Extenuating circumstances in murder
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Date
1989
Authors
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Journal ISSN
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Publisher
University of Zululand
Abstract
The concept of extenuating circumstances was introduced in South African law in 1935. If a trier of facts finds extenuating circumstances he is conferred with a discretion to impose either the death sentence or any other sentence. This concept applies only to the crime of murder. The introduction of this concept was a welcome development in our law because for the first time a discretion was conferred on a trier of facts notwithstanding the fact that an accused was neither a woman who had been convicted of murdering her newly born child- nor a person under the age of eighteen years.
The purpose of this dissertation is to appraise the concept of extenuating circumstances in the light of the case law and legal literature- The traditional factors which figure more often than not in our courts are intoxication, psychopathy, belief in witchcraft, youthfulness, provocation and many others. They were critically analysed in this dissertation.
The definition of extenuating circumstances excludes all factors which were not present during the commission of murder. The onus of proof is on the accused.
The conclusion reached is that although the.concept was a welcome introduction in our law, its fetters have a negative effect- A judge may impose an appropriate sentence if he has a discretion to do so. Where a discretionary power to impose a sentence according to justice is out of question, there exists^ need to reform the law. A discretion to impose a sentence is not an end in itself but a means to justice and civilization.
Several traditional conclusions of the courts and legal
writers were criticised in this work. The purpose was to
point out areas which need reform- On the whole, the
concept of extenuating circumstances is regarded as a compromise between the abolition of the death sentence for murder and its retention.
It is recommended that a trier of facts should have a discretion to impose the death penalty on any accused who displayed psychopathic tendencies during the commission of murder- There is no justification for depriving a youthful accused of the benefit of extenuating circumstances even if he killed out of inherent wickedness or inner vice.
The danger of retaining the concept of extenuating circumstances is that it may entrench the death penalty for murder because of the three-part enquiry procedure used to establish it. The legislature may not reform the law because it may continue to believe that the concept is satisfactory.
In conclusion, a plea is made that death sentences not be carried out until the legislature considers and expresses its views on the argument advanced by the abolitionists.
Description
A dissertation submitted in partial fulfillment of the requirements for the Degree Master of Law in the Faculty of Law at the University of Zululand, South Africa, 1989.
Keywords
Extenuating circumstances -- South African law, Death sentence -- South Africa