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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )

OF INTEREST
Case no: CC70/2024

In the matter between :

THE STATE

and

MTHUTUZELI MANYATHI Accused
__________________________________________________________________ _

JUDGMENT
___________________________________________________________________
Govindjee J

[1] Gender -based violence manifests in various forms, including physical harm. It
is mostly perpetrated by the current or former intimate partner and may end in the
murder of a female partner.1 Depending on various factors, such as location,
between 25 -65% of women in South Africa reported ever experiencing physical /

1 A van der Merwe ‘Sentencing’ (2023) 36 SACJ 341 at 349 .

sexual and emotional abuse by a current or ex -partner .2 The killing of women by
intimate partners (also known as intimate female homicide or intimate femicide) is
the most extreme form and consequence of violence against women.3 In S v
Kasongo (Kasongo ), expert testimony revealed that intimate femicide was much
more common in South Africa compared to other countries, with an average of
almost 3 women killed by their intimate partners per day.4

[2] Some experts have indicated that it is only by addressing t he underlying
reasons for intimate partner violence that any change in behaviour will occur.5 The
state has certainly attempted to stem the tide. To quote Thulare J:6

‘The actions of the State to confront gender -based violence and femicide have
included public communication which included advocacy initiatives and public
awareness campaigns as well as the creation and implementation of
legislative packages as part of the strategy to combat the two evils. The
legislative packages included the amend ments of laws … through the
introduction of provisions like minimum sentences as well as the introduction
of new thoughts [in legislation] … in an effort to upgrade the legal framework
which provided new tools and innovative means to deal with the problem.
These new tools and innovative means represent a deliberate effort and
paradigm shift intended to claw back the safety and security of women from
the deep throat of toxic machismo.’

[3] The judiciary is equally obliged to play its part in ensuring that presc ribed
minimum sentences , designed to reflect society’s opprobrium towards murder and
attempted murder linked to domestic violence, are not departed from without good
reason. Prescribed m inimum sentences are intended to contribute towards the
deterrence of violent crime and, thereby, the protection of women , communicat ing to
society th at perpetrators must expect to face the full force of the law. Through its

2 S v Kasongo [2022] ZAWCHC 224; 2023 (1) SACR 321 (WCC) (Kasongo ) para 14.
3 S Mathews et al ‘Every six hours a woman is killed by her intimate partner: A national study of
female homicide in South Africa’ MRC Policy Brief (No. 5) (June 2004).
4 Kasongo above n 2 para 15.
5 C Isike ‘Change what South African men think of women to combat their violent behaviour’ The
Conversation (4 October 2021) as cited in Van Der Merwe above n 1 at 352.
6 Kasongo above n 2 para 34.
judgments, the message must be conveyed that the proverbial foot has been put
down, that enough is enough.

[4] The accused has been convicted of attempted murder and murder as
contemplated in s 51(1) of the Criminal Law Amendment Act, 1997 .7 The
consequence is that the discretionary mini mum sentence prescribed for both crimes
is imprisonment for life.8 The question to be addressed is whether there are
substantial and compelling circumstances to deviate from this and whether life
imprisonment is proportionate to each of the crimes.

Natu re of the crimes and surrounding circumstances

[5] The accused and deceased were engaged in a domestic relationship for a
period of at least three years. On 3 December 2023 the accused and deceased were
both under the influence of alcohol. They started quarrel ling when the deceased
received two telephone calls, at least one being from an unidentified male person
who had been waiting for the deceased. The accused was ang ered by his suspicions
of infidelity. He poured the contents of a bottle of brandy that he ha d with him over
the deceased. She retaliated by throwing a can of cider at him. The altercation
became physical. At some point the accused took a glass, broke it and used it to
stab the deceased several times , causing lacerations on her head, face, neck and
hands. He admitted having foreseen the possibility that she might die from the attack
given the nature of the weapon and injuries, and reconciled himself with that
possibility. Although angry and under the influence of alcohol, he admitted that he
knew what he w as doing at the time.


7 Act 105 of 1997.
8 S 51(1): ‘Notwithstanding any other law, but subject to subsections (3) and (6) … 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. ’ S 51(3)( a): If any court referred to in su bsection (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…’ . Part I of Schedule 2 includes murder, when ‘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’. Part I of Schedule 2 also includes attempted murder in these circumstances.
[6] Less than six months later, on 18 May 2024, the accused and deceased
attended a traditional ceremony. They returned to their place of residence having
consumed a lot of alcohol. The accused still had h alf a bottle of brandy with him, and
the deceased three cans of cider. She prepared food for herself while the accused
went to bed. He awoke and noticed that the deceased was absent. He called her and
sent her messages telephonically but she did not answer . He then resumed drinking
alcohol.

[7] When the deceased returned, an altercation ensued, which soon turned
violent. The accused believed that the deceased was seeing another man and was
upset and angered by the perceived infidelity. He pushed her over the bed, after she
threw his phone behind a wardrobe and pushed him from behind, and then
proceeded to strangle her and apply various severe blunt force blows to her face and
head . This included pushing her against the wardrobe and repeatedly kicking her
and h itting her with a closed fist , causing two swollen black eyes, a large wound on
the front of the head, bleeding around the brain and lacerated lips . The strangulation
included grabbing the deceased by the throat with both hands as well as the use of
an obj ect such as a belt, which was placed around the deceased’s neck and pulled
tightly , leaving an impression . The photographs of the body accepted into evidence
reflect the horrific effect of the accused’s actions on the deceased’s head, face and
neck. In add ition to the severe physical pain that the deceased would have suffered,
the inability to breath would have caused the deceased anguish of the mind .

[8] Having strangled and assaulted the deceased in this manner, the accused
proceeded to the lounge and continued to speak to her before realising that she was
unresponsive and had died. He then covered the body with a blanket and left the
house. On a conspect us of the facts, including inferences drawn from the
circumstances, and based on various authorities , this court concluded that the state
had proved its case on the basis of dolus eventualis . Despite the alcohol
consumption , the accused again appreciated what he was doing at the time and that
his conduct was wrong.

[9] The accused felt bad about what he had done and confessed to his mother
and sister some three days later, breaking down and crying and planning to kill
himself rather than go to prison. Constabl e Dlakwe, the investigating officer, testified
in aggravation that the accused attempted to evade arrest when accosted later that
day. He hid in bushes for approximately two hours until he was found. The accused
had told Constable Dlakwe that he had run aw ay because he did not want to be
arrested.

The accused

[10] The accused is 38 years of age , unmarried and unemployed . His three
children are born of different mothers and resid e with their maternal families. He
unsuccessfully attempted grade 12 studies and previously had employment , also as
a windscreen fitter until November 2023. He has no previous convictions and is
treated as a first offender for purposes of sentencing. He has been in custody for
eight months.

[11] The conduct of the accused immediately after committing the murder ,
described above, reflects some regret and accountability on his part, even if this
would largely have been the result of concern over his own future and his desire to
avoid imprisonment. After arrest he cooperated with the poli ce, admitting to the
investigating officer that he assaulted the deceased, which caused her death , while
stopping short of confessing to the crime. He pleaded guilty to both count s. His
account of events was relatively detailed but omitted any admission or description in
respect of the object that he used to strangle the deceased. Although he had not
offered any apology or requested forgiveness from the deceased’s family since his
arrest, he instructed his counsel to apologise to the family on his behalf.

[12] It may be accepted that the accused’s state of mind was affected by his
consumption of alcohol and his perceptions that his partner was being unfaithful to
him. Rather than being a premeditated act, t he mix of the two served as the catalyst
for the brutality that followed on both occasions .9


9 Cf S v Peloeole 2022 (2) SACR 349 (SCA) para 24 , 26. This decision may also be distinguished
based on the SCA’s rejection that the appellant was intoxicated.
The interests of society

[13] Society demands that stern sentences be meted out in cases where a
person’s life is extinguished through the conduct of another. As Mr Mtsila argued, for
the State, murder is the ultim ate crime, constituting an irreversible violation of the
constitutional right to life. As indicated at the outset of this judgment, the relentless
plague of gender -based violence, including so -called intimate femicide, is a cause for
deep societal concern and anger , to the point of communities resorting to self -help in
frustration at the seemingly never -ending spate of domestic violence .10 As the court
held in S v Robertson :11

‘It is so easy to glibly use the phrases and terminology of femicide and
gender -based violence, in part because of the relentless frequency of its
occurrence in our society, communities and homes, that it hardly causes
anyone to bat an eyelid or to raise an eyebrow … this disease of gender -
based violence and femicide … permeates the ps yche of our country.’

[14] The Domestic Violence Act, 1998, recognises that domestic violence is a
serious social evil, that there is a high incidence of domestic violence within South
African society and that victims of domestic violence are among the most vulnerable
members of society.12 In S v Rohde ,13 the court expressed itself as follows:

‘Crime based on gender is an affliction in our society. Crimes against women
are a social ill and efforts by government and society are increasing in light of
a steady increase in these types of offence. The rate of murder of women in
South Africa is alarmingly high, compared to the global average. Attitudes to
women determine how women are treated in society. It is the lowered
perception of women as human beings, all of whom are entitled to human
dignity and equality, which results in the unhealthy social paradigm that they
can be victims, and in fact end up as victims of crime because they are

10 Cf S v Ndebele [2023] ZAGPJHC 936 para 15.
11 S v Robertson [2022] ZAWCHC 104; 2023 (2) SACR 156 (W CC) para 2.
12 Preamble to the Domestic Violence Act, 1998.
13 S v Rohde 2019 (2) SACR 422 (WCC) para 54.
women. The judiciary must guard against such perceptions and creating the
impression that the lives of women are less worthy of protection.’

[15] Although the phrase ‘the interests of society’ conveys a somewhat abstract,
amorphous notion , the impact of crime is arguably most readily apparent when
listening to the testimony of victims, where possible, and their family members . In
this instance, t he court had the benefit of the testimony of Mr M[...] , the deceased’s
brother. The accused resided in Mr M[...] ’s house after commencing his relationship
with the deceased. The deceased was the sole bread winner for the family and
work ed for Rhodes University . She had no children. The deceased supplement ed Mr
M[...] ’s social grant and assist ed him financially. He found it difficult to express the
magnitude of his loss. It was readily apparent that the accused’s conduct has had a
devastating impact upon him and continues to cause him immeasurable angst . As
Makaula J has remarked:14

‘Death of a h uman being through killing has devastating and dire
consequences for the family of the deceased person. It results in financial,
emotional, traumatic and psychological problems on those close and around
the deceased. Its adverse effects can never be adequa tely described and the
pain it causes cannot be measured in any way. The pain and helplessness
that one feels cannot be verbalised. ’

Analysis

[16] The challenges associated with imposing a n appropriate sentence on a
convicted criminal are well -documented. To determine an appropriate sentence, the
court must weigh and balance the nature and seriousness of the crime, the interests
of society and the personal circumstances of the accused carefully, without unduly
emphasising any of these factors.15 The court must not approach its task in a spirit of
anger or a deliberate attempt to demonstrate severity or set an example to satisfy

14 S v Ximiya [2015] ZAECBHC 9 para 2.
15 S v Zinn 1969 (2) SA 537 (A) (Zinn) at 540G –H.
public opinion. The object of sentencing is to serve the public interest .16 Where
possible, and if the circumstances justify this, the sentence must be blended with a
measure of mercy.17

[17] The court must also be alive to the purposes of sentence, which, in general
terms, are retribution, prevention, deterrence and rehabilitation .18 That being the
case, m ore serious cases clearly requi re severity with a certain moderation of
generosity where appropriate, for the appropriate balance to be struck . As alluded to
above, w here minimum sentences have been prescribed by the legislature, these
should be viewed as generally appropriate for the o ffences concerned and are not to
be departed from lightly or for flimsy reasons , or based on misplaced pity .19

[18] None of the factors highlighted by Mr Geldenhuys , for the accused, on their
own constitute a substantial and compelling circumstance justifying deviation from
the prescribed minimum sentences. In respect of the submission that the accused
showed remorse, the remarks in S v Matyityi are definitive:20

‘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 … genuine contrition can only come from an

16 S v Mhlakhaza and Another [1997] 2 All SA 185 (A) at 189. Also see S v M (Centre for Child Law as
amicus curiae ) 2007 (2) SACR 539 (CC).
17 Zinn above n 15.
18 S v Rabie 1975 (4) SA 855 (A).
19 S v Matyityi 2011 (1) SACR 40 (SCA) para 23: ‘Despite certain limited successes there has been
no real let -up in the crime pandemic that engulfs our country. The situation continues to be alarming.
It follows that, to borrow from Malgas , it still is “no longer business as usual”. And yet one notices all
too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences
prescribed by the legislature for the flimsiest of reasons – reasons, as here, that do not survive
scrutiny. As Malgas makes plain, courts have a duty, despite any personal doubts about the efficac y
of the policy or personal aversion to it, to implement those sentences. Our courts derive their power
from the Constitution and, like other arms of State, o we there fealty to it. Our constitutional order can
hardly survive if courts fail to properly patr ol the boundaries of their own power by showing due
deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken.
It has ordained the minimum sentences for certain specified offences. Courts are obliged to impose
those sentences unless the re are truly convincing reasons for departing from them. Courts are not
free to subvert the will of the legislature by resort to vague, ill -defined concepts such as “relative
youthfulness” or other equally vague and ill -founded hypotheses that appear to fit the particular
sentencing officer ’s personal notion of fairness . Predictable outcomes, not outcomes based on the
whim of an individual judicial officer, [are] foundational to the rule of law which lies at the heart of our
constitutional order. ’
20 S v Matyityi above n 19 para 13.
appreciation and acknowledgement of the ext ent of one’s error … It is the
surrounding actions of the accused, rather than what he says in court, that
one should rather look at. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused must take the court fu lly into
his or her confidence.’

[19] This the accused has failed to do. Similarly, the role of alcohol and the fact
that the accused is a first offender are not, on their own, substantial and compelling
circumstances in this instance. It remains incumbent up on this court, before it
imposes the prescribed sentences, to assess, upon a consideration of all the
circumstances of the case, whether these sentences are indeed proportionate to the
offences.21 If a court is satisfied that a lesser sentence is called fo r in the
circumstances , thus justifying a departure from the prescribed sentence, the court is
bound to impose that lesser sentence.22

[20] In respect of both offences, t he deceased was vulnerable to the accused’s
controlling behaviour, which is associated with violence in intimate partner
relations.23 She was viciously attacked not once but twice in the home of her brother,
a place she would have considered to be safe. The second incident proved fatal,
after which the deceased’s body was left una ttended for some three days. The main
factors in favour of a lesser sentence are the accused’s clean record and the
influence of alcohol on his state of mind . In Sigwahla , Holmes JA noted that in
considering the relevance of intoxicating liquor to extenuating circumstances the
approach of a trial court should be ‘one of perceptive understanding of the accused’s
human frailties, balancing them against the evil of his deed’.24 That court also
considered as mitigating the fact that the murder was not c ommitted with dolus
directus .25 To that may be added the accused’s belated regret regarding his actions ,
as reflected above. It is appropriate to consider the accused’s behaviour in light of

21 S v Vilakazi 2009 (1) SACR 552 (SCA) paras 14 –15.
22 See S v Tafeni 2016 (2) SACR 720 (WCC) para 9 and the authorities cited there.
23 Kasongo above n 2 para 13.
24 S v Sigwahla 1967 (4) SA 566 (A) (Sigwahla ) at 571D –E; S v Ndhlovu (2), 1965 (4) SA 692 (A) at
695–696.
25 Sigwahla above n 24 at 571H: trial courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be such) that it is a case of dolus eventualis ; while it
cannot be said that this factor must necessarily be an extenuating circumstance, in many cases it may
well be so, either alone or together with othe r features, depending on the particular facts of the c ase.
these considerations , bearing in mind that any factor s that are not too remote or too
faint or too indirectly related to the commission of a crime, which bear upon the
accused’s moral blameworthiness in committing it, should not be ruled out from
consideration.26

[21] In the final assessment, these considerations cumulatively suffice to convince
me that it would be disproportionate to impose life sentences for the two crimes. The
reasons for doing so hav e been carefully considered and, in my view, cannot be said
to be f limsy. Although it is true that murder in the context of domestic violence might
justifiably warrant life imprisonment in most cases, each case must be carefully
analysed and treated on its own merits.27 These remarks do not detract from the
gruesome natur e of the crimes , the impact on the deceased’s family and society.
Punishment that reflect s the deterrent and retributive dimensions of sentencing must
be imposed . As explained in Kasongo :28

‘The Judiciar y should speak such that we demonstrate that we are n ot cold,
aloof and far removed from the contemporary challenges . W here
circumstances permit, we should show that we heed the public's constitutional
call to make the punishment of crimes against women, especially their brutal,
cruel and unnecessary killing more severe as part of the overall responsibility
of the Republic of South Africa to provide a conducive environment for women
to live and love without fear of physical, psychological, economic and sexual
abuse and violence. The increase in the involvement of ex -partners, spouses,
partners and boyfriends in the woman's experience of violence needs
effective initiatives beyond policy -making and [calls] for the judiciary to be the
leading force and voice.’

[22] Although treated as a first offender, it must be noted that t he accused’s
behaviour in May 2024 was, in a sense, a re peat of what occurred in December
2023 , as Mr Mtsila argued . Despite being involved in a domestic relationship with the

26 R v Fundakubi and Others 1948 (3) SA 810 (A) at 818 cited with approval in Sigwahla above n 24
at 571H –572A. Also see Tafeni above n 22 para 11.
27 Cf Kasongo above n 2 para 37.
28 Kasongo above n 2 para 36.
deceased, he attempted to murder her and then murdered her by blunt force and
strangulation. I am satisfied that h arsh punishments are w arranted in each instance ,
for reasons that are readily apparent when considering the circumstances of the
offences and the interests of society. In arriving at the sentences to be imposed, I
have also considered the time already spent in custody and the c umulative effect of
the sentences. By operation of law, the accused is prohibited from possessing a
firearm.

[23] A final observation is warranted. Study findings have repeatedly confirmed the
role of alcohol in intimate partner violence, pointing to the need for dedicated
prevention interventions.29 Cases such as the present, as well as sexual offence -
related cases , including child rape, frequently have alcohol flowing through the
narrative as a common theme. In terms of the Foodstuffs, Cosmetic and
Disin fectants Act, 1972 ,30 the Minister of Health is empowered to make regulations
prescribing the way in which any foodstuff, including alcohol, shall be labelled . This
includes the nature of the information to be reflected on any label, the manner or
form in which such information is to be reflected or arranged on the label and the
nature of information which may not be reflected on any label.31 The Minister has
made regulations (the regulations) relating to health messages on container labels of
alcoholic bev erages , including beer and traditional beer as defined in s 1 and
schedule 1 respectively, of the Liquor Act, 2003.32 Of the seven ‘health messages’
contained in Annexure A of the regulations, only one deals with violence and crime,
in the following terms: ‘Alcohol is a major cause of violence and crime’. There is no
specific reference to the established link between alcohol and gender -based
violence, including rape and murder , also in the context of domestic relationships.
Furthermore, container labels for alcoholic beverages need only contain one of the
seven health messages set out in the annexure to the regulations, in a space one
eighth the total size of the container labe l.33 This would appear to me to be wholly

29 See, for example, Mathews et al above n 3; A Gibbs et al ‘Couples, alcohol use and experience of
intimate partner violence among young women in urban informal settlements in Durban, South Africa:
A mixed methods study’ Social Science & Medicine 356 (2024) 117144 .
30 Act 54 of 1972.
31 S 15(1)( k) of the Foodstuffs, Cosmetic and Disinfectants Act, 1972.
32 GNR. 764 of 24 August 2007, as amended ; Act 59 of 2003.
33 Regulation 2. Regulation 3 provides that a health message shall be in any of the South African
official languages but must be in the same language as that of the container label.
inadequate when considering the torrent of cases, including the present, in which
alcohol is linked to violence. Leaving aside the question whether the chosen form of
regulation is adequate for purposes of warning alcohol consumers of the correlation
between alcohol, violence and crime, t he failure to highlight the link between alcohol
and gender -based violence appears to be an omission. In the context of the
country’s efforts to address gender -based violence, inclu ding intimate femicide, this
at least requires proper consideration. In the circumstances, the registrar is directed
to ensure that a copy of this judgment is made available to the office of the Minister
of Health, drawing attention to this paragraph of th e judgment.

Order

[24] For these reasons, the accused is sentenced as follows:

1. Count 1 : Attempted murder: The accused is sentenced to 23 years
imprisonment.

2. Count 2 : Murder: The accused is sentenced to 28 years imprisonment.

The sentence imposed in respect of count 1 is ordered to run concurrently with the
sentence imposed in count 2 , so that the accused is effectively sentenced to 28
years imprisonment.

The Registrar is directed to make a copy of this judgment available to the office of
the Minister of Health of the Republic of South Africa.


_______________ __________
A GOVINDJEE
JUDGE OF THE HIGH COURT


Heard: 21 Januar y 2025
Delivered: 24 January 2025

Appearances:

For the state : Mr S Mtsila

Instructed by: The Deputy Director of Public Prosecutions,
Makhanda

For the accus ed: Mr D Geldenhuys

Instructed by: Legal -Aid of South Africa, Makhanda