S v Saban en 'n Ander (438/90, 7/91) [1991] ZASCA 158 (25 November 1991)

S v Saban en 'n Ander (438/90, 7/91) [1991] ZASCA 158 (25 November 1991)

The court found that the trial court erred by focusing solely on the honesty of the single witness without adequately considering the reliability of her observations under the prevailing conditions. The evidence did not exclude the reasonable possibility that the deceased may have grabbed for the firearm, resulting in the fatal shot being fired in circumstances short of direct intent to kill. The court held that the requisite intent for murder was present, but not of the degree warranting the death penalty. The death sentence was set aside and replaced with a term of imprisonment. Condonation for late filing was granted to the first appellant due to the absence of prejudice and the...

Citation
[1991] ZASCA 158
Parties
Appellant: Mogamat Saban; Appellant: Mark Attwood; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 1991
Case Number
438/90, 7/91
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
First appellant's appeal against the death sentence succeeds; death sentence set aside and replaced with imprisonment. Second appellant's application for condonation is refused.
Judges
Nestadt, Goldstone, Krieger
Legal Topics
Murder, Sentencing, Condonation, Single Witness Evidence, Intent, Death Penalty
Criminal Law Murder Sentencing Condonation Single Witness Evidence Intent Death Penalty

Case Brief

Summary, issues, holding and outcome

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Parties

Mogamat Saban

Appellant

Mark Attwood

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the conviction of the first appellant for murder was justified beyond reasonable doubt.
  2. 2 Whether the death sentence imposed on the first appellant was appropriate under the circumstances.
  3. 3 Whether condonation for late filing of appeal should be granted to both appellants.

Ratio Decidendi

The court found that the trial court erred by focusing solely on the honesty of the single witness without adequately considering the reliability of her observations under the prevailing conditions. The evidence did not exclude the reasonable possibility that the deceased may have grabbed for the firearm, resulting in the fatal shot being fired in circumstances short of direct intent to kill. The court held that the requisite intent for murder was present, but not of the degree warranting the death penalty. The death sentence was set aside and replaced with a term of imprisonment. Condonation for late filing was granted to the first appellant due to the absence of prejudice and the...

Court Disposition

First appellant's appeal against the death sentence succeeds; death sentence set aside and replaced with imprisonment. Second appellant's application for condonation is refused.

Orders

  • The death sentence imposed on the first appellant is set aside and replaced with a sentence of 20 years' imprisonment, 14 years of which are to run concurrently with sentences on counts 2 and 3.
  • Second appellant's application for condonation is refused.