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[2024] ZANCHC 80
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S v Malothe (Sentence) (KS/12A/2024) [2024] ZANCHC 80 (28 August 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
KAROO LOCAL CIRCUIT
DIVISION, COLESBERG
Case No: KS/12A/2024
Date Heard: 27 August
2024
Date Delivered: 28 August
2024
Reportable: YES/NO
Circulate to Judges:
YES/NO
Circulate to Magistrate:
YES/NO
Circulate to Regional
Magistrates: YES/NO
In
the matter between:
THE
STATE
and
SAMSON
MALOTHE
Accused
JUDGMENT ON SENTENCE
CHWARO
AJ
:
The
charge
[1]
Mr Samson Malothe, (”the accused”) was indicted on one
count of murder
read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act, No. 105 of 1997
, as amended, and read
with
section 1
of the
Domestic Violence Act, No. 116 of 1998
in
that the State alleges that on or about 5 February 2024 and at
Riemvasmaak, Colesberg, he unlawfully and intentionally
killed P[...]
M[...].
[2]
At the commencement of the trial on Tuesday, 27 August 2024, pursuant
to the charge
having been put against the accused, he tendered a plea
of not guilty and opted not to tender any plea explanation and thus
put
the State to prove each and every element of the charge put
against him.
[3]
The State submitted a true copy of the album compiled by Warrant
Officer M Mazwi containing
still photographs taken at the crime
scene, which was admitted as such and marked as Exhibit “A”.
[4]
The plea was tendered after the Court had ascertained that the
accused understood
the nature of the charge proffered against him and
the possible minimum sentence that might be imposed on the finding of
guilty
as prescribed in terms of
section 51(1)
of the
Criminal Law
Amendment Act, No. 105 of 1997
, as amended, 1998 read with
section 1
of the
Domestic Violence Act, No. 116 of 1998
.
[5]
The State proceeded to lead evidence of four witnesses. The first
three witnesses,
Mesdames
Sylvia Ntombizodwa Relityana
and
Thembeka Ambraa
and Mr
Mzukisi Nyekendala
were factual
witnesses who, in the main, testified about the events leading up to
the commission of the offence on 5 February 2024.
[6]
The fourth state witness, Captain
Daniel Nicholaas Mostert
,
testified that he took a confession statement from the accused on 6
February 2024 at around 15h24. The confession statement was
read into
the record and was not contested by the accused. This statement is
marked as Exhibit “B”.
[7]
Soon after the evidence relating to the accused’s confession
was concluded,
Mr Steynberg, acting on behalf of the accused,
indicated to the Court that the accused wanted to change his plea of
not guilty
and tender a plea of guilty. To this effect, the accused’s
plea and its explanation was encapsulated in a statement prepared

under the provisions of
section 112(2)
of the
Criminal Procedure Act,
No. 51 of 1977
, which statement was read into the record and admitted
and marked as Exhibit “C”.
[8]
Ms Pillay, for the State, indicated that the State accepted the
accused’s plea
but for certain facts relating to the allegation
made by the accused that he acted in the heat of the moment and that
the murder
of the deceased was not planned or premeditated. In her
view, the accused’s conduct amounted to a planned and
premeditated
action, having regard to the evidence tendered by Mr
Nyekendala to the effect that when the accused parted ways with him
on the
fateful day, he uttered words to the effect that “shit
was going to happen that day”.
[9]
Much time was spent by both legal representatives on submissions made
regarding the
fact whether there was sufficient evidence proving
beyond reasonable doubt that the accused had planned and premeditated
the murder
of the deceased. However, at the end, it became common
cause that the indictment as proffered against the accused and the
plea
tendered by him, related to the charge formulated within the
ambit of the provisions of
section 51(1)
of Act 107 of 1997, as
amended, in that at the time of the commission of the murder, the
accused and the deceased were involved
in a romantic relationship.
[10]
Section 51(1)
of the
Criminal Law Amendment Act, No. 107 of 1997
, as
amended, provides as follows:
“
51.
Discretionary minimum sentences for certain serious offences
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional
court or a High Court shall sentence a person it has
convicted of an offence referred to in
Part I
of Schedule 2 to
imprisonment for life.”
[11]
In turn
Part I
of Schedule 2 to the Act provides the following
offences upon which imprisonment for life is prescribed on
conviction:
“
Murder,
when-
........
(g)
the
death of the victim resulted from physical abuse or sexual abuse, as
contemplated in paragraphs
(a)
and
(b)
of
the definition of 'domestic violence' in section 1 of the
Domestic Violence Act, 1998 (Act 116 of 1998), by the accused
who is
or was in a domestic relationship, as defined in section 1 of that
Act, with the victim...”
[1]
[12]
Section 1
of the
Domestic Violence Act, No. 116 of 1998
defines a
“domestic relationship” in the following terms:
“
'domestic
relationship' means a relationship between a complainant and a
respondent in any of the following ways:
(a)
They are or were married to each other, including marriage according
to any law, custom
or religion;
(b)
they (whether they are of the same or of the opposite sex) live or
lived together
in a relationship in the nature of marriage, although
they are not, or were not, married to each other, or are not able to
be married
to each other;
(c)
they are the parents of a child or are persons who have or had
parental responsibility
for that child (whether or not at the same
time);
(d)
they are family members related by consanguinity, affinity or
adoption;
(e)
they are or were in an engagement, dating or customary relationship,
including an
actual or perceived romantic, intimate or sexual
relationship of any duration; or
(f)
they are persons in a close relationship that share or shared the
same residence;..”
[13]
Having due regard to the evidence tendered by the four State
witnesses, the confession statement
made by the accused and the plea
explanation tendered by the accused in terms of
section 112(2)
of the
CPA, especially paragraph 6.6 thereof where the accused states as
follows
“
6.6
I admit that when I acted as set out above,
the deceased and I were in a domestic relationship as defined
by the
Domestic Violence Act”
it
is common cause that
the accused and the deceased were in an actual romantic relationship
of some duration and therefore bringing
the murder within the ambit
of
section 51(1)
read with paragraph (g) of
Part I
of Schedule 2 to
Act 107 of 1997 read with the definition section of the
Domestic
Violence Act
, 116 of 1998.
[14]
The accused was thus found guilty and convicted as charged following
the careful assessment and
scrutiny of his plea statement and the
legislative prescripts referred to above.
Sentencing principles
in general
[15]
I am mindful of the well-established test as articulated in the
celebrated decision of
S v Zinn
1969
(2) SA 537
(A)
where
Rumpff JA stated that a trial court passing sentence must consider
what has become to be known as the “triad of factors”,

being
15.1
the personal circumstances of the accused;
15.2
the circumstances surrounding the commission of the crime, including
the gravity of the offence itself;
and
15.3
the interests of society in general. By the interests of society, it
is meant that a trial court passing
sentence must be mindful of the
fact that the general community is looking up to the courts of law to
apply the law consistently
in punishing perpetrators of serious
crimes like sexual assault and murder under the circumstances of this
case.
[16]
In considering the three factors outlined above, the court must not
over-emphasise the one factor
over another and must try to evenly
balance such factors in a manner that will ensure that the sentence
fits the offence, i.e.
the sentence must be proportionate and must
not over and/or under state one of the factors over others.
[17]
I am also alive to the established theories of punishment being
retribution, prevention of crime,
deterrence of would-be criminals
and reformation of the offender. In
S
v SMM
2013
(2) SACR 292
(SCA
)
Majiedt JA said the following:
'I
hasten to add that it is trite that each case must be decided on its
own merits. It is also self-evident that sentence must
always be
individualised, for punishment must always fit the crime, the
criminal and the circumstances of the case. It is equally
important
to remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and upon a careful
consideration
of all relevant factors. Public sentiment cannot be ignored, but it
can never be permitted to displace the careful
judgment and fine
balancing that are involved in arriving at an appropriate sentence.
Courts must therefore always strive to arrive
at a sentence which is
just and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account
of the interests of
society. Sentencing involves a very high degree of
responsibility which should be carried out with equanimity.'
[18]
The courts must also be mindful of the principle of mercy in passing
sentence. This much was
stated in
S v Rabie
1975 (4) SA 855
(A)
where the court, after explaining the element of mercy in detail,
stated that “punishment should fit the criminal as well
as the
crime, be fair to society, and be blended with a measure of mercy
according to the circumstances”.
Legal principles on
minimum sentences
[19]
I agree with the submissions made by the parties that, having found
the accused guilty of murder
read with the provisions of
section
51(1)
of the
Criminal Law Amendment Act of 1997
, it follows that
there is a minimum prescribed sentence that the Legislature has
decided must be imposed. The prescribed minimum
sentences will not
find application where the court holds that there are substantial and
compelling circumstances justifying deviation.
[20]
I am mindful of the jurisprudence relating to the proper
interpretation of the minimum sentence
regime as articulated in
S
v Malgas
2001 (1) SACR 469
(SCA)
where the following was stated:
[18]
“Here lies the rub. Somewhere between these two extremes the
intention of the Legislature
is located and must be found. The
absence of any pertinent guidance from the legislature by way of
definition or otherwise as to
what circumstances should rank as
substantial and compelling or what should not, does not make the
task any easier. That it
has refrained from giving such guidance
as was done in Minnesota from whence the concept of 'substantial and
compelling circumstances'
was derived is significant. It signals that
it has deliberately and advisedly left it to the courts to decide in
the final analysis
whether the circumstances of any particular case
call for a departure from the prescribed sentence. In doing so, they
are required
to regard the prescribed sentences as
being
generally appropriate
for crimes of the kind
specified and enjoined not to depart from them unless they are
satisfied that there is weighty justification
for doing so. A
departure must be justified by reference to circumstances which can
be seen to be substantial and compelling as contrasted
with
circumstances of little significance or of debatable validity or
which reflect a purely personal preference unlikely to be
shared by
many.
[21]
In the
Malgas
case referred to above, the court proceeded to
state the following as a summation of what the Legislature intended
by introducing
prescribed minimum sentences:
“
[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed
sentences than has been supposed
in some of the previously decided cases and that it is they who are
to judge whether or not the
circumstances of any particular case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely
pay lip service to, the Legislature's view
that the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate
when crimes of the specified kind are
committed.”
[22]
In
S v Vilakazi
2009 (1) SACR 552
(SCA)
the Supreme Court of
Appeal interpreted the
S v Malgas
decision to mean that a
prescribed sentence should ordinarily and in the absence of weighty
justification be imposed for the listed
crimes in the specified
circumstances. It follows that the lessons learnt from Malgas are
that:
22.1
Courts should not hesitate to depart from minimum sentences;
22.2
Such departure must not be for flimsy reasons;
22.3
Courts should always consider separately what an appropriate sentence
would have been; and
22.4
Courts should depart to prevent an injustice when regard is had to
the proportionality.
[23]
Having said that, one needs to note what the Constitutional Court
said in
S v Dodo
2001 (1) SCAR 544
(CC)
at para 38 where the
court emphasised that punishment must always be proportionate to the
deserts of the particular offender.
Mitigation of sentence
[24]
The accused submitted his personal circumstances, which can be
summarised as follows:
24.1
He is 43 years old, unmarried with 5 minor children aged 16, 14, 12,
9 and 4 respectively who are currently
residing with their maternal
grandmother.
24.2
He lost both parents, with his father having passed away in 1994,
followed by his mother in 2013.
24.3
His highest educational qualification is grade 8. He worked as a
casual mechanic and earned a salary
of R5 000 per month.
24.4
He is a first offender in respect of crimes involving violence.
24.5
He handed himself over to the police after the commission of the
crime and have been awaiting trial
in custody for 6 months. He
tendered a plea of guilty and thus did not waste time.
Aggravating factors
[25]
The State proved two previous convictions against the accused. The
accused has the following
previous convictions:
25.1
On 27 June 2007, he was convicted of housebreaking with intent to

steal and theft and was sentenced to 6 months correctional
supervision; and
25.2
On 3 August 2022, the accused was convicted for contravention of

section 11(1)(a) of the Stock Theft Act 57 of 1959 and sentenced to
12 months direct imprisonment and declared unfit to possess
a
firearm.
[26]
The accused’s previous conviction record, otherwise known as
the SAP69, was handed up by
agreement and marked as Exhibit “E”.
[27]
The State further submitted two Victim Impact Statements by Ms S[...]
M[...], an elder sister
of the deceased , marked as exhibit “F”
and Mr William Magogwana, the deceased’s brother, marked as
Exhibit “G”.
[28]
Both statements detail the devastating effect of the tragic demise of
the deceased, who was very
young and who both siblings looked forward
to see growing up to become someone in life. The siblings have been
left traumatised
by the incident to the extent that Ms M[...] states
that sometimes they keep the house illuminated throughout the night
as they
are scared that the accused can come back at any time to
finish them all off at home. Mr Magogwana states that he is still
hurt
by the incident and wonders where he will get her sister back.
[29]
It is without any doubt that the demise of the deceased severely
affected her family especially
considering that she was brutally
murdered at their family home.
Circumstances
surrounding the commission of the offence
[30]
Before considering an appropriate sentence, it is apposite to set out
the facts, as admitted
to by the accused, which formed the basis of
his plea of guilty. The accused and the deceased were in a romantic
relationship.
He suspected her of cheating on him and on the fateful
day, he states that he confronted her after having seen her with one
Morros.
He lost his temper and on the spur of the moment, he stabbed
her using half a sheep shear that was in his possession. This
happened
at the deceased’s family home under circumstances
where she was defenceless.
[31]
Soon thereafter the accused handed himself over to the police and
confessed to the murder.
[32]
A post-mortem report compiled by Dr Lemainé Fouché, a
Pathologist in the employ
of the Northern Cape Department of Health
based at the Medico-Legal Laboratory in Kimberley was handed in by
consent and marked
as Exhibit “D”. The report details the
observations made by the pathologist and records that she observed a
body of
an “adult female with multiple penetrating stab wounds
to the neck, torso, and left arm, with damage to the left jugular
vein, multiple intercostal spaces on the right and left, both lungs
and the heart. The brain is macroscopically swollen with flattening

of the gyri. The brain, lungs, liver, spleen and both kidneys are
pale in colour. Both kidneys are swollen on cut section.”
[33]
The pathologist concludes that the cause of death is as a result of
exsanguination (severe loss
of blood) as the result of multiple stab
wounds to the neck, torso and left arm.
[34]
In
S v Matyityi
2011 (1) SACR 40
(SCA)
the Supreme Court of
Appeal stated the following at paragraph 13 regarding remorse:
“
Remorse
was said to be manifested in him pleading guilty and apologising,
through his counsel (who did so on his behalf from the
bar) to both
Ms KD and Mr Cannon. It has been held, quite correctly, that a
plea of guilty in the face of an open and shut
case against an
accused person is a neutral factor. The evidence linking the
respondent to the crimes was overwhelming. In addition
to the stolen
items found at the home of his girlfriend, there was DNA evidence
linking him to the crime scene, pointings-out
made by him, and
his positive identification at an identification parade. There is,
moreover, a chasm between regret and remorse.
Many accused
persons might well regret their conduct, but that does not without
more translate to genuine remorse. Remorse is a
gnawing pain of
conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgement
of the extent of
one's error. Whether the offender is sincerely remorseful, and
not simply feeling sorry for himself or herself
at having been
caught, is a factual question. It is to the surrounding actions of
the accused, rather than what he says in court,
that one should
rather look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused
must take the court
fully into his or her confidence. Until and unless that happens, the
genuineness of the contrition alleged
to exist cannot be determined.
After all, before a court can find that an accused person is
genuinely remorseful, it needs to have
a proper appreciation of,
inter alia: what motivated the accused to commit the deed; what has
since provoked his or her change
of heart; and whether he or she
does indeed have a true appreciation of the consequences of those
actions. There is no indication
that any of this, all of which was
peculiarly within the respondent's knowledge, was explored in this
case.”
[35]
I am of the view that the fact that the accused handed himself over
to the police immediately
after the commission of the offence and
pleaded guilty, does not in itself amount to remorse. In my view, it
is a demonstration
of regret for his actions.
[36]
In as far as the accused’s personal circumstances are
concerned, it is worthy to note what
was articulated by Nugent JA in
S v Vilakazi
2009 (1) SACR 552
(SCA)
where the court stated as
follows:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background”.
[37]
It is my considered view that the accused has been found guilty of a
serious offence and ordinarily,
his personal circumstances ought to
recede into the background.
Interests of society
[38]
As I have stated above, in considering the submissions by the defence
and the State, I have to
be mindful of the interests of society,
given the manner in which the offence was committed by the accused.
Society looks up to
the courts to mete out severe and serious
punishment for criminal conduct similar to the one upon which the
accused has been convicted.
[39]
Members of society expect courts to send a clear and unambiguous
message to all that acts of
cowardice, like taking the lives of
women, cannot be condoned. As such society expects severe and stern
sentences to be meted out
in cases of this nature.
[40]
As I have stated herein above, the law requires this Court to deviate
from the imposition of
prescribed minimum sentences only where there
are weighty justifications for such deviation and the imposition of a
prescribed
sentence would result in an injustice, given the gravity
of the offence and the personal circumstances of the accused.
[41]
I must hasten to state that in the absence of prescribed minimum
sentences, the kind of crime
committed by the accused in this case
would most likely have invited the imposition of the maximum sentence
which a court of law
is permitted to impose and I am of the firm view
that the personal circumstances of the accused as outlined above do
not justify
a deviation from the prescribed minimum sentences.
CONCLUSION
[42]
I have had due regard to the seriousness of the offence involved, the
interests of society which
calls out for stern sentences against
perpetrators of gender based violence and the personal circumstances
of the accused.
[43]
Consequently, I find that there are no substantial and compelling
circumstances in the present
case that would lead to the imposition
of a lesser sentence other than the minimum prescribed sentence in
relation to the offence
which the accused was convicted upon.
[44]
Therefore in respect of the charge of murder read with the provisions
of
section 51(1)
of the
Criminal Law Amendment Act, No. 107 of 1997
,
as amended, read with
section 1
of the
Domestic Violence Act, No. 116
of 1998
, the accused, SAMSON MALOTHE is sentenced to LIFE
IMPRISONMENT.
[45]
The Accused is also declared unfit to possess a firearm in accordance
with the provisions of
section 10
3(1) of the
Firearms Control Act 60
of 2000
.
O.K. CHWARO
ACTING JUDGE HIGH
COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
28 AUGUST 2024
Obo
State:
Adv.
L. Pillay
On
instruction of:
The
NDPP
Obo
Accused:
Mr. H.
Steynberg
On
instruction of:
Legal
Aid SA
[1]
Paragraph
(g) of Part I of Schedule 2 to Act 105 of 1997 was substituted by
section 15(a) of the Criminal and Related Matters
Amendment Act, No.
12 of 2021 which came into effect from 5 August 2022