SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A253/24
(Court a quo ) Case No: CSH58/23
In the matter between:
ESETHU CAWE Appellant
and
THE STATE Respondent
Neutral citation: Esethu Cawe v The State (Case no A253/24) [2025] ZAWCHC …
(20 MAY 2025)
Coram: LE GRANGE J et NJOKWENI AJ
Heard : 9 MAY 2025
Delivered : 20 MAY 2025
Summary: automatic appeal – domestic violence – interim protection order –
contravention of s17(a) of the Domestic Violence Act 116 of 1996 – murder – Life
imprisonment – prescribed minimum sentence – substantial and compelling
circumstances to justify departure from imposition of life sentence do not exist – life
imprisonment sentence appropriate.
JUDGMENT
Njokweni AJ ( Le Grange J concurring: )
Introduction
[1] In and around July 2022 and August 2022, Ms. R[...] N[...] , a 28-year-old female
resided with her 4-year-old daughter in Khayelitsha in Clanwilliam, Western
Cape. She was in an intimate relationship with Mr . Esethu Cawe (Appellant).
[2] On 22 July 2022 at about 6pm, M s. N[...] was brutally stabbed to death by the
appellant in the presence and full view of her 4 -year-old daughter. Ms. N[...]
subsequently died because of fatal multiple stab wounds to various parts of her
body.
[3] The accused was arrested for murder ing Ms. N[...] (deceased) and contravention
of an Interim Protection order. He attempted to negotiate with the state for a plea
agreement on sentencing. His efforts were unsuccessful in that the state refused
to enter a plea bargain and proceed to prosecute the appellant. He later
appeared in the Regional Court, Clanwilliam, where he faced two co unts:
Count 1 : Contravention of section 17(a) and section 1,5,7 and 17 of the
Domestic Violence Act 116 of 1998.
Count 2: Murder in that on the 22nd of August 2022 at Clanwilliam, he unlawfully
and intentionally killed the deceased by stabbing her multiple times with a knife
all over her body causing her death unnaturally.
[4] The appellant pleaded guilty to both counts and was convicted accordingly. After
conviction, he was sentenced to 4 years for breach of the Interim Protection
Order and life imprisonment for murder.
[5] He now appeals the sentence in respect of the life sentence only.
Facts
Ad conviction
[6] In and around July 2022 the relationship between the deceased and the
appellant broke down irretrievably due to alleged various acts of domestic
violence perpetuated by the appellant on the deceased . Apparently, prior to her
death, the deceased suspected the appellant of infidelity. But when she
confronted the appellant on various occasions, the latter became aggressive,
violent and even t hreatened to kill her. The latter caused the deceased to end the
relationship with the appellant. However, it appears tha t the appellant was still
hopeful to rekindle same.
[7] It appears that t he acts of domestic violence continued and a s a result, on 26
July 2022 the deceased obtained an Interim Protection Order (IPO) against the
appellant in terms of the Domestic Violen ce Act 116 of 1998 . The IPO inter alia
prohibited the appellant from (1) entering deceased ’s house in Khayelitsha ,
Clanwilliam ; assaulting or threatening to assault, verbally abusing her. The IPO
was duly served on the appellant and as such was aware of its existence and
terms.
[8] On 22 August 2022 at 6pm, the appellant breached the terms of the IPO by inter
alia entering the house of the deceased who at the time was with her four-year-
old minor child.
[9] It appears that an argument ensued while the deceased was peeling vegetable s
in preparation of dinner for her and the minor. The appellant then grabbed the
knife from the deceased and stabbed her multiple times . The appellant stabbed
the deceased multiple times, inter alia, on her body, face, neck, b reasts, ear and
back to mention but a few.
[10] The deceased died because of the fatal stab wounds brutally inflicted on her by
the appellant in full view of a four-year-old minor child.
[11] The appellant reported himself to the police station for sta bbing the deceased to
death. He was subsequently charged in the Regional Court sitting in Clanwilliam:
Count 1 : Contravention of section 17(a) and section 1,5,7 and 17 of the
Domestic Violence Act 116 of 1998.
Count 2: Murder in that on the 22nd of August 2022 at Clanwilliam, he unlawfully
and intentionally killed the deceased by stabbing her multiple times with a knife
all over her body causing her death unnaturally.
[12] The Appellant was legally represented and despite being unsuccessful in his plea
negotiations, he pleaded guilty on the 28th of February 2024 and was convicted.
Ad sentence
[13] Various exhibits including the postmortem report depicting the nature and extent
of severity of the fatal stab wounds w ere handed in during the c ourt proceedings.
[14] The State had called various witnesses in Aggravation of sentence:
Doctor Deon Andrew Swigelaar ,
[15] He testified on the nature and extent of severity of the fatal injuries inflicted on
the deceased by the appellant, to wit multiple stab wounds on her back, breasts,
thighs, ear, face to mention but a few and that the blade of the knife was still
inside deceased body.
D[...] N[...]
[16] She is the deceased cousin . She inter alia testified on the history of domestic
violence perpe trated by the appellant on the deceased . She also advised the
deceased to obtain the IPO, which was obtained in July 2022.
[17] She is currently taking care of the deceased’s two children . Both are still
traumatised by the brutal killing of their mother, especially the younger one who
witnessed the incident . She testified they are finding it difficult to deal with her
death. In fact, she even blames the police for allegedly failing to protec t the
deceased.
Mamelo Gloria Ralinku
[18] She is the neighbor of the deceased . On 22 August 2022 she heard the cries of
the deceased and went out to investigate. She found the deceased bleeding from
multiple stab wounds . The deceased four-year-old daugh ter was also present .
On her arrival at the deceased house, she noticed the a ppellant leaving the
deceased house . She took the deceased to the hospital where she was
pronounced dead. T he death of the deceased has affected her emotionally and
psychologicall y. It also affected her well -being negatively.
Nokolong Gqokot
[19] The first police officer to arrive on the crime scene .
Ms. Booysen
[20] The regional magistrate requested a pre-sentence report from a probation off icer.
The probation officer, Ms. Booysen, confirmed the Appellant mentioned he is
sorry for killing the deceased. According to her however, the appellant failed to
show true remorse but only regretted his wrongful deeds.
[21] The court a quo found there were no substantial and compelling circumstances
to deviate from imposi ng the mandatory minimum sentence of life imprisonment.
[22] In the result, t he Appellant was sentenced to 4 years direct imprisonment in
respect of Count 1 and life imprisonment in re spect of count 2 . The sentences
were ordered to run concurrent ly.
[23] The Appellant enjoys an automatic right to appeal as he was sentenced to
imprisonment for life by the regional court under section 51(1) of the Criminal
Law Amendment Act 105 of 1997 .
[24] The Appellant however elected to file a notice of appeal against the sentence in
respect of count 2 only.
The applicable lega l principles
[25] It is trite that this Court can interfere with the sentence imposed by a lower court
if the lower court did not exercise its discretion properly and judicially. This Court
can also interfere where a misdirection has taken place, and the lower court did
not exercise its discretion at all or exercised it improperly or unreasonably.1
[26] In S v GK2 the court held:
1 S v Fhetani 2007 (2) SACR 590 (SCA); S v Nkosi 2011 (2) SACR 469 (SCA).
2 2013 (2) SACR 505 WCC
“…. that there was nothing in the Act which fettered an appellate court's power to
reconsider the matter of substantial and compelling circumstances. The values of
the Constitution were better served by an interpretation which did not fetter the
appellate court when it came to the question of the presence or absence of
substantial and compelling circumstances. To allow an appellate court to make
its own value judgment on appeal provided accused persons with greater
safeguards again st the imposition of disproportionate punishment.
[27] It is stated in S v Malgas3
‘All factors traditionally taken into account in sentencing (whether or not they
diminish moral guilt ), thus continue to play a role ; none is excluded from the
outset from consideration in the sentencing process.
The ultimate impact of all the circumstances relevant to the sentencing must be
measured against the composite yardstick (substantial and compelling) and
must be such as cumul atively justifying a departure from the standard ised
response that the Legislature has ordained. ’
Application of the legal principles to the facts
[28] It was submitted by counsel for the appellant that the court a quo erred in
concluding that no substantial and compelling circumstances exist. According to
counsel, the appellant has shown remorse by pleading guilty and his personal
circumstances are of such nature that considered cumulatively they justify the
imposition of a lesser sentenc e than the prescribed sentence of life .
[29] The appellant’s personal circumstances can be described as follows:
3 2001 (1) SACR at page 471 para f -g
a. He was 26 years old on the date of the commission of the offence and 27
years old at the time of being sentenced.
b. He is a first offender. T here is no indication that he has been involved in the
commission of crimes up until now. According to his counsel he has a better
prognosis for rehabilitation and is less of a threat to society than a serial
offender.
c. Appellant has two siblings and had a stable upbringing with a good support
system
d. He was in a relationship with the mother of his three -year-old daughter. She
is curr ently studying at the University of Nelson Mandela.
e. His child resid es with her maternal grandmother in the Eastern Cape, who
receives a child support grant . He is also assist ing financially.
f. He was in a relationship with the deceased . The deceased was ap parently
also in a relationship with her child’s father. He also assisted the deceased
financially.
g. He resided at Khayelitsha.
h. He was employed at Patrysvlei farm and his earning s were R4000 per
month.
i. He handed himself shortly after the incident to the police and cooperated
with the police and pleaded guilty.
j. He has scholastic achievement of grade 11 and if a chance arises , he would
complete grade 12.
k. He was in custody for one year and six months until he was sentenced.
[30] Counsel for the appellant conceded that the crimes of which the appellant has
been convicted are serious and the interest of society must be reflected in the
sentence. It was also contended that notwithstanding such seriousness, the
imposition of sentence must be a balanced proces s and consider the appellant’s
circumstances. I agree with the latter submission.
[31] The court a quo gave a full and detailed judgment on sentence. It carefully
considered each factor in mitigation and aggravation and properly considered the
appellant’s personal circumstances.
[32] The crime the appellant committed is indeed very serious . The deceased was
viciously stabbed multiple times in her own ho me. To make matters even worse,
the appellant did so in front of her 4-year-old girl child. The appellant showed the
deceased and her minor child no mercy.
[33] The little girl has been scarred for life. She was displaced from her friends and
the comfort of her home where she peacefully resided with the deceased. No
person let alone such a young child should be subjected to such brutality . The
psychological trauma suffered by the child cannot be ignored and is an
aggravating factor.
[34] It is precisely these kinds of crimes that which the legislature deemed nece ssary
to prescribe mandatory minimum sentence of life imprisonment.
[35] The court a quo, in my view, correctly found that no substantial and compelling
circumstances exist that justify deviation from the prescribed minimum sentence .
Conclusion
[36] For all the reasons state d above, the appeal cannot succeed. In the result the
following order is proposed.
1. The appeal against sentence in respect of count 2, Murder , is dismissed.
_____________________________
P NJOKWENI
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_____________________________
A LE GRANGE
JUDGE OF THE HIGH COURT
APPEARANCES:
For appellant: Adv Abdurah man
Instructed by: Legal Aid South Africa
Cape Town Justice Centre
For respondent: Adv C Monis
Instructed by: NDPP , Cape Town.