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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: CC04/2023
In the matter between:
THE STATE
and
M[...] W[...] Accused
JUDGMENT ON SENTENCE
GQAMANA J
[1] This case highlights once again the plight of vulnerable persons, in particular
women in our society who are often unable to defend themselves against violent
perpetrators. The deceased was the mother of the accused and during her lifetime,
they were residing at the same address.
[2] Courts have stated that violence by men towards women is pandemic in South
Africa. The femicide rate is five times higher than the global average.1
[3] Because of the prevalence of domestic violence against women, there is an
expectation from communities in general for the courts to protect women against
commission of such crimes.
[4] In S v Rohde,2 the court there said the following:
‘Crime based on gender is an affliction in our society. Crimes against women are a social
ill and if efforts by government and society are increasingly in light of a steady increase in
these types of offence. The rate of murder of women in South Africa is alarmingly high
compared to the global average. Attitudes to women determine how wo men are treated in
society. It is the lowered perception of women as human beings, all of whom are entitled to
human dignity and equality, which results in the unhealthy social paradigm that they can be
victims, and in fact end up as victims of crime because they are women. The judiciary must
guard against such perception and creating the impression that the lives of women are less
worthy of protection.’
[5] In this case the accused has been convicted of murder committed under the
circumstances contemplated in section 51 (1) of the Criminal Law Amendment Act
105 of 1997 as amended by Act 38 of 2007, read with Part 1 of Schedule 1 of Act
105 of 1997 as amended and further read with section 15 (g) of Act 12 of 2021, in
that, the death of the victim resulted fr om physical assault as contemplated in
paragraphs (a) and (b) of the definition of domestic violence in section 1 of the
1 S v Pillay 2018 (2) SACR 192 (KZD) at para 1.
2 2019 (2) SACR 422 (WCC) at para 54.
Domestic Violence Act 116 of 1998, by the accused who is in a domestic
relationship with the victim as defined in section 1 of the Act. Further the accused
has been convicted of contravention of section 30 (1), (2) and (3) of the Older
Person Act 13 of 2006 in that, he physically assaulted the deceased who was a 62 -
year-old female person by kicking her on the head and trampled on her.
[6] In imposing an appropriate sentence the court must consider the well -known
triad factors mentioned in S v Zinn. 3 An appropriate sentence should reflect the
severity of the crime, while at the same time giving full consideration of all the
mitigating and aggravating factors.
[7] The crime of murder has since time immemorial been considered by our courts
as a very serious offence.
[8] In S v Nyangwa,4 this court said that:
‘The prevalence of the crime of murder is such that cognisance is sometimes loss o f the
extreme consequences that fall from it. Life is ended. And with it the enjoyment of all the
rights vested in that person: dignity, equality and freedom, and the right to life itself. Not
only is life ended, but the lives of family and friends are irr eparably altered. It is for this
reason that the rule of law requires that the perpetrator should, generally, be visited with
harsh punishment. The act of punishment serves as retribution. It serves also to signify that
such crimes will not be tolerated, t hat there is a significant and serious consequences to be
suffered by the perpetrator. But, as a society founded upon the respect for and protection of
human dignity, our criminal justice system also acknowledges that, where possible, the
consequences should be ameliorated where there is a prospect that the perpetrator maybe
rehabilitated and reintegrated into society upon the completion of the sentence imposed.’
[9] The court in imposing an appropriate sentence must strive to find a balance
3 1969 (2) SA 537 (A).
4 Per Goosen J (then) (CC25/2018) [2019] ZAECD PEHC 46 (7 August 2019).
between too muc h and too little sentence because too light a sentence may not
reflect the gravity of the offence and would tend to allay the fear of punishment in
the minds of other people.
[10] In R v Karg,5 Schreiner JA said the following:
‘While the deterrent effect of punishment has remained as important as ever, it is, I think,
correct to say that the retributive aspect has tended to yield ground to the aspects of
prevention and correction. That is not doubt a good thing. But the element of retribution, is
historically important is by no means absent from the modern approach. It is not wrong
that the natural indignation of interested persons and the community at large should receive
some recognition in the sentences the courts imposed. And it is not irrelevant to be ar in
mind that if sentencing for serious crimes is too lenient, the administration of justice may
fall into disrepute and injured persons may incline to take the law into their own hands.’
[11] However having said all this, courts should not approach puni shment in a
spirit of anger, nor should it strive after severity or surrender to misplaced pity.
Punishment is not a revenge.
[12] The point of departure in this case is that the prescribed minimum sentence of
life imprisonment in respect of count 2 must be imposed, unless I find substantial
and compelling circumstances which justify a departure therefrom.6
[13] If, I am of the view that having regard to the nature of the offence, the
personal circumstances of the accused and the interests of society, t he prescribe
minimum sentence would be disproportionate and would be unjust to impose it, I
would be justified to deviate from the minimum sentence.7
[14] I turn now to consider the personal circumstances of the accused: he was born
5 1961 (1) SA 231 (A) at 236 A-B.
6 S v Malgas 2001 (1) SACR 469 (SCA).
7 S v Vilakazi 2009 (1) SACR 552 (SCA).
on 10 June 1979, and he is now 46 years of age. He has two minor children, 12 and
11 years old respectively, both of whom are residing with his grandmother here in
Gqeberha. Their biological mother passed on in year 2019. He completed grade 9
secondary level and due to financia l constraint, he was unable to further his
academic studies. He was employed from 2006 to 2019 delivering newspapers. Not
much is known on his income thereon, nor about his siblings. However, at the time
of the commission of these offences he was residing at the same family home with
the deceased and his now late father. Although he has previous convictions but all
of them are irrelevant for purposes of this matter as they are not violent related,
and as such he will be treated as first offender. He pleaded guilty only after the
State had presented its case. He has not showed remorse. He has been in custody
since 14 July 2022, awaiting trial. The relationship between the deceased and the
accused was that of a mother and son relationship. Whether such relationship was a
healthy one, the evidence in that regard is limited. However, the undisputed
evidence from the accused is that, his mother was severely addicted to prescription
medication like stilpayne and “PAX”. She would take these pain killers several
times a day by crushing them into powder and lick them off her hand. The effect
thereof would make her unsteady on her feet and unable to perform house chores.
Because of that the atmosphere at his home was often very strained. This persisted
even on the day that he assaulted the deceased.
[15] Counsel for the accused acknowledged that life sentence is applicable in
respect of count 2. However, she submitted that such sentence would be
disproportionate to the circumstances of this case and that each matter has to be
considered based on the a pplicable facts and that, the traditional mitigating factors
and aggravating factors had to be considered together. In pleading for a lesser
and aggravating factors had to be considered together. In pleading for a lesser
sentence, the argument advanced was that, the personal circumstances of the
accused, the fact that he pleaded guilt y and his clean record considered
cumulatively with all his other personal circumstances do justify a lesser sentence.
It was strongly argued that, although murder on its own is a serious offence
especially because this matter it involves domestic violence but, the manner in
which it occurred, life imprisonment would be disproportionate. It was however,
conceded that a lengthy sentence is unavoidable and that the accused is a capable
candidate for rehabilitation.
[16] On the other hand, counsel for the Sta te, argued for a life sentence in respect
of the murder. It was argued that the accused assaulted the deceased viciously by
repeatedly kicking and trampling on her head causing severe injuries as testified by
Dr Hansloo and recorded in the postmortem report. It was argued that as a result of
the accused actions, the deceased had to be admitted in hospital as she was
severely weak. The deceased had to be incubated and was unable to speak in her
last days of life. She remained in hospital until her last day. The injuries sustained
by the deceased are well documented in the postmortem report and shall not be
repeated, suffice to say that they were severe. The cause of death was recorded as
being the complications following blunt force trauma to the head. I read ily accept
that, the assault was vicious and that murder, especially the presence of domestic
violence is an aggravating factor which warrants this court to impose a harsher
sentence.
[17] Although the accused has pleaded guilty, but he has showed no remorse.
However, his actions of pleading guilty to me is an indication that he is a candidate
for rehabilitation.
[18] There are plethora of authorities, 8 which emphasises the scourge of violence
by men towards women and which calls for court to impose h arsher sentences to
recognise the seriousness of such situations.
[19] Although the court must take into consideration the interests of society, but it
must not over-emphasise the public interest and the general deterrence.
[20] The Supreme Court of Appeal in S v Crossley9 said:
“… any sentence imposed must have deterrent and retributive force. But of course, one
must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and
retribution are legitimate elements of punishment, they are not the only ones, or for that
matter, even the overriding ones. … It is true that it is in the interest of justice that crime
should be punished. However, punishment that is excessive serves neither the interests of
justice nor those of society.”
[21] In this case the evidence before me in relation to the circumstances under
which the deceased was physically assaulted by the accused are set out in the
statement in terms of section 112 (2) of the Criminal Procedure Act. In summary,
the accused has stated that, on the day in question between 10h00 and 11h00 in the
morning, he was woken up by his mother who was calling him outside to the
backyard. Upon attending to that, he found her lying on the grass fully intoxicated
from the drugs to the extent that s he was unable to stand on her feet. The deceased
requested him to assist her in taking down the clothing off the washing line. He
became angry and frustrated by the deceased because she was intoxicated again.
He complied with the request by the deceased, a nd he took down the washcloth
and the other clothing. He dragged the deceased across the lawn in a grassy area
with stones and small rocks to the back door. He further dragged her two steps at
8 Mudau v S 2014 ZASCA 43 (31) March 2014; S v van Staden [2017] ZANCHC 21 (20 March 2017, S v Rohde
(supra), S v Pillay (supra).
(supra), S v Pillay (supra).
9 2008 (1) SACR 223 (SCA) at para 35.
the back door. While they were inside the house in the kitchen area, he shouted at
her for being intoxicated and he lost control of his emotions, and he kicked the
deceased several times on the head. He admitted that he knew that the deceased
was an elderly person in a vulnerable state and him kicking her in the head could
possibly cause fatal consequences but despite that, he continued kicking her. He
admitted that the intention in the form of dolus eventualis was present. He noticed
that the deceased was bleeding, and he used the cloth to clean her head. Thereafter
he took the deceased to her bedroom to sleep and he also went to his own bedroom.
He was only woken up later that day when his late father and the deceased were
talking to the police. The deceased was then taken to hospital, and he never saw
her again. He o nly became aware of her death later while he was already in
custody.
[22] The State witnesses, Ms Vellem, Sgt Mtongana and Ms Agnew testified on
how weak the deceased was because of the extent of the injuries she sustained. Ms
Agnew together with the inve stigating officer had to call an ambulance to take the
deceased to hospital. The doctor that examined the deceased at hospital, Dr
Bouwer also confirmed that the deceased was unconscious on admission. Doctor
Mbombo also testified how the condition of the d eceased deteriorated to the extent
that she had to be incubated.
[23] There was no victim -impact evidence presented by the State and as a result I
have no knowledge and the extent of the impact of the deceased’s death to her
children, family, friends and to the society in general. Despite the absence of that
evidence, the injuries suffered by the deceased were severe and in any event
murder in itself is a serious offence. In addition, there was domestic violence
involved. However, the circumstances under which the offence took place and the
personal circumstances of the accused makes me unease to impose the life
sentence.
[24] In S v Malgas, the Supreme Court of Appeal said the following:
“The greater the sense of unease a court feels about the impositio n of a prescribed sentence, the
greater its anxiety will be it may be perpetating an injustice. Once a court reaches the point
where unease has hardened into a conviction that an injustice will be done, that can only because
it is satisfied that the circum stances of the particular case render the prescribed sentence unjust
or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate
needs of the society. If that is a result of the consideration of the circumstances, the court is
entitled to characterise them as substantial and compelling and as such as to justify the
imposition of a lesser sentence.”
[25] In this matter, the circumstances of this case, his plea of guilty, the period of
three years in custody awaiting tri al, his clean record and his home environment
are in my view amount to substantial and compelling circumstances justifying
lesser sentence than the life imprisonment. I hold the view that the accused stands a
chance to be rehabilitated and integrated into society upon completion of his
sentence. The period of imprisonment that I intend to impose will give him an
opportunity to work on his anger and control of his emotions and would assist in
rehabilitating himself and to respect women and life in general.
[26] Furthermore taking into consideration the fact that both counts 2 and 3 were
committed at the same, it would be appropriate to order that the sentence to run
concurrently.
[27] In the circumstances the accused is sentenced as follows:
1. On count 2, (murder) the accused is sentenced to 20 years’ imprisonment
2. On count 3, (contravention of section 30 (1), (2) and (3) of the Older Person
Act, 13 of 2006) the accused is sentenced to 4 years’ imprisonment
3. The sentence imposed on count 3 shall run co ncurrently with the sentence
imposed on count 2.
N GQAMANA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the State : Adv Cerfontein
Instructed by : Director of Public Prosecutions
Gqeberha
Counsel for Defence : Adv J Coertzen
Instructed by : Legal Aid
Gqeberha
Heard on : 17 September 2025
Judgment delivered on : 18 September 2025