IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: CC62/2021
In the matter between
The State
and
1. Sipho Goodwill Mthethwa [deceased]
2. Khumbulani Mpofu
3. Jabulani Jones Tshabalala [acquitted]
SENTENCE
[1] Accused 2 is found guilty on the following charges:
1. Counts 1 and 2: The kidnapping of Ediemore and Sydney Ncube;
2. Count 3: Robbery with aggravating circumstances of a motor vehicle,
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
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DATE SIGNATURE
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read with the provision of section 51(2) of the Criminal Law Amendment
Act, Act 105 of 1997 , as per the indictment as well as the charge
ultimately put to the accused;
3. Counts 4 and 5: The theft of R10 000 and R4 000 respectively;
4. Counts 6 and 7: The murders of Sydney and Ediemore Ncube read with
the provision of section 51(1) of Act 105 of 1997.
[2] Section 51(2) of Act 105 of 1997 provides for a minimum sentence of 15
years of imprisonment for a first offender of robbery with aggravating
circumstances. Section 51(1) of Act 105 of 1997 provides for a sentence of life
imprisonment when certain circumstances are present ; that is murder when it
was planned or premeditated; or the death of a victim was caused while
committing or attempting to commit robbery with aggravating circumstances.
[3] The prosecution did not allege in the indictment that the murders were
planned or premeditated, and the Court did not find as such. The combination
of charges however triggers life imprisonment in respect of the murder charges.
[4] In terms of section 51(3) of Act 105 of 1997 , a court must impose a lesser
sentence than the prescribed minimum , if a court is satisfied that substantial
and compelling circumstances exist that justifies the imposition of a lesser
sentence.
[5] In S v Malgas 2001(1) SACR 469 (SCA) the court held that sentences are
not to be departed from lightly, and for flimsy reasons. It was left to the courts
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to decide whether the circumstances of a particular case called for a departure
from the prescribed sentence. All factors traditionally considered continues to
play a role. When a sentencing court is satisfied that the circumstances of a
case renders the prescribed sentence unjust in that it would be disproportional
to the crime, the criminal and the needs of society, so that an injustice would
be done by imp osing that sentence, a court is entitled to impose a lesser
sentence.
[6] A pre-sentence report was submitted by the defence. The accused was born
in 1968. He has two minor children aged 8 and 7 who are attending school. He
is in a customary marriage. At the time of his arrest he was self employed as a
motor vehicle mechanic, earning an income of between R10 000 to R20 000
per month. He was supporting his unemployed wife and children at the time of
his arrest. The accused completed Form 5 in Zimbabwe , the equivalent of
grade 12 in South Africa. The accused was arrested on 08 August 2019 and
has been in custody since. He has one previous conviction for theft in 2016
and for which an admission of guilt fine was paid in the amount of R300. The
pre-sentence report indicated that the accused had suffered from some
unknown mental illness as a child, and that since he came to South Africa, he
has not received medical attention for such illness, or sought any treatment.
[7] It was argued on behalf of the defence that the fact that he has two minor
children to support, and the fac t that he has been held in custody for the
duration of the trial , amounts to substantial and compelling circumstances,
justifying the imposition of a lesser sentence than the prescribed minimum.
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[8] The prosecution presented the evidence of Tshugai Mongomrimbo, who
testified about the emotional loss and trauma suffered by herself, her two
daughters and the rest of the Ncube family after the death of the two brothers.
She lost her employment after her husband’s death , as she could not cope
emotionally with his death. She further read out letters written by her daughters
elaborating on the loss they suffered after being left fatherless.
[9] The prosecution argued that there are no substantial and compelling
circumstances present. The prosecution further referred this court to numerous
cases in which sentences of life imprisonment was upheld on appeal. She
argued that the lengthy delays ca used by the accused cannot justify the
imposition of a lesser sentence. Further, that it was only during consultation
with the social worker, that the accused had made mention of mental illness
and that no proof was presented to the court regarding this alleged mental
illness. It was further pointed out that the pre-sentence report was limited to the
personal circumstances of the accused, and did not account for the trauma
suffered by the victims, nor the impact on the community.
[10] In reply, on behalf of the accused, it was argued that not al l of the delays
were caused by the accused. Further, that the pre -sentence report was
specifically requested on behalf of the accused in order to deal with his
personal circumstances. The defence argued that it was for the prosecution to
obtain victim impact reports for sentencing purposes.
[11] The pre-sentence report is the first mention made as to the mental health
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illness of the accused. The prosecution placed in dis pute that the accused
suffers from a mental health illness, after which the court refused another
postponement for the defence to se ek proof of this averment in the pre -
sentence report. The following was held in S v Olivier 2010(2) SACR 178 (SCA)
in this regard:
“Held, that during the sentencing phase as much information as possible
regarding the perpetrator, the circumstances of the offence, and the
victims, was to be placed before t he court. Material factual averments
ought, as a general rule, to be proved on oath. Minor and uncontentious
issues could readily be disposed of in oral argument, but any ex parte
averments by the defence which were at variance with the State's
information ought to be unequivocally disputed. An accused or his or her
legal representative should be alerted timeously about disputed facts,
so as to enable them to adduce oral evidence if necessary. The practice,
whereby prosecutors sometimes permitted defenc e averments that
were at variance with information in the docket to remain unchallenged,
was to be deprecated.”
[12] The accused has had three counsel representing him. None of the counsel
raised his mental health as an issue since this court comme nced with the trial
on 05 May 2022, and neither did the accused himself. He allegedly suffers from
a mental health illness, but is unable to provide the name of the illness he
suffers from , according to the pre -sentence report . He further did not seek
medical treatment for the alleged mental health illness since he took up
residence in South Africa.
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[13] It was never raised that the accused suffers from a mental health illness,
or that he may not be able to follow court proceedings as a result of such mental
health illness. It was also not his defence that he acted or failed to act due to
him suffer ing from a mental health illness. The accused’s version is in any
event that he was not involved in this matter.
[14] The accused was for some time during the trial representing himself. He
is fluent in English and came across to the court as a very intelligent individual.
He did not raise any alarms with the court during the period in which he had
represented himself, in that the re may be a mental health issue. He asked
relevant questions to witnesses, answered questions appropriately, and called
a relevant witness in his defence regarding his eye sight. The court observed
that the accused took notes throughout the trial, and had handed in his o wn
typed arguments at appropriate stages during the trial. These arguments were
well thought through, and did not ra ise any al arm with the court that the
accused was not fit to stand trial, or that he did not follow court proceedings.
[15] In Radebe v The State (A219/2015) [2015] ZAGPPHC 792 (23 September
2015) the court held at par [9] with regards to pre-sentence reports:
"It is evident that pre-sentence reports are meant to provide guidance to
the exercise of the discretion which a court has to exercise properly and
judicially when sentencing a convicted offender. The reports assist a
presiding officer to understand the offender and the reasons for the
crime -this being one of the triad of factors that the court has to consider
when deciding on an appropriate sentence. These reports are called for
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where a court feels the need to be better informed about the character
and the possible future of the offender. An ideal pre -sentence report
must embody all the necessary information relevant to the offender, the
victim and the community. To be able to decide on an appropriate
sentence the sentencing court needs to have sufficient information such
as information relating to mitigating and aggravating factors.”
[16] The pre-sentence report in the matter before this court, was requested by
the defence. It follows that such a report will therefore mostly deal with the
personal circumstances of the accused. It seems to this court that the request
that was made for the report was limited to the personal circumstances of the
accused. Even though the pre-sentence report only deals with the personal
circumstances of the accused, it does not follow that it carries no weight. The
defence requ ested the report and was presented during the case for the
defence in mitigation of sentence. It was for the prosecution to decide whether
or not to obtain victim impact reports for sentencing purposes , which would
deal with the impact of the crimes on the victims. The prosecution in any event
called a witness in aggravation of sentence, and submitted letters.
[17] In S v Zinn 1969(2) SA 537 (A) the court established the ‘ triad’ of factors
to be considered during sentencing: that is the nature of the crime, the personal
circumstances of the offender, and the interests of society. The interests of
society are reflected in deterrence, prevention, rehabilitation and retribution.
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[18] The personal circumstances of the accused are nothing more than the
traditional factors. It is the view of this court that the only relevant circumstance
to consider is the per iod which the accused has alrea dy been in custody. It is
a lengthy period that he has been held in custody awaiting the finalisation of
the trial. In S v Mqabhi 2015(1) SACR 508 (GJ) the court formulated the
following guidelines:
“(a) Pre-sentence detention was a factor to be taken into account when
considering the presence or absence of substantial and compelling
circumstances for the purposes of the CLAA. (b) Such period of
detention was not to be isolated as a substantial and compelling
circumstance but had to be weighed as a mitigating factor, together with
all the other mitigating and aggravating factors, in determining whether
the effective minimum period of imprisonment to be imposed was
justified in the sense of it being proportionate to the crime committed. If
it were not, then the want of proportionality constituted the substantial
and compelling circumstances required under section 51(3). (c) The
reason for the prolonged period of pre-sentence detention was a factor.
If the offender were responsible for unnecessary delays then this might
redound to his detriment. (d) There was no mechanical formula or rule
of thumb to determine the period by which a sentence was to be
reduced. The specific circumstances of the offender, which might
include the conditions of his detention, were to be assessed in each
case when determining the extent to which the proposed sentence
should be reduced. (e) Where only one serious offence was committed,
and assuming that the offender had not been responsible for unduly
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delaying the trial, then a court might more readily reduce the sentence
by the actual period in detention prior to sentencing.”
[19] In S v Ludidi and others 2025(1) SACR 225 (SCA) it was held that:
“Where a sentence of life imprisonment was to be imposed in ter ms of the
Criminal Law Amendment Act 105 of 1997, the perio d in custody as
awaiting trial prisoners was not in it self a substantial and compelling
circumstance justifying deviat ion, unless this was an exceptionally long
period of time to which the conduct of the accused persons had not
materially contributed.”
[20] The court is of the view that this factor alone does not justify a departure
from the minimum sentences, and therefore find no substantial and compelling
circumstances. It is so that the accused d id not cause all of the delays, but
when compared to the number of crimes committed and the seriousness of the
crimes, the period held in custody prior to sentence, pale in comparison.
[21] The court however has to consider proportionality of the prescribed
sentences as well. I n this matter the two deceased were kidnapped. Their
hands and feet were tied. The deceased were tied and posed no threat to the
accused. They were however killed and the vehicle taken. One deceased was
shot from the back in the neck , while the other was shot in the back. Their
bodies were found in a veldt. An attempt was made to sell their vehicle, and
money was withdrawn from two of their bank accounts. In the view of this court,
an effective period of life imprisonment, when considering the number of
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charges and the seriousness of the charges, is not disproportional.
[22] The accused, Mr Mpofu, is therefore sentenced as follow :
1. Count 1: Kidnapping - 5 years of imprisonment;
2. Count 2: Kidnapping - 5 years of imprisonment;
3. Count 3: Robbery w ith aggravating circumstances - 15 years of
imprisonmen t;
4. Count 4: Theft-12 months of imprisonmen t;
5. Count 5: Theft-12 months of imprisonmen t;
6. Count 6: Murder - life imprisonment;
7. Count 7: Murder - life imprisonment.
[23] The accused is declared unfit to possess a firearm.
Appearances:
For Accused 2:
For the State:
Date of delivery:
LA van WykAJ
Acting Judge of the H igh Court of South Africa
North Gauteng D ivision, Pretoria
Adv Mogale
Adv D Ngobeni, OPP Pretoria
29 July 2025