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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NUMBER: A 66/2024
DPP REF. NUMBER: 12/4
Date: 24 July 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 17/9/2025
SIGNATURE:
In the matter between:
LUCAS VAN DER MERWE APPELLANT
and
THE STATE RESPONDENT
This order is made an Order of Court by the Judge whose name is reflected herein ,
duly stamped by the Registrar of the Court and is submitted electronically to the
Parties/their legal representatives by e -mail. This Order is further uploaded to the
electronic file of this matter on Case Lines by the Judge or his/her secretary. The
date of this Order is deemed to be 17/09/2025.
JUDGMENT
Du Plessis. AJ (With Makhoba J concurring):
1. Introduction and Background
1.1. The appellant, Mr Lucas van der Merwe, was convicted in the Regional Court,
Springs, on 15 March 2023 of murder, read with the provisions of section 51(1) and
Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997. He was
sentenced on the same day to twelve (12) years' direct imprisonment.
1.2. The charge arose from an incident which occurred on 26 October 2018 at the
Selcourt Shopping Centre parking lot, Springs, Gauteng. On that day, the deceased,
Mr Vusi Oupa Mgiqwa, was performing his d uties as a car guard in the parking lot.
The appellant, accompanied by his wife and young daughter, had parked at the
centre while they went shopping.
1.3. When the appellant returned to the parking area, a verbal dispute ensued
between him and the decease d regarding the parking of his vehicle. The altercation
escalated into a physical confrontation, during which the appellant struck the
deceased with his fist. The deceased fell backwards, struck his head on the
pavement, and later died in hospital from blunt force head trauma.
1.4. The appellant was legally represented at trial by Advocate M. van Wyngaard.
He pleaded not guilty to the charge of murder, tendering no plea explanation.
1.5. On conviction and sentence, the appellant applied for leave to appeal. The
Regional Magistrate refused leave, but on petition to this Court, in terms of section
309 of the Criminal Procedure Act 51 of 1977, leave was granted to appeal against
both conviction and sentence.
1.6. Bail pending appeal was subsequently granted on 4 November 2024.
1.7. The central issues in this appeal are:
1.7.1. Whether the conviction for murder is sustainable on the evidence; and
1.7.2. If not, what the appropriate substituted conviction and sentence should
be.
1.8. The state called five witnesses. I shall deal with their evidence separately.
Evidence of Zinhle Matsinye
2.
2.1. Mr Zinhle Matsinye testified that on 26 October 2018, early evening, between
2.
2.1. Mr Zinhle Matsinye testified that on 26 October 2018, early evening, between
18:30 and 19:00, he was working as a car guard at the Selcourt Shopping Centre
parking lot i n Springs. He stated that he observed the altercation between the
appellant, Mr van der Merwe, and the deceased, Mr Vusi Oupa Mgiqwa.
2.2. According to Matsinye, after words were exchanged between the appellant
and the deceased, the appellant struck the de ceased with his fists. He described the
blow as forceful and claimed that it was not a single strike but several punches. He
testified that the deceased immediately collapsed to the ground, hitting his head on
the pavement.
2.3. During cross -examination by counsel for the defence, Matsinye's evidence
presented numerous difficulties:
2.3.1. He introduced for the first time the allegation that the appellant was
using a knuckle -duster when striking the deceased. This allegation was
absent from his initial poli ce statement and was never suggested during
examination-in-chief. Importantly, it was inconsistent with the medical
evidence presented by Dr Tladl, who expressly ruled out injuries consistent
with the use of a weapon.
2.3.2. He was inconsistent about the n umber of blows. At one stage, he
insisted there were two or three punches, while later conceding he was not
certain.
2.3.3. He further claimed that he observed the entire incident from beginning
to end, yet his presence was placed in doubt by the evidence of another
eyewitness, Mr Heyns, who testified that Matsinye was not present in the
immediate area when the incident occurred.
2.3.4. At the identification parade, Matsinye failed to identify the appellant as
the assailant, a fact that undermined his credibility as an eyewitness.
2.4. On the probabilities, Mr Matsinye did not readily concede obvious limitations
in his observation. When pressed on factors such as vantage point, lighting, the
movement of the participants during the altercation and intervals w here his line -of-
sight may have been interrupted, he tended to give categorical answers instead of
acknowledging uncertainty. A fair concession on these points would have been
acknowledging uncertainty. A fair concession on these points would have been
consistent with ordinary human perception under stress. His reluctance to conc ede
reduces the weight of his more absolute statements, especially where they purport to
exclude reasonable alternatives.
2.5. That said, there are aspects of his evidence that remain reliable: the broad
sequence (verbal confrontation escalating into physi cal force), the relative
positioning of the parties at key moments, and the fact that the deceased ended up
prone/disabled before assistance arrived. Those core features were internally
consistent and, on their face, aligned with the surrounding objective features (post-
incident condition of the deceased; subsequent medical findings).
2.6. These contradictions and omissions seriously compromised his reliability.
While his evidence may corroborate the fact that an assault occurred, his
embellishments - particularly the introduction of a weapon - cannot be accepted. The
court therefore approached his testimony with caution, accepting it only to the limited
extent that it confirmed that the appellant struck the deceased, which was consistent
with the appellant's own admissions.
2.7. Considering that Van der Merwe was found guilty of murder, the status of his
intent is relevant. The parts of Mr Matsinye's evidence that may illuminate the
accused's state of mind may be sought in the description of the force applie d or
continuing after the deceased was already down or otherwise incapacitated, or any
contemporaneous utterances, tone, or purposeful targeting of vulnerable areas (e.g.,
head/upper body). No evidence was tendered that could be probative of a subjective
appreciation of risk and a decision to persist regardless. The state did not safely
establish the persisting force aspect partly due to the observational limitations
Matsinye refused to concede. In the absence thereof, the inference to intent
weakens and the analysis tends toward negligence rather than purpose.
2.8. In sum, Mr Matsinye's unwillingness to make fair concessions where
appropriate detracts from the certainty of his more definitive claims. These factors
rendered his testimony unreliable. It was approached with caution and could only be
accepted in par t - namely, that an assault occurred, a fact consistent with the
appellant's own admissions.
Evidence of Mr Ryan John Heyns
3.
appellant's own admissions.
Evidence of Mr Ryan John Heyns
3.
3.1. Mr Ryan John Heyns also gave evidence as an eyewitness. On 26 October
2018, he was seated in his motor vehicle In the Selcourt Shopping Centre parking lot,
waiting for his girlfriend who was shopping inside. From his vantage point, he was
able to observe the confrontation between the appellant and the deceased.
3.2. Heyns testified that he saw the appellant deliver what he b elieved to be two
punches to the deceased's face. As a result, the deceased fell backwards and struck
the back of his head on the pavement.
3.3. Under cross-examination, Heyns made certain concessions which diminished
the reliability of his evidence in some respects:
3.3.1. He acknowledged that his attention was not fixed on the appellant and
deceased throughout the altercation, as he was intermittently distracted by
events inside the shopping centre and by his own cell phone.
3.3.2. He conceded that although he initially insisted there were two punches,
it was possible that only one blow was struck. This concession brought his
version more in line with that of the appellant and the pathology evidence.
3.3.3. He further admitted that before the physical conf rontation there had
been an exchange of words, thereby acknowledging the role of provocation.
3.3.4. He vacillated on whether the deceased fell straight backwards or to the
side, reflecting uncertainty about some of the finer details of the fall.
3.4. Despite these uncertainties, Heyns remained consistent on the critical issue:
the appellant struck the deceased, who fell and sustained a head injury upon impact
with the pavement. His testimony, while not flawless, was more coherent and
credible than that of Matsinye and Is of greater probative value.
3.5. Mr Heyns likewise tended not to concede ordinary limitations that inevitably
attend dynamic, short -lived incidents. Where it would have been reasonable to
acknowledge that distance, angle, movement, and mome ntary obstructions could
affect precision (e.g., exact number of strikes, precise sequencing at split seconds),
he maintained a degree of certainty that is difficult to reconcile with the conditions he
described elsewhere. That resistance to obvious concessions affects reliability at the
margins-particularly on fine grained counts (how many blows; precise order).
margins-particularly on fine grained counts (how many blows; precise order).
3.6. Reliability remains stronger on higher -level features that multiple sources
support: an altercation occurred; the accused applied physical force; the deceased's
condition deteriorated thereafter; and assistance was eventually sought. Those
aspects, in Mr Heyns' account, were coherent and broadly consistent.
3.7. On intent: Mr Heyns' evidence does not indicate that the accused re -engaged
after the deceased fell or that he escalated force after the deceased was down, or
that he aimed at especially vulnerable areas despite the deceased's visible
incapacity. This is relevant to a finding or not that the accused foresaw a serious risk
and reconciled himself to it.
3.8. In sum, much like Mr Matsinye, Mr Heyns's testimony is most reliable at the
level of general sequence and least reliable where it relies on absolute precision that
he declined to temper with fair concessions.
Evidence of Sergeant Morife
4.
4.1. Seargant Morife testified as a police officer involved in the investigation of the
incident of 26 October 2018 at the Selcourt Shopping Centre parking lot, Springs.
4.2. His role was primarily administrative and investigative rather than as an
eyewitness. He was tasked with arranging the identification parade at which
witnesses were asked to point out the alleged perpetrator.
4.3. Morife confirmed that the identification parade was conducted in accordance
with procedure, and that Mr Matsinye was among the participants. He recorded that
Matsinye, who had claimed to be an eyewitness, failed to identify the appellant at the
parade.
4.4. His testimony therefore served to highlight the weakness and unreliability of
Matsinye's evidence.
Evidence of Sergeant Baloyi
5.
5.1. Sergeant Baloyi of the South African Police Service testified that he was one
of the officers who attended the scene of the altercation on 26 October 2018.
5.2. Upon arrival at the Selcourt Shopping Centre, he found that the victim, Mr
Vusi Oupa Mgi qwa, had already been removed from the scene and transported to
hospital.
5.3. His evidence was confirmatory: he established that a confrontation had taken
place and that the deceased had suffered injuries leading to hospitalisation. Baloyi's
role was limi ted to securing the scene and gathering information. His testimony
corroborated the fact that an incident had occurred but provided no direct evidence
of how the altercation unfolded.
Evidence of Dr Tsa Tladi (Pathologist)
6.
6.1. Dr Tladi conducted the post-mortem examination on 28 October 2018, two
days after the incident. He confirmed that the deceased died in hospital later on 26
October 2018.
6.2. His findings included:
6.2.1. A sutured laceration at the back of the head;
6.2.2. A sub-aponeurotic haematoma;
6.2.3. A subdural haemorrhage; and
6.2.4. Contusion of the frontal lobe.
6.3. He concluded that the cause of death was blunt force trauma to the head
consistent with the deceased striking the pavement after a fall.
6.4. He expressly excluded multi ple blows or use of a weapon such as a knuckle -
duster.
6.5. His medical opinion aligned with the appellant's account of a single blow and
contradicted the embellished version advanced by Matsinye.
Evidence of The Appellant
7.
The defence called only the appellant.
7.1. The appellant, Mr Lucas van der Merwe, testified about the events of 26
October 2018 at the Selcourt Shopping Centre parking lot, Springs. In his evidence -
in-chief, he described how he, his wife, and young daughter were returning to their
vehicle when an altercation occurred with the deceased, Mr Vusi Oupa Mgiqwa, a
car guard.
7.2. He stated that the incident began as a verbal exchange. He attempted to walk
away but claimed that the deceased advanced aggressively, with one hand behind
his back. Believing that his own safety and that of his daughter were under imminent
threat, he struck the deceased once with his fist and simultaneously pushed him
away to create distance.
7.3. The deceased fell backwards, struck his head on the pavement, an d
collapsed. The appellant explained that he did not continue the confrontation and
immediately left the scene with his family. He emphasised that he never intended to
kill the deceased and that his actions were impulsive, motivated by fear and a
protective instinct.
7.4. Under cross-examination, certain shortcomings emerged:
7.4.1. He arguably exaggerated the deceased's threatening posture, as no
weapon was observed by any witness nor recovered at the scene.
7.4.2. He failed to offer a convincing explanation for why he did not simply
retreat to his vehicle or remove his daughter from the confrontation.
7.4.3. His insistence that he struck only one blow conflicted with Mr Heyns's
impression of two blows, though Heyns later conceded it could have been
only one.
7.4.4. His immediate departure from the scene was raised as indicativ e of
indifference to the deceased's condition, though he explained this as concern
for his daughter and the shock of the moment.
7.5. Despite these criticisms, his version was not demolished in cross
examination. He remained consistent on the core element s of his defence: that only
one blow was struck; that no weapon was used, that he did not foresee death, and
that he ceased all aggression once the deceased fell.
7.6. Significantly, his version aligns with the medical evidence of Dr Tladi, who
confirmed t hat the injuries were consistent with a single fall after a strike and
inconsistent with multiple blows or use of a knuckle-duster.
7.7. The Court therefore finds that while the appellant's evidence diminished the
strength of his self -defence justification, it nevertheless established that he did not
act with intent to kill. His actions were negligent rather than intentional, amounting to
a lapse of judgment in the heat of a provoked confrontation, but not proof of dolus
eventualis.
Argument before Conviction (16 May 2023)
8.
8.1. Private defense: Counsel argued that van der Merwe acted to protect himself
and his family when the deceased advanced aggressively, with a hand behind his
back as if reaching for a weapon. The blow and push were defensive re actions to an
imminent threat. Counsel stressed that the State had not proved beyond reasonable
doubt that Van der Merwe did not act in lawful self-defense.
doubt that Van der Merwe did not act in lawful self-defense.
8.2. Putative private defense : Alternatively, even if the objective facts did not
justify private defence, Counsel submitted that Van der Merwe honestly believed he
and his daughter were under threat. Such a bona fide but mistaken belief should
exclude intention to kill.
8.3. On murder: Counsel argued that the magistrate could not convict of murder,
even on dolus eventualis, because van der Merwe never foresaw the possibility of
death. The act - one fist strike and a push - was not ordinarily lethal. Dr Tladi
confirmed that such conduct would not normally result in death. Reliance was placed
on S v Van As 1976 (2) SA 921 (A), where a single slap leading to an unforeseeable
fatal fall was held insufficient for murder. At most, negligence was proved.
The Regional Magistrate's Judgement
9.
9.1. In her judgment, the learned Regional Magistrate rejected all of the appellant's
defences - private defence, putative private defence, and culpable homicide. She
reasoned that the requirements for lawful private defence were not satisfied, since
the deceased was not engaged in an unlawful attack at the time of the a ssault. She
further dismissed putative private defence, finding that the appellant's claim of
fearing for his daughter's safety was a fabrication.
9.2. In support of her reasoning, she relied on Mthetheleni Pardon Nene v The
State (AR 65/2017, KZP), where the court carefully distinguished between genuine
private defence, putative private defence, and the culpability that arises when a
mistaken belief is advanced but excluded on the facts. She also referred to S v Ntuli
1975 (1) SA 429 (A), in which the Ap pellate Division stressed that the enquiry must
be conducted robustly, without seeking "to measure with nice intellectual calipers"
the precise bounds of legitimate self -defence. The test is an objective one. The
magistrate was correct in identifying these cases as setting out the relevant
principles. However, the difficulty lies in her application of those principles to the
facts before her.
9.3. Instead of properly separating the objective requirements of private defence
9.3. Instead of properly separating the objective requirements of private defence
from the subjective state of mind relevant to putative private defence, she conflated
the two and concluded that because the appellant "should have known" of the risk of
death, intention was proved. This formulation substituted an objective negligence -
based test for the subjective foresigh t required for dolus eventualis , thereby
misapplying the authorities she herself cited.
9.4. In Mthetheleni Pardon Nene v The State ((AR65/2017) [2018] ZAKZPHC 46
(4 May 2018) referred to by the magistrate the leading authority which sets out the
test to distinguish between private defence and putative private defence are referred
to in par 30 "... in S v De Oliviera 1993 (2) SA SACR 59 (A) at 63h -64a, Smalberger
JA deals with the difference as follows: 'From a juristic point of view the difference
between these two defences is significant. A person who acts in private defence acts
lawfully, provided his conduct satisfies the requirements laid down for such a
defence and does not exceed its limits. The test for private defence is objective -
would a reasonable man in the position of the accused have acted in the same way
(S v Ntuli 1975 (1) SA 429 (A) at 436 (E)). Jn putative private defence it is not
lawfulness that is in issue but culpability ('skuld ’). If an accused honestly believes his
life or property to be in danger, but objectively viewed they are not, the defensive
steps he takes cannot constitute private defence. If in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life or property was in
danger may well (depending upon the precise circumstances) exclude dolus in which
case liability for the person's death based on intention will also be excluded; at worst
for him he can then be convicted of culpable homicide.'
Assessment
10.
10.1. The distinction between murder and culpable homicide lies in the form of fault:
10.1.1. Murder requires proof of intention (dolus directus or dolus eventualis).
10.1.2. Culpable homicide requires only negligence.
10.2. In S v Sigwahla 1967 (4) SA 5 66 (A) at 570B-C, the Appellate Division made
clear that:
"The fact that objectively the accused ought to have foreseen the possibility of
resultant death is not sufficient. The subjective foresight must be proved."
10.3. This authority emphasises that an accused cannot be convicted of murder
10.3. This authority emphasises that an accused cannot be convicted of murder
unless it is shown beyond reasonable doubt that he actually foresaw the possibility of
death and reconciled himself to that outcome.
10.4. The test for dolus eventualis was reiterated in S v Chabalala 2003 (1) SACR
134 (SCA) and S v Humphreys 2013 (2) SACR 1 (SCA).
Two elements must be satisfied:
10.4.1. The accused subjectively foresaw the possibility of the
prohibited consequence (death); and
10.4.2. He reconciled himself with that possibility.
10.5. Mere foreseeabili ty, however strong, is insufficient if reconciliation with the
fatal outcome is not proved.
10.6. In contrast, culpable homicide is established where the accused failed to meet
the standard of a reasonable person. In S v Bernardus 1965 (3 ) SA 287 (A) the
Appellate Division held that culpable homicide rests on whether a reasonable person
in the position of the accused would have foreseen the possibility of death and
guarded against it.
10.7. Applying these authorities to the present matter, it Is apparent th at the
Magistrate acknowledged that the blow itself was a single act but concluded that the
surrounding circumstances required a finding that the appellant appreciated the risk
of death and nevertheless continued with his conduct.
10.8. In reaching this co nclusion, she referred to several authorities, including
Mthetheleni Pardon Nene v The State and Ntuli . The Magistrate was correct in
identifying these cases as laying down the applicable legal principles. However, the
difficulty arises in the application of those principles to the facts of this matter.
10.9. The learned magistrate convicted the appellant of murder on the basis of
dolus eventualis. In her reasoning, she stated that the appellant " should have known
that when you hit a person with a fist an d the person fell to the pavement, that
person can die. " This formulation imports an objective test of what a reasonable
person ought to have foreseen. The law is clear that such an objective approach
establishes negligence ( culpa), not dolus eventualis. The correct enquiry is whether
the appellant himself subjectively foresaw death and reconciled himself to that
outcome.
10.10. The Magistrate cited the principle that the State must prove intention, but then
concluded intent on the basis of " should have kno wn". By finding that the appellant
concluded intent on the basis of " should have kno wn". By finding that the appellant
"should have known," the magistrate overlooked this requirement of subjective
foresight and effectively displaced the onus by relying on negligence to infer intent.
10.11. In Sigwahla, the Appellate Division warned agains t conflating what an
accused ought to have foreseen (negligence) with what he actually foresaw
(intention). ?Y reasoning that the appellant "must have foreseen" death from his
actions, the Magistrate impermissibly imported an objective standard into the en quiry.
10.12. Chabalala emphasised that the State must prove the accused's guilt beyond
reasonable doubt and that the accused's version must be rejected as false before a
conviction can follow. In this matter, the appellant's version - that he struck one blow
in the face of perceived aggression - was not shown to be false and was consistent
with the medical evidence of Dr Tladi. The Magistrate's dismissal of that version was
therefore unwarranted.
10.13. Moreover, the Magistrate did not adequately evaluate the contradictions in the
State's evidence:
10.13.1. Mr Matsinye claimed multiple blows and the use of a knuckle -
duster, yet this was contradicted by his own statement, undermined by his
failure to identify the appellant at the ID parade arranged by Consta ble Morife,
and ruled out by Dr Tladi's medical findings.
10.13.2. Mr Heyns, though more reliable, conceded uncertainty as to the
number of blows (possibly one), the direction of the fall, and admitted he was
distracted. His concessions undermined the strength of the State's case while
lending partial support to the appellant's version.
10.14. Taken together, the State's case did not establish subjective foresight of death
beyond reasonable doubt. At best, it proved that the appellant was negligent in
striking the deceased without foreseeing that such an impulsive act might cause him
to fall and sustain fatal injuries.
10.15. Accordingly, the Regional Magistrate's reliance on these cases does not
support the conviction of murder. Instead, they illustrate why the conviction should
have been for culpable homicide.
10.16. In her judgment, the magistrate rejected both private defence and putative
private defence. In respect of private defence, that conclusion was correct. The
evidence of the two eyewitnesses established that the deceased was not attacking
the accused at the time he was struck. The deceased had produced no weapon,
made no physical assault. and there was no imminent unlawful attack to repel. The
made no physical assault. and there was no imminent unlawful attack to repel. The
requirements for lawful private defence were therefore absent, and the magistrate's
rejection of that ground was justified.
10.17. The difficulty lies in her rejection of putative private defence. The magistrate
treated the accused's reliance on fear for his daughter's safety as fabricated and
therefore dismissed any possibility that he genuinely, though mistakenl y, believed
himself and his family to be under threat. In doing so, she conflated actual private
defence, which requires objective imminence, with putative private defence, which is
concerned only with the accused's subjective belief. The sudden altercatio n, the
heated words exchanged, and the proximity of the accused's wife and daughter all
create at least a possibility that he acted under a mistaken impression of danger.
That possibility was not excluded beyond reasonable doubt.
10.18. Moreover, the magis trate misapplied the test for dolus eventualis . She
reasoned that because "he should have known" that a person might die if struck and
fell, he therefore foresaw death. That is an objective negligence -based standard, not
the subjective foresight required f or intention. As explained in S v Sigwahla 1967 (4)
SA 566 (A) at 570 B-C, it is not sufficient that the accused ought to have foreseen
death; it must be proved that he in fact foresaw the possibility and reconciled himself
with it. On the medical evidence , this was a single impulsive blow resulting in an
unexpected fatal fall. There is no proof beyond a reasonable doubt that the accused
subjectively foresaw death and reconciled himself to it.
10.19. Once the defense of private defense is excluded, the accu sed remains guilty
of an unlawful assault. Once intention is excluded whether by reason of putative
private defense or by the misapplication of dolus eventualis -the correct verdict is
culpable homicide. The unlawful act caused the deceased's death, but it was
committed negligently rather than intentionally.
10.20. Accordingly, the Regional Magistrate's reliance on these cases does not
support the conviction of murder. Instead, they illustrate why the conviction should
have been for culpable homicide.
Sentence
11.
(A) Interference with Original Sentence
11.1. The Regional Court imposed a sentence of 12 years' direct imprisonment for
murder, having already deviated from the minimum prescribed 15 years in terms of
the Criminal Law Amendment Act 105 of 1997.
the Criminal Law Amendment Act 105 of 1997.
11.2. It is trite that sentencing falls primarily within the discretion of the trial court ( S
v Rabie 1975 (4) SA 855 (A) at 857; S v Bogaards 2013 (1) SACR 1 (CC)). An
appeal court will only interfere where:
11.2.1. the trial court committed a material misdirection;
11.2.2. the sentence is vitiated by irregularity; or
11.2.3. the sentence is disturbingly inappropriate or induces a sense of
shock (S v Pieters 1987 (3) SA 717 (A)).
11.3. Here, the sentence of direct imprisonment was premised on a convict ion of
murder with dolus eventualis. As I intend altering the conviction to culpable homicide,
the underpinning for the original sentence falls away. This constitutes a material
change in the factual and legal basis for sentence. The appeal court is theref ore
entitled to interfere and impose sentence afresh ( S v Malgas 2001 (1) SACR 469
(SCA)).
(B) Proportionality in Sentencing
11.4. In S v Van As 1976 (2) SA 921 (A), the Appellate Division emphasised that
where an assault unintentionally causes death, pun ishment must reflect the absence
of dolus.
11.5. In S v Zinn 1969 (2) SA 537 (A) at 540G, the court laid down the triad:
"What has to be considered is the crime, the offender, and the interests of
society."
11.6. In S v Mashaba CC 29/2021(2022) ZAMPMBHC 92 (7 December 2022) the
Court emphasised the same balancing act:
"The acknowledged objects and purposes of punishment are deterrent,
preventive, reformative and retributive. The elements of the triad contain an
equilibrium and a tension, and a court should strive to accomplish a judicious
counterbalance between these factors in order to ensure that one element is
not unduly accentuated at the expense of and to the exclusion of the others."
11.7. Applying these principles:
11.7.1. The offence is serious, for a life was lost, but lacking intent and
resulting from a single impulsive blow, not sustained violence.
11.7.2. The offen der is a first offender in practical terms, employed, a
breadwinner, with stable family support, remorseful, and assessed as a low
risk of re-offending.
11.7.3. The interests of society demand accountability and deterrence,
but also recognise that rehabili tation and reintegration can be achieved
but also recognise that rehabili tation and reintegration can be achieved
without imprisonment.
11.8. In this court it was suggested that direct imprisonment is disproportionate. Mr
Van Wyngaard for the accused suggested that correctional supervision could be
considered as a suitable sent encing option. The State, on the other hand, argued
that correctional supervision might amount to too lenient a sentence, given that a life
was lost and that the interests of society demand adequate retribution.
11.9. It is now an accepted principle that a structured correctional supervision order,
which is punitive, restrictive, and rehabilitative and achieves proportionality may be
appropriate, but cannot be determined in isolation - a correctional supervision report
is required before such an option coul d responsibly be entertained. To consider
correctional supervision as a sentencing option we requested a report to be
submitted within three weeks from the date of the appeal.
(C) Appropriateness of Correctional Supervision
11.10. In S v Potgieter 1994 (1 ) SACR 61 (A), the Appellate Division held that
correctional supervision is justified where the offender is not inherently criminal, has
rehabilitative prospects, and imprisonment would serve little purpose.
11.11. Similarly, in S v R 1993 (1) SA 476 (A), the Court stressed:
"Correctional supervision is not a soft option. It is a form of punishment in its
own right, demanding and exacting."
11.12. In Samuels v S 2011(1) SACR 9 (SCA) at par 9 -10 ,Ponnan JA held that
sentencing courts must differentiate bet ween those offenders who ought to be
removed from society and those who although deserving of punishment should not
be removed. With appropriate conditions correctional supervision can be made a
suitably severe punishment even for persons convicted of serious offences.
11.13. S v Mashaba is particularly instructive because, despite a conviction of
murder, correctional supervision was imposed. At para 46 the Court submitted:
"Correctional supervision has been recognised as a severe and exacting form
"Correctional supervision has been recognised as a severe and exacting form
of punis hment, and when structured with strict conditions, can serve all the
legitimate purposes of sentencing without the destructive consequences of
imprisonment for offenders who are not inherently criminal."
11.14. These passages in Mashaba confirm that even w here the offence is serious,
correctional supervision is appropriate for an offender such as the appellant:
remorseful, employed, with dependants, and with rehabilitative potential.
11.15. I now proceed to consider the Correctional Supervision report.
(D) Correctional Supervision Report - Evaluation and Assessment
11.16. A Correctional Supervision Report was compiled by Ms Jeanette Molokomme
a senior social worker with the Department of Correctional Services, dated 6 August
2025. Ms Molokomme is a duly appo inted correctional supervision officer authorised
in terms of Section 276A of the Criminal Procedure Act 51 of 1977, to conduct such
assessments and make recommendations to the court.
11.17. In preparing her report, Ms Molokomme investigated the personal
circumstances of the appellant, his family background, employment situation,
criminal history, attitude to the offence, and prospects for rehabilitation.
11.18. The report records that the appellant:
11.18.1. accepts responsibility and has expressed remorse;
11.18.2. is steadily employed and the sole breadwinner for his
dependents;
11.18.3. has no prior convictions for violent offences;
11.18.4. enjoys strong family support; and
11.18.5. presents a low risk of re-offending.
11.19. Ms Molokomme expressly considered whether the appellant was an
appropriate candidate for correctional supervision, and concluded that he is suitable
for such a sentence. She recommended that the court impose correctional
supervision in terms of sect ion 276(1)(h) of the Correctional Services Act 1998, No.
111 of 1998, subject to the detailed conditions set out in paragraph 2.2 of her report.
11.20. The background assessment of Ms Molokomme should be considered
together with the evidence of the Appella nt, Mr van der Merwe regarding his
personal circumstances and the evidence of Ms Mgiqwa (Family of the Deceased),
submitted on 15 June 2023. Mr Van der Merwe submitted:
11.20.1. He was 44 years old, married and the father of two minor
children.
11.20.2. He was gainfully employed and the sole breadwinner for his
family.
11.20.3. He expressed remorse for the events that led to the death of the
deceased.
11.20.4. He emphasised that his actions were not premeditated, but
rather a single impulsive strike deliver ed in the context of a heated verbal
confrontation.
11.20.5. He explained his motivation as protective instinct towards his
daughter, who was present during the altercation, and described that he
immediately disengaged once the deceased fell.
11.21. In mitigation, this evidence highlighted the appellant's rehabilitative potential,
his strong family responsibilities, his status as a first offender, and the absence of
inherent criminality. It underscored that incarceration would have a disproportionate
impact on his dependants and may not serve society's interests.
11.22. The testimony of Ms Mgiqwa, a close relative of the deceased (the record
indicates she is either his sister or a near family member), described the
consequences of the deceased's death on the family:
11.22.1. The deceased had been a provider for his family, and his death
left his dependents destitute.
11.22.2. The family experienced significant emotional trauma and grief,
particularly given the sudden and violent circumstances of his death.
11.22.3. His children were deprived of their father's guidance and
financial support, creating long-term hardship.
11.23. This evidence served as a victim impact statement, emphasising the
seriousness of the offence and its devastating consequences for the family of the
deceased. It underscored the constitutional value of the right to life, which had been
violated, and supported society's call for accountability.
11.24. The court was therefore required to balance two competing sets of evidence:
11.24.1. The mitigating factors advanced by the appellant, portraying him
as a remorseful first offender whose actions arose from negligence and
impulsivity, with strong prospects for rehabilitation; and
11.24.2. The aggravating factors advanced by Ms Mgiqwa, undersco ring
the seriousness of the offence, the irreparable loss suffered by the deceased's
the seriousness of the offence, the irreparable loss suffered by the deceased's
family, and the societal interest in deterrence.
11.25. Had the conviction of murder stood, the aggravating evidence would have
weighed heavily in favour of a lengthy cust odial sentence. However, with the
conviction altered to culpable homicide, the mitigating evidence gained greater
weight.
11.26. The evidence of Ms Mgiqwa could not be ignored; it compelled the court to
recognise the seriousness of the loss of life and to ensure that any substituted
sentence was not perceived as trivialising the offence. It therefore justified the
imposition of a structured and onerous correctional supervision order with strict
conditions, rather than a wholly suspended sentence or mere fine.
11.27. In the end, I am satisfied that a period of imprisonment wholly suspended on
condition, coupled with correctional supervision under strict statutory conditions
reflects the balancing of both sets of evidence.
I now turn to the Conditions of Corre ctional Supervision as suggested in the report
para 2.2.
12.
12.1. Two categories of conditions are recommended in paragraph 2.2 of the
Correctional Supervision Report, Mandatory recommendations (like house arrest,
community service, weekly reporting), an d Discretionary or conditional measures
(like electronic monitoring, psychotherapy, or additional skills training) which the
officer says may be imposed if the court or Correctional Services finds it necessary.
12.2. These conditions are authorised under Section 52 of the Correctional
Services Act 1998: No. 111 of 1998 and are in my view appropriate in this particular
matter:
12.3. (a) House Arrest (s 52(1)(a))
The appellant is to remain confined to his residence except for hours authorised for
employment, religious observance, medical needs, or as approved by the
Correctional Supervision Officer. This is a punitive restriction of liberty, directly
comparable to imprisonment, but without the destructive impact of incarceration. It is
especially suitable he re because the offence occurred in a public setting after a
heated altercation; house arrest reduces opportunities for such impulsive conflict.
12.4. (b) Community Service (s 52(1)(b))
The appellant must perform a minimum of 16 hours of community service per month
The appellant must perform a minimum of 16 hours of community service per month
throughout the period of the sentence. Community service ensures accountability,
exacts personal sacrifice, and symbolically restores the balance disrupted by the
offence. In t his matter, where the appellant is gainfully employed and supports
dependants, community service is an effective form of punishment that does not
destabilise his employment but still exacts a tangible sanction.
12.5. (c) Attendance at Programmes (s 52(1)(c))
The appellant must attend and complete anger management and conflict resolution
programmes, as well as life skills training. This condition directly addresses the
impulsivity and poor conflict management that lay at the root of the fatal incident.
Rehabilitative programmes are essential to reduce the risk of recurrence and are
preventative in nature.
12.6. (d) Prohibition on Alcohol Abuse (s 52(1)(d))
The appellant is to refrain from alcohol abuse and may be subjected to monitoring or
testing. While alco hol was not the prime cause of the incident, the social context of
the altercation involved a setting where alcohol was present. Preventing abuse
ensures that the appellant's judgment is not impaired in future high -stress or
confrontational situations.
12.7. (e) Compulsory Reporting (s 52(1)(e))
The appellant must report in person to the Correctional Supervision Office in Springs
on a weekly basis. Weekly reporting ensures structured monitoring and
accountability. It also maintains direct contact with cor rectional officials, ensuring
compliance and enabling intervention if problems arise.
12.8. (f) Monitoring and Visits (s 52(1)(f))
The appellant must permit u nannounced visits at home - and workplace by the
Correctional Supervision Officer. This ensures that house arrest and other conditions
are not evaded, while also reinforcing that correctional supervision is a strict and
enforceable sanction.
12.9. (g) Restriction on Leaving Jurisdiction (s 52(1)(g))
The appellant may not leave the Springs district with out prior written consent. This
restriction is proportionate to ensuring close monitoring and preventing flight risk,
while still permitting limited mobility under controlled circumstances.
12.10. (h) Restriction on Association (s 52(1)(h))
The appellant may not associate with persons or groups deemed undesirable by the
Officer. Although this minimises risks of negative influences and situational triggers,
Officer. Although this minimises risks of negative influences and situational triggers,
it is not an appropriate measure in this particular matter.
12.11. (i) Restriction on Places (s 52(1)(i))
The appellant may not visit taverns, shebeens, or other inappropriate venues. This
minimises environmental risk factors, especially where alcohol may fuel
confrontation. This is regarded as appropriate despite no evidence of alcohol playing
a role in this matter.
12.12. (j) Employment Conditions (s 52(1)(j))
The appellant must remain employed or actively seek employment if circumstances
change. Employment provides stability, accountability, and supports dependants,
while reinforcing rehabilitation. This condition is particularly important here, as the
appellant is the sole breadwinner.
12.13. (k) Skills Development (s 52(1)(k))
The appellant must attend vocational or skills development programmes if directed.
This supports long -term rehabilitation and enh ances prospects of reintegration.
Although he is already employed, additional training ensures constructive focus
during supervision.
12.14. (I) Financial Obligations (s 52(1)(I))
The appellant must continue to support his dependants and inform the Officer of any
changes in income. This protects his family's welfare, while reinforcing responsibility
and accountability.
12.15. (n) Electronic Monitoring (s 52(1)(n))
The Officer did not deem it necessary.
12.16. (o) Restriction on Weapons (s 52(1)(o))
The appellant may not possess firearms or dangerous weapons. This is crucial in a
matter arising from a physical confrontation and minimises risks of escalation in
future disputes. The accused is in any event, in terms of section 103(1)(g) of the
Firearms Control Act 60 of 2000, declared unfit to possess a firearm.
12.17. (p) Regular Assessments (s 52(1)(p))
The appellant must undergo regular progress assessments. This condition provides
ongoing review of compliance, ensuring that correctional supervision remains
tailored and effective.
12.18. (g) Counselling or Social Work Interventions (s 52(1)(g))
The appel lant must attend counselling or group therapy sessions if directed. This
ensures that any underlying psychological or social issues contributing to impulsivity
are addressed.
12.19. (s) General Compliance (s 52(1)(s))
The appellant must comply with all law ful instructions of the Officer. This general
clause ensures flexibility and allows the Officer to adapt conditions to changing
circumstances.
12.20. Collectively, these conditions form a strict and comprehensive sentence. They
impose significant punitive, rehabilitative, and supervisory obligations. They are
individually appropriate to address the risk factors in this case and collectively
ensure proportionality, deterrence, and rehabilitation.
Order
13.
Having given due consideration to the evidence, the sub missions of counsel, the
correctional supervision report, and the principles of sentencing, the following order
is made:
13.1. The conviction of murder is set aside and replaced with a conviction of
culpable homicide.
13.2. The sentence of twelve years' direct imprisonment is set aside and substituted
with:
13.2.1. Ten (10) years' imprisonment, suspended for a period of three
(3) years , on condition that the accused is not convicted of any offence
involving violence committed during the period of suspensi on and to which he
is sentenced to a period of imprisonment without the option of a fine.
13.3. In addition, the accused is sentenced to three(3) years' correctional
supervision in terms of Section 276(1)(h) of the Criminal Procedure Act 51 of 1977,
subject to the following conditions (as previously listed and adapted to two years):
13.3.1. The appellant is placed under house arrest , save for hours
authorised for employment, religious observance, medical care, or other
purposes approved by the Correctional Supervision Officer.
He shall perform not less than 16 h ours of community service per month
throughout the 3-year period , at places and times designated by the
Correctional Supervision Officer.
13.3.3. He shall attend and complete anger management and conf lict
resolution programmes, and any other rehabilitative programmes directed.
13.3.4. He shall refrain from the abuse of alcohol and submit to
monitoring or testing as directed.
13.3.5. He shall report weekly, every Friday between 08h00 and 16h00,
to the C orrectional Supervision Office in Springs, 1 […] F[…] Street, Springs,
Tel: (011) 815-4312, or as otherwise instructed.
13.3.6. He shall permit home and workplace visits by the Correctional
Supervision Officer at any reasonable time.
13.3.7. He shall not leave the district of Springs without prior written
permission of the Correctional Supervision Officer.
13.3.8. He shall comply fully with all further lawful instructions of
the Correctional Supervision Officer.
13.4. The appellant must report to the Correct ional Supervision Office, Springs,
within 48 hours of this order to commence supervision.
13.5. In terms of Section 103(1)(g) of the Firearms Control Act 60 of 2000, the
appellant is declared unfit to possess a firearm. The Assistant Registrar is directed to
inform the Registrar: Central Firearms Control Register accordingly.
DU PLESSIS AJ
MAKHOBA J
I agree
Date of Judgment – 17/9/2025
Appearances
For the Appellant:
Adv M. van Wyngaard
Instructed by:
Matsemela, Krauses & Ngubeni Inc.
8 Sutter Road, Selection Park,
Springs
For the Respondent (State):
The Director of Public Prosecutions,
Gauteng Division,
Pretoria