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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division, Kimberley)

Saakno / Case number: KS 19/24

In the matter of:

THE STATE

and

J[...] J[...] L[...] ACCUSED

Coram: Van Tonder, AJ


JUDGMENT

VAN TONDER, AJ

1. The accuse d was convicted o f seven (7) charges on 28 January 2025 :

1.1. Count 1: Murder;
1.2. Count 2: Assault with intent to do grievous bodily harm;
1.3. Count 3: Assault with intent to do grievous bodily harm;
1.4. Count 4: Assault with intent to do grievous bodily harm;
1.5. Count 6: Assault;
1.6. Count 7: Assault with intent to do grievous bodily harm; 1:1>1r1
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1.7. Count 8: Premeditated m urder read with section 51(1) of the
Criminal Law Amendment Act, 105 of 1997 ;

2. Counts 1, 2 and 3 arise from the events of the 13th of February 2022, at
the Chila Mati Tavern in Galeshewe.

3. Count 4 arises from the events of the 28th of July 2022, at the
complainant, Jaynal Ahmed’s tuck shop in Galeshewe.

4. Charge 5 against the accused was withdrawn by the State at the
commencement of the trial.

5. Counts 6, 7 and 8, arise from the events of the 29th of April 2023, that took
place in Galeshewe.


MITIGATING FACTORS

6. The accused is a 20-year-old male , who was 17 years of age when he
committed the offences in counts 1 to 3 and was 18 years old when he
committed the offences in counts 6 to 8.

7. The accused went to school until grade 7 whereafter he was referred to a
facility for children with special needs due to learning disabilities.

8. The accused does not have any previous convictions and is a first-time
offender , with no pending criminal ca ses against him.

9. He has been in custody for 11 months since his arrest.

AGGRAVA TING FACTORS

10. Mr Rosenber g on behalf of the State argued that, despite the fact that the
accused was a minor, when he committed the crimes in Counts 1, 2 and
3, that a substantial term of direct imprisonment is warranted, especially
with regard to Count 1, the murder of Anthony Bro oker.

11. The late Anthony Brooker’s biological mother had passe d away when he
was 10 years old, and he was in the foster care of his maternal aunt,
Cynthia Mosinki, who had also provided an impact report in the matter.

12. The grandmother of the late Anthony Brooker was unable to process his
death and she had passed away three months after his funeral.

13. As also appears from the pre -sentencing repo rt, the accused does not
accept responsibility for his actions, and shows no sign of remorse.

14. Both the family members of the deceased and the victim of Count 2, Dion
Mongale, are of the view that a prison sentence must be imposed on the
accused.

15. Mr Rosenberg submitted that lack of remorse, is not per se an aggravating
factor in respect of sen tencing, although it is still a factor that has to be
kept in mind when the court decides on a suitable sentence in respect of
the accused.

16. He submitted that the accused was a violent person and that the accused
could have walked away from all of the charges against him.

17. This was also confirmed in the impact report of Jessica Ngceza , as well as
that of Mr Dion Mongale.

18. In this regard it should be kept in mind that in respect of Count 8, the
murder of T[...] O[...] , the deceased was merely standing at the gate in
front of his yard, without any threat, animosity or argument with the
accused.

19. The deceased, T[...] O[...] was only 16 years old when he was murdered,
and his death had a devastating effect on his family, as is clear from the
impact statement of L[...] K[...] R[...] , his mother as well as I[...] P[...] L[...],
his brother.

20. It had inter alia resulted in the late O[...] ’s father resorting to alcohol to try
and cope with the loss, to such an extent that he had lost his employment,
and his passing had even led to his brother I[...], attempting to commit
suicide several times.

21. The pre -sentencing report also recommended in its conclusion that the
accused be sentenced to direct imprisonment.

22. Mr Rosenberg submitted that the only possible sentence in respect of
count s 1 and 8, is a long term of direct imprisonment in order to remove
the accused from society for a considerable period of time.

23. Count 8 also falls under the minimum sentences in terms of Section 51 of
the Criminal Law Amendment Act 105 of 1997, in res pect of the murder
being committed with premeditation as set out in schedule 2, Part II , as an
offence which warrants a minimum sentence of life imprisonment.

24. Mr Rosenberg pointed out that the lives of many people were negatively
affected by the crimes committed by the accused.

THE LEGAL POSITION

25. It is trite law that a court will take cognisance of the dictum of Rumpff JA
where the learned Judge stated tha t:

“What has to be considered is the triad consisting of the crime, the
offender and the interest of the society.”1

26. A balance has to be struck between the interest of the accused and that of
society.

27. As stated by the Supreme Court of Appeal: “Punishment should fit the
criminal as well as the crime, be fair to the society and be blended with a
measure of mercy according to the circumstances.”2

1 S v Zinn 1969 (2) SA 537 (A) at 540G -H
2 S v Rabie 1975 (A) SA 855 (A) at 863A -B

28. It is however also true that any sentence imposed must h ave deterrent
and retributive force, as set out in the matter of S v Crossley (1) SACR
223 (SCA) at par [9].

29. This does however not mean that an accused person must be sacrificed
on the altar of deterrence .3

30. Especially so when the court is dealing with a youthful offender.4

31. The Supreme Court of A ppeal has also held the following with regard to
minimum sentences in terms of Section 51 of the Criminal Law
Amendment Act 105 of 1997:

“Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprison ment (or the particular
prescribed period of imprisonment) as the sentence that should ordinarily
and in the absence of weighty justification be imposed for the listed crimes
in the specified circumstances.
Unless there are, and can be seen to be, truly co nvincing reasons for a
different response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response from the courts.
The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculati ve hypotheses favourable to the offender, 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 b etween
co-offenders are to be excluded”5

32. The Constitutional Court has also held that the approach set out in S v
Malgas steers an appropriate path:

“which the Legislature doubtless intended, respecting the Legislature’ s
decision to ensure that consistently higher sentences are imposed in

3 S v Sobandla 1992 (2) SACR 613 (A) at 617G
4 S v Williams (3) SA 632 (CC) at par[85] also reported as 1995 (7) BCLR 862 (CC)
5 S v Malgas 2001 (1) SACR 469 (SCA) at 481i – 482a also reported as [2001] 3 All SA 220 (A)
relation to the serious crimes covered by s 51 and at the same time
promoting ‘the spirit, purport and objects of the Bill of Rights’ .” 6

33. The SCA has however also stated the following:

“If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence unjust
in that it w ould be disproportionate to the crime, the criminal and the
needs of society, so that an unjust would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”7

34. It is trite that particular factors, whether aggravating and mitigating, should
not be taken individually and in isolation as substantial and compelling
circumstances . But that, in deciding whether these circumst ances exist,
one must look at traditional mitigating and aggravating factors and
consider the cumulative effect thereof.8

CONCLUSION

35. In respect of counts 1, 2 and 3, it should be taken into consideration that
these three charges emanate from one series of event s that took place on
the 13th of February 2022, at the Chila Mati Tavern in Galeshewe.

36. Count 4 emanate s from a separate event that transpired on the 28th of
July 2022, at the complainant, Jaynal Ahmed’s tuck shop in Galeshewe.

37. Counts 6, 7 and 8, emanates from one series of events on the 29th of April
2023, that took place in Galeshewe.

38. In view thereof, care should be taken in respect of the cumulative effect of
the sentences imposed, in order to ensure that the aggregate penalty is
not too severe.9

6 S v Dodo 2001 (3) SA 382 (CC) at 393C -D
7 S v Malgas 2001 (1) SACR469 at para 25
8 S v Vilakazi 2009 (1) SACR 552 (SCA) also reported as 2012 (6) SA 353 (SCA) and [2008] 4 All SA
396 (SCA)
9 S v Muller 2012 (2) SACR 545 (SCA) at par [9]
S v Moswathupa 2012 (1) SACR 259 (SCA)

39. In respect of Count 1, a major factor that has to be taken into account is
that the accused was a minor at the time that the murder was committed,
and despite the fact that a substantial direct term of imprisonment is
warranted due to the serious nature of th e crime, this should not have the
effect of incarcerating the accused for the remainder of his life.

40. As referred to above, count 8 falls under the minimum sentences in terms
of Section 51 of the Criminal Law Amendment Act 105 of 1997, in respect
of the murder being committed with premeditation as set out in schedule
2, Part II , as an offence which warrants a minimum sentence of life
imprisonment.

41. In this regard Mr Biyela and Mr Rosenberg submitted that the young age
of the accused, again needed to be considered in respect of the question
whether the prescribed minimum sentence of life imprisonment would be
disproportionate in the c ircumstances.

42. As stated by the SCA in the matter of S v Malgas :

“If the sentencing court on co nsideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence unjust
in that it would be disproportionate to the crime, the criminal and the
needs of society, so that an unjust would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”10

43. The Criminal Law Amendment Act 105 of 1997, demands the imposition of
the prescribed minimum sentences unless a court is satisfied in a
particular case that there are “ substantial and compelling circumstances ”
that justify the imposition of a lesser sentence.

44. In this regard, the principle is formulated by Nugent JA, as follows:

“15. It is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every case, before it

10 S v Malgas 2001 (1) SACR 469 at para 25
imposes a prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case , whether the prescribed sentence is
indeed proportionate to the particular offence. The Constitutional Court
made it clear that what is meant by the “ offence ” in that context (and that
is the sense in which I will use the term throughout this judgment unl ess
the context indicates otherwise):

“consists of all factors relevant to the nature and seriousness of the
criminal act itself, as well as all relevant personal and other
circumstances relating to the offender which could have a bearing on
the seriousness of the offence and the culpability of the offender.”

If a court is indeed satisfied that a lesser sentence is called for in a
particular case, thus justifying a departure from the prescribed sentence,
then it hardly needs saying that the court is bound to impose that lesser
sentence. That w as also made clear in Malgas (supra ), which said that the
relevant provision in the Act:

“vests the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require a
different sentence to be imp osed. And a different sentence must be
imposed if the court is satisfied that substantial and compelling
circumstances exist which ‘ justify ’…it.””11

45. Despite the accused’s propensity to violence, I am of the view that the
young age of the accused should be taken into account, together with the
fact that he is a first-time offender, as an indication that he may be
rehabilitated if given the opportunity.

46. It is incumbent upon a court in every case, before it imposes a prescribed
sentence, to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is indeed proportionate
to the particular offence.


11 S v Vilakazi 2009 (1) SACR 552 (SCA) also reported as 2012 (6) SA 353 ( SCA) and [2008] 4 All SA
396 (SCA)
47. In the matter of S v Lekhooana Cubungu AJ, held as follows:

”When sentencing a court takes into account the offenders ‘personal
circumstances, however, only some of these carry sufficient weight to tip
the scales in favour of the offender to impact on the sentence to be
imposed. The fact that the offender is young and is a first offender has the
effect of reducing a sentence, as there is potential for the offender not to
repeat the crime and to be rehabilitated.”12

48. In view of the aforesaid, I am satisfied that in this particular case there are
“substantial and compelling circumstances ” that justify the imposition of a
lesser sentence, than life imprisonment in respect of count 8 .

49. However, a s stated by the SCA regarding the youth of an accused and
direct imprisonment :

“The Constitution, read with the various international instrume nts that have
a bearing on the subject of the rights of young people in conflict with the
law, furnishes the backdrop of this approach. Section 28(2) of the
Constitution provides: ‘(A) child’s best interests are of paramount
importance in every matter con cerning the child.’ That statement of
general principle is the clearest indication that child offenders are
deserving of special attention. More so it would seem, in the sphere of
sentencing. The ideal is that no child should ever be caged, though in
practice there will always be cases that are so serious that imprisonment
would be the only appropriate punishment.” 13

50. I am of the view that, despite the prescribed minimum sentence of life
imprisonment not being appropriate in the circumstances of the matter, in
view of the aggravating factors as set out above, a substantial term of
direct imprisonment is warranted in res pect of count 8 (and to some
degree in respect of count 1).


12 S v Lekhooana (CC1/2021) [2023] ZAECELLC 8 (19 April 2023)
13 S v B 2006 (1) SACR 311 (SCA) at par [13]
51. Having taken into account all the relevant factors, including all aggravating
and mitigating factors, as well as the specific circumstances of the case,
and having c onsidered the cumulative effect thereof, I sentence the
accused as follows :

51.1. Count 1: Murder, 15 years direct imprisonment.

51.2. Count 2: Assault with intent to do grievous bodily harm, 3
years imprisonment.

51.3. Count 3: Assault with intent to do grievous bodily harm, 2
years imprisonment.

51.4. Count 4: Assault with intent to do grievous bodily harm, 3
years ’ imprisonment.

51.5. Count 6: Assault, 12 months’ imprisonment.

51.6. Count 7: Assault with intent to do grievou s bodily harm, 12
months’ imprisonment.

51.7. Count 8: Premeditated murder, 25 years direct imprisonment.

52. The aforesaid sentences will all run concurrently.


__________________
AG VAN TONDER
ACTING JUDGE



On behalf of the State : Adv. J.D. Rosenberg (oio The Director of Public
Prosecutions

On behalf of the Accused : Adv K. Biyela (oio Legal Aid South Africa )