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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO : KS 21/2024
In the matter between:
THE STATE
and
MABOITSHEGE, BUTIKI SIMON Accused
Neutral citation:
Coram:
Date of Judgment:
Summary:
The State v BS Maboitshege (KS21/2024)
Groenewaldt AJ
08 September 2025
Charge - Murder. Found guilty on 03 September 2025. Factors
considered - personal circumstances of accused, the crime itself S v Zinn 1969 (2) SA 537(A));
mercy and application thereof(S v Rabie 1975 (4) SA (A) at 866A-C); locus classicus (SvMalgas
2001 (1) SACR 469 (SCA)); Life imprisonment (S v Weideman [2014] ZAECPEHC 62).
Sentence - 20 (twenty) years imprisonment.
Page2
ORDER
1. The accused, BUTIKI SIMON MABOITSHEGE , is hereby sentenced to
20 (TWENTY) YEARS IMPRISONMENT in respect of the charge of
murder that he has been found guilty on.
JUDGMENT ON ~ENC JNG
(11 On 03 September 2025, the accused was found guilty on the charge of murder,
read with the provisions of Section 51 ( 1) of the Criminal Law Amendment Act 105
of 1997 ("CLAA") as amended. The accused now stands to be sentenced on the
said conviction.
[2] Sentencing is an onerous and complexed judicial exercise. There is no rule of
thumb approach when it comes to the imposition of an appropriate sentence.
[3] H9wever, our case law has provided a blueprint for sentencing in S v Zinn
1969(2) SA 537(A) to what has become known as the triad, being the personal
circumstances of the accused, the crime itself and the interests of society.
[4] A further consideration is also whether the sentence to be imposed should be
blended with a rneasure of mercy. In S v Rabie 1975 (4) SA (A) at 866A-C the
extent to which mercy is appropriate has been dealt with. In respect of "mercy"
being a consideration and the application thereof, the views of Corbett JA (as he
then was) in the aforesaid case were set out as follows:
Page 3
"A judicial officer should not approach punishment in a spirit of anger because, being
human, that will mak e it difficult for him to achieve that delicate balance between the
crime, the criminal and the interests of society which his task and the objects of
punishment demand of him. Nor should he strive after severity, nor on the other hand
surrender to misplaced pity. While notflinchingfromfirmness, where firmness is called
for, he should approach his task with a human e and compassionate understanding of
human frailties and the pressures of society which contribute to criminality. It is in the
context of this attitude of mind that I see mercy as an element in the determination of the
appropriate punishment in the light of all the circumstances of the particular case. "
[5] In terms of the CLAA, the prescribed minimum sentences must be applied unless
the Court finds substantial and compelling circumstances to depart from the
prescribed minimum sentence as contemplated by Section 51(1) of the CLAA.
What would constitute substantial and compelling circumstances would depend
on the facts of each case.
[6] The locus classicus in relation to what constitutes substantial and compelling
circumstances, is to be found in S v Ma/gas 2001 ( 1) SACR 469 (SCA) as set out
at paragraph 25 which I will quote as follows:
"[25} What stands out quite clearly is that the courts are a good deal freer to depart
fi·om 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
summa,y-
A Section 51 has limited but not eliminated the courts 'discretion in imposing
summa,y-
A Section 51 has limited but not eliminated the courts 'discretion in imposing
sentence in respect of offences referred to in Part 1 of Schedule 2 (or
Page 4
implisonment 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 that should ordinarily
and in the qbsence of weighty justification be imposed for the listed crimes
in the specified circumstances.
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 fi'om the courts.
D The specified sentences are not to be departed from lightly andforflimsy
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 persona./ circumstances or degrees of participation between
co-offenders are to be excluded.
E The legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular case calf 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 those 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.
Page 5
G The ultimate impact of all the circumstances relevant to sentencing 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 it would be disproportionate to the crime, the criminal and the
needs <?f society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J In so doing, account must be taken of the fact that crime of that particular
ldnd 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. "
PERSONAL CIRCUMSTANCES OF THE ACCUSED:
[7] The accused's personal circumstances were placed before the Court on an ex
parte basis by his legal representative. He is 41 years of age, unmarried and had
fathered one minor child, (aged 3 at the time the crime was committed), with the
deceased. He dropped out of school after completing Grade 6 due to financial
constraints. He is one of seven children. His mother was unemployed and his
father a gardener. Only three of the accused's siblings completed school and the
rest did casual work to support their parents.
Page6
[8] Prior to his arrest in this matter, he was employed as a builder and earned
approximately R6 000.00 per month, which salary was utilised to maintain the
deceased and their minor child. He also maintained his parental home though
there is no legal duty on him to do so.
[9] He has a previous conviction for possession of drugs (dagga) for which he paid
an admission of guilt fine of R100.00 without going on trial in 2008.
THE CRIME:
[10] It is ironic that the deceased was trialled during the month that our nation
celebrates women's month. Every year, in August, South Africa celebrates
women's month to pay tribute to the more than 20 000 women who marched to
the Union Buildings on 9 August 1956 in protest against the oppressive apartheid
Pass Laws to women. Our society have always acknowledged the importance
of women and the significant role they play. The CLAA was enacted for, amongst
others, to introduce harsher sentences in instances where domestic violence
victims, which are mostly females, are murdered.
[11) This highlights the seriousness with which the legislature views the lives of
women. Women are regarded as a vulnerable group in our society due to the
scourge of gender-based violence. For this reason, the CLAA was modified to
prescribe the minimum sentence of life imprisonment.
[12) Violence against anyone, is a constitutional violation of the right to freedom and
security of the person, which includes the right to be free from all forms of
violence, be it from public or private sources. Excessive force was applied to the
deceased and she sustained multiple injuries in the most inhumane fashion
imaginable. The sanction to be imposed should also fit the severity of the crime.
As a nation we cannot celebrate women by treating them as disenfranchised
persons by imposing sentences that undervalue their existence.
Page7
INTERESTS OF SOCIETY:
[13] The State called Aletta Swartz ("Swartz") to give evidence on the impact the
death of the deceased had on her family and also on the Warrenton community.
[14] Swartz testified that the deceased was her niece. The deceased was
unemployed, had four children and the lastborn, now aged 4, were born between
her and the accused. The youngest is a boy who resides with her sister's child,
named Celeste Swartz. The said individual receives a grant for the youngest
child. The other three children are living w ith their father's sister as the father
passed on about five years ago. The aunt also receives a grant for them.
[15) She testified that the death of the deceased affected the family negatively and
they are struggling to come to terms with her death. The death of the deceased
has affected the children to such an extent that when they come to visit, they cry
a lot. It has also affected their schooling, especially the eldest child. The death
has further impacted the community where the deceased comes from. According
to Swartz, the community had expressed their dislike for what had happened to
the deceased.
[16] The youngest child's last recollection of his mother is that of a police van. When
the boy sees a police van, he would say that his mother is in that vehicle.
According to Swartz, the accused have never apologised for the death nor has
he expressed emotion regarding her death. This was the only viva voce evidence
presented.
[17] The conduct of the accused has also violated the aforesaid children's
constitutional rights enshrined in Section 28 of the Constitution of the Republic of
South Africa, Act 108 of 1996. Section 28(1)(b) reads as follows:
"28(1) Eve,y child has the right to -
Page8
(b) family care or parental care, or to appropriate alternative care when
removed from the family environment".
[18] The accused has taken away the very fundamentals or essence of being a child,
which is to receive parental care from his/her parent. The damage done is
immeasurable and it has left a void that no sanction can fill.
[19] As Courts operate within society, it is expected of Courts to express its
dissatisfaction with serious offences through its sentences,. which in turn will act
as a deterrent for potential wrongdoers.
ANALYSIS:
[20] Although life imprisonment is described as the minimum sentence, there is not a
heavier sentence that a Court can impose in our country. Life imprisonment is
the most severe sentence and should be reserved for the most serious of criminal
acts. Goosen J penned it eloquently in S v Weideman [2014] ZAECPEHC 62
which reads as follows:
"Life imprisonment is the most severe sentence that can be imposed by a court. For this
reason, it is, generally speaking, reserved for the most serious and egregious criminal
acts. It is also reserved for those instances where the criminal poses a clear and present
danger to the society and where there is little or no prospect of rehabilitation of the
criminal and reintegration of that individual into society. This does not however mean
that a court should keep something in reserve on the basis that some more serious
manifestation of the crime can be imagined. It means only that the sentence of life
imprisonment mu.st be proportionate to the nature of crime.for which it is imposed. "
[21] The accused is, for all intents and purposes, a first offender having fallen foul of
the law only once previously by paying an admission of guilt fine for possession
Page9
of dagga more than 17 years ago. His criminal record is indicative of the fact that
he is a candidate for rehabilitation which does not mean that he should not be
removed from society for a considerable period.
[22] From the diction used by the accused and the behaviour of the deceased in terms
of the evidence led, it appears that an emotionally charged atmosphere prevailed
between the aforesaid parties. In addition, the murder was not pre-planned.
[23] In S v Jacobus Pitso KS?/2025, a Northern Cape Division ruling at paragraph
31, Lever J took the abovementioned circumstances into consideration as
justification to deviate from the prescribed minimum sentence of life
imprisonment. Each case should however be decided on its unique set of facts.
(24] The evidence in the trial points to the deceased as the aggressor that evening at
a tavern before the incident occurred. It cannot be contested that provocation
played a role in the commission of the offence, and should be considered as a
mitigatory factor in favour of the accused.
[25] Alcohol also played a role in the commission of the offence, even though the
evidence is that it did not affect the faculties of the accused. This, together with
the fact that the crime was a spur of the moment event, I find as favourable
circumstances in favour of the accused.
[26] Given the circumstances, a lengthy imprisonment is the only appropriate
sentence. I have accepted that the accused has committed a spur of the moment
act for which he is not remorseful. The offence he committed is by its nature
extremely serious and involved gender-based violence.
[27] Mr Steynberg, on behalf of the accused, argued that life imprisonment is an
extreme sentence and should not be imposed lightly. He quoted Section 73( 1 ){b)
Page 10
of the CORRECTIONAL SERVICES ACT 111 of 1998, which provides the
following:
"An offender sentenced to life incarceration rem ains in a correctional centre for the rest
of his or her life. "
He further submitted that the fact that an accused can be released on parole at
some stage prior to his death should not be a determining factor when a sanction
is meted out. I am in agreement with these subm issions and find it legally sound.
[28) Balancing the various considerations, and bearing in mind the period of nearly
19 months that the accused has already spent in custody, I am of the view that
life imprisonment is an inappropriate sentence and that it would be unjust to
impose such a sentence.
[29] I find in the light of what is contained herein, that there are substantial and
compelling reasons to divert from the statutorily prescribed minimum sentence of
life imprisonment.
[30] This Court also has a duty in terms of Section 299A of the CRIMINAL
PROCEDURE ACT 51 of 1977 to inform any immediate relative of the deceased
that he/she has a right, subject to the directives issued by the Comm issioner of
Correctional Services under subsection ( 4 ), to make representations when
placement of the accused on parole, on day parole or under correctional
supervision is considered or to attend any relevant meeting of the parole board.
[31] The following sentence is imposed:
1. THE ACCUSED, BUTIKI SIMON MABOITSHEGE , IS HEREBY
SENTENCED TO 20 (TWENTY) YEARS IMPRISONMENT IN
APPEARANCES:
For The State:
Instructed By:
For The Accused:
Instructed By:
Page 11
RESPECT OF THE CHARGE OF MURDER THAT HE HAS BEEN
FOUND GUil TY ON.
ADVEKRUGER
Office of the D irector of Pub lic Prosecutions
Kimberley
MR H STEYNBERG
Legal Aid South Africa, Kimberley