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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, JOHANNESBURG
HELD AT PALM RIDGE

Case No: SS 77/2024
DPP Ref: 10/2/11/1-2024/52
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
14 AUGUST 2025

In the matter between:

THE STATE

V

M[…], J[…] K[…] Accused


JUDGMENT ON SENTENCE


MAHOMED J:

INTRODUCTION

[1] The accused is found guilty of murder, read with section 51(1) and Part ll
schedule 2 of the Criminal Law Amendment Act 105 of 1997, and further read with

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sections 258 and 270 of Act 51 of 1997. I found that the murder was premediated.
The accused is further found guilty of assault with intent to do grievous bodily harm,
read with section 51(2) and part lll of schedule 2 of the Criminal Law Amendment Act
105 of 1997. On the night of 25 February 2024, the accused murdered his girlfriend
with a kitchen knife and brandished that same knife at her minor child and cut his
hand when the child tried to disarm him of the knife.

[2] When sentencing the convicted person, the court is to consider the offender,
the offence and the interest of society. See S v Zinn 1969 (2) SA 537 (A). The
accused pleaded guilty to the charges, he stated in his plea explanation that he was
of diminished capacity at the time as he and the deceased were in a heated
argument at the time. However, the state refused to accept his plea explanation and
the state at the trial proved beyond reasonable doubt that the murder was
premediated.

THE LAW

[3] Section 51 of Act 105 of 1997 provides that, notwithstanding any other law,
but subject to subsections (3) and (6), a regional court or a High Court shall
sentence a person:
(a) If it has convicted a person of an offence referred to in Part 1 of
Schedule 2, or
(b) …shall sentence the person to imprisonment for life.

[4] Subsection 3 (a) of the Act provides that if any court referred to in subsection
(1) or (2) is satisfied that substantial and compelling circumstances exist which justify
the imposition of a lesser sentence, the court shall enter those circumstances on the
record of the proceedings and must then impose such lesser sentence. The court is
permitted to exercise a discretion, however there is no definitive answer to what are
substantial and compelling circumstances. The court must have regard to the facts of
the case in the particular circumstances of the accused which would convince a
court that it may deviate from the prescribed sentences. The Act’s purpose is to mete

court that it may deviate from the prescribed sentences. The Act’s purpose is to mete
out effective punishment in relation to the crime committed, it aims as combatting
serious crimes. In S v Vilikazi 2009 (1) SACR 552, the court explained that the

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particular factors whether mitigating or aggravating, should not be taken individually
and in isolation as being substantial and compelling. The court must look at the
cumulative effect of those factors to be considered. The Supreme Court of Appeals
has, however stated that the court may not move away from imposing the minimum
sentence on “flimsy reasons”. Therefor the imposition of the mandatory minimum
sentence must be approached with caution. Courts are enjoined to adopt the
proportionality test, having regard for the offence, the offender and the interest of
society.

[5] In an appeal against a sentence of life imprisonment, the court in S v Malgas
2001 (1) SACR 469, the court stated,
" the circumstances in which the crime was committed are undoubtedly such
as to render it necessary to impose a sentence of imprisonment for life unless
substantial and compelling circumstances justify a lesser sentence. The court
held that the 'shooting was premeditated and planned'. The fact that the
planning and premeditation occurred not long before the deed was
accomplished cannot alter that. It was also carried out in the execution of a
common purpose to kill the deceased. Giving all due weight to the enormity of
the crime and the public interest an appropriately severe punishment being
imposed for it, the court considered that the personal circumstances of the
accused (her relative youth, her clean record and her vulnerability to Carol's
influence by reason of her status as a resident in the latter's home at the
latter's pleasure) and the fact that she was dragooned into the commission of
the offence by a domineering personality are strongly mitigating factors. "As a
fact she gained nothing from the commission of the crime. Her remorse
cannot be doubted and her spontaneous confession which brought to light the
commission of a crime which would otherwise have gone undetected is
deserving of recognition in a tangible sense. She is young enough to be

deserving of recognition in a tangible sense. She is young enough to be
rehabilitated and there is a real prospect even after a long period of
imprisonment. These circumstances, cumulatively regarded, satisfied the
court that a sentence of life imprisonment would be unjust. They qualify
therefore as substantial and compelling circumstances within the meaning of
the provision. None the less, it remains a particularly heinous crime of the kind
which the legislature has singled out for severe punishment and the sentence

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to be imposed in lieu of life imprisonment should be assessed, paying due
regard to the benchmark which the legislature has provided."

[6] In S v Vilakazi 2009 (1) SACR 552 (SCA) at para 58, Nugent JA said the
following: In cases of 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 in employment are in themselves largely immaterial to what that period
should be, and those seem to be the kind of flimsy grounds that S v Malgas case
said should be avoided. But they are nonetheless relevant in another respect .” It is
also important to consider whether the accused can offend again and what chances
if any are there of his rehabilitation.

Substantial and Compelling Circumstances

[7] It is ultimately a court’s task to achieve a balance against all the competing
factors to arrive at a just sentence. Mr. Ngxumza submitted that the court must
consider the personal circumstances of the accused and have regard to the
conspectus of the evidence in arriving at the sentence to be imposed, he contended
that there are good grounds for this court to move away from imposing the maximum
sentence of life imprisonment. Counsel submitted that the accused is 40 years old
and when the incident occurred, he was employed as a truck driver with a company
he had worked for 5 years. The accused completed grade 12 and the court must
note that he lost his father when he was 6 years old. He earned R6 000 per month,
with which he supported his elderly mother, his two sisters who were unemployed
and his 10 children, who were from different mothers. I noted the factors and that n o
other evidence to support his personal circumstances was placed before this court .

other evidence to support his personal circumstances was placed before this court .
The deceased’s sister testified at sentencing that since her sister’s murder, she had
taken over care of Owami, who was the accused’s child he had with her sister, and
she received no monies since her sister’s death, from the accused or his family on
behalf of Owami, who was 6 years old. According to her, after the minor child lost his
mother he has suffered serious emotional challenges and has on occasion told her
daughter that when he grows older he will kill his father who had murdered his

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mother and caused him such distress. She testified that the school has complained
to her that he often cried and falls off to sleep during his classes. Although she has
enrolled him for therapy, she did not see much improvement in his condition.
Counsel for the state disputed that the accused was a primary caregiver and referred
this court to the decision in S v Chetty 2013 (2) SACR 142 (SCA) where the court
stated that a primary caregiver is understood to be someone who lived with the child
and did normal parenting duties for the child. The children testified that the accused
only occasionally visited their mother, at their home. He cannot be said to have been
their primary care giver.

[8] Having regard to the offense, C ounsel submitted that his client had played
open cards with the court and admitted guilt, he argued that his client and the
deceased were in an argument about her having an affair, and the accused felt
cheated and upset, he ‘found a knife in the kitchen sink” and instinctively stabbed at
her. The children, who corroborated one another, testified that they heard their
mother shout out to the accused, to call the person with whom he suspected she
was having an affair. The accused made no call , instead he chose to resort to
violence to resolve his dispute. According to the children’s testimony they heard
them argue in the dining room , the deceased was found dead on the kitchen floor, it
is a reasonable to infer that he moved toward the kitchen to find the knife with which
he killed her . The photographs are taken in the kitchen, with the cutlery draw is on
the floor, alongside the deceased’s body, this confirms that the accused looked for a
knife, the events continued in the kitchen where he was sure to find a knife and knew
that he would succeed in his plan to kill the deceased. He lied that he found a knife
in the kitchen sink and instinctively used it to kill the deceased.

in the kitchen sink and instinctively used it to kill the deceased.

[9] The children’s evidence is that they heard their mother plead with the accused
not to hurt her and she shouted out to Lethabo to seek help. The security guard
testified that the neighbours reported to him that they heard a lot of noise from their
deceased’s home and alerted him to investigate. Obviously, the children and the
deceased were shouting out in fear and for help, they were under threat. The
accused shouted out he was going to kill the deceased, he called the children out of
their room and they corroborate one another, that he told them that he was going to
kill their mother and himself and further traumatised them by telling them they would

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be left to fend for themselves. The forensic report recorded 15 stab wounds on the
deceased upper body . The photographs demonstrate she was lying in a pool of
blood, partially dressed and her hair all ruffled. It is reasonable to infer that there was
struggle and as argued by the state, the deceased was dragged to the kitchen,
where a knife could be found and she was be killed. This is a premeditated and
brutal murder of a woman, t he accused’s submissions that he was of di minished
capacity stands to be rejected, he had much time to withdraw and review his actions
and his mindset, the events as they unfolded demonstrate a person with full
knowledge of his actions, having a presence of mind and on mission to execute his
plan, as he advanced to the kitchen.

[10] He “c hose” not to resolve his problem by making a call to clarify the facts ,
instead he chose to destroy several lives, including that of his own child, of 5 years
old. Counsel for the accused referred to various cases, some of which predated our
constitution, when life sentences were reduced. I noted the facts and reasons in the
judgments, however the facts in this case juxtaposed to the options available to the
accused at the time, and the brutality, which the children also suffered, I find no
substantial and compelling circumstances to move away from the imposition of the
maximum sentence of life imprisonment.

[11] I agree with counsel for the state, that there are no extra ordinary facts to
justify a move away from the mandatory sentence, the accused lied that the found a
knife in the kitchen sink, by all accounts he went to find his knife and brutally
murdered the deceased in the presence of her three minor children. They were all
helpless victims; the children are left with the indelible scar of a bloodied murder of
the mother they loved and relied on for their security and comfort. Our people are
crying out to the courts and the police services to help restore their faith in humanity

crying out to the courts and the police services to help restore their faith in humanity
and help build a better future for all, violence destroys the fabric of our society and
forces even minor children, as in this case, to “seek revenge” for their justice. The
children saw their mother injured and gasping for breath, she was still alive but the
accused assaulted her again, and finished off his plan.

[12] On that fateful night, Lethabo, the deceased’s minor child who tried to disarm
the accused, was injured when the accused cut his hand, as he brandished the knife,

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he used to kill his mother with, at him. The further evidence is that he tried to prevent
the security guard from assisting them, as he ordered Lethabo to block the door and
to prevent anyone from entering their home.

[13] The Criminal Law Amendment Act 105 of 1997 prescribes a variety of
minimum sentences to be imposed by our courts in respect of a wide range of
serious and violent crimes. In terms of schedule 2 part 1 of Act 105, the count of
murder with premeditation, attracts a sentence of life imprisonment. Having regard to
the facts of this case and the corroborated evidence of the brutality involved, the
impact on several lives and the nature of the crimes, the sentence of life
imprisonment is appropriate. The evidence is that the deceased was an ambitious
person, with a stable job and was still pursuing further studies to improve her
qualifications. She was compassionate and responsible, she even took over the care
for Letabo, her late sister’s son. The victim impact reports demonstrate the sad
reality that the children face, without their mother and they are scarred for life with
the memory of watching her on the floor, in her blood, begging not to be injured,
struggling to find help from the security at the door, gasping for breath, until she was
robbed of her life. The children miss her, remember what she had done for them, she
provided a strong foundation to all three of them, they have lost her and even one
another, as each now lives with different members of the family in different parts of
the country. The evidence is that their studies have been compromised, they live
with deep psychological scars and are forced to adapt to their new environment, in
their short lives. Lethabo, as counsel for the accused conceded is 15 years old, and
is being cared for by his “third mother”.

[14] He w rote, “I was a happy boy.. I still dream of the incident… I no longer
receive gifts…my school results are dropping… I miss her so much that I can fight

receive gifts…my school results are dropping… I miss her so much that I can fight
justice for M […] L[…] M[…] ..” The deceased’s sister who testified on sentence, a
member of the public and society whom the court must consider, was still emotional
about her sister’s death after the many months. She testified that the accused
showed no remorse, none of his family sympathised with her or even Owami. She
testified that she was happy to carry his expenses herself, but was adamant that the
accused must be held to full account for her sister’s brutal and untimely death.

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[15] A dvocate Phatlanyane submitted that the court ought not to be swayed by
the fact that the accused pleaded guilty to the charges, it cannot be a mitigating
factor in this case. She submitted that no previous convictions were recorded against
this accused, he is a first offender, but the court must note that he was caught “red
handed”, both literally and figuratively, his guilty plea was his only option. She
submitted that the brutality of the offense cannot be ignored, the scourge of gender -
based violence in our society, has destroyed its very fabric, the society is looking for
justice and its children are looking for a future. Counsel referred the court to S v
Vilikazi, supra, and submitted that the court stated that once it is established that the
crime is deserving of the sentence, a first offender, a parent to two or three children,
and the usual factors often advanced in mitigation can only be “flimsy grounds” . She
argued this was a brazen and brutal attack on the deceased and a life destroying
experience of the lives of the three minor child, who were present in the home and
forced to live every aspect of this incident, they could do nothing to assist their loved
one. In my view t he accused had no regard for this very critical fact, he could hear
them and the deceased shouting to stop. The state submitted the accused must be
given a sentence of life imprisonment. On an analysis of facts before me, I agree, I
find no substantial and compelling circumstances to justify a deviation from the
prescribed sentence.

[16] Accordingly, the accuse on a charge of premediated murder ( read with the
provisions of s51(1) of the Criminal Law Amendment Act 107 of 1997), is hereby
sentenced to life imprisonment.

[17] Fur thermore, the accused on a charge of assault with intention to do grievous
bodily harm, read with s 52 is sentenced to 15 years imprisonment, the sentences
are to run concurrently.

Mahomed J
JUDGE OF THE HIGH COURT
JOHANNESBURG

are to run concurrently.

Mahomed J
JUDGE OF THE HIGH COURT
JOHANNESBURG

Date of Judgment: 4 August 2025
Date of Sentence: 1 4 August 2025

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Appearances
For the state: Adv Phatlanyane
For the defense: Adv Ngxuma
Legal Aid