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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: KS 7/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
THE STATE
and
JACOBUS PITSO Accused
Coram: Lever J
JUDGMENT ON SENTENCE
Lever J
1. In this matter the accused faced three charges, namely: two separate charges of
assault against different individuals on the same date and in proximity to the
incident that led to the third charge; being murder read with the provisions of
section 51(1) of Act 105 of 1997, as amended.
2. On the 28 July 2025 the accused pleaded guilty on all three charges. The
accused submitted a written plea under the provisions of section 112(2) of the
Criminal Procedure Act1 (the CPA).
3. The State accepted this plea of guilty and this court convicted the accused on all
three counts based on this written plea. The said written plea was by agreement
entered into the record as exhibit “A”.
4. After conviction Ms Engelbrecht handed up the SAP 69 which was admitted as
exhibit “D” and which showed no previous convictions.
5. The events that led to the death of E[...] F[...] V[...] (the deceased) occurred on
the 26 September 2024. The circumstances leading up to the s tabbing and death
of the deceased were placed before this court in the said written plea , being
exhibit “A”.
6. In respect of the murder charge reference to section 51(1) of the said C riminal
Law Amended Act of 1997, means if the offence is covered by Part 1 of Schedule
2 of the said act, then there is a mandatory minimum sentence of life
imprisonment. The said part 1 of schedule 2 of that act deals with murder where
the victim is in a domestic relationship with the alleged murderer. The relevant
portion of Part 1 of Schedule 2 reads as follows:
“(g) the death of the victim resulted from physical abuse or sexual abuse,
as contemplated in paragraphs (a) and (b) of the definition of ‘domestic
violence’ in section 1 of the Domestic Violence Act, 1998 (Act 116 of
1998), by the accused who is or was in a domestic relationship, as
defined in section 1 of that Act with the victim.”
7. It was common cause between the State and the defence that the accused was
in a domestic relationship with E[...] F[...] V[...] , the deceased in relation to the
murder charge.
1 Act 51 of 1977.
8. It is not in dispute that the accused and the deceased were involved in a
‘domestic relationship’ and that the death of the deceased resulted from
‘domestic violence’, as both terms are defined in the Domestic Violence Act.
Hence the present conviction falls under Part I of Schedule 2 of the Minimum
Sentencing Act. Accordingly, section 51(1) of the Minimum Sentencing Act
applies. It follows from this that unless ‘substantial and compelling circumstances’
can be found on the facts of this case as contemplated in section 51(3) of the
said Act, the minimum sentence to be imposed on the accused in this case is life
imprisonment.
9. The State and the Defence agree that the ‘determinative test’ as set out by the
Supreme Court of Appeal (SCA) in the case S v Malgas 2 at paragraph [25] sub-
paragraph I, is applicable. I will quote paragraph [25] of the Malgas judgment in
its entirety as it provides valuable insight into the approach to be taken in the
application of minimum sentences.
“[25] What stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed in some
of the previously decided cases and that it is they who are to judge
whether or not the circumstances of any particular case are such as to
justify a departure. However, in doing so, they are to respect, and not
merely pay lip service to, the Legislature’s view that the prescribed
periods of imprisonment are to be taken to be ordinarily appropriate
when crimes of the specified kind are committed. In summary –
A. Section 51 has limited but not eliminated the courts’ discretion in
imposing sentence in respect of offences referred to in Part I of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2).
B. Courts are required to approach the imposition of sentence
conscious that the Legislature has ordained life imprisonment (or
the particular prescribed period of imprisonment) as the sentence
the particular prescribed period of imprisonment) as the sentence
that should ordinarily and in the absence of weighty justification be
imposed for the listed crimes in the specified circumstances.
2 2001 (1) SACR 469 (SCA) at para [25] I.
C. Unless there are, and can be seen to be, truly convincing reasons
for a different response, the crimes in question are therefore
required to elicit a severe, standardised and consistent response
from the courts.
D. The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation, and
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E. The Legislature has deliberately left it to the courts to decide
whether the circumstances of any particular case call for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and the need for
effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F. All factors (other than set out in D above) traditionally taken into
account in sentencing (whether or not they diminish moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G. The ultimate impact must be measured against the composite
yardstick (‘substantial and compelling’) and must be such as
cumulatively justify a departure from the standardised response that
the Legislature has ordained.
H. In applying the statutory provisions, it is inappropriately constricting
to use the concepts developed in dealing with appeals against
sentence as the sole criterion.
I. If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence
unjust in that they would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would be
done by imposing that sentence, it is entitled to impose a lesser
sentence.3 (my emphasis)
J. In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and that
the sentence to be imposed in lieu of the prescribed sentence
should be assessed paying due regard to the bench mark which the
Legislature has provided.”4
10. It is clear from the summary of the findings of the SCA in the Malgas judgment
as set out in paragraph 25 thereof, which is quoted above, that all aspects of
sentencing are important to determine whether on the facts of this case there are
grounds to depart from the statutorily prescribed minimum, on the basis that there
are ‘substantial and compelling’ grounds to do so. That in the application of this
determinative test, the cumulative effect of all the said aspects ‘determines’
whether ‘substantial and compelling’ grounds have been established.
11. Accordingly, the triad of the crime, the criminal, and the interests of society, as set
out in the classic case of S v ZINN 5 is the proper point of departure in this
exercise.
12. Also, one considers whether on the facts of the instant case , sentence to be
imposed should be blended with a measure of mercy. The extent to which mercy
is appropriate has been dealt with in the cases of S v Rabie6 and S v Du Toit7.
13. Further, one should also consider the main purposes of punishment, being
deterrent, rehabilitative, and retributive effects of such punishment.
14. When considering the personal circumstances of the offender as contemplated in
the Zinn case, it is proper to consider whether the offender has shown remorse .
3 This is the ‘determinative test’. The determinative test has also been set out in slightly more detail
and in different language in paragraph [22] of the Malgas judgment.
4 Malgas., above at para [25].
5 1969 (2) SA 537 (A).
6 1975 (4) SA 855 (A) at 862G and particularly at 866A – C.
7 1979 (3) SA 846 (A) at 857H to 858B.
The importance of the distinction between ‘regret and remorse’ has been set out
by Ponnan JA in the case of S v MATYITYI8.
15. The circumstances in which I must determine whether there are substantial and
compelling reasons exist on the facts of this case are set out in the written plea
already referred to as well as the victim impact report exhibit “E” and the oral
evidence of the accused in mitigation of sentence where the accused asked the
family of the deceased for forgiveness and expressed remorse for his actions that
led to the death of the deceased.
16. In order to be able to assess all of these factors and to assign to each of them
their appropriate weight as appropriate in the particular circumstances of this
case, it is necessary to quote verbatim a significant portion of the written plea
placed before the court. The relevant portion reads as follows:
“[2] The facts to which I plead guilty are as follows: On the night of
Thursday, the 26th September 2024 I was at house number 0[...] 1[...]
A[...], Stasies Location, Postmasburg which I shared with the
deceased, E[...] F[...] V[...].
[3] The deceased and I were in a domestic relationship for some years.
We have a baby boy of five (5) years old born from our relationship.
The child is currently residing with the deceased’s parents in
Griekwastad.
[4] On the evening of 26 th September 2024 the deceased and I were
sitting with her friend A[...] T[...], the complainant in count 2. We were
drinking some Black label beers outside A[...]’s room which is situated
at the back of my family house.
[5] Although I consumed liquor as set out above, I appreciated the
wrongfulness of my actions, and I further admit that I was capable of
acting in accordance with that appreciation.
[6] Mr T[...] v[...] W[...] the complainant on count 1 arrived at our home,
looking for my younger brother Shorty. I thought that was very strange
as he passed the main house and came to us at the back of the house.
8 2011 (1) SACR 40 (SCA) AT 47a-d.
In my mind, that confirmed the suspicion I had that Mr Van Wyk and the
deceased were having a relationship behind my back. I was convinced
that he probably came there looking for the deceased.
[7] I confronted him, and he denied the allegation, a physical fight then
ensued between myself and T[...] v[...] W[...]. I ran into the house to get
a knife which I used to threaten and chase him with. He ran around my
family house and eventually ran out of the yard.
[8] Upon my return to the yard from chasing Tiaan, I was very infuriated
with the deceased thinking about the years we had been together. I
was overwhelmed by anger, and I started to stab the deceased
randomly on her body. A[...] tried to intervene, and I pushed her away
and she fell on her knees . The deceased got an opportunity to run
away and ran out of the yard. I chased after her and continued
stabbing her randomly on her body even after she had fallen down.
[9] A[...] came running and pushed me away from the deceased and threw
stones at me. I ran towards the Transnet Railway just to calm myself.
After spending some time in the open veld the realisation of what I had
done hit me and I walked back home.
[10] On the way home so many thoughts were going through my mind
realising that I have killed the mother of my child. I went into my
bedroom, took a knife and tried to cut my neck, but the knife was not
sharp enough. I took a rope and tied it around my neck and wanted to
use it to hang myself. My father walked into the room and stopped me
from hanging myself.
[11] The police arrived and when the ambulance personnel arrived, it was
confirmed that the deceased had passed away. I was then arrested for
killing the deceased.
[12] I admit that when chasing T[...] v[...] W[...] the complainant in count 1
with the knife, he was not posing any danger to me, further there was
no justification for me to do so. I admit that I am guilty of the offence of
assault as I made him believe that I will stab him with that knife.
assault as I made him believe that I will stab him with that knife.
[13] I admit that when I pushed A[...] T[...] , the complainant in count 2,
causing her to fall on her knees I had no justification for doing so as
she was protecting the deceased whom I was stabbing with the knife.
Therefore, she had every reason to protect the deceased and my
actions of pushing her were not justified. I admit that I am guilty of
assault on her as well.
[14] I admit that while stabbing the deceased randomly all over her body, I
was so infuriated that I did not care whether she (lived) or died as a
result of her injuries. I only stopped stabbing the deceased when A[...]
T[...] pushed me away.
[15] I was advised by my legal representative that I inflicted 9 stab wounds
on the body of the deceased as indicated by the pathologist who
conducted the postmortem.
[16] Given the number of the stab wounds, the object used to stab the
deceased and my actions of following and continuously stabbing the
deceased after she had run away, I admit that it indicates that I had the
intention to kill her. I admit that my actions made me guilty of murder
with direct intention. …”
17. As already stated, t he plea was accepted by the State and therefore the State
accepts the evidence set out above.
18. In the rest of the plea under the provisions of section 212(2) of the CPA, being
exhibit “A” in these proceedings, the accused made certain formal admissions
under the provisions of section 220 of the CPA.
19. Ms Engelbrecht who appeared for the State in this matter produced a victim
impact report, which was handed in by consent as exhibit “E” and which was
accordingly read into the record.
20. The said victim impact report deals with the deceased’s family background and
her upbringing in Griekwastad. Contentions are made in this victim impact report
that during their time together the relationship between the deceased and the
accused was troubled by physical and emotional abuse of the deceased by the
accused. These contentions were not challenged by the defence. The parents of
the deceased informed the social worker who conducted the victim assessment
report that the accused deprived the deceased of her dignity, sense of worth and
that the accused instilled a sense of fear and hopelessness in the deceased.
21. The child born of the union between the deceased and the accused has been
taken in by the parents of the deceased along with a child of the deceased from
an earlier relationship. The mother of the deceased has been forced to take up
temporary employment in Gauteng in order to provide for the financial well -being
of such children.
22. Exhibit “E” clearly establishes that the murder of the deceased has left emotional
scars on her family that they are experiencing difficulty coming to terms with. The
deceased’s family is not yet able to consider forgiving the accused. Their distress
emerges clearly from exhibit “E” . The deceased’s family and her children will
suffer a negative impact from her murder for years to come.
23. The accused took to the witness stand and gave evidence under oath. His
evidence was to the effect that he appreciates now that his actions have caused
the deceased’s family pain that will never go away. He acknowledged that the
deceased’s children will now grow up without their mother. That his child will grow
up without a mother and with a father in jail. He testified that he acted in anger
without thinking. He testified that he had attempted to commit suicide. He asked
for forgiveness from the deceased’s family and said he was genuinely sorry.
24. The State accepted this evidence and the accused was not cross -examined on
the testimony that he provided under oath.
25. Then Mr Biyela who represented the accused made submissions from the Bar.
From these submissions, the following emerged as the accused’s personal
circumstances: He is a 29 -year-old male; he is not married; He has two children,
an eleven year old daughter from a previous relationship and a five year old boy
born out of the relationship with the deceased; The oldest child resides with his
born out of the relationship with the deceased; The oldest child resides with his
family and the youngest child resides with the deceased’s family; he was gainfully
employed by Airfields Garden Service as a general worker; he earned a wage of
R150 per day; he went as far as grade 9 with his schooling; he has no previous
convictions; he does not have any pending cases; and he has been in custody
since his arrest on the 26th September 2024, a period of approximately 9 months.
26. Mr Biyela further submitted that the accused was: overwhelmed by emotions; he
did not think things through ; he acted out of character when committing the
offences of assault and murder; that alcohol played some part in the commission
of these offences of assault and murder; that if the accused was completely
sober on the night in question events may well have turned out differently; the
accused was gainfully employed; the accused pleaded guilty; he took
responsibility for his actions and did not try and make excuses; his attempts at
suicide are an indication that he appreciates the enormity of what he has done;
and that he has tendered a genuine apology.
27. Mr Biyela submitted that all of this taken collectively amount to substantial and
compelling circumstances to depart from the prescribed minimum sentence set
out in section 51(1) of the Criminal Law Amendment Act 1997.
28. Turning to the first leg of the triad referred to above being the circumstances of
the accused. The personal circumstances of the accused, his mental state when
committing the crimes in question have been set out above.
29. The next leg of the triad referred to above relates to the crime committed. Mr
Biyela for the accused correctly concedes that the murder of an intimate life
partner is a very serious offence which is prevalent in the area of this court’s
jurisdiction. The assaults he concedes are also serious.
30. The final leg of the said triad is the interests of society. Here Ms Engelbrecht
emphasised that gender violence is endemic and that it is in the interests of
society that ‘deterrence’ come to the fore in the context of the case. That in those
circumstances she submitted this court should not depart from the statutorily
prescribed minimum sentence of life imprisonment.
31. The case of S v KRUGER 9 succinctly illustrates the balancing exercise required
in imposing a sentence on a particular accused, where Shongwe JA states:
“Punishing a convicted person should not be likened to taking revenge. It must
have all the elements and purposes of punishment, prevention, retribution,
individual and general deterrence, and rehabilitation.” 10 Of course the relative
weight to be attached to each of these elements and purposes of punishment
varies with the circumstances of every case.
32. The case of S v MHLAKAZA & ANOTHER 11 is authority for the proposition that a
sentencing court should always be aware that the process of sentencing is not to
satisfy public opinion but to serve the public interest. That a sentencing policy
that caters predominantly or exclusively for public opinion, is inherently flawed.
The court’s duty is to fearlessly impose a fair sentence even if such sentence
does not satisfy the public. With respect to the SCA, that position cannot be
challenged.
33. It remains the duty of this court to impose a fair and just sentence on the
accused. This is done by considering all relevant factors and to find the
appropriate balance between often competing factors that would lead to a fair
and just sentence in all the circumstances of a particular case.
34. The aggravating circumstances in the present case include: The accused reacted
violently in circumstances where such violence cannot be justified ; The deceased
was in an intimate relationship with the accused; Given the value our society
places on life, murder is a most serious offence; the present crime is a clear
example of gender based violence which is worryingly prevalent in our society;
the deceased was murdered in her own home where she ought to have been
safe; and the accused had formed a direct intention to kill the deceased.
35. The mitigating factors to be weighed against the aggravating factors include: The
35. The mitigating factors to be weighed against the aggravating factors include: The
accused has shown remorse which appears to be genuine; the accused pleaded
9 2012 (1) SACR 369 (SCA) at para [11].
10 Kruger case., above at para [11].
11 1997 (1) SACR 515 (SCA) at 518e.
guilty to all of the charges and appears to have taken full responsibility for his
actions; the accused has apologised to the family of the deceased; it is clear that
the events leading up to the death of the deceased took place in an emotionally
charged atmosphere; the circumstances show that the murder was not planned
or pre -meditated; these charges are the accused’s first brush with the law, he
was approximately 28 years old when these crimes were committed; he is thus
not an inherently or habitually a l awless person; and finally, the accused made
two attempts to take his own life after he committed the murder as well as the
assaults relevant to this matter.
36. The circumstances of this case show that the chances of the accused offending
again are minimal. The evidence shows that such relationship was characterised
by arguments, but there was no evidence that these were violent arguments. The
accused had reached his late twenties before he came into conflict with the law. It
is not likely that the circumstances that led to the present tragedy will be
repeated.
37. All of the above circumstances and the cumulative effect thereof, lead me to the
conclusion that it would be unjust to impose a life sentence on the accused in this
matter. In these circumstances I find that there are substantial and compelling
reasons to depart from the statutorily prescribed minimum sentence of life
imprisonment. In particular, on the facts of the present case, I rely on the
following facts and circumstances in reaching this conclusion: The accused is a
first offender and his first brush with the law relates to the case at hand which
occurred in his late twenties; The emotionally charged atmosphere that prevailed
when the crimes were committed, he believed his life partner and the
complainant in count 1 were cheating on him ; The murder was not pre -planned;
The accused took responsibility for his actions and pleaded guilty; The accused
The accused took responsibility for his actions and pleaded guilty; The accused
apologised to the family of the deceased for killing the deceased and the pain he
had inflicted on them; The accused tried to take his own life on 2 occasions; The
remorse shown by the accused is I believe genuine; and The accused has
realistic prospects of rehabilitation.
38. The exercise in balancing the competing elements relating to the sentencing
process has been conducted in determining the existence of substantial and
compelling reasons, what remains is to actually impose a fair and just sentence
on the accused in respect of the three crimes for which he has been convicted.
39. It is convenient to deal with the conviction of murder first in this sentencing
process. The accused has murdered his intimate life partner. Instances of
femicide are far too prevalent in this court’s jurisdiction. Whilst a sentence of life
imprisonment may not serve justice on the facts of the present case, the need for
a general deterren t for the crime of femicide must play a prominent role in
sentencing the accused, but not at the expense of all the other considerations in
passing a sentence on the accus ed. In all the circumstances of this case, a long
period of direct imprisonment is certainly called for and is appropriate.
40. Also, I must take into account that the accused has already spent approximately
9 months in prison up to his conviction. It is not simply a matter of applying an
arithmetic process in reaching the ultimate sentence to be imposed on the
accused. What is required is that considering the time already spent in custody
together with all the other factors relevant in sentencing, the ultimate sentence
imposed must be ‘just’ in all those circumstances.
41. On the conviction of murder, being count 3, I believe the appropriate sentence in
all the circumstances set out above is twenty (20) years imprisonment.
42. On the conviction in respect of count 1, being the conviction for the assault on
T[...] v[...] W[...] I believe the appropriate sentence is two (2) years direct
imprisonment.
43. In respect of the conviction on count 2, being the assault on A[...] T[...] I believe
the appropriate sentence is one (1) year direct imprisonment.
44. In the circumstances of this case, it is appropriate that the sentences imposed in
44. In the circumstances of this case, it is appropriate that the sentences imposed in
respect of counts 1 and 2 should run concurrently with the sentence imposed in
respect of count 3.
45. The accused did not wish to make representations as to why he should not be
declared unfit to possess a firearm. Having regard to the provisions of section
103 of the Firearms Control Act12 and the crimes for which the accused has been
convicted, the accused is declared unfit to possess a firearm.
In the circumstances, the following sentences are imposed on the accused:
1) Count 1 – Two (2) years imprisonment.
2) Count 2 – One (1) year imprisonment.
3) Count 3 – Twenty (20) years imprisonment.
4) The sentences in respect of counts 1 and 2 will run concurrently with the
sentence imposed in respect of count 3.
5) Under the provisions of section 103 of Act 60 of 2000 the accused is declared
unfit to possess a firearm.
L. G. Lever
Judge
Northern Cape Division, Kimberley
Representation:
For the State: ADV M ENGELBRECHT
Instructed by: DIRECTOR OF PUBLIC PROSECUTIONS
For the Accused: MR K BIYELA
Instructed by: LEGAL AID SA, KIMBERLEY
Date of Judgment: 01 AUGUST 2025
12 Act 60 of 2000.