Makier v S (A559/2010) [2011] ZAWCHC 170 (11 March 2011)

Makier v S (A559/2010) [2011] ZAWCHC 170 (11 March 2011)

The court found that while the circumstantial evidence established the appellant's guilt for both housebreaking with intent to murder and murder, it did not prove beyond reasonable doubt that the murder was premeditated as required by the minimum sentencing legislation. The evidence did not support the conclusion that the appellant planned the killing in advance. The prescribed sentence of life imprisonment was therefore not mandatory. Considering the appellant's personal circumstances, emotional instability, and time already spent in custody, the court held that a sentence of 25 years' imprisonment was appropriate and proportionate to the gravity of the offences.

Citation
[2011] ZAWCHC 170
Parties
Appellant: Nicholaas Makier; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 March 2011
Case Number
A559/2010
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction dismissed; appeal against sentence upheld; sentence of life imprisonment set aside and replaced with 25 years' imprisonment.
Judges
Louw, Fortuin
Legal Topics
Murder, Housebreaking With Intent, Premeditation, Minimum Sentencing, Circumstantial Evidence
Criminal Law Murder Housebreaking With Intent Premeditation Minimum Sentencing Circumstantial Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Nicholaas Makier

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant's conviction for housebreaking with intent to murder and murder was correct.
  2. 2 Whether the murder was premeditated as contemplated by the minimum sentencing legislation.
  3. 3 Whether the sentence of life imprisonment was appropriate in the circumstances.

Ratio Decidendi

The court found that while the circumstantial evidence established the appellant's guilt for both housebreaking with intent to murder and murder, it did not prove beyond reasonable doubt that the murder was premeditated as required by the minimum sentencing legislation. The evidence did not support the conclusion that the appellant planned the killing in advance. The prescribed sentence of life imprisonment was therefore not mandatory. Considering the appellant's personal circumstances, emotional instability, and time already spent in custody, the court held that a sentence of 25 years' imprisonment was appropriate and proportionate to the gravity of the offences.

Court Disposition

Appeal against conviction dismissed; appeal against sentence upheld; sentence of life imprisonment set aside and replaced with 25 years' imprisonment.

Orders

  • The appeal against conviction on count 1 (housebreaking with intent to murder) and count 2 (murder) is dismissed.
  • The appeal against sentence succeeds; the sentence of life imprisonment is set aside and replaced with a sentence of 25 years' imprisonment on counts 1 and 2, taken together for purposes of sentence.