THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 245/05
Reportable
In the matter between

JOSHUA MAKATU

Appellant

and

THE STATE

Respondent

Coram:
SCOTT, LEWIS, VAN HEERDEN JJA

Heard:
12 May 2006
Delivered:  30 May 2006

Summary: Appellant indicted and convicted for murder subject to s 51(2) of
the Criminal Law Amendment Act 105 of 1997, but sentenced to life
imprisonment subject to s 51(1) of that Act.  Sentence set aside. Finding that
murder was premeditated not supported by evidence.  Sentence reduced to
12 years’ imprisonment.

Neutral citation: This case may be cited as Makatu v State [2006] SCA 70
(RSA)

JUDGMENT

LEWIS JA

[1] The appellant was indicted in the Venda High Court on three charges:
murder, subject to the provisions of s 51(2) of the Criminal Law Amendment
Act 105 of 1997 (‘the Act’); theft of a firearm; and possession of a firearm in
contravention of the Arms and Ammunition Act 75 of 1969. The charge of theft
was withdrawn at the commencement of the trial. The appellant pleaded guilty
to the other two charges. He was convicted by Hetisani J on both counts, and
sentenced to five years’ imprisonment on the charge of unlawful possession
of a firearm, and life imprisonment in terms of s 51(1) of the Act on the charge
of murder. The appeal, which lies with the leave of this court, is against
sentence alone.

[2] Section 51(1), read with Part I of Schedule 2 of the Act, requires the
imposition of a minimum sentence of life imprisonment for murder when (inter
alia) it is planned or premeditated. Section 51(2), read with Part II of Schedule
2, of the Act requires the imposition of a minimum sentence of 15 years’
imprisonment for murder in other circumstances. Hetisani J, although
convicting the appellant on a charge governed by s 51(2), imposed a
sentence of life imprisonment in terms of s 51(1), having come to the
conclusion after hearing evidence relating to sentence that the murder was
premeditated.

[3] The appellant argues that the imposition of a sentence in terms of
s 51(1), when the indictment refers to s 51(2), is a blatant misdirection. Even if
the murder had indeed been premeditated – a question to which I shall turn –
an accused has the right to know at the outset what charge he has to meet.

The State properly conceded this point. Since the enactment of the Act this
court has held that it is incumbent on the State to specify the case to be met
in such a way that an accused appreciates properly not only what the charges
are but also the consequences.

[4] In S v Legoa1 Cameron JA approved the principle set out in S v
Seleke2 that:
‘To ensure a fair trial it is advisable and desirable, highly desirable in the case of an
undefended accused, that the charge-sheet should refer to the penalty provision. In this way it
is ensured that the accused is informed at the outset of the trial, not only of the charge against
him, but also of the State’s intention at conviction and after compliance with specified
requirements to ask that the minimum sentence in question at least be imposed.’ (The
translation is that of Cameron JA in Legoa.3)
The court nonetheless held in Legoa that there is no general rule that the
indictment must ‘recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State intends to prove to
establish it’. The essential question to be asked is whether the accused’s
‘substantive fair trial right, including his ability to answer the charge, has been
impaired’.4 The court held that the substantive fair trial right of the appellant
had been infringed. The offence charged was dealing in dagga. The charge-
sheet did not specify the value, but the trial court had convicted the appellant
and sentenced him under s 51(2)(a)(i) of the Act, read with Part II of Schedule
2,  to 15 years’ imprisonment (a minimum sentence) because the value of the
dagga exceeded R50 000. The appellant had pleaded guilty before knowing

1 2003 (1) SACR 13 (SCA).
2 1976 (1) SA 675 (T) at 682H, a decision of a full court.
3 Para 23.
4 Para 21.

that the minimum sentence provisions would be invoked: indeed the charge-
sheet had referred to the penalties applicable under the Drugs and Drug
Trafficking Act 140 of 1992. The appellant had thus been misled. The
minimum sentence was accordingly set aside.

[5] Following Legoa this court in S v Ndlovu5  held that the relevant
sentence provisions of the Act must be brought to the attention of an accused
in such a way that the charge can be properly met before conviction. Mpati
JA6 said, after referring to Legoa):
‘The enquiry, therefore, is whether, on a vigilant examination of the relevant circumstances, it
can be said that an accused had had a fair trial. And I think it is implicit in these observations
that where the State intends to rely upon the sentencing regime created by the Act a fair trial
will generally demand that its intention pertinently be brought to the attention of the accused
at the outset of the trial, if not on the charge-sheet then in some other form, so that the
accused is placed in a position to appreciate properly in good time the charge that he faces
as well as its possible consequences. Whether, or in what circumstances, it might suffice if it
is brought to the attention of the accused only during the course of the trial is not necessary to
decide in the present case. It is sufficient to say that what will at least be required is that the
accused be given sufficient notice of the State’s intention to enable him to conduct his
defence properly.’
The court set aside the minimum sentence imposed for the unlawful
possession of a firearm since the appellant had not been pertinently warned
that the minimum sentence might be imposed, rendering the trial, in that
respect, substantially unfair.

5 2003 (1) SACR 331 (SCA).
6 Para 12.

[6] The appellant in this matter was charged with murder that on
conviction, would render him liable to a sentence of 15 years’ imprisonment in
terms of the Act. He was convicted on that charge. He was then sentenced on
the basis that he had been charged with and convicted of what amounted to a
different offence – premeditated murder that, under s 51(1) of the Act, renders
an accused liable to imprisonment for life.  The imposition of that sentence is
an obvious and grave misdirection. It must be set aside and this court is
required to consider the appropriate sentence.

[7] As a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder, it should state
this in the indictment. This rule is clearly neither absolute nor inflexible.
However, an accused faced with life imprisonment – the most serious
sentence that can be imposed – must from the outset know what the
implications and consequences of the charge are. Such knowledge inevitably
dictates decisions made by an accused, such as whether to conduct his or her
own defence; whether to apply for legal aid; whether to testify; what witnesses
to call and any other factor that may affect his or her right to a fair trial.  If
during the course of a trial the State wishes to amend the indictment it may
apply to do so, subject to the usual rules in relation to prejudice.7

[8] I turn now to the evidence led by the appellant in mitigation of
sentence, and which prompted Hetisani J to decide that he was obliged to
impose a sentence of life imprisonment in terms of s 51(1) of the Act.  The
appellant pleaded guilty to murdering his wife at Siloam Location, in the

7 See the provisions of s 86 of the Criminal Procedure Act 51 of 1977, especially s 86(2).

district of Dzanani, on 22 April 2003. The post-mortem report, admitted with
his consent, showed seven gun shot wounds on her chest and neck, the
cause of death being gun shot wounds that lacerated her large cardiac blood
vessels. It is not clear whether the seven wounds were all entry wounds.

[9] The appellant testified that he had been a soldier in the South African
National Defence Force for 18 years prior to the incident. He and the
deceased had married in November 1997. They had one child together, but
had lived also with the deceased’s child from a previous relationship, and the
appellant’s two children, also from a previous relationship. At the time of the
murder the appellant and the deceased were separated. Their relationship
had soured, according to the appellant, because the deceased had
maintained contact with the father of her child without his knowledge; had
taken money from the appellant’s bank account with no acceptable
explanation; had not used money he had given her for various purposes for
those purposes and had had extra-marital affairs but had refused to sleep with
him.

[10] Two days before the murder, the appellant’s and the deceased’s
families had met in an apparent attempt to effect a reconciliation. The
deceased had not been amenable and had refused to let a family
representative speak for her. She said she was not willing to live with the
appellant any longer. On 22 April he had decided to go to her office to tell her
that he had a firearm belonging to her brother, Mr Khamusi Mulaudzi.
Mulaudzi, the appellant testified, had given the firearm to him for safekeeping
when he was drunk and not in a position to be safely in possession of a

weapon. The appellant had the firearm in his possession when he went to the
deceased’s office.

[11] It subsequently transpired that the weapon had in fact been owned by
Mr Khathutshelo Ramantswana, who gave evidence for the State in
aggravation of sentence. Ramantswana maintained that the appellant had
stolen the firearm from him on 19 April. At the time he was drunk and had
fallen asleep in a taxi while in the company of the appellant and Mulaudzi.
Indeed, when Ramantswana had gone to a police station to report that his
firearm had been stolen he was so drunk that the police would not take a
statement from him. Mulaudzi, who also testified in aggravation of sentence,
denied that he had given the weapon to the appellant.

[12] When the appellant went into the deceased’s office she immediately
told him that she was not interested in him and that he should move out of the
house that he was busy renovating for them. This triggered bad memories of
what she had done and said in the past.  ‘It was then at that spur of the
moment I felt hurt and started shooting at her’. After firing shots at her the
appellant had turned the gun on himself, apparently shooting himself through
the chin, the bullet exiting through his forehead. I shall revert to his testimony
about the injuries inflicted to himself.

[13] Hetisani J did not accept the evidence of the appellant that he had
gone to see the deceased to tell her that he had her brother’s firearm. He
inferred from the fact that the appellant had obtained a firearm shortly before
he had killed his wife, and had used that rather than his service weapon, that

he had planned her murder before going to her office. The inference could be
drawn also, said the judge, from the fact that the deceased appeared intent on
divorcing the appellant and he feared loss of her share of the joint estate.  He
was, it was suggested, motivated by greed.

[14] There are other inferences to be drawn, however, and the evidence
does not support a finding that the appellant had taken the firearm with the
intention of shooting his wife, nor that he was motivated by the fear of losing
her share in the joint estate. It cannot be said that the State established that
his version was not reasonably possibly true. Indeed, the State did not even
attempt to do so. The evidence of Mulaudzi and Ramantswana was led after
conviction and only in aggravation of sentence. Of course if the murder had
been premeditated by the appellant this would weigh very heavily in
determining the appropriate sentence for the appellant.  But premeditation is
not, in my view, established from the fact that the appellant acquired unlawful
possession of another person’s firearm shortly before killing the deceased,
nor from possible motives of depriving his wife of her share of the joint estate.
I consider, therefore, that the conclusion of the court below that the murder
was premeditated  is wrong.

[15] Section 51(2), read with part II of Schedule 2 of the Act, renders the
appellant (as a first offender) liable to a sentence of 15 years’ imprisonment
unless ‘substantial and compelling circumstances exist which justify the
imposition of a lesser sentence’.8  The meaning of the term ‘substantial and
compelling circumstances’ justifying the imposition of a lesser sentence was

8 Section 51(3)(a) of the Act.

set out by this court in S v Malgas.9 In brief, the court held that in determining
whether  there are substantial and compelling circumstances, a court must be
conscious that the legislature has ordained a sentence that should ordinarily
be imposed for the crime specified, and that there should be truly convincing
reasons for a different response. But it is for the court imposing sentence to
decide whether the particular circumstances call for the imposition of a lesser
sentence. Such circumstances include those factors traditionally taken into
account in sentencing – mitigating factors. Of course these must be weighed
together with aggravating factors.

[16] The appellant is a first offender. (If he were not then the minimum
sentence would be 20 or 25 years depending on whether he was a second or
subsequent offender.10) He has served in the military for 18 years without
incident. He pleaded guilty. During the course of evidence he showed
remorse. He was in a state of great anguish at the time when he killed the
deceased. He wished, for the sake of their children, to save the marriage but
the deceased had refused to do so. In his view, she had cheated him both
sexually and with the misuse of funds. The appellant had killed his wife when
memories of her conduct had assailed him. He had then attempted to kill
himself. He sustained serious injuries. Although he recalled shooting himself
only in the chin, he also had a wound in his chest. His upper palate was
injured so that at the time of the trial he could not smell anything. His nervous
system was damaged which has impaired the functioning of a hand and a leg.
He had not been given appropriate treatment while awaiting trial in prison.

9 2001 (1) SACR 469 (SCA).
10 Section 51(2)(a)(ii) and (iii).

Furthermore the appellant is liable for the support of his children who live with
indigent members of the family. His older brother gave evidence in mitigation
supporting the testimony of the appellant in all these respects.

[17] All these circumstances, in my view, are to be taken into account in
determining whether a sentence of 15 years’ imprisonment is unjust. Likewise,
however, I must take into account those factors that aggravate the crime. The
appellant shot his wife, the deceased, several times. The brother of the
deceased testified that the family circumstances have become very hard since
her death. Domestic violence is rife and should be not only deplored but also
severely punished. Family murders are all too common. Society, the
vulnerable in particular, requires protection from those who use firearms to
resolve their problems. The sentence imposed must send a deterrent
message to those who seek solutions to domestic and other problems in
violence.

[18] Taking all these factors into account, I am satisfied that although the
appellant should be given a lengthy sentence of imprisonment, a sentence of
15 years would be unjust. A sentence of 12 years’ imprisonment would send a
strong deterrent message to the community, but would take account of the
very difficult personal circumstances of the appellant.

[19] Although the appellant does not suggest that the sentence of five
years’ imprisonment for unlawful possession of a firearm is inappropriate he
asks this court to order that it run concurrently with the sentence for murder. It
appears that the judge below did not even consider whether the sentence

should run concurrently. Indeed, in his judgment on sentence no mention is
made of the conviction for unlawful possession of a firearm. The failure to
consider whether the sentence should run concurrently with that for murder is
a misdirection in itself. In my view the two sentences should run concurrently.

[20] Accordingly the appeal is upheld. The sentences imposed by the court
below are replaced with the following:
‘On count 1 (murder) the accused is sentenced to 12 years’ imprisonment.
On count 2 (unlawful possession of a firearm) the accused is sentenced to
five years imprisonment, which is to run concurrently with the sentence
imposed on count 1.’

_____________
C H Lewis
Judge of Appeal

Concur: Scott JA and Van Heerden JA