SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Paarl Regional Court case no: PSS189/22
DPP Ref No: 10/2/5/1/3 – 86/24
High Court Case No: A234/24
In the appeal between:
N[...] K[...] APPELLANT
and
THE STATE RESPONDENT
Coram : Henney J et Mayosi AJ
Hearing d ate: 31 January 2025
Delivered on electronically on 20 March 2025
JUDGMENT
MAYOSI AJ
Introduction
1 The genesis of this appeal is the most tragic of facts – the murder of six-month -
old baby L by her mother , the appellant .
2 The State charged the appellant with murder1 as defined in section 51(1)(a)
read with Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the Act ) ; i.e., murder when it was planned or premeditated , and relied on the
minimum sentence of life imprisonment .2 3
3 The appellant admitted the murder of her baby and ple aded guilty , in terms of
section 112 (2) of the Criminal Procedure Act 51 of 1977 (CPA ), to the charge of
murder by stating as follows, in relevant part , in her section 112(2) statement
dated 1 February 2024 (the plea statement ):
6. I plead guilty to a charge o f Murder in the form of Dolus Eventualis
read with the provisions of section 51(2), 52(2) , 52A and 52B of the
Criminal Law Amendment Act, in that on or about the 7th May 2022
at Covi d Camp, La nquedoc, Paarl in t he Regional Division of the
Western Cape , I did unlawfully and intentionally cause the death of
[L] K[…] a 06-month -old minor female by smothering her.
7. I admit that on the 07th of May 2022, I was present a Covid Cam p
Lanquedoc, Paarl and area within the regional division of the
Western Cap e.
1 The charge of plan ned or premediated murder was the second charge. The first charge – child
abuse relying on the provisions of section 94 of the Criminal Procedure Act 51 of 1977 - was later
withdrawn by the State.
2 In terms of section 51(1) of the Act, and subject to section 51(3) and (6), a Regional Court or High
Court must impose life imprisonment where a person has been convicted of murder which falls into
one or more of the categories of murder identified in para graphs (a) to (f) in Part 1 of Schedule 2.
A murder which is planned or premediated is one of these, in terms of paragraph (a) of Part 1 of
the Schedule 2.
3 Section 51(2)(a) of the Act stipulates that notwithstanding any other law but subject to subsecti on (3)
and (6), a Regional Court or a High Court shall sentence a person who has been convicted of an
offence referred to in Part 2 of Schedule 2, in the case of a first offender, to imprisonment for a
period not less than 15 years. Murder, in circumstanc es other than those referred to in Part 1, is
one of these offences.
8. I admit that on the above -mentioned date, I resided in Paarl with my
two minor daughters.
9. On the 7th May my youngest daughter was crying; she had been ill
for a week and was crying consistently.
10. During this time I was alone with my 4-year-old daughter seeking
my attention as well, however my youngest would not stop crying.
11. I proceed [sic] to take a bottle cap and place it over her mouth an d
nose until she stopped crying.
12. I reasonably fores ore [sic] that by holding the bottle cap over her
mouth and nose that she would be unable to breathe and might die.
13. I admit the ident ity of the deceased as [L] K[…].
14. I admit I acted with dolus eventualis as a form of intent when I
caused the death of the d eceased .
15. I thus admit that I had foreseen that by holding the bottle cup over
the mouth and nose of the deceased she could die yet proceeded
with my actions and reconciled myself with the possi bility.
16. I admit that the deceased passed away due to her injuries and
admit that medico -legal report conducted by Esme Marianne
Erasmus on the 09th of May 2022 with reference WC/09 /0173/2022
is correct and pertains to the deceased. I have no objection if t his
report is accepted as evidence before court.
17. I admit that the body of the deceased sustained no further injuries
during transport from the scene of death until the post mortem
examination was conducted.
18. I admit that I [acted ] unlawfully and intentionally when I committed
the said offence.
19. I admit I knew that what I was doing was wrong and that I could be
punished for it by a court of law.
4 The State rejected the appellant’s guilty plea as it contested the form of intent
relied upon by the appellant in her plea statement, i.e., dolus eventualis . The
State contended and sought to prove during the course of the trial , that the
appellant had acted with dolus directus instead. In the circumstances , the court
below – being the Regional Court in Paarl - invoked the provisions of section
113 of the CPA , and altered the appellant’s plea of guilty to one of not guilty in
order that th e parties could call witnesses and lead evidence in this regard, as
well as in regard to whether or not premedi tation or planning were present .
5 The State proceeded to call five witnesses; about whose evidence more is said
below in this judgment . None of the evidence led by the State was disputed by
the appellant. The appellant elected not to testify and closed her case without
calling any witnesses.
6 The appellant was ultimately convicted on 1 February 20 24 of premeditated
murder and on 23 August 2024, she was sentenced to life imprisonment in
accordance with the m inimum sentence provisions found in section 51(1) of the
Act.
7 The appellant exercised her right to an automatic appeal to this Court. She
appeals against both conviction and sentence.
The State’s witnesses
8 The State called Mr L[...] P[...] B[...], the appellant’s uncle . He was the first
person that the appellant went to carrying baby L in the early hours of the
morning of 7 May 2022 at approximately 4am. Like the appellant, he too lived
in Covid Camp informal sett lement.
8.1 He testified that the appellant arrived crying at his house that morning
carrying L and saying that the baby was not breathing. He told her that
they should go to the eldest aunt in the family, who was Ms N[...] B[...].
They then walked to Ms B[...]’s house, with the appellant carrying the
baby.
8.2 After they entered Ms B[...]’s house, the appellant proceeded to place
the baby on a c ouch , and Ms B[...] indicated that the police must be
called in order for them to call the ambulance. When the ambulance
staff arrived, they looked at the baby and said that they were going to
take the baby , but they did not take the baby because they notice d a
ring around the baby’s face.
8.3 Mr B[...] testified that he also notice d the same ring shape on the baby’s
face, which was on top of the nose and around the baby’s mouth. He
asked the appellant for an explanation as to how the baby got that
mark. The appellant responded that she had gone to the toilet in the
early hours of that m orning and left the ba by with her four-year-old
daughter O, and when she came back, she notice d that the baby was
not breathing. According to Mr B[...], it seemed to him that the appellant
was suggesting that O was responsible for the mark on the baby’s face,
although she did not say so directly. At the time there w ere no toilets in
Covid Camp , and to relieve themselves residents either used a bucket
in their homes or they would go outside and relieve themselve s in the
bushes.
9 Ms N[...] B[...] was also called by the State. She testified that at the time of the
incident in 2022, the appellant lived in a shack owned by Ms B[...] in Covid
Camp, because the appellant did not have a place to stay.
9.1 Her evidenc e regarding what transpired on 7 May 2022 was that at
about 5.15am of that the morning, the appellant and Mr B[...] knocked
on the window of her house. After she opened the door, the appellant
proceeded to enter and place d the baby on a couch. The appellant said
that she does not know what to do with the baby because the baby was
making some noises that sounded like grunting.
9.2 Ms B[...] then went over to the baby to look at her. She did not like what
she saw; she placed her hand on the baby’s heart and realised , she
said, that she was gone. She called the police in order for them to call
the ambulance.
9.3 Ms B[...] asked the appe llant what had happened to the baby, to which
the appellant answered that she had gone outside to the toilet at about
3am and left the baby with O, and when she came back from the toilet
the baby was making t he grunting noises earlier referred to .
9.4 The am bulance thereafter arrived first but before they took the baby
away to the hospital, one of the staff members of the ambulance
services called Ms B[...] and asked if she noticed the mark on the
baby’s face. She then noticed the circular mark on the baby’s face –
around the nose and around the mouth - and was shocked. The
ambulance staff member then called the police, who arrived , looked
around the scene and took photographs. The police made some
enquiries regarding where the baby came from. The appellant
eventually took the police to her own shack, aft er which she returned to
Ms B[...]’s house and just sat there.
9.5 Ms B[...] then asked the appellant where the baby’s feeding bottle was,
because she knew what t he baby’s bottle looked like. When the bottle
was ultimately found back in the appellant’s shack and brought to Ms
B[...]’s house, Ms B[...] was particularly interest ed in the bottle cap or lid
that closes the bottle, and covers and protects its rubber teat . Ms B[...]
thought that the bottle cap and the mark on the baby’s face looked
similar. After she saw the bottle cap , she formed the view that the
appellant had smothered L. She then asked the appellant pointedly
what had happened to the baby . The appellant said she did not know,
and when Ms B[...] told the appellant that the si ze of the bottle cap and
the ring on the baby’s face were the same, the appellant looked down
and said nothing . According to Ms B[...], the appellant h ad never given
an explanation for what had occurred. According to Ms B[...], the
appe llant did not make any accusation to her that O had done
something t o the baby.
10 Ms Mikaylin Machau , a forensic officer employed at the Paarl Forensic
Pathology Service , was the State’s next witness . The key performance areas
of her job included scene investigation and assisting the pathologist with post -
mortems. Primari ly she was involved with unnatural deaths.
10.1 She testified that upon arriving at the scene in Covid Camp on 7 May
2022 , she found a baby wrapped in a blanket on a couch. She
proceeded to uncover the baby and saw a circular impression o n the
baby’s face, including foaming at the nose, together with parti al scratch
marks in the neck. She formed the view that this was an unnatural
death , due to the foaming at the nose which is very uncommon in
natural d eaths, as well as the circular impression around the nose and
mouth.
10.2 Ms Machau comp leted a form that included notes she complied - what
she referred to as a scene script – of her observations of the baby and
the physical scene around her, of which she took photographs including
photographs of the baby. This documentation that she compiled was
meant for the consumption of the pathologist that was to perform the
autopsy . The pathologist who per formed the autopsy was Dr Esme
Erasmus who, by 27 June 2024 when Ms Machau gave her evidence,
had passed away in the previous year.
10.3 Ms Mach au was also provided with the medical history of the baby by
the appellant, which she recorded in the scene script , to the effect that
the baby had been sick with chest problems and was hospitalised in
Stellenbosch Hospital in the period from 22 April until 5 May 202 2. The
baby was also on medication.
10.4 Ms Machau further recorded , based on her observations , that the baby
had sustained injuries, and that , based on what she was told by the
appellant, it was possibly the four-year-old sister that could have
abused the baby at home. In her scene script Ms Machau indicated the
word ‘strangulation ’ in parenthesis follo wed by a question, indicating
that she queried whether or not the baby may have been strangled, due
to the fact that she had observed scratch marks on the baby’s neck.
Under cross examination she explained that the scratch marks she had
observed were not the sort that babies inflict when they scratch
themselves. These scratch marks were a deeper impressio n which
made it look like someone had pressed or held the baby in the neck
area.
11 The State’s next witness was Ms Balisa Sidlayi, a member of the Western Cape
Emergency Medical Services , where she was an Emergency Care Practitioner .
11.1 She testified that she examined baby L on 7 May 2022 at approximatel y
17 minutes past 6 in the morning . When she checked for the baby’s
vital signs whilst she lay on the couch, she found none to indicate that
the baby was still alive.
11.2 When she checked the baby’s face, she saw that there was a round
mark around the nose and mouth of the baby. When she asked the
appellant what had happened, the appellant told her that she had left
the baby with her four-year-old daughter in the house as she went
outside to the toilet , and she did not provide any further explanation. It
was Ms Sidlayi who called the police .
12 The State’s final witness was Dr Estevao Bernado Alfonso, a forensic
pathologist at the Paarl Forensic Pathology Services. He was called to testify
on the contents of the autopsy r eport dated 9 May 2022, that had been
compiled by his colleague Dr Esme Erasmus, who m he confirmed had passed
away in the middle of 2023. Dr Alfonso’s evidence focused on the following
chief post -mortem findings made by Dr Erasmus on the body of L:
12.1 She confirmed that the subject body was that of a female infant.
12.2 Dr Erasmus found a circumferential abrasion impression over the nose,
mouth and cheeks with blanching of the face on the outer and inner
aspect of the abrasion. Dr Alfonso explained that this was a reference to
the impression on the baby’s face which was over the right cheek, over
the bridge of the nose and then coming down to the corner of the left
mout h and then across the chin. The blanching referred to was a
reference to loss of colour in that area , and paleness of the skin around
the circumferential mark. When asked by the Court how much pressure
on the baby’s face would cause this blanching o n the facial area, Dr
Alfonso explained that blanching would be a secondary effect of
pressure ; the circumferential or circular mar k would be from the direct
pressure from the object pressed to the skin. The blanching would
suggest that a moderate to significant amount of force had been applied
to said area . The fact that there was an abrasion and the fact that this
mark remained on the face for as long as it did, sugg ested a significant
amount of forc e, because had very light force been used the skin may
well have bounced back.
12.3 Dr Erasmus recorded that she found f roth in the nose. According to Dr
Alfonso, this was consistent with an asphyxia death , and the frothing
would have occur red whilst the baby was still alive, before death
occurred.
12.4 Dr Erasmus foun d petechail haemorrhages in the thymus, the lungs and
the heart. Dr Alfonso explained that this was a reference to a very small
bleed having been observed in the baby’s thymus . He further explained
that, like froth, this is one of the indicators of asphyxia, though not
exclusively asphyxia.
12.5 Congestion of the lungs was found and recorded by Dr Erasmus, which
Dr Alfonso stated was a reference to the finding o f there having been
more blood in the lungs that one would normally find. This was an
indication of the blood vessels in the lungs having become engorged or
filled with blood, which was , in essence, an effect of heart failure
because at the time of death and with asphyxia deaths , the heart fails.
12.6 With reference to the b rain swelling found and record ed by Dr Erasmus,
the doctor explained that the baby’s brain was found to have be en
slightly fuller than would be expected for an infant of that age. Though
this feature was common in different types of deaths, it was often seen
in asphyxia deaths.
12.7 As a result of Dr Erasmus’s observ ations , her conclusion was that the
cause of death was consistent with asphyxia due to smothering. In this
regard, Dr Alfonso explained that asphyxia was a reference to a lack of
oxygen in the body, and then smothering in this case was a reference to
an obstruction of the external a irways, i.e., the nose and the mouth.
According to the doctor, it is the exact circular shape on the baby’s face
which was highly suggestive or indicative of something having been
placed over the external airways in order to block them , thereby
smotherin g the baby.
13 Dr Alfonso furthermore testified regarding the contents of an affidavit deposed
to by Dr Erasmus dated 9 September 2022, made in terms of section 212(4) of
the C PA, in response to a request from the State for a further opinion from her
regarding some aspects of the case . The significance of a request for a further
opinion from Dr Erasmus addressing the aspects sets out below , and to which
Dr Alfonso testified, becomes apparent when regard is had to the fact when
initially asked by various persons, including some of the first responders, as to
what had happened to baby L , the appellant appeared to implicate her four
year old daughter O in some form of wrongdoing that led to the condition in
which she said she found the baby when she returned from the toilet in the
early hours of the morning of 7 May 2022.
13.1 In her affidavit, Dr Erasmus indicated that s he had researched the time
it may take for a baby to die by suffocation, whether accidental or
intention al suffocation. The consensus from the various articles stated
that it may take 3 to 5 minutes. Although Dr Erasmus had not referred
to the articles which she ha d relied upon for this conclusion, Dr
Alfonso’s evidence was nevertheless that he found an article that could
support Dr Erasmus’s timeframe. The article in question stated that from
the onset of suffocation after roughly 70 to 90 seconds infants lose
consciousness , and persistent closure of the airways beyond that
timeframe , into 2 min utes and beyond was mostly likely to result in
irreversible consequences , including death.
13.2 When examining the imprint on the face of the infant , Dr Erasmus noted
that the imprint showed that there had been no movement of the cup
held onto the baby’s face, which movement would have caused multiple
pressure imprints . The imprint was directly under the baby’s right eye,
which would have been very un comfortable and/or painful . One would
expect an infant of 5 months to at least try a nd move her face away
from the obstruction. Dr Alfons o in his evidence was not willing to
comment on Dr Erasmus’s opinion regarding the painfulness referred to
as, in his view, this was subjective. His testimony regarding the
remainder of Dr Erasmus’ opinion in this paragraph , however , was
corroborative thereof, in that he explained that her opinion indicated that
there was a single application of the cup on the face, and that the
pressure was maintained in a single motion. The cup was not pl aced,
pressed, then removed and pressed again or adjusted on the face ,
because then one would have observed more than one imprint.
13.3 In the opinion of Dr Erasmus, it is not possible for a 4-year-old child to
keep continuous pressure with a plastic cup over the face of an infant
for a period of 3 to 5 minutes without losing interest and moving it away.
A more likely scenario would be for the child to put it on the face,
remove it and put it on again. Dr Alfonso concurred with this opinion.
13.4 Linked to the abovementioned point, Dr Erasmus further opined that
when considering the imprint on the face of the infant, it show ed a
constant even pressure neatly covering the mouth and nose. It was
more likel y that this was done by a much older child (teenager) or an
adult who has better control and could keep it in place over a specific
area. According to Dr Erasmus, t his implie d intentional, prolonged /
sustained , forceful, anterior to posterior directed pressure of the object
over the external airways until the asphyxiation led to the death. Dr
Alfonso explained that this paragraph was better understood when one
had regard to the positioning of the cup on the baby ’s face ; the force
needed to hol d the cup in place whilst holding the child; and then the
interest and being able to maintain that for a significant amount of time.
13.5 However, when he was asked directly by the Court , with reference to
the last line of Dr Erasmus’s opinion, i.e., ‘this implies intention al,
prolonged /sustained, forceful…’ and the contents of the appellant’s
plea statement, what his opinion would be regarding the intention of the
appellant during commi ssion of the act , Dr Alfo nso was not willing to
comment on the appellant’s intention . He responded that it was not his
place to suggest what the appellant’s intent might have been .
14 The State thereafter closed its case and there were no wi tnesses called by and
on behalf of the appellant .
15 There were therefore two issues for determination by the Regional Court
relevant to the appellant’s conviction:
15.1 First, the type of intent that was attendant upon the offence, particul arly
whether it was dolus directus or dolus eventualis , the latter with
reference to the appellant’s unsuccessful section 112(2) plea.
15.2 Second, whether premeditation was present in the commission of the
offence, which if found to be so, would bestow the cou rt a quo with the
enhanced powers to impose life imprisonment on the accused, in terms
of the Act.
16 I address first the finding of the learned magistrate on conviction and the
reasons therefor.
The magistrate’s finding on conviction
17 In his judgment, the learned magistrate found that the appellant is guilty of
murder, based on dolus directus , i.e., ‘where the will is directed to compassing
the death of the deceased.’4
18 It is indeed sometimes said that a person is presumed to intend the reas onable
and probable consequences of his / her act , a conclusion that of necessity
requires the determination of that which is subjective in nature. I n S v Dlodlo ,5
Botha JA set out the following instructive guidelines regarding the factors to
consider in determining an accused’s state of mind for the purposes of intent:
The subjective state of mind of an accused person at the time of the
infliction of a fatal injury is not ordinarily capable of direct proof , and
can normally only be inferred from all the circumstances leading up to
and surrounding the infliction of that injury. Where, however, the
accused’s subjective state of mind at the relevant time is sought to be
proved by inference , the inference sought to be drawn must be
consistent with all the proved facts, and the proved facts should be
such that they exclude every other reasonable inference save the one
sought to be draw n. If they do not exclude every other reasonable
inference, then there mu st a reasonable doubt whether the inference
sought to be drawn is the correct one.6
4 S v Sigwahla 1967 (4) SA 566 (A), at 569G -H.
5 1966 (2) SA 401 (AD)
6 At 405G -H
19 To arrive at his finding the magistrate placed heavy reliance on the following:
19.1 The fact that in her responses to Mr B[...] and some of the first
responders, the appellan t appeared to implicate her four -year-old
daughter O in the commission of the offence.
19.2 The fact that in her statement made to Captain Vuyani Baroyi dated 10
May 2022, there too the appellant appeared to implicate O, stating that
when she returned from th e toilet in the early hours of the morning she
found baby L unstable on the bed, shaking as if she were epile ptic and
when she asked O, with whom she had left baby L, what she had done
to the baby, O responded that she had not done anything and that they
had only been playing. She furthermore denied having killed her baby
and stated that she h ad no reason to do so.
19.3 The opinion expressed by Dr Erasmus in her section 212(4) affidavit
wher ein she opined , with reference to the imprint on the baby’s face
which she said was indicative of constant pressure by an older child or
adult, that : ‘This implie s intentional, prolonged/sustained , forceful,
anterior to posterior directed pressure of the object over the external
airways until the asphyxiation lead to th e death.’
20 I have a different interpretation to this sentence in Dr Erasmus’ affidavit than
that of the learned magistrate , in particular the import therein of the word
‘intentional.’ The magistrate’s interpretation of this sentence was that it
supported the conclusion that the appellant had acted with direct intention
when she killed baby L. In my view, in particular when regard i s had to the
content of the entire paragraph in which th is sentence is to be found, it is
apparent that the word ‘intentional’ refers more to the manner of the application
of pressure over the child’s external airways than the appellant’s direct intention
to kill L. The statement rather describes the appellant’s physical actions during
the commission of the offence , and is accordingly neutral in that it supports
neither dolus directus nor dolus eventualis . Dr Alfonso was correct therefore to
refuse to comment when inv ited to do so by the court a quo, on the intent of the
appellant during the incident.
21 This difference of opinion between this Court and the learned magistrate ,
however, is of no moment and is no t necessarily an indication of a misdirection
on the part of t he magistrate when he concluded that the appellant acted with
dolus directus , as there can be no question that the deceased died in
consequence of an injury intentionally inflicted upon her by the appellant; and
further given the fact tha t the court a quo also relied on the following undisputed
facts and events during the trial , which this Court cannot gainsay : (a) the
appellant did not dispute the contents of the autopsy report; (b) the appellant
did not give any evidence in regard to her subjective state of mind other than
what she stated in her plea statement ; and (c) the fact that the appellant had
lied on five previous occasions, one of which was under oath to Captain Baroyi ,
implicating her four-year-old daughter in the death of baby L . For all these
reasons the magistrate denounced the appellant’s version , including the form of
intent relied upon, as a lie and found her to be unreliable. The learned
magistrate then found that she had intended to kill her baby, and rejected her
version that she had acted as she did merely to stop the baby from crying.
Given these factors, t his Court has no reason to interfere with the conclusion of
the learned magistrate that the appellant acted with dolus directus when she
killed baby L.
22 The question of the presence of premeditation or planning, however , is a
different one. It is on this score, inter alia , that this Court parts ways with the
learned magistrate’s finding s.
The appeal on conviction
23 The question of whether it was dolus directus or dolus eventualis with which the
appellant acted is in any event not pertinently before this Court in the present
appeal. The question that is at the heart of this appeal on conviction , and this
was made clear by counsel for the appellant during argument, is th e following:
regardless of whether or not the appellant acted with dolus directus or dolus
eventualis , was the learned magistrate correct in his finding that the murder
was premediated by the appellant ? The appellant contends that the magistrate
erred when he found that the murder was premediate d, which finding led him to
the imposition of the obligatory minimum sentence of life imprisonment in terms
of the Act .
24 Before turning to the legal principles applicable to premedi tation and planning, it
is perhaps apposite to frame the discussion with reference to how the
magistrate arrived at the finding of premeditation. He found as follows in the
last paragraph of his judgement on conviction :
‘And she is found guilty of murder, with direct intention . And, this is also
as indicated in the charge, should have been pre -meditated, at the time
of the incident .’7
25 In my view, the learned magistrate , in coming to this finding regarding the
presence of premeditation, erred in the following respects: (a) he conflated the
presence of the intention to kill with premeditation; and (b) he failed to have
regard to the significance of the factor of timing, before the murder rather than
during8 it, in the determination of whether or not premeditation had been
present when a murder was committed.
26 The fact th at direct intention and premeditation are not synonymous concepts
was stated with clarity in S v Jordaan9 where Binns -Ward J was contending
with, inter alia , an indictment that relied on section 51(1) of the Act with respect
to one of the c harges faced by the accused, and held that: ‘The import of the
term ‘planned or Premeditated’ is inherently imprecise…It is unlikely that the
legislature could have intended that the term should be construed as
synonymous with ‘direct intention’, and it is clear in any e vent that the crime can
7 My emphasis .
8 Emphasis mine
9 2018 (1) SACR 522
be committed with direct intention without the involvement of any prior process
of planning.’10
27 In the judgment of Bozalek J , writing for a Full Bench of this Division , in S v
Raath ,11 oft-cited and relied upon as a seminal judgment in re gard to the
proper approach to be adopted by courts when enquiring as whether or not the
statutorily undefined concepts of planning or premeditation are present in any
case of murder where section 51(1) of the Act is invoked , the learned judge
held as follows:
The Concise Oxford dictionary 10 ed, revised, gives the meaning of
premeditate as ‘to think out, whilst ‘to plan’ is given as meaning ‘to
decide on, arrange in advance , make preparations for an anticipated
event or time.’ Clearly the concept suggests a deliberate weighing -up
of the proposed criminal conduct as opposed to the commission of the
crime on the spur of the moment or in unexpected circumstances.
There is, how ever, a broad continuum between the two poles of a
murder committed in the heat of the moment and a murder which may
have been conceived and planned over months or even years before
its execution. In my view, only an examination of all the circumstances
surrounding any particular murder, including not least the accused’s
state of mind, will allow one to arrive at a conclusion as to whether a
particular murder is ‘planned or premeditated’ . In such an evaluation
the period of time between the accused forming the intent to commit
the murder and carrying out this intention is obviously of cardinal
importance but, equally, does not at some arbitrary point, provide a
ready -made answer to the question of whether murder was ‘planned or
premeditated.12
10 Para [123]
11 2009 (2) SACR 46
12 Para [16]
28 From the Raath decision , and many others thereafter (including , but not limited
to, Satchwell J’s Full Bench ju dgment in S v Taunyane13) which all adopted
and to some extent refined the ratio in Raath, it is patently clear that intention to
kill and the execution o f that intention are two different concepts that engage
two separate legal inquiries. In paragraph [1 3] of the judgment in S v
Kekana ,14 the Supreme Court of Appeal (SCA ) held that : “It is not necessary
that the appellant should have thought or planned his action a long period of
time in advance before carrying out his plan. Time is not the only consideration
because even a few minutes are enough to carry out a premeditated action.”
This decision furthe r makes it clear that planning or premeditation are to be
determined with reference to what occurred before the murder, rather than
during it , a principle confirmed in the majority judgement of the SCA in S v
Peloeole15 when it held in para graph [9] that though the perpetrator in his state
of mind may have both the intent and premeditation to commit the crime , the
intent has to be present during the commission of the crime, while
premeditation is, as a mat ter of logic, limited only to the state of mind before the
commission of the crime.16
29 In S v Montsho17, the SCA, per Petse JA said that the presence or absence of
planning or premeditation ‘can properly be determined on a case -by-case
basis .’18 This did not occur in this case, in the Paarl Regional Court whose
judgment is appealed against. More pertinently, the State led no evidence as
to the appellant’s state of mind prior to her taking the bottle c ap and pressing it
onto the baby’s face , in o rder to allow the court a quo to arrive at a conclusion
as to whether or not the murder was planned or premeditated. To be clear, the
onus rested on the State to establish , beyond a reasonable doubt, that the
murder was premeditat ed. It failed to discharg e this onus, and accordingly the
magistrate erred in his finding that the murder was premeditated.
13 2018 (1) SACR 163 (GJ) , in para [ 28].
14 [2014] ZASCA 158
15 2022 (2) SACR 349 (SCA)
16 The SCA in this paragraph of its judgment was seized with a contention by the appellant that the
High Court ha d conflated ‘ intent’ with ‘premeditation’, a contention which the majority did not
uphold .
17 [2015] ZASCA 187
18 Para [14]
30 What can be gleaned from the appellant’s plea statement is , at best, her motive
when she reached for the bottle cap and pressed it over baby L’s face; i.e., the
desire to stop baby L’s consistent crying in circumstances where her four -year-
old daughter was also demanding her attention. However, in Taunyane ,
Satchwell J noted th e following points , inter alia , that are germane to th e
present appeal, and are further demonstrative of the learned magistrate’s errors
on conviction:
30.1 ‘Motive….alone’ is insufficient to constitute premeditation.19
30.2 That firing four shots into the body of the deceased whilst he was lying
on the ground, as had occurred in that case, demonstrated dolus
directus and not premeditation .20
31 Relying on some of the guidelines identified in Raath , Satchwell J formulated
the fo llowing broad test at para [30]:
In deciding whether or not appellant killed the deceased in
circumstances where such killing was planned or premeditated, the test
is not whether or not there was an intention to kill. That had already
been dealt with in finding that the killing was an act of murder. The
question now is whether or not the appellant “weighed -up” his
proposed conduct either on a thought -out basis or an arranged -in-
advance basis ,21 or whether or not appellant “rationally consider[ed] the
timing or method ” of the killing or prepare d a “scheme or design ” in
advance for achieving his goal of killing the decease.22
32 The above excerpt from the Full Bench’s decision in Taunyane underscores
two vital principles, i.e., that intention to kill and premeditation are separate
concepts; and premeditation can only be determined upon an examination of all
19 Para [31(b)]
20 Para [30]
21 Citing Raath, para [16]
22 Citing S v PM 2014 (2) SACR 481 (GP) , at para [27]
the circumstances surrounding any particular murder, including (but not only)
the appellant’s state of mind before the murder. As stated before, the
magistrate misdirected himself in two separate instances regarding th ese
principles:
32.1 By conflat ing direct intention to kill with premeditation.
32.2 By finding that the murder was premeditated in the absence of any
evidence regarding, inter alia , the appellant’s state of mind prior to the
murder , which could have allowed him to arrive at that conclusion.
33 That there was no evidence led at the trial upon which a finding could be made
of premeditation is demonstrated by the nature of the evidence of all witnesses
that were called by the State in support of its case – the evidence of all five
State witnesses related to events that occurred after the murder . Dr Alfonso
was able to shed light on what was happening during the murder , i.e., how the
murder occurred , but this had no bearing on whether or not premeditation or
planning were present before the murder.
34 During argument of the appeal on 31 January 2025, counsel for the State
conceded that there was no evidence upon which a finding of premeditation
could have been made by the court a quo. This concession well -made, gi ven
the Full Bench decision in Taunyane , to the effect that facts activating the
minimum sentence provisions must be proved by the State beyond reasonable
doubt ; and this requirement must be addressed by the trial court at the
conviction stage. 23 This simply did not occur in this case in the court below ,
and accordingly it was accepted by counsel for both parties that the
jurisdictional fact triggering the impo sition of life imprisonment, i.e.,
premeditation, was absent.
35 It was accepted by both parties, however, and this Court that the offence
committed was of a ser ious enough nature to attract a custodial sentence. The
23 Supra, at [13]
Court then requested the parties to make further written submissions to it
regarding the Regional Court’s sentencing jurisdiction in the circumstances of
this case , given that the minimu m sentence of life imprisonment was no t
applicable ; and further address in those written submissions what the
appropriate approach should be to sentencing in circumstances such as the
present which involved infanticide24 and/or filicide25.
The appeal on sentence
36 In the supplementary submission s invited by this Court , it was submitted on
behalf of the appellant that the ordinary jurisdiction of the Regional Court is
applic able in this matter, and not the provisions of section 51(2) of the Act
mandating the court to impose a minimum sentence of 15 years in
circumstances where , as in the present case, murder by a first offender had
been found and there was no premeditation. The basis for this contention is
the argument that the State did not indicate at any stage that it would seek the
minimum sent ence of 15 years in the event that premeditation was not prov ed.
37 Such a contention would hold merit i n the context of an accompanying
submission or argument (which was not advanced on behalf of the appellant)
that the appellant’s fair trial rights, which include the procedures applied during
the sentencing phase as set out in section 35(3) (a) to (o) of the Constitution,
have been infringed as a result of the State’s failure to inform the appellant of
the charge she faced with sufficient detail to enable her to respond to it.
38 In S v MT26 it was held that the question whether this right was infringed by t he
failure to include the relevant section on minimum section legislation in the
charge -sheet was a constitutional matter and therefore an issue within the
jurisdiction of the Constitutional Court.27 However, Dlodlo AJ – writing for a
unanimous Constitutio nal Court – confirmed the importance of making a careful
24 Oxford Dictionary definition: “ 1. The crime of killing a child within a year of its birth; 2. When a
person kills an infant, especially their own child.”
25 Oxford Dictionary definition: The killing of one’s son or daughter.
26 2018 (2) SACR 592 (CC)
27 Para [35]
assessment of the factual context in determining the presence or absence of
unfairness in the trial as follows:
It is indeed desirable that the charge -sheet refer to the relevant
penal provision of t he Minimum Sentences Act . This should not,
however, be understood as an absolute rule. Each case has to
be judged on its particular facts. Where there is no me ntion of
the applicabilit y of the Minimum Sentences Act in the charge -
sheet or in the record of the proceedings, a diligent examination
of the circumstances of the case must be undertaken in order to
determine whether that omission amounts to unfairness in trial .
This is so because, even though there may no such mention,
examination of the individu al circumstances of a matter may
very well reveal sufficient indications that the accused’s 35(3)
right to a fair trial was not in fact infringed .28
39 Upon an assessment of the individual circumstances of this case, this Court
cannot agree with the submission made on behalf of the appellant in this
regard. This is because, w hilst it is apparent from the indictment that the State
was heavily reliant on a charge of premeditated murder, the indictment
nevertheless further charged that the appellant is guilty of the crime of murder,
read with the provisions of , inter alia , section 51(2) of the Act. In the view of
this Court t he appellant was therefore advise d adequately in the charge -sheet
of the intention to apply section 51(2) (a)(i) of the Act . To hold otherwise would
amount to the elevation of form over substance which Koen J (as he then was),
writing for the majority, warned against in paragraphs [73] to [76] of S v
Mabaso .29
40 The minimum sentence stipulated in s ection 51(2) (a)(i) is clearly then
applicable to this case. The section provides that notwithstanding any other
law but subject to subsections (3) and (6), a Regional Court o r a High Court
shall sentence a person who has been convicted of an offence referred to in
28 Para [40]
29 2014 (1) SACR 299 (KZP)
Part II of Schedule 2, to imprisonment for a period of 15 years in the case of a
first offender .
41 The appellant is a first offender. She ple aded guilty to murder in circumstances
where this court finds, and it is now common cause, that there was no
premeditation and accordingly the circum stance are other than those referred in
Part I, as required by Part II of Schedule 2.
42 Section 51(3) provides , in relevant part, that if any court referred to in
subsect ion (2) is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than the sentence prescribed
in that subsection , it shall enter those circumstances on the record of the
proceedings and must thereupon impose such lesser sentence .30
43 The State, in its supplementary submissions, and having conceded that the
minimum sentence of life imprisonment was not applicable, conten ded that the
minimum sentence of 15 years if applicable to this case as the appellant was
advised of the State’s intention to reliance on this minimum sentence.
44 I turn now to address the various aspects in which the learned magistrate
misdirected himself on sentence.
Failure to permit or call for a ny pre -sentence report
45 In S v EN,31 the SCA, per Shongwe JA, held as follows :
Trial courts take months, in some instances years, dealing with
evidence and principles of law to establish the guilt or innocence of an
accused person. However, my observation is that when it comes to
sentencing stage, that process usually happens very qu ickly and often
immediately after conviction. Sentencing is the most difficult stage of a
criminal trial, in my view. Courts should take care to elicit the necessary
30 The proviso i n section 51(3) is of no application in these proceedings.
31 2014 (1) SACR 198 (SCA)
information to put them in a position to exercise their sentencing
discretion properly…Thi s is especially so in cases where it is clear that
life imprisonment is being considered to be an appropriate sentence.
Life imprisonment is the ultimate and most severe sentence that our
courts may impose; therefore a sentencing court should be seen to
have sufficient information before it to justify that sentence.32
46 In S v Mokgara ,33 De Vos J said:
A presiding officer often has to deal with a situation where an accused,
whether he is defended or appearing on his own, decided not to give
evidence under o ath in mitigation of sentence. In cases where a legal
representative is present, a presiding officer can only rely on what
defence counsel places before him. The presiding officer is not entitled
to question the accused directly…That brings me to the issu e of what
should be done by a presiding officer if and when an accused’s legal
representative fails to prove substantial and compelling circumstances,
whether it is due to the accused’s refusal to give proper instructions as it
may jeopardise the chance s on appeal on the merits, and/or lack of
taking proper instructions, and/or lack of experience, or for various
reasons…The law is clear and cannot be faulted. In such instances the
legal duty remains on the presiding officer to ensure that all available
facts are properly enquired into before a decision is made that the
ultimate prescribed sentence of life imprisonment can be imposed.
47 And finally in S v Selli ,34 Boseilo JA pointed out that section 51(3) of the Act
calls for a ‘purposeful enquiry by a sente ncing court’ into the presence or
absence of substantial and compelling circumstances:
Self-evidently, this is intended to av oid visiting an accused with the
severest sentence except in circumstances where there are no weighty
32 Para [14]
33 2015 (1) SACR 634 (GP) at [19] – [20]
34 [2015] ZASCA 173 (SCA case no 220/2015, 26 November 2015)
or cogent facts which call f or a less severe sentence. A failure by a
sentencing officer to be diligent, conscientious and punctilious in his or
her search for substantial and compelling circumstances might result in
a sentence which is dist urbingly inappropriate and amounts to an
injustice. Undoubt edly, such a failure amounts to a serious
misdirection. This is what happened in this case. Justice and fairness
require that this matter be referred back to the court below so that an
appropriate enquiry into the existence of substantia l and compelling
circumstances can be launched.35
48 In this particular case, the magistrate handed down his judgment on conviction,
whereafter the State informed the court that the appellant had no previous
convictions. The following , admittedly sketchy -in-places , interaction then
ensued between the legal representative for the appellant , Ms Diedrick s, and
the learned magistrate:
Ms Diedricks : [Indistinct] respond to the probation officer.
Court : That is denied.
Ms Diedricks : Officer is recalle d, Your Worship. That is the mother of
minor children….[indistinct / intervenes]
Court : No, that is denied, that is denied, it is not applicable, this
charges (sic).
Ms Diedricks : As it pleases the Court, can the matter then stand down
for me to consult, Your Worship, for sentence.
49 This interaction suggests that the issue of a probation officer was raised on
behalf of the appellant before the court a quo proceeded to sentencing, but that
the learned magistrate denied the request on the basis that such was not
applicable due to the nature of the charges . In this regard, the magistrate
misdirected himself by failing to allow for the evidence of a probation officer .
35 Para [13]
50 Even if this C ourt is wrong in its interpretation of the above interaction (due to
the sketchy record) , the circumstances of this case cried out for the magistrate
to have called , mero motu , for a probation officer’s or other relevant pre -
sentence report to properly and fully inform him for the purposes of sentencing
the appellant .
51 In S v Samuels ,36 Ponnan JA cited with approval the following from S v
Siebert37:
Sentencing is a judicial function sui generis. It should not be governed
by consideration s based on notions akin to onus of proof. In this field of
law, public interest requires the court to play a more active, inquisitorial
role. The accused should not be sentenced until all the facts and
circumstances necessary for the responsible exercise o f such
discretion have be en placed before the court.
52 In the present case, the learned magistrate’s refusal to permit, or his failure to
call for the relevant pre -sentence reports amounted a serious misdirection in
that he:
52.1 Failed in his duty to ensure that all available facts were properly
enquired into before he could make a decision that the ultimate
prescribed minimum sentence was called for.
52.2 Failed to act with the required diligence in his search for substantial and
compelling circumstances to ensure that he imposed an ap propriate,
fair and just sentence for the appellant.
52.3 Failed to have regard to the fact that he was sentencing the mother of a
minor child, O of whom the appellant was the primary care giver. In this
regard, the learned was bound by what the SCA held in paragraph [24]
36 2011 (1) SACR 9 (SCA)
37 1988 (1) SACR 554 (SCA) 558j – 559a
of its judgment in S v Pillay ,38 that in order for a court to arrive at an
informed decision conc erning an appropriate sentence for an accused
who is a mother of minor children, the information set out in the dicta
from S v M39 and MS v S40 was required . A court having all that
information before it might still decide, as was done in Ms v S41 and S v
Howells ,42 that incarceration is called for. Even if it does so, it might,
with the information at hand, be able to fashion an order that will ensure
the c ontinued well -being of the children, albeit in trying circumstances.
On the other hand, a sentencing court might, having all that information
at hand, decide against inc arceration. The point, though – the SCA
continued - is that the evidence upon which a proper decision is to be
made has to be obtained and all the actors must play their part ,
including the appellant’s legal representatives and the State , using such
State resources as may be available to it. Citing S v Siebert ,43 the SCA
further held that a s far as sentencing is concerned , a judicial officer is
not supposed to be passive.
53 A probation officer’s or other relevant pre -sentence report would no doubt have
assisted the magistrate in providing a better insight into the appellant ’s social
and personal circumstances, as well her psychological state , for the purposes
of sentenc ing. Ultimately such a report was called for, for the purposes of
assisting the sentencing court to make a fully informed decision about what
sentence was appropriate and just .
Failure to consider the best interests of the child when sentencing a primary care
giver
54 Section 2 8(2) of the Constitution requires that a child’s best interests have
paramount importance in every matter concerning the child. It has been held by
the SCA that a reading of section 28(1) together with section 28(2) of the
38 2011 (2) SACR 409 , at para [24]
39 S v M (centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC )
40 MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88 (CC)
41 Supra
42 1999 (1) SACR 675 (C)
43 Supra , at 558g -559a
Constitution requires that when a custo dial sentence of a primary caregiver is
an issue, the court has four responsibilities: to establish whether there would be
an impact on the child; to consider independently the child’s be st interests; to
attach appropriate weight to those interests; and to ensure that the child would
be taken care of if the primary care gi ver were sent to prison.44 The learned
magistrate in this matter failed to undertake this enquiry in relation to the minor
child O, of whom the appellant was the primary care giver. This constitutes a
serious misdirection on his part.
55 In S v M (Centre fo r Child Law as Amicus Curiae) ,45one of the issues
addressed by the Constitutional Court was what the duties are of the
sentencing court in the light of section 28(2) of the Constitution and any
relevant statutory provisions when the person being sentenced is the primary
caregiver.
56 Sachs J, writing for the majority , noted that ‘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 to other
rights , which might require that their ambit be limi ted.’46 Sachs J was also
careful to point out that the issue was not whether parents should be allowed to
rely on the best -interests principle to avoid the otherwise just consequences of
their own criminal behavio ur.47 At paragraph [35] he observed that:
Thus, it is not the sentencing of the primary caregiver in and of itself
that threatens to violate the interests of the children. It is the imposition
of the sentence without paying appropriate attention to the need to
have special regard for the children ’s interests that threatens to do so.
The purpose of emphasising the duty of the sentencing court to
acknowledge the interests of the childre n, then, is not to permit errant
parents unreasonably to avoid appropriate punishment . Rather, it is to
44 S v De Villi ers 2016 (1) SACR 148 , at para [31]
45 2007 (2) SACR 539 (CC)
46 Para [ 27]
47 Para [ 34]
protect the innocent children as much as is reasonably possible in the
circumstances from avoidable harm.’
57 In this case, it was not disputed that the appellant gave birth to three children.
Her eldest, an 11-year-old boy lived with his father and her two youngest
daughters – four-year-old O and baby L – lived with the appellant, and she was
their primary caregiver. After the incident she remained O’s primary caregiver
until her arrest on 31 July 2022. A s at the date of sentencing, O was six ye ars.
58 As stated above, t he learned magistrate misdirected himself when, having
established from the evidence that the appellant was the primary caregiver of O
and in circumstances where a custodial sentence was viewed as required by
the circumstances, he d id not apply his mind at all during sentence, to the
question whether it was essential that steps be taken to ensure that O would be
adequately cared for if the primary caregiver was i mprison ed. The fact that
there was a minor child who would be impacted by a custodial sentence further
emphasised the necessity and importance of the relevant pre -sentence reports
serving before the magistrate to guide him on an appropriate sentence. A report
from t he family advocate may also have been used.48
Failure to attach significant or any weight to the appellant’s personal circumstances
59 The now trite Zinn49 triad requires a court, in sentencing to have regard to and
seek to balance the crime , the offender and the interests of society.
60 The crime of infanticide or filicide admitted by the appellant is abhorrent , and
the needs of society demand that she be punished and that such punishment
be sufficient to deter others , and thereby ultimately protect potential victims . It is
also important that p unishment should fit the criminal as well as the crime, be
fair to society and be blended with a measure of mercy according to the
circumstances.50
48 See s v De Villiers 2016 (1) SACR 148 (SCA) at [11]
49 S v Zinn 1969 (2) SA 537 (A) 540G -H
50 S v Rabie 1975 (4) SA 855 at 862G
61 There is an aspect of the triad however to which the learned magistrate paid
insufficient or no regard during sentence. And that is the offender and, coupled
with that , the nature of the crime she had committed. It is fair to say that no
parent wakes up on any given day and proceeds to murder their vulnerable
defenceless 6 -month -old baby. The circumstances of this case therefore called
for the magistrate to seek to acquire a deeper understanding of the factors that
drive a parent to this unfortunate path, in general, but also the circumstances
that led to this particular accused to do so.
62 The appellant gave evidence in mitigation of sentence of how she lost her
mother and her grandmother in the same year – 2007 – when she was ten
years old whilst living in the village of Willowvale in the Eastern , after which she
dropped out of school in Grade 5. Thereafter, her life was one of survival and
from one day to the next rather than actually thriving. She testified as to how
she moved with an aunt from relative to relative, first in the Eastern Cape, and
thereafter in Cape Town . The relatives who w ere willing to help them by
housing them would ultimately ask them to leave, citing the financial burden of
carrying them. At some point, after her arrival in Cape Town, she was to be
married off to an older man. She saved herself fro m this eventuality by running
away. She had her f irst child at 15 years; at 20 years she had O and at 2 4
years old she had ba by L.
63 Unfortunately , in our South African context there are far too many people who
live and grow up in the same or similar circumstances as the appellant than
should be the case anywhere, let alone a society such as ours which
subscribes to the constitutional values of human dignity and the advancement
of human rights. Some manage to triumph over these crushing social
circumstances, and other s remain in them. It can safely be said, however, that
the majority of those who, like the appellant, remain in th ose circumstances, d o
not murder their babies, and so in that sense th e circumstances in which the
appellant grew up are, unfortunately themselves not unique in our society and
accordingly cannot, on their own and without more, serve as a rationale for why
one parent in th ese circumstances murders their baby in the deep of n ight,
whilst another parent in the same circumstances does not. It is against this
background that the importance of judging its case by its own peculiar
circum stances becomes stark , for it is in those peculiar facts where the
uniqueness lies.
64 To be clear, murder of any sort is horrendous ; and when the murderer is a
parent, and the victim is their child it acquires the additional feature of being
unnatural . It would seem , however, f rom the research which both counsel
assisted this Court with in relation to the sentencing approach adopted by our
courts in infanticide cases, that t here is a particular stigma and special
opprobrium in all strata of society including, sadly, sentencing courts, that is
reserved for females who murder their offspring.
65 In her work entitled “Judging Gender: The Sentencing of South African Mothers
who Murder their Children”,51 Associate Professor Amanda Spies made this
observation:
Women who murder their children are not only judged for their
infraction but also for their compliance/deviation from the stereotypical
role of motherhood. Motherhood is interpreted through a specific set of
socio-cultural norms, with mothers needing to be loving, warm, selfless,
and protective at all times. The expectations of motherhood
encompass not just being a mother but also being a “good mother”
placing the wellbeing of children before “everything, anythi ng and
anyone else”. The “motherhood mandate” is further rooted in class,
race, and gender ideals with a “good” mother seen as white, middle -
class, married, heterosexual, and able -bodied with the exclusive
responsibility of mothering their biological child ren….filicidal women
who transgress this mandate without any apparent justification, such as
mental instability, are viewed as doubly deviant not only in breaking the
law but, also transgressing “their own female nature and their primary
51 Associate Professor Amanda Spies , Department of Public Law, Faculty of Law, Nelson Mandela
University, Gqeberha. Published in Criminal Law Forum (2024); https ://doi.org/10.1007/s10609 -
024-09485 -z
social identity a s a mother” – the bad mother. The narrative that
emerges in criminal trials is that “bad” filicidal women are demoted from
their status of mother and effectively woman, to a monster lacking in
humanity .52
66 The learned magistrate appears to have shared the s ame sentiments as those
in the underlined portion of the excerpt cited above, which is evident by the
following statement made by him in his sentencing judgement: “In terms of
natural law, the accused was the primary caregiver of this baby, as the mother,
she was supposed to give her motherly love and care, not to turn around and
be a monster…a monster responsible for her horrendous death.” It would
appear then from his judgment that it is this deep moral revulsion for the
appellant and her conduct , and the need to punish her above all else ,53 that
caused the learned magistrate to commit the following errors on sentence ,
some of which have already been referred to above :
66.1 Not to call for pre -sentence reports, as he was obliged to do in the
circumstan ces, in order to enable him to gain a comprehensive image of
the social, personal and psychological background of the appellant for
the purposes of imposing an appropriate sentence .54
66.2 To turn a blind eye to the best interests of the minor child as already
stated above .
66.3 To take no cognisance of the fact that there was no evidence led to the
effect that the appellant posed a danger to society deserving of being
incarcerated for the remainder of her young life.
66.4 To be dismissive of the fact that as at 23 August 2024 when the
appellant was sentenced, the appellant had been in detention for more
than two years, which error on the part of the learned magistrate was
52 Para 2.2, page 230. My emphasis.
53 My emphasis .
54 See Thulare AJ in S v Bo; S v KP (WCC case nos 181000 and 181002, 2 November 2018), at para
[17].
rendered more serious by the fact that the appellant was then the
primary caregiver of a min or child. In S v Mqabhi ,55 Spilg J, in
addressing the impact of pre -sentence detention on the assessment of
substantial and compelling circumstances , referred to four SCA
decisions56 on the basis of which he concluded as follows:57
66.4.1 Pre-sentence detention is a factor to be taken into account when
considering the presence or absence of substantial and
compelling circumstances for the purposes of section 5 1.
66.4.2 Such period of detention is not to be isolated as a substantial
and compelling circumstance . It must be weighed as a
mitigating factor with all the other mitigating and aggravating
factors, in determining whether the effective minimum period of
imprisonment to be imposed is justified in the s ense of it being
proportionate to the crime committed . If it is not, then the want
of proportionality constitutes the substantial and compelling
circumstances required under section 51(3) of the Act.
66.4.3 The reason for the prolonged period of detention is a f actor.
66.4.4 There is mechanical formula or rule of thumb to determine the
period by which sentence is to be reduced . The specific
circumstances of the offender are to be assessed in each case
when determining the extent to which the proposed sentence
shall be r educed.
66.4.5 Where only one serious offence is committed, and assuming the
offender has not been responsible for unduly delaying the trial ,
then a court may more readily reduce the sentence by the actual
period spent in detention.
55 2015 (1) SACR 508 (GJ)
56 S v Dlamini 2012 (2) SACR 1 (SCA); S v Vilakazi 2009 (1) SACR 552 (SCA); s v Kruger 2012 (1)
SACR 369 (SCA) and S v Radebe & an other 2013 (2) SACR 165 (SCA)
57 In para [38]
66.5 Not to attach any weight to the evidence given by the appellant
regarding her personal circumstances immediately before she
committed the offence , including the lack of any meaningful supportive
net in her life , about which evidence more is said below .
67 The appellant testified of her lack of support in her life in general, especially
immediately before the murder of baby L. Baby L had been hospitalised shortly
before her death at Stellenbosch Hospital as a result of malnutrition, which itself
speaks of a grave situation in which there was no one that could be relied upon
even to assist with feeding her children. Following baby L’s hospitalisation, the
appellant was a waiting assistance from the local clinic w ith food and supplies
for the baby . The baby’s fa ther had recently given her R300 for the baby; but he
generally only gave her money whenever he felt like it. She had secured a job
in Hout Bay, working two days a week in return for between R500 and R600 in
wages.
68 Instead , in his assessment of this evidence, the magistrate found that the
appellant did in fact have support in the form of Mr L[...] B[...] and Ms N[...] B[...]
who had testified for the State. This was wrong. There was no evidence led as
to the supportive role these individuals played in the appellant’s life before the
incident. Their evidence related to their appearance on the scene after t he
incident. Such evidence as there was, in relation to the appellant’s own living
conditions suggested that there was a n appalling lack of any meaningful
support in her life , and that the appellant sorely needed it .
69 In his balancing of the Zinn triad imperatives, the learned magistrate
misdirected himself by disregarding the appellant’s interests and those of her
minor child. He mischaracteris ed the appellant’s evidence, and did not attach
any weight to the evidence of her personal circu mstances.
Conclusion
70 In the circumstances, I consider that the crime of murder committed by the
appellant is such that a custodial sentence is required. Society must be assured
that those who take the lives th e young and vulnerable whom they are meant to
protect are not allowed to walk free. At the same time, taking into account the
interests of the appellant’s very young child, the period of imprisonment should
not be unduly lengthy and should furthermore take into account the period for
which s he has been incarcerated from 1 August 2022 to date.
71 Accordingly:
71.1 The appeal is upheld.
71.2 The order of the court a quo is set aside and replaced with the following:
71.2.1 The appeal is upheld.
71.2.2 The sentence imposed by the trial court is set aside and the
following sentence is imposed:
The appellant is sentenced to 12 years ’ imprisonment .
71.3 The sentence shall take effect from 1 August 2022.
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N MAYOSI
Acting Judge of the High Court
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HENNEY J
Judge of the High Court