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 No. CC75/2023
(1) REPORTABLE :
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
DATE:
SIGNATURE:
In the matter of
The State
vs
Mpho Mangweni Accused
JUDGEMENT ON SENTENCE
MLOTSHWA AJ
1 The accused has been found guilty of murder read with the provisions of
section 51(1) and further read with Part 1 of Schedule 2 of the Criminal
Law Amen dment Act, Act 105 of 1997 in that on 29 July 20 23 he murdered
his then girlfriend, Z[...] H[...] .
2 The accused is 26 years old. He is unmarried. He has a 2-year-old
daughter with the deceased. He was unemployed at the time of his arrest
for this offence . He has no previous convictions.
3 At the time of his arrest , he was a recipient of the State’s monthly grant of
R350,00.
4 The accused has been in custody since his arrest on 29 July 2023, that
was on the day of the commission of the offence.
5 The accused has been found guilty of a very serious offence . He killed his
girlfriend with whom he had a minor daughter. The accused, although, a
father to his minor daughter, played no part in taking care of her daily
needs . According to his evidence his family were the on es taking care of
the child’s daily needs including her financial needs.
6 When determining the appropriate sentence, the classic triad enunciated
in S v Zinn1 is to be taken into account. This court has to consider the
gravity of the offence, the circumstances of the offender and the public
interest.
7 In State v Banda and Others2 Friedman J explained that:
“The elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish and arrive at a
judicious counterbalance between these elements in order to ensure that
one element is not unduly accentuated at the expense of and to the
exclusion of the others. This is not merely a formula, nor a judicial
incantation, the mere stating whereof satisfies the requirement. What is
necessary is that the court shall consider, and try to balance evenly, the
nature and circumstances of the offence, the characteristics of the
offender and his circumstances and the impact of the crime on the
community, its welfare and concerns.”
1 1969 (2) SA 537(A)
2 1991(2) SA 352 (B) at 355A -C
8 As aforesaid, the accused is the father of one minor chil d aged 2 years . It
is therefore imperative to this court in the light of sectio n 28 of the
Constitution and other relevant statutory provisions to take into account
when sentencing the accused that he is a father of the minor child whose
mother has unfortunately died at the hands of her father, the accused.
9 Section 28 (2) of the Constitution provides that “(a) child’s best interest s
are of paramount importance in every matter concerning the child”.
10 In S v M3 it was held that:
“Indeed, it is the very sweeping character of the provision that has led to
be asked about its normative efficacy. For example, in Jooste , Van
Dijkhorst J stated:
‘The wide formulation of section 28(2) is ostensibly so all -embracing that
the interests of the child would override all other legitimate interests of
parents, siblings, and third parties. It would prevent conscription or
imprisonment or transfer or dismissal by the employer of the parent where
that is not in the child’s interest. That clearly could not have been intended.
In my view, this provision is intended as a general guideline and not a rule
of law of horizontal application. That is left to the positive law and any
amendments it may undergo.’”
11 Section 28 of the Constitution like all other rights conferred by the
Constitution is subject to the limitation clause contained in section 36 of
the Constitution as the Constitutional Court found in Sonderup v Tondelli
and Another4 that the international obligation to return a child to the
country of his or her residence for determination of custody would
constitute a justifiable limitation under section 36 of section 28 rights. It
was found that this limitation on section 28(2) was counterbalanced by the
3 2008 (3) SA 232(CC)
4 2001 (2) BCLR 152(CC)
duty of courts to weigh the consequences of the court’s decision on
children”. See S v Mphahlele5 and S v Howells6
12 Accordingly, the fact that the best interests of the child are paramount
does not mean that they are absolute. Like all rights in the Bill of Rights
their operation has to take account of their relationship with other rights,
which might require that their ambit be limited.
13 The question to be asked in this case is whether the accused is a primary
caregiver to the minor child. In S v M7, a primary caregiver was described
as “the person with whom the child lives and who performs everyday tasks
like ensuring that the child is fed and looked after and that the child
attends school regularly …….. as in all matters concerning children,
everything will depend on the facts of the particular case in which the issue
might arise ”.
14 According to Busisiwe Hlatshwayo, a cousin of the deceased, the child is
presently taken care of by her m aternal grandmother, that is, the decea sed
mother. Strictly speaking the accused is therefore presently not the
primary caregiver of the child. This is further confirmed by Ms Masego
Nkoane, the probation officer who compiled the Victim Impact report.
15 It is therefore clear that if the accused is sentenced to a custodial
sentence, although it would be ideal for the child to be brought up by a
parent, the impact on the child will be minimal as her status will not change
and she is presently being taken care of , adequately. The child’s best
interests are therefore sufficiently taken care of.
16 As the Constitutional Court further found in M8 that the purpose of
emphasizing the duty of the sentencing court to acknowledge the interests
of the child is not to permit errant parents unreasonably to avoid
5 [2023] ZAGP JHC 792 (14 July 2023)
6 1999 (1) SACR 675 (C)
7 supra
8 supra
appropriate punishment. Rather it is to protect the innocent child as much
as is possible in the circumstances from avoidable harm.
17 Further an appropriate order may be made , that the Department of
Welfare and Population Department be requested to see to it that the child
is properly cared for during her father’s imprisonment and is kept in touch
with him. Ms Nkoane further undertook to make a follow up and request
her colleagues who are involved in the welfare of children to look at the
circumstances of this child.
18 The State contended that the accused displayed no remorse. The post -
murder behavior of the accused should also be taken into account when
one assesses whether or not the accused is remorseful. In S v Matyityi9
Ponnan JA stated the following regarding remorse:
“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 the
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.
Afterall, 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. ”
9 2011 (1) SACR 40 SCA
19 In S v Mudua10 an unreported judgement by Mathopo AJA, 15 years ago ,
as he then was, stated the following:
“Domestic violence has been a scourge in our society and should not be
treated lightly, but deplored and severely punished. Hardly a day passes
without a report in the media of a woman or a child being beaten, raped or
even killed in this country. Many women and children live in constant fear.
This is in some respects a negation of many of their fundamental rights
such as equality, human dignity and bodily integrity.” Sadly , we sti ll sing
the same song even today .
20 The applicable sentence for the murder is subject to the provisions of
section 51( 1) of Act 105 of 1997 (the Minimum Sentences Act). In this
instance the minimum sentence is life imprisonment.
21 It is trite that where the minimum sentence is applicable, a court can only
deviate therefrom if substantial and compelling circumstances are found to
justify the imposition of a lesser sentence. In S v Malgas11 it was stated
that when dealing with crimes falling under the regime of the Minimum
Sentences Act, it is no longer “business as usual” and that minimum
sentences should not be departed from lightly and for flimsy reasons which
could not withstand scrutiny.
22 The deceased died a painful, brutal, violent and sadistic death. The
accused stabb ed her 111 times and most likely trampled on her as well
resulting in her having broken ribs and head injuries . One shudders to
think of the pain felt by the deceased as the knife penetrated her body so
many times. The accused’s actions were callous , heartless and really cold.
Such brutality would have been heartless even to an animal. The
deceased was a defenseless tiny woman who posed no threat to the
accused.
10 2010 JDR 0641 (SCA): (547/13) [2014] ZASCA 43
11 2001 (1) SACR 469 (SCA)
23 The accused has deprived the deceased’s minor child ren of a mother. The
grandparent and other family members are now left with the invidious task
of bringing up th ese children with the meager government child grant.
24 As aforesaid, the crime of murder is very prevalent. What makes this crime
more despicable is that it was committed against an intimate life partner.
Crime in South Africa is out of control. Society expects courts to pass
sentences that should deter would -be criminals. The minimum sentences
Act was passed more than 20 years ago, mainly to curb the spiraling of the
offences mentioned in the Act, one of which is murder. The minimum
sentences contained in the Act seem to hardly deter criminals , for if this
was the case , then there would have been a steady decline in the rate of
murders and more especially murders committed against life partners. As
stated in S v Makatu12 “…..despite all these valiant efforts by the
government, we are not winning the war against these crimes”.
25 It is trite that the minimum sentences are ordained to be the sentences
that must ordinarily be imposed unless the court finds substantial and
compelling circumstances which would justify a departure therefrom.
26 The court has to evaluate all the circumstances cumulatively including the
mitigating and aggravating circumstances to decide whether substantial
and compelling circumstances exist in the matter to justify a departure
from the ordained sentence. The court must be alive to the fact the
legislature has ordained a particular sentence for the offence committed by
the accused.
27 The court has to balance the aggravating and mitigating factors in this
matter. The court has further to take into account that the accused is a
father of a minor child.
12 2014 (2) SACR 539 (SCA)
28 A pre -sentence report was compiled on behalf of the accused by Mr Daniel
Moleko a probation officer employed by the Department of Welfare and
Social Development, to whom the court is indebted. According to Moleko,
the accused responded to questions rationally during the interview. He
could dif ferentiate between what is right and wrong. He stated that he is
able to make his own decisions without external influence. It is therefore
surprising that in his evidence in court and later in the report he alleges
that the deceased introduced him to drugs. He further stated that he takes
full r esponsibility for his actions but at the same time he blames his
addiction to drugs for his actions.
29 In the supplementary pre -sentence report compiled by Ms Matloko
Mphahlele, also a social worker with the Department of Welfare and
Population Development and attached to the Substance Disorder Unit, the
accused informed Ms Mphahlele that he had been using dagga (cannabis)
since the age of 16 years. He further stated that in 2020 he developed
tolerance for the substance a s the substance was no longer giving him the
kick he desired . That is when he started using more potent substances
such as crystal meth and “double star ”.
30 In court, it has been argued that the deceased introduced the accused to
the drugs. Much has also been made of the fact that the deceased was a
drug addict. It is in fact common cause that the deceased used drugs . This
was confirmed by her cousin in her testimony in this court and by her
family to Ms Nkoane who compiled the victim impact report. But did that
mean that she had to be killed let alone the brutal way in which she killed.
31 The deceased was not only a mother to the 2-year-old daughter she had
with the accused . She also had two older children, a ten-year-old daughter
and a seventeen -year-old son from a previous relationship. According to
Ms Nkoane, it was reported to her that the seventeen -year-old boy is now
also taking drugs. A sorry state of affairs indeed.
32 Due to the seriousness of the offence , which you committed, although the
court has to exercise a measure of mercy, see S v Rabie13, it is required
that the elements of retribution and deterrence should come to the fore,
and that your rehabilitation should be accorded a smaller role. The
Supreme Court of Appeal in S v Mhlakaza and Another14 also pointed out
that, given the high level of violent and serious crimes in the country, when
sentencing an accused person for such offences, emphasis should be on
retribution and deterrence. It is therefore not wrong to conclude that the
natural indignation of interested persons and of the community at large
should receive some recognition in the sentences that courts impose, and
it is not irrelevant to bear in mind that if sentences for serious crimes are
too lenient, the administration of justice may fall into disrepute and victims
of crime may be inclined to take the law into their own hands.
33 In affirming that retribution should carry more weight because of the
seriousness of the crime which an accused person has been convicted of,
when the court considers the aspects relating to the purpose of
punishment, it was put in S v Swart15 as follows:
“In our law, retribution and deterrence are proper purposes of punishment
and they must be accorded due weight in any sentence that is imposed.
Each of the elements of punishment is not required to be accorded equal
weight, but instead proper weight must be accorded to each, according to
the circumstances. Serious crimes will usually require that retribution and
deterrence should come to the fore and that the rehabilitation of the
offender will consequently play a relatively smaller role ”.
34 As aforesaid, the deceased was killed in a ruthless manner and showed
that the accused has no regard for human life. It is very scary that a
partner could be so heartless and coldblooded towards a woman with
whom he had an intimate relationship for some time and is the mother of
13 1975 (4) SA 855 AD at 862D -F
14 1997(1) SACR 515(SCA)
15 2004(2) SACR 370(SCA)
his minor child. The sentence must surely show the indignation of society
about this type of crime.
35 The Constitution of our country provides that “everyone has a right to life”.
It is therefore the duty of the courts to protect the citizens of the country
and society in general from the scourge of these violent crimes, and to
send a clear message that this behavior is unacceptable and will not be
tolerated.
36 Society has a legitimate expectation that apprehensible criminal activities
as displayed by the accused should not be left unpunished. Society
demands and commands that serious crimes warrant serious sentences
and expects that the courts send a clear and strong message that such
acts of gruesome criminality will not be tolerated and will be dealt with
effectively. See S v Holder16
37 It is hoped that you will use the time in custody to attend to the necessary
programs offered by the Correctional Services fruitfully to attend to your
anger management problems, to learn that life is not about you only, other
people have rights too. Hopefully you will learn that bullying and controlling
other people, especially a life partner is not ideal. Hopefully you will learn
that having an intimate relationship with a woman does not mean that you
“own” her and that you are at liberty to do whatever you want to do on her,
let alone killing her.
38 In your case, the court has to consider that, as aforesaid, you are a father
of a young child. The court has therefore not to look at your personal
circumstances only but also take into account the interests of your child,
her mental and physical health, her safety, education, primary needs, care
and protection. Unfortunately, you provided non e of the above to your
child.
16 1979 (2) SA 70 (A)
39 As aforesaid, the minor chil d is being taken care of by the deceas ed’s
mother. Her financial needs may also be met in the form of the
government’s monthly child grant .
40 This court is mindful that a sentence must also be fair to the accused as
well as to the community and be blended with a measure of mercy. This
court has considered the best interest of the child. The court has
considered the test to be applied by sentencing courts when sentencing a
primary caregiver , which you are not, to a custodial sentence as set out in
the M17 matter. I have applied my mind as to whether the minor child will
be adequately cared for while the accused is incarcerated, and this court is
satisfied that whilst she is cared for as alluded to above, the measures
incorporated in the order of this court have catered for the child’s wellbeing
and her best interests are considered.
41 I have also taken into account that you have been in custody for just over
a year awaiting the finalization of this matter. This period in which you
have been in custody is overwhelmingly overshadowed by the heinous
crime you committed.
42 In S v Vilakazi18, it was stated that:
“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 crime is deserving of a substantial period of imprisonment ,
the question whether the accused is married or single, whether he has two
or three children, whether or not he is in employment are in themselves
largely immaterial to what the period should be, and those seem to me to
be the kind of flimsy grounds that Malgas said should be avoided”
43 This court has also taken into account the other sentencing options like a
fine, a suspended sentence, a correctional supervision sentence and is of
17 supra
18 2009 (1) SACR 552 SCA
the opinion that due to the heinous crime committed by the accused, all of
the above sentencing options are unsuitable. As was stated in S v Shaik19
that:
“The right to a fair trial requires a substantive, rather than a formal or
textual approach. It is clear also that fairness is not a one -way street
conferring an unlimited right to an accused to demand the most favourable
possible treatment. A fair trial also requires -fairness to the public as
represented by the State. It has to instill confidence in the criminal justice
system with the public, including those close to the accused, as well as
those distressed by the audacity and horror of crime”.
In S v Maila20 Mocumie JA at Paragraph 59 stated as follows:
“Taking into account Jansen, Malgas, Matyityi, Vilakazi and a plethora of
judgements which follow thereafter as well as regional and international
protocols which bind South Africa to respond effectively to gender based
violence, courts should not shy away from imposing the ultimate sentence
in appropriate circumstances……courts should, through consistent
sentencing of offenders who commit gender based violence against
women and children, no t retreat when duty calls to impose appropriate
sentences, including prescribed minimum sentences. Reasons such
as……the accused was drunk….are an affront to what the victims of
gender violence endure short and long term and perpetuate the abuse of
women and children by the courts. When the legislature has dealt with
some of the misogynistic myths a blow, courts should not be seen to
resuscitate them by deviating from the prescribed sentences based on
personal preferences of what is substantial and compelling and what is
not.
The message must be clear and consistent that this onslaught will not be
countenanced in any democratic society which prides itself with values of
19 2008 (1) SACR 1 (CC) para 43
20 (429/2022) [2023] ZACSA 3 (23 January 2023)
respect for the dignity and life of others, especially the most vulnerable in
society.”
44 Taking into account the Zinn triad, the only factors in your favour are that
you are still relatively young and have no previous convictions. But the
crime that you committed is horrendous and the manner with which you
murdered the deceased is cold-blooded. The community is looking upon
courts to protect it from these callous crimes. The community is looking
upon the courts to impose appropriate sentences for these crimes. If the
courts fail in this function, the community will lose faith in the criminal
justice system and take matters into their own hands. Your personal
circumstances are far outweighed by the crime you committed and the
interest of society. The gravity of the offence and the scourge of such
offences on helpless and vulnerable women c annot be downplayed . The
effect of this crime on the community at large cannot be understated.
Cases dealing with murder of women are a plague in this country and
continue unabated.
45 Having considered all the circumstances of this case, and the question
whether substantial and compelling circumstances exist, which call for the
imposition of a lesser sentence than the prescribed minimum sentence in
terms of the Act , even though this court looked at your personal
circumstances cumulatively, t his court could not find same to amount to
substantial and compelling circumstances to enable the court to deviate
from the minimum sentence of life imprisonment.
46 In the circumstances the court makes the following order:
1. You are sentenced to life imprisonment.
2. You are declared unfit to possess a firearm in terms of section 103 (1) of
the Firearms Control Act 60 of 2000.
3. The Registrar of this Court is requested to immediately approach the
Department of Welfare and Population Development with a request:
3.1. That the Department of Welfare and Population Development
investigate the cir cumstances of the accused’s minor child without
delay and take all appropriate steps to ensure that;
3.1.1. The child is properly cared for in all respects during the
accused’s incarceration.
3.1.2. The child, when she is old enough, remains in contact
with the accused during his period of incarceration and
sees him on a frequent basis, insofar as prison
regulations may permit .
JABULANI JACOB MLOTSHWA
Acting Judge of the High Court
Gauteng Division, Pretoria