IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CA&R 101/2024
In the matter between:
SENZO DLANGAMANDLA 1st Appellant
PHILA NONGAYIYANA 2nd Appellant
BALEKANI GANYAZA 3rd Appellant
and
THE STATE Respondent
__________________________________________________________________
JUDGMENT
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RUSI J
[1] This appeal is only against the sentence of life imprisonment imposed by the
Bizana Regional Court on the three appellants (the appellants) upon their conviction on
31 May 2023 o n a charge of murder. It raises one crisp issue, and that is, whether the
trial court failed to exercise its discretion properly in imposing the term of life
imprisonment on the appellants that its decision must be interfered with by this Court.
[2] The appellants were sentenced to life imprisonment in terms of section 51(1) of
the Criminal Law Amendment Act 105 of 1997 (CLAA). Section 51 of CLAA provides for
minimum sentences for various types of offences. Among the grounds that would bring
the charge of murder within the purview of section 51(1) is the fact that it was
premeditated or the accused acted in the furtherance of common purposes in
committing it. In terms of section 51(3) of CLAA, the prescribed minimum sentence
would be deviated from only if t he court was satisfied that there was in existence
substantial and compelling circumstances which justified that deviation.
[3] The appeal is brought before this Court in terms of the proviso to section
309(1)(a) of the Criminal Procedure Act 51 of 1977 (t he CPA)1. In terms of that proviso,
no leave of the trial court was required in noting it. In this Court, Mr Madywede
represented the appellants, and Mr Methuso represented the respondent (the
prosecution).
[4] The appellants’ conviction and sentence fol lowed their pleas of guilty to the
charge of murder. The prosecution had alleged that on 25 February 2023, at or near
Nomakubane Location, the appellants, acting in the furtherance of common purpose,
unlawfully and intentionally killed Ms Thandiwe Mbane (t he deceased) by hitting her
with a blunt object.
[5] In the postmortem report compiled on 28 February 2013 and handed to court by
agreement between the prosecution and the defence as an exhibit, Dr Mrenqwa -Mazwi
1 Section 309(1) ( a) provides: ‘Subject to section 84 of the Child Justice Act, 2008 (Act No. 75 of 2008),
any person convicted of any offence by any lower court (including a person discharged after conviction)
may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal against such
conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that
if that person was sentenced to imprisonment for life by a regional court under section 51 (1) of the
Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), he or she may note such an appeal without
having to apply for leave in terms of section 309B. . .’
concluded that the cause of the deceased’s death was ‘multiple organ failure’ caused by
excessive bleeding which was caused by a head injury and multiple blood vessel
injuries. Dr Mrenqwa -Mazwi’s chief findings on the deceased’s body were as follows: a
huge stab wound cutting through the skull from top to bottom, the skull was in two
halves with extensive brain injury; a fracture dislocation of the right shoulder; a gunshot
entry wound in the lateral aspect of the left leg with no exit wound; and a compound
tibia/fibula fracture. A photo album depic ting the body of the deceased was also
admitted in evidence as an exhibit.
The factual background
[6] These are the material facts that the appellants admitted, respectively, in their
statements containing their pleas of guilty as envisaged in section 112 of the CPA. The
third appellant, a 68 -year-old lady, admitted that sometime in January 2023 she hired
the first appellant for an award of R2 500.00 (two thousand five hundred rands) to kill
the deceased. Her reasons for wanting the deceased killed were allegedly that she had
shown jealousy to her concerning her scrap metal business, and also made certain
verbal threats to her. The amount offered to the first appellant as a reward for killing the
deceased would be paid by the third appellant in instalments. It was in February 2023
that she received a report from the first appellant that the killing of the de ceased had
come to pass.
[7] The first appellant admitted, in turn, that having agreed to kill the deceased on
the terms proposed by the third appellant, he, on 25 February 2023, met the second
appellant at a ceremony that was held at a local homestead. He invited the second
appellant to accompany him to the home of the deceased, and he agreed. On arrival at
the home of the deceased, they entered the house, grabbed the deceased and toppled
her from her bed. According to the first appellant, it is he who a ssaulted the deceased
her from her bed. According to the first appellant, it is he who a ssaulted the deceased
with a hammer several times on her head. While he did so, the second appellant was
holding the deceased. They left the deceased lying down and her body was discovered
a few days later. These facts were confirmed by the second appellant who also stated in
his statement outlining his plea of guilty that when they proceeded to the deceased’s
home, the first appellant was armed with a hammer that he put in a backpack. Apart
from these admissions, each of the appellants admitted that the de ath of the deceased
was caused by their conduct for which they had no justification in law.
[8] The trial court was satisfied that the appellants each pleaded guilty correctly and
convicted them of ‘premeditated murder’. At an opportune moment in this jud gment, I
will return to this pronouncement that the learned Regional Magistrate made when
convicting the appellants.
[9] When the postmortem report was handed to the court for admission in evidence
as an exhibit, the learned Regional Magistrate raised the omission, from the appellants’
plea, of relevant facts regarding the gunshot wound that Dr Mrenqwa -Mazwi observed
on the body of the deceased. It was submitted on their behalf by their legal
representative that when he confronted them with the findings of Dr Mrenqwa-Mazwi,
they denied knowledge of how the deceased sustained a gunshot wound and
maintained that they only used a hammer in killing her.
[10] The appellants contented themselves with submissions that their legal
representative made from the bar in mitigation of sentence. On behalf of the first
appellant, it was submitted that he was 36 years old with 3 children aged between 10
and 3 years of age. He was not their primary care giver but financially supported them
with the earnings he made from doing odd jobs. Apart from his contribution towards their
maintenance, they were also beneficiary of the child support social grant. In respect of
the second appellant, his personal circumstances were that he was 45 years old, and
also lived on odd jobs. He h ad no children. The third appellant was said to be 68 years
old and a widow with six children (all adults) and nine grandchildren. One of her six
children was suffering from stroke, and she looked after her grandchildren who are born
children was suffering from stroke, and she looked after her grandchildren who are born
of her third and fifth born children who have since passed away. All the appellants were
said to be first offenders.
[11] In asking the court to deviate from the prescribed sentence of life imprisonment,
it was submitted on behalf of the appellants that the fact that they were first offenders
and pleaded guilty to the charge against them was indicative of their prospects of
rehabilitation and this constituted a substantial and compelling circumstance warranting
the imposition of a lesser sentence.
[12] The prosecutor submitted , in aggravation of sentence, that the fact that the
murder of the deceased was a contract killing called for a harsh sentence. He
emphasized the fact that the third appellant took the law into her own hands instead of
reporting the alleged threats by the deceased to the police. He took the view that the
appellants’ plea of guilty was a neutral factor and added that the overwhelming evidence
against them constrained them to plead guilty to the charge. It was further submitted on
behalf of the prosecution th at none of the appellants’ personal circumstances
constituted substantial and compelling circumstances that would result in the reduction
of their sentence from that which CLAA prescribes.
[13] In sentencing the appellants, the learned Regional Magistrate considered the
callous brutality with which the appellants murdered the deceased who, he added,
would not have put up a fight in her defence. He further remarked that the deceased
must have suff ered immensely before she ultimately died. The learned Regional
Magistrate further took into consideration the fact that on the appellants’ own showing,
the murder of the deceased was an act of self -help whereby the first and second
appellants were hired b y the third appellant to murder her based on certain threats she
was alleged to have made towards the third appellant. He found that none of the
appellants’ personal circumstances constituted substantial and compelling
circumstances to justify a deviation from the prescribed sentence of life imprisonment.
The grounds of appeal
The grounds of appeal
[14] In this Court, the appellants contend as their grounds of appeal, that:
(a) The sentence of life imprisonment is so severe that it induces a sense of
shock;
(b) Their personal circumstances, viewed cumulatively, ought to have been
found to constitute substantial and compelling circumstances that would
justify a lesser sentence; and
(c) The trial court erred in over emphasizing the ‘triad of sentencing’.
The parties’ submissions on appeal
[15] Mr Madywede submitted that the trial court ought to have considered the
appellants’ pleas of guilty as a sign of remorse. He asked us to find that the appellants’
personal circumstances, cumulatively viewed, constitute substantial and c ompelling
circumstances, and thus disturb the sentence imposed by the trial court.
[16] Mr Methuso persisted with the contention that the fact that the death of the
deceased was a contract killing called for a severe sentence, and that no substantial
and compelling circumstances existed from the appellants’ personal circumstances
which justified a deviation from the prescribed sentence of life imprisonment. He further
submitted that it cannot be said, by reason only of the third appellant’s advanced age,
that life imprisonment was not an appropriate sentence to impose on her. In this regard
he submitted that ‘life imprisonment’ means imprisonment for the rest of a person’s
natural life. It was further contended on behalf of the prosecution that, far from be ing a
mitigating factor, the third appellant’s advanced age ought to have enabled her to find
prudence in reporting the threats that the deceased allegedly made to her to the police.
Mr Methuso took issue with the fact that it was only in the appellants’ heads of argument
that an assertion was made that they showed remorse by pleading guilty to the charge
of murder.
The legal principles
[17] Sentencing is a matter for the trial court’s discretion. In the exercise of this
function the trial court has a wide discretion in deciding which factors should be allowed
to influence it in determining the measure of punishment and in determining the value to
attach to each of the factors it takes into account. A failure to take certain factors into
account or an improp er determination of the value of such factors amounts to a
misdirection, but only when the dictates of justice carry clear conviction that an error has
been committed in this regard. 2 In the exercise of its appellate jurisdiction concerning
the sentence imposed by the trial court, this Court cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it were the trial
court and then substitute the sentence arrived at by it simply because it prefers it.3
[18] In S v Bailey4 this principle was further explained as follows:
‘What then is the correct approach by an appellate court on appeal against a
sentence imposed in terms of the Act? Can the appellate court interfere with such
a sentence imposed by the trial court after exercising its discretion properly
simply because it is not the sentence which it would have imposed or that it finds
it shocking? The approach to an appeal on sentence imposed in terms of the Act,
should in my view, be different to an approach to other sentences imposed under
the ordinary sentencing regime . This in my view is so because the minimum
sentences to be imposed are ordained by the Act. They cannot be departed from
lightly or for flimsy reasons. It follows therefore, that a proper enquiry on appeal
is whether the facts which were considered by the sentencing court are
substantial and compelling or not.”
[19] There is indeed no straight jacketed definition of what constitutes substantial and
compelling circumstances. As held in Malgas5 courts are required to approach the
compelling circumstances. As held in Malgas5 courts are required to approach the
2 S v Kibido 1998 (2) SACR 213 (SCA) at 216g-I; S v Pillay 1977 (4) SA 531 (A), at 535E.
3 S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1)
SACR 469 (SCA) (19 March 2001) (Malgas), para 12.
4 2013 (2) SACR 533 (SCA), para 20.
5 S v Malgas (117/2000) [2001] ZASCA 3 0; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1)
SACR 469 (SCA) (19 March 2001) (Malgas), para 25.
imposition of sentence cons cious that the legislature has ordained life imprisonment (or
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 circumstanc es. The specified sentences are not to be departed from lightly
and for flimsy reasons. 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.
[20] With these legal principles in mind, I turn to consider whether the appeal before
us should succeed or not.
Discussion
[21] Even though there is no appeal against the conviction of the appellants, in the
interests of clarity and legal certainty, something needs be said regarding the Regional
Magistrate’s findings pertaining to the appellants’ guilty pleas. His pronouncement in
that regard is encapsulated in the following excerpt of the record:
‘The Court is satisfied that your pleas are an unequivocal admission of guilt to this
charge of pre-meditated murder, and you are accordingly found GUILTY of premeditated
[murder] as read with section 51(1) of part 1 of schedule 2 of the Criminal Law
Amendment Act 105 of 1997 as amended.’
[22] It is trite that murder is a common law offence which is defined an unlawful and
intentional killing of a human being. Section 51(1) of CLAA makes provision for various
aggravating circumstances which, when proven to have existed a t the time of the
commission of the murder, will enjoin the court, upon conviction of the accused, to
impose a minimum sentence of life imprisonment. In the presence of those aggravating
circumstances, the prescribed minimum sentences will only be departed from if the
court is satisfied that there are substantial and compelling circumstances which justify a
lesser sentence.
[23] I mentioned elsewhere in this judgment that where the murder was pre-meditated
or where the accused acted in the furtherance of c ommon purpose in committing it,
those circumstances would bring the murder within the purview of section 51(1) of
CLAA. Therefore, the provisions of section 51(1) of CLAA should not be understood as
creating new or separate offences of murder. 6 Understood against this background, the
appellants’ conviction is in respect of the common law offence of murder which they
indeed unequivocally admitted.
[24] I readily accept that had the appellants pleaded not guilty to the charge against
them, the prosecution w ould bear the onus to prove beyond reasonable doubt that as
alleged in the charge against them, they committed the murder in the furtherance of
common purpose, or if it so wished, that the murder was premeditated or planned, so as
to bring it within the scope of the minimum sentence of life imprisonment should they be
convicted.
[25] As regards the meaning of the words ‘premediated or planned’, in S v PM 7, the
court defined ‘premeditated’ as ‘something done deliberately after rationally considering
the timing or method of so doing, calculated to increase the likelihood of success, or to
evade detection or apprehension’, and ‘ planned’ as ‘a scheme, design or method of
acting, doing, proceeding or making, which is developed in advance as a process,
calculated to optimally achieve a goal.’ And in Kekana v S 8 it was held that it is not
necessary that the appellant should have thought or planned his action a long period of
time in advance before carrying out his plan, and that time is not the only considerat ion
because even a few minutes are enough to carry out a premeditated action.
[26] Significantly, on the date of their trial the appellants were informed in the charge
against them of the applicability of section 51(1) of CLAA by reason of the fact that ‘i n
against them of the applicability of section 51(1) of CLAA by reason of the fact that ‘i n
6 Kekana v The State (37/2018) [2018] ZASCA 148 (31 October 2018), para 22; contrast, Minister of
Justice and Constitutional Development and An other v Masingili and Others (CCT 44/13) [2013] ZACC
41; 2014 (1) BCLR 101 (CC); 2014 (1) SACR 437 (CC) (28 November 2013) , para 16.
7 2014 (2) SACR 481 (GP) at paras 35-36.
8 Kekana v S (629/13) [2014] ZASCA 158 (1 October 2014), para 13.
committing the murder, they acted in the furtherance of common purpose.’ That being
so, the facts that the appellants admitted in their respective pleas, objectively viewed,
establish that the murder was indeed premeditated and further, perhaps principal ly, that
in committing it, they acted in the furtherance of common purpose. In either case, their
conviction remains within the purview of section 51(1) of CLAA.
[27] Regrettable as it may be that the learned Regional Magistrate found that they
were guilt y of ‘premeditated murder’ in circumstances where this allegation was not
pertinently made by the prosecution in the charge against the appellants, this legal error
is not, in the present circumstances, of a nature that vitiated the appellant’s right to a fair
trial, they did not suffer the prejudice envisaged in S v Kolea.9 From the record, there is
no indication that they would have conducted their defence differently had the
prosecution specifically, and/or additionally alleged that the murder was preme ditated.
We need not, in the exercise of our inherent powers to intervene, interfere with the
appellants’ conviction. This, however, should not be interpreted as exonerating the
prosecution from its duty as laid down in S v Legoa, 10 of informing the accuse d of the
charge she/he is to meet with sufficient detail, including the applicable penal provisions
sought to be relied upon in the case against that accused. This is an indispensable
principle of the law which is entrenched in our criminal justice system.
[28] In the discussion that follows I deal with the contentions made in support of the
grounds of appeal relied upon in this appeal.
[29] Among the submissions that were made in the appellants’ heads of argument is
that they had pleaded guilty to the char ge as a sign of remorse and that they have
prospects to be rehabilitated. Reliance was placed, inter alia, on S v Landau11 where it
prospects to be rehabilitated. Reliance was placed, inter alia, on S v Landau11 where it
9 In S v Kolea 2013 (1) SACR 409 (SCA) at para 9, the court held as follows: ‘Thus the question that
should be posed should be the following: Did the appellant have a fair trial and, more specifically, was the
appellant sufficiently apprised of the charge he or she was facing, and was he or she informed, in good
time, of any likelihood of his or her being subjected to any enhanced punishment in terms of the
applicable legislation.’ See also S v Ndlovu 2003 (1) SACR 331 (SCA) at para 12.
10 2003 (1) SACR 13 (SCA) at para 20.
11 2000 (2) SACR 673 (W) at 679; and S v Mvelase 1958 (3) SA 126 (N).
was held that a plea of guilt is sometimes an accused’s expression of genuine co -
operation, remorse and desire not to waste the court’s time in defending the
indefensible.
[30] I agree that the issue of remorse arose for the first time in the appellant’s heads
of argument. That being so, even had that assertion been made by the appellants both
during their trial before the Re gional Magistrate and in the notice of appeal, it is settled
law that remorse is a factual question which it determined from the surrounding actions
of the accused rather than what he or she says in court. The Court, in S v Matyityi 12,
explained the notion of remorse as follows:
‘Whether the offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught is a factual question. It is to the
surrounding actions of the accused rather than what he says in court t hat one
should rather look. In order for the remorse to be a valid consideration, the
penitence must be sincere, and the accused must take the court fully into his or
her confidence. Until and unless that happens the genuineness of the contrition
alleged to exist cannot be determined. After all, before a court can find that an
accused person is genuinely remorseful, it needs to have a proper appreciation
of inter alia: what motivated the accused to commit the deed; what has since
provoked his or her change of heart; and whether he or she does indeed have a
true appreciation of the consequences of those actions. . .’
[31] The contention that the appellants showed remorse by pleading guilty to the
charge and have prospects of rehabilitation does not, in any ev ent, find support from
what appears from the record. To begin with, where an accused, as in this case,
chooses to make submissions from the bar in mitigation of sentence after conviction
upon a plea of guilty, the court is left with limited information as would be set out in the
upon a plea of guilty, the court is left with limited information as would be set out in the
statement outlining the plea of guilty and the submissions so made in mitigation of
12 S v Matyityi (695/09) [2010] ZASCA 127; 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) (30
September 2010), para 13.
sentence. What troubles my mind in the present case is the fact that from the record, no
details were given regarding how the discovery of the body of the deceased came
about. Nowhere was the trial court told that the appellants took any steps in assisting
the police solve the murder. In their plea statements, the first and second appellants
merely stated that they were arrested after the discovery of the body of the deceased.
[32] Furthermore, the fact that the appellants eschewed any connection to the
gunshot wound that the pathologist observed on the body of the deceased is not without
significance. Not only that, even though the first and second appellants stated that a
hammer was used in killing the deceased, that appears to be incongruous with Dr
Mrenqwa-Mazwi’s finding that the deceased had ‘a huge stab wound cutting through the
skull from top to bottom,’ and that the skull was in two halves wi th extensive brain injury.
I make this observation mindful of the fact that what the appellants stated, are the facts
that the prosecution accepted despite what the findings of the pathologist indicate.
[33] However, the prosecution’s acceptance of such facts did not detract from the trial
court’s power to consider an appropriate sentence upon a conviction of murder to which
the appellants pleaded guilty. I hasten to state that this Court cannot, in the exercise of
its appellate jurisdiction, be expected t o close its eyes to any of the facts that were
before the trial court when it sentenced the appellants despite any concessions that the
prosecution may have made. To think otherwise would result in an absurdity and a
travesty of justice.
[34] What is manifest from the record is that the appellants did not take the trial court
into confidence regarding their actions in committing the murder in so far as the gunshot
wound is concerned and how the stab wound that Dr Mrenqwa -Mazwi observed was
caused. This has a bearing on the alleged remorse on their part. Simply put, if the
caused. This has a bearing on the alleged remorse on their part. Simply put, if the
appellants failed to fully disclose the facts relevant to the murder, it becomes difficult to
conceive how they showed genuine remorse and how there are prospects that they will
be rehabilitated. While I am not unmindful of the fact that the gunshot wound does not
appear, from the findings of Dr Mrenqwa -Mazwi, to be associated with the cause of the
deceased’s death, it was important that the appellants lay themselves bare before the
trial court if the end goal was to convince the court that they were remorseful of their
actions and were candidates for rehabilitation.
[35] An incomplete picture of the circumstances surrounding the death of the
deceased was portrayed by the appellants and accep ted by the prosecution without
demur despite the objective facts regarding the nature and extent of the injuries that the
postmortem report recorded. The prosecution’s shortsightedness in that regard must be
censured. Moreover, it seems that the second app ellant minimized his role to only
holding the deceased while the first appellant, on his narration, bludgeoned her with the
hammer. These observations belie the remorse that the appellants are said to have
displayed in the same way that they negate the con tention that they have prospects of
being rehabilitated.
[36] In any event, even if we were to accept that the appellants have prospects of
being rehabilitated, in S v Swart ,13 the Court pointed out that each of the elements for
the purpose of punishment need not be given the same weight, but rather that proper
weight must be accorded to each according to the circumstances of the case. It further
held that ‘serious crimes will usually require that retribution and deterrence should come
to the fore and tha t the rehabilitation of the offender will consequently play a relatively
smaller role.’
[37] Suffice it to say that despite the appellants’ failure to fully disclose how they killed
the deceased, in so far as this was relevant for the purposes of sentence , the least that
they disclosed during their plea proceedings still establishes that the deceased was
killed with callous disregard of her own life. Not only that, but her life was also bought by
the third appellant, so to speak, for R2 500.00 and the crue l hands of the first and
second appellants delivered it.
13 2004 (2) SACR 370 (SCA) at para 12.
[38] Lastly, the motive for the murder was that the deceased had made certain threats
to the third appellant. Quite perplexing is the fact that instead of reporting the alleged
threats to the police or local authorities, the third appellant arrogated unto herself the
right to permanently remove from existence ‘a perceived threat to her peace,’ as it were.
She found resorting to self -help a viable and prudent course. That simply cannot be –
the right to life is a precious and invaluable gift that everyone has a right to enjoy. The
deceased had hers taken away in a senseless and callous manner.
[39] It has been held that the prescribed minimum sentences are not to be departed
from for flimsy reasons t hat would not withstand scrutiny; and that in cases of serious
crime, the personal circumstances of the offender by themselves, will necessarily
recede into the background. 14 At this point I must deal with Mr Madywede’s submission
that in respect of the th ird appellant who was 68 years of age when she committed the
murder, the sentence of life imprisonment was inappropriate in that it would mean that
she would not ever come out of prison alive. The starting point should be the fact that
life imprisonment indeed means imprisonment for the rest of a person’s natural life.15
[40] To my mind, it would be sending out a wrong message if, in every case, the
courts were to be lenient towards older offenders merely on the basis that they are of
advanced age. In fact, as correctly submitted by Mr Methuso, it would be expected that
with the third appellant’s advanced age came wisdom. And in this case, the expectation
is that the third appellant, at the advanced age of 68 years would be possessed of the
prudence to report the alleged threats that the deceased made to her to the authorities.
[41] I interpose to re-state the now trite principle that in cases of serious crime, once it
becomes clear that the crime is deserving of a substantial period of imprisonment, the
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
14 Malgas, footnote 4 supra, para 25.
15 S v Solomon and Others (CC23/2018) [2020] ZAWCHC 118; 2021 (1) SACR 533 (WCC) (12 October
2020), para 27.
that period should be.16 In S v Abrahams17 where the appellant was 53 years at the time
of conviction and 54 years at the time he was sentenced it was held that the age of the
accused is not in itself a mitigating factor.
[42] In S v J A 18 the appellant was 59 years of age when he was sentenced in the
High Court to life imprisonment for the rape of his 12 -year-old daughter. On appeal to
the Full Court it was contended, inter alia, that his advanced age should have been
considered a mitigating factor since he would only become eligible for parole no sooner
than the age of 74, and possibly, only when he reached the age of 84 (in terms of s 73
of the Correctional Services Act 111 of 1998). No such contention was pertinently made
before us. However, on the appropriateness of the sentence of life imprisonment where
an offender is of advanced age, and after considering a number of authorities, the Full
Court in S v J A held as follows:
[36] A sentence of life imprisonment must, from the viewpoint of the courts, be
seen as exactly that — imprisonment for the rest of the natural life of the
offender. That must also be assumed to have been the intention of the legislature
in enacting s 51(1) of the Act.
[37] This must necessarily be the case, because such a sentence would
technically empower the executive to keep the offender in custody for the rest of
his or her natural life. The possibility that a sentenced offender may later be
released on parole is dependent upon a statutory power and discretion wh ich lie
within the domain of the executive, and courts are therefore not entitled to take
into account the possibility of such release when considering a sentence, let
alone the possible timing of such release.
[38] The function of a court in imposing sent ence is to determine the maximum
period a convicted person may be imprisoned and it cannot, in my view, in doing
16 S v Vilakazi 2009 (1) SACR 552 (SCA) at para 58.
16 S v Vilakazi 2009 (1) SACR 552 (SCA) at para 58.
17 2002 (1) SACR 116 (SCA), para 27; see also Barendse v S (CA 181/08) [2009] ZAECGHC 75; 2010 (2)
SACR 616 (ECG) (6 November 2009).
18 2017 (2) SACR 143 (NCK).
so take into account or rely on the possibility that the offender could be released
on parole after having served a specified portion of that maximum period.
[39] The approach cannot in my view be different where the issue in a particular
case is whether life imprisonment would be an appropriate sentence. It is not for
the sentencing court to try to work out how old an offender could be when (if at
all) the executive decides to release him or her on parole. The fact that a person
who is 25 years old at the time of sentencing is more likely to serve a longer
period of imprisonment than a person who is 60 years old at the time of
sentencing if both were to remain in prison for the rest of their natural lives, would
also not justify a sentencing court to not impose a life sentence of imprisonment
where it is statutorily required.
[43] I respectfully align myself with the approach adopted by the Full Court in S v J A.
I make the finding that in the circumstances of the present case, the contention that
because the third appellant was 68 years of age when she was convicted, and therefore
this constituted a substantial and compelling circumstance, cannot be sustained.
[44] In the light of the aforegoing, it can hardly be said that the learned Regional
Magistrate misdirected himself in finding that the appellants’ personal circumstances
cumulatively viewed, did not constitute substantial and compelling circumstances. His
decision cannot be faulted. I deal next with the contention that the sentence of life
imprisonment induces a sense of shock.
[45] To begin with, the phrase must not be used as an epithet that expresses
unfounded disapproval of how the court’s sentencing discretion was exercised. More is
entailed in saying that the sentence induces a sense of shock against an understanding
first, of what society requires or expects of the law in punishing crime. I am acutely alive
to the fact that each case is to be assessed in accordance with its unique
to the fact that each case is to be assessed in accordance with its unique
circumstances. With that said, sight must not be lost of the gravity of the offence that the
appellants have committed. The callous brutalit y with which they murdered the
deceased, as correctly observed by the learned Regional Magistrate, must have
exposed her to an amount of suffering before her death. Moreover, contract killings are
prevalent, and it is unsurprising that society demands the imposition of the severest
punishment upon those who commit such monstrous offences.19
[46] I am unable to agree with the contention that the sentence of life imprisonment
that the learned Regional Magistrate imposed on the appellants induces a sense of
shock. There is no reason to interfere with it. The appeal falls to be dismissed.
[47] In the result, I would make the following order:
1. The appeal against sentence is dismissed and the sentence of life imprisonment
imposed on each of the appellants is confirmed.
_________________________
L. RUSI
JUDGE OF THE HIGH COURT
I agree:
______________________
M. MHAMBI
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For the appellant : Mr A Madywede
: Legal Aid South Africa, Mthatha local office
19 Monye and Another v S 2017 (1) SACR 329 (SCA), at para 22.
Counsel for the first respondent : Adv. L Methuso
The Office of the Director of Public Prosecutions,
Mthatha
Date heard : 19 February 2025
Date delivered : 19 August 2025