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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: CC62/2019
In the matter between:
THE STATE
and
CEBISA CHUMA BHALA Accused 1
MMELI KHESWA Accused 2
MLUNGISI NTSALAZI Accused 3
JUDGMENT ON SENTENCE -- 21 FEBRUARY 2025
LEKHULENI J
Introduction
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[1] Femicide and gender -based violence remain a scourge that continues to
ravage our country to its core. This case exemplifies the gravity and depth of this
unrelenting problem. The three accused persons were convicted by Mantame J on
06 May 2024 on three cou nts, namely murder, possession of unlicensed firearms,
and possession of ammunition. The matter was subsequently allocated to this court
in terms of section 275(2)(b) of the Criminal Procedure Act 51 of 1977 ("the CPA") to
impose sentence when Mantame J wa s acting at the Supreme Court of Appeal. After
considering the evidence recorded and the trial court's judgment , I proceeded to
consider the question of sentence. In terms of section 274(1) of the CPA, I invited
the parties to present evidence to inform th e court of the proper sentence to be
passed. Accused 1 and 2 chose not to present viva voce evidence. Instead, their
counsel s submitted pre -sentence reports and addressed the court in mitigation of
sentence in terms of section 274(2) of the CPA. Accused 3 testified in mitigation of
sentence. A probation officer's report in respect of accused 3 was also handed in as
an exhibit in these proceedings. The state advocate did not present evidence in
aggravation of sentence on behalf of the state but addressed the court on sentence
in terms of section 274(2) of the CPA.
[2] I pause to mention that sentencing proceedings herein commenced late last
year. The court was addressed in respect of accused 1 and 2. However, due to the
delay in obtaining a pre -sentence repo rt in respect of accused 3, the matter could not
be finalised expeditiously as was expected. The probation officer only provided the
report in respect of accused 3 after the court directed the probation officer to attend
court to explain what was holding or delaying them in compiling the pre -sentence
report for accused 3. The report was only filed on 27 January 2025.
[3] The context in which the offence occurred is always germane to sentence. For
this reason, I will briefly summarise the background facts and the trial court's findings
in returning a verdict of guilt against the three accused. The three accused were
arraigned in this court on the following charges: count 1, murder, an alternative to
count 1, conspiracy to commit murder; count 2, possession of unlicensed firearm;
and count 3, possession of ammunition.
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[4] The three accused pleaded not guilty to the three charges proffered against
them at the trial. They exercised their right to remain silent. However, the accused
made formal admissions in terms of section 220 of the CPA. The y admitted that the
deceased was the person mentioned in the indictment, that is, N […] D[...] with d ate
of birth, 18 November 1996; that the deceased was a female person who died on or
about 28 June 2017. The accused further admitted that they are not holders of a
valid license for firearms of any calibre nor ammunition of any calibre and that the
deceas ed was shot and killed a day before she was to testify in another criminal
matter in Cape Town Regional Court as a complainant in a rape case under
Milnerton CAS: 398/05/2016.
[5] The accused also admitted that on 28 June 2017, N [...] D[...] was declared
dead by Shadi Mukiapini from the Department of Health - Du Noon Clinic; that on 4
July 2017 Dr Linda Liebenberg performed a medico -legal post -mortem examination
on the body of the deceased as named in the amended indictment; that from the
time of the infl iction of injuries until the time of the post -mortem examination, the
body of the deceased did not sustain any further injuries; that the facts and findings
as set out in the post -mortem report completed at the time of the examination are
correct; that the facts and findings related to the cause of death of the deceased as
determined at the post -mortem examination and noted on the said post -mortem are
correct.
Background Facts
[6] For the purposes of the judgment on sentence, I deem it proper to set out the
facts of this case and briefly explain the reasons for the trial court's finding, as that
will give context to the consequent sentence imposed below. The facts of this matter
are so deeply unsettling to describe. The life of a vibrant young woman was b rutally
and abruptly ended for a sheer sum of R10 000 pursuant to a tripartite conspiracy to
murder agreement concluded by the three accused before this court.
[7] Accused 1 and accused 2 are husband and wife and are married by
customary law. In October 2016, accused 2 was charged with committing an act of
sexual penetration (rape) against a complainant N [...] D[...], a 19 -year-old woman,
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the deceased in this matter, by inserting his penis into her vaginal without her
consent. Pursuant to the alleged rape, accused 2 was assaulted by the family of the
rape victim. These people assaulted accused 2 for the abhorrent act and dragged
him to Section 28 in Du Noon, where the y removed all his clothes and left him
naked. They took photos of him and posted them on Facebook. Accused 2's sister
called the police, and accused 2 was rescued and taken to Groote Schuur Hospital.
[8] Accused 2 was later released from hospital and sub sequently detained at
Milnerton Police Station. He thereafter appeared at Cape Town Court and remained
in Pollsmoor Correctional Facility pending the hearing of his trial for the rape matter.
The Rape trial commenced in the Regional Court in Cape Town on 2 May 2017. The
accused pleaded not guilty to the charge. On 08 June 2017, the matter appeared for
trial in the Regional Court, and the matter was heard and postponed for further trial
to 29 June 2017.
[9] Warrant Officer Wilmot Shane Isaacs, the investig ating officer of the rape
matter bearing CAS 398/05/2016, testified in this matter that on 29 June 2017, he
went to the residence of the complainant, the deceased herein, to pick her up to
testify in the Regional Court. Upon arrival, the complainant's moth er informed him
that the complainant was shot and killed on the night before the trial date. However,
Warrant Officer Wilmot Isaacs proceeded to Court to notify the senior prosecutor of
what happened. According to Warrant Officer Isaacs, a s a result of the complainant's
death, the Regional Court in Cape Town withdr ew the charges against accused 2,
and accused 2 was subsequently released from prison .
[10] The events leading to the murder of the complainant , in the rape matter N [...]
D[...]can succinctly be recounted as follows:
[11] Whilst detained in Pollsmoor Correctional Facility for the alleged rape of N [...]
D[...], accused 2 met accused 3. Accused 3 was also incarcerated at Pollsmoor
Correctional Centre and facing a rape charge as we ll. While in prison, accused 3
informed accused 2 that he (accused 3) could arrange to kill the complainant, N [...]
D[...], so that the charges of rape against accused 2 could be withdrawn. Pursuant
thereto, accused 2 agreed with this suggestion. Accused 2 then called accused 1,
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his wife, and informed her that there was a gentleman (a fellow detainee – Accused
3) at Pollsmoor prison who promised to he lp him by killing the complainant (rape
victim) and that that would be done for free.
[12] Later, accused 3, who was also facing a rape charge, was then released from
prison, leaving accused 2 behind (in prison). After accused 3 was released from
prison, on 27 June 2017, accused 3 met accused 1 and requested money from her
to carry out the murder/shooting of the rape victim, N [...] D[...]. He asked for an
amount of R10 000.00 to carry out the murder. Accused 1 informed accused 3 that
she did not have that amount but would borrow it from others. Accused 3 was
accompanied by another dark male at that time. On that day, accused 3 and his
companion left accused 1 at about 14h00 and proceeded to visit other family
members of accused 2. Accused 3 advised accused 1 that they wanted to see
accused 2's family members for the purposes of security for payment of killing the
complainant, N [...] D[...]. They visited the address of her husband's (accused 2)
sister.
[13] On 2 8 June 2017 at about 19h00, a day before the hearing of accused 2's
rape trial, accused 1 received a call from accused 3, who informed her that he had
done his job and that N [...] D[...] had been killed. Accused 3 asked for the money and
accused 1 promised to give it to him the following day. The following day, at about
09h00, accused 1 received a call from accused 3 asking for the 'blood money' for
killing the deceased. Accused 1 then proceeded to Shoprite to withdraw R5000.00
and handed it to accused 3. Ac cused 1 promised to pay the balance of R5000 at the
end of that month.
[14] After that encounter, accused 1 and 3 had several WhatsApp
communications. Those communications formed part of the trial record. Upon further
investigation, the police arrested ac cused 3 on the morning of 28 July 2017. The
arresting officer, Sergeant S iqgolana, interviewed accused 3 and requested him to
open his cell phone. Some WhatsApp messages linking the three accused to the
murder of N [...] D[...] were retrieved from accused 3 's phone. Of interest to Sergeant
Siqgolana was a conversation between Accused 3 and a person who was saved as
Mmeli's wife, i.e. accused 1. When Sergeant Siqgolana read those messages, he
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gathered that accused 3 and accused 1 (Mmeli's wife) knew each othe r. Sergeant
Sigqolana testified at the trial that accused 3 confirmed that accused 2 told him to
collect the money from accused 1. An array of phone calls and messages confirmed
that accused 3 and 1 were in constant contact.
[15] In the WhatsApp communication, inter alia, accused 3 told accused 1 that no
one had seen them in the area where the incident had taken place. Furthermore, in
their chats, there was a photograph of the deceased. The arresting officer could
easily identify t he deceased on that photograph as he attended the crime scene
where the deceased's body was recovered. At the bottom of that photograph was
written "RIP CHOMMIE" . Sergeant Sigqolana asked accused 3 about these
messages. In response, accused 3 stated that h e did not want to make any
confession but explained to the arresting officer of the plot that was hatched at
Pollsmoor Prison with accused 2 to kill the deceased N [...] D[...] so that the charges
against accused 2 could be withdrawn.
[16] Sergeant Sigqolana proceeded to download and to print all those WhatsApp
messages. According to Sergeant Sigqolana, the deceased was murdered on 28
June 2017. However, their chat on WhatsApp between accused 1 and 3 started on 3
July 2017. Sergeant Siqgolan a explained during the trial that accused 1 and accused
3 had frequent and intimate chats. They shared about each other's day -to-day
situations . It was apparent that accused 3 was smitten with accused 1. In fact, from
reading the WhatsApp messages, the arr esting officer noted that accused 1 and 3
appreciated each other considerably. From the WhatsApp communication, accused
1 saw accused 3 as h is role model in the crime syndicate sector and wanted to
emulate him. In the messages, accused 3 indicated that he did all that he did
because he loved accused 1. Otherwise, others did not want to do the thing because
the money was less than what they were used to get. This was all included in their
WhatsApp chats.
[17] At the trial, Sergeant Sigqolana explained that he also arrested accused 1 on
28 July 2017 at her place of work, Visual Security, Montague Gardens. When he
effected this arrest, he was accompanied by Sergeant Majikijela. They immediately
took accused 1 to Milnerton Police Station. While they interviewe d accused 1, she
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initially told them that she did not know accused 3. Sergeant Sigqolana proceeded to
ask for accused 1's cell phone. He further asked for her cell phone number. Sergeant
Sigqolana proceeded to check the number given to him by Accused 1 aga inst the
number saved as Mmeli's wife in Accused 3's cell phone. The two numbers matched.
Subsequently, Sergeant Sigqolana asked accused 1 how she had chats with
accused 3 and accused 1 somehow claimed not to know accused 3. When she was
so confronted abou t her chats with accused 3, accused 1 stated in isiXhosa, "How is
Mlungisi (accused 3)? Why would he say I should delete the messages, but he did
not delete them." Sergeant Sigqolana found out that accused 1 deleted her chats
with Accused 3.
[18] Soon thereafter, accused 1 said she wanted to come clean and make a
confession. The arresting officer proceeded to advise her of her rights. Sergeant
Siqgolana explained to accused 1 that someone would take a confession statement
and not him if she wanted to make a confession. Accused 1 appeared not to have a
problem with the explanation. It was on this background that a confession was taken
from Accused 1, who explained in detail the plot to kill N [...] D[...]. At the trial, the
admissibility of the confes sion was challenged . However, after a trial within a trial ,
the court accepted accused 1's confession as admissible evidence against her.
[19] In his further investigation, Sergeant Sigqolana asked Accused 1 the
whereabouts of accused 2. Accused 2 was ar rested at accused 1 ’s premises in
Strand and taken to Milnerton Police Station. At Milnerton Police Station, the
arresting officer interviewed accused 2. Likewise, accused 2 informed him that he
wanted to make a confession, and Sergeant Siqgolana informed his Commander,
Colonel Mapapu. Indeed, arrangements were made, and the confession was taken
after accused 1's constitutional rights were explained to him. In the said statement,
accused 2 explained how the plot to kill the complainant was hatched with accu sed 3
and how he was finally released from prison after the complainant in his rape matter
was murde red. At the trial , the admissibility of this confession was also challenged.
However, after holding a trial within a trial, the trial court accepted the confession as
admissible evidence against accused 2.
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[20] The state called several witnesses to testify. Despite all the evidence levelled
against them, the accused chose t o remain silent and not testify after the closure of
the state ’s case .
[21] In considering the matter, the trial court found that it was not disputed that
accused 2 was arrested for alleged rape of the deceased, N [...] D[...], in May 2016.
He appeared in Ca pe Town Regional Court, after being remanded at Pollsmoor
Prison. Again, the court noted that it was not disputed that whilst in prison, accused 2
communicated frequently with his wife, accused 1. At some point, accused 2 called
his wife and stated that th ere was a gentleman (accused 3) who promised to help
him kill the rape victim for free. This appeared to have been the version of Accused 1
and 2 in their confessions. However, after accused 3 was released from prison, it
became clear that the said killing was to be effected at a cost or a fee of R10 000.00.
[22] The trial court observed that although there was initially no amount for
accused 3 to carry out this murder, it appears that upon his release and upon
discussing the matter with his team, he reque sted the sum of R10 000.00 from
accused 1, who at the time was gainfully employed at Visual Security as Security
Guard. In rejecting the defence of threats alleged by accused 1, and correctly so, in
my view, the trial court noted that if indeed accused 1 d id not want to be involved in
the planning and commission of the crime, she would have asked accused 3 that she
had nothing to do with her husband's arrangements to murder the complainant, and
that accused 3 should leave her alone, and/or if indeed there w ere threats, she
should have reported the matter to the police. That was not done.
[23] The court considered the WhatsApp communication between Accused 1 and
3 and observed that accused 3 declared his love and pursued Accused 1 in their
conversation when ever they chatted. The tria l court rejected the version of accused
1 that she was threatened and found that if accused 1 was indeed threatened by
accused 3, accused 3 could not have proceeded with the killing of the deceased and
or called her cell phone an d advised her that the job was done on the evening of the
day of the shooting. This resulted in them making an appointment to meet at
Shoprite the next day at 09h00, when she withdrew an amount of R5000.00 and
gave it to accused 3.
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[24] Furthermore, from 3 July 2017 to 26 July 2017, the WhatsApp messages that
were exchanged between the two suggested that they were comfortable with each
other. In these messages, they shared jokes, and on 4 July 2017, accused 1 asked
"if all is quiet", referring to the murder. In response, accused 3 stated that "all is
quiet, but he was advised not to set foot at that place, since some identified him on
that day". Accused 3 stated that his confidante was keeping an eye for him. On 6
July 2017, accused 3 stat ed in the WhatsApp messages that others (his team
members) did not want to do the job since they were going to get less money, but
since he loved accused `1, they did it.
[25] Importantly, on 13 July 2017, accused 3 asked accused 1 how she is now that
her husband is back from prison. Accused 1 stated that she does not know how she
can thank them. Accused 3 told her not to worry. However, he reminded her they
should not fight at the end of the month. They communicated until the date of
accused 3's arrest.
[26] To the extent that this matter turned on circumstantial evidence, the trial court
found that the inference to be drawn from the facts proven by the state, was that
accused 1 and 2 conspired with accused 3 to kill the deceased using a firearm. The
post-mortem report proved that the deceased sustained three (3) bullet wounds, and
some bullets were stuck in her head. The court concluded that for accused 3 to kill
the deceased, he had a firearm and ammunition. Consequently, the planning and
execution of th e murder were executed successfully by accused 1, 2 and 3. They
were accordingly found guilty as such.
[27] Against this background, I turn to consider the question of sentence.
[28] In passing sentence, I must record that punishment must fit the criminal as
well as the crime, be fair to society, and be blended with a measure of mercy
according to the circumstances.1 This court has a duty to impose an appropriate
sentence . When determining an appropriate sentence there is, as was pointed out in
1 S v Kumalo 1973 (3) SA 697 (A) at 698.
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S v Rabie ,2 a duty on the presiding judicial officer to approach the determination with
a mindset of mercy or compassion or plain humanity. This has nothing in common
with maudlin sympathy for the accused. While recogni sing that fair punishment may
sometimes have to be robust, mercy is a balanced and humane qua lity of thought
which tempers one's approach when considering the basic factors of letting the
punishment fit the criminal as well as the crime and being fair to society .
[29] In S v Mhlakaza ,3 the Supreme Court of Appeal, per Harms JA, held that the
object of sentencing is not to satisfy public opinion but to serve the public interest. A
sentencing policy that caters predominantly or exclusively for public opinion is
inherently flawed. The cour t noted that it remains the court’s duty to impose
fearless ly an appropriate and fair sentence even if the sentence does not satisfy the
public.
Aims of Punishment
[30] A sentencing court does not always have an untrammelled discretion to
determine sentence or a clean slate on which to work. In certain cases, and this
applies to the murder conviction against the three accused for reasons that I shall
deal with below, a pr escribed sentence is provided for by the Criminal Law
Amendment Act 105 of 1997. However, I must mention that i n determining an
appropriate sentence, it is trite law that the court should bear the main objectives of
criminal punishment in mind, namely retr ibution, prevention of crime and the
deterrence of criminals as well as the possibility of rehabilitating the accused.4 Given
the current levels of violence and serious crimes in our country, it seems proper that,
in sentencing especially such crimes, the emphasis should be retribution and
deterrence. Deterrence has two aspects : deterring the prisoner and deterring
others.5
2 S v Rabie 1975 (4) SA 855 (A) at 861B.
3 1997 (1) SACR 515 (SCA) at 518 F.
4 S v Rabie 1975 (4) SA 855 (A) 862 A -B.
5 S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 519 F.
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[31] Although it is correct that an accused should not be sacrificed on the altar of
deterrence, it, becomes necessary from time to time for the courts to send a strong
message to society and would -be offenders to curb the proliferation of crimes.6
The Triad
[32] The imposition of sentence is not a mechanical process in which
predetermined sentences are imposed for specific crimes. It is a nuanced process in
which the court is required to weigh and balance a variety of factors to determine a
measure of the moral, a s opposed to legal, blameworthiness of an accused.7 That
measure is achieved by a consideration, and an appropriate balancing, of what the
well-known case of S v Zinn ,8 described as a ‘triad ’ consisting of the crime, the
offender and the interests of society’. The elements of the triad contain equilibrium
and a tension. A court should, when determining sentence, strive to accomplish and
arrive at a judicious counterbalance between these eleme nts in order to ensure that
one element is not unduly accentuated at the expense of and to the exclusion of the
others.9 I as much as it is important not to overemphasi se the seriousness of the
offense or the interests of society so is it important not to overemphasi se the
personal circumstances of an accused person.10 All three elements are equally
important and indissociable . I turn to dealing with the elements of the triad in this
matter ad seriatim .
The personal circumstances of accused 1
[33] It is trit e that in passing sentence the personal circumstance of the accused
must be considered carefully, not only in so far as they led to the act but also to the
extent that the intended punishment will affect the accused personally. In this case,
the personal ci rcumstances of accused 1 have been set out succinctly in the
probation officer's report and by the defence counsel, Ms Andrews, during her
argument on sentence. Accused 1 is 36 years old and resided in Du Noon prior her
6 S v Sinden 1995(2) SASV 704 (A). See also S v Lemtongthai 2015 (1) SACR 353 (SCA).
7 S v Clayton Arends and Others (unreported Case No. CC96/09 ) (EC) at para 8.
8 1969 (2) SA 537 (A), at 540G -H
9 S v Banda and Others 1991 (2) SA 35 2 (BG) at 355A -C.
10 S v Sadler 2000 (1) SACR 331 (SCA) para 18.
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arrest. She has no previous convicti ons and no pending matters. She has been
married to accused 2 by customary union since 2014.
[34] Accused 1 reported to the probation officer that accused 2 abused her and
was unfaithful to her. He would often abuse her emotionally, verbally and physically.
Accused 1 has three children aged 17, 15 and 13, respectively. At the time of the
commission of the offence, as well as at the time of arres t, accused 1 was not the
primary carer of her biological children. The eldest child resides in Grabouw, and the
probati on officer reported that Ms C […] T[…] adequately cares for the child. The
second child was in the care of his great -grandmother in the Ea stern Cape until the
great -grandmother passed away. The child is currently in the care of another family
member, and the last time the probation officer contacted the child, the child was
doing well. The third child is residing in Cape Town with a family m ember and is well
taken care of.
[35] As far as her schooling is concerned, accused 1 stated that during her primary
schooling, her parents separated. She then moved to her maternal grandparents
with her biological mother. Accused 1's mother passed away when accused 1 was
11 years old, and her maternal grandmother then raised her. Accused 1 reported
that she struggled academically and was consequently much o lder than her peers in
her grades due to repeatedly failing her grades. The highest grade she completed
was Grade 8. She dropped out in grade 9 when she was 18 years as she fell
pregnant. She was compelled to leave school to care for her firstborn child. S he
worked for various companies and when she was arrested, she worked for Visual
Security as a security guard and earned a sum of R6000 per month.
[36] Concerning the offence, accused 1 reported to the probation officer that her
husband was innocent in r espect of the rape matter, and she was aggrieved and
miserable that her husband had to be arrested for something she believed he did not
do. She stated that she had no role in the murder of the deceased, directly or
indirectly. The probation officer noted in her report that, in her professional opinion,
accused 1 has not demonstrated genuine remorse for all the counts she was
convicted of. The probation officer recommended a sentence of direct imprisonment.
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The personal circumstances of accused 2
[37] Accused 2 is 34 years old and is married to Accused 1. He is not a first
offender. He was convicted of contravening section 2 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act in that he unlawfully and intentionally
compelled or ca used a child to be in his presence while he engaged in sexual
intercourse. He has two children with accused 1. The first child of accused 1 is not
his biological child. Accused 2 did not go very far at school. He only completed
Grade 5. According to accuse d 2, he dropped out of school due to his parents not
having enough money to pay for his transportation to and from school. Furthermore,
accused 2 reported that his parents could not afford to buy him a school uniform.
[38] He worked as a taxi driver before he was arrested for the rape matter. He
estimated that his monthly remuneration was R8000. However, this amount varied
from month to month. Accused 2 informed the probation officer that his income was
sufficient to provide for all his needs and his parents' basic needs and monthly
financial expenses. As far as his health is concerned, accused 2 reported that he has
been diagnosed with hypertension and is receiving treatment for this ailment.
[39] Accused 2 reported to the probation officer that at the time of the commission
of the offense, he was incarcerated at Pollsmoor prison for the alleged rape case
lodged against him by the deceased . In prison he met accused 3 who belonged to
the same gang in prison with him. According to the accused 2 , he was in a romantic
relationship with the deceased before he entered into a relationship with accused 1.
[40] Accused 2 further stated that he continued his love affair with the deceased
victim even during his marriage relationship with accused 1. However, accused 2
alleged that before the deceased victim laid the alleged charges of rape against him,
he allegedly ended their relationship. The reason he ended the af fair with the
deceased victim was due to the deceased victim allegedly causing trouble between
accused 1 and 2. Accused 2 also reported that the deceased victim became a
financial burden to him, which he was no longer able to sustain.
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[41] As far as th e murder charge is concerned, accused 2 reported to the probation
officer that whilst he was incarcerated for the rape case of the deceased victim, he
met accused 3 at Pollsmoor prison. Accused 2 a sserted that he can recall accused 3
volunteering his servi ces to assassinate the deceased victim. Accused 2 further
averred that this was, however, only a developing discussion between him and
accused 3. They never agreed in any way for accused 3 to proceed with the killing of
the deceased victim. However, he was surprised when he found out in court during
his appearance that the deceased victim was killed.
[42] Accused 2 stated that the police then informed him and presented him with
evidence of a suspected developing relationship between his wife and the accused
3. Accused 2 reported that he agreed to give a confession statement out of rage as
well as to avenge his wife and accused 3 for their suspected developing romantic
relationship. Accused 2 denied tha t he was involved in the murder of the deceased.
The probation officer recommended tha t the accused be sentenced to direct
imprisonment in terms of section 276(1)b) of the CPA.
The personal circumstances of accused 3
[43] Accused 3 is 42 years sold. He is not a first offender. He was convicted of
assault in 2009 and of possession of unlicensed firearm and ammunition in 2010. In
2018, he was convicted of fraud. Accused 2 attended Njijini Primary School in Mount
Frere and com pleted grade 9 in 1999. He moved to Durban to live with his father in
2000 and attended secondary school. Accused 3 testified that he did not have a
good relationship with his father as his father was abusive to the accused’s mother in
front of the accused and he did not agree with that. Accused 3 testified that he
attended Grade 10 for a few months and dropped out of school to seek employment
opportunities to assist his family.
[44] He completed driving lessons and obtained a driving licence. Accused 3
started working as a driver in 2001 for a few companies in Durban. He moved to
Cape Town in 2007 and lived in Du Noon. He worked for various companies until he
was arrested in 2017 rega rding this matter. He is not married and has six children, all
born out of wedlock. Three boys and three girls aged 20, 19, 16, 15 and 12. The
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older three children are currently residing in the care of their maternal families. Their
mothers are deceased. T he two daughters aged 15 and 12 are currently res iding
with their mothers at Ind we, Eastern Cape.
[45] One of the accused's children, a 15 -year-old son is residing w ith the accused's
mother at Njij ini Location in Mount Frere, Eastern Cape. The child c oncerned was
raised by his paternal grandmother since the age of one year. The accused’s mother
is 76 years old and is suffering from sugar diabetes, arthritis and high blood
pressure. Accused 3 reported that he was the main breadwinner in his family and
financially supported his family and children. Even though he was not living with his
children, he reported that he was financially contributing to their upbringing. His
mother has confirmed accused 3’s financial support towa rds the family and children.
The probation officer noted that the accused's mother indicated she has been
experiencing financial difficulties since the incarceration of the accused 3. Accused
3's mother is raising her grandson and is dependent on SASSA's old age grant,
which she also pays for her policies and buys groceries from the grant.
[46] During his evidence in mitigation of sentence, accused 3 stated that he has
been in custody for almost 8 years and is suffering from a chronic illness; however,
he is taking the required medication to manage the chronic illness. He reported to
the probation officer that he feels stressed by the curren t case, and he attended a
counselling session in 2022. The accused is not accepting responsibility for the
offence he was convicted of. He stated during his evidence in mitigation of sentence
that he is not the one who pulled the trigger and that the perso n who pulled the
trigger is not in court. He denied any involvement in the murder and reported to the
probation officer that he did not commit the offence he was convicted of.
[47] The probation officer in the pre -sentence report recommended that the
punishment of direct imprisonment is appropriate for the court's consideration as it
ensures that the accused is no longer a risk to society, as well as providing him with
an opportunity to reflect on the wrongfulness of his alleged actions.
The Crime
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[48] The seriousness of the crime depends upon the outlook of society, the
indignation with which the crime is held in the eyes of society. In other words, the
more repugnant a crime is in the eyes of society, the more public outrage is elicited,
and the gr eater the punishment should ideally be. It is against this back drop that this
court considers the seriousness of the crime committed by the three accused. The
three accused have been found guilty of murder and of possession of an unlicensed
firearm and possession of ammunition. The offence for which the accused persons
have been convicted of are of considerable severity. What is particularly heinous in
this case is the fac t that the murder was deliberately planned in the prison cells and
purposely executed by taking the complainant's life in a tragic manner.
[49] It bears emphasis that t he way the murder was planned and executed generates
a profound sense of disgust and condemnation . I am mindful that the rape matter
was pending before the trial court. However, I am of the view that the complainant
was violated when she was raped. It is axiomatic that society considers rape to be a
very serious matter, particularly as it is so preval ent an offence. This is so because it
constitutes a humiliating, degrading and brutal invasion of the privacy, the dignity
and the person of the victim.11
[50] The complainant's constitutional right to freedom and security envisaged in
section 12(1)(c) of the Constitution which include the right to be free from all forms of
violence was hideously infringed. When she courageously stood before the court to
assert h er rights to human dignity, her voice filled with resolve and determination ,
she was tragically killed to exempt accused 2 from accountability or retribution for the
rape charge levelled against him . In disrespect of the law, the accused flagrantly
violated her inherent dignity , more so, the right to have her dignity respected and
protected. The complainant could not obtain justice for the alleged violation of her
body by accused 2. As correctly pointe d out by the probation officer, the
consequences of an offence of this nature are that it might deter victims of rape from
coming forward out of fear that they would be at further significant risk of harm.
11 S v Chapman 1997 (2) SACR 3 (SCA) at 5a -b.
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[51] Concernedly, the deceased victim was due to testify the following day when
she was killed and silenced. The truthfulness of the charge she levelled against the
accused could not be concluded because she was mortally silenced. Statements
made by accused 1 and 2 to the probation officer that the de ceased victim had lied
when laying charges against accused 2 violates the deceased’s dignity and portrays
her as being untruthful for laying false charges against accused 2. She cannot
answer for herself because she has been eternally silenced. It can reas onably be
inferred that she had a strong case against accused 2 and hence the latter realised
that the only way to escape was to remove her from the face of the earth. I find this
very troubling and disconcerting .
[52] She died a painful death. The degree of violence exerted upon the deceased
during her killing is deplorable . As correctly pointed out by the state, this crime was a
femicide, and this court needs no introduction to it as it is dealt with daily by this
court. It remains a serious threat to our country and needs to be dealt with decisively
in a manner proportionate to the magnitude of the problem it represents. The death
of the deceased was a planned hit on her life for the benefit of the accused, in
particul ar accused 1 and 2. Demonstrably, a ccused 1 and 2 were reunited after her
killing, and accused 3 was paid for his part in the murder. This was a well -planned
murder of the deceased, which is frowned upon and cannot be allowed .
[53] When one considers th e medico -legal post -mortem examination report by the
pathologist, the deceased suffered 3 gunshot wounds: one to the right upper arm,
one to her head below her right earlobe, and the third to the head from the back.
What aggravates thi s matter is that the deceased was shot in front of her home,
which ordinarily served as her safe haven.
The interest of society
[54] Society's interest in the effective punishment of murder offenders by the
courts is obvious. Society demands that people who commit heinous crimes must be
punished, bearing in mind that the main purpose of punishment discussed above.12
12 R v Swanepoel 1945 AD 444 at p455.
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Society should be pr otected against crime, which is attained through the prevention
of crime and the deterrence of criminals by administering punishment to those
convicted of crime . In S v Banda and Others ,13 Friedman J held that the feelings and
requirements of the community, the protection of society against the accused and
other potential offenders must be considered, as well as the maintenance of peace
and tranquillity in the land needs to be taken into acc ount.
[55] Society is looking at the courts for their protection against people who commit
crimes like the three accused. If the courts fail to deal appropriately with criminals,
society will lose confidence in the courts, and this will prompt society to take the law
into their own hands.
Substantial and compelling circumstances
[56] The Criminal Law Amendment Act 105 of 1997 is applicable in this matter.
The murder of the deceased was planned by the three accused. Premeditated and
planned murder attract life imprisonment in terms of section 51(1) of the Criminal
Law Amendment Act 105 of 1997 unless the accused show the e xistence of
substantial and compelling circumstances to deviate from the prescribed minimum
sentence. Mr Uys, the state advocate, submitted that the court should invoke the
provisions of this Act and sentence the accused to direct imprisonment as
prescribe d.
[57] As far as the seven years of imprisonment while awaiting trial is concerned,
Mr Uys relied on the Supreme Court of Appeal case in in State v Ludidi and others ,14
(“Ludidi”) in which the accused were found guilty of premeditated murder based on a
contract killing of the husband of the fourth accused in the matter. The accused had
been in custody for a period of 5 years and 8 months. In that matter, the court stated :
“The high court did not misdirect itself when it found that the lengthy pre -
sentencing incarceration did not amount to substantial and compelling
13 1991 (2) SA 325 (BP) at 356F .
14 [2024] ZASCA 162 .
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circumstances, justifying a deviation from the prescribed minimum sentence
of life imprisonment.”15
[58] Mr Uys contended that a closer examination of Ludidi reveals that the reason
for delays must be examined to effectively sentence accused persons. Where the
prosecution causes the delay, an accused person cannot be prejudiced by this.
[59] The defence, on the other hand, argued that the court should consider the
personal circumstances of the accused and depart from the prescribed minimum
sentence. The defence also contended that the accused have been in custody for
seven years and six months and that this should weigh heavily in favour of the
accused. Ms Andr ews, counsel for accused 1 and Mr Dzakwa for accused 2, mainly
relied on S v Vilakazi ,16 where the court stated that it would be unjust if the period of
imprisonment while awaiting trial is not considered in any custodial sentence
imposed. Mr Ngoza, on behalf of accused 3, implored the court to consider a
sentence in terms of section 276(1)(h) or (I) of the CPA as such a sentence will offer
stricter supervision and monitoring of the accused in the community. In addition, Mr
Ngoza pointed out that section 276(1)(h) will allow the accused to remain in the
community and be involved in the correctional services program.
[60] The approach of the court s to sentence when the Criminal Law Amendment
Act applies is now well established . It has been emphasised in S v Malgas ,17
(“Malgas”) that when sentencing for crimes specified in the Act, a court is required to
approach that question conscious of the fact that the legislature has ordained life
imprisonment or the prescribed period of imprisonment as the sentence which
should ordinarily b e imposed unless there are substantial and compelling
circumstances warranting a departure from the prescribed sentence.
[61] In Malgas, it was held that it is impermissible to deviate from the prescribed
sentence 'lightly and for flimsy reasons which could not withstand scrutiny' but, this
apart, all factors relevant to determining sentence remain relevant when the Act
15 At para 1 8.
16 [2008] 4 ALL SA 396 (SCA) at par 60 .
17 2001 (1) SACR 469 (SCA) at Para 8.
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applies, and a sent encing court must look to the 'ultimate cumulative impact' of all of
these factors to determine whether a departure from the prescribed sentence is
justified.18 In S v Price ,19 the court pointed out that subsequent to the
commencement of the Criminal Law Amendment Act 105 of 1997 , it was no longer to
be "business as usual' when sentence was imposed for the offences referred to in
the legislation. It was noted that the legislature had provided a new "benchmark ”
against which the sentence to be imposed must be assessed.
[62] In this case, I have considered the personal circumstance s of the accused
and the per iod they spent in prison pending the finalisation of this matter. From the
reasons that follow, I believe that cumulatively, it does not constitute substantial and
compelling circumstances warranting a deviation from the prescribed minimum
sentence. From the evidence presented, t he delay in hearing this matter cannot be
attributed to the accused or the state. The matter had to be investigated thoroughly
in the lower court before it could be transferred to the High Court for hearing.
[63] The accused applied for bail in the lower court, but their bail application was
refused as they failed to satisfy the requirements of section 60(11)(a) of the CPA.
Primarily, the three accused remain in custody for this extended period because their
bail application was refused. Thereafter, the matter was transferred to the High Court
for trial after the investigations were concluded. The matter appeared for the first
time in the High Court in September 2019 and was subsequently enrolled on the pre -
trial roll in this court.
[64] It is common cause that at the beginning of 2020, COVID -19 struck, and its
restrictions in terms of the State of National Disaster, were only lifted around July
2022. This created a delay in the matter and even a backlog to other matters
enrolled in this court. Subsequent thereto, a trial date for this matter was allocated
for 10 October 2023 and the matter proceeded without any further delay. At the
conclusion of the e vidence, the accused were found guilty, and the matter was set
down for sentencing proceedings on 26 June 2024. At the beginning of the
sentencing proceedings, accused 3 terminated the mandate of his Legal Aid attorney
18 At Para 9.
19 2003 (2) SACR 551 (SCA) at 30.
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and appointed advocate Ngoza to repre sent him. Once all the pre -sentence reports
were filed, sentencing proceedings proceeded.
[65] Mr Ngoza submitted that the pre -conviction period of imprisonment is so
inordinate and must weigh heavily in favour of the accused when the court imposes
the n ecessary sentence. I must stress that a pre -conviction period of imprisonment is
not, on its own, a substantial and compelling circumstance; it is merely a factor in
determining whether the sentence to be imposed is proportionate or unjust.20 In other
words, t he period in detention pre -conviction and sentencing is but one of the factors
that should be taken into account in determining whether the effective period of
imprisonment to be imposed is j ustified.21 In addition , a life sentence means a
sentence which extends for as long as that person is alive. To this end, I agree with
the view that a court cannot approach a life sentence as anything other than a
sentence imposed for the rest of that person's life. It has no determinate maximum
period.22
[66] The murder of the deceased complainant was carefully planned. Its execution
involved the co -operation of the three accused. At the risk of repetition, I have
considered the personal circumstances of the accused presented during the hearing
of this matter and those set out in the pre -sentence reports, I have considered the
interests of society, and I have also considered the cri me and the circumstances
under which it was committed, I have likewise considered the pre -conviction period
of incarceration, and I have considered th e fact that the accused are not remorseful
for the callous killing of the complainant and I am of the view that there are no
substantial and compelling circumstances so as to justify a departure from the
benchmark laid down by the legislature. In the circumstances, I am of the opinion
that the prescribed sentence is propo rtionate to the crime, the accused and the
legitimate needs of society.
Order
20 S v Ngcobo 2018 (1) SACR 479 (SCA) at para 14.
21 S v Romer 2011 (2) SACR 153 (SCA) at paras 22 -23.
22 S v Kammies 2019 JDR 2600 (ECP) at para 38
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[67] In the result, the following order is granted:
67.1 Accused 1 is sentenced to life imprisonment in respect of count 1
(murder) in terms of section 51(1) read with Schedule 2, Part 1 of the Criminal
Law Amendment Act 105 of 1997. Accused 1 is sentenced to 15 years
imprisonment in respect of count 2 (possessi on of an unlicensed firearm).
Accused 1 is sentenced to five years imprisonment in respect of count 3 (for
possession of ammunition).
67.2 Accused 2 is sentenced to life imprisonment in respect of count 1
(murder) in terms of section 51(1) read with Schedule 2, Part 1 of the Criminal
Law Amendment Act 105 of 1997. Accused 2 is sentenced to 15 years
imprisonment in respect of count 2 (possessi on of an unlicensed firearm).
Accused 2 is sentenced to five years imprisonment in respect of count 3 (for
possession of ammunition).
67.3 Accused 3 is sentenced to life imprisonment in respect of count 1
(murder) in terms of section 51(1) read with S chedule 2, Part 1 of the Criminal
Law Amendment Act 105 of 1997. Accused 3 is sentenced to 15 years
imprisonment in respect of count 2 (possession of an unlicensed firearm).
Accused 3 is sentenced to five years imprisonment in respect of count 3 (for
posse ssion of ammunition).
67.4 In terms of section 39(2)(a)(i) of the Correctional Services Act 111 of
1998 , the sentence s in respect of counts 2 and 3 namely, possession of an
unlicensed firearm and possession of ammunition , will run concurrently with
the sentence of life imprisonment on the murder charge for the three accused.
67.5 In terms of section 103(1) (a) and (g) of the Fir earms Control Act 60 of
2000 , the three accused are deemed unfit to possess a firearm.
______________________
LEKHULENI JD
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JUDGE OF THE HIGH COURT
APPEARANCES
For the State: Mr Uys
Instructed by: NPA
For Accused 1: Ms Andrews
Instructed by: Legal Aid South Africa
For Accused 2: Mr Dzakwa
Instructed by: Legal Aid South Africa
For Accused 3: Mr Ngoza
Instructed by: Madikizela Attorneys