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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Not Reportable
Case no: KS 25/2014
In the matter between:
ABRAHAM SEPTEMBER APPELLANT
and
THE STATE RESPONDENT
Neutral citation: September v The State (KS 25/2014) (28 November 2025).
Coram: PHATSHOANE DJP, WILLIAMS J and TYUTHUZA AJ.
Heard: 09 September 2025.
Delivered: 28 November 2025.
Summary: Criminal Law – appeal against sentence – sentence of life
imprisonment – startlingly disproportionate – sentence set aside and substituted on
appeal.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from Northern Cape Division of the High Court, Upington Circuit Court,
(Mamosebo AJ, sitting as Court of first instance):
1. The appeal against the sentence is upheld.
2. The sentence imposed by the trial court is set aside and replaced with the
following:
“The accused is sentenced to 23 years’ imprisonment.”
3. The substituted sentence is antedated to 4 February 2015 in terms of s 282 of
the Criminal Procedure Act 51 of 1977.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Phatshoane DJP (Williams J and Tyuthuza AJ concurring):
[1] The appellant was arraigned in this Court on a charge of murder read with the
provisions of s 51 of the Criminal Law Amendment Act 105 of 1997(the CLAA). The
respondent, the State, said that on 16 November 2012 near 5 […] K[...] Street,
Upington, he unlawfully and intentionally killed his cousin, Ms E[...] N[...] (the
deceased). He pleaded guilty to the charge of murder read with the provisions of s
51(2) of the CLAA. Having satisfied itself that the appellant admitted all the elements
of the offence the trial court (Mamosebo J), returned a guilty verdict. The appellant
was subsequently sentenced to life imprisonment. He is before us on appeal against
that sentence with leave of the Supreme Court of Appeal (SCA).
[2] The main thrust of the appellant’s argument is that the trial court erred in
imposing a sentence in excess of the minimum of 20 years imprisonment without
identifying the circumstances which motivated the imposition of a sentence greater
than the prescribed one.
[3] The background is briefly this. On 16 November 2012 the appellant was in the
company of the deceased whom he grew up with and was raised by her parents . He
told her that her younger brother took him to Bakhwetha Valley, where the appellant
was robbed. he was looking for the deceased’s younger brother so that they could
go in search of the robbers. He repeatedly relayed t his statement t o the deceased
which annoyed her . She reprimanded him to stop repeating the same conversation .
She pushed the appellant and he fell. He left but returned to the deceased ’s home,
once more, looking for her younger brother . The deceased enquired why the
appellant was seated on the coach. An altercation ensued between them . The
appellant followed the deceased to the kitchen where he stabbed her several times
with a knife . She screamed, freed herself from the appellant ’s grip and slumped to
the ground outside. He confessed that the deceased did nothing to him that
warranted the attack. Following the murder, he handed over to the police the murder
weapon and was apprehended. He admitted that he had the direct intention to kill the
deceased.
[4] In sentencing the appellant , the trial court heard the evidence of the
deceased’s 25-year-old son, the younger of two siblings. The deceased also had a
one-year-old grand child who resided with her. The trial court had regard to the
appellant’s personal circumstances . He was 51 years old with no dependants . He
completed standard 5 ( grade 7 ) at school . Prior to his arrest he was gainfully
employed as a machine operator at Orange Wine Cellars and earned R3 399 per
month. The trial court considered the record of the appellant’s previous convictions,
which related mainly to assault and theft, of the years 1980, 1983, 1985, 1986, 1987,
1988, 1991, 1992, with the last for murder on 24 April 2001. He was sentenced to 8
1988, 1991, 1992, with the last for murder on 24 April 2001. He was sentenced to 8
years’ imprisonment for the latter. The trial court held the view that it was no t so
much the previous convictions being very old but more concerning a pattern or trend
of violence on the part of the appellant.
[5] The trial court noted as aggravating circumstances the following. The
appellant stabbed the deceased seven times in her heart and lungs without any
provocation or justification . She was unarmed and was killed in the sanctity of her
home. The deceased’s parents raised the appellant. The court reasoned that society
would have expected the appellant to protect the deceased. The trial court also had
regard to the purpose and objectives of punishment , that is, deterrence, prevention,
reformation and retribution.
[6] The appellant was a second offender for murder. T he trial court remarked
that: this would ordinarily attract a minimum sentence of 20 years imprisonment in
terms of s 51(2) of the CLAA absent a finding on the existence of substantial and
compelling circumstance which would merit a deviation from the prescribed
sentence. The trial court found that none existed and further remarked that ‘the
accused has taken the lives of two human beings. A sentence of life imprisonment is
therefore warranted.’ Accordingly, that ultimate punishment was imposed.
[7] Essentially t he sentence is assailed on the basis that the trial court
misdirected itself in imposing the sentence of life imprisonment which, so it was
argued, is shockingly harsh and inappropriate. It was contended that the fact that the
appellant was a second offend er is not an aggravating factor which the court had to
employ to justify a sentence of life imprisonment. This factor had already been
brought into the reckoning by the legislature when it elevated the minimum sentence
from 15 years for a first offender to 20 years imprisonment for a second offender , so
the argument continued.
[8] Counsel for the appellant conceded that there were no substantial and
compelling circumstances which merited a deviation from imposing a lesser
sentence than the sentence prescribed in s 51(2) of the CLAA. However, he
contended that the trial court’s sole reason for imposing a life sentence , to the effect
that the appellant took the lives of two human beings , was a misdirection. Apart from
this, it was argued, no circumstances were identified by the trial court which impelled
this, it was argued, no circumstances were identified by the trial court which impelled
it to impose a sentence greater than the prescribed minimum. Counsel relied on S v
Maake (“Maake”)1, which approved the dictum in S v Mbatha2 where it was said that
a trial judge should identify the circumstances which impels it to impose a sentence
1 2011 (1) SACR 263 (SCA) para 28.
2 2009 (2) SACR 623 (KZP) (at 631f – j):
greater than the prescribed minimum and explain why they render the particular case
one where a departure from the prescribed sentence is justified.
[9] The SCA i n S v Mthembu 3 made the following pronouncement regarding the
above finding in Maake:
‘. . . Maake , in support of the broad hypothesis that conclusions by a court should be
properly motivated, called in aid Mbatha. It was submitted to us that Maake cited Mbatha
with apparent approval and that that constitutes an endorsement of its correctness on this
score. We do not agree. Maake did not subject the judgment in Mbatha to careful scrutiny,
nor was the correctness of its conclusion or reasoning properly considered. It sought support
from Mbatha in a wholly different context.’
[10] As already stated, the appellant pleaded guilty to murder on the basis of s
51(2) of the CLAA, which plea the State accepted. Section 51(2) provides in relevant
part:
‘Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a
High Court shall sentence a person who has been convicted of an offence referred to in-
(a) Part II of Schedule 2, in the case of-
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20
years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not
less than 25 years;
. . . ’
[11] The recitati on of the dicta in Mthembu below sets out insightfully the legal
position on the construction of s 51 of the CLAA:
‘Thus far our courts have simply accepted that if, upon an evaluation of the cumulative effect
of all the circumstances of a case, a higher sentence was called for, there were no
constraints on its discretion to impose a sentence far in excess of the ordained minimu m
(Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA
132) para 19). . . .4
. . .
132) para 19). . . .4
. . .
It is noteworthy that s 51 is headed “Discretionary minimum sentences for certain serious
offences”. That, together with repeated reference to the words “not less than” in ss (2), is the
3 [2011] ZASCA 179; 2012 (1) SACR 517 (SCA) (“Mthembu”) para 19.
4 Ibid para 5.
clearest indicator that the legislature did not intend to fetter the discretion of the sentencing
court...5
. . .
Plainly what we are dealing with is a legislative pro vision that fetters only partially the
sentencing discretion of the court. That much emerges from ss (3) (a) which entitles a court
to impose a lesser sentence than the sentence prescribed if it is satisfied that substantial
and compelling circumstances exi st which justify the imposition of such lesser sentence . It
follows that, even were a court to conclude that substantial and compelling circumstances do
indeed exist, it may in the exercise of its sentencing discretion nonetheless impose the
prescribed minimum or such higher sentence as to it appears just.6
. . .
Whilst ss (3)(a) obliges a sentencing court to enter the circumstances on the record if it is
minded to impose a lesser sentence than that ordained by the legislature, there is no
indication in the language of that provision that a similar course must be f ollowed where a
more severe sentence is contemplated.’7 (My emphasis.)
And in para 18, the SCA further observed:
'. . . After all, any sentence imposed, like any other conclusion, should be properly motivated
(S v Maake 2011 (1) SACR 263 (SCA)). And we should not lose from sight that our appellate
courts have, in terms of long-standing practice, reserved for themselves the right to interfere
where a sentence has been vitiated by a material misdirection or where it is shocking or
startlingly inappropriate . . .. [A] “vigilant examination of the relevant circumstances ” is
required.’
[12] It is trite that punishment is pre -eminently a matter for the trial court’s
discretion.8 The circumstances in which a court of appeal may interfere in the
sentencing discretion of a lower court are circumscribed. The principles were
restated in S v Malgas9 as follows:
‘. . . A court exercising appellate jurisdiction cannot, in the absence of material misdirection
by the trial court, approach the question of sentence as if it were the trial court and t hen
substitute the sentence arrived at by it simply because it prefers it. To do so would be to
5 Ibid para 8.
6 Ibid para 11.
7 Ibid para 13.
8 S v Rabie 1975 (4) SA 855 (A) at 857D – E; [1975] 4 All SA 723 (A) at 724.
9 S v Malgas [2001] ZASCA 30; 2001 (1) SACR 469 (SCA) ; 2001 (2) SA 1222 (SCA); [2001] 3 All SA
220 (A) para 12.
usurp the sentencing discretion of the trial court. Where material misdirection by the trial
court vitiates its exercise of that discretion, an appellate Court is of course entitled to
consider the question of sentence afresh. In doing so, it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court has no relevance. As it is
said, an appellate Court is at large . However, even in the absence of material misdirection,
an appellate court may yet be justified in interfering with the sentence imposed by the trial
court. It may do so when the disparity between the sentence of the trial court and the
sentence which the appella te Court would have imposed had it been the trial court is so
marked that it can properly be described as “shocking”, “startling” or “disturbingly
inappropriate”. It must be emphasised that in the latter situation the appellate court is not at
large in the sense in which it is at large in the former. In the latter situation it may not
substitute the sentence which it thinks appropriate merely because it does not accord with
the sentence imposed by the trial court or because it prefers it to that sentence. It may do so
only where the difference is so substantial that it attracts epithets of the kind I have
mentioned. No such limitation exists in the former situation.’
[13] The appellant was a second offender and the minimum sentence he faced in
the absence of substantial and compelling circumstance was 20 years imprisonment.
The trial court consider ed his personal and mitigation circumstances in the light of
the well -known triad of factors relevant to sentence .10 The appellant’s previous
convictions demonstrate that he has a propensity towards violence. The attack was
gratuitous and callous . He stood in a relationship of trust towards the deceased
which meant that he had to protect her. Serious crimes, such as the present , have
been singled out by the legislature for severe punishment.
been singled out by the legislature for severe punishment.
[14] The personal circumstances of an accused will recede into the background in
cases of serious crimes. 11 A guilty plea is not always indicative of remorse. Where
the case against the accused is open and shut, such a plea is, at best, a neutral
factor.12 Needless to say , an appropriate sentence must also take into account the
overarching constitutional constraint of proportionality. Retribution ought not to be
given undue weight and unduly accentuated in the balancing process .13 The trial
court’s conclusion on the sentence to be imposed, in the main, was motivated by the
10 See S v Zinn 1969 (2) SA 537 (A) at 540G.
11 See S v Vilakazi 2012 (6) SA 353 (SCA) para 58.
12 S v Barnard 2004 (1) SACR 191 (SCA) at 197G.
13 S v Makwanyane and Another 1995 (2) SACR 1 (CC); 1995 (6) BCLR 665 (CC) para 130 and 341.
fact that ‘the accused [had] taken the lives of two human beings .’ This overlooks that
the appellant had already been sentenced for the previous murder that he
committed. In my view, a sentence of life imprisonment is startlingly disproportionate
to the sentence we propose to impose and cannot be just. Therefore, we are at large
to determine an appropriate sentence.
[15] There can be no question that the fact that the appellant was a second
offender is aggravating. Gender-based violence remains a scourge in our society
despite our courts ’ tireless efforts at imposing severe punishment for serious
offences such as murder. The evaluation of the cumulative effect of all the
circumstances in this case, as the trial court correctly found, impels a sentence
greater than the prescribed minimum. In the result, the following order is made.
Order
1. The appeal against the sentence is upheld.
2. The sentence imposed by the trial court is set a side and replaced with the
following:
“The accused is sentenced to 23 years’ imprisonment.”
3. The substituted sentence is antedated to 4 February 2015 in terms of s 282 of
the Criminal Procedure Act 51 of 1977.
________________
M V PHATSHOANE
DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For the appellant: PJ Fourie
Instructed by: Legal Aid South Africa
Kimberley
For the respondent: T Engelbrecht
Instructed by: Director of Public Prosecutions
Kimberley.