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1997
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[1997] ZASCA 90
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S v Masela (239/94) [1997] ZASCA 90 (6 November 1997)
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case number 239/94(WLD)
In the matter between:
MARVYN MOKGATLE MASELA
Appellant
and
The State
Respondent
Court:
Van Heerden DCJ, Nienaber and Howie JJA
Heard:
6 November 1997
Delivered:
6 November 1997
JUDGMENT
2
VAN HEERDEN DCJ:
The appellant, as accused no 3, was convicted in the
Witwatersrand
Local Division on a count of murder ( count 6) and three other counts.
On the murder count he was sentenced to death. In terms of s 316 A(1)
of the
Criminal Procedure Act 51 of 1977
the appellant then appealed
I
to this court against his conviction and sentence on the murder count, but
before us his counsel rightly conceded that the conviction is unassailable.
!
The death sentence was imposed before the enactment of the
Constitution of the Republic of South Africa Act 200 of 1993 but by
virtue of the decision of the Constitutional Court in
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) that sentence must be set aside. It was common cause that the matter should be remitted to the court a
quo
for the
imposition of another sentence and it appears to me that this is a proper
case for such a remittal.
The following orders are made.
1)
The appeal against the conviction on the murder count is
dismissed.
2)
The appeal against the death sentence is allowed and that
sentence is set aside.
3)
The matter is remitted to the court a
quo
in order that a
fresh and competent sentence be imposed on the murder
count.
VAN HEERDEN DCJ
Concur
Nienaber JA
Howie JA