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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Case number: A95/2025
In the matter between:
B[...] B[...] Appellant
And
THE STATE Respondent
Coram : SHER J et PANGARKER J
Hearing date: 13 June 2025
Judgment delivered: 25 June 2025
ORDER
a. The appeal against sentence is dismissed.
b. The sentence of 20 (twenty) years’ direct imprisonment is confirmed.
JUDGMENT
PANGARKER J ( SHER J concurring)
Introduction
[1] This appeal against sentence is with leave of the Mossel Bay Regional Court
which convicted the appellant on 5 March 2021 of the murder of his life partner, Y[...]
K[...] (the deceased). On the same date, the Regional Magistrate sentenced the
appellant to 20 years’ direct imprisonment in terms of section 51(2)(a)(ii) of the
Criminal Law Amendment Act 105 of 1997 (CLA A) being the minimum sen tence
applicable to the appellant who was a second offender for murder as defined in Part
II of Schedule 2 of the CLA A.
[2] The State alleged in the charge sheet that the appellant unlawfully and
intentionally murdered the deceased on 24 January 2015 at Kwa nonqaba, Mossel
Bay, by hitting and kicking her. The appellant was legally represented in the Regional
Court and after the relevant provisions of the CLA A and competent verdicts were
explained to him, he pleaded not guilty to the charge of murder. The appe llant’s plea
explanation and admissions were contained in a written statement made in terms of
section 115(2)(b) of the Criminal Procedure Act 51 of 1977 (CPA), which was read
into the record1.
Section 115(2) statement and formal admissions
[3] Insofar as the merits of the case were concerned, the appellant indicated in
his statement that they had co -habited for two years prior to the fateful day. During
the evening of 23 January 2015, they visited the deceased’s niece where they
consumed alcoho l and around midnight, they returned home to their shared
residence in Kwanonqaba, where they consumed more alcohol.
[4] The appellant and deceased became involved in an argument which revolved
around the appellant’s consumption of wine which the deceased h ad bought and the
1 Exhibit A
deceased's accusation that the appellant failed to contribute financially to the ir joint
household. He also stated that the deceased threw wine at his face and threatened
to return to her estranged husband and have more children with him .
[5] Consequently, the appellant became angry at the accusation and started
hitting the deceased with fists in her face. She fell to the ground , and he started
kicking the deceased in her face an d on her body. The appellant explained that the
deceased lost c onsciousness . The appellant fetched a jug of water and poured the
water over her face . According to the appellant, the deceased regained
consciousness and he informed her that he would be leaving . The appellant then left
the house.
[6] He stated further that he did not foresee the possibility that he could cause the
deceased’s death due to being enraged at her actions. He was provoked and angry
but could distinguish between lawful and unlawful actions and act according to such
knowledge . The appellant’s statement indicated that at the time of the assault, his
actions were not those of a reasonable person because a reasonable person in
those circumstances would have realised that it was not necessary to assault the
deceased in the manner in w hich he did. The appellant , in his section 115(2)
statement, pleaded guilty to culpable homicide.
Medical evidence
[7] The State called the pathologist, Dr Christa Hattingh, who confirmed the
content of the post -mortem report . The main post -mortem findings were that the
deceased sustained deep scalp bruising, intracranial haemorrhage, brain laceration
and intraventricular haemorrhage which the pathologist explained was a laceration to
part of the brain with haemorrhage into the vent ricular. The deceased’s body
displayed rib fractures and intercostal contusions. The lung and heart showed
contusions and there was evidence of mild pulmonary aspiration which indicates that
the deceased breathed blood into her lungs.
[8] Dr Hattingh further testified that there was blood in the abdominal cavity and
dense retroperitoneal and mesenteric haemorrhage referring to haemorrhage at the
back of the soft tissue, as well as injury to the l iver and bruises to the stomach . With
regard to the liver, the p athologist noted multiple laceration s to the left lobe and a
deep laceration which nearly severed the deceased’s liver in two . The right temporal
area of the deceased’s scalp extending to the back of the head, was bruised.
[9] The deceased’s ribs were bruised and fractured2. The pathologist testified that
chronic lung disease was detected but did not contribute to the injuries which caused
the death of the deceased. W ith reference to contusions on the deceased’ lungs, it
was noted that the upper and lower lobes of the lungs were bruised and that blood
entered the airways causing the deceased to breath in and swallow blood .
Furthermore, the right upper chamber of the heart was bruised due to compression
against the vertebral column. The pathologist explained that the injury to the heart
was caused by severe force applied to the chest, most often seen in motor vehicle
accidents. The pathologist’s view was that direct force, likely a kick, caused the
severe injury to the deceased’s live r.
[10] In addition to the above injuries, the further injuries sustained by the deceased
were severe bruises to the kidney and bladder as a result of blunt force injury. The
deceased’s ribs broke laterally, meaning that the force was applied to the front of h er
body. The pathologist’s view was that the deceased died fairly quickly. The fresh
injuries observed and identified by the pathologist all occurred during/ at the same
period. A blood alcohol sample was taken for testing but the pathologist had yet
recei ved the report.
[11] Dr Hattingh’s view was that all the injuries to the deceased’s body were
severe , at multiple sites and in her opinion, severe blunt force was applied, akin to
the impact sustained by a person involved in a motor vehicle accident. The
deceased was of average physique, weighing 54kg at 1.61 metres in height.
Judgment on conviction
2 Right side of the ribs
[12] The State closed its case, and so too did the appellant. The issue before the
Court a quo was whether the appellant had the int ention to kill the deceased . In its
judgment, the Court a quo accepted the testimony of Dr Hattingh regarding her
findings in the post -mortem report, the manner of infliction of the severe blunt force
injuries, the serious nature thereof and the cause of death. She also found that the
deceased must have died quickly, and that the mechanism of assault (as admitted by
the appellant) was that the appellant hit the deceased with his fists and kick ed her.
[13] The Court a quo also found that the appellan t continued to assault the
deceased by kicking and hitting her while she was lying on the ground . The further
findings were that the assault was perpetrated over a sustained period and that it
must have been obvious to the appellant that the dece ased was s erious ly injured.
Despite his partake in alcohol, the appellant could appreciate the wrongfulness of his
actions toward the deceased.
[14] The Regional Magistrate further found that the appellant wished to escape
liability for the deceased’s death by stating that he had no intention to kill her .
However, the evidence presented by the State established that the severe assault
by the appellant caused the deceased’s death. In addition, the Regional Court found
that no other injur ies were caused to the deceased except that caused by the
appellant’s assault, and in the absence of an answer from the appellant , it was held
that the appellant had the intention to kill the deceased. He was thus convicted of
murder.
Sentencing proceedin gs in the Regional Court
[15] One previous conviction of murder committed in March 20023 was proved
against the appellant, for which a sentence of 10 years’ imprisonment w as imposed.
The appellant’s legal representative handed in a letter written by him which the Court
was informed, showed that he expressed remorse for his actions and had found
God.
3 SAP 69s, Conviction on 9 February 2004
[16] In an ex parte address by his legal representative, t he appellant’s
circumstances were placed before the Court a quo . He was 43 years old , completed
grade 11, and worked at Mullers Construction for three years. His minor children
aged 16, 11 and 10 years old respectively , whom he main tained, lived with their
mother in Sedgefield. In mitigation of sentence, it was submitted on behalf of the
appellant, that the deceased was his life partner for two years, and he had
expressed remorse for his actions and his previous conviction was approx imately 18
or 19 years ago. It was consequently submitted that there were substantial and
compelling factors present and the Court should show mercy toward the appellant
when imposing sentence .
[17] The State called the deceased’s brother , J[...] S[...], in aggravation of
sentence. To summarise, he testified that the deceased ’s youngest child of 12 years
had lived with the couple in the ir shared bungalow prior to her mother’s death , and
she w as struggling to come to terms with her mo ther’s d eath. Due to an argument
between the deceased and appellant on the fateful day, Mr S[...] was asked if the
deceased’s daughter could stay with him. Subsequent to his sister’s death, all her
children lived with him .
[18] In cross examination, Mr S[...] denied that the deceased’s children lived with
their father. He explained that the deceased had a good relationship with her children
and would give them money for food. The State requested the Regional Magistrate
to impose the prescribed 20 years’ direct imp risonment for murder by a second
offender.
Sentence judgment
[19] In her judgment on sentence , the Regional Magistrate addressed in detail, the
triad and the mitigating and aggravating factors and questioned why, if he was
provoked , the appellant did not simply leave and walk away. She emphasised the
prevalence of gender -based vi olence and the cruelty with which the crime was
committed and concluded that no su bstantial and compelling factors were shown
which justified a deviation from the prescribed minimum sentence of 20 years’
imprisonment, which she duly imposed.
Grounds of appeal
[20] The grounds of appeal are: that the sentence of 20 years’ imprisonment is
harsh and shocking ; that the Regional Magistrate erred when she did not find that
the factors, cumulatively considered, amounted to substantial and compelling factors
necessitating a lesser sentence as enunciated in S v Malgas4; that she placed t oo
much emphasis on the interests of the community, and under -emphasised the
appellant’s personal circumstances, which include d mitigating factors5, and the
Regional Magistrate failed to temper the sentence with an element of mercy.
Discussio n
[21] Interference by an appeal Court in the sentence imposed by the Court a quo
is limited because of the principle that the imposition of sentence is a matter for the
discretion of the trial Court, as stated by Holmes JA in S v Rabie6. An appeal Court
may thus only interfere where there is a misdirection or irregularity by the trial Court
which vitiates the sentence , or where the sentence imposed is disturbingly
inappropriate7 or induces a sense of shock or where there is a striking disparity or
disproportionality to the sentence which the trial Court imposed and the sentence the
appeal Court would have imposed. Thus, if the trial Court exercised its sentencing
discretion properly, then the Court of appeal has no power to interfere.
[22] The Regional Magistrate’s judgment took account of the appellant’s personal
circumstances, the previous conviction, the interests of the community, mitigating
and aggravating factors, whether the appellant was truly remorseful and the
prevalence and impa ct of gender -based violence crimes in the country.
[23] Turning to the ground of appeal that the Regional Magistrate erred in that she
did not, on her consideration of the relevant factors during the trial, find subs tantial
4 2001(2) SACR 469 (SCA)
5 Appellants’ age; remorse; employment, and that the assault was spur -of-the-moment
6 1975 (4) SA 855 (A) 875D -F; See also S v Sadler [2000] ZASCA 13 par a [6]; S v Kgosimore 1999(2)
SACR 238 (SCA) par [10]
7 Director of Public Prosecutions, Kwa Zulu Natal v P [2005] ZASCA 127 par a [10]
and compelling factors which would necessitate a deviation from the prescribed
minimum sentence, I disagree. In my view, she correctly assessed the factors
holistically and concluded that there existed no substantial and compelling factors
which wo uld warrant a deviation from the prescribed minimum sentence of 20 years ’
direct imprisonment for the appellant, a second offender for murder .
[24] In this respect, the Regi onal Magistrate was mindful of the guidance provided
by the Supreme Court of Appeal in the o ften-cited passage from S v Malgas8, which
states that:
“The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying the legislation, and marginal differences in personal
circumstances or degrees of participation bet ween co -offenders are to be
excluded”.
[25] During the appeal, the appellant’s counsel conceded that the Regional
Magistrate did not commit any misdirection nor error in sentencing the appellant . She
acknowledged that due to the extremely serious nature of the injuries to the
deceased and the brutal way in which the assault was executed, t he Regional
Magistrate could have imposed a further five years ’ imprisonment in terms of section
51(2) of the CLAA to the prescribed minimum of 20 years’ imprisonment in terms of
section 51(2)(a)(ii) of the Act. In my view, this recognition reinforces the view that the
seriousness of the offence trumps the personal circumstances of the appellant when
considering the Zinn triad and traditional factors in im posing a just sentence .
[26] The suggestion in the grounds of appeal is that the suddenness of the attack
on the deceased is a mitigating factor. I disagree. I must emphasise that the
Regional Magistrate correctly held that the appellant’s assault on the dece ased was
a sustained assault and that he must have known that he was inflicting serious
injuries which could result in her death. On his own admission, he continued the
8 2001(1) SACR 469 (SCA)
assault after she fell to the ground and only stopped when he fetched water to revive
her from an unconscious state.
[27] On the contrary, the suddenness of the attack is an aggravating factor
especially as the appellant, in the section 115(2) statement, blamed the assault on
her provocation and his anger at her accusation regarding his drinking , her action of
throwing wine in his face and the statement that she would return to her estranged
husband . The viciousness and savagery with which the appellant assaulted the
deceased by kicking and hitting her while she was lying defenceless on the ground,
cannot be downplayed nor diminished at the alt ar of the appellant’s hurt feelings and
dented ego . Rather than walk away to calm down , the appellant decided to mete out
punishment , which had fatal consequences.
[28] The in juries testified to in detail and set out above, are testament to the
excessive force used by the appellant . It bears emphasis that the deceased
sustained such severe injuries which were akin to those found in motor vehicle
accident victims. She had full frontal bruises on her scalp, multiple lacerations to the
liver which nearly severed it, bruises and compression to the heart and multiple other
injuries , which must have caused such pain. She had breathed in blood and her
death had come quickly. The appellant , in his section 115(2) statement attempted to
diminish his culpability and responsibility for the deceased’s death, in a cowardly
fashion, which was correctly rejected by the State an d the Court a quo.
[29] On the issue of remorse, the Regional Magistrate questioned the appellant’s
sudden “change of heart” that he was remorseful of his actions and found that there
was no genuine remorse for the consequences of his actions . I point out th at the
appellant’s letter to the Court simply state d that he pleaded guilty to assault, that he
was employed in the building industry, that he was sorry he had made a ‘mistake ’
and requested he be given a suspended sentence or a sentence in terms of section
276(1)(i) of the C riminal Procedure Act . He said he had found God, and he had
completely transformed his life.
[30] In S v Matyityi9, the Supreme Court of Appeal distinguished between regret
and genuine remorse associated with an accused person in re lation to the
consequences and appreciation of their actions, as follows:
“13. There is, moreover, a chasm between regret and remorse. Many
accused persons might well regret their conduct but that does not without
more translate to genuine remorse. Remorse is a gnawing pain of conscience for
the plight of another. Thus genuine contrition can only come from an
appreciation and acknowledgemen t of the extent of one’s error. Whether the
offender is sincerely remorseful and not simply feeling sorry for himself or
herself at having been caught is a factual question. It is to the surrounding
actions of the accused rather than what he says in cou rt that one should
rather look. In order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into his or her
confidence. Until and unless that happens the genuineness of the contrition all eged
to exist cannot be determined . After all, before a court can find that an accused
person is genuinely remorseful, it needs to have a proper appreciation of inter
alia: what motivated the accused to commit the deed; what has since provoked his
or her change of heart; and whether he or she does indeed have a true
appreciation of the consequences of those actions . There is no indication that
any of this, all of which was peculiarly within the respondent's knowledge, was
explored in this case. ”
[31] Taking guidance from Matyityi , it is evident from the appellant’s letter that
there is no mention of the deceased, nor an expressed appreciation for the effect
which her death has/had on her children and family or for that matter, on him. Aside
from his section 115(2) statement indicating that he was provoked and angry, the
letter is silent on why the appellant went to such lengths to retaliate at the
deceased’s statements . The Court was t hus left with no real idea as to why he
committed the heinous crime of murdering his life partner.
9 2011 (1) SACR 40
[32] The appellant ’s submission is that much time has passed since he committed
the offence and that he has changed. It is so that more than five years passed from
the date of the commission of the offence to the conviction and sentencing, and we
are informed that the appellant has found God. The appellant is free to exercise his
religion and religious be liefs. However, one would then have expected that his letter
to the Court a quo would have taken the Court into his confidence and express
genuine remorse and contrition, but it does not. His actions are fleetingly referred to
as a “mistake” and there is no indication of an attack on his conscience. In my view,
at face value, the lette r is no more than an expression of self -pity and the realisation
of the appellant’s religious beliefs.
[33] The facts of this matter fall full square under the ever -increasing cloud of
gender -based violence. The appellant had no regard for his relationship with th e
deceased when he violently attacked her, executing brute force and anger on a
woman who was of average build, defenceless in the sudden attack and vulnerable
as she lay on the ground. The appellant’s actions in persistently kicking and hitting
her were s o severe that the impact of the assault to her body caused her heart
chamber to compress and her liver to nearly split in two. Rather than stopping the
attack or rushing her to hospital, the appellant walked away unperturbed and left his
life partner to die .
[34] This is a case of intimate femicide which is i ndeed a cause for deep concern,
not only to the Courts, but it should be to every law- abiding member of South Africa n
society , as it permeates communities regardless of social, cultural, religious and
racial differences. Daily, women are targeted , assault ed, raped and treated , as in this
case, as if their lives have less value , simply because they are female.
[35] Thus, I cannot agree more with the sentiments expressed by K usevitsky J in
S v Robertson10:
“It is so easy to glibly use the phrases and terminology of femicide and
gender -based violence, in part because of the relentless frequency of its
10 S v Robertson [2022] ZAWCHC 104 par a [2]
occurrence in our society, communities and homes, that it hardly causes
anyone to bat an eyelid or to raise an eyebrow. In this matter the court will
take into account the nature and prevalence of the crime and balance these
considerations with the effect of the accused's actions, not only in relation to
his family, but also to that of his victims and their famili es, and the court will
ultimately consider the question as to what sentence would be appropriate
and proportionate to him in light of the prescripts of S v Zinn 1969 (2) 537 (A)
at 540G and this disease of gender based violence and femicide which
permeates the psyche of our country. ”
[36] Ultimately, t he deceased did not deserve to die a surely painful and
excruciating death at the hands of her life partner. In my view, he had time during
the assault, when she fell to the ground after the first punch(es), to reflect on his
actions, the potential consequences thereof and to desist and withdraw from his
unlawful conduct , yet he carried on regardless and relentless , kicking and possibly
stomping on her chest and other parts of her body . He only halted the assault to
collect water to pour on her face.
[37] Furthermore, in S v Rohde11, the Court stated that:
“Intimate femicide clearly cannot be viewed as being conduct which is less
morally reprehensible” .
This statement is equally true in this matter. The deceased was murdered at the
hands of the man with whom she shared her life, who cowardly refused to acc ept
that he acted unlawfully in assaulting and killing her. The appellant failed to take
responsibility despite the overwhelming medical evidence that the shocking and
severe injuries which he caused in a sustained assault unleashed upon her, had
caused he r death. I am of the view that the appellant regarded the deceased as his
punching bag, someone who should be checked for criticising him about his lack of
financial support and drinking habits and who should be taught the ultimate lesson
11 [2019] ZAWCHC 18 at par a [23]
so as to never cr iticise him again. In so doing, he robbed her of her dignity and
equality and left her to die, without displaying a shred of conscience.
[38] On the issue of rehabilitation, it was advanced that the Court a quo ’s sentence
of 20 years’ imprisonment took no account of the potential for his rehabilitation but
rather emphasised the other purposes of punishment being retribution and
deterrence. I cannot agree , because the issue of rehabilitation must be considered in
light of other factors such as the interests of the community and the effect of the
crime on the accused and that community. This view was illustrated by the SCA in
Director of Public Prosecutions, Kwazulu -Natal v Ngcobo and Others12, where
Navsa JA observed that:
“Traditional objectives of sentencing include retribution, deterrence and
rehabilitation. It does not necessarily follow that a shorter sentence will always
have a greater rehabilitative effect. Furthermore, the rehabilitation of the
offender is bu t one of the considerations when the sentence is being imposed.
Surely, the nature of the offence related to the personality of the offender, the
justifiable expectations of the community and the effect of a sentence on both
the offender and society are al l part of the equation? Pre - and post - Malgas
the essential question is whether the sentence imposed is in all the
circumstances, just.”
[39] The appellant has indicated in his letter to the Court, that he has changed his
life and that he has “work to do ”13, presumably religious or faith -based work in prison.
This fact may indicate that he is attempting rehabilitation in that manner. However,
when regard is had to the prevalence and frequency of gender -based violence
matters in society, the seriousness of the murder, the fa ct that no remorse was
shown , then the sentence of 20 years’ imprisonment for a second offender such as
the appellant, is indeed just, and neither shocking nor disproportionate. To have
imposed a lesser sentence than the prescribed minimum would have downplayed
the seriousness of the murder and the gravity with which the law and society
generally views intim ate femicide.
12 2009 ZASCA 72 par 22
13 Appellant’s letter (not marked as an exhibit)
[40] On my consideration and reading of the judgment, I am satisfied that the
Regional Magistrate considered these aspects comprehensively and her application
of the applicable authorities regarding minimum sentencing cannot be faulted. In my
view, the Regional Court would not have been unfair or unjust had it imposed a
further five years ’ imprisonment, so shocking and violent was the assault on the
deceased that she had no chance of defending herself against the attack. I n the
result, there is no room to interfere in the sentence imposed by the Regional Court .
The appeal against sentence fails and the sentence of 20 years’ direct imprisonment
is confirmed.
Order
[41] In the result, I would propose the following order:
a. The appeal against sentence is dismissed.
b. The sentence of 20 (twenty) years’ direct imprisonment is confirmed.
_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
I agree and it is so ordered .
___________ __________________
M SHER
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Adv N Abdurahman
Instructed by: Legal Aid
For Respondent: Adv E Erasmus
Director of Public Prosecutions