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  • S v Lukas (Sentence) (CC32/2025) [2026] ZAECMKHC 9 …

S v Lukas (Sentence) (CC32/2025) [2026] ZAECMKHC 9 (29 January 2026)

80 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sentencing — Mandatory minimum sentences — Accused convicted of housebreaking with intent to rob, robbery with aggravating circumstances, and murder — Court applying provisions of the Criminal Law Amendment Act 105 of 1997 — Mandatory life sentence for murder where death caused during robbery — Court finding no substantial and compelling circumstances to deviate from minimum sentences — Accused sentenced to life imprisonment.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a High Court sentencing judgment in criminal proceedings in the Eastern Cape Division, Makhanda. The matter concerned the appropriate sentence to be imposed after the accused had already been convicted of multiple serious offences.


The parties were The State as prosecutor and Xolisa Lukas as the accused.


The procedural posture was that the court delivered a judgment on sentence following convictions for housebreaking with intent to rob and murder, robbery with aggravating circumstances, and murder. The sentencing enquiry took place against the backdrop of the minimum-sentences regime created by the Criminal Law Amendment Act 105 of 1997, which applied to the murder and robbery convictions.


The general subject-matter of the dispute at sentencing was whether the court should impose the prescribed minimum sentences, including life imprisonment for murder committed in the course of a robbery with aggravating circumstances, or whether the accused had established substantial and compelling circumstances justifying a lesser sentence.


2. Material Facts


The court recorded that, following the accused’s arrest (and the arrest of an associate), there was a volatile situation in Jansenville. Community members gathered at the accused’s home, threatened to kill him, and followed the police van to the police station. The police were prompted to implement strategies to maintain law and order. The court expressly stated that self-help was not condoned, referring to the risk that it undermines due process and the rule of law.


In relation to the offences, the court relied on the seriousness and brutality of the attack on the deceased. The court referred to photographic evidence depicting a chaotic crime scene, including a pool of blood and the deceased lying helpless and naked. The court treated the extent of the deceased’s injuries as indicating, among other things, direct intention to kill, and it considered that the accused was not merely content with gaining entry and committing robbery.


The court noted that although most stolen items were recovered, the photographs showed they were left in an unusable condition, which the court regarded as underscoring the aggravating circumstances of the crimes.


On the accused’s state of mind and attitude, the court considered that there was overwhelming evidence against him and that this raised questions about remorse. The court found that the accused lacked remorse and that the circumstances suggested planning and deliberation, including that he was spotted holding a firearm in a firing position. The court did not accept that earlier liquor consumption impaired his mental faculties to the extent that he could not appreciate his conduct and its consequences.


As to the accused’s personal circumstances, the court accepted that he was 26 years old, a first offender, had two minor children, had consumed liquor earlier on the day in question, and had been in custody for over a year pending finalisation of the matter. The court also recorded that the minor children were at their mother’s respective places and inferred from this that the accused was not a primary caregiver.


3. Legal Issues


The central legal question was whether, for the offences of murder and robbery with aggravating circumstances to which the Criminal Law Amendment Act 105 of 1997 applied, the accused had shown substantial and compelling circumstances as contemplated in section 51(3) that justified a departure from the prescribed minimum sentences, including life imprisonment for the murder count.


A related question concerned the appropriate overall sentencing structure, including whether sentences on different counts should run concurrently and what the effective sentence should be.


The dispute primarily concerned the application of legal standards to facts, rather than a contest about the existence of the minimum-sentence provisions. It also involved an evaluative judgment in weighing sentencing considerations, including the seriousness of the offences, the personal circumstances of the offender, and the interests of society, within the framework of both the statutory minimum-sentence regime and broader constitutional and sentencing principles.


4. Court’s Reasoning


The court located the sentencing exercise within established sentencing principles, referring to the triad in S v Zinn 1969 (2) SA 537 (A), namely the crime, the offender, and the interests of society. It emphasised a balanced approach aimed at achieving fairness and individualised punishment.


In addition, the court adopted a victim-centred approach as endorsed by the Supreme Court of Appeal in S v Matyityi (695/09) [2010] ZASCA 127 (30 September 2010); 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) (30 September 2010). The court treated Matyityi as confirming that an enlightened and just penal policy requires consideration of a range of sentencing options and that sentencing should also accommodate victims more effectively within the criminal justice system.


The court reinforced the sentencing analysis by reference to constitutional rights, including the right to life and human dignity, with reference to S v Makwanyane 1995 (3) SA 391 (CC) and to sections 10, 11, and 12 of the Constitution. The court also referred to section 12(1)(c) of the Constitution, emphasising the right to be free from violence from public or private sources, and found that the accused had disregarded these fundamental rights in committing the offences.


In assessing the gravity of the crimes, the court relied on the brutality reflected in the photographs and the nature of the injuries, treating them as indicative of a deliberate and sustained attack. The court also considered the community impact, noting evidence that the deceased was running a business and was regarded by witnesses as generous in assisting the community, while simultaneously cautioning that the community’s post-arrest conduct could not be justified. The court invoked S v Banda 1991 (2) SACR 325 (B) to emphasise that courts must maintain law and order, promote respect for the law, reflect the seriousness of offences, provide just punishment, and consider the protection of society and the maintenance of peace and tranquillity.


On the question of remorse, the court relied on Matyityi’s emphasis that remorse requires more than assertion, and that courts should consider motivation and whether the accused understands the consequences of the conduct. Applying this, the court found that the accused demonstrated a lack of genuine remorse, and that the circumstances pointed instead to planning and defiance, including his being seen with a firearm in a firing position.


In weighing the purposes of punishment, the court accepted that deterrence, prevention, rehabilitation, and retribution are all relevant, but it held that in violent crimes retribution and deterrence tend to take precedence. It relied on S v Swart 2004 (2) SACR 370 (SCA) for the proposition that the purposes of punishment are not necessarily to be given equal weight, and that serious crimes will often require retribution and deterrence to come to the fore, with rehabilitation playing a smaller role.


The court then considered whether the accused’s personal circumstances constituted substantial and compelling circumstances under section 51(3) of the Criminal Law Amendment Act. It referred to S v Malgas [2001] ZASCA 30 as authority that deviation from prescribed sentences should not occur for flimsy reasons, and that speculative hypotheses favourable to an offender, sympathy, or a general aversion to imprisoning first offenders are not proper bases to depart from the minimum-sentences scheme. Applying Malgas, the court concluded that the personal circumstances advanced by the defence, whether individually or cumulatively, did not amount to substantial and compelling circumstances.


In particular, the court reasoned that the children were being cared for by their mothers and that the accused was not shown to be a primary caregiver; that the period in custody of over a year could not be assessed in the accused’s favour without evidence illustrating its effect; and that, notwithstanding liquor consumption, the accused’s mental faculties were not shown to have been impaired such that he could not appreciate his actions and their consequences. On that basis, the court found no basis to depart from the prescribed sentences for the applicable counts.


5. Outcome and Relief


The court imposed the following sentences: for housebreaking with intent to rob and murder, three years’ imprisonment; for robbery with aggravating circumstances (as defined in section 1 of the Criminal Procedure Act 51 of 1977 and read with section 51(2) and Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997), fifteen years’ imprisonment; and for murder (read with section 51(1) and Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997), life imprisonment.


By operation of law, the court ordered that the sentences on counts 1 and 2 run concurrently with the sentence on count 3, resulting in an effective sentence of life imprisonment.


The court further recorded that, in terms of section 103(1) of the Firearms Control Act 60 of 2000, the accused automatically remains unfit to possess a firearm.


No costs order was addressed in the sentencing judgment.


Cases Cited


S v Zinn 1969 (2) SA 537 (A).


S v Matyityi (695/09) [2010] ZASCA 127 (30 September 2010); 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) (30 September 2010).


S v Banda 1991 (2) SACR 325 (B).


S v Makwanyane 1995 (3) SA 391 (CC).


S v Swart 2004 (2) SACR 370 (SCA).


S v Malgas [2001] ZASCA 30.


Legislation Cited


Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), including sections 10, 11, and 12.


Criminal Procedure Act 51 of 1977, including section 1 (definition of robbery with aggravating circumstances).


Criminal Law Amendment Act 105 of 1997, including section 51(1), section 51(2), section 51(3), and Part I and Part II of Schedule 2.


Firearms Control Act 60 of 2000, including section 103(1).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the offences of murder and robbery with aggravating circumstances attracted the prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997, including life imprisonment for murder committed in circumstances contemplated by section 51(1) read with Part I of Schedule 2.


The court further held that the accused’s personal circumstances relied upon by the defence, including youth, first-offender status, pre-sentence detention, parenthood, and alcohol consumption, did not constitute substantial and compelling circumstances justifying a deviation from the prescribed sentences.


The court held that the sentences on counts 1 and 2 should run concurrently with the life sentence on count 3, yielding an effective sentence of life imprisonment, and that the accused remained unfit to possess a firearm under section 103(1) of the Firearms Control Act.


LEGAL PRINCIPLES


The judgment applied the principle that sentencing requires a balanced assessment of the crime, the offender, and the interests of society, as articulated in S v Zinn 1969 (2) SA 537 (A).


It applied the principle that sentencing should be victim-centred and should consider the position of victims within the criminal justice system, consistent with S v Matyityi (695/09) [2010] ZASCA 127 (30 September 2010); 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) (30 September 2010).


It applied the constitutional framing that the rights to life, dignity, and freedom and security of the person are central to the evaluation of violent crime and its seriousness, and that violence perpetrated by private actors implicates these rights within the sentencing assessment.


It applied the principle that, particularly in serious violent crimes, retribution and deterrence may properly be accorded greater weight than rehabilitation, as recognised in S v Swart 2004 (2) SACR 370 (SCA).


It applied the minimum-sentences principle that departure from prescribed sentences under section 51(3) of the Criminal Law Amendment Act 105 of 1997 is permitted only where substantial and compelling circumstances are established, and that deviation should not be based on flimsy reasons, speculation, sympathy, or generalised aversion to imprisonment, consistent with S v Malgas [2001] ZASCA 30.

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)

Case No.: CC32/2025
Reportable Yes/No

In the matter between:

THE STATE

versus

XOLISA LUKAS ACCUSED
________________________________________________________________

JUDGMENT ON SENTENCE
________________________________________________________________

Cengani-Mbakaza AJ


[1] This court is aware, as demonstrated by the evidence, that there was a
volatile situation in Jansenville following the accused’s arrest and his associate.
The community members gathered at accused’s home, threatening to kill him
and following the police van to the station. This prompted the police to employ
strategies to manage the situation and maintain law and order.

[2 ] It is therefore essential to preface this judgment by stating that self -help,
which was nearly resorted to in this case is not condoned at all. Self -help can
lead to chaos and create more problems than it solves. It can also result in
violence, damage to property and potentially severe legal consequences.

Moreover, it by-passes due process and can undermine the rule of law leading to
unfair outcomes.

[3] Having said this, now that the accused has been convicted, he must be
sentenced accordingly. The co nvictions are based on the serious crimes of
housebreaking with intent to rob and murder, robbery with aggravating
circumstances and murder.

[4] The two offences namely murder and robbery with aggravating
circumstances, fall under the provisions of the Criminal law Amendment Act
105 of 1997 (“the CLAA”). Pursuant to s 51(1) read with Part 1 of Schedule 2
of the CLAA, the mandatory sentence for murder in circumstances where the
death of the victim was caused in committing robbery with aggravating
circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977
(“CPA”) is life imprisonment. Furthermore, in relation to the offence of robbery
with aggravating circumstances the mandatory sentence is fifteen years’
imprisonment.

[5] According to s 51 ( 3) of the CLAA, the court has a discretion to deviate
from the minimum sentence prescribed on condition that the offender has
shown the existence of substantial and compelling circumstances. The
provisions of s 51(3) of the CLAA provides:

‘(3)(a) If any c ourt referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence that the
sentence prescribed in those subsections, it shall enter those circumstances on the record of
the proceedings and must thereupon impose such a lesser sentence…’

[6] To determine an appropriate sentence, this court is empowered by the
guiding principles relevant to sentencing. The landmark case of S v Zinn 1
established the “triad” of sentencing: the crime, the offender and the interests
of the society. This balanced approach is consistently endorsed by the
Constitutional Court (CC) and other courts to ensure fair and individualised
punishment.

[7] Although in the past there had been arguments for and against the
consideration of victim centred approach during sentencing, the SCA’s decision
in S v Matyityi2 has effectively settled this debate.

[8] In Matyityi3, the SCA per Navsa and Ponnan JJ and K Pillay AJA, held:

‘[16] An enlightened and just penal policy requires consideration of a broad range of
sentencing options from which an appropriate option can be selected that best fits the unique
circumstances of the case before court. To that should be added, it also needs to be victim -
centred... The Service Charter for Victims of Crime in South Africa seeks to accommodate
victims more effectively in the criminal justice system...’

[9] The Constitution 4 as the supreme law, reinforces these pr inciples by
guaranteeing equality before the law and equal protection of the law. Basically,
the Constitution guarantees victims’ rights, entitling them to protection against
crime, and ensuring that they are treated with dignity 5 and respect, with a voic e
in the justice system.

1 1969(2) SA 537 (A).
2 (695/09) [2010] ZASCA127 (30 September 2010); 2011 (1) SACR 40 (SCA); [2010] 2 A11 SA 424 (SCA)
(30 September 2010).
3 Ibid.
4 Act 108 of 1996 (The Constitution).
5 Section 10 of the Constitution guarantees human dignity.’ Everyone has inherent dignity and the right to have
their dignity respected and protected.’

[10] The photographs show that the deceased was running a thriving business,
selling stock for a living. The state witnesses described him as a generous
person who helped his community by offering credit sales. While the
community’s actions after the accused’s arrest are not justified, they on the
other hand, reflect a deep hurt and the sense of betrayal they feel. In this
instance this court is reminded of what was stated in S v Banda6,

‘The court fulfils an important function in applying the law in the community. It has the duty
to maintain law and order. The court operates in society and its decisions have an impact on
individuals in the ordinary circumstances of daily life. It covers all possible ground. There is no
space in life it does not include. The court must also by its decisions, and imposition of
sentence, promotes respect for the law, and in doing so must reflect the seriousness of the
offence, and provide just punishment for t he offender while taking into account the
personal circumstances of the offender. The feelings and requirements of the community, the
protection of society against the accused and other potential offenders must be considered, as
well as the maintenance of peace and tranquillity in the land needs to be taken into account.’

[11] In the context of our justice system the right to life 7 is absolute and
applies to everyone regardless of nationality. In S v Makwanyane 8, which dealt
with constitutionality of the death penalty, the CC described the right to life and
dignity as the most important of all human rights, and the source of all other
personal rights in [the Bill of Rights]. The CC added that by committing
ourselves to a society founded on the recognition of human rights, we are
required to value these two rights, above all others.9


6 1991 (2) SACR 325 (B).
7 The Constitution provides:
‘11 Everyone has a right to life.’
8 1995(3) SA 391 CC.
9 See The Bill of Rights Handbook, IAIN CURRIE & JOHAN DE WAAL, sixth edition p 258.

[12] The Constitution also guarantees freedom and security of the person.
Section 12 of the Constitution provides:
‘(1) Everyone has the right to freedom and security of the person, which includes the right-
…
(c) to be free from all forms of violence from either public of private sources…’

[13] In this instance, the accused disregarded all these fundamental rights. The
brutal attack perpetrated on the deceased is unimaginable. Despite the screams,
the accused had no mercy. His egregious actions continued unabated. The
scenes captured in the photographs tell a horrific story: a chaotic room, a pool
of blood, the deceased lying helpless and naked.

[14] The photographs raise more questions than answers, leaving a haunting
sense of what is not said. The extensive injuries inflicted on the deceased
indicate, inter alia, a direct intention to kill. In otherwords, the accused was not
content with gaining entry to the premises and committing robbery.

[15] Although most items were recovered, the photographs show that they
were left in an unusable condition. This further underscores the aggravating
circumstances surrounding the crimes. While the accused has a co nstitutional
right to plead not guilty and not incriminate himself, the overwhelming
evidence against him raises questions about his remorse for the crime.

[16] In Matyityi10, the SCA emphasised the importance of courts considering
factors like the accuse d’s motivations and whether he truly understands the
consequences of his actions before a court can find that an accused is genuinely
remorseful. Although, the court in Matyityi11 dealt with a guilty plea, this

10 Fn 2 supra, at para 13.
11 Ibid.

principle remains relevant as this court mus t consider all the surrounding
factors during sentencing.

[17] In my assessment, the accused demonstrates a lack of remorse for his
actions. Instead, there is an indication of planning and deliberation in the
commission of the crimes, as evidenced by his being spotted holding a firearm
in a firing position. His actions suggest defiance rather than remorse.

[18] While deterrence, prevention, rehabilitation and retribution are all key
considerations, our courts tend to prioritise retribution in violent crimes, like
the present case. In S v Swart12, the SCA per Streicher, Nugent JJA, (Southwood,
Van Heerden & Motata AJJA) stated:

‘[12] What appears from those cases is that in our law retribution and deterrence are proper
purposes of punishment and they mus t be accorded due weight in any sentence that is
imposed. Each of the elements of punishment is not required to be accorded equal weight, but
instead proper weight must be accorded to each according to the circumstances. Serious
crimes will usually require that retribution and deterrence should come to the fore and that
the rehabilitation of the offender will consequently play a relatively smaller role…’

[19] I have taken the accused’s personal circumstances as presented by his
counsel into account. Notably, counsel argued that he is a first offender,
relatively young (aged 26), had partaken in liquor, has been in custody for over
a year and has two minor child ren. Counsel added that I should take all these
factors cumulatively and conclude that they constitute substantial and
compelling circumstances.


12 2004 (2) SACR 370 (SCA).

[20] Fortified by the SCA in S v Malgas 13(Malgas), it is my opinion that the
circumstances listed by the defe nce counsel do not constitute substantial and
compelling circumstances. In Malgas14, the SCA cautioned that deviation from
the prescribed sentences should not be based on frivolous or flimsy reasons. In
this regard, the SCA’s stance is that speculative hy pothesis 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.

[21] In the present matter, the best interests of the minor chi ldren are well
catered for. The minor children are at their mother’s respective places,
indicating that the accused is not a primary care -giver. Moreover, the fact that
the accused spent over a year in custody cannot be taken in isolation. He has
presented no evidence to illustrate the effect of his incarceration before trial.
Similarly, from his narration of events, it is clear that despite having partaken in
liquor earlier that day, his mental faculties were not affected. Thus, he could
appreciate his actions and its consequences.

[22] Resultantly, the accused is sentenced as follows:
1. Count 1, housebreaking with intent to rob and murder - the accused
is sentenced to 3 years’ imprisonment.
2. Count 2, robbery with aggravating circumstances as defined in
section 1 of the Criminal Procedure Act 51 of 1977, read with the
provisions of section 51 (2) of Part 11 of Schedule 2 of the Criminal
Law Amendment Act 105 of 1997 - the accused is sentenced to 15
years’ imprisonment.

13 [2001] ZASCA 30.
14 Ibid.

3. Count 3, murder- read with the provisions of Section 51(1), Part 1 of
Scheduled 2 of the Criminal Law Amendment Act 105 of 1997 - the
accused is sentenced to life imprisonment.
4. By operation of the law, the sentences in counts 1 and 2 shall run
concurrently with the sentence in Count 3. Therefo re, the accused
shall serve an effective term of life imprisonment.
5. In terms of section 103 (1) of the Firearms Control Act 60 of 2000,
the accused automatically remains unfit to possess a firearm.


_______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT


APPEARANCES:

For the state : Adv Obermeyer
DPP, Makhanda

For the accused : Adv Charles
Legal Aid-SA, Makhanda


Date Heard : 28 January 2026
Date Delivered : 29 January 2026

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