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South Africa Judgment

Supreme Court of Appeal

S v Masela (239/94) [1997] ZASCA 90 (6 November 1997)

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Source document

01

Holding and result

The conviction for murder is unassailable and stands. However, the death sentence, imposed before the Constitution, must be set aside in light of the Constitutional Court's decision in S v Makwanyane, which declared the death penalty unconstitutional. The proper course is to remit the matter to the trial court for imposition of a fresh and competent sentence on the murder count.

Court disposition

Appeal against conviction dismissed; appeal against death sentence allowed; death sentence set aside; matter remitted for fresh sentence.

Orders

  • The appeal against the conviction on the murder count is dismissed.
  • The appeal against the death sentence is allowed and that sentence is set aside.
  • The matter is remitted to the court a quo for imposition of a fresh and competent sentence on the murder count.

02

Material facts

Parties

Masela

Appellant

State

Respondent

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal Against Conviction and Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant's counsel conceded that the conviction for murder is unassailable. The main argument concerned the validity of the death sentence in light of the Constitutional Court's decision in S v Makwanyane, which abolished the death penalty. The appellant sought the setting aside of the death sentence and remittal for a competent sentence.
Respondent
The State accepted that, following S v Makwanyane, the death sentence could not stand and agreed that the matter should be remitted to the trial court for imposition of a fresh sentence. The State did not contest the conviction.

05

Court’s reasoning

  1. 01

    S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC)

    A death sentence imposed prior to the Constitution must be set aside following the abolition of the death penalty by the Constitutional Court.

  2. 02

    Criminal Procedure Act 51 of 1977, s 316A(1)

    Where a sentence is set aside due to constitutional invalidity, the matter should be remitted to the trial court for imposition of a competent sentence.

06

Ratio, limits and disposition

Ratio decidendi

The conviction for murder is unassailable and stands. However, the death sentence, imposed before the Constitution, must be set aside in light of the Constitutional Court's decision in S v Makwanyane, which declared the death penalty unconstitutional. The proper course is to remit the matter to the trial court for imposition of a fresh and competent sentence on the murder count.

Obiter and limits

  • The parties were in agreement that the death sentence could not stand after S v Makwanyane.
  • This case illustrates the retrospective effect of constitutional rights on sentences imposed prior to the Constitution.

Court disposition

Appeal against conviction dismissed; appeal against death sentence allowed; death sentence set aside; matter remitted for fresh sentence.

  • The appeal against the conviction on the murder count is dismissed.
  • The appeal against the death sentence is allowed and that sentence is set aside.
  • The matter is remitted to the court a quo for imposition of a fresh and competent sentence on the murder count.

Source and reliance status

Supreme Court of Appeal

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Judgment text

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Source document

Supreme Court of Appeal

Judgment

[1997] ZASCA 90

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

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC)

Case cited

Constitution of the Republic of South Africa Act 200 of 1993

Legislation

Legislation referenced in the available case record.

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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