Provocation was treated in two recent cases:
- S v TAUNYANE 2018 (1) SACR 163 (GJ)
Murder — Sentence — Life imprisonment — When to be imposed — Planned or premeditated murder — What constitutes — Period of time between accused forming intention to murder and carrying out murder not always decisive.
The appellant was charged in the High Court with murder read with s 51(1) of the Criminal Law Amendment Act 105 of 1997. The summary of substantial facts provided by the state gave no indication as to which portion of part 1 of sch 2 it relied on and the court convicted him of ‘murder read with s 51(1) of Act 105 of 1997′. It was only at judgment on sentence that it became clear that it was the aspect of planning and premeditation that was applicable — the trial court found that there had been such planning or premeditation and sentenced the appellant to life imprisonment.
In the present appeal against the conviction and sentence, the court held that the court a quo had erred in setting out a conviction of a planned or premeditated murder (in its judgment on sentence) when it had not dealt with this issue in the judgment on conviction. As to the finding of planning or premeditation, the court held that the period of time which might elapse between a perpetrator forming an intention to commit the murder, and carrying out such murder, was of importance but did not always provide the answer to the question whether the murder had been planned or premeditated.
The evidence indicated that the appellant’s wife had entered a relationship with the deceased whilst the appellant was imprisoned. On the day of the murder, Father’s Day, the appellant had gone to visit his children, armed with a loaded firearm. There was, however, no evidence indicating that he had planned to use the firearm that day, but rather that he regularly carried it. When the appellant arrived at his wife’s home he found the deceased there and started insulting him and showed him that he was armed. A neighbour intervened in the argument that ensued and led the appellant away, but he later turned around and shot at the deceased (missing him). When the deceased attempted to flee, the appellant followed him and shot him at least four more times.
The court held that, although his behaviour was provocative towards the deceased, it could not be found that there had been a deliberate course of action which was so planned as to increase the likelihood of success or enable evasion of arrest thereafter.
The appeal against the conviction of murder as contemplated in s 51(1) of Act 105 of 1997 accordingly had to be upheld and the conviction changed to one of a finding of murder with dolus directus, and the finding that the murder was premeditated set aside. In the circumstances, the sentence of life imprisonment was set aside and replaced with a sentence of 18 years’ imprisonment.
2. S v KORDOM 2018 (1) SACR 173 (NCK)
Murder — Sentence — Factors to be taken into account — Provocation — What constitutes — Period between provocative act and commission of offence — Clear that short period between two actions — Provocation present.
The appellant, a 36-year-old widower with no previous convictions for offences involving violence, was convicted in a regional magistrates’ court on his plea of guilty to murder, in that he had stabbed the deceased who had a short while earlier stabbed his father in the face with a broken bottle. The fatal stab wound was in the deceased’s neck. It appeared that the appellant had, after the deceased’s attack on his father in their home, fetched a knife and followed the deceased into the street where he inflicted the fatal wound.
The magistrate found that provocation played no part in the appellant’s attack, holding that he had had sufficient time and opportunity to come to his senses after the attack on his father and had consciously chosen to take the law into his own hands. He further held that there were no substantial and compelling circumstances which justified a lesser sentence than the prescribed sentence of 15 years’ imprisonment, and accordingly sentenced the appellant to that term of imprisonment. On appeal against the sentence,
Held, that it was clear that there could not have been a considerable period of time between the attack on the appellant’s father and his attack on the deceased, and the circumstances under which the appellant had stabbed the deceased could by no stretch of the imagination be described as peaceful. There was accordingly no factual basis for a finding that the appellant had consciously chosen to take the law into his own hands, rather than laying a charge against the deceased, and the magistrate’s finding that provocation had not played a role was incorrect.
Held, further, that in the circumstances a sentence of 12 years’ imprisonment would be appropriate.