable
than under the
common law that the facts that the State intends to prove to increase
sentencing jurisdiction under the 1997 statute
should be clearly set
out in the charge sheet. The matter is, however, one of substance and
not form, and I would be reluctant
to lay down the general rule that
the charge must in every case 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. A general requirement to this
effect, if applied
with undue formalism, may create intolerable
complexities in the administration of justice and may be
insufficiently heedful of
the practical realities under which charge
sheets are frequently drawn up. The accused might in any event
acquire the requisite
knowledge from particulars furnished to the
charge or, in a superior court, from a summary of substantial facts
the State is obliged
to furnish. Whether the accused’s
substantive fair trial right, including his ability to answer the
charge, has been impaired,
will therefore depend on a vigilant
examination on the relevant circumstances”.
2
In
S
v Ndlovu
2003 (1) SACR 331
(SCA) the Court held that the relevant 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.
[14] In the present matter, in my
view, although not directly advised by the State in either the charge
sheet or the summary of
substantial facts, that it intended to make
out a case that the murder was planned or premeditated, the appellant
must nevertheless
have been fully aware of this. This much appears
not only from the contents of his plea explanation which I have
referred to, but
also from the manner in which the appellant’s
defence was conducted. In the circumstances I am satisfied that the
appellant’s
right to a fair trial was in no way infringed and
that it was open to the court
a
quo
, upon a finding that
the murder was indeed premeditated or planned, to sentence the
appellant to life imprisonment.
WAS THE MURDER PLANNED OR
PREMEDITATED?
[15] The next and central question in
this appeal is whether the murder was in fact planned or
premeditated. In rejecting the accused’s
defence of
non-pathological criminal incapacity, Dlodlo J found that the
appellant had indeed planned to murder the deceased by
shooting her
and that this was why he forcibly struck S with the revolver when the
latter had tried to persuade him to desist from
going across the road
with his revolver in search of the deceased. In further
substantiation of this finding the court
a
quo
referred to the lengths
to which the appellant went to retrieve his firearm from the safe and
S’s evidence that the deceased
had said words to the effect
that the deceased had been looking for trouble and she was to now
going to get it. It was at this
point that the appellant stormed out
of the house across the road and, within seconds, had fatally shot
the deceased.
[16] Planning and premeditation have
long been recognised as aggravating factors in the case of murder.
See
S v Khiba
1993 (2) SACR 1
(A) at 4 and
S
v Malgas
2001 (1) SACR 469
(SCA) at para 34. As Terblanche, Guide to Sentencing in South Africa,
Lexis Nexis, 2
nd
edition 6.2.2 states, planned
criminality is more reprehensible that unplanned, impulsive acts.
However, there must be evidence
that the murder was indeed
premeditated or planned. See e.g.
S
v Makatu
2006 (2) SACR 582
(SCA) at paras 12 – 14. The concept of a planned or
premeditated murder is not statutorily defined. We were not referred
to, and nor was I able to find, any authoritative pronouncement in
our case law concerning this concept. By and large it would
seem that
the question of whether a murder was planned or premeditated has been
dealt with by the court on a casuistic basis.
The
Concise Oxford English Dictionary
,
10
th
edition,
revised, gives the meaning of premeditated as to “
think
out or plan beforehand
”
whilst
“to plan” is given as meaning “
to
decide on, arrange in advance, make
preparations for an anticipated event or time
”
.
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 a murder which may have been conceived and
planned over months or even years before its
execution. In my view
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 a 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”.
[17] In the present matter, although
there is ample evidence of the appellant’s violent behaviour
towards the deceased in
the months preceding the shooting, there is
nothing to suggest that he conceived an intention or plan to shoot or
kill the deceased
before the night in question or, for that matter,
before S entered the house. The trial court found that S’s
evidence offered
the best account of what took place that night. From
his evidence it is clear that the accused was angered by the fact
that his
wife and children were not at home and had not returned home
by the early hours of the morning. When his telephone call to his son
resulted in the latter being sent across by the deceased to see that
there was nothing amiss at home, his anger seems to have turned
into
rage simply because the deceased had sent S to check that all was
well at home. At worst for the appellant it was then that
he
conceived the idea of killing the deceased using his firearm.
Thereafter, for some perverse reason, the appellant forced his
son to
open the safe so that he could retrieve the firearm, violently pushed
him aside and, storming out of the house, crossed
the road and shot
the deceased just as she emerged from the neighbours’ house.
[18] Although there is no direct
evidence as to how much time passed between the appellant’s
eruption into rage in the lounge
and his shooting of the deceased, a
consideration of what actually took place suggests that it was no
more than a matter of a few
minutes. The appellant’s plan, such
as it was, was rudimentary, involving him shooting the deceased
virtually before the
horrified eyes of his neighbours and children.
It is correct that from the moment he appeared to conceive the idea
of shooting
his wife the appellant brooked no opposition and almost
immediately proceeded to carry out the terrible deed. However, this
does
not, in my view, transform what appears to have been the deadly,
but spur of the moment act or acts of a man in an emotional rage,
into a planned and premeditated murder.
[19] It follows from the conclusion
which I have reached that the court
a
quo
erred when it
approached the sentencing of the appellant on the basis that, unless
it found that there were “substantial and
compelling
circumstances” present, it was obliged to sentence him to life
imprisonment. Instead, the court
a
quo
should have approached
sentencing on the basis that the appellant qualified for a minimum
sentence of 15 years unless substantial
and compelling circumstances
existed which justified the imposition of a lesser sentence. The
effect of the court
a quo
having misdirected itself in this
respect is that this court must now determine afresh an appropriate
sentence for the appellant
and
not
on the basis that it is bound, unless
substantial and compelling circumstances are found to exist, to
impose a life sentence.
[20] It must be borne in mind, of
course, that the provisions of Act 105 of 1997 prescribe a minimum
and not a maximum sentence
and it is thus open to the court, in
appropriate circumstances, to sentence the appellant to a more severe
sentence, including
life imprisonment, even though,
prima
facie
, he qualifies for a
lesser
minimum
sentence.
[21] This leads to the ultimate
question, namely, the appropriate sentence for the appellant on the
murder conviction. Before this
can be answered, however, the question
of the role of alcohol in the commission of the crime must be
examined.
THE ROLE OF ALCOHOL
[22] This factor came to prominence
during the sentencing proceedings. The appellant testified that he
had drunk heavily and steadily
through the night in question,
consuming 13 quarts of beer in all. It was his habit to nightly
consume between 7 and 8 such beers.
The neighbours outside whose
house the deceased was shot, Mr and Mrs Koekemoer, both confirmed
that the appellant was heavily under
the influence of alcohol at the
time. According to Mr. Koekemoer the appellant was so drunk that he
had to use the passage wall
to prop himself up. Mrs Koekemoer
described the deceased as “horribaal dronk” and doubted
that he knew what he had
done. S himself expressed the view that his
father had been drunk, a conclusion he drew
inter
alia
from the fact that
deceased had been unsteady on his feet and red in the face.
[23] Against this there was the
evidence of Inspector Van Breda of the South African Police who
arrested the appellant at the scene
of the shooting shortly
afterwards. He concluded that the appellant was under the influence
of alcohol but only for the reason
that there was a strong smell of
alcohol emanating from him. He had seen no other signs of abnormal
behaviour on the part of the
appellant. However, this evidence is
somewhat belied by Insp. Van Breda’s further evidence that the
appellant did not react
to questions which he put to him and his
resisting of arrest which led to the inspector finding it necessary
to handcuff him.
[24] In his reasons for judgment
Dlodlo J found that the appellant had not been influenced by the
alcohol which he consumed. He
based this on his finding that the
accused’s ability to think and conduct himself had not been
affected and that he had committed
the murder in complete disregard
of those who had been present at the time. Dlodlo J fortified his
conclusion with the observation
that had the appellant indeed been
under the influence of alcohol he would have shot the wrong person.
The learned judge, correctly
noting that the consumption of alcohol
in itself is not a mitigating factor, proceeded to find that it could
not so operate in
the present circumstances because of the lack of
any evidence that it had indeed affected the appellant.
[25] All of these findings were
challenged on appeal and, in the light of the evidence, in my view
with justification. Notwithstanding
Insp. Van Breda’s
reservations about the extent to which the appellant was under the
influence of alcohol, there was a substantial
and persuasive body of
evidence that not only had he consumed a considerable amount of
alcohol but that this had affected the appellant
both physically and
psychologically. In my view in the circumstances, there can be little
if any doubt that the alcohol played
a role in impairing his mental
faculties and possibly fuelling the appellant’s anger to such
an extent that he embarked on
the catastrophic series of acts of
first seizing his firearm and then storming across the road to find
and shoot his wife in the
presence of neighbours and many children,
including his own. Even taking into account his rigid and
authoritarian personality and
his resentment and great anger towards
his wife, I find it most unlikely that the appellant would have
performed such an act or
acts unless alcohol had played a substantial
role in diminishing his inhibitions and his capacity for clear and
rational thought.
This conclusion is borne out by actions of the
appellant immediately after the shooting, when he appeared to
disassociate himself
from his earlier action of firing a fatal shot
at his wife. His conduct immediately before and after the shooting
contributes towards
the picture of someone whose brain was addled by
alcohol at the relevant time.
[26] There is ample authority in our
law that intoxication can operate as a mitigating factor where an
accused’s moral blameworthiness
is diminished as a result of
the consumption of liquor. In
S
v Cele
1990 (1) SACR 251
(A) Nestadt JA, in upholding an appeal against sentence
inter
alia
on the grounds that
the trial court had disregarded intoxication as a mitigating factor,
stated as follow:
“
Full
effect had to be given to it (intoxication) and, in particular, to
the fact that the accuseds’ moral blameworthiness
was thereby
diminished. This was in other words not one of those cases where the
accused is simply shown to have consumed some
liquor. The finding
that it diminished the accused’s moral blameworthiness carried
with it the corollary that intoxication
had impaired or affected
their mental faculties or judgment and thereby influenced them in
regard to the crime. This was the approach
to adopt rather than it
had to be shown that ‘their crime was that of somebody who was
so inebriated that he did things that
no sober man would ever do’.
And it should have tempered the inferential finding that the killing
was a deliberate, calculated
and cold-blooded one. The proposition
that blameworthiness for an act of deliberate violence can never be
reduced by the effects
of liquor is plainly too widely stated.”
This
dictum
is of particular relevance to the
present matter and to Dlodlo J’s reasoning.
[27] In
S
v M
1994 (2) SACR 24
(A)
the court was required to consider the role that the influence of
alcohol on the accused had played in its determination of
an
appropriate sentence. Nienaber JA stated as follows:
“
Liquor
can arouse senses and inhibit sensibilities. It is for the State to
discount it as a mitigating factor, to show that it did
not
materially affect the appellant’s behaviour.”
3
He went on to state
4
:
“
The
case is on the borderline. But in the end one cannot ignore the
possibility that the liquor the appellant had consumed during
the
day, combined with his immaturity, impaired his faculties and
loosened his grip on events. He undoubtedly had the volition
to act.
He knew what he was about. But he was less in command of himself than
he would have been if he had not been drinking and
in the final
analysis one cannot confidently say that it did not contribute to the
unfolding of the events ending in the death
of the deceased.”
[28] In the present case there is a
considerable body of evidence that, as a result of the very
substantial quantity of alcohol
consumed by the appellant on the
night in question, his faculties were substantially impaired and thus
his moral blameworthiness
was diminished. In my view, therefore, the
learned judge erred in finding that the appellant’s consumption
of alcohol played
no role and was therefore not a mitigating factor.
[29] Apart from this aspect there were
in my view other strong mitigating factors. At the age of 42 years
the accused was a first
offender. He had hitherto been a useful and
productive member of society holding down a responsible job and
supporting his family
and three children. Although the appellant
pleaded not guilty, and in so doing compelled his son to give painful
evidence in the
trial, he expressed remorse for killing his wife
virtually from the outset. From a prison cell, within days of the
shooting, he
wrote a long letter to his children begging their
forgiveness and acknowledging his wrongdoing to them. Although at
times the tone
of letter is self-pitying, there can be no doubt that
the appellant was remorseful of his actions, particularly insofar as
they
had devastated the lives of his children.
[30] A further important factor was
the psychiatric evidence suggesting that the appellant was a prisoner
of his own inflexible
and authoritarian personality. The State
psychiatrists who examined the appellant prior to the commencement of
the trial commented
in their report that the accused had abused
alcohol for many years. The State psychologist described him as being
a rather “rigid
and perfectionist individual…” who
“in the home situation was somewhat inflexible and
authoritarian”.
He similarly described the appellant as holding
patriarchal views regarding his and his wife’s relative roles,
with her place
being that of mother and housewife. Appellant’s
own psychiatrist, Dr. Teggin, described him as being “an
especially
obsessive and particular person” who was “a
very methodical, very rigid individual, very family orientated with
his
own rigid moral ethics”.
[31] Dlodlo J, whilst recognising that
the appellant was not a danger to society, considered that the
aggravating factors completely
outweighed the mitigating factors. The
aggravating factors are not difficult to find. With little or no
justification, and certainly
no provocation, the deceased
cold-bloodedly shot dead his wife in the presence of neighbours and
his own children. This was not
completely aberrant behaviour by the
appellant either. There had been a history of the appellant behaving
violently and aggressively
towards the deceased so much so that she
had recently taken a family violence interdict against him. Dlodlo J
correctly noted,
that in such instances, the courts must impose
sentences which operate to offer protection to women against men who
believe that
they have the right to control their partner.
[32] Having regard to the purposes of
punishment and the seriousness of the crime there can be no doubt
that the only appropriate
punishment for the appellant is a sentence
of long-term imprisonment. In my view, however, when all the
aggravating and mitigating
factors are taken into account, and
bearing in mind that every sentence must be blended with a measure of
mercy, a sentence of
life imprisonment is inappropriate. The
appellant spent some 22 months in prison awaiting trial and, as I
have noted, was 42 years
old at the time of sentencing. He will live
forever more knowing that he deprived his children of their mother.
In my view an appropriate
sentence which will properly serve the
retributive, deterrent and rehabilitative purposes of sentencing,
would be one of twenty-two
(22) years imprisonment.
[33] I would therefore uphold the
appeal against sentence and replace the sentence of life imprisonment
on the count of murder with
one of twenty-two (22) years imprisonment
in terms of
s 276(1)(b)
of the
Criminal Procedure Act, 51 of 1977
.
The balance of the sentence imposed by the court
a
quo
remains intact.
_________________
LJ BOZALEK, J
LOUW J:
I agree, and it is so ordered.
_________________
WJ LOUW, J
GOLIATH J:
I agree.
_________________
PL GOLIATH, J
1
S
v Zuma and Others
[1995] ZACC 1
;
1995
(1) SACR 568
CC
[1995] ZACC 1
;
(1995 (2) SA 642
CC)
2
At
page 923a - e
3
At
page 29g
4
At
page 30b - d