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The consequence of the application of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) is of crucial importance to legal practitioners, more particularly those who practice criminal law. When an accused has been charged with murder, there are serious implications should the accused be found guilty, most importantly they could face life imprisonment. As the legal representative of an accused, one has to be aware of the elements of murder, whether it is planned or premeditated. This article discusses the difference between planned and premeditated murder and the consequences thereof. The focus of the article will be on various case law and the application of the Act.
The Act provides for mandatory minimum sentences. Section 51 deals with the discretionary minimum sentences for certain serious offences. For this article, I will focus on sch 2 Part I (a) namely, murder when planned or premeditated. The section provides:
‘(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life’.
In the case of Kekana v S (SCA) (unreported case no 629/13, 1-10-2014) (Mathopo AJA (Lewis JA and Gorven AJA concurring)), the accused pleaded guilty to locking his wife in the bedroom and setting the bed on fire. His wife died a few days later in hospital. The question was whether the accused acted on the spur of the moment or whether the murder was premeditated or planned.
As stated in s 51 above, should a court find that the murder committed was planned or premeditated, the accused will be sentenced to life imprisonment. However, should the court find that the murder was not premeditated or planned, the accused will be sentenced to –
The court in the case of Kekana found that the murder was premeditated. The court based its findings on the following surrounding circumstances set out in paras 6, 7 and 8 of the judgment:
The court further held that the accused’s action of locking the door and the further act of pouring petrol showed that he carefully implemented a plan from preventing the deceased from escaping and made sure she died in the fire. This – the court held – on its own was enough proof of premeditation.
To see how the court arrived at its decision in the Kekana case, it is important for one to unpack the meaning of planned and premeditated and to look at the way South African courts have interpreted same.
The terms ‘planned’, or ‘premeditated’ murder is not defined in the Act. The legislature has left it to the judiciary to define or interpret the concept. The court in the case of S v Raath 2009 (2) SACR 46 (C) relied on the Concise Oxford English Dictionary for the meaning of the concept planned and premeditated and explained as follows at para 16C:
‘The concept of a planned or premeditated murder is not statutorily defined. We were not referred to, and nor was I able to find, any authoritative pronouncement in our case law concerning this concept. By and large it would seem that the question of whether a murder was planned or premeditated has been dealt with by the court on a casuistic basis. The Concise Oxford English Dictionary 10 ed, revised, gives the meaning of premeditated as “to think out or plan beforehand” whilst “to plan” is given as meaning “to decide on, arrange in advance, make preparations for an anticipated event or time”’.
In the case of S v PM 2014 (2) SACR 481 (GP) at paras 35-36, the court defined the term planned and premeditated murder as two different concepts, which do not have the same meaning, however, it has the same consequences. The court defined premeditated as ‘something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension’. Whereas, planned has been described as ‘a scheme, design or method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal’.
The meaning of ‘plan’ from Dictionary.com is defined as ‘a scheme or method of acting, doing, proceeding, making, etc., developed in advance’ (www.dictionary.com, accessed 6-5-2021).
The meaning of ‘premeditated’ from Vocabulary.com is ‘something … planned in advance and has a purpose behind it … it’s no accident’ (www.vocabulary.com, accessed 6-5-2021).
What is clear from all the definitions of ‘plan’ and ‘premeditated’ above is that there is a thought process involved with both concepts. Both require a person to have thought about the act to be done. The act done is then not by accident or mistake but deliberate.
What then is the difference between planned and premeditated? Is there even a difference? Finding that the murder was planned requires that there must have been a plan, design, or scheme in place. The accused must have thought about the murder days in advance, the planning must have been done in order to ensure that the act of murder is successful. The court in PM states the elements of ‘planned’ as follows at para 36:
‘(1) The identification of the goal to be achieved;
(2) the allocation of time to be spent;
(3) the establishment of relationships necessary to execute;
(4) the formulation of strategies to achieve the goal;
(5) arrangement or creation of the means or resources required to achieve the goal; and
(6) directing, implementing and monitoring the process.
It subsequently appears that establishing whether the murder was planned should not be problematic. However, finding that the murder was premeditated can be quite problematic. For premeditated murder it has to be established that an accused can premeditate the murder within minutes. In the case of Kekana in paras 12 to 13, the court dismisses the idea given in the case of Raath that in proving premeditation, the state must lead evidence to establish the period of time between the accused forming the intent to murder and the carrying out of his intention. The court held that it is not necessary for the appellant who is the accused, to have thought or planned their action over a long period of time in advance, before carrying out their plan. The court further, held that time is not the only consideration, because even a few minutes is enough to carry out a premeditated action.
It is, therefore, clear that a defence legal practitioner cannot raise the argument that the murder was committed as a spur of the moment act purely based on the time period between the forming of the intention to kill and the act of killing, because time on its own cannot provide a ready-made answer to the question of whether the murder was premeditated or not. Surrounding circumstances, such as the accused’s state of mind are, therefore, also of importance to establish whether there was premeditation or not. The test to determine premeditation is therefore an objective test.
From the above definitions, it is clear that there is a difference between the two concepts of planned and premeditation. What can be concluded from the above definitions and explanations from case law is that where the murder was planned it was also premeditated. Once you plan the murder, having a thought-out mission, it is automatically presumed that you have premeditated the commission of the act.
Pre-planned and premeditated murder should, however, not be confused with the intention to kill. The three types of intention being, direct intention, indirect intention and dolus eventualis should not be confused with premeditation or planned murder. The term premeditation or planned does not introduce a new kind of intention. It merely focuses on the surrounding circumstances around the act of killing. All cases of planned or premeditated murder will, therefore, involve one of the intentions. However, it is important to note that the mere fact that an accused formed an intention to kill someone beforehand does not automatically mean that the murder is premeditated or planned. South African law does not require that there be a trigger point, which provokes the killing in the heat of the moment. Therefore, it can be that the murder was an act committed in the heat of the moment. It is also important to note that the test of determining intention is subjective, whereas the test of determining premeditation and/or pre-planning is objective.
It must be borne in mind that the finding of premeditation or planned murder does not rely on whether there was an intention to kill. First, the court has to find that there was an intention to kill. Then the court must look at the evidence to determine (based on the surrounding circumstances) whether there is premeditation or planning. As correctly stated in S v Taunyane 2018 (1) SACR 163 (GJ) the court held as follows:
‘In deciding whether or not [the] appellant killed the deceased in circumstances where such killing was planned or premeditated, the test is not whether there was an intention to kill. That had already been dealt with in finding that the killing was an act of murder. The question now is whether or not [the] appellant “weighed-up” his proposed conduct either on a thought-out basis or an arranged-in-advance basis’.
For a court to find that the murder committed was planned or premeditated the usual standard of proof beyond reasonable doubt must be applied. The issue of planned or premeditated must be decided at conviction stage based on the evidence before the court. The prosecution must lead evidence that discloses that the murder was planned or premeditated, and the defence must rebut the evidence so given and show that other possible inferences can be drawn from the evidence that is not suggestive of premeditation or preplanning.
From the above analysis of the definitions of premeditation and planned, it becomes clear that when faced with a murder case one must think beyond the intention. Gather enough information from the client regarding the circumstances that led to the act. Bear in mind that intention is subjective and intent to kill alone cannot automatically be premeditated or planned. The sentence for a premeditated and/or planned murder far outweighs the sentence of murder without premeditation or pre-planning as far as severity is concerned.
Palesa Judith Mokose LLB (NWU) is a legal practitioner at Mokose Attorneys in Carletonville.
This article was first published in De Rebus in 2021 (June) DR 10.
