Aliko v The State

On 8 August 2013, during the penultimate day of Ramadan, Mohammed Laher (the deceased), a 44-year-old disabled man suffering from multiple sclerosis, was found murdered at the South End Mosque in Port Elizabeth. The deceased had spent the last three months in the mosque fasting and praying, and was observing Itikaaf during the last ten days of Ramadan. The appellant, Mohammed Sani Aliko, entered the mosque mid-morning where Ms Muna Mohammed Osman, the mosque caretaker, admitted him. Ms Osman later heard thumping sounds and saw the appellant making swinging movements with a cable. She fled to her car with her children. The appellant later exited the mosque carrying the cable, which he threw in a rubbish bin. When Ms Osman returned inside, she discovered the deceased dead on the floor. The deceased had sustained extensive bruising to the head, neck and chest, died of strangulation with fractured tracheal rings and a severely bruised larynx. A pencil had been plunged into his left ear with such violent force that it penetrated his inner ear and tore into his temporal muscles, causing severe bleeding into his chest cavity and lungs. The appellant denied the crime at trial, claiming he only visited to check the time and prayer times. The appellant was a 44-year-old first offender, unemployed bachelor, studying for an Honours Degree, with a one-year-old baby. He had recently lost another child and was experiencing financial challenges.

• Whether premeditation is an essential requirement for a sentence of life imprisonment for murder
• Whether the court a quo properly exercised its discretion in determining the appropriate sentence
• Whether a sentence of life imprisonment was appropriate in the absence of a finding of premeditation
• Whether the court attached insufficient weight to the appellant's personal circumstances

The appeal against the sentence of life imprisonment was dismissed.

Premeditation is not an element of the offence of murder but merely a factor in sentencing assessment. There is no separate offence of 'premeditated murder'; the expression in s 51 of the Criminal Law Amendment Act 105 of 1997 merely communicates the basis for enhanced sentencing regime. Courts retain inherent discretion when determining sentences, and may consider and impose life imprisonment irrespective of the minimum sentences provided in the Criminal Law Amendment Act. The paramount function of the sentencing court is to independently apply its mind to consider a sentence that is proportionate to the crime committed, taking into account the crime, the criminal and the interests of society. The cardinal principle that punishment should fit the crime must not be ignored. Where aggravating factors (brutality, victim vulnerability, commission in sacred place, lack of remorse) far outweigh personal circumstances, life imprisonment may be appropriate even in the absence of premeditation.

The court noted uncertainty as to whether the trial court had found premeditation, as the judge remarked at the start of sentencing proceedings that the appellant had been convicted of premeditated murder, but during the leave to appeal application stated she had sentenced in terms of her 'ordinary sentencing jurisdiction'. The court stated it was not necessary to concern itself with this issue as what was relevant was whether the courts properly exercised their discretion in determining sentence. The court also noted the unfortunate aspect that the State, while on record opposing the appeal and filing Heads of Argument, did not appear on the day of the hearing, but the appeal had to proceed as the appellant's counsel was in attendance and the appeal was properly before the court.

This case is significant in South African criminal law and sentencing jurisprudence as it clarifies that: (1) premeditation is not an essential requirement for the imposition of a sentence of life imprisonment for murder; (2) courts retain inherent discretion in sentencing even where minimum sentencing legislation applies; (3) there is no separate offence of 'premeditated murder' - premeditation is merely a sentencing factor that triggers enhanced penalty jurisdiction under the Criminal Law Amendment Act; (4) courts can and should consider life imprisonment where appropriate, regardless of the minimum sentencing regime invoked; and (5) the paramount principle is that punishment must fit the crime, considering the crime, the criminal and the interests of society, with particular weight given to aggravating factors such as brutality, victim vulnerability, and lack of remorse. The case reinforces the principles of proportionality in sentencing and the residual discretion of courts to impose appropriate sentences.