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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: CA&R115/2025
In the matter between
THE STATE
and
R[...] S[...] B[...]
___________________________________________________________________
REVIEW JUDGMENT
___________________________________________________________________
KRüGER AJ:
[1] This is a review in terms of section 85(1) of the Child Justice Act 75 of 2008.
The accused, who was a minor at the time of the commission of the offences, was
convicted on 29 October 2024, on three charges: one of murder, and two charges in
terms of the Firearms Control Act 60 of 2000, relating to unlawful possession of a
firearm and ammunition, respectively.
[2] On 27 June 2025, the accused was sentenced to ten years’ imprisonment on
the murder charge, five years’ imprisonment on the charge relating to the possession
of a firearm, and three years’ imprisonment on the charge relating to the possession
of ammunition. The sentences were ordered to run concurrently. In addition, the
court declared the accused to be unfit to possess a firearm
[3] I have consider ed the merits of the conviction of the accused, and I am
satisfied that it is in accordance with justice.
[4] The question of whether the sentence is in accordance with justice requires
closer scrutiny. The court a quo imposed direct imprisonment despite t he
recommendation in the pre -sentence report that a sentence of correctional
supervision be imposed, which was supported by a finding that the accused was a
suitable candidate for correctional supervision. While section 71(4) of the Child
Justice Act permits the court to impose a different sentence than that recommended
in the pre -sentence report, it determines that the court is to enter its reasons for
imposing a different sentence on the record.
[5] The court a quo recorded its reasoning as follows: it emp hasised retribution
and deterrence as key purposes of punishment in relation to serious offences such
as those of which the accused was convicted. While it acknowledged rehabilitation
and prevention as further important purposes of punishment, it noted th at these will
play a smaller role in the imposition of a sentence for serious offences. The court
noted the personal circumstances of the accused, including the support he has from
his family and his stable family environment, his employment, his being a first-time
offender, and his youth, as mitigating factors. While mindful of the need not to over -
emphasise one of the factors of the Zinn-triad1 above others, the sentencing court
highlighted the seriousness of the offence and its prevalence in northern areas of
highlighted the seriousness of the offence and its prevalence in northern areas of
Gqeberha, where the offences took place. In the court’s view, the sentence imposed
had to deter others and punish the accused, first and foremost. This, coupled with
the court’s reading of the victim impact statement documenting the deceased’s
1 Formulated in S v Zinn 1969 (2) SA 537 (A).
family’s grief and confusion at her senseless murder, led it to conclude that
sentences of direct imprisonment were appropriate.2
[6] In my view, the court a quo’s assessment does not do justice to the
sentencing framework set out in Chapter 10 of the Child Justice Act. The sentences
that were imposed took account only of the Zinn triad, without bearing in mind the
additional principles set out in chapter 10, which were formulated particularly with
child offenders in mind.
[7] Pertinent principles set out in s ection 69 of the Child Justice Act were not
considered. For example, the court a quo failed to consider the accused’s
acceptance of responsibility for his actions as set out in the probation report.
Moreover, the court failed to consider the reintegratio n of the accused into his family
and community, and the available guidance and support, given its imposition of
direct imprisonment. While acknowledging the accused’s strong family ties, the court
did not consider the role of the accused’s family or commu nity in his reintegration
and rehabilitation. The court also did not take into account the fact that the accused,
while living in the northern suburbs for many years, steered clear of gangsterism and
illicit drugs, which plague the area. His deliberate mo ve from the area after he
completed Grade 12 in 2023, similarly, did not have an impact on its decision
regarding sentence.
[8] Notably, the sentencing court cursorily mentioned that imprisonment should
be used as a last resort, but alternative sentences, an d particularly the
recommendation of the probation officer to impose a sentence of correctional
supervision, were not seriously considered. In S v L, 3 the court held as follows in
relation to correctional supervision as a viable alternative sentence for y oung
offenders:
‘Our courts have stressed on numerous occasions that judicial officers should
not hesitate, in appropriate cases, to make use of correctional supervision. It
not hesitate, in appropriate cases, to make use of correctional supervision. It
has already been imposed for very serious crimes, including murder: S v
2 Transcribed record on sentence p 2-10.
3 2012 (2) SACR 399 (WCC) para 26.
Booysen 1993 (1) SACR 698 (A); S v Potgieter 1994 (1) SACR 61 (A); S v
Kleynhans 1994 (1) SACR 195 (O); and S v Ingram 1995 (1) SACR 1 (A). In
all of these cases the perpetrators were adults’.
The court also did not engage with the accused’s attorney’s submission to consider
imposing correctional supervision in conjunction with a suspended sentence of
imprisonment as permitted by section 69(2) of the Child Justice Act.
[9] By emphasising deterrence 4 and retribution, the court in fact saw
imprisonment as the only appropriate sentence for serious offences and effectively
treated the accused as an adult. In doing so, the court lost sight of the constitutional
injunction regarding the paramountcy of the child’s best interest, captured in the
following terms by the Supreme Court of Appeal in S v N:5
‘But the clear constitutional injunction is that we must weigh in the mix the fact
that he was only seventeen. Prison must therefore be a “last resort”. Thi s
bears not only on whether we choose prison as a sentencing option, but on
the sort of prison sentence we impose, if we must. So if there is a legitimate
option other than prison, we must choose it; but if prison is unavoidable its
form and duration shoul d also be tempered. Every day he spends in prison
should be because there is no alternative.’
[10] Non-compliance with the principles of sentencing as provided for in Chapter
10 is irregular and a breach of the principle of legality. 6 The sentences of
imprisonment must accordingly be set aside.
[11] Since the accused is imprisoned, it is evident that any further delay in the
matter will be prejudicial to him. Accordingly, the matter proceeded without further
reasons provided by the presiding magistrate to a full court for determination.
4 Terblanche A Guide to Sentencing in South Africa 3rd ed (2016) 362 expresses the view that
‘deterrence plays no role in the determination of an appropriate sentence for a child offender’.
5 2008 (2) SACR 135 (SCA) para 39. See also Centre for Child Law v Minister of Justice and
Constitutional Development and Others (National Institute for Crime Prevention and the Reintegration
of Offenders, as Amicus Curiae) 2009 (2) SACR 477 (CC) para 31.
6 S v RS 2012 (2) SACR 160 (WCC) para 30; S v Gxaleka 2013 (2) SACR 399 (ECB) paras 17-18.
[12] Section 304(2) of the Criminal Procedure Act empowers the court to, among
other things, substitute the sentence imposed with an appropriate sentence or to
remit the matter to the magistrate’s court for sentencing while suspendin g the
execution of the sentence, admitting the person to bail.
[13] In this instance, the full record was placed before this court, including the pre -
sentence report and correctional supervision report. I am thus of the view that the
court has adequate information to substitute the sentence of the magistrate’s court.
[14] There is no doubt that the accused was found guilty of serious offences,
which plague the northern suburbs of Gqeberha. Her family is devastated by her
sudden, unnecessary death. The family r emains in mourning. The deceased’s aunt
forgave the accused in her heart and trusted that he would face justice in the life
hereafter.
[15] The accused was out with friends/acquaintances in the early hours of 15
October 2023. They had all consumed alcohol. The accused’s version, which could
not be refuted by the state witness as she was too far from the group to see or hear
what happened, was that a friend handed him a firearm and told him it was real. The
accused thought it was a toy. When he asked again whether it was real, the friend
and the deceased encouraged the accused to pull the trigger. He did so, and the
bullet from the loaded firearm struck the deceased in the head, causing her death.
Shocked by what had happened, he handed the gun to his frie nd and ran home,
asking his family members to take him to the police station. Shortly thereafter, he
was arrested at home. He admitted that he foresaw that the firearm was real, but he
still pulled the trigger, reconciling himself with the consequences that followed.
[16] The offences are serious, and had the accused been an adult, imprisonment
would be the only option. In light of the sentencing principles of the Child Justice
would be the only option. In light of the sentencing principles of the Child Justice
Act, it is necessary to consider whether a suitable alternative exists. I take the
interrelated charges together for the purposes of the sentencing.
[17] The accused was found to be a suitable candidate for correctional
supervision. The accused was 17 years old when he committed the crimes. He is a
first-time offender. He grew up in a stable and loving home. His family supported
him throughout the trial. Family members described him to the probation officer as
honest, kind and respectful. He has expressed remorse for his actions and
explained that he suffers daily feelings of guilt for his actions. He obtained a
learnership after completing Grade 12 and moved away from the northern areas to
Makhanda. In Makhanda, he lived with his paternal family and contributed his
income to the expenses of the family.
[18] Sachs J in S v M (Centre for Child Law as Amicus Curiae) 7 explained that
correctional supervision, in appropriate cases, can enhance the chances of
rehabilitation of an offender and protect society better than imprisonment in
overcrowded prisons. Family life is not disrupted as it would in the instance of
imprisonment, and rehabilitation takes place in the community.
[19] Importantly, a sentence of correctional supervision is not a sentence that is
more lenient than a sentence of direct imprisonment. 8 Conradie J, quoted with
approval by Sachs J in S v M, stated the following about correctional supervision:
‘In some ways it is harder than imprisonment. A cynic once said that the
easiest life on earth is being a soldier or a nun: you only have to obey o rders.
Prison is like that. A model prisoner is the one who best obeys orders. These
are not ideal circumstances, generally, for the regrowth of character.
Correctional supervision gives an offender greater scope for regrowth of
character. It involves a go od deal of psychological strain, it takes a great deal
of restraint and determination on the part of a probationer. It can be very
stressful. A probationer does not have his freedom - far from it - but he is not
cut off from the community altogether. His s upport systems are not destroyed
cut off from the community altogether. His s upport systems are not destroyed
and in this way his rehabilitation prospects are enhanced. Moreover, there is
the benefit that society does not lose the skills of someone who is able to
7 2007 (2) SACR 539 (CC) paras 61-63.
8 S v R 1993 (1) SACR 209 (A) 221h; S v L paras 27-28.
maintain himself and his dependants, as well as the family unit. Comm unity
service, which goes hand in hand with correctional supervision, is beneficial.’
[20] In my view, a sentence of direct imprisonment will remove the accused from
the family environment and support and may negatively impact his rehabilitation and
reintegration in the community. With the Child Justice Act emphasising the latter, I
am satisfied that lengthy community service is an appropriate alternative sentence to
direct imprisonment.
[21] Section 69(2) of the Child Justice Act permits the combination of diff erent
sentences. Deterrence, while not the main purpose of sentencing of young
offenders, will be served by the imposition of a suspended sentence of
imprisonment, coupled with correctional supervision. In my view, a sentence of
imprisonment of 10 years, wholly suspended for 5 years on condition that the
accused is not convicted of any offence of which violence is an element during the
time of suspension.
[22] I accordingly make the following order:
a. The conviction of the accused is confirmed.
b. The sentences imposed by the Magistrate are set aside and replaced with the
following:
I The accused is sentenced to 10 years’ imprisonment, wholly
suspended for 5 years on condition that the accused is not convicted of any
offence of which violence is an element during the time of suspension.
II The accused is sentenced to a period of three years of correctional
supervision as provided in section 276(1)(h) of the Criminal Procedure Act,
read with section 75 of the Child Justice Act. The sentence is subject to the
following conditions:
i The accused shall be under house detention at 3 […] B[…] St, Ghost
Town, Makhanda, when not at his employment or seeking employment if
unemployed, or as directed by the responsible correctional officer,
ii The accused is restricted to the magisterial district of Makhanda.
iii The accused, if unemployed, shall seek employment, take up and
remain in employment;
iv The accused shall perform community service of 16 hours per month
throughout serving his sentence, at Grahamstown Community Corrections, on
Sundays from 8h00 -12h00 under the supervision of and direction of the
responsible officer;
v The accused shall participate in treatment, development, mediation
and restorative justice programmes as directed by the responsible
correctional officer.
vi The accused shall not abuse alcohol or illegal drugs for the duration of
the sentence, and avoid places and gatherings where these are consumed.
vii The accused shall not commit a criminal offence while serving this
sentence.
viii The accused shall be subject to monitoring by correctional supervision
officers by means and at times as deemed suitable by the officers.
III The accused is declared unfit to possess a firearm in terms of section
103(1) of the Firearms Control Act 60 of 2000.
______________________
R Krüger AJ
Acting Judge of the High Court of South Africa
_____________________
VP Noncembu J
Judge of the High Court
29 July 2025