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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
Case No. CC33/2017
In the matter between:
THE STATE
and
THANDO MGQOBOZI Accused
__________________________________________________________________
SENTENCE
__________________________________________________________________
JOLWANA J
[1] On 1 December 2015 a request by two young daughters to their parents to
attend a traditional initia tion ceremony within the local community of Lower Nqadu
Locality was, unbeknown to them, the last conversation the y would have with their
two young daughters. As their parents were granting them permission to spend the
night with other young people in the same locality, whatever words were exchanged
between the parents and their two young daughters and whoever else they spoke
to on that day were the last words they would speak with their family members. As
their parents granted them permission, and as they left the security of their
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homestead at 19:30 that evening, little did anybody know that they would be dead
the following day , the 2 December 2015.
[2] This Court has convicted the accused for the gruesome murders of S[...] and
C[...] K[...]. It has found that the accused took them to a secluded area in a small
forest within Lower Nqadu Locality where they were physically and sexually abused
and murdered. Accused has been convi cted of the kidnapping of S[...], the
aggravated robbery of C[...] of her smart phone , the rape of C[...] and the murders
of the two K[...] children. This Court must now consider and pass an appropriate
sentence for these heinous crimes. In respect of the aggravated robbery, the rape
of C[...] and the murders of the two young girls, the State invoked the provisions of
section 51(2) and section 51(1) of the Criminal Law (Sentencing) Amendment Act
38 of 2007 read with Parts 1 and 2 of Schedule 2 of Act 105 of 1997. In doing so,
the State indicated its intention to ask the court to impose the prescribed minimum
sentences . The accused , before pleading to the charges, was advised of the State’s
intention i n this regard, in the event of conviction. Chiefly, the main reasons for the
minimum sentencing legal framework to be invoked was that the robbery was
accompanied by the use of a sharp instrument. In respect of the two murders, the
State believed, and the court found that the murders were not just an unfortunate
situation that occurred perchance . It was planned resulting in the children who
should have gone ho me when the y left the homes tead in which the traditional
ceremony was held , instead of going ho me, they were taken to a secluded spot at a
nearby forest where the heinous crimes were committed. They left home together
and died side by side together for no reason other than just being children and
young girls.
[3] In considering an appropriate sentence our courts use what has become
commonly known as the Zinn triad. The Zinn triad is based on the case of Zinn1 in
which the manner in which our courts exercise their pe nal jurisdiction was
authoritatively laid down more 50 years ago by the Appellate Division . In simple
terms , the Zinn triad requires the court, in its consideration of an appropriate
sentence, to have regard to the offence, the offender and the interests of society.
1 S v Zinn 1969 (2) SA 537 (A).
[4] The approach to sentencing was , shortly thereafter , succinctly summarised in
Rabie2 in which Corbett JA said:
“A judicial officer should not approach punishment in a spirit of anger
because, bei ng human, that will make it difficult for him to achieve that
delicate balance between the crime, the criminal and the interests of society
which his task and the objects of punishment demand of him. Nor should he
strive after severity ; nor, on the other h and, surrender to misplaced pity.
While not flinching from firmness , where firmness is called for, he should
approach his task with a humane and compassionate understanding of
human frailties and the pressures of society which contribute to criminality. It
is in the context of this attitude of mind that I see mercy as an element in the
determination of the appropriate punishment in the light of all the
circumstances of the particular case.”
[5] The legal representative of the accused accept ed that these crimes represent
some of the most abhorrent crimes against young girls and women in this country .
The K[...] girls were taken advantage of for no reason other than the fact that they
were young, female and therefore defenceless . S[...] was o nly 12 years old when
she was abused resulting in the doctor who conducted her postmortem examination
finding that she had a vaginal tear in the posterior wall of her vagina which
extended to the perineum. The offender has not taken this Court into his con fidence
and explain what happened to S[...]. He has not explained how she ended up at a
forest with a vaginal tear . He has not explained why he had to make these two
children go through so much pain . S[...] had no less than 23 stab wounds including
wounds to her face and neck. C[...] , at a young age of 16 years, was raped and
murdered with extreme cruelty resulting in the inflicti on of thirty -three wounds , some
of which penetrated her vital organs including the heart , lungs and liver. As if taking
their lives so cruelly was not bad enough, accused al so robbed C[...] of her smart
phone. All these facts are a clear indication of how atrocious these offences against
these children were .
2 S v Rabbie 1975(4) SA 855(A) at 866 A to B.
[6] It is clear that society looks up to this Court for protection from people such as
the accused . Our courts are confronted daily with having to preside over cases of
violent crime s, sexual abuse of children and wom en who are amongst those most
vulnerable in our society. Where an offender has been c onvicted of such serious
crimes , it follows that the society expects courts to pass sentences that reflect the
society’s abhorrence of such crimes. That is why the Legislature has passed the
minimum sentences legislation to guide o ur courts in pass ing sentences that befit
both the crime and the offender and where possible, to standardise the sentences
that are impos ed for such serious crimes .
[7] As indicated earlier, section 51 of the Criminal Law Amendment Act 105 1997 is
applicable to the facts of this matter . This means that the prescribed minimum
sentence s are, in the absence of substantial and compelling circumstances,
applicable . There are sentencing principles that must come to the fore in the
consideration of an appropriate sentence and the court’s exercise of its sentencing
discretion . These were eminently restated not so long ago in Tsotetsi3 as follows:
“(a) The sentence must be appropriate, based on the circumstances of the
case. It must not be too light or too severe.
(b) There must be an appropriate nexus between the sentence and the severity
of the crime; full consideration must be given to all mitigating and
aggravating factors surrounding the offender . The sentence should thus
reflect the blameworthiness of the offender and be proportional. These are
the first two elements of the triad enunciated in S v Zinn .
(c) Regard must be had to the interests of society (the third element of the Zinn
triad) . This i nvolves a consideration of the protection society so desperately
needs. The interests of society are reflected in deterrence, prevention,
rehabilitation, and retribution.
(d) Deterrence, the important purpose of punishment, has two components,
being both t he deterrence of the accused from re -offending and the
deterrence of would -be offenders.
3 S v Tsotetsi 2019 (2) SACR 594 (WCC) at page 604
(e) Rehabilitation is a purpose of punishment only if there is the potential to
achieve it.
(f) Retribution being a society’s expression of outrage at the crime, remai ns of
importance . If the crime is viewed by society as an abhorrence, then the
sentence should reflect that. Retribution is also expressed as the notion that
the punishment must fit the crime.
(g) Finally, mercy is a factor . A humane and balanced approach must be
followed.”
[8] In the light of the legal framework applicable to sentencing and the approach to
sentencing that has been part of our jurisprudence for a very long time, I turn now
to consider the personal circumstances of the offender. The accused did not testify
in mitigation of sentence. The following submissions were made on his behalf. He
was born on 26 January 1995 and is therefore 30 years old now. When he
committed the offences on 2 December 2015, he was twenty years old. He is not
married and has one child who is still a minor. Th is child is a girl who is now four
years old and stays with her mother. The accused went to school up to grade 11
which he did not pass. At the time of his arrest, he had no previous conviction.
However, wh ile this case was pending in this Court, he was convicted of murder
which was committed on 24 November 2021 . He was convicted of the said murder
charge on 19 October 2023 . He has since been sentenced to life imprisonment
which he serves at the East London Correctional Centre. On 24 March 2021, he
was granted bail of R1500.00 by this Court in the interests of justice, as the trial
dragged on mostly due to the accused’s legal representation which had to change
on two occasions thus delaying the finalisation o f this trial . At the time he was
admitted to bail , he had been in prison as an awaiting trial prisoner for about five
years since his arrest on 2 December 2015. It was submitted that this period of pre -
sentence incarceration should also be considered . Last ly, it was submitted that on
the night in question the accused had consumed alcohol. In the final analysis, it was
submitted that these personal circumstances of the offender, considered
cumulatively, should result in the court departing from the impositio n of the
prescribed minimum sentences.
[9] In aggravation of sentence , the State called Mr & Mrs K[...], the father and
mother of the deceased . Mr K[...]’s evidence was that C[...] and S[...] were
incredibly good children with very big plans and ambitio ns for their future . C[...] told
them that she wanted to pursue her studies and become a social worker and S[...]
said that she wanted to be a doctor. Mr K[...] testified that they asked the se children
to elabo rate on their choice of careers. They said that one of their siblings is
disabled and they wanted to be of assistance to him . Mr K[...] testified that after the
killing of his children , their lives suddenly changed for the worst . For example, one
of their ch ildren was doing very well at school before this incident and had
progressed up to the second year at university . However, following this incident the
said child just said that he no longer wanted to continue with his studies and has
been at home doing not hing ever since.
[11] With reference to a newspaper picture that he pulled out of his pocket , Mr K[...]
testified that the said picture was taken o n 3 December 2015 and published on 4
December 2015 . He said that as could be seen from that picture, his wife was
healthy and of full size. However, soon after this incident , she became sickly and
was diagnosed with diabetes and hypertension which she did not have before this
incident. He had to take h er to Groote Schuur Hospital in Cape Town where all
these diagnoses were made. In respect of his personal well -being , Mr K[...] testified
that before this incident he was very active in his community, even attending
community meeting. At the time of the incident, he wor ked at the taxi rank driving
his own taxi, but he could not continue doing so after his children were killed. After
this incident he became reserved , mostly quiet and preferred being alone . If he
drops something or something falls, he becomes shocked and a ngry. His sleeping
patterns have been negatively affected so much that he has to use sleeping tablets
which do not help much. He has since also been diagnosed with diabetes and
hypertension for which he collects treatment at a local health facility , which were not
there before this incident .
[14] Mrs K[...]’s evidence was that she is the biological mother of C[...] and S[...].
They were very well -behave d and disciplined children who were doing very well at
school. They had b ig dreams of becoming a social worker and a doctor
respectively , saying they wanted to help people. She testified that her life ended in
December 2015 when a child from a neighbouring homestead arrived at her
homestead and encouraged them to attend a traditional ceremony in the locality.
She was surprised when they showed interest in attending it as they did not usually
attend such events. They left with the said child saying they would be back soon,
but they never came back. She testified that since this incident , she became a very
sickly person and was diagnosed with diabetes, hypertension, and heart problems,
all of which were not there before this incident . She used to wear a size forty-two
but has since lost wait . She is no longer sociable , is irritable and has become very
emotional such that she tends to shout or raise her voice . She testified that if the
accused is handed a light sentence, she fears that he will return to the community
and might repeat what he did to her children whom she believed, could still be alive
if he had not returned from Cape Town.
[16] It was submitted on behalf of the State that while it is so that the accused spent
just over five years in prison before he was granted bail by this Court, that fact,
while relevant, has to be considered with other factors in determining whether or not
it should lead to a departure from the prescribed minimum sentence s. It was further
submitted tha t while the accused was relatively young when he committed th ese
offence s, no basis was laid for the submission that the accused’s relatively young
age, together with the alcohol consumption, should be considered to be substantial
and compelling circumstan ces to justify a departure from the prescribed minimum
sentences. No evidence or submission was made on how consumption of alcohol
affected his fac ulties and moral blameworthiness .
[17] In respect of the personal circumstances of the accused, the court in Vilakazi4
made the following observation s:
“In cases of serious crimes, the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it b ecomes
clear that the crime is deserving of a substantial period of imprisonment the
question whether the accused is married or single, whether he has two
children or three, whether or not he is in employment, are in themselves
4 S v Vilakazi 2009 (1) SACR 552 at 574 d.
largely immaterial to what t hat per iod should be, and those seem to me to be
the kind of flimsy grounds that Malgas said should be avoided. But they are
nonetheless relevant in another respect. A material consideration is whether
the accused can be expected to offend again.”
[18] While the accused had been granted bail by this Court, it did not escape the
observation of the court that he was brought into court by correctional services
officials. Subsequent to his conviction , it was submitted that he had no previous
convictions and should therefore be regarded as a first offender . However, on
further probing by the cou rt, it transpired that while he had not yet been convicted of
any offence on 2 December 2015, he had already committed a violent crime which
he committed on 7 October 2015 for which he was convicted on 2 June 2016 . That
violent crime was an assault with in tent to do grievous bodily harm . He was
sentenced to pay a fine of R2000.00 or to serve 6 months imprisonment. That
sentence was wholly suspended for 2 years on condition that he was not convicted
of any offence of assault committed during the suspension period. It must therefore
be accepted that between the 7 October 2015 and th e 2 December 2015, a period
of less than two months, the accused had committed a number of violent crimes
which were, in their very nature, profoun dly serious offences. I do not think that in
the exercise of its sentencing discretion , the court should ignore that history.
[19] The accused’s disregard for societal rules for peaceful and safe co -existence
and his disregard for the law in general did no t end with that history. The accused
was granted bail by this Court on 24 March 2021 . His warrant of liberation was
signed by the Registrar of this Court on 31 August 2021 according to the Registrar’s
official date stamp. On 24 November 2021, less than thr ee months after his warrant
of liberation was signed and he walked out of prison, he committed four very
serious offences for which he was convicted on 19 October 2023. These were
aggravated robbery, murder , unlawful possession of a firearm and unlawful
possession of ammunition. What this means is that had this Court not granted him
bail, he would not have killed his murder victim on 24 November 2021. This is the
very point that Mrs K[...] made in her evidence. As indicated earlier , she expressed
fear that if the accused is given a light sentence, he might return to the community
and do to other children what he did to her children. That , in my view, is very
profound and relevant consideration and this Court would be remiss in giving the
interests of society due weight , if it did not consider all these facts as relevant
circumstances in the consideration of appropriate sentence s.
[20] I am even prepared to go as far as to say that while our courts must consider
the fact of an accused being a first offender, they should also our take into account,
as part of what is considered to be the interests of society, the accused’s general
disregard for law and order before and after the offence for which he stands trial , if
he gets convicted of serious crimes while standing trial . Courts should not, on the
technical basis that the accused had not yet been convicted of any serious offence
as at the date on which the offences in the matter before it were committed , ignore
his general disregard for law an d order and the rules which the society has set for
mutual co -existence. Doing so would, be paying lip service to the interest s of
society as a sentencing consideration in my respectful view . The accused in this
matter had no previous conviction when he committed these offences. However, he
had already committed a very serious offence for which he was later convicted
while standing trial in this matter. These are , in my respectful view, very serious and
relevant aggravating circumstances, it being irrelevant that the conviction in respect
of the earlier offences happened after these offences had already been committed
due to the fact that our criminal justice systems tends to grind dizzyingly too slow as
clearly demonstrated by the fact that it has taken ten years to convict the accused
in this matter .
[21] To borrow from the eloquence of Nugent JA in Vilakazi, a material
consideration is whether the accused can be expected to offend again. Th e society
is currently grappling with the very serious issue of recidivism , which is the
tendency of convicted criminals to reoffend which anecdotal evidence suggests,
has become too common. In this matter the accused spent more than five years in
pre-conv iction and pre -sentence incarceration. The period he spent in prison did not
teach him anything about respect for law and or der and the right to life which is why
he committed very egregious offences while on bail . That is a truly relevant
consideration , which at the very least, is a clear demonstration of his propensity to
comm it violent crimes. In addition to his long list of criminal behaviour s, three lives
have needlessly been lost in his hands including the death of the K[...] young girls
one of whom was also raped by him. He clearly is a very dangerous criminal from
whom the society is entitled to expect protection from this Court.
[22] It has been said that sentencing an offender, especially one who has been
convicted of suc h serious offences is the most difficult part of a criminal trial. The
gruesomeness of the offences in this matter make s it even more difficult , especially
if regard is had to the fact that the victims were innocent young girls . They were
brutalized in the way in which they were murdered . C[...] was also raped which was ,
on its own , a very painful experience for any woman let alone the young gir ls of the
ages that C[...] and S[...] were. It is very difficult to get a very good sense of the fear
that they went through while the entire ordeal was taking place until they took their
last breath.
[23] In Prins5 the Supreme Court of Appeal expressed itself as follows:
“No judicial officer sitting in South Africa today is unaware of the extent of
sexual violence in this country and the way in which it deprives so many
women and children of their right to dignity a nd bodily integrity and, in the
case of children, the right to be children ; to grow up in innocen ce and, as
they grow older , to awaken to the maturity and joy of ful l humanity. The
rights to dignity and bodily integrity are fundamental to our humanity and
should be respected for that reason alone . It is a sad reflection on our world,
and socie ties such as our own, that women and children have been abused
and that such abuse continues, so that their rights require legal protection by
way of international conventions and domestic laws , as South Africa ha s
done in various provisions of our Constitution and in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007.”
[24] Both S[...] and C[...] are not here to tell us what happened to them . This is
because after they were abused in the most horrible manner, they were brutally
murdered by being stabbed so many times to ensure that they would not surv ive to
tell anyone what happened in the morning of the 2 December 2015 . They are not
5 Director of Public Prosecutions, Western Cape v P rins and Others 2012 (2) SACR 183 (SCA) at
186 f-h.
here to tell us how they left the homestead in which there was a traditional
ceremony. They are not here to explain how they were taken to Nqadu forest . S[...]
cannot tell this Court how she got to have vaginal tears, and her hands tie d to the
back . At what stage was C[...] raped and when did her brutal stabbing take place .
Who was the first one to be stabbed and what was happening to the second one
while the first to be stabbed was being stabbed or if they were stabbed at the same
time. The only person who was there that early morning , on the evidence before
this Court , was the accused . He has also decided not to tell this Court how these
children d ied and why he killed them so brutally and how he took them to th at
secluded area and brutalized them so mercilessly .
[25] One of the relevant considerations when it comes to sentenc ing is the
prospects of rehabilitation . The offender in this matter was twenty years old at the
time he committed these heinous crimes . Because he was relative ly young at the
time, one would ordinarily think that there should be prospects of rehabilitation . In
Dyantyi6 Petse ADJP, as he then was, had this to say:
“[I]t has often been stressed in some circles that, when it comes to the
element of rehabilitation, one ought to move from the premise that every
human being is capable of change and transformation if offered the
opportunity and resources . See for example, in this regard, The White Paper
on Corrections in South Africa (2005) in para 424 and an article titled ‘ The
Prospect of Rehabilitation “as a substantial and compelling ” Circumstance to
Avoid Imposing Life Imprisonment in South Africa’ by Ja mil Ddamulira
Muju zi, published in the South African Journal of Criminal Justice (2008) at
1-21.
But it is, however, my view that seeds of rehabilitation can, in a manner of
speaking , germinate only if the convicted person him/herself has , first and
foremost , expressed cont rition for his/her criminal wrong doing , thereby
accepting the gravity of the criminal act of which he/she has been convicted ,
and commits to return to the path of rectitude. Without expression of
contrition, any hope of rehabilitation becomes illusory and thus an unrealistic
6 S v Dyantyi 2011(1) SACR 540 (ECG) at 551 para s 25 to 26 .
expectation , and not merely a speculative hypothesis , as the learned author
Mujuzi sums it up in his article on the prospect of rehabilitation in South
Africa.”
[26] Thando Mgqobozi has not expressed any remorse at all , and so it is not even a
relevant consideration. There is absolutely nothing on which anyone can have any
vain hope that there could possibly be a chance that he can be rehabilitated. He is
just a hardened cowardly criminal who sees nothing wrong with brutalising young
girls for personal sexual gratification and the twisted joy in murdering his victims to
hide his criminal conduct . He has not said anything or done anything to suggest
even remotely, that he regrets his actions and what he did in the early hours of the
morning of the 2 December 2015. There can therefore be no talk of the presence of
substantial and compelling circumstances , on the facts of this case . It follows that
the prescribed minimum sentences must be imposed .
[27] In Makhokha7, Madlanga J, writing a unanimous judgment of the Constitutional
Court , explained the application of section 39 of the Correctional Services Act in
respect of determinate sentences as follows:
(16) Turning to the direction that the applicant’s sentences run consecutively,
this is contrary to the provisions of s 39 of the Corr ectional Services Act.
Section 39(2)(a) provides:
‘Subject to the provisions of paragraph (b), a person who receive s
more than one sentence of incarceration or receives additional
sentence s while serving a term of incarceration, must serve each
such sente nce, the one afte r the expiration, setting aside or remission
of the other, in such order as the National Commissioner may
determine , unless the court specifically directs otherwise, or unless
the court directs such sentences shall run concurrently but –
(i) any determinate sentence of incarceration to be served by any
person runs concurrently with a life sentence or with a sentence of
7 S v Makhokha 2019 (2) SACR 198 ( CC) at 203 g to 204 a to e.
incarceration to be served by such person in consequence of
being declared a dangerous criminal; ….’
(17) In Mashava here is what the Supreme Court of Appeal said of para (a)
(i) of the section:
‘The provision is clear . Any determinat e sentence of incarceration,
imposed in addition to life imprisonment, is subsumed by the latter.
This is logical and practical. A person only has one life and a
sentence of life imprisonment is the ultimate penal provision.’
(18) Thus, the regional magistrate lacked the legal competence to direct that
the 15 -year term of imprisonment should commence to run after
completion of the sentence of life imprisonment. To that extent, the
regional magistrate’s direction exposes the applicant to the possibility of
only starting to serve the 15 -year term of imprisonment upon release –
possibly on parole – from life imprisonment. This, in circumstances
where – because of the lack of competence to make the direction – the
15-year term of imprisonment would have commenced to run on the date
of sentence and concurrently with the term of imprisonment. For reasons
expressed earlier, the regional magistrate’s direction constitutes a
deprivation of freedom arbitrarily or without just ca use, in contravention
of s 12(1)(a) of the Constitution.”
[28] I am referring to the case of Makhokha to deal with the accused’s legal
representative’s submission that I should make an order for the sentences to run
concurrently. Having determined that substantial and compelling circumstances
justifying a departure from the prescribed sentences of life im prisonment in respect
of counts three, four and five, it becomes superfluous for a court to order any
sentence imposed together with a life sentence to run concurrently with such term
of life imprisonment.
[29] In the result the appropriate sentence s are as follows:
1. In respect of count one, the kidnapping of S[...] K[...], you are sentenced to 5
years imprisonment.
2. In respect of count 2, the aggravated robbery of C[...] ’s phone, you are
sentenced to 15 years imprisonment.
3. In respect of count 3, the murder of S[...] K[...], you are sentenced to life
imprisonment.
4. In respect of count 4, the murder of C[...] K[...], you are sentenced to life
imprisonment.
5. In respect of count 5, the rape C[...] K[...], you are sentenced to life
imprisonment.
6. The Registrar of the National Regist er for Sex Offenders is ordered to enter
the details of Thando Mg qobozi in the Register of Sexual Offenders in terms of
section 50 (2) of the Criminal Law (Sexual Offences and Rel ated Matters)
Amendment Act 32 of 2007 .
7. In terms of section 120 (4) of the Children’s Act 38 of 2005 and section 41 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007, Thando Mgqobozi is declared unsuitable to work with children. It is
directed that his particulars be entered in Part B of the National Child
Protection Register.
8. In terms of the section 103 of the Firearms Control Act 60 of 2000, the
accused is declared unfit to possess a firearm.
______________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearance
Counsel for the State : M.D. Nyendwana
Instructed by : National Prosecuting Authority
Mthatha
Counsel for the accused : A. Madywede
Instructed by : Legal Aid South Africa
Mthatha
Date Heard : 24 June 2025
Date Delivered : 25 June 2025