The danger of sticking to the concept of extenuating circumstances is that it can entrench the death penalty. Mitigating Circumstances --- 34 Opposing Views on the Death Penalty --- 38 Mitigating Circumstances on Appeal --- 42 Factors That May Be Mitigating.
INTRODUCTION
Discretion not to impose the death penalty for murder may be exercised in compelling circumstances. In 1934, a bill which sought to give triers of fact discretion in imposing the death penalty.
STATEMNT OF THE PROBLEM
The paragraph does not indicate at what stage of the trial the fact-finding judges should decide whether or not mitigating circumstances exist. Be that as it may, an effort will be made to identify those jurisdictions in need of reform.
TOWARDS A DEFINITION OF EXTENUATING CIRCUMSTANCES It would appear that dictionary definitions are not
Factors that were not present during the execution of the murder cannot be taken into account. Strictly speaking, it is not a definition, but an indication of the nature of factors that can be taken into account when examining the presence of mitigating circumstances.
THREE-PART
The vagueness of the moral standards used in the investigation of extenuating circumstances shows a. It provides a moral assessment of the conduct of the accused during the commission of the crime.
EXTENUATING CIRCUMSTANCES AND MITIGATING FACTORS DISTINGUISHED
The importance of mitigating circumstances in relation to murder is that their presence gives the court a discretion to impose death or another murder is the only crime in South African criminal law which is dealt with in three stages: First, the formal trial. takes place which ends in either a conviction or an acquittal; the second stage begins after conviction with an examination of the presence or absence of mitigating circumstances; and the third stage is constituted by the sentencing of the accused. The philosophy behind the concept of mitigating circumstances is that the court should have a discretion, not to do the accused a favor, but only to impose the ultimate penalty of death where the facts of each case warrant such a sentence.
EXTENUATING CIRCUMSTANCES CIRCUMSTANCES DISTINGUISHED
Aggravating circumstances result in a high sentence 52. a) increase the moral guilt of the defendant;. It is not the purpose of this dissertation to discuss the discretionary 63 imposition of the death penalty for murder.
OTHER CONSIDERATIONS OF THE INQUIRY INTO EXTENUATING CIRCUMSTANCES
One limitation of the discretion of" the court is the facts that are "considered during the investigation. Consequently, the imposition of the death sentence remains mandatory if the presence of mitigating circumstances is not proven or inferred by the court.
OPPOSING VIEWS ON THE DEATH PENALTY
This means that the death sentence can be imposed on both A and B, where A has intentionally caused the victim's death by a gruesome act. and where B_d exceeded the grounds of self-defense and failed to prove the presence of mitigating circumstances. there is a school of thougi,t which advocates that 81. the death sentence should be abolished. The accused who has committed murder deserves to be punished and. the sentence must contain about 92.
FACTORS WHICH MAY CONSTITUTE EXTENUATING CIRCUMSTANCES
YOUTHFULNESS 108
The purpose of this chapter was to introduce a discussion of the concept of extenuating circumstances - as a means in our 1.aw. The concept of extenuating circumstances was introduced as a tool to conditionally grant discretion to the courts regarding the imposition of the death penalty for murder in those cases where it was otherwise mandated.
INTRODUCTION
INVOLUNTARY INTOXICATION
VOLUNTARY INTOXICATION
The symptoms of impairment of a person's mental abilities following the consumption of alcoholic beverages or the use of drugs are numerous. The overall effect of intoxication on an offender's mental faculties is a factor that may constitute mitigating circumstances. The effect of intoxication on an accused's mental faculties is a factor in sentencing.
The influence of these circumstances on the mental capacities of the accused may influence triers of fact to find mitigating circumstances. Triers of fact may consider the influence of drugs or alcohol on the mental faculties of an accused, even if the accused denies being drunk or intoxicated as long as there is a factual basis for it. In other words. It is the influence of intoxication on the mental faculties of an accused during the - commission of -the murder which -- .-can a.
INTRODUCTION
The definition of a psychopath in South African law is limited as it does not cover all aspects of the clinical definition. However, if the court has found extenuating circumstances, it may take into account that the defendant 26 Section 78 (7) of the Criminal Procedure Act 51 of. 34; Provided that; when a court rules that the accused acted with diminished responsibility in committing the crime, the presiding judge imposes a different sentence than.
There must be a factual basis for the finding of the absence or presence of mitigating circumstances. The trial court, in assessing the mental state of the appellant with respect to possible mitigation, directed its thoughts only to the question of whether the accused had. A psychopathic tendency on the part of the accused does not necessarily amount to a. e) Psychopathic tendencies in the requisite degree may amount to mitigating.
BELIEF IN WITCHCRAFT PER SE
The court recognized that there is a universal belief in witchcraft among the vast majority of blacks. This means that no evidence may be led that the deceased practised. witchcraft that creates a potential danger to the accused the accused's family or. 34; the community trial court has. in a positive duty to determine whether an accused's belief in witchcraft may constitute a mitigating circumstance. It is undesirable to get rid of the issue of extenuating circumstances. without giving reasons for it.
Belief in witchcraft may constitute a mitigating circumstance if -. a) the "accused had a deep and genuine belief in witchcraft that the deceased was 19. b) the motive for the murder was to avert some great evil that would befall the either. The Bivana -decision is the first reported decision on belief in witchcraft since the introduction of the concept of mitigation. The Appellate Division held that a belief in witchcraft has long been recognized as a ----relevant consideration and sometimes a decisive one.a ).
WHERE BELIEF IN WITCHCRAFT CANNOT CONSTITUTE
34;ritual" murder, and depending on the facts of the case, may constitute a mitigating circumstance. The appellant's lawyer argued that witchcraft played some role in the commission of the murder and therefore the crime should have been committed under circumstances found mitigating • It was the court disagree with. The common law states that a defendant's youthfulness must be considered in mitigation regardless of age.
The High Court's approach that an accused's age could be inferred from his/her behaviour. Provocation is one of the factors that can affect the mind of an accused during the commission of a crime. It is trite that mitigating circumstances can only be found after a moral assessment of the evidence.
INTRODUCTION
Loubser argues that the factors that judges consider mitigating are the same factors that are also taken into account in the determination of legal liability or guilt, and that a further rating of the elements of legal liability or guilt is made after conviction in order to determine set. extenuating circumstances.
EXAMINATION EXTENUATION
GENERAL MENTAL CONDITION OF AN ACCUSED
The factual basis of the mitigating circumstances was the fact that the accused was more emotional than. In R v Mharadzo, Beadle C J suggested that it is desirable for triers of fact to make a positive finding as to the exact state of mind of the accused before determining the question of whether net mitigating circumstances exist, the Chief Justice cautioned that evidence of mere dolus eventualis does not mean that the triers of fact must reach the mitigating inference. The crux of the matter is whether, given the fact that the murder was committed with·.c.
The accused's moral blameworthiness can be reduced where the conduct is made less serious by. In S v Magubane there was a possibility that the accused (ie excluding accused no 2} acted out of fear when they took part in the killing of the deceased. He finally decided to relieve her of pain and suffering • The accused was acquitted due to irresistible impulse.
PARTICIPATION
The jury found no mitigating circumstances and the accused were sentenced to death. While the mere fact that the conviction was based on that doctrine does not in itself mean that mitigating circumstances exist, it is a cause for concern that this aspect received insufficient attention by the trial court and the appellate division. If the facts of the S v. Sefatsa decision are carefully studied, it becomes abundantly clear that there were factors which, in their cumulative effect, constituted mitigating circumstances.
The Appellate Division misdirected itself when it failed to recognize that the cumulative effect of the factors that activated the mob to commit this.
ENVIRONMENTAL FACTORS NOT FORMING PART OF ACCUSED'S STATE OF MIND
On appeal, he argued that the manner in which the crime was committed and the identity of the victims of the crime were relevant to the mitigating circumstances inquiry. His frustration, his emotional state and his motive for revenge over the declaration of emergency were all factors in their cumulative effect. In short, it is clear that environmental factors that are not part of the defendant's mental state can constitute mitigating circumstances.
The purpose of this chapter is to present the main conclusions and recommendations resulting from the analysis of case law and legal literature on mitigating circumstances. The introduction of the concept of mitigating circumstances in our law was a welcome development because it gave the trier of fact the freedom to decide the death penalty. The moral guilt of the accused can be determined after evaluating the evidence led during the trial.
RECOMMENDATIONS
It's not clear why it's mandatory for murder while optional for high treason, sabotage, rape. Although the three-part inquiry procedure has been used by the courts, it may have certain shortcomings, especially in the third stage, but it is a useful tool. It is only appropriate where justice is to be done in the dispensation of punishment that those factors be considered.
In light of the formidable responsibility inherent in the imposition of the death penalty for murder, it is appropriate to consider the effects of those factors. Because of the current controversy surrounding the death penalty, it may be necessary to suspend the execution of the death sentence until the abolitionist argument is approved or rejected by the legislature. Administrative Law (1984) Butterworth Provocation as a Defense in South African Criminal Law unpublished LLD thesis UP (1985.
