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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
NOT REPORTABLE
Case no: CC71/2024
In the matter between :
THE STATE
and
H[...] J[...] W[...] Accused
__________________________________________________________________ _
JUDGMENT ON SENTENCE
___________________________________________________________________
Govindjee J
[1] The accused has been convicted of kidnapping and murder as contemplated
in s 51(1 ) of the Criminal Law Amendment Act, 1997.1 The consequence is that the
discretionary minimum sentence prescribed for the murder count is imprisonment for
1 Act 105 of 1997.
life.2 The main question to be addressed is whether there are substantial and
compelling circumstances to deviate from this and whether life imprisonment is
proportionate to the crime.
Nature of the crimes and surrounding circumstances
[2] Low-income worker + alcohol + a trigger for d omestic violence = brutality +
intimate femicide. The facts of this matter rehash, like a recurring nightmare, the
tragic equation that all too frequently summarise s the plight of women in South
Africa. The accused and deceased lived together as a married couple for almost a
decade. At t he time of the incident, the couple lived with two of their four children at
Klipfontein Farm in Graaf f-Reinet, where the accused worked as a general labourer.
The accused suspected the deceased of infidelity involving a fellow farmworker
(Buys) . He spent most of Friday 23 February 2024 drinking with his friends. Between
five or six individuals they managed to complete three bottles of brandy, numerous
litres of boxed wine and cans containing alcohol. The result was a drunken stupor
that served as the catal yst for what was to follow.
[3] The deceased and her sister ( J) obtained permission from the accused to visit
a neighbour, promising to return within half an hour. When they failed to do so, the
accused saw fit to visit the neighbour and instructed the de ceased to return home.
Despite promising to do so, the deceased did not return for some time. Angry and
still under the influence of alcohol, the accused went in search of the deceased. He
met another farmworker who suggested that he visit Buys.
[4] Buys initially refused to open the door to his home, but did so once the
accused threatened to report to the farm owner that Buys was sleeping with his wife.
2 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 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 ther eupon 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 Do mestic 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’.
Buys eventually opened the door armed with a long metal shaft. The accused
himself was armed with a knife. Buys admitted that the deceased was inside his
home, and suggested that he had allowed the deceased to sleep in his bed while he
slept in a n adjoining room. Eventually the accused found the deceased who was
breastfeeding their child. He took the c hild and repeatedly instructed the deceased to
return home with him. She only did so once verbally threatened by the accused.
[5] Despite Buys requesting the accused not to harm the deceased , matters soon
turned violent. The deceased sat down in the middl e of the footpath and, when
asked, confirmed that she was having an affair with Buys. The accused, who had
placed the baby on the ground, proceeded to slap, kick, choke and stomp the
deceased. Wearing slops, he kicked the deceased once with all his might b efore
stomping on her head twice and stomach once, again as hard as he could. In
between, he pulled the collar of the deceased’s T -shirt tight around the front of her
throat towards the back of her neck.
[6] The deceased was too weak to be lifted. Her bod y kept collapsing when the
accused attempted to pick her up. He took the child to J’s home before returning to
the deceased. He dragged her for some distance before throwing her on the ground,
more than once, in anger. Two adult men arrived and assisted hi m to carry the
deceased home. Given that a child slept in the bed, the deceased, who was still
alive, was placed on a towel on the bedroom floor .
[7] The accused sat in the lounge until J returned the child to him. He placed the
child on the bed. After J asked the accused to check again on her sister, the accused
discovered that there was no pulse and realised that his wife had passed away. He
burst int o tears and wept loudly, before explaining the position to J. He
unsuccessfully attempted to report the matter to the farm owner, who was absent.
He returned home, placed a blanket over the deceased’s body and fell asleep with
his arm over the deceased.
[8] When the police arrived, the accused admitted what he had done but was too
upset to discuss the matter. A few hours later, having been arrested, he explained to
the police that he had hit, kicked choked and stomped on his wife’s head and
stomach. He pl eaded guilty and accepted that he had no right to assault the
deceased in this manner, and that he had caused the various injuries reflected in the
post-mortem report. The accused was convicted based on dolus eventualis . Despite
being under the influence o f alcohol, and angered by the deceased’s infidelity, the
accused appreciated that what he was doing during the assault was wrong. As the
post-mortem report indicates, the accused’s conduct resulted in a range of severe
injuries on the body of the deceased, including a ruptured liver, fractured ribs, a
crack fracture of the skull, bleeding of the brain and pale internal organs.
The accused
[9] The accused was 34 years of age at the time of the incident. Although he
attempted schooling until the age of 21, he only completed primary school before
working on various farms in the Graaf f-Reinet area. The deceased accompanied him
during part of this t ime and together they had four children, aged between 13 and
one, who are now all cared for by the deceased’s mother and sister.
[10] The accused previously supported his mother -in-law by contributing R1500
towards the maintenance of the older two childr en, who lived with her even prior to
the incident. He has managed to hold one or other form of employment for many
years prior to the incident, and worked on Klipfontein farm for some 18 months
before his arrest. He has no previous convictions
The interes ts of society
[11] Society demands that stern sentences be meted out in cases where a
person’s life is extinguished through the conduct of another. As Mr Nohiya argued,
for the State, the offence of murder is extremely serious , constituting an irreversible
violation of the constitutional right to life.
[12] Importantly, society’ s outrage at the senseless loss of life in the domestic
setting has translated into a prescribed minimum sentence of life imprisonment for
conduct of this nature. The relentless plague of gender -based violence, including so -
called intimate femicide, is a c ause for deep societal concern and anger . As the court
held in S v Robertson :3
‘It is so easy to glibly use the phrases and terminology of femicide and
gender -based violence, in part becau se 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 psyche of our country.’
[13] 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 o f society.4 In S v Rohde ,5 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 alarmi ngly 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 p aradigm that they
can be victims, and in fact end up as victims of crime because they are
women. The judiciary must guard against such perceptions and creating the
impression that the lives of women are less worthy of protection.’
[14] The impact on the d eceased’s family, in particular her children, can only be
imagined. As Makaula J has remarked:6
‘Death of a human being through killing has devastating and dire
consequences for the family of the deceased person. It r esults in financial,
3 S v Robertson [2022] ZAWCHC 104; 2023 (2) SACR 156 (WCC) para 2.
4 Preamble to the Domestic Violence Act, 1998.
5 S v Rohde 2019 (2) SACR 422 (WCC) para 54.
6 S v Ximiya [2015] ZAECBHC 9 para 2.
emotional, traumatic and psychological problems on those close and around
the deceased. Its adverse effects can never be adequately described and the
pain it causes cannot be measured in any way. The pain and helplessness
that one feel s cannot be verbalised. ’
Analysis
[15] 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.7 In S v Kasongo (Kasongo ), expert testimony revealed that
intimate femicide was much more common in South Africa compared to other
countries.8
[16] The judiciary is obliged to play its part in ensuring that prescribed minimum
sentences, designed to reflect society’s opprobrium tow ards murder linked to
domestic violence, are not departed from witho ut good reason. Prescribed minimum
sentences are intended to contribute towards the deterrence of violent crime and,
thereby, the protection of women, communicating to society that perpetrators must
expect to face the full force of the law.
[17] 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.9 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 public opinion. The
object of sentencing is to serve the public interest .10 Where possible, and if the
circumstances justify this, the sentence must be blended with a measure of mercy.11
7 S Mathews et al ‘Every six hours a woman is killed by her intimate partner: A nati onal study of
female homicide in South Africa’ MRC Policy Brief (No. 5) (June 2004).
8 S v Kasongo [2022] ZAWCHC 2 24; 2023 (1) SACR 321 (WCC) ( Kasongo ) para 15.
9 S v Zinn 1969 (2) SA 537 (A) (Zinn) at 540G –H.
10 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).
11 Zinn above n 9.
[18] The court must also be alive to the purposes of sentence, which, in general
terms, are retribution, prevention, deterrence and rehabilitation .12 That being the
case, m ore serious cases clearly require 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 offences concerned and are not to
be departed from lightly or for flimsy reasons , or based on misplaced pity .13
[19] It is accepted that n one of the factors highlighted by Ms McCallum , for the
accused, on their own constitute a substantial and compelling circumstance justifying
deviation from the prescribed minimum sentence . 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.14 It
remains incumbent upon this court, before it imposes the prescribed sentence , to
assess, upon a consideration of all the circumst ances of the case, whether this
sente nce is indeed proportionate to the offence .15
[20] 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
12 S v Rabie 1975 (4) SA 855 (A).
13 S v Matyityi 2011 (1) SACR 40 (SCA) para 23: ‘Despite certain limited successes there has been
no real let -up in t he 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 efficacy
of the policy or perso nal 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 patrol 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 minimu m 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. ’
14 Cf Kasongo above n 8 para 37.
15 S v Vilakazi 2009 (1) SACR 552 (SCA) paras 14 –15.
the evil of his deed’.16 It may be accepted that the accused’s state of mind was
affected by his consumption of alcohol and by the events which confirmed that his
wife was b eing unfaithful to him. Rather than being a premeditated act, the mix of the
two served as the catalyst for the fury and brutality that followed.17 As in Sigwahla ,
this court may also consider the fact that the murder was not committed with dolus
directus .18 To that may be added the accused’s clean record and his conduct in the
aftermath of his actions, as reflected above, including his expressions of regret, plea
of guilty and interacti ons with the deceased’s family. I am also mindful that he has for
much of his adult life remained in employment and seemingly contributed to the
upkeep of his children on a consistent basis.
[21] It is appropriate to consider the accused’s behaviour acco rdingly , bearing in
mind that any factors 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.19 Considered cumulatively,
I am satisf ied that there is justification to enhance the prospect of rehabilitation by
depart ing from the prescribed sentence and imposing a lesser sentence.20
[22] This is not to suggest that a light sentence will suffice. The accused
demonstrated controlling behaviour and his wife’s freedom of movement was
restricted before her bodily integrity was violated and her life extinguished. She was
attacked viciously in th e proximity of her home environment, which otherwise ought
to have been a safe -haven for her and her children , and must have suffered from the
16 S v Sigwahla 1967 (4) SA 566 (A) ( Sigwahla ) at 571D –E; S v Ndhlovu (2), 1965 (4) SA 692 (A) at
695–696.
17 Cf S v Peloeole 2022 (2) SACR 3 49 (SCA) para 24, 26. This decision may also be distinguished
based on the SCA’s rejection that the appellant was intoxicated.
18 Sigwahla above n 16 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 circumstanc e, in many cases it may
well be so, either alone or together with other features, depending on the particular facts of the case.
Counsel for the state’s reference to Director of Public Prosecutions, Mpumalanga Division v Mofokeng
2023 (1) SACR 670 (ML) para 12 does not alter the position. The main point made in that case was
that common purpose and murder during a robbery with aggravating circumstances attracts a
presc ribed minimum sentence of life imprisonment irrespective of the nature of the intention (dolus
directus, indirectus or dolus eventualis). It may be noted that this issue was considered as part of the
discussion on conviction, and not as part of the sentenc ing enquiry , and that no reference was made
to the decision in Sigwahla .
19 R v F undakubi and Others 1948 (3) SA 810 (A) at 818 cited with approval in Sigwahla above n 16
at 571H –572A. Also see S v Tafeni 2016 (2) SACR 720 (WCC) ( Tafeni ) para 11.
20 Tafeni above n 19 para 9 and the authorities cited there.
injuries inflicted . Even the nearby presence of Buys, other workers and the
accused’s own infant was insufficient to deter the accused from giving vent to his
alcohol -infused rage. Punishment that reflects the deterrent and retributive
dimensions of sentencing , proportionate to the interests of society and the
circumstances of the crimes, must be imposed. As explaine d in Kasongo :21
‘The Judiciary should speak such that we demonstrate that we are not cold,
aloof and far removed from the contemporary challenges. Where
circumstances permit, we should show that we heed the public's constitutional
call to make the punishment of crimes against women, especially their brut al,
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 violenc e. 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.’
[23] I have consid ered the time already spent in custody and the cumulative effect
of the sentences. By operation of law, the accused is prohibited from possessing a
firearm. In S v Manyathi ,22 this court had occasion to order that a copy of the
judgment be sent to the Minister of Health, highlighting the nature of the regulations
pertaining to alcohol labels , and the li nk between alcohol and gender -based
violence . The circumstances of this case , in my view, similarly warrant such action.
Order
[24] For these reasons, the accused is sentenced as follows:
1. Count 1 : Kidnapping : The accused is sentenced to 5 years imprisonment.
21 Kasongo above n 8 para 36.
22 S v Manyathi (unreported, Eastern Cape Division, Makhanda, case no. CC70/2024) para 23.
2. Count 2 : Murder: The accused is sentenced to 2 4 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 2 4
years imprisonment.
The Registrar is directed to make a copy of this judgment , together with the
judgment in S v Manyathi (unreported, Eastern Cape Division, Makhanda, case no.
CC70/2024) available to the office of the Minister of Health of the Republic of South
Africa.
_______________ __________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 28 January 2025
Delivered: 31 January 2025
Appearances:
For the state : Mr Nohiya
Instructed by: The Deputy Director of Public Prosecutions,
Makhanda
For the accus ed: Ms McCallum
Instructed by: Legal -Aid of South Africa, Makhanda