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IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no.: CC 31/2020
In the matter between:
THE STATE
versus
M[...] M[...]
________________________________________________________________
Coram: Francis J
Heard:
Delivered: 10 February 2026
SENTENCE
FRANCIS, J
[1] The accused, M[...] M[...], stands before this Court to be sentenced
following his conviction on a single count of murder. The deceased was his
three-year-old nephew, L[...] M[...], whose life was brutally ended by the
accused striking him repeatedly on the head with bricks on or about 9 February
2019.
[2] Having considered the ev idence presented at trial, the submissions of
both the State and Defence Counsel, the comprehensive Pre -Sentence Report
compiled by Probation Officer Mrs. J.J. Radloff, the oral evidence in mitigation
proffered by the accused, and the applicable legal principles, I am now required
to determine a just and appropriate sentence.
[3] The murder was not premeditated or planned as defined in Schedule 2,
Part I of the Criminal Law Amendment Act 105 of 1997. Therefore, as a first -
time offender convicted of murder, the applicable prescribed minimum sentence
in terms of Section 51(2) of the Act is 15 years' imprisonment , unless
substantial and compelling circumstances justify a lesser sentence.
[4] The enquiry thus turns on whether such substantial and compell ing
circumstances exist, requiring the Court to balance the crime, the offender, and
the interests of society, as established in S v Zinn 1969 (2) SA 537 (A).
PERSONAL CIRCUMSTANCES AND NATURE OF THE OFFENCE
[5] In applying the classic triad of factors set out in S v Zinn – the crime, the
offender, and the interests of society – I have had careful regard to the
following, as detailed in the Pre-Sentence Report and the evidence:
The Offender:
[6] The accused is a 35-year-old first offender.
[7] He experienced a difficult childhood marked by his father's domestic
violence and his mother's subsequent alcohol abuse.
[8] He assumed a significant, supportive role within his family, particularly
towards his younger sister and her children, and was regarded as a father figure.
[9] He has a limited education (Grade 9) and an unstable employment
history.
[10] He consumed alcohol socially but was not assessed as dependent.
[11] He has expressed remorse for his actions, having initially denied but later
accepted responsibility. He testified that he was sorry for his actions which
would continue to haunt him for the rest of his life and requested that his sincere
apologies be conveyed to members of his fam ily; none of whom were in court.
True remorse requires an admission of guilt and an acceptance of responsibility.
The genuineness of this remorse is a significant mitigating factor, though it
must be weighed against the gravity of the deed.
[12] The accused has spent approximately seven years in custody awaiting
trial and finalisation of this matter. This period of pre-trial incarceration is a
relevant factor to be taken into account in the sentencing equation. Indeed, the
accused’s Counsel strongly argues that this lengthy period, which was not due
to the accused’s own actions, should carry significant weight.
B. The Crime:
[13] The offence is one of the utmost gravity. The victim was a defenceless
three-year-old child.
[14] The manner of killing was brutal and callous: repeated blows to the head
with a brick. This was as an extremely violent act resulting in death by blunt
force trauma, against which the child had no defence.
[15] There was a profound breach of trust. The a ccused was the child's uncle
and was entrusted with his care at the time of the murder. This aggravating
factor cannot be overstated.
[16] The accused's defence of non -pathological criminal incapacity was
rejected. He pleaded having had a memory loss at the critical period but, as the
expert panel correctly found, he had the capacity to appreciate wrongfulness. He
did not plead v oluntary intoxication which, in any event, is generally not a
mitigating factor and does not reduce moral blameworthiness.
C. The Interests of Society:
[17] There is a compelling societal interest in the deterrence of violence
against children.
[18] The community rightly expects the sentence to reflect its collective
outrage and to serve as a denunciation of such acts.
[19] There is a need to protect the public , especially children, and to ensure
that justice is seen to be done.
[20] The interests of society also encompass the potential for rehabilitation,
where it does not conflict with the primary needs of retribution and deterrence.
EVALUATION: ARE THERE SUBSTANTIAL AND COMPELLING
CIRCUMSTANCES?
[21] The mitigating factors – particularly the accused’s status as a first
offender, his expression of remorse, his prior positive role within his family,
and the lengthy period of pre -trial detention – are substantial. They paint a
picture of a man whose life and character were, prior to this single catastrophic
event, oriented towards supporting others. The defence cumulatively presents
these factors – including the family's plea for a second chance – as compelling
reasons for deviation.
[22] However, the test from S v Malgas [2001] 3 All SA 220 (A) requires
these circumstances to be not only substantial but also compelling. To be
compelling, they must ‘cry out’ for a lesser sentence and render the prescribed
sentence ‘disproportionately’ severe. In this endeavour, I am also guided by the
principle reiterated in S v Vilakazi 2009 (1) SACR 552 (SCA) at para 58, that
even where weighty personal circumstances exist, they must be measured
against the inexorable and paramount need to impose a sentence that reflects the
seriousness of the crime.
[23] While I acknowledge the accused's personal hardships and that t he
mitigating factors - the accused's remorse and his prior positive character - are
substantial, they are, in my view, not compelling . Ultimately, the scales of
justice are irrevocably weighted by the sacredness of the life that was taken and
the horrific manner of its taking. The prescribed minimum sentence reflects the
constitutional value placed on the life of a child and the need fo r a severe penal
response to its violation. The aggravating factors in this case are of the heaviest
order. The murder of a child by a caregiver is a fundamental violation that
strikes at the heart of societal values. The brutal killing of a child in a pro found
breach of trust represents a fundamental societal wrong. The Probation Officer's
own analysis notes the crime's severity and community impact argue against a
non-custodial outcome.
[24] On the other hand, the prolonged period of seven years pre -sentencing
incarceration is both a substantial and compelling factor (see, Brophy and
Another v S 2007 (2) SA 56 (W) at paras 16 -19). It was common cause that the
lengthy period was due to no fault of the accused or the State. The accused was
arrested on 9 February 2019, and the trial only commenced five years later in
2024. A significant period of the lapse in time was due to the COVID pandemic
and its effect on the operations o f the criminal justice system. Also, during the
trial, the accused was referred to Valkenbe rg Mental Hospital for psychiatric
observation, and, due to the shortage of beds, it took more than a year before he
could be assessed. It seems to me that if the accused’s prolonged period of pre -
sentencing incarceration is not taken into account, the sentence imposed would
be disproportionate and unjust. There is, of course, no hard and fast rule as to
the weight to be affo rded to a period of pre -sentencing incarceration. Nor is
there a precise formula to apply when determining the amount of time that is to
be subtracted from the sentence (see, Radebe and Another v S 2013 (2) SACR
165 (SCA) paras 13-14).
[25] In the result, I find that the time spent in pre -sentencing incarceration
should be taken into account as a factor that justifies a departure from the
prescribed minimum sentence of 15 years' imprisonment. The sentence below,
in my view, affirms the value of the child's life and serves as a necessary
denunciation, while justly accounting for the significant period already spent in
custody.
ORDER
1. The accused is sentenced to 9 (NINE) YEARS' IMPRISONMENT.
2. In terms of section 103 (1) of the Firearms Control Act 60 of 2000, the
accused is deemed unfit to possess a firearm.
_____________________
FRANCIS, J
Judge of the High Court, Cape Town