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[2024] ZAECMKHC 30
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S v Tyolo (04/2024) [2024] ZAECMKHC 30; 2024 (2) SACR 39 (ECMk) (14 March 2024)
FLYNOTES:
CRIMINAL – Sentence –
Belief
in witchcraft
–
Murder
– Accused believed deceased used witchcraft to cause illness
to his brother and decided to kill her – Attack
was
premeditated and perpetrated on an elderly female relative –
Little to suggest substantial and compelling circumstances
to
deviate from prescribed sentence – Previous conviction for
rape – No regret or remorse – Sentenced to
life
imprisonment for murder.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
REPORTABLE
Case no: 04/2024
In the matter between:
THE STATE
and
LANDILE
TYOLO
Accused
SENTENCE
Govindjee J
[1]
Witchcraft
has been defined as the practice of using supernatural power for
evil, to harm others or to help oneself at the expense
of others.
[1]
Accused witches or wizards can be young or old, male or female.
[2]
According to Tebbe, anthropologists have found that communities tend
to suspect members that are elderly, female, disabled, or
otherwise
marginalised.
[3]
Fear of
witchcraft is widespread in South Africa, though measuring its
prevalence using rigorous empirical methods has seemingly
not been
attempted nationwide.
[4]
The
proverb ‘umhlahlo ngamehlo’ (‘to kill someone while
everyone is looking’), according to Mesatywa and
Jordan, tells
the story of the practice of earlier times and the treatment of
persons suspected to be witches in a public gathering.
[5]
Some twenty-five years after the Commission of Gender Equality’s
adoption of the Thohoyandou Declaration on Ending Witchcraft
Violence, crimes with undertones of witchcraft persist. Despite
various calls and proposals, post-constitutional national legislation
to address the issue has not yet been enacted.
[2]
The
Witchcraft Suppression Act, 1957,
[6]
(‘the Act’) provides for the suppression of the practice
of witchcraft and similar practices. Any person who names
or
indicates any other person as a ‘wizard’ is guilty of an
offence.
[7]
Where a person in
respect of whom such offence was committed has been killed,
imprisonment for a period not exceeding twenty years
is appropriate
for the commission of the statutory offence.
[8]
Murder, when the death of the victim resulted from, or is directly
related to, any offence contemplated in ss 1(
a
)
to (
e
)
of the Act is an offence in Part I of Schedule 2 of the
Criminal Law
Amendment Act, 1997
.
[9]
As is
the case with murder when planned or premeditated, a discretionary
minimum sentence of imprisonment for life is prescribed,
unless the
court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence.
[10]
Nature of the crimes
[3]
Mr
Tyolo travelled from Cape Town to East London and stayed with his
brother and sister-in-law in a shack in their yard between
September
2022 and 3 December 2022. Upon arrival in East London, he discovered
that another brother, Sibongile, who had grown up
with him, was very
ill. Sibongile suffered from a severe bloated stomach that required
periodic hospitalisation. The condition
worsened despite medical
treatment, especially during November 2022. Mr Tyolo felt helpless
and upset, having offered whatever
assistance was possible, including
financial support towards treatment and transport.
[4]
By
December 2022, Mr Tyolo came to believe that his aunt, the deceased,
was responsible for Sibongile’s condition in that
she had
bewitched him, blaming her for his condition. Mr Tyolo and the
deceased attended a traditional ceremony on 3 December 2022.
He
consumed a lot of liquor, mixing brandy with other kinds of alcohol.
At some point during the day, and in the company of his
sister and
Sibongile, he said ‘that the deceased was a witch using
witchcraft that was causing Sibongile’s illness’.
He then
decided to kill the deceased because of what she had done. He offered
the deceased a place to sleep at his residence, intending
to kill her
there. He walked with her to his shack. Upon arrival, he assaulted
the deceased, using a panga-like object to cause
her death, striking
her several times in the head area, as reflected in the post-mortem
examination. The chief post-mortem findings
were multiple lacerations
on the left side of the face, multiple skull fractures, subdural
haemorrhages, and haemorrhage-strained
muscles (neck). The facial
lacerations measured 10 to 15 centimetres in length. The cause of
death was traumatic head injury.
[5]
During
the assault, Mr Tyolo also threatened his brother and sister-in-law,
to prevent their attempts to intervene. Having killed
the deceased,
Mr Tyolo took her body and placed it in the road. He later told his
sister that he had killed the deceased because
she had caused
Sibongile’s illness through witchcraft.
[6]
Mr
Tyolo was convicted by this court of the offence of naming or
indicating another person as a wizard in contravention of
s 1(
a
),
read with s 2, of the Act and of murder. The offences are extremely
serious. The photographs submitted by the State depict a
gruesome
attack that resulted in the death of the deceased. That attack was
planned or premeditated and perpetrated on an elderly
female
relative.
The accused’s
circumstances and interests
[7]
Mr
Geldenhuys
,
representing Mr Tyolo, described his personal circumstances, no
evidence having been led in mitigation. Mr Tyolo is 46 years of
age,
unmarried with two children who live with their mother. He left
school during standard eight. While in Cape Town he was
self-employed,
repairing shoes and selling traditional medicines and
earning between R4000 and R5000 per month. Part of this income was
used to
support his children, who are aged 12 and 16.
[8]
The
State proved that Mr Tyolo was convicted of rape during 2002, and
sentenced to 15 years imprisonment. He was released on parole
on 31
March 2010. He pleaded guilty to both offences in this court and has
been in custody since his arrest in December 2022.
[9]
In
arguing for the cumulative existence of substantial and compelling
considerations, Mr
Geldenhuys
emphasised that Mr Tyolo had been upset about his
brother’s illness and highlighted the authorities that have
viewed belief
in witchcraft as a mitigating consideration. Mr Tyolo’s
alcohol consumption was also cited as a general factor to be
considered
in assessing the proportionality of imposing the ultimate
punishment.
The interests of
society
[10]
The
legislature’s inclusion of a prescribed minimum sentence of
life imprisonment for murder linked to certain offences described
in
the Act reflects society’s abhorrence for crimes of this
nature. The purpose of the prescribed minimum sentence is to
ensure a
severe, standardised, and consistent response from the courts to the
commission of such crimes, unless there were, and
could be seen to
be, truly convincing reasons for a different response.
[11]
It
must also be noted that
s 30(4)
of the
Older Persons Act, 2006
,
[11]
provides that if a court, after having convicted a person of any
crime or offence, finds that the convicted person has abused an
older
person in the commission of such crime or offence, such finding must
be regarded as an aggravating circumstance for sentencing
purposes.
The deceased was 82 years of age and the aunt of Mr Tyolo. The crime
constitutes a specific form of family violence which
is aggravating.
She accepted his offer of accommodation, only to be viciously and
painfully attacked to death by her relative in
a place she would have
considered to be safe. The only reason for the murder was Mr Tyolo’s
belief in witchcraft and suspicion
that the deceased was a witch.
Attempts to prevent the attack were met with threats of violence, and
the act completed by the deceased’s
body brazenly being placed
in the road.
Witchcraft and the
proper sentence: case law developments
[12]
Considering
the reliance placed on Mr Tyolo’s belief in witchcraft as a
substantial and compelling consideration, it is necessary
to consider
certain authorities before determining the appropriate sentence in
this matter. The approach to sentence in cases involving
murder and
witchcraft has evolved over time. While each case is to be assessed
on its own facts, decisions of courts in cases involving
witchcraft
must be considered against the background of the legal framework
applicable at the time.
[13]
As
Hoctor notes, a court practice arose in the first part of the
previous century and, with limited exceptions, continues to present
day: namely to treat belief in witchcraft as a mitigating factor in
certain circumstances.
[12]
In early cases, such as
R
v Biyana
,
[13]
the court considered whether a profound belief in witchcraft, and its
practise by the victim to cause grave harm, was an ‘extenuating
circumstance’. In
R
v Fundakubi and Others
,
[14]
Schreiner JA considered the belief in witchcraft to be a factor which
‘does materially bear upon the accused’s
blameworthiness’.
That was 75 years ago and, importantly,
almost a decade prior to the enactment of the Act. Even in that
context, Schreiner
JA held that the existence of a belief in
witchcraft would not necessarily and in all cases be treated as an
‘effective extenuating
circumstance’,
[15]
considered it necessary to add the following:
[16]
‘
But
it is of importance to emphasise that the prevalent belief in
witchcraft is a very great blight … Excessive leniency
in
dealing with cases where such a belief has led to the commission of
cruel crimes, often against the weakest members of the community,
may
conceivably help to delay the disappearance of such belief …
the imposition of suitably severe punishments should be
made the
occasion, not so much for expressions of sympathy … as for
public admonition or reprobation of those criminally
foolish persons
who allow themselves to be induced by utterly unfounded suspicions of
innocent persons to commit the most savage
murders.’
[14]
Prior
to the constitutional dispensation and the decision in
S
v Makwanyane
and
Another
,
[17]
(‘
Makwanyane
’
)
murder cases involving witchcraft focused on the question whether the
death sentence was the only proper sentence.
[18]
In
S
v Lukhwa and Another
,
[19]
for example, the court accepted that the only reasonable explanation
for a witch hunt and killing spree was that the appellants
cherished
a deeply-rooted belief in and fear for witchcraft and that the events
had been ignited and fuelled by such belief. While
death sentences
imposed by the trial court were set aside because this was not the
only proper sentence, life imprisonment was
imposed.
[15]
Hoctor
provides the following useful translation of the legal position prior
to the Constitution of the Republic of South Africa,
1996, (‘the
Constitution’) as expressed by Kriegler AJA in
S
v Motsepa
(‘
Motsepa
’
):
[20]
‘
A
genuine and established belief in witchcraft which served in the mind
of the accused as a motive for committing a murder was almost
always
a consideration at the determination of the presence or absence of
mitigating factors. At such an inquiry various factors
have played a
role. Among them was the genuineness and depth of the accused’s
superstitious belief, the extent of the fear
which it aroused in the
accused, the immediacy of the perceived threat, the relationship
between the accused and the threatened
party (the ‘witch’),
as well as the degree of cruelty with which the alleged witch was
killed.’
[16]
The
Constitution promises a society based on fundamental human rights and
in which every citizen is equally protected by law. Human
dignity and
the advancement of human rights and freedoms are part of the founding
values of the Constitution and everyone has the
right to life.
[21]
The right to freedom and security of the person includes the right to
be free from all forms of violence from either public or
private
sources.
[22]
Sachs J, in
Makwanyane
,
bemoaned ‘the frenzied, extra-judicial killings of supposed
witches …’, advocating for rejection of the ‘exorcist’
tradition.
[23]
[17]
Still,
and notwithstanding various cautions and remarks indicative of a
changing tide, courts have, post-Constitution, followed
the earlier
authorities that held that a genuine belief in witchcraft could be a
mitigating factor.
[24]
That
belief has also, on various occasions, been held to constitute a
substantial and compelling circumstance justifying the imposition
of
a lesser sentence than the prescribed life imprisonment.
[25]
In this Division, cases such as
S
v Latha
and
Another
(‘
Latha
’
)
and
S
v Manundu and Another
[26]
(‘
Manundu
’
)
rely on the earlier authorities (pre-constitutional and pre-amendment
of the minimum sentencing legislation) in reflecting this
approach.
In the former case, and distinct from the present circumstances,
counsel for the state conceded that substantial and
compelling
circumstances were present.
[27]
[18]
In
the Gauteng Division, in
S
v Morake
,
[28]
(‘
Morake
’
)
a full bench considered a magistrate’s failure to consider a
real belief in witchcraft linked to the fear of harm as a
misdirection. It relied on the SCA decision in
Director
of Public Prosecutions v Moloto
[29]
(‘
Moloto
’
)
in finding that the appellant’s fear of harm for himself and
others, taken cumulatively with his personal circumstances,
constituted substantial and compelling circumstances justifying a
deviation from the prescribed minimum sentence.
[30]
While
Morake
involved
a charge pertaining to the Act, and the resultant trigger of a
prescribed minimum sentence of life imprisonment for that
reason too,
Moloto
did
not. In
Moloto
,
a minimum sentence of life imprisonment was applicable only by virtue
of a conviction of premeditated murder. The SCA cited passages
of
various authorities to support the need for a weighty sentence,
including the following sentiments:
[31]
‘
To
regard such killings as substantial and compelling circumstances
would send out the wrong message to the community. The prevalence
of
such cases in South Africa is high. The continuation of such killings
will create more instability in the communities where
such practices
are rife. A strong message must be sent out that such conduct will
not be condoned in a civilised society. Where
such killings arise
they must be punished with the full strength of the law.’
(Footnotes omitted.)
[19]
The
SCA nonetheless accepted as mitigating factors the accused’s
belief in witchcraft and that her life was in danger, also
based on
the deceased having threatened to kill her previously. Considered
cumulatively with the accused’s personal circumstances,
the SCA
held that substantial and compelling circumstances justified a
deviation from the prescribed minimum sentence, imposing
a sentence
of 10 years imprisonment.
[32]
[20]
Hoctor,
noting the relevant amendments to the
Criminal Law Amendment Act,
1997
, argued more than a decade ago that the cases reflected a trend
to regard any mitigating effect due to a genuine belief in witchcraft
‘as increasingly less substantial … [reflecting] the
modern South African society’.
[33]
That analysis stops short of assessing the continued place of a
genuine belief in witchcraft, on its own, as a ‘substantial
and
compelling’ factor in circumstances where the legislature has
expressly included witchcraft-related offences, when linked
to
murder, as deserving of life imprisonment. Put differently, can the
very rationale for imposition of a minimum sentence of life
imprisonment qualify on its own as a substantial and compelling
circumstance to justify imposition of a lesser sentence than that
prescribed?
[21]
In
S
v Xaba
,
[34]
Mbatha J answered a similar question by holding that a belief in
witchcraft should not be considered as a mitigating factor at
all.
[35]
In
Nkosi
v
S
,
[36]
the appellant was found guilty of the murder of his grandmother, a
crime perpetrated in the belief that she was a witch. A full
bench in
the Gauteng Division refused to consider the appellant’s belief
in witchcraft to ‘rise to the level of being
either a
substantial or compelling circumstance’, based on the
appellant’s ability to function and ‘hold his
own in
modern society’.
[37]
[22]
It
may be useful to consider the position by way of analogy. Assume that
the legislature decides that a particular use of a dangerous
dependence-producing substance, an existing offence in terms of the
Drugs and Drug Trafficking Act, 1992
,
[38]
is increasingly linked to the commission of the crime of murder. It
amends
part I
of Schedule 2 of the
Criminal Law Amendment Act, 1997
,
to include murder when the death of the victim resulted from, or is
directly related to, that particular drug use. Would such
a drug
user, convicted for the statutory offence, be able to rely on the use
of that drug, on its own, as a ‘substantial
and compelling’
circumstance, to avoid life imprisonment? Bearing in mind the
legislative intent, could such drug use be
mitigating at all in these
circumstances?
[23]
The
Act must have been crafted taking due cognisance of witchcraft
beliefs. It expressly seeks to suppress the practice of witchcraft
and similar practices, notwithstanding the beliefs of individuals in
society. It is accepted that those who name or indicate any
other
person as a wizard, in contravention of the Act, typically do so out
of a genuine subjective belief. Such conduct has been
criminalised as
described. In addition, murder when the death of the victim resulted
from, or is directly related to, such an offence
carries a minimum
sentence of life imprisonment, as prescribed by the legislature. That
being the case, it is inapposite to rely
on the underlying subjective
belief in witchcraft alone as a substantial and compelling
circumstance.
Latha
and
Manundu
did
not consider the impact of the minimum sentence provisioning
pertaining directly to witchcraft in arriving at their outcomes
and,
respectfully, cannot be followed based on this analysis.
[24]
Considering
the decision in
Moloto
,
however, it must be accepted that a belief in witchcraft may still be
mitigating in certain circumstances, notably when an accused
acts out
of genuine fear. It is unnecessary for present purposes to attempt to
draw the dividing line with any greater degree of
clarity. Both
Moloto
and
Morake
are
distinguishable on the facts. It may be added that many of the
earlier cases concerning witchcraft did not involve any charge
pertaining to contravention of the Act, in addition to a charge of
murder. Similarly, various authorities were not seized with
considering the implications of the reference to the Act in the
Criminal Law Amendment Act, 1997
, for purposes of determining the
applicability of the prescribed minimum sentence.
Analysis
[25]
It
is so that sentencing, even in serious cases, involves the
application of a moderation of generosity where appropriate. That
principle cannot replace the balanced weighing of the triad of
factors to determine whether the prescribed minimum sentence should
be imposed.
[39]
Both the
striving after severity and misplaced pity are out of place, as are
sentences designed to use the crime to set an example
for others in
society.
[40]
Courts are
obliged to impose the minimum sentences expressed by parliament,
unless there are truly convincing reasons to depart
from them.
[41]
[26]
Bearing
those principles in mind, there is little to suggest substantial and
compelling circumstances to deviate from the prescribed
minimum
sentence for murder in these proceedings, or that imposition of that
sentence would be disproportionate in the circumstances.
This while
alive to the fact that life imprisonment is the heaviest sentence
that a person can legally be obliged to serve.
[42]
[27]
Mr
Tyolo admitted a previous conviction for rape in terms of s 271 of
the Criminal Procedure Act, 1977
[43]
(‘the CPA’). This court is obliged to take that
conviction into account when imposing any sentence in these
proceedings
and notes that it includes an element of violence.
[44]
Although it is accepted that he had consumed a mixture of liquor and
was operating to some extent under its influence on 3 December
2022,
Mr Tyolo admits that he was aware of what was happening around him,
and at all times able to distinguish between right and
wrong.
[45]
[28]
His
conduct reflects thought and planning. His brother’s condition
worsened during November and by December 2022 he had placed
the blame
for this on his aunt’s supposed power to bewitch. The
traditional ceremony that took place a few days later, on
3 December
2022, added fuel to his fire and provided him with an opportunity.
During the day he named his aunt as a witch, deciding
to kill her for
what she had supposedly done to Sibongile, who was present at the
ceremony. He acted by inviting the deceased to
sleep at his
residence, purely so that he could kill her there. He walked with
her. At his shack he used the panga-like object
to cause her death,
inflicting, inter alia, multiple lacerations, 10 to 15 centimetres in
length, on the left side of her face
and multiple skull fractures.
[29]
While
Mr Tyolo pleaded guilty to both offences, the circumstances are such
that the evidence against him was overwhelming, there
being at least
two eye-witnesses to both offences. There is no suggestion of regret
or remorse, as is evident from the treatment
of the body after the
murder, merely the repeated justification based on the belief in
witchcraft linked to Mr Tyolo’s sympathies
towards Sibongile’s
health. There is also no mention in his statement, in terms of s 112
of the CPA, that once released he
would refrain from such
conduct.
[46]
[30]
It
is in the best interests of society that a belief in witchcraft
should not, at least on its own, be permitted to displace what
sound,
established sentencing principles require, considering the moral
blameworthiness of the individual for the offence having
regard to
all the facts.
[47]
To
permit this would, in effect, be to undermine the legislature’s
prescription of a minimum sentence of life imprisonment
when murder
is directly related to an offence contemplated in ss 1(
a
)
to (
e
)
of the Act.
[31]
Even
if the analysis regarding witchcraft as a possible substantial and
compelling factor is erroneous, the facts are such that
the belief in
witchcraft, together with the other factors in favour of Mr Tyolo,
are not substantial and compelling to justify
imposition of a lesser
sentence. Applying the considerations expressed in
Motsepa
,
and as in
Phama
,
this was not an instance where the accused operated under imminent
threat or out of a sense of fear, prevention or self-protection.
Rather, it was more an act of vengeance ‘because of what I
believed the deceased had done to my brother’.
[48]
Even if depth and sincerity of belief are assumed, there is nothing
to suggest that the accused has lived in a part of society
that may
be considered as justifiably behind the times. The information at
hand suggests the contrary, the accused having considered
Cape Town
to be his home. The extent of fear experienced by the accused, the
immediacy of any perceived threat or impulse and the
accused’s
relationship with the deceased was unexplained. Added to this is the
brutality with which the premeditated murder
was committed, coupled
with the various other aggravating features of the crime already
described, notably the victim’s age
and the inherent breach of
trust when considering the familial connection and circumstances of
the offence. Society’s evolving
view regarding such crimes, as
reflected in the link between contraventions of the Act and a minimum
sentence of life imprisonment
for a related murder, must also be
considered.
[49]
Mr Tyolo’s
personal circumstances, notably his plea of guilty and alcohol usage,
are wholly outweighed by the other factors
considered. I am
ultimately unconvinced, when examining the circumstances of the case,
that imposition of the prescribed sentence
would be disproportionate
to the crime, the criminal and the legitimate needs of society.
[50]
Considering the seriousness of the statutory offence, which
precipitated the murder, and the provisions of the Act, I impose the
maximum sentence permissible for that crime, to run concurrently with
the sentence imposed for murder.
Order
[32]
The
following sentence is imposed:
1.
The
accused is sentenced to life imprisonment for the murder of Nobinza
Violet Kevu.
2.
The
accused is sentenced to twenty years imprisonment for contravention
of s 1(
a
),
read with s 2, of the Witchcraft Suppression Act, 1957, the sentence
to run concurrently with the sentence of life imprisonment.
3.
The
Registrar is directed to ensure that the accused’s name is
placed on the Minister of Social Development’s register
of
persons convicted of an offence contemplated in
s 30(4)
of the
Older
Persons Act, 2006
.
4.
In
terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
, the
accused is unfit to possess a firearm, the Registrar of Firearms to
be notified accordingly.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
11 March 2024
Delivered:
14 March 2024
Appearances:
For the
State:
Adv T Soga
Director
of Public Prosecutions
Makhanda
046 602
3000
For the
Accused:
Adv D Geldenhuys
Legal
Aid South Africa
Makhanda
046 622
9350
[1]
N
Tebbe ‘Witchcraft and statecraft: liberal democracy in Africa’
(2007) 96
Geo
LJ
183
at 190.
[2]
N
Tebbe ‘Witchcraft and the Constitution’ in TW Bennett
(ed)
Traditional
African Religions in South African Law
(2011)
at 163 accessed at
http://ssrn.com/abstract=1926885
.
[3]
Ibid
at 163, 164. See
S
v Mafunisa
1986
(3) SA 495 (V).
[4]
Ibid
at 164.
[5]
EWM
Mesatywa and AC Jordan
Izaci
Namaqhalo EsiXhosa
(1971)
at 63 as cited in A Mvanyashe ‘IsiXhosa proverbs and idioms as
a reflection of indigenous knowledge systems and an
education tool’
Southern
African Journal for Folklore Studies
(vol
29, no. 2) (2019) at 11
[6]
Act
3 of 1957.
[7]
The
act does not define ‘wizard’. The term may be understood
to mean a human being who deploys supernatural power
for nefarious
purposes: N Tebbe ‘Witchcraft and the Constitution’ in
TW Bennett (ed)
Traditional
African Religions in South African Law
(2011)
at 161 accessed at
http://ssrn.com/abstract=1926885
.
The term is clearly not intended to refer only to male practitioners
of the occult and also includes females, and the accused
does not
have to be shown to have used the word ‘wizard’ before
he may be convicted: see SV Hoctor
et
al
South
African Criminal Law and Procedure Volume III: Statutory Offences
(RS
23) (2013) chE2-p3. Also see
S
v Mafunisa
1986
(3) SA 495 (V).
[8]
S
1(i) of the Act. Where any person in respect of whom such an offence
was committed is killed, it is presumed, until the contrary
is
proved, that such person was killed in consequence of the commission
of such offence: s 2 of the Act.
[9]
Act
105 of 1997.
[10]
S
51(1) read with
s 51(3)
of the
Criminal Law Amendment Act, 1997
. The
applicable amendment to this legislation has been in effect for more
than 15 years.
[11]
Act
13 of 2006. ‘Abuse’ includes physical abuse, which is
defined to mean any act or threat of physical violence towards
an
older person, defined to include women over the age of 60.
[12]
S
Hoctor ‘Belief in witchcraft as a mitigating factor in
sentencing:
S
v Latha and Another
2012
(2) SACR 30
(ECG)’
Obiter
(2012)
380 at 382.
[13]
R
v Biyana
1938
EDL 310.
[14]
R
v Fundakubi and Others
1948
(3) SA 810
(A) at 818.
[15]
Ibid
at 819 – 820.
[16]
Ibid
at 818 – 819. Also see
S
v Phama
1997
(1) SACR 485
(E) (‘
Phama
’
)
at 487, where Jones J held that ‘…my sentence should
reflect the revulsion of society at the readiness to resort
to
criminal violence; the horror of society that human life should be
made so cheap; and the need to show the accused and other
potential
offenders that the price they must pay for resorting to murder in
order to eliminate an alleged witch or wizard from
their midst is
not worth it’.
[17]
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC).
[18]
See
S
v Motsepa and Another
1991
(2) SACR 462
(A) (‘
Motsepa
’
).
[19]
S
v Lukhwa and Anothers
1994
(1) SACR 5 (A).
[20]
Motsepa
above
n 18 at 470, as translated by Hoctor above n 12 at 386.
[21]
Preamble
to the Constitution, read with ss 1 and 11 of the Constitution.
[22]
S
12(1)(
c
)
of the Constitution.
[23]
S
v Makwanyane
above
n 17 at 381 – 382, cited in Hoctor above n 12 at 387.
[24]
See,
for example,
S
v Zuma
[2000]
JOL 7061
(N) at 114 – 115.
[25]
S
v Mbobi
(2005
JDR 0016 (E)) paras 9 – 10.
[26]
S v
Manundu
(2022
JDR 2409 (ECM)) paras 15, 26 and 31.
[27]
S
v Latha and Another
2012
(2) SACR 30
(ECG) (‘
Latha
’
)
paras 27 – 28. In that matter, the State accepted an indirect
intention to kill.
[28]
S
v Morake
(2020
JDR 2633 (GP) (‘
Morake
’
).
[29]
Director
of Public Prosecutions v Moloto
2019
(2) SACR 123
(SCA) (‘
Moloto
’
).
[30]
Morake
above n 28
para
7.6. A sentence of 20 years imprisonment was imposed.
[31]
S
v Mogaramedi
(2014
JDR 1622 (GP)) para 35, cited with approval in
Moloto
above
n 29 para 10.
[32]
Moloto
above
n 29 para 11. For criticism of this decision, see S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
>
(RS
61) (2018) ch 28 - p18Z – 6 / 7.
[33]
Hoctor
above n 12 at 389.
[34]
S
v Xaba
(2018
JDR 0964 (KZP)).
[35]
Ibid
para 23. For support of the approach in
Xaba
,
see Terblance above n 32 at p18Z - 5. For criticism of the actual
sentences imposed in
Xaba
,
and the extent of their departure from the sentence prescribed, see
S Terblanche ‘Sentencing’ (2018)
SACR
465
at 477 – 478.
[36]
Nkosi
v S
[2022]
ZAGPPHC 563.
[37]
Ibid
para 18. In that matter, only the youthfulness of the accused, who
was 22 years old at the time of the commission of the
offence,
spared him from a sentence of life imprisonment for the murder of
his grandmother. A sentence of 25 years imprisonment
was imposed, of
which five years was suspended.
[38]
Act
140 of 1992.
[39]
S
v Zinn
[1969]
3 All SA 57
(A) at 540G – H.
[40]
S
v Khulu
1975
(2) SA 518
(N) at 521 – 522.
[41]
S
v Matyityi
2011
(1) SACR 40
(SCA) para 23.
[42]
Rammoko
v Director of Public Prosecutions
2003
(1) SACR 200 (SCA).
[43]
Act
51 of 1977.
[44]
S
271(4) of the Criminal Procedure Act, 1977 (Act 51 of 1977).
[45]
A
similar approach was adopted in
Latha
above
n 27 para 15.
[46]
See
Mogaramedi
above
n 31 paras 30 – 31.
[47]
Terblanche
above n 32 at p18Z – 5. Also see
Kapesh
and Another v The People
(unreported,
SCZ / 9 / 99, 100/2013, appeal case no 99/100/205, 6 September 2017
at 147 as cited in Terblanche above n 32 at p18Z
– 6: a belief
in witchcraft should reach the threshold required for provocation if
it is to serve as an extenuating factor
to an accused person facing
a charge of murder, given that there is ‘absolute need to
protect victims of witchcraft accusations
from unprovable
allegations leading invariably to multiple violations of their
rights, and in some cases death’.
[48]
S
v Phama
above
n 16 at 487I – J. As the court noted in
Latha
,
the sentence in
Phama
was
imposed prior to the promulgation of the minimum sentencing
legislation: see
Latha
above
n 27 para 18.
[49]
See
SS Terblanch
A
guide to sentencing
(3
rd
Ed)
(2016) at 231.
[50]
S
v GK
2013
(2) SACR 505
(WCC) para 9.