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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
CASE NO. CC 1/2025
In the matter between:
S[...] M[...] Applicant
and
THE STATE Respondent
__________________________________________________ _________________
JUDGMENT
__________________________________________________ _________________
LAING J
[1] This is an application for leave to appeal against the sentence of life
imprisonment imposed on the applicant after his conviction on a charge of murder.
[2] The main ground of the application was that the court erred in under -
emphasising several mitigating factors. These are as follows: the applicant was a 51 -
year-old first offender; he acted out of ch aracter; he consumed alcohol prior to the
commission of the offence ; and he was in a state of emotional upheaval at the time.
Counsel contended that the above factors were , cumulatively, substantial and
compelling circumstances. Furthermore, argued counsel , the court erred in over -
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emphasising the seriousness of the offence and the interests of the community at the
expense of the applicant’s personal circumstances. A sentence of life imprisonment
was also disproportionate to the offence.
[3] The usual test in relation to an application for leave, within a criminal context,
is whether the appeal has reasonable prospect s of success. In S v Smith ,1 the
Supreme Court of Appeal stated as follows:
‘What the test of reasonable prospects of success postulates is a
dispassionate decision , based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In
order to succeed, therefore, the appellant must convince this court on proper
grounds that he ha s prospects of success on appeal and that those prospects
are not remote , but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound rational basis for the conclusion that
there are prospects of success on appeal.’2
[4] The test set out in section 17 of the Superior Courts Act 10 of 2013 has been
accepted as the legislative benchmark.3 Consequently , an application for leave to
appeal can also be granted if a court is of the view that there is some other
compelling reason why the appeal should be heard.
[5] The fact that the applicant was a 51 -year-old first offender is of little
assistance . It is, however, the remaining grounds that deserve closer examination. A
question that went unanswered was the role that alcohol played in the commission of
the offence. In its verdict, th e court found that the evidence regarding the extent to
which the applicant consumed alcohol on the day in question was inconclusive .
Nevertheless, it seemed to have been common cause that the applicant consumed
1 2012 (1) SACR 567 (SCA).
2 At paragraph [7].
3 See the comments made by Chetty J in S v Panayiotou 2018 JDR 0661 (ECP), at paragraph [1].
at least a single unit . The clinical psychologist , Ms Karen Andrews , who investigate d
the applicant’s criminal responsibility, found that:
‘[The applicant’s] physical appearance on the Mental State Examination was
observed to indicate yellowing of the eyes, consistent with long -term alcohol
use and/or abuse. His use of alcohol played a disinhibiting role in his
behaviour in this case.’
[6] The expert went on to say that:
‘He was able to appreciate wrongfulness and able to act accordingly during
the commission of murder of his three -year-old daughter. In the context of
unresolved anger, and under the disinhibiting effects of alcohol, he made the
“split second” decision to ac t out his rage by harming his daughter.”
[7] Ms Andrews testified that , considering the applicant’s probable abuse of
alcohol, it would not have required much to have triggered his conduct. Furthermore,
she confirmed that a combination of alcohol and the applicant’s emotional upheaval
served as the catalyst for the events that followed.
[8] In S v Smith ,4 the erstwhile Appellate Division considered the impact of factor s
such as mental strain, anger, frustration, and humiliation. If one or more of these
substantially reduced an accused person’s power of restraint and self -control , then
that was highly relevant to the question of sentence.5 A few years later, in S v
Shapiro , the Appellate Division observed that:
‘Section 78(7) of the Criminal Procedure Act 51 of 1977 relates to cases
where the court finds that the accused at the time of the commission of the act
in question was criminally res ponsible for the act but that his capacity to
appreciate the wrongfulness of the act or to act in accordance with an
appreciation of the wrongfulness of the act was diminished by reason of
4 1990 (1) SACR 130 (A).
5 At 135f –g. The court held, nevertheless, that such a factor did not affect the accused person’s
criminal liability.
mental illness or mental defect. In such a case, the court may take the fact of
such diminished responsibility into account when sentencing the accused. But
apart from “pathological reduced criminal responsibility ”, as it has been called,
it has been recognised that it is possible for there to be non -pathological
temp orary reduced criminal responsibility , which would likewise be relevant to
sentence.’6
[9] In the present matter, t he state led the evidence of a social worker, Ms
Nomonde Stamper , who conducted a victim impact assessment. She testified that
members of the community could not understand why the applicant had killed his
own daughter ; it had been entirely out of character. At least one of the state
witnesses expressed the same bewilderment , too.7 Viewed against Ms Andrews’s
scenario of alcohol abuse and unresolved anger, this was an additional factor for the
determination of an appropriate sentence.8
[10] The court found that the role of alcohol , the applicant’s emotional upheaval
(as termed by counsel), and evidence to the effect that he acted out of character
were insufficient, either on their own or cumulatively, to have constituted substantial
and compelling circumstances. The abhorrent natur e of the offence, entailing horrific
injuries inflicted on the applicant’s three -year-old daughter, as well as the
community’s sense of complete outrage, outweighed the applicant’s personal
circumstances.
[11] Nevertheless, the court cannot say that there are no reasonable prospects of
success on appeal. Another court may well find that alcohol served as the necessary
disinhibitory trigger to unleash the rage displayed by the applicant , result ing in non-
pathological , temporar ily reduced criminal responsibility at the time . This could have
given rise to the substantial and compelling circumstances required for a departure
from the prescribed minimum sentence .
6 At 120d –f. Emphasis added.
7 In his testimony, the applicant’s cousin, Mr Nanina Dini indicated that he had been ‘very surprised’ at
the applican t’s behaviour.
8 See S v Romer 2011 (2) SACR 153 (SCA), where the appeal court held that a lighter sentence was
not inappropriate where the respondent had been in a state of diminished responsibility at the time of
the offence.
[12] In the circumstances, the application for leave to appeal is granted.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCE
For the applicant: Mr Geldenhuys
Instructed by: Legal Aid South Africa
69 High Street
MAKHANDA
Tel: 046 622 9350
For the respondent: Adv Mgenge
Instructed by: Director of Public Prosecutions
94 High Street
MAKHANDA
Tel: 046 602 300
Date heard: 2 June 2025.
Date delivered: 10 June 2025.