S v Kruger en 'n Ander (51/1983) [1984] ZASCA 75 (31 May 1984)

S v Kruger en 'n Ander (51/1983) [1984] ZASCA 75 (31 May 1984)

The court found that the killing of the deceased was not carried out in good faith for the purposes of combating terrorism, but rather to conceal the theft of the Toyota vehicle. The Defence Act section 103 ter did not apply, as the act was not performed in furtherance of military objectives but to avoid detection of a crime. The orders given to kill the deceased were manifestly unlawful, and both appellants were aware of the unlawfulness of their actions. The court accepted that Kruger was influenced by his superior, Breytenbach, but found that this did not absolve him of criminal responsibility. The sentences imposed were reconsidered, with Kruger's sentence reduced due to mitigating...

Citation
[1984] ZASCA 75
Parties
Appellant: T.E. Kruger; Appellant: D. Van den Heever; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 1984
Case Number
51/1983
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
The appeal of the second appellant (Van den Heever) is dismissed. The appeal of the first appellant (Kruger) succeeds to the extent that his sentence is reduced.
Judges
Van Heerden, Rabie, Hefer
Legal Topics
Murder, Defence Act Section 103 Ter, Command Responsibility, Mitigating Circumstances
Criminal Law Murder Defence Act Section 103 Ter Command Responsibility Mitigating Circumstances

Case Brief

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Parties

T.E. Kruger

Appellant

D. Van den Heever

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants were correctly convicted of murder.
  2. 2 Whether the Defence Act section 103 ter provides a defence to the appellants.
  3. 3 Whether the sentences imposed were appropriate given the circumstances.

Ratio Decidendi

The court found that the killing of the deceased was not carried out in good faith for the purposes of combating terrorism, but rather to conceal the theft of the Toyota vehicle. The Defence Act section 103 ter did not apply, as the act was not performed in furtherance of military objectives but to avoid detection of a crime. The orders given to kill the deceased were manifestly unlawful, and both appellants were aware of the unlawfulness of their actions. The court accepted that Kruger was influenced by his superior, Breytenbach, but found that this did not absolve him of criminal responsibility. The sentences imposed were reconsidered, with Kruger's sentence reduced due to mitigating...

Court Disposition

The appeal of the second appellant (Van den Heever) is dismissed. The appeal of the first appellant (Kruger) succeeds to the extent that his sentence is reduced.

Orders

  • The conviction of both appellants for murder is confirmed.
  • The sentence of the first appellant (Kruger) is set aside and replaced with 12 years' imprisonment.