SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NUMBER: CC31/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED : YES
DATE: 13 January 2025
SIGNATURE:
In the matter between:
THE STATE
and
JACOB BHUTI MLAMBO Accused 1
MISHACK MABUSA MATSHIYA Accused 2
MFUNDO INNOCENT MLAMBO Accused 3
P[…] M[…] J[…] Accused 4
F[…] L[…] M[…] Accused 5
THOMAS MOSES KABINI Accused 6
PAULINAH ZANELE MASANGO Accused 7
LANCELOT SIPHO MTHIMUNYE Accu sed 8
SIMON PATRICK NXUMALO Accused 9
PAULINAH NURSE SIBIYA Accused 10
TRYPHINA NTOMBIFUTHI SIBIYA Accused 11
JUDGMENT ON SENTENCE
AVVAKOUMIDES AJ
THE SENTENCE AND APPLICABLE LEGAL FRAMEWORK
1. The 11 accused were found guilty of the murder (read with the provisions of
section 51(1) of the Criminal Law Amendment Act 107 of 1997) of Lehlohonolo
Joseph Sekhotho (the deceased), in that they intentionally and unlawfully, acting in
the execution, o r furthering of common purpose, killed the deceased. In addition,
accused 1, 2 and 3 were convicted by this court of kidnapping as charged.
2. Section 51 of Act 105 of 1997 has been amended by section 33 of Act 62 of
2000 and section 36 of Act 12 of 2004 by the inclusion of the word "Discretionary".
The heading of the subsection now reads as follows: " Discretionary minimum
sentences for certain serious offences ".
3. I find it necessary to deal with the relevant provisions of the section.
4. Section 51 (1) provides that, notwithstanding any other law, but subject to
subsections (3) and (6), a regional court or a High Court shall sentence a person:
(a) if it has convicted a perso n of an offence referred to in Part I of
Schedule 2; or
(b) … shall sentence the person to imprisonment for life.
5. Subsection (3) (a) provides that if any court referred to in subsection (1) or (2)
is satisfied that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence, than the sentence prescribed in those subsections, it
shall enter those circumstances on the record of the proceedings and must
thereupon impose such lesser sentence.
6. Before I deal with the question of su bstantial and compelli ng circumstances it
is necessary to briefly deal with the relevant cases on sentencing in general and the
factors which a court must c onsider in the sentencing process.
7. It is trite that in sentencing proceedings the poi nt of departure by courts are to
consider th e offender, the offence and the interest s of society. See S v Zinn 1969 (2)
SA 537 (A).
8. This case has taken over three and a half years to finalize mainly because the
court could only sit during the various periods of recess, commencing after the
March 2021 court term. This court sitting periodically during the recess periods
follow s the Judge President's directive on part heard cases.
SUBSTANTIAL AND COMPELLING CIRCUMSTANCES
9. What constitutes substantial and compelling circumstances as envisaged in
section 51(3)(a) of the Criminal Law Amendment Act? The term 'substantial and
compelling circumstances ' has not been defined.
10. In terms of Section 51(3)(a) of the Criminal Law Amendment Act 105 of 1997
(the Act, as amended), a court is, instead, granted discretion to impose a lesser
sentence than that one prescribed by the Act whe re 'substantial and compelling
circumstances ' exist. There is no definitive answer to the question of what
'substantial and compelling circumstances ' are.
11. In general, a court must evaluate all the evidence, including the mitigating and
aggravating fac tors, to decide on a sentence but in cases where minimum sentences
are legislated, as in this case , a court must consider whether substantial and
compelling circumstances exist to deviate from the prescribed minimum sentence.
The courts must be aware that the legislature has legislated a particular sentence for
such an offence and there must be convincing reasons to depart therefrom, which
must be recorded, when departing from the prescribed sentence.
DISCUSSION OF APPLICABLE CASE LAW
12. The courts hav e not defined the meaning of the phrase 'substantial and
compelling circumstances ', even though the imposition of sentence is pre-eminently
the domain of a sentencing court. The determination of the existence of 'substantial
and compelling circumstances ' can thus only be arrived at on a case -by-case basis.
All the circumstances, including the factors traditionally considered by courts when
sentencing offenders must be considered. For circumstances to qualify as
substantial and compelling, they 'need not be 'exceptional ' in the sense that they are
seldom encountered or rare, nor are they limited to those which diminish the moral
guilt of the offender' (see S v Pillay 2018 (2) SACR 192 (KZD) at paragraph 10).
13. In S v Pillay the accused was convicted of the murder of Annelene Pillay (the
deceased), committed under circumstances contemplated in s 51, part I of schedule
2 of the Act, in that the state alleged the offence was planned or premeditated (count
1), and, possession of a firearm in contravention of s 3 of the Firearms Control Act
60 of 2000 read with s 51, part II of schedule 2 of the Act (count 2). The issue which
concerned the court was whether to impose the prescribed minimum sentences of
life imprisonment in respect of count 1 - and 15 -years' imp risonment in respect of
count 2, or whether to deviate from such sentences.
14. Henriques J stated that where a court is convinced, after considering all the
factors, an injustice would follow if the minimum sentence is imposed, then it can
characterise such factors as constituting substantial and compelling circumstances
and de viate from imposing the prescribed minimum sentence.
15. Henriques J referred to S v Vilakazi 2009 (1) SACR 552 (SCA), where the
court (in Vilakazi) explained that particular factors, whether aggravating or mitigating,
should not be taken individually and in isolation as substantial or compelling
circumstances. In deciding whether substantial and compelling circumstances exist,
one must look at traditional mitigating and aggravating factors and consider the
cumulative effect thereof. When sentencing, a cou rt considers the personal
circumstances of an accused. However, only some carry sufficient weight to tip the
scales in favour of the accused to impact on the sentence to be imposed. Often the
fact that the accused is young and is a first offender has the e ffect of reducing a
sentence.
16. The minimum sentences have been legislated to be the sentences that must
ordinarily be imposed unless the court finds substantial and compelling
circumstances, which justify a departure therefrom. In addition, the Supreme Court of
Appeal has indicated that the minimum sentences must not be departed from for
'flimsy reasons ' and are the starting point when imposing sentence.
17. In the event of substantial and compelling circumstances not existing, a
sentencing court is th en entitled consider departing from imposing the prescribed
minimum sentences, if it is of the view that having regard to the nature of the o ffence,
the personal circumstances of the accused, and the interests of society, it would be
disproportionate a nd unjust to do so. This is often referred to as the proportionality
test. In my view however, the proportionality test must be viewed against all the
circumstances of the case, particularly the interests of society in violent and serious
crimes.
18. Mand atory minimum sentences should be approached with a degree of
caution, because, though there is a discretion to deviate from the prescribed
sentences under s 51(3)(a) of the 1997 Act, as amended, courts may easily do so for
"flimsy" reasons.
19. There hav e been views expressed over the years that substantial and
compelling circumstances can be found in traditional mitigating factors. If the
imposition of prescribed sentences is disproportionate to crime, criminal and
legitimate needs of society , that on it s own, constitutes substantial and compelling
circumstances justifying a lesser sentence than life imprisonment.
20. In S v Malgas 2001 (1) SACR 469 (SCA) the court stated "that the
circumstances in which the crime was committed are undoubtedly such as to render
it necessary to impose a sentence of imprisonment for life unless substantial and
compelling circumstances justify a lesser sentence. The court held that the 'shooting
was premeditated and planned'. The fact that the planning and premeditation
occu rred not long before the deed was accomplished cannot alter that. It was also
carried out in the execution of a common purpose to kill the deceased. Giving all due
weight to the enormity of the crime and the public interest an appropriately severe
punishme nt being imposed for it, the court considered that the personal
circumstances of the accused (her relative youth, her clean record and her
vulnerability to Carol's influence by reason of her status as a resident in the latter's
home at the latter's pleas ure) and the fact that she was dragooned into the
commission of the offence by a domineering personality are strongly mitigating
factors. "As a fact she gained nothing from the commission of the crime. Her
remorse cannot be doubted and her spontaneous conf ession which brought to light
the commission of a crime which would otherwise have gone undetected is
deserving of recognition in a tangible sense." "She is young enough to be
rehabilitated and there is a real prospect even after a long period of imprisonm ent.
"These circumstances, cumulatively regarded, satisfied the court that a sentence of
life imprisonment would be unjust. They qualify therefore as substantial and
compelling circumstances within the meaning of the provision. None the less, it
remains a particularly heinous crime of the kind which the legislature has singled out
for severe punishment and the sentence to be imposed in lieu of life imprisonment
should be assessed, paying due regard to the benchmark which the legislature has
provided." The J udges' view was that imprisonment for twenty -five (25) years is
appropriate. This was an appeal against a sentence of life imprisonment.
21. Marais JA said at: "C. Unless there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in question are therefore
required to elicit a severe, standardised and consistent response from the courts. D.
The specified sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offen der, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy underlying
the legislation, and marginal differences in personal circumstances or degrees of
participation between co -offenders are to be exclude d."
22. In S v Vilakazi 2009 (1) SACR 552 (SCA) at para 58, Nugent JA said the
following: In cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background . Once it becomes clear that
the crim e is deserving of a substantial period of imprisonment the questions whether
the accused is married or single, whether he has two children or three, whether or
not he is in employment are in themselves largely immaterial to what that period
should be, and those seem to be the kind of flimsy grounds that S v Malgas case
said should be avoided. But they are nonetheless relevant in another respect. A
material consideration is whether the accused can be expected to offend again.
While that can never be confiden tly predicted his or her circumstances might assist
in making at least some assessment.
23. In S v Matyityi 2011 (1) SACR 40 (SCA) the court referred to the fact that
such deviations must be based on convincing reasons. Ponnan JA, at para 14, said:
'Turni ng to the respondent's age: ... Thus, whilst someone under the age of 18 years
is to be regarded as naturally immature, the same does not hold true for an adult. In
my view a person of 20 years or more must show by acceptable evidence that he
was immat ure to such an extent that his immaturity can operate as a mitigating factor.
At the age of 27 the respondent could hardly be described as a callow youth.'
24. I am aware that in S vs Rabie 1975 (4) SA 855 (A) at 861 -2 Holmes JA
reminded judicial officers of the importance of being fair to both the accused and to
society in handing down sentence. Justice includes the element of mercy which is
the hallmark of a civilized and enlightened criminal justice system. And in the same
case at p866 Corbett JA eloquently summarized the approach as follows:
"A judicial officer should not approach punishment in a spirit of anger because,
being human, that will make it dif ficult for him to achieve that delicate balance
between the crime, the criminal and the interests of society which his task and
the objects of punishment demand of him. Nor should he strive after severity,
nor, on the other hand, surrender to misplaced pit y. While not flinching from
firmness where firmness is called for, he should approach his task with a
humane and compassionate understanding of human frailties and the
pressures of society which contribute to criminality. It is in the context of this
attitude of mind that I see mercy as an element in the determination of the
appropriate punishment in the light of all the circumstances of the particular
case."
25. The point of departure in sentencing is to have regard to the three
inter connected factors r elevant to an appropriate punishment. It is the Court's task
to have regard not only to the offender, but also the offence itself and the interest
which society has in the imposition of a suitable sentence (S v Zinn 1969 (2) SA 537
(A).
26. During sente ncing the court must also be directed at addressing the traditional
purposes of punishment. These are deterrence, prevention, retribution and
rehabilitation of the offender. At the end of it all, it is the unenviable task of the Judge
to achieve a proper b alance amongst these competing factors and ultimately arrive
at a sentence that is just. For that is what the Constitution ultimately requires that a
Court must strive for: justice.
ONGOING VIOLENT CRIMES
27. Minimum Sentence Legislation: The emergence of a new political order and a
constitutional democracy did not bring about an end to the social ills which plagued
our society for so many d ecades and continue to do so. Levels of serious and violent
crime· continued, and continue, to increase to unprece dented levels and Parliament
saw it necessary to step in and address the problem. In 1997 the Legislature passed
the Criminal Law Amendment Act, 105 of 1997 ("Act 105") which was intended to
prescribe a variety of mandatory minimum sentences to be imposed by our courts in
respect of a wide range of serious and violent crimes. This was said to reflect the
stern voice of the people in response to crimes which were perceived to be reaching
epidemic proportions.
28. In terms of Schedule 2, Part 1 to Act 105 t he murder count in this case
attracts the minimum sentence of life imprisonment on two bases. First, because the
death of Mr Sekhotho was caused by the accused. They intentionally, hit, kicked and
struck the deceased repeatedly with fists, feet and sticks and large objects. This is
after tying up the deceased with a rope around his arms and feet, tying the tied -up
hands to his tied -up legs together, thus rendering him unable to defend himself.
Furthermore, the sentence is applicable because " the offence was committed by the
accused acting in the execution or furtherance of a common purpose or conspiracy ".
29. All factors traditionally are taken into account in sentencing (whether or not
they diminish moral guilt) thus continue to play a role; none is exclud ed at the outset
from consideration in the sentencing process. All the traditional factors relating to the
accused have been taken into account by this court.
30. The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ("substantial and compelling") and must
be such as to cumulatively justify a departure from the standardized response that
the Legislature has ordained.
31. If the sentencing court on consideration of the circumstances of the part icular
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 less er
sentence. In so doing, account must be taken of the fact that crime of that particular
kind has been singled out for severe punishment and that the sentence to be
imposed in lieu of the prescribed sentence should be assessed paying due regard to
the b enchmark which the Legislature has provided.
32. Since the delivery of the judgment in Malgas the provisions of Section 51(3)
were amended in 2007 when the word "must" replaced the word "may" therein,
thereby directing a court not to impose a life sentenc e if substantial and compelling
circumstances are found to exist. Accordingly, the summary provided by Marais JA
in that judgment would now read "is obliged to impose a lesser sentence."
THE OFFENCE
33. The offence, and the events leading to the offence, were horrific. The
deceased attempted to rape a young female child. Before the deceased could go
ahead with the rape, and, because of the screaming by a friend of the young girl and
several other comm unity members, accused 1, 2, and 3 managed to run towards a
yellow shack and accost the deceased. An altercation ensued. Accused 1, 2 and 3
emerged from the shack with the deceased, bound as aforesaid and he was already
bleeding from his ear. He was dragge d outside when they kicked him on the head
and his body.
34. The reality of the situation is that the deceased did hot go through with the
rape because he was accosted by accused 1, 2 and 3. Their evidence was not that
they witnessed the rape. They accost ed the deceased who was kneeling in front the
young girl and he had his underwear pulled down. When they accosted the
deceased, the little girl managed to run out of the shack to look for her mother and
family. The young girl ran to safety and was no lon ger in danger. Very little was
submitted to the court about the well being or not of the young girl, who suffered the
most abhorrent events. It appeared later that the blood that was present on her dress
and seen by some members of the community appeared t o come from her menstrual
cycle, probably caused by the immense fear of what she was facing.
35. The deceased was not a danger to anyone after having been tied up. The little
girl fled and was safe. During the continuous assault on the deceased the young girl
was taken to the clinic by one of the deceased's brothers. Accused 5 confirmed that
at the clinic she was assured that her daughter had not been raped. At that stage,
according to accused 1, he had already called the police by using his cell phone.
This aspect is crucial because of the position accused 1 holds in the community. He
is the traditional leader and is a member of the royal council of the Royal
Tribunal/house. The community is respectful to accused 1 and his word is not easily
gainsaid.
36. It was submitted for the first time during the sentencing proceedings that
accused 1, 2 and 3 laboured under the impression that the deceased had
commenced with the act of rape. After the altercation in the yellow shack, accused 1,
2 and 3 started the ass ault on him outside of the shack. As things unfolded the other
accused participated in the assault each of them coming forward and assaulting the
deceased by using sticks, hands, feet and other objects.
37. Thereafter, the deceased was dragged along by accused 1, 2 and 3 to the
adjacent RDP house (all on the property of accused 1) where they lay the deceased
on the ground and the accused took turns to strike the deceased. Eventually, after all
the accused partook in the assault, the deceased was dragged outside the property
of accused 1 and left there, dead.
38. All of the accused were adamant in their evidence in chief that they never took
part in the assault and kidnapping. Notwithstanding eyewitnesses who saw the
assault, each accused, maintained inno cence. After all the state witnesses testified,
counsel for accused 7 put it to all the state witnesses that she had not assaulted the
deceased at all. However, after re -examination by the state of Tshepo, counsel for
accused 7 sought leave to make a secti on 220 admission on behalf of accused 7 to
the effect that when accused 7 arrived at the scene and the deceased was outside
on the street, she admitted picking up a black pipe and assaulting the deceased on
his private parts. She is right handed but becau se of a prior stroke (her own version)
she could not use her right hand and used her left hand instead to assault the
deceased. Accused 7 confirmed the admission. The admission came after the
version of accused 7 was put to Sibongile, Percy and Tshepo (sta te witnesses) to
the effect that accused 7 had not assaulted the deceased at all.
39. The evidence of accused 1 to the effect that no one would listen to him and
wait for the police to arrive is contrived in my view. I cannot align myself with this
explanation, given his position in the community and the authority with which
accused 1 is vested. I have dealt with this aspect in my judgment on the conviction of
the accused. A lot of emphasis was placed on the position of accused number 1 in
the community, even by accused number 8 who testified that one could not find and
settle in a home in the village unless you are approved and accepted by accused
number 1.
40. The accused procured pre -sentencing reports on their behalf, and I shall deal
with the report s in respect of each of the accused.
ACCUSED NUMBER 1
41. Accused number 1 was born on 19 April 1964. The report states that he called
the police and was told by a police officer to keep the deceased safe while the police
were on their way. The report s tates that when he entered the shack accused 2 and
3 had already tied the deceased up and noticed some people throwing rocks. In his
evidence in chief however he testified that he executed a civil arrest when
participated in tying up the deceased. Througho ut the trial it was accepted that
accused 1 wields substantial power in that he is a member of the school governing
body, he is a member of the traditional council and, generally, he is held in high
regard by the local community.
42. I note that the probation officer's report states further that accused 1 decided
to move the deceased into his RDP house because the door of the shack had been
broken. According to the parole officer accused 1 stated that he felt the RDP house
would be safer. He stated further that the deceased was kicked on his head by the
deceased's own brother and people who saw this assault wanted to join in. Two of
the deceased's brothers testified on behalf of the state. There was no evidence of
either of the br others assaulting the deceased, excepting a denial of the accusation
by Percy, the brother in question. Accused 1 was able to identify the mother of the
young victim and Percy but insofar as the other people around the deceased, he
maintained that he did n ot know them and referred to them as members of the
community. This is merely an observation.
43. The version furnished to the probation officer differs materially from
accused 1's evidence in chief. For example, he told the probation officer that he left
the RDP house, while the deceased was alive and bleeding from the kick by Percy
however in his evidence in chief, he maintained that at the time accused 5 arrived,
she wanted to lash out and hit the deceased; but he stopped her. Moreover, and
crucially, h aving not testified as to the identity of the community members who
allegedly removed the deceased from the RDP house, he explained to the probation
officer that the deceased was removed from the RDP house by the child's family,
and they assaulted the dece ased with a stick and a pipe. Again, I mention this
evidence simply as an observation and it should not be construed that I am justifying
the conviction ex post facto.
44. According to the probation officer the village is under policed /there is a lack of
effective policing which may lead to a culture of impunity in a community. According
to the probation officer accused number 1 does not acknowledge that he contributed
to the murder of the deceased and that he lacks remorse. Despite illustrating in det ail,
the dire circumstances of the village Sokhulumi, the probation officer recommends
that accused number 1 be placed under correction supervision under section 276 (1)
(i) of the Criminal Procedure Act 71 of 1977. This would mean that the accused
would r eturn to his home and, for a period of approximately 3 years, would be
subject to house arrest and be obliged to comply with such conditions which the
Department of Correctional Services would assign to the accused. These conditions
include and are not lim ited to orientation programs which the accused would have to
attend, house detention and community service and that he be monitored by
Correctional Services by means of unannounced visits and compulsory visits to the
community corrections office for consul tation purposes. I cannot align myself with the
probation officer's recommendation, having considered the entire report, and those in
respect of the other accused where correctional supervision under section 276 (1) (i)
is recommended. I must express conce rn whether due and proper consideration was
given to the recommendation, given the poor services, under policing and lack of
effective policing noted by the probation officer and the ongoing and prevalent
offences which occur and making self -help the order of the day.
ACCUSED NUMBER 2
45. The general comments of the probation officer in respect of accused 1 about
the conditions of the village and lack of services are equally applicable to all other
accused. The recommendations of correctional supervisio n in respect of the other
accused, where applicable are, in my view, similarly concerning and, whether due
and proper consideration was given to such recommendations. Accused number 2
also obtained a probation officer's report. Accused number 2 admits tyin g up the
deceased with the assistance of accused 3. I simply note this in the report. The
report highlights that accused 2 does not acknowledge that he contributed to the
murder of the deceased. The probation officer stated that he does not take any
blame. The probation officer states that it would be speculative to determine whether
a person could be rehabilitated or not, however, rehabilitation cannot be achieved
without the person acknowledging his error and accepts responsibility for his actions
by show ing remorse.
46. The probation officer referred to the Vilakazi case referred to above to
illustrate that in cases of serious crimes the personal circumstances of an accused
will necessarily recede into the background, and, whether the accused has childre n
or is married would be flimsy reasons to be avoided with reference to the Malgas
case, also referred to above. The probation officer is of the opinion that accused 2 is
unlikely to be rehabilitated and recommends direct imprisonment.
ACCUSED NUMBER 3
47. Accused 3 is the son of accused 1. I note that accused 3 told the probation
officer that accused 4 and 5 and other people "flocked in" and community members
were threatening to burn down the house of accused 1 if the deceased was not
released. Accused 3 said that he then left to go to the shops. On his way back he
met with Thomas Kabini, accused 6 who was carrying wooden logs. When he and
accused 6 returned to the scene accused 6 hit the deceased three times on the head
with the log and the deceased di ed immediately.
48. According to accused 3, after the deceased died, community members
dispersed. Accused 6 walked away and he, accused 3, walked towards the soccer
grounds. Accused 3 does not acknowledge the commission of the offence. He
mentioned that h e was too afraid to say that it was accused 6 who killed the
deceased. I simply note the information given to the probation officer. Accused 3
verbalises sincere remorse whilst stating that he was angry with the deceased
because of what he did. The probati on officer reported that it could be taken as
aggravating that accused 3 pleaded not guilty but found guilty and this may question
his remorse. The report continues to state that despite the deceased being assaulted
in a brutal and violent manner by numero us members of the community, acting in
common purpose, the deceased did not stand a chance against the overwhelming
acts of violence. He did not pose any danger and instead of waiting for the police,
the community took the law into their own hands and ki lled the deceased. The
probation officer recommends correctional supervision in terms of section 276 (1)(i).
49. Accused 3 is a breadwinner and employed at Sandton Plant Hire. He has a
child which he contributes to monthly.
ACCUSED NUMBER 4
50. Accused 4 is the father of the young girl who was the innocent victim. He too
pleaded not guilty. When he heard the report about K […], his wife, accused 5 ran to
the scene and he later followed. When he arrived at the scene, he probed accused 1
as to what had happened whereupon accused 1 told him that the deceased was
attempting to rape K […]. They then restrained him (the deceased) by tying his hands
and feet and he was told by accused 1 that he had called the law enforcement, and
they were on their way.
51. He went to Bangiswani's house to find his daughter and wife and as he
arrived accused 5 and their daughter were coming out. Accused 5 and the daughter
then went to the police station with the deceased's brother. He returned to his house.
The deceased was still alive and was locked inside the RDP house of accused 1
when he returned home. The community members gathered outside accused
number 1·s house and demanded the release of the deceased. He stated further that
approximately 16h00 he no ticed about 8 police vehicles passing his house and he
then went to see what was happening and discovered that the deceased was dead.
Despite the aforesaid he stated to the probation officer that he did assault because
he was frustrated, confused and act ed out of anger. He did not intend to kill the
deceased. He asserted that any parent would have responded the same way. He
acknowledges that mob justice is not an acceptably practice and stated that
Sokhulumi community is an aggressive community.
52. The aggression in the community is caused by anger and frustration about the
circumstances in the community and stems from the criminal justice system and lack
of police visibility and trust between the community and the police. Accused 4 does
not acknowledge that he murdered the deceased. He admits hitting the deceased 3
times with a water pipe. He also identified accused 6 as having hit the deceased with
a hard object.
53. Accused 4 is a fist offender and is one of 11 children. He is married to
accused 5 and they have two children together. He says he is the sole breadwinner
but at the same time states that his wife is employed with the Expanded Public
Works Program. The probation officer, under the topic of various sentence options
states that accused 4 has been convicted of a serious criminal offence that justifies a
sentence of direct imprisonment. This notwithstanding the probation officer
recommends correctional supervision in terms of section 276 (1) (h) of the Act.
ACCUSED NUMBER 5
54. Accused 5 is the mother of the young girl who suffered an attack on her by the
deceased. A report was obtained on her behalf as well. She maintained that she was
angry at the deceased and wanted to assault him but was prevented by accused 1.
This was her ev idence in t he merits trial. She stated to the probation officer that s he
was angry and hit the deceased with her hands. She told the probation officer that
she saw her daughter being comforted by someone. I note that instead of assisting
her daughter she ran to the house of. accused 1 to and was very angry. She started
hitting the deceased with her hands. While she was assaulting Le hlohonolo, (the
deceased) his brother Tshepo arrived and asked her to stop the assault and wait for
the police officials. She argued wit h Tshepo but held onto the deceased and hit him.
Tshepo asked her to accompany her to the hospital with K […].
55. While they were at the hospital they were told to first go to the SAPS and then
return to the hospital. At the hospital she was informe d that K […] had not been raped
but that she was menstruating. She told the probation officer that she takes full
responsibility for the offence and admits guilt. She regrets acting the way she did on
that day and that her actions led to the death of the deceased. Accused 5 told the
probation officer that as soon as she appeared in court, (presumably the Magistrates
Court) she admitted guilt and took full responsibility for the offence. She did s o
because she was worried about her family members who w ere a rrested and there
was no peace at home. The family was fighting physically and verbally, and she was
not coping with the tension and trauma.
56. Accused 6 is the brother of accused 5. According to accused 5 he does not
assist her at all and when h e receives any money, he spends it on alcohol. I simply
take note of the allegations. According to the probation officer accused 5 was honest
and willing to p rovide her version of the offence. She shows remorse and regret and
takes full responsibility whil st acknowledging that she participated in the commission
of the offence. The probation officer stated that circumstances which may be
considered as substantial and compelling are that accused 5 is a first offender, she
pleaded guilty to the charges (whi ch is not accurate, the accused having pleaded not
guilty), she displays remorse and regret for assaulting the deceased. Furthermore,
her actions contributed to the death of the deceased. The probation officer
recommends correctional supervision under sect ion 276 (1) (h) of the Act.
57. An addendum report was procured dealing with the wellbeing of the child
O[…], if accused 5 would receive a custodial sentence. According to this report there
are persons who would look after the child who is about 13 years' old, according to
the rep orts.
ACCUSED NUMBER 6
58. Accused number 6 is the brother of accused 5. He told the probation officer
that he was sitting and consuming alcohol on the day of the murder in a tavern. He
was with friends. They all went outside upon hearing the screamin g. He enquired
about his sister's child and was told that she had gone to the clinic. After hearing this
he went back to the tavern
59. Accused 6 is a first offender and unemployed. The probation officer stated
that within the psychological functioning of accused 6 he was not able and willing to
provide any version to the probation officer. He only provided limited information and
does not display and verbalise remorse or regret for the offence that he was
convicted of. He denies committing the offence or participating or obs erving the
offence. He is dissatisfied with his conviction for an offence that he did not commit.
The probation officer observed him as arrogant, not trustworthy and dishonest. The
probation officer recommends a custodial sentence for accused 6.
60. A supplementary report in respect of accused 6 was obtained. In this report
he stated to the probation officer that he heard community members saying that he
killed a person. He was under the influence of alcohol and cannot recall any thing but
believes that the community members and other co -accused are telling the truth. He
requests forgiven ess a nd is willing to accept any sentence from the court . In the
supplementary report he admits the offence and takes responsibility for his act ions.
At the time of meeting with the probation officer to compile the supplementary report
he appeared to be under the influence of alcohol.
ACCUSED NUMBER 7
61. A probation officer's report was also obtained for accused number 7. She
states that as she was walking to the scene of the event, she experienced emotions
of anger and hurt towards the deceased. Accused 7 observed the deceased lying
down on the floor with his hands tied up and had been severely assaulted by the
community. She admits her i nvolvement in the offence however explained that it was
not her intention for the deceased to be killed but only to be punished for the crime
that the deceased had allegedly committed. She only found out later that there was
no rape on K […].
62. Accused 7 is a first -time offender and has two children. She lives close to her
family. She feels sorry for the family of the deceased as he did not deserve to die in
such a brutal and violent manner. Accused 7 regrets participating in the offence that
result ed in the deceased's death. Accused 7 stated that she deserves to be
sentenced to prison. Her sister will take care of her child.
63. Accused 7 accepts her involvement and verbalises regret. She acknowledges
the severity of the offence and the consequence s of her actions. She shows
empathy to the deceased's family. According to the probation officer's report
accused 7 is evaluated as a candidate that can be rehabilitated in the community.
The probations officer nevertheless states that the serious nature o f the offence and
the way the defenceless deceased was killed points to an unconscionable level of
barbarism and lack of humanity from the accused and her co -accused. The
probation officer's report recommends correctional supervision for accused 7 under
section 276 (1) (h) of the Act.
64. A supplementary rep ort was procured on behalf of accused 7 dealing mainly
with the wellbeing of her one child if she is sent to prison. I note that arrangements
have been made in this r egard and ,by all accounts there are no concerning issue s
in the r eport.
ACCUSED NUMBER 8
65. Accused number 8 is a first offender. He denies the charge of murder and
alleges that he only accompanied his brother away from the scene and did not even
see the deceased. He is unemployed and dependent upon his father and unable to
contribute to the maintenance of his own child. According to the probation officer,
elements and factors relating to socio economic conditions and environmental
factors may have an impact on one's behaviour. The family background and culture
may influence people's behaviour.
66. Accused 8 maintains his innocence and could not furnish the probation officer
with any version. The probation officer does not identify any substantial or
compelling reasons why the court should not impose "the minimum sentence". The
probation officer lastly recommends th at the accused "is sentenced to imprisonment
in terms of sec tion 276 of the Act, as ame nded." (sic)
ACCUSED NUMBER 9
67. The probation officer reported that the accused saw a co -accused taking a
plastic pipe, which everyone has used to -beat the victim with and assault the victim.
Accused 9 took the pipe and hit the victim a few times . The same co accused took a
wooden log which he had uprooted from a fence and hit the victim on his hea d. The
community members were watching. Then accused 9 took his bicycle and rode off.
Accused 9 is of the opinion that he did not assault the victim to the extent that he
could lose his life. He saw the co -accused deliver what might have been the final
blow to the victim.
68. The accused is riddled with guilt and regret over what he terms as being at
the wrong place at the wrong time. He finds it hard to forgive himself and to accept
the court's judg ment. He suffers from anxiety and emotional distress and living at the
same place in the community is difficult because he is confronted with the current
situation without his wife for support.
69. The probation officer reports that the societal mentality of "taking care of
issues" or "keeping them in one's own hands" is prevalent and from this emerged the
acceptance of "vigilante violence" as a system of retribution. Limited access to SAPS
and poor service delivery has allowed violence to become normalis ed in the
community of Sokhulumi and the nearest police station is 33 kilometres way.
70. Despite pleading not guilty to the charges accused 9 reports a strong sense of
remorse and victim empathy. The serious nature of the offence does not however
justify a suspended sentence, according to the probation officer. The probation
officer recommends correctional supervision in terms of section 276 (h) of the Act.
ACCUSED NUMBER 1 0
71. Accused 10 does not admit that she committed the offence that she was
convicted of. She does not take responsibility for her actions. She told the probation
officer that she feels concerned and betray ed. She is a single parent and a
breadwinner. She mentioned that her conviction regarding the case was motivated
by hatred and jealousy by people who do not want to see her family succeeding. She
hopes that the court will be merciful to her for her children's sake. The probation
officer reported that the accused originates from a community which lacks legal
information. There is a close bond between community members, and this could
have impacted on the members of the community's conduct of taking the law into
their own hands. Accused 1 0 shows no remorse and does not take responsibility.
72. The probation officer reported th.at the accused has been convicted of a
serious and violent crime which resorts under mini mum sentence legislation. This
notwithstanding the probation officer recommends correctio nal supervision under
section 276 (1) (i) of the Act.
ACCUSED NUMBER 11
73. Accused number 11 maintains her innocence and indicated that she did not
go into the yard of the RDP house. She reported to the probation officer that she did
not even see th e deceased being hit as he was attacked whilst being inside the RDP
house. She· simply stood outside and inquired about the reason the victim· was
attacked. She· has a four -month -old child, and she suffers due to the consequences
of the decision she made t hat day. She has lost out on an opportunity to obtain her
degree in education. The probation officer reported that a suspended sentence is not
appropriate because of the seriousness of the offence. The minimum sentence is
prescribed and cannot be deviated from due to the seriousness of the offence.
74. The probation officer went on to report that imprisonment is seen as too harsh
a sentence even though the prescribed sentence is applicable. Accused 11
expressed sorrow over the death of the deceased. The pr obation officer reported
further that the accused was convicted because of the "notion of common purpose".
The probation officer reported that the accused's denial of involvement can question
the elements of remorse and acceptance of responsibility.
75. The probation officer is of the view that the accused should not be sentenced
to imprisonment because of her young child who would grow up without a mother.
The probation officer suggested that section 28 (2) of the Constitution, Act 108 of
1996·be taken into account regarding the best interests of the minor child. The
probation officer's recommendation is correctional supervision in terms of section
276 (1) (h) of the Act.
76. A supplementary probation officer's report was. obtained dealing with a
proposed foster parent . This person is the accused's mother and who lives in the
same village. The probation officer reported that the proposed foster parent has
done a commendable job of raising her own children and is described as a loving
arid responsible m other. Her household is clean and conducive to the upbringing of
children.
GENERAL COMMENTS ON THE PROBATIONS OFFICERS' REPORTS
77. I have read each report obtained on behalf of the accused and to the extent
that I do not deal with every aspect raised i n the various reports, this should not be
construed that I h ave not had regard to the whole of every report. I am aware that
the probation officer's' recommendation is limited to being a recommendation which
is not binding on a court .
78. I have had caref ul reg ard to the personal circumstances of, every accused,
whether in relation to the other accused to whom they are related, and individually.
All the accused have circumstances which would be affected by a sentence of direct
imprisonment . Of this there can be no doubt. I am particularly alive to the interests
and wellbeing of children who may suffer because of their parent/s being
incarcerated,
EVALUATION OF EVIDENCE ON SENTENCE
79. I have dealt with the probation officers' reports. In addition, I was furnished
with reports from Correctio nal Services d ealing with the system on how correctional
supervision is structured and what the system contains. The crux of the system is to
illustrate in respect of each accused under what conditions they would have t o serve
correctio nal supervision, for example: not consume alcohol or drugs, not leaving the
relevant magisterial district of the area concerned, refrain from making any contact or
threatening a person/s by word or action, being monitored by correctional officials by
unannounced visits, and the like. I do not find these recommendations and reports of
any assistance. The reports simply ignore the reality of the lack of services in that
area, as repeatedly stated by the probation officers and the actual evidence given by
most of the accused on the long delay of SAPS to arrive at the scene of the crime.
80. I have carefully considered all the submissions made by counsel on the
possi ble sentencing options. I do not intend to deal herewith in details but in my view
and given the f acts of this case and the evidence, I find that correctional supervision
is wholly inappropriate as an appropriate sentence.
81. Some of the accused, when t estifying appeared to me to be regretful for the
situation they find themselves in and regret for the family of the deceased. Whether
there is true remorse by any of the accused will remain unknown. One of the
probation officers reported on the difference between regret and true remorse,
stating that regret is often the emotion of being sorry for oneself whereas remorse is
the gnawing feeling one may feel for their actions towards others. Others steadfastly
refused to take responsibility.as stated above a nd in the reports of the probation
officers' reports. It warrants mentioning that all the accused pleaded not guilty. Their
evidence was a denial of having struck or assaulted the deceased or being involved
at all.
82. During the sentencing proceedings cou nsel for the accused argued that
substantial and compelling circumstances should be found in their respective
circumstances and the fact that they all laboured under the misapprehension that
K[…] has been raped and under such misapprehension, took th e matter into their
own hands. The assault took m ore than 1 hour. The police arrived about 4 hours
later. There is no onus on either the state or the defence to prove substantial and
compelling circumstances. This duty is that of the court which must eval uate all the
circumstances and if such circumstances appear to be present, these must be
stipulated and explained in the judgment, as a basis to deviate from the prescribed
sentence in question.
83. The accused are all related to each other except for acc used 9. Accused
number 1 had called the police whilst the deceased wa s bound in an inhumane
manner, as depicted in the p hotographs. The state argued that the deceased had
been secured and irrespective of how long the SAPS took to arrive makes no
differen ce. Despite protestations ·by Percy and Ts hepo to allow the SAPS to deal
with the incident in terms of the law, the assault unfolded from the yellows shack and
continued until the deceased was dead. The state argued that accused number 1
who held the position as a traditional leader stood back and allowed the assault to
continue when he was able to call everyone involved to order, according to the
powers he is vested with. Accused number 1 testified that he had nothing to do with
the assault except to execute a civil arrest and then maintained that the community
(unidentified) was responsible for the attack and ultimate m urder of the deceased .
84. The state referred to the case of OPP KwaZulu -Natal v Nqcobo and others
2009 (2) SACR 361 (SCA). In this case the trial court deviated from the prescribed
minimum sentence because they were first offenders and youthful. The trial court
handed down a 1 8-year sentence of imprisonment. The murder of the deceased
was gruesome. On appeal the court held that the imposition of a presc ribed
sentence need not amount to a "shocking injustice". The court stated that: " If
imposing the minimum sentence would be an injustice it should be departed from.
The tra ditional objectives of sentencing include retribution, deterrence and
rehabilitation. it does not necessarily follow that a shorter sentence will always have
a greater rehabilitative effect. The rehabilitat ion of the offender is but one of the
considerations when sentence is being imposed. " Of significance is that the court
highlighted that the nature of the offence related to the personality of the offender;
the justifiable expectations of the community ar id the effect of a sentence on both the
offender and society" are all part of the same equation . The court held further that
"courts are expe cted to dispense justice. The brutality of the murder is regrettably too
regular ly a part of life in South Afric a. Courts are expected to send out clear
messages that such behavi our w ill be met with the full force and effect of the law.
The legislature is concerned and s o should we too ".
85. The accused 1, 2 and 3, in respect of the kidnapping conviction subm itted
very little, if any, in respect of sentencing on charge number 2. I have taken into
consideration that all three maintain that they defended themselves against the
deceased because he was violent, that they assisted each other to restrain him fr om
leaving the area and, in respect of accused 1, that he executed a civil arrest. No
evidence was led as to how the civil arrest took place or whether accused 1 had
uttered any words to the deceased regarding a civil arrest.
CONCLUSION AND SENTENCE
86. Members of the public, wherever they may live, but particularly in informal
settlements and townships are exposed to violent crimes of various descriptions on a
regular basis and look to the courts for protection to which they are entitled. The
failure by courts t o respond adequately to the plight of such victims would result in
vigilantism, an ill which undermines the core of the constitutional order in South
Africa.
87. Consequently, having considered all the circumstances of the case, the
personal c ircumstances of the accused, the crime which was gruesome and the
interests of society, I am unable to find any substantial or compelling circumstances
to deviate from the prescribed sentence. That being the case I am persuaded that
the accused 1 to 11 m ust face the prescribed sentence on count 1.
88. Accordingly, accused number 1, on the charge of murder (read with the
provisions of section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is
hereby sentenced to life imprisonment. In addition, in re spect of count 2, on the
charge of kidnapping, the accused is sentenced to 3 years imprisonment. The period
of imprisonment of 3 years in respect of the conviction on count 2 is to run
concurrently with the term of life imprisonment imposed on Count 1.
89. Accused number 2, on the charge of murder (read with the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment. In addition, in respect of count 2, on the charge of kidnapping,
the accused is sentenced to 3 years imprisonment. The period of imprisonment of 3
years in respect of the conviction on count 2 is to run concurrently with the term of
life imprisonment imposed on Count 1.
90. Accused number 3, on the charge of murder (read with the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life impriso nment: In addition, in respect of count 2, on the charge of kidnapping ,
the ac cused is sentenced to 3 years imprisonment. The period of imprisonment of 3
years in respect o f the conviction on count 2 is to run concurrently with the ter m of
life imprisonme nt imposed on Count 1.
91. Accused number 4, on the charge of murder (read w ith the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment.
92. Accused numb er·5, on the charge of murder (read with the provisions of
section 51 (1) of the Crimin al Law A mendment Act 107 of 1997) is hereby sentenced
to life imprisonmen t.
93. Accused number 6, on the charge of murder (read with the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment.
94. Accused numb er 7, on the charge of murder (read with the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment.
95. Accused number 8, on the charge of murder (read with the provisions of
section 51 (1 -) of the Criminal Law Amendment Act 107 of 1997) is hereby
sentenced to life imprisonment.
96. Accused number 9, on the charge of murder (read with the provisions of
section 51 '(1) of -the Criminal Law Amendment Act 107 of 1997) is hereby
sentenced to life i mprisonment.
97. Accused number 10, on the charge of murder (read with the provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment.
98. Accused number 11, on the charge of murder (read with t he provisions of
section 51 (1) of the Criminal Law Amendment Act 107 of 1997) is hereby sentenced
to life imprisonment.
G.T. AVVAKOUMIDES
ACTING JUDGE OF THE HIGH COURT
GAUTENG, PRETORIA
REPRESENTATION FOR PARTIES:
FOR THE STATE : Ms E Kabini
Instructed by NDPP
FOR ACCUSED 1 : Adv O Matshego
Instructed by: Legal Aid
FOR ACCUSED 2 AND 7 : Adv Mogale
Instructed by: Legal Aid
FOR ACCUSED 3 : Adv P D Motsweni
Instructed by: Legal Aid
FOR ACCUSED 4 : Adv Mathunzi
Instruc ted by: Legal Aid
FOR ACCUSED 5 AND 9: Adv Rakobela
Instructed by: Legal Aid
FOR ACCUSED 6 AND 11 : Adv N Mazibuko
Instructed by: Legal Aid
FOR ACCUSED 8 AND 10 : Adv N Monyakane
Instructed by: Legal Aid
FOR ACCUSED 10 AND 11 : Adv Mazibuko
Instructed by: Legal Ai d