Franaaz Khan

When the State said they intended proving “premeditated murder” during Oscar Pistorius’s bail application, some people questioned if such a charge existed in South Africa.

The argument was that for a killing to be murder, it must have an element of premeditation in any case.

The Daily News approached a legal expert to get some clarity on the difference between dolus (intent) and premeditation.

Franaaz Khan, an attorney and a criminal law and commercial law lecturer at the University of KwaZulu-Natal, said that while said South African law does not recognise a charge called “premeditated murder”, the fact that it was premeditated can be used in court as an argument in aggravation of sentence.

“Intention can be formed at the instant of committing the crime and does not imply or necessitate any degree of forethought or planning on the part of the accused.

“Our courts have suggested that one would have to examine all the circumstances surrounding any particular murder, including not least the accused’s state of mind.

“This will allow one to arrive at a conclusion as to whether a particular murder is planned or premeditated,” said Khan.

“Planning and premeditation have long been recognised as aggravating factors in the case of murder, and thus section 51 of the Criminal Law Amendment Act was enacted in an effort to remedy increasing crime rates, increased public dissatisfaction with the criminal justice system and to decrease sentencing disparities,” she said.

Section 51 dictates that a life sentence applies to murder when the offender planned or premeditated the murder.

“Our law suggests that planned criminality is more reprehensible than unplanned, impulsive acts.

“However, there must be evidence that the murder was indeed premeditated or planned,” said Khan.

A judge can also deviate from the prescribed sentence when it is proven that “substantial and compelling circumstances” exist.

She said South African courts have suggested that if a prescribed sentence would result in an injustice, this would amount to a substantial and compelling circumstance and the sentencing court would then regain its discretion to impose an appropriate sentence.

“However, an ‘injustice’ is not lightly inferred and the courts require truly convincing reasons or weighty justification to depart from the prescribed sentences.”

Provincial police spokesman Colonel Vincent Mdunge said in KwaZulu-Natal murders that are premeditated are more prevalent in political killings, love triangles and revenge attacks.

Mdunge gave the example of a person who had stabbed someone more than 20 times.

“If it wasn’t premeditated, the person would have stopped after stabbing the person the first time,” he said.

The State intends arguing that the murder was premeditated, which could increase his sentence should he be found guilty, he said.

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