IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case No.: CC38/2025
Reportable Yes/No
In the matter between:
THE STATE
versus
MORIS CHAMUNORWA ACCUSED
________________________________________________________________
SENTENCE
________________________________________________________________
Cengani-Mbakaza AJ
[1] There is a concerning trend. This court has been sitting in East London
circuit court for only two weeks. In that short span and on different occasions in
both weeks, a report came before this court in the form of an indictment, stating
allegations of a wo man being killed by her partner. This reinforces the need to
raise awareness about domestic violence and its consequences. Although the
Legislature has made significant inroads in curbing the scourge, the ongoing
awareness remains essential. The Domestic V iolence Amendment Act 14 of
2021 (DVA) emphasises the responsibility to inform complainants about their
rights and applicable remedies. This is crucial given the dire consequences of
abuse including death. Constant public awareness can potentially prevent the
plague, encourage victims to seek help and promote a culture of respect and
empathy.
[2] What is even more concerning is that in both cases the women were
killed in the presence of their minor children, which is a particular disturbing
aspect. Under the DVA as amended, exposing a child to domestic violence is
prohibited. Exposing a child to domestic violence, as demonstrated by the facts
of this case, is defined as intentionally causing a child to see or hear domestic
violence or experience its effect . This means that the new amendment
strengthens the protection for children. The child’s best interests concept is
further underscored.
[3] I am highlighting these aspects to illustrate the alarming prevalence of
gender-based violence in our communities. Despite the alarming rate of gender-
based violence, this court must remain collected in its approach on sentencing.
Certain responsibilities are guided by the precedent and these must be observed.
A well-balanced approach is crucial during sentencing to e nsure that justice is
served.
[4] Therefore, this court will consider not only the prevalence of the crime,
its nature and seriousness, the accused’s personal circumstances and the
interests of the society warrant a thorough scrut iny.1 In line with S v Matyityi,2
consideration will also be given to the impact the offence has caused on the
victims in particular the deceased and the minor child (the 07 -year-old girl ).
This court will also keep the purposes of punishment in mind. These purposes
were described in R v Swanepoel 3 as deterrent, preventative, reformative and
retributive. In S v Rabie 4 reference was made to Gordon, Criminal Law of
1 S v Zinn 1969 (2) SA 537 (A).
2 2011 (1) SACR 40 (SCA) para 16-17.
3 1945 AD 444 at 455.
4 1975 (4) SA 855 (A) at 862 A-B.
Scotland, (1967) at 50 where it was stated that: "The retributive theory finds the
justification for punishment in a past act, a wrong which requires punishment
or expiation... The other theories, reformative, preventive and deterrent, all find
their justification in the future, in the good that will be produced as a result of
the punishment".
[5] As pointed out in R v Karg 5, the deterrent effect remains important.
However, as far as the retributive effect of punishment is concerned, it is
equally important in serious violent crimes in that, if sentences are too lenient,
the administration of justice will fall into disrepute, and the injured may be
inclined to take the law into their own hands.
[6] The circumstances of this case are that the accused had a suspicion that
the deceased was involved with another man after he saw a male person exiting
their home. Driven by jealousy, a common factor in these types of cases, the
accused confronted the decea sed about the man, but the deceased did not
respond. It was during this confrontation that the accused started assaulting the
deceased, resulting in her death. With the deceased lying helplessly, the accused
had no option but to call her mother the followi ng day and inform her about the
situation.
[7] It is common cause that during the brutal assault, the deceased
experienced physical trauma in the form of at least 23 injuries all over the body
and head. As already noted in the ex-tempore judgment, the physical injuries
coupled with the change of weapons from a broomstick to a pick handle exhibit
a direct intention to kill. This is further exacerbated by a finding of two causes
of death, namely a crush syndrome and blunt force to the head.
5 1961 (1) SA 231 at 236 A-B.
[8] While it is acknowledged that the accused made certain admissions, his
denial of the element of intention to kill was contradicted by the medical
analysis, the type of weapons used and the photographs depicting the injuries
suffered by the deceased during the assault. Consequently, he was convicted of
murder as contemplated under s 1(1) Part 1 of Schedule 2 of the Criminal Law
Amendment Act, 105 of 1997 (the CLAA). The reliance on this provision
emanates from the fact that the death of the d eceased resulted from physical
abuse, as contemplated in paragraph (a) of the definition of DVA, 116 of 1998.
[9] Commenting on the scourge of domestic violence and its impact, the
Supreme Court of Appeal (SCA) in Mudau v State said:
‘[6] Domestic violence has become a scourge in our society and should not be treated
lightly but deplored and also severely punished. Hardly a day passes without a report in
the media of a woman or child being beaten, raped or even killed in this country. Many
women and children live in constant fear. This is in some respects a negation of many
of their fundamental rights such as equality, human dignity and bodily integrity. This
was well articulated in S v Chapman 1997 (3) SA 341 (SCA) at 345A -B w hen this
Court said the following:
‘Women in this country have a legitimate claim to walk peacefully on the streets to
enjoy their shopping and their entertainment, to go and come from work, and to enjoy
the peace and tranquillity of their homes without t he fear, the apprehension and the
insecurity which constantly diminishes the quality and enjoyment of their lives.’’
[10] I now deal with the personal circumstances of the deceased and her 07 -
year-old child. The deceased’s vulnerability extends beyond be ing a woman,
she was a defenceless and physically disabled human being. Her disability
affected her limbs. She grew up in a low -income household, dependent on her
disability grant. She had one child whom she was nurturing exceptionally well,
disability grant. She had one child whom she was nurturing exceptionally well,
as evident fro m the social worker’s report. This report notes that before the
ordeal, the child was an extroverted individual who expressed her feelings
confidently and performed well academically, completing all her tasks.
[11] However, after the incident, the girl i s reported to be struggling
psychologically. The trauma she endured is detailed in the social worker’s
report, which notes that she experiences nightmares and sleep talking, during
which she shouts the accused’s name. Additionally, she exhibits forgetfulne ss
often forgetting minor issues and appears absent -minded staring at objects
without reason until her name is called.
[12] She is struggling to keep up with her school tasks. Her guardian, whom
she resides with was once summoned to the school due to concerns from
teachers about changes in her behavioural patterns. Despite the challenges, her
guardian takes care of her, she rec eives a social grant and is still attending
school.
[13] The accused is a 45 -year-old man, originally from Zimbabwe. He is
married but had separated from his wife for a long time. He has had his own
personal struggles, which began when his two minor children died in a fire after
being left unattended by his estranged wife. Following this incident, he started a
relationship with the deceased. Throughout his adult life he has worked odd
jobs and also earned income as a traditional healer. Growing up in Zimbabwe,
he passed form 4 which is equivalent to grade 11 in terms of South African
academic gradings.
[14] The last leg of Zinn approach needs no overemphasis. The courts are
duty-bound to protect the int erests of society. The court operate within society,
and its decisions have impact on individuals in the ordinary circumstances of
daily life.6
6 S v Banda 1991 (2) SA 325 (BG).
[15] The CLAA has been amended further to include life imprisonment for
these cases, placing a responsibility on the offender to show the existence of
substantial and compelling circumstances. Now that all the surrounding
circumstances are before court, the crucial inquiry is whether the accused has
demonstrated the existence of substantial and compelling circumstances.
[16] The substantial and compelling circumstances are not defined by the
statute, however, the SCA in S v Malgas7 held:
‘[25] E. The legislature has however, deliberately left it to the courts to decide whether
the circumstances of any parti cular 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 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
sentencing process. G The ultimate i mpact of all 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…’
[17] In its assessment of substantial and compelling circumstances, the SCA in
Malgas8 (para 25D) explained that deviation from the prescribed sentences
should not be based on frivolous or flimsy reasons. In this reg ard, the SCA’s
stance is that speculative hypothesis favourable to the offender, sympathy,
aversion to imprisoning first -time offenders and personal doubts about the
efficacy of the sentencing policy are all irrelevant considerations.
[18] Counsel for the defence argued that the accused’s personal circumstances,
taken cumulatively, constitute substantial and compelling circumstances. In
7 [2001] ZASCA 30.
7 [2001] ZASCA 30.
8 Fn 8 above.
contrast, counsel for the state emphasised the absence of substantial and
compelling circumsta nces, particularly in light of the facts of this case and
relevant case law. In her motivation, the defence counsel reflected on and
emphasised the accused’s emotional state, his consumption of liquor, the
admissions he made, as well as the fact that there was no pattern of abuse or
violence between the accused and the deceased prior this incident.
[19] The argument positing that these factors constitute substantial and
compelling circumstances is in my view not persuasive, given the following:
The jealousy that triggered the accused’s emotional state is considered a
controlling behaviour which is prohibited by the DVA. Many women in this
country have lost their lives at the hands of their partners due to this possessive
behaviour.
[20] The accused had the option to simply leave the deceased, especially if he
had lost trust in her. What is also concerning is that he suspected the man he
saw near his house to be in a relationship with the deceased, yet instead of doing
enquires from the man, he opted to brutally assault the deceased, taking
advantage of her vulnerable state in particular her disability. Furthermore, after
he assaulted her to his satisfaction, he left her lying helplessly and only to attend
to her the following morning. This conduct is unacceptable.
[21] Although it was submitted that he was under the influence of liquor, there
is no evidence to suggest that his mental state was diminished as a result of
alcohol consumption. Notably, he el ected not to testify under oath during
sentencing, and there is no evidence regarding the amount of alcohol he
consumed. The DVA particularly with its recent amendments, has broadened
the definition of domestic violence, such that a single act of abuse is sufficient
to constitute domestic violence, rather than requiring a pattern of abuse.
Therefore, the argument that there was no prior history of violence between the
two parties is not compelling.
[22] This court acknowledges t hat the accused has a constitutional right to
challenge evidence and plead not guilty, however, his attempts to minimize the
assault and its consequences demonstrate a lack of remorse. Furthermore, his
insistence on denying the element of intention to kill despite the overwhelming
medical and other evidence underscores this fact.
[23] Commenting on sentencing and gender -based violence cases, the
Supreme Court of Appeal in S v Maila 9 per Mocumie JA (with Carel se and
Mothle JJA and Mjali and Salie AJJA concurring) held:
‘[59] Taking into account Jansen, Malgas, Matyityi, Vilakazi and a plethora of
judgments which follow thereafter as well as regional and international protocols which
bind South Africa to respond effectively to gender-based violence, the courts should not
shy away from imposing the ultimate sentence in appropriate circumstances, such as
this case… Courts should, through consistent sentencing of o ffenders who commit
gender-based violence against women and children, not retreat when duty calls to
impose appropriate sentences, including prescribed minimum sentences… When the
legislature has dealt some of the misogynistic myths a blow, courts should n ot be seen
to resuscitate them by deviating from the prescribed sentences based on personal
preferences of what is substantial and compelling and what is not. This will curb, if not
eradicate, gender -based violence against women and children and promote w hat
Thomas Stoddard calls ‘culture shifting change.’ [certain words and footnotes omitted].
[24] Upon consideration of all the facts presented, I conclude, as already noted
that there are no substantial and compelling circumstances in this case. Instead,
the nature and seriousness of the offence, the interests of the victims as well as
9 (429/2022) [2023] ZASCA 3 (23 January 2023).
the interests o f the society weighs more heavily than the accused’s personal
circumstances.
[25] Consequently, the following sentence is imposed:
1. In terms of sections 51(1), Part 1 of Schedule 2, of the Criminal Law
Amendment Act 105 of 1997, the accused is sentenc ed to life
imprisonment.
2. In terms of section 103(1) of the Firearms Control Act 60 of 2000, the
accused remains unfit to possess a firearm by operation of law.
_______________________
N CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the State : Adv Mondliwa
DPP, Makhanda
For the Accused : Adv Mtini
Legal Aid-SA, Makhanda
Date Heard : 03 September 2025
Date Delivered : 04 September 2025