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[2013] ZAGPPHC 171
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B.O.M and Another v S (A827/12) [2013] ZAGPPHC 171 (14 June 2013)

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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: A827/12
DATE:14/06/2013
In
the matter between:
B
O
M
….............................................................................................................
First
Appellant
A
L
.......................................................................................................................
Second
Appellant
and
THE
STATE
........................................................................................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
The appellants, both 18 years old at the commission of the offences,
appeal against the convictions of rape and murder, and
the resultant
sentences of life imprisonment. The appeal is with leave of the trial
court - the regional court, Springs. The sentences
followed their
conviction for raping and murdering N Z, a 13-year old girl, who was
found dead on 18 December 2009. She had stab
wounds, and a knife
blade was stuck in her head.
[2]
The cause of death was identified in the post-mortem report as a stab
wound to the head and asphyxia. On 19 December 2009 the
appellants
were arrested and later faced the two counts referred to above. They
each pleaded not guilty to both counts. On 21 June
2012, appellant 1
was convicted of murder, and acquitted of rape. Appellant 2 was
convicted of both counts. On 23 July 2012 the
appellants were each
sentenced to life imprisonment for murder. Appellant 2 was sentenced
to another life imprisonment for rape.
[3]
During the trial, the State called four witnesses. Both appellants
testified in their defence. Appellant 1 called his brother
in his
defence, while appellant 2 closed his case without calling further
witnesses. The State witnesses were Mr. BM, Ms. Phindiwe
Lokwe, and
Warrant Officers James Marema and Emmanuel Mkhize. The post-mortem
report compiled by Dr. Van Rooyen, and the results
of DNA analysis,
were handed in by agreement. I now set out the essence of each
witness’ evidence.
[4]
M, 19 years old at the time, was a friend with both appellants. He
testified that on the night of 16 December 2009, he attended
a party
with the appellants and one S (apparently at the latter’s
house) where they drank liquor. The deceased later joined
them, and
quickly got herself drunk. The appellants took her along with them -
he did not know where she was taken to. Another
person named
‘Trouble’ (it could be Sipho) followed them, but shortly
returned alone. After a while, the appellants
returned to the party
without the deceased, and left again a while later.
[5]
He immediately went looking for appellant 1 at his place, but did not
find him. He proceeded to appellant 2’s place, where
he found
the door locked, but a window was open. He gained entrance through
the window, and found both the appellants in the house
and asked them
about the deceased’s whereabouts. Appellant 1 denied knowledge
of her whereabouts. Appellant 2 told him that
the deceased was
outside. He and appellant 2 walked outside and went around the house,
and found the deceased lying down. Appellant
2 picked her up and took
her to an open veld where he threw her at a dumping site. Thereafter
he (appellant 2) called out appellant
1, who, on arrival, referred to
the deceased as a ‘dog’, deserving to die.
[6]The
three of them left the deceased and returned to appellant 2’s
place, where they took out knives and returned to the
spot where the
deceased was. One of the appellants called out the deceased’s
name, but she did not respond. She tried to
rise, but fell. Accused 2
stabbed her on the neck and handed the knife to appellant 1, who
stabbed her on the head. The knife got
stuck in the deceased’s
head. Despite appellant 1’s effort to pull it out, he was
unsuccessful, as the handle got dislodged
from the blade, which
remained stuck in the deceased’s head.
[7]
They left the deceased at the scene and returned to appellant 2’s
place, where he observed that appellant 1’s sneakers
and
appellant 2’s T-shirt, were blood-stained. The appellants
immediately changed those clothing items. After a day he reported
the
matter to the police, and made a statement. He led the police to the
appellants’ places where he pointed the appellants
to the
police as the people who had stabbed the deceased. The appellants
were arrested.
[8]
Warrant Officer Marema attended the scene of the incident and found a
knife blade stuck in the deceased’s head. He was
later led to
the appellants’ respective places, and arrested them. At
appellant 1’s place he confiscated a pair of
sneakers, two
T-shirts and a pair of jeans, which were all blood-stained. He
similarly confiscated a T-shirt and a lumber jacket
at appellant 2’s
place, which were also blood-stained. Later that evening, appellant
2’s aunt, Ms Phindiwe Lokwe, came
to the police station and
informed him that she had found two blood-stained items in her house
- a blanket and a T-shirt.
[9]
Ms. Phindiwe Lokwe, appellant 2’s aunt, testified that
appellant 2 resided at her house. She confirmed that on 19 December

2009 the police searched appellant 2’s room where they
confiscated blood-stained clothing items belonging to appellant 2.

The police further informed her that they were looking for a knife
handle. Later she found a knife handle on the grounds of her
yard,
which she recognized as a knife she normally used. She took it to the
police and handed it to Warrant Officer Mkhize. Warrant
Mkhize
corroborated the evidence of Ms. Lokwe regarding the knife handle.
[10]
The State also handed in by agreement, results of DNA analysis of the
specimen sample taken from the deceased’s body,
which matched
the DNA of the sample taken from appellant 2’s body. The upshot
of this is that appellant 2 had sexually penetrated
the deceased. The
analysis excluded appellant 1. That concluded the State s case.
[11]
Appellant 1 testified that on the night of 16 December 2009 he was
drinking liquor with appellant 2, M and Sipho, at the latter’s

house. The deceased arrived and appeared to be drunk. A while later,
and after a brief conversation with appellant 2, the latter
suggested
that they should accompany the deceased. They all left with the
deceased. Along the way Sipho returned to his house.
Thereafter he
also parted ways with the group, leaving the deceased in the company
of appellant 2 and M. That was the last time
he saw the deceased and
he did not know what happened to her thereafter. He admitted that the
blood-stained clothing items confiscated
by the police from his house
were his, as was the blood on them. His explanation for the presence
of the blood was that he bled
onto the clothing items when his
brothers assaulted him for crashing his brother’s vehicle
against a fence. Appellant 1’s
brother confirmed his evidence
as to the supposed assault resulting in the blood-stains on his
clothing items.
[12]
Appellant 2 testified that the deceased was his girlfriend, having
dated her for about a month before she died. After leaving
Sipho’s
house on the night of the incident, he went to his house with the
deceased and M. He and the deceased proceeded to
his bedroom, where
they had consensual sexual intercourse, while M remained in the
dining room. Thereafter the deceased complained
of hunger. He went
out to buy food for the deceased, leaving the deceased in the company
of M. That was the last time he saw the
deceased, as on his return
the deceased and M were not in the house. Later M arrived alone, and
he noticed that his T- shirt was
blood-stained. M explained to him
that while walking with the deceased, they were accosted by would-be
robbers, and the deceased
ran away, and that he was injured during
the attempted robbery, hence the bloodstains on the T-shirt.
Appellant 2 further testified
that he borrowed M a clean shirt, and
M’s blood-stained shirt and a jacket were left in his house,
where they were later
confiscated by the police. That concluded the
evidence.
[13]
Before I consider the arguments on behalf of the parties, it is
useful to remind ourselves of the proper approach in matters
such as
the present. The approach to be adopted by a court of appeal when it
deals with the factual findings of a trial court is
found in the
collective principles laid down in R v Dhlumayo
1948 (2) SA 677
(A).
A court of appeal will not disturb the factual finding of a trial
court unless the latter had committed misdirection. Where
there has
been no misdirection on fact by the trial Judge, the presumption is
that his conclusion is correct. The appeal court
will only reverse it
where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt as to
the correctness of the
conclusion, then it will uphold it. See also DPP v S
2000 (2) SA 711
(T); S v Leve
2011 (1) SACR 87
(ECG); and Minister of Safety and
Security and Others v Graig and Another NNO
2011 (1) SACR 469
(SCA).
[14]The
appellants were convicted primarily on the evidence of M, who was a
single witness as to the stabbing of the deceased. In
terms of
s 208
of the
Criminal Procedure Act, 51 of 1977
, an accused may be
convicted of any offence on the single evidence of any competent
witness. The court can base its findings on
the evidence of a single
witness, as long as such evidence is substantially satisfactory in
every material respect (R v Mokoena
1932 OPD 79
at 80) or if there is
corroboration (S v Gentle
2005
(1)
SACR 420
(SCA)). See further, R v Mokoena
1956 (3) SA 81
(A) at 85; S
v T
1958
(2)
SA 676
(A) at 678; S v Sauls and Others
1981 (3) SA 172
(A) at
180E-G; and S v Banana
2000 (2) SACR 1
(ZSC).
[15]
The appellants attack the conviction on the contention that their
version was reasonably possibly true, and consistent with
the
forensic and pathological evidence. It is further contended that the
trial court failed to caution itself sufficiently of the
dangers
inherent in the evidence of an intoxicated single witness (M). In
short, it is submitted that the trial court should have
accepted the
version of appellant 2 (casting M as the possible sole perpetrator of
the rape and murder).
[16]
I do not agree with these contentions. The fact that M could be a
coperpetrator is irrelevant to the consideration of the
appellants’
guilt or otherwise. For appellant 2’s version to be accepted,
one has to reject the entire evidence by
M, which, to my mind, there
is no justification to do so. It is correct that M could not remember
all the details of the night
of the incident. He was candid in
admitting that he was drunk on the night of the incident, as a result
of which he could not recall
some facts. However, the thrust of his
evidence is coherent, and without any inherent improbabilities. It is
corroborated by the
finding of the blood-stained clothing items at
the respective houses of the appellants. The suggestion that M was
the sole perpetrator
is based on conjecture, and is devoid of any
merit.
[17]
I find no misdirection in how the learned regional magistrate
analysed the evidence and reached the conclusion regarding the

appellants’ guilt. There is therefore no basis for interference
with his factual findings. The appeal against the conviction
has to
fail. Even if M’s evidence as to the stabbing were to be
rejected, I am of the view that there remains very strong

circumstantial evidence against both appellants, from which an
inference of guilt is the only one to be drawn. The ‘cardinal

rules’ when it comes to inference to be drawn from
circumstantial evidence, are trite, and were laid down in the
well-known
case of R v Blom 1939 AD (1) 188 at page 202-203, namely:
(i)
the inference sought to be drawn must be consistent with all the
proved facts. If it is not, then the inference cannot be drawn;
(ii)
the proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
[18]
In the present case the proved or admitted facts are:
(a)
both appellants were in the company of the deceased on the night she
died;
(b)
appellant 2 sexually penetrated the deceased on the night she died;
(c)
the deceased was shortly thereafter stabbed to death;
(d)
the blade of the knife with which the deceased was stabbed, remained
stuck in the deceased’s head;
(e)
the knife with which the deceased was stabbed, belonged to appellant
2’s aunt;
(f)
appellant 2 was present at her aunt’s house the night of the
deceased’s death;
(g)
the handle of that knife was, shotly after the deceased died, found
on the grounds of the yard of appellant 2’s aunt’s

property;
(h)
both the appellants’ blood-stained clothing items were found in
their respective houses two days after the deceased was
stabbed;
(i)
appellant 1’s blood was found on his clothing items;
[19]
On these proven or admitted facts, rests a further basis why the
appeal against the conviction should fail.
[20]
As stated in the introduction, the appeal is also directed against
the sentences, an aspect I now turn to. It is trite that
the
imposition of sentence is pre-eminently a matter within the judicious
discretion of a trial court. The appeal court’s
power to
interfere with a sentence is circumscribed to instances where the
sentence is vitiated by an irregularity, misdirection
or where there
is a striking disparity between the sentence and that which the
appeal court would have imposed had it been the
trial court. See
generally: S v Petkar
1988 (3) SA 571
(A), S v Snyder
1982 (2) SA 694
(A) and S v Sadler
2000 (1) SACR 331
(SCA) and Director of Public
Prosecutions, KZN v P
2006 (1) SACR 243
(SCA) para 10.
[21]
Both the murder and the rape brought the sentencing within the
purview of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
,
which prescribes a sentence of life imprisonment for each count. This
is a prescribed, and not mandatory, sentence, in that the
court may
impose a lesser sentence if it finds that there are substantial and
compelling circumstances. In the present case, the
learned regional
magistrate found no such circumstances, and accordingly imposed the
minimum sentences of life imprisonment.
[22]
For purposes of sentence, pre-sentencing reports were prepared by a
probation officer in respect of each appellant. They were
handed in
by agreement. In respect of appellant 1 the following essential facts
appear. He was born in the Eastern Cape on 22 August
1991. He was
therefore 18 years and 4 months old when he committed the offence.
Both his parents are deceased, having died in 2003
(mother) and 2007
(father), respectively. He was therefore 13 years old when his mother
died, and 16 years old when he became an
orphan. He was cared for by
his siblings after the death of his parents. His sister conveyed to
the probation officer that appellant
1 started to display
Inappropriate behaviour’ after the death of their parents, such
as playing truant from school. She further
mentioned that he
completely dropped out of school a year after the death of their
father. Appellant 1 himself stated that he was
expelled from school
in grade 10 due to ‘inappropriate behaviour’. He started
using dagga at the age of 16, and used
mandrax drug occasionally. He
was not a first offender. In August 2008 he was convicted of assault
with intent to do grievous bodily
harm, and of malicious damage to
property. Both counts were treated as one for the purpose of
sentence, and he was sentenced to
four years’ imprisonment,
which was wholly suspended on standard conditions.
[23]
With regard to appellant 2, the following personal circumstances
appear from the probation officer’s report. He was also
born in
the Eastern Cape on 6 March 1991 - making him 18 years and 9 months
old during the commission of the offences. He was raised
by his
grandmother until she died in 1994, after which his mother took care
of him. He relocated to Gauteng Province in 2006 to
live with his
mother, who died shortly thereafter, in 2007. His father works and
lives in Bloemfontein, Free State Province. He
left school in grade
10 during 2009 on his own volition. He started smoking dagga in 2009,
and drinks liquor ‘a lot’
- a fact confirmed by his aunt.
The probation officer observed that when appellant 2 was challenged
about his version that the
deceased was his girlfriend, ‘he
became emotional and presented a lot of anger and aggressive
behaviour’. Like appellant
1, he has a previous conviction of
malicious damage to property and assault with intent to do grievous
bodily harm, which crimes
he committed with appellant 1, as explained
in the preceding paragraph.
[24]
The sentencing proceedings were perfunctorily dealt with by all - the
defence attorney, the prosecutor and the court alike.
After handing
in the pre-sentencing reports, the defence attorney stated that the
personal circumstances of both accused ... are
dealt with in the
reports’ and that he had ‘nothing further to add’.
The attorney then addressed the court briefly,
stressing that the
role played by liquor and the youth of both appellants, constituted
substantial and compelling circumstances.
The prosecutor also
addressed the court, contending that there were no substantial and
compelling circumstances.
[25]
The court proceeded with its judgment on sentence, which is a
sparsely 4%
pages,
of which 4 pages are dedicated to the recital of the appellants’
previous
convictions
and the closing arguments. The actual consideration of sentence
covers a
few
lines as follows:
‘
I
will take into account that though you had drank on that day you
carried or escorted the complainant (sic) who is (sic) 13 years
of
age taking her to a house and where she was allegedly (sic) raped,
thrown outside of the house. Later you decided she had to
be killed.
Before you decide that you took her (sic) to dump her in an open
veld. After dumping her you pronounced that she should
be killed or
This dog should die’. You went back home to get knives or a
knife by which you stabbed and killed her. The court
finds that there
was direct intention to kill the deceased. Under those circumstances
the court finds no substantial and compelling
circumstances in the
case of murder. In the case of rape the court finds the same, no
substantial and compelling circumstances.’
[26]
The manner in which sentencing was handled, did nothing to dispel the
notion that sentencing is too often, neglected by the
lower courts.
See in this regard the observation of Lombard J in S v Masisi
1996
(1) SACR 147
(O) at 151d-e. It is clear from the above that the
learned regional magistrate did not attach due weight to the contents
of the
pre-sentencing reports. It is significant that he made no
mention at all, of the personal circumstances of the appellants set
out
in the pre-sentencing reports, especially their socio-economic
backgrounds. Furthermore, nowhere in the judgment on sentence, does

it appear that the youth of the appellants was taken into
consideration.
[27]
As explained by the Supreme Court in Matyityi
2011 (1) SACR 40
(SCA)
para 14:
‘
[A]
teenager is prima facie to be regarded as immature and that the
youthfulness of an offender will invariably be a mitigating
factor,
unless it appears that the viciousness of his or her deeds rule out
immaturity. Although the exact extent of the mitigation
will depend
on all of the circumstances of the case, in general a court will not
punish an immature young person as severely as
it would an adult. It
is well established that the younger the offender the clearer the
evidence needs to be about his or her background,
education, level of
intelligence and mental capacity in order to enable a court to
determine the level of maturity and therefore
moral blameworthiness.
The question, in the final analysis, is whether the offender’s
immaturity, lack of experience, indiscretion
and susceptibility to
being influenced by others reduces his blameworthiness.’
(foot-notes
omitted)
[28]
In considering whether substantial and compelling circumstances
existed, the learned regional magistrate said:
'ln
order to find whether there are such circumstances ... the Court has
to take into account your personal circumstances, the aggravating

circumstances and the mitigating circumstances of the cases as it was
said in State v Vermeulen.'
[29]
Of course this is self-evidently a wrong approach. The proper
approach where minimum sentences are applicable, was established
by
the Supreme Court of Appeal in the path-finding and seminal judgment
of S v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All
SA 220).
The summary of the approach is conveniently set out in para
25 of that judgment, the effect of which is that the prescribed
minimum
sentences
should ordinarily, and in the absence of weighty justification, be
imposed.
In
para I of the summary, the following is stated:
‘
If
the sentencing court on consideration of circumstances of the
particular case is satisfied that they render the prescribed sentence

unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would be
done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
[30]
The approach established in Malgas, which has since been followed in
a long line
of
cases, sets out how the minimum sentencing regime should be
approached and in
particular
how the enquiry into substantial and compelling circumstances is to
be
conducted
by a court. The approach was endorsed by the Constitutional Court in
S v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) as ‘undoubtedly correct’ and the
summary referred to
above,
as having laid down ‘a determinative test’ as to when the
prescribed sentence
may
be departed from. The Constitutional Court, at para 38, explained the
application
of
the determinative test’ as follows:
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that which lies at the

very heart of human dignity. Human beings are not commodities to
which a price can be attached; they are creatures with inherent
and
infinite worth; they ought to be treated as ends in themselves, never
merely as means to an end. Where the length of a sentence,
which has
been imposed because of its general deterrent effect on others, bears
no relation to the gravity of the offence (in the
sense defined in
para 37 above) the offender is being used essentially as a means to
another end and the offender’s dignity
assailed. So too where
the reformative effect of the punishment is predominant and the
offender sentenced to lengthy imprisonment,
principally because he
cannot be reformed in a shorter period, but the length of
imprisonment bears no relationship to what the
committed offence
merits. Even in the absence of such features, mere disproportionality
between the offence and the period of imprisonment
would also tend to
treat the offender as a means to an end, thereby denying the
offender’s humanity.’
[31]
In S v Vilakazi
2009 (1) SCAR 552
(SCA) para 18, Nugent JA stated the
following:
‘
It
is plain from the determinative test laid down by Malgas, consistent
with what was said throughout the judgment, and consistent
with what
was said by the Constitutional Court in Dodo, that a prescribed
sentence cannot be assumed a priori to be proportionate
in a
particular case. It cannot even be assumed a priori that the sentence
is constitutionally permitted. Whether the prescribed
sentence is
indeed proportionate, and thus capable of being imposed, is a matter
to be determined upon a consideration of the circumstances
of the
particular case. It ought to be apparent that when the matter is
approached in that way it might turn out that the prescribed
sentence
is seldom imposed in cases that fall within the specified category.
If that occurs, it will be because the prescribed
sentence is seldom
proportionate to the offence. For the essence of Malgas and of Dodo
is that disproportionate sentences are not
to be imposed and that
courts are not vehicles for injustice’.
[32]
It is the court’s duty to consider all relevant factors in
considering whether substantial and compelling circumstances
are
present. It is important for a sentencing court to properly balance
all factors relevant to sentencing against the benchmark
set by the
Legislature (S v Mvamvu
2005 (1) SACR 54
(SCA)). In the present case,
I do not think that the learned regional magistrate took sufficiently
into consideration, the cumulative
effect of the appellants’
youth, their socio-economic backgrounds, and the role played by
liquor in the commission of the
offences.
[33]
Life imprisonment is the heaviest sentence a person can legally be
obliged to serve. It should therefore not be imposed lightly,
without
full and proper consideration of all the relevant facts. It was
remarked in Rammoko v Director of Public Prosecutions
2003 (1) SACR
200
(SCA) para 13, that where life sentence is prescribed, an accused
must not be subjected to the risk that substantial and compelling

circumstances are, on inadequate evidence, held to be absent. At the
same time the community is entitled to expect that an offender
will
not escape life imprisonment - which has been prescribed for a very
specific reason - simply because such circumstances are,

unwarrantedly, held to be present. See also S v Sikhipha
2006 (2)
SACR 439
(SCA) para 19, and S v Matyityi (above), para 11.
[34]
The Full Court stated the following in S v GN 2010(1) SACR 93 (T)
para 12:
‘
Where
the minimum prescribed sentence is life imprisonment, it is
impossible to differentiate otherwise than by imposing a lesser

sentence. Thus, where the Act prescribes imprisonment for life as a
minimum sentence, the fact that it is the ultimate sentence
must also
be taken into account. Accordingly, in its quest to do justice, a
court will more readily impose a lesser sentence where
the prescribed
sentence is imprisonment for life. Put differently, where the
prescribed minimum is life imprisonment, a court will
more readily
conclude that the circumstances peculiar to the case are substantial
and compelling, to the extent that justice requires
a lesser sentence
than life imprisonment.’
[35]
It is quite clear that in the present case, the learned regional
magistrate failed to:
(a)
appreciate that he was sentencing youthful offenders with poor
socio-economic backgrounds;
(b)
balance all the factors against the legislative benchmark, and
(c)
apply the jurisprudential guidelines set out in the various
authorities referred to in this judgment.
[36]
Had he properly considered these factors, and applied the
determinative test laid down in Malgas, he would have come to the

conclusion that substantial and compelling circumstances existed,
entitling him to impose a lesser sentence. By failing to do so,
he
inevitably misdirected himself in the process. As to the nature of
the misdirection which entitles a court of appeal to interfere,
the
following was stated in S v Pillay
1977 (4) SA 531
(A) at 535E-F
‘
Now
the word ‘misdirection’ in the present context simply
means an error committed by the Court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong, but whether the Court in imposing it
exercised its discretion properly and judicially, a mere
misdirection
is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature,
degree, or
seriousness that it shows, directly or inferentially, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence.’
[37]
In my view, the misdirection committed by the learned regional
magistrate in the present case, falls squarely within the category

identified in S v Pillay, as vitiating the decision on sentence. It
is therefore the type of misdirection which warrants interference
by
this court. We are therefore at large to consider sentence afresh and
impose what we deem appropriate in the circumstances.
[38]
The crimes of which the appellants were convicted remain serious. The
appellants murdered a tiny 13 year-old girl in the most
brutal
manner, after she had been raped by appellant 2, both vaginally and
anally. Only a long term of imprisonment will emphasise
the
seriousness of the offence sufficiently, and at the same time serve
the interests of the community and be fair to the appellants,
in the
sense that they have an opportunity to rehabilitate themselves. I am
of the view that 20 years' imprisonment on each count
would achieve
that. In order to ameliorate the cumulative effect of appellant 2’s
two sentences in respect of rape and murder,
those sentences should
be ordered run concurrently. The sentences I am about to substitute
remain very stiff. Lest it be suggested
that this court has shown
maudlin sympathy to the appellants, I refer to the remarks of Holmes
JA in S v V
1972 (3) SA 611
(A) at 614G-H:
The
law operates to protect women against outrage. As to that, if there
be any who doubt whether a massive sentence of imprisonment
for 20
years will not be a sufficient expiation for the gravely evil
misdeeds of this youth, let them cast their minds back in
their own
lives over that period, and consider how much has happened to them in
those two decades, and how long ago it has seemed,
although enlivened
by domestic happiness and the free pursuit of their avocations. No
such ameliorations attend the slow tread
of years when you are locked
up.’
[39]
In the result the following order is made:
1.
The appeal against the convictions is dismissed;
2.
The appeal against the sentences is upheld;
3.
The sentence of life imprisonment imposed on both appellants in
respect of count 1 (murder), is set aside and replaced with the

following:
The
accused are each sentenced to 20 years’ imprisonment’
4.
The sentence of life imprisonment imposed on appellant 2 in respect
of count 2 (rape), is set aside and replaced with the following:
‘
Accused
2 is sentenced to 20 years imprisonment’
5.
It is ordered that the sentence imposed on appellant 2 in respect of
count 2 shall run concurrently with the sentence of 20
years imposed
in respect of count 1;
6.
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the
substituted sentences are ante-dated to 23 July 2012.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD : 8 APRIL 2013
JUDGMENT
DELIVERED : 14 JUNE 2013
FOR
THE APPELLANT : ADV JH VAN ROOYEN
INSTRUCTED
BY : PRETORIA JUSTICE CENTRE
FOR
THE STATE : ADV KM MASHILE
INSTRUCTED
BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA