IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA)

CASE NO: CC 01 / 2025

In the matter between

THE STATE

and

SIMAMELE TIMOTI

Delivered on 17 March 2025

JUDGMENT ON SENTENCE
_______________________________________________________ _______________

NGOQO AJ

[1] Sentencing is a process that not only requires of a judicial officer to show maturity
and good temperament but also a process that requires of him to show fairness and
firmness at the same time without deviating from the traditional guiding principles of

sentencing. These principles, which are now known as the triad, were enunciated in the
case of S v Zinn1 and they are;

a) The accused’s personal circumstances,
b) The seriousness of the offence and
c) The interests of society.

[2] Taking this further, in Samu els v The State2 Ponan JA had the following to say;

“An enlightened and just penal policy requires consideration of a broad range of
sentencing options from which an appropriate option can be selected that best
fits the unique circumstances of the court……. To that should be added, it also
needs to be victim -centered.” (See also the case of S v Blaauw3)

[3] Of course , any sentence wil l profoundly infringe upon the accused’s basic human
rights, inter alia , his constitutionally protected right to freedom of movement which is
provided for in terms of section 12 (1) of Chapter 2 of the Bill of Rights in our
Constitution.4 It thus goes wit hout saying that this infringement of his constitutionally
guaranteed right must be justified.

[4] My approach in considering an appropriate sentence in this case will in no way be
different from the guiding principles set out in the cases mentioned above . If anything, it
will be similar. Mr. Timoti chose not to testify under oath in mitigation of sentence. His
legal representative , Mr. Hanise made the following submissions on his behalf:

[5] The accused is a first offender. He was born on the 7th of February 1991. He is now
34 years old. He was 33 years old at the time of the commission of the offence. He is
single. He has no children. He was arrested on the 5th of June 2024 and has been in

1 1969 (2) SA 537 (A) .
2 2010 ZASCA 113 (22 September 2010) .
3 2000 (2) SACR 255 (CPD).
4 Act 108 of 1996 .
custody since then. Before the accused was arrested, the accused was a self -employed
builder in the Construction Industry since 2015.

[6] From this business the accused made on average, about R5000 per month which he
used to look after himself and his homestead. He is the only child at home. He does not
know his father. His mother before passing away during the year 2003 was not married.
The accused was raised from a very young age by his grandmother who passed away
around 2014. He dropped out at school in standard seven due to financial difficulties.

[7] Addressing the court further, Mr. Hanise conceded that the offence for which the
accused has been convicted is very serious and that there is a national outcry on the
femicide cases and the society seeks refuge from the courts and experts the courts to
impose appropriate sentences. While submitting that each case should be dealt with
according to its merits, Mr. Hanise conceded that the sentence to be meted out should
serve as a deterrent not only to the offender but the would -be offenders as well.

[8] M r. Hanise asked this court to take the following factors into consideration, which he
believed are sufficient enough for this court to deviate from the prescribed minimum
sentence:

a) The upbringing of the offender, literally with no parent except his
grand mother who passed on in 201 4;
b) The complete absence of a father figure in his upbringing, at home;
c) His positive contribution to the society as a builder in his community;
d) His first offender status and
e) The role played by alcohol in the commission of this of fence.

Mr. Hanise was, however, of the opinion that a lengthy term of imprisonment remains an
appropriate sentence. He further conceded that the accused should be deemed unfit to
possess a firearm.

[9] Mr. Methuso for the state submitted that the offence is serious. A life has been lost.
The deceased’s sin was her pregnancy and for that she was killed by the accused who
had impregnated her. The state further submitted that the accused carefully planned
and executed the murder of the deceased whom he first isolated from her friends and to
whom he pretended like all is well between them.

[10] According to the state, the deceased has left behind two children who are 13 and 7
years old respectively. She was twenty -four weeks pregnant during the time of her
death in the hands of the man who claimed to love her. Not even the unborn child
survived the wrath of the merciless killer who is the accused, his own father, that
evening.

[11] Mr. Methuso further referred this court to the case of S v Scott Crossley5 where
the court said the following:

“Plainly any sentence imposed must have deterrent and retributive force. But of
course, one must not sacrifice an accused person on the altar of deterrence.
Whilst deterrence and retribution are legitimate elements of pu nishment, they are
not the only ones, or for that matter, even the overriding ones. Against that must
be weighed the appellant’s prospects of reformation and rehabilitation……. It is
true that it is in the interest of justice that crime should be punished. However,
punishment that is excessive serves neither the interests of justice nor those of
society.” [Sic]

[12] Mr. Methuso further submitted that the deceased was in a love relationship with the
convicted accused. He stated that murders of women by their partners have become a
daily occurrence in our country and they need to be curbed. He further referred this
court to the unreported judgment of S v Mudau6 where Mathopo AJA as he then was
said the following;

5 2008 (11) SACR 223 (SCA) at 241 paragraph 35 .
6 2014 JDR 0641 (SCA); (547/13) [2014] ZASCA 43 (31 March 2014) at paragraph 6 .

“Domestic violence has become a scourge in our society and should not be
treated lightly, but should be deplored and also severely punished. Hardly a day
passes by without a report in the media of a woman or child being beaten, raped
or even killed in this country. Many women and children live in constant fear. This
is in some respect a negation of many of their fundamental rights such as
equality, human dignity and bodily integrity.”

[13] The court in the case of S v Gregory7 made the following observation;

“The scourge of Femicide and Gender -Based violence is reaching astronomical
heights and is referred to as a pandemic in our country. It must be addressed
and curbed. Many women and children in th is country are almost daily faced with
such violent crimes where they fall prey and suffer in silence.”

[14] The general public views serious violent crimes with revulsion. This is so because
violence seems to be the order of the day in our country and is eating away on the
moral fiber of our society. Murder and Rape have become national sports in our country
where children and women are brutally raped and murdered by people who, in most
cases, are known to them.

[15] Society has a legitimate expectation that the apprehensible criminal activities as
displayed by the accused before court should not be left undetected and unpunished.
Society demands and commands that the courts send out a clear and strong message
that gruesome criminality has no place in our society and that it is viewed with revulsion.

[16] In the case of S v Qamata8 the court said the following;


7 2023 ZAGPJHC 358 (21 April 2023) .
8 1997 (1) SACR 497 (E) at 483A .
“An appropriate sentence actually means a sentence in accordance with the
moral blameworthiness of every individual offender. Theref ore, any sentence that
the court imposes must reflect the seriousness of the offence and provide just
punishment for the offender while taking into consideration the personal
circumstances of the offender, the feelings and requirements of the community,
the protection of society against individuals like the accused, the impact on the
victim and the maintenance of peace and tranquility.”

[17] In the case of S v Mhlakaza9, the court through Harms JA said the following,

“the objective of sentencing is not t o satisfy public opinion but to serve the public
interest…. Given the current levels of violence and serious crimes in this country,
it seems proper that in sentencing especially for such crimes, the emphasis
should be on retribution and deterrence.”

[18] The level of violence meted out on the deceased by the accused was beyond
barbaric. It was inhumane and repulsive. Like a hyena pouncing on a hopeless
antelope, so did the accused torture, possibly raped and murdered the hopeless and
helpless deceased who se only hope of safety was the accused himself , the father of her
unborn child.

[19] The accused through his legal representative asked the court to be lenient and
show him some measure of mercy. Dealing with the concept of mercy in the case of S v
Rabie10 Holmes JA said the following;

“[…] with particular reference to the concept of mercy -
(i) It is a balanced and humane state of thought,
(ii) It tempers one’s approach to the factors to be considered in arriving at an
appropriate sentence,

9 1997 (1) SACR 515 SCA .
10 1975 (4) SA 855 (AD) .
(iii) It has nothing in common with maudlin sympathy for the accused,
(iv) It recognizes that fair punishment may sometimes have to be robust
(v) It eschews insensitive censoriousness in sentencing a fellow mortal, a nd
so avoids severity in anger, and
The measure of the scope of mercy depends upon the circumstances of each
case.”

[20] Section 12 (c) of the Constitution11 provides that everyone has a right to freedom
and security of the person, which includes the right to be free from all forms of violence
from either public or private sources. This right must be safely guarded by the courts. As
the courts we are , therefor e, enjoined to see to it that violations such as these are
curbed and never thrive under our watch.

[21] Our courts are no longer at liberty to just impose any sentence they like nor are
they at liberty to just deviate from the sentences prescribed by the legislature. In the
case of Malgas v The State12 it was held that “The specified sentences are not to be
departed from lightly and for flimsy reasons.” The courts are enjoined to approach
sentencing conscious that the legislature has ordained specific sen tences.

[22] In the case of S v Siluale en Ander13 the court said the following:

“If the circumstances of a case require that an offender should receive a
sentence which for all practical purposes removes him permanently from society,
life imprisonment is the only appropriate sentence. It is intended to be the most
severe sentence that can be imposed.”

[23] In the case of S v Obisi14 where the accused was charged with murder in the
course of robbery, the court held that the nature of the crime, the brazenness, the

11 Supra .
12 [2001] ZASCA 30 .
13 1999 (2) SACR 102 (SCA) at 103 .
14 2005 (2) SACR 350 (WLD) .
callousness and the brutality of the appellant's conduct show that he attaches no value
to other people’s lives or physica l integrity or to their dignity. Same as the case at hand,
the accused held the aforementioned disregard for the life of the deceased. His conduct
on the day reflects the value he attaches to human life.

[24] The sad reality that this court is sitting with, is the fact that the accused never even
once showed any remorse in this matter. He maintained throughout these proceedings
that he is innocent. Of course, that is his constitutionally guaranteed right. However,
with the merits and facts that were presented before this court, one would have
expected that some level of decency is shown by the accused by taking responsibility
for what he has done.

[25] The fact that the accused is a first offenders is not here nor there when it comes to
sentencing in this case. The sentences prescribed by the legislature are meant even for
those who are first offenders as well. Nowhere in the Criminal Law Amendment Act15
(the CLAA) is there said that the prescribed minimum sentences are for repeat
offenders.

[26] The accused person can hardly be said to be youth. He is an adult at 34 years old
whose actions in this case show beyond any shadow of a doubt that he is. In S v
Matyityi ,16 the court said ;

“It is trite that a teenager is prima facie to be regarded as immature and that the
youthfulness of an offender will invariably be a mitigating factor, unless it appears
that the viciousness of his deeds rules out immaturity. . . a court will in general
not punish an immature young person as severely as it would an adult. . . thus
whilst someone under the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult. In my view a person of 20

15 Act 105 of 1997 .
16 [2010] 2 ALL SA 424 (SCA) .
years or more must show by ac ceptable evidence that he was immature to such
an extent that his immaturity can operate as a mitigating factor.”

[27] On the issue of partaking in the consumption of alcohol by the accused, that being
a factor that the defence says should be taken into c onsideration in deviating from the
prescribed minimum sentence, it must be remembered that from the proved and
accepted facts, the court found that the accused had carefully planned the murder of the
deceased. It is clear that the alcohol consumption by th e accused was only for Dutch
courage as during the trial it became very clear that the accused remembered every
little detail of what happened that fateful night. So, that argument is a mute factor in this
case, to say the least.

[28] The unfortunate reality in this case is that the deceased cannot be brought back.
There is no type of sentence that can bring her back. Her peers, family and community
can only hope that justice is done today and the accused gets punished for her murder.
The question that I have to answer is whether there are any substantial and compelling
grounds which warrant a deviation from the prescribed minimum sentence. In other
words, should he be sentenced in line with the provisions of section 51 (1) of the CLAA
or should the court deviate from the prescribed minimum sentence as envisaged in
section 51 (3) of the CLAA?

[29] It would be absurd for this court to find that there are substantial and compelling
grounds that warrant a deviation from the prescribed minimum sentences in this matter.
The contrary prevails. There was clearly pre -meditation on the part of the accus ed. The
seriousness of the offence committed by the accused far outweighs his personal
circumstances. This is one of those cases in which the court has to display its
disapproval of the accused’s conduct while showing firmness in sentencing the
accused .

[30] In the result, the accused is sentenced as follows:

a) The accused is sentenced to a term of life imprisonment.
b) Pursuant to the provisions of section 103 of the Firearms Control Act 60 of
2000, both accused are deemed unfit to possess a firearm.


________________________
D Ngoqo
Acting Judge of the High Court


Delivered on: 17 March 2025

Appearances:

Counsel for the state: Adv Metuso
Instructed by:
DPP Office
Broadcasting House
Lower Sisson Street
Fort Gale
Mthatha

Counsel for defence: Mr. Hanise
Instructed by:
Legal Aid Board South Africa
Mthatha Local Office
96 Sutherland Street
PRD Building
Mthatha