SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PALM RIDGE)
CASE NO: CC 59/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 2025/05/30
SIGNATURE:
In the matter between:
THE STATE
and
NKULULEKO MTSHALI ACCUSED
SENTENCE
JOHNSON, AJ:
[1] This matter was delayed for various reasons during the allocated trial dates.
Part of the delays were caused by the non -availability of both advocates during the
allocated dates. It is well known that the justice system is under scrutiny and heavily
criticized for the delays in the finalizing of cases. It is the responsibility of courts to
see to it that any delays are restricted to the minimum.
[2] After conviction Adv Myamane for the accused requested a postponement to
call a probation officer to te stify. What was concerning, is that the request for the
postponement was not based on the calling of a specific witness, but rather to go
and look for a witness who could testify. I further gained the impression that she
wanted to call a probation officer because of the age of the accused.
[3] Adv Myamane had not taken any steps yet to consult a probation officer. We
all know that compiling reports and the investigations that accompany it, takes weeks
and sometimes months to complete. This would cause a fur ther delay in the
completion of the matter.
[4] Legal representatives should be vigilant in taking on briefs where they foresee
that they might want to call expert witnesses and plan and consult such witnesses
long before the trial starts or during the pro ceedings. It is unacceptable to wait for the
reasons of the judgement or sentence, and it is not an excuse to argue that it is
unsure what the presiding officer might say.
[5] All parties were aware that this trial was set down for 2 weeks, and all
prepara tions necessary should have been finalized as far as possible timeously. In
this instance, a probation officer had not even been identified or consulted yet.
[6] A probation officer's primary purpose during the sentencing process, is to
assist the court in determining an appropriate and effective sentence by providing
comprehensive information and recommendations. This involves conducting a pre -
sentence investigation, which includes gathering details about the accused, the
offense, and his circumstances, to enable the judge to make an informed decision. I
was not informed of any assistance I might get from a probation officer in this regard,
and the request for a remand was unsubstantiated.
[7] A court has a discretion in deciding whether to grant or refus e a
postponement, and to prevent any further unnecessary delays. To grant the
postponement for the reasons requested by the defence, would in effect be to
condone the dereliction of duty that occurred here.
[8] Adv Myamane had the right to address me in mi tigation of sentence and had
the right to place any mitigating factor before court without any reservation. Even if
the application for a remand were to be denied, the accused would still get a fair trial,
because if anything was said during argument that warranted a probation officer's
evidence, I had the discretion to call for the assistance of a probation officer if it was
needed. I subsequently denied the request for a postponement before I was
addressed in mitigation of sentence.
[9] As far as sentenci ng is concerned, the provisions of the Criminal Law
Amendment Act1 is applicable in respect of both the charges of which you had been
convicted. Section 51 (1) of the Act determines that a high court shall sentence a
person who has been convicted of an off ence referred to in part 1 of schedule 2 (like
[i] murder when the death of the victim was caused by the accused in committing or
attempting to commit rape, and [ii] rape where the victim was under the age of 16
years) to a minimum sentence of life imprisonment, unless you prove on a balance of
probabilities that substantial and compelling circumstances exist.
[10] The Court in S v Malgas2 discussed the question of substantial and
compelling circumstances. The important part of the Malgas-judgment is the
explanation, that the circumstances envisaged by the expression, need not be
exceptional, but must provide 'truly convincing reasons' (Paras 8 and 25C) or
'weighty justification' <P aras 18 and 25B) for imposing less than life imprisonment, or
they must induce the conclusion that the prescribed sentence would in the particular
case be unjust or disproportionate to the crime, the offender and the legitimate
needs of society.(Paras 22 a nd 25).
1 Act 105 of 1997
2 2001 (3) SA 1222 (SCA)
[11] The general principle is that a Court is required to, in the exercise of its
sentencing discretion, have regard to the seriousness of the crime committed, the
interests of the community and the personal circumstances of the offender to reach
an appropriate and just sentence. It is a well -established principle that the
punishment should fit the criminal as well as the crime, be fair to society, and be
blended with a measure of mercy. It is not lost out of sight that a sentence must
always be ind ividualised, considered, and passed dispassionately, objectively and
upon a careful consideration of all relevant factors.
[12] In a search for substantial and compelling circumstances, the Court has
regard to the offences of which you have been convicted, the motive for committing
the crimes, the interests of society, your personal circumstances or any other matter
of importance which have been brought to the court's attention. In your instance you
did not truthfully disclose a motive and left us in the dark.
[13] A standardized and consistent response is required from our Courts, aware of
the fact that life imprisonment is called for where there are no substantial and
compelling circumstances.
[14] As far as your personal ci rcumstances are concerned, you were born on 19
August 2004 and were 18 years of age when you committed the offences. You are
single and have no children. You do not know your biological parents, who passed
away when you were still young. You were raised by grandfather, the last defence
witness. You left primary school because you were a slow learner. You were enrolled
at a special school to learn skills like carpentry and making flowers, but you also
dropped out. You started working in your grandfather's ta vern. He did not pay you a
salary, but only gave you pocket money. You did not use drugs until you met
Phakiso. You are in good health. Your advocate requested the court to take the
following facts into account as substantial and compelling circumstances: you have
been in custody for 19 months, you are a first offender, you are still youthful, you are
a candidate for rehabilitation, you did not know the deceased, and you were not the
mastermind of the offences.
[15] Rape is on the increase, and there is unf ortunately little more that we can do
to safeguard our women, than what we are currently doing. It seems that our women
have become fair game for ruthless criminals. In many cases like in this instance,
ruthless rapists like you also kill their victims wit hout any motive or reason. We will
never know why you acted in this way, because you failed to take the court into your
confidence. Rape is undeniably a despicable crime. In N v T3 rape was described as
'a horrifying crime and is a cruel and selfish act in which the aggressor treats with
utter contempt the dignity and feelings of [the] victim.' In S v Chapman4 the court
said it is 'a humiliating, degrading and virtual invasion of the privacy, the dignity and
the person of the victim.'
[16] The killing of victims, especially when they are as young and defenceless as
the deceased, is also a serious and despicable crime. You had no regard for her life
and killed her for an unknown reason. One can only but imagine the fear she
experienced during her last momen ts of life.
[17] I stress that when an appropriate sentence is considered, the triad consisting
of your personal circumstances, the interests of society and the offences of which
you have been convicted, must be considered in a balanced way, and none must be
over - or under emphasized in favour of the other. The sentence should further not
be used as a kind of sledgehammer to destroy you. In meting out an appropriate
sentence, the court must do it with a measure of mercy.
[18] I have taken cognisance of the fact that you have been in custody for
approximately 19 months awaiting finalization of the trial. The Supreme Court of
Appeal considered the role played by the period that a person spends in detention
while awaiting finalisation of the case in S v Livanj e5 It confirmed what it held in S v
Radebe6 namely that: "the test is not whether on its own that period of detention
constitutes a substantial and compelling circumstance, but whether the effective
sentence proposed is proportionate to the crime committed: whether the sentence in
3 1994 (1) SA 862 (C) at 864G
4 1997 (2) SACR 3 (SCA).
5 2020 (2) SACR 451 (SCA).
6 2013 (2) SACR 165 (SCA) at para 14
all the circumstances, including the period spent in detention, prior to conviction and
sentencing, is a just one."
[19] The period you spent in prison awaiting trial is longer than one would expect,
but it is s uperseded by the ultimate sentence that I consider to be appropriate. It is
however less than the norm, where accused persons sometimes wait for years to
have their matters finalized.
[20] You committed heinous crimes against a young child who was in the p rime of
her life. She had no defence against your attack when you raped and killed her. One
can only make but one finding as far as your actions are concerned - you are a
danger to society.
[21] If one look at the photos of the body of the deceased, it is sad to see how
broken the body of the 8 -year-old deceased was after you were done with her. She
had her whole life ahead of her, which was cut short by a ruthless criminal to satisfy
his own sexual needs. In the absence of Phakiso, you very conveniently pu t the
blame on him. Initially your defence was that he forced you to have sexual
intercourse with her. You then got on top of her and only faked sex. Your evidence
was so fraught with contradictions and improbabilities that it was rejected as false.
You ha ve only yourself to blame that you failed to play open cards with the court.
Instead of taking responsibilities for your deeds, you cunningly tried to evade justice
by putting all the blame on a person who had apparently died.
[22] You showed her no mercy, and you had no remorse for what you had done.
Advocate Shivuri called P[...] N[...] , who had already testified, to testify about impact
of the death of the deceased on her family. Her death hurt the family, and her
grandmother is bedridden after she sa w what happened to the deceased. He is also
emotionally affected by her death, and the community is supporting him.
[23] Advocate Shivuri argued that the deceased was eight years of age when she
was raped and murdered. The offences are prevalent. The atta ck on her was brutal.
There are no substantial and compelling circumstances which warrants the court to
deviate from the minimum prescribed sentences.
[24] When assessing your personal circumstances, I considered what was said in
S v Vilakazi7:
"In cases o f serious crime, the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it becomes
clear that the crime is deserving of a substantial period of imprisonment, the
questions whether the accused is married or single, whether he has two
children or three, whether or not he is employed, are in themselves largely
immaterial to what that period should be. And those seem to me to be the kind
of flimsy grounds that Malgas said should be avoided."
[25] In S v Ro a nd Another8 the majority of the Supreme Court of Appeal held as
follows:
"To elevate the personal circumstances of the accused above that of society
in general and the victims, in particular, would not serve the well -established
aim of sentencing, includin g deterrence and retribution."
[26] In DPP, North Gauteng v Thabethe9 the Court stated:
"Rape of women and young children has become cancerous in our society. It
is a crime which thr eatens the very foundation of our recent democracy which
is founded on protection and promotion of the values of human dignity,
equality and the advancement of human rights and freedoms. It is such a
serious crime that it evokes strong feelings of revulsio n and outrage amongst
all right thinking and self -respecting members of society."
[27] I have considered all the factors that were argued regarding sentence. I am
not convinced that a probation officer's report would have been of any assistance in
assessin g what an appropriate sentence would be. It is further found that there are
7 2009 (1) SACR 552 (SCA) at paragraph 58
8 2010 (2) SACR 248 (SCA),
9 2011 (2) SACR 567 (SCA) 577g -i
no substantial and compelling circumstances which entitles the court to deviate from
the prescribed minimum sentences. The prescribed sentences are not unjust or
disproportionate t o the serious offences of which you had been convicted. Despite
your youthfulness, you are a danger to society. A sentence which would protect the
community against you, is called for.
[28] The State also requested that you should be declared unfit to poss ess a
firearm. Your advocate had no response to the request.
[29] I find that the following sentences are appropriate:
Count 1: Life imprisonment;
Count 2: Life imprisonment.
As a matter of course the two sentences will run concurrently.
[30] The court makes no finding in terms of section 103 (1) of the Firearms Control
Act 60/2000. You are therefore regarded as unfit to possess a firearm
JOHNSON AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PALM RI DGE