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THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A2082025
In the matter between:
K[...] N[...] First Appellant
NKOSIKHONA BABA Second Appellant
And
THE STATE Respondent
Summary: Criminal law - murder – common purpose – identification-
contradictions and discrepancies - Appeal against conviction Dismissed.
Sentence: whether substantial and compelling circumstances exist warranting a
deviation from the prescribed minimum sentence of life imprisonment.
Coram: Nziweni J et Yake AJ
Heard: 06 February 2026
Delivered: 12 February 2026
JUDGMENT – APPEAL
YAKE AJ
Introduction
[1] On 1 April 2025, the two appellants were arraigned before Wynberg Regional
Court (“The court a quo”) on a charge of murder read with the provisions of section
51 (1) read with Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of
1997 (“The CLAA”) which provides for the imposition of a mandatory sentence of life
imprisonment unless there are substantial and compelling circumstances which
justify the imposition of a lesser sentence.
[2] At the commencement of the trial, there were initi ally three accused that
appeared before the court a quo. During the course of the trial proceedings, accused
number three (“accused 3”) absconded. The State brough an application for
separation of trials in terms of section 157 (2) of the Criminal Procedur e Act 51 of
1977 which was not opposed by the defense and granted by the court.
[3] In convicting the appellants, the court a quo found that they acted in the
furtherance of a common purpose in killing the deceased. On 12 June 2025 they
were both subsequently sentenced to undergo life Imprisonment.
[4] Aggrieved by both conviction and sentence, the two appellants exercised their
automatic right to appeal in terms of section 309 (1) (a) and section 309B of the
Criminal Procedure Act 51of 1977 and lodged this appeal, challenging
both conviction and sentenced. The appeal is opposed by the respondent.
Proceedings in the court a quo
[5] The State case is premised on the testimony of four witnesses, Ms. Gcobisa
Kekele (“Gcobisa”) an eyewitness, Mr. Thayanda Zwakala (“Thayanda”) who was
present prior the stabbing of the deceased, Mr. Sibulele Zwakala (“Sibulele”) another
eyewitness and warrant officer Fredericks (“Fredericks”) the investigating officer.
Both appellants gave evidence in their defence and called no witness. The facts can
be succinctly summarised as follows:
[6] On the night of 9 September 2020, Gcobisa was sitting at Manzini tavern with
the second appellant drinking alcohol. The first appellant and accused 3 were also
drinking with them but sitting at a different table. The visibility was clear inside as the
lights were on. She knows the first appellant and accused 3 from the area and it was
the first time to see the second appellant. The second appellant proposed love to
her, and they spent about three hours chatting together. When the tavern closed,
they all left and she went home.
[7] Whilst she was standing outside her home, she saw the second appellant
stabbing Thayanda with a bottleneck in the forearm and legs. When witnessing this,
she was standing at about four meters from them. The visibility was clear as the
lights
from the nearby shacks illuminated the area. After Thayanda was stabbed, he fell on
the ground and screamed out the deceased name. At the time the second appellant
was stabbing Thayanda, the first appellant and accused 3 were hiding behind the
toilet. The deceased came and removed the second appellant from Thayanda. That
is the time Thayanda managed to run away leaving the deceased who was unarmed
engaged in a fight with the second appellant. The second appellant proceeded to
stab
the deceased on the neck . The first appellant and accused 3 emerged from hiding
and
also stabbed the deceased on his back, thereafter the three of them ran away. The
deceased walked towards her bleeding on the neck and thereafter fell on the ground.
He was taken to hospital where he later died.
[8] Thayanda confirmed hearing someone calling the deceased name whilst
sleeping at home . Few seconds later, h is brother Sibulele c ame inside the house,
went towards the kitchen and then left again. He decided to follow Sibulele, but when
he opened the door, he saw the deceased looking like someone who was in a hurry
as if he was arguing with someone. He pulled the deceased behind him wanting the
as if he was arguing with someone. He pulled the deceased behind him wanting the
see the person he was arguing with. He saw the second appellant standing against
the shack. The second appellant c ame straight to him, lifted his left -hand up and
stabbed him in the right palm . He did not see what he used to stab him as the
incident occurred very fast. The second appellant stabbed him again on his left
forearm, and he fell on the ground. The second appellant continued and tried to stab
him whilst he was on the ground, but he used his feet to kick him away.
[9] The deceased came to his rescue and pushed the second appellant away.
That is how he managed to run away leaving the deceased behind. He ran to the
deceased sister’s house. Few minutes l ater, a person named Siwe came shouting ,
saying they have stabbed the deceased. A transport was organised and they all went
to hospital where he was treated and later informed that the deceased has passed
away.
[10] Sibulele confirmed going in and out of the house as Thayanda testified.
According to him, he went to fetch money to buy takeaway as the tavern was about
to close. Whilst busy buying his tak eaway, he heard someone saying there was a
fight outside. He went outside and saw the deceased on the ground full of blood. The
first appellant and accused 3 standing over the deceased stabbing him with knives .
He knows the first appellant and accused 3 , they both have brothers who reside in
the area, and he had seen all three of them during the day. He did not see the
second appellant doing anything.
[11] Fredericks testified that the first appellant went to hand himself over to the
police for being involved in murder case. The first appellant informed him that his
friend was taken away by the Manzini community, and he feared for his life. He went
to pick his friend , the second appellant. The second appellant admitted being
involved in murder and pointed out the third suspect who was also arrested. A few
months later, he took a statement from Gcobisa on instruction of the prosecutor.
[12] After the close of the case for the prosecution, the attorney for the second
appellant brought and application for his discharge in terms of section 174 of the
appellant brought and application for his discharge in terms of section 174 of the
CPA, which was refused by the court on the basis that there was a case for the
second appellant to answer. I could not find any fault on the ruling of the Magistrate.
In my view she correctly exercised her discretion by refusing the discharge.
[13] The first appellant testified and admitted drinking at Manzini tavern with the
second appellant and accused 3. He confirmed that the second appellant had an eye
on Gcobisa and was chatting with her inside the tavern. He did not dispute that he is
known to Gcobisa and Sibulele. He testified that when the tavern clos ed, they all
went out. Whilst outside, he saw Sibulele coming out of the passage. He called him
but Sibulele turned and ran back into the passage . The second appellant chased
Sibulele. Accused 3 also gave chase after the second appellant. Few minutes later,
the second appellant and accused 3 came back following each other . The three of
them left and went to the second appellant’s house in Nyanga.
[14] On their arrival at the second appellant’s house , he noticed that the second
appellant takkies and pants had blood. The second appellant changed his takkies
and they all went to another tavern that was in their area. Whilst at the second
tavern, the community of Manzini came looking for them saying they have killed
someone. The community got hold of the second appellant and he managed to
escape and went to report the matter at the police station. He was then arrested. He
denied stabbing the deceased.
[15] The second appellant save for confirming being at Manzini tavern with the first
appellant and accused 3, denied almost everything. He denied chatting with Gcobisa
and in fact according to him, he never even saw her at the tavern. He denied chasing
after Sibulele and denied having blood in his pant and takkies. He also denied
stabbing Thayanda and the deceased . According to him, the reason he ran away is
because he was scarred as he saw a group people coming towards him.
Findings by the Regional Magistrate
On Conviction
[16] On conviction the court a quo accepted the evidence of all state witnesses.
She found Gcobisa to be a credible and honest witness. Her view was that the
discrepancies and contradiction in the evidence of the witnesses were not material.
She rejected the evidence of the two appellants and found that they were ones who
She rejected the evidence of the two appellants and found that they were ones who
stabbed and killed the deceased whilst acting in the furtherance of common purpose.
On Sentence
[17] On sentence, the court a quo considered the submissions by the State and
defence. She further considered the probation officer’s report, the victim impact
report and all the surrounding circumstances, she found that there were no
substantial and compelling circumstances which warranted deviation and sentenced
the two appellants to life imprisonment.
Grounds of Appeal
[18] The grounds of appeal raised by the appellant on conviction are two - fold:
[18.1] that the State failed to discharge its onus of proving guilt of the
appellants beyond reasonable doubt, taking into account the material
contradictions in the testimony of the witnesses which cast doubt on
their credibility.
[18.2] the court a quo erred in finding that the witnesses were credible and
rejecting the appellants version as not being reasonable possible true.
[19] The grounds for appeal on sentence are as follows:
[19.1] The court a quo unduly prioriti sed the interest of society and the
principle of retribution.
[19.2] The court a quo failed to adequately consider the rehabilitative
prospects of the appellants and the element of mercy inherent in
sentencing.
Legal Principle
[20] It is the function of the trial court to analyse and evaluate evidence. A Court of
Appeal may not interfere with the trial court’s judgment or decision regarding either
conviction or sentence unless it finds that the trial court misdirected itself as regards
to its findings of facts or t he law. It is the trial court that can better assess the
evidence as it has an advantage of seeing and hearing witnesses. This is a principle
that is well established in our law.
[21] In a matter of R v Dhlumayo and Another1 the majority, per Greenberg
JA and Davis AJA (Schreiner dissenting) said the following:
“The trial court has the advantages, which the appeal judges
do not have, in seeing and hearing the witness and being steeped
in the atmosphere of the trial. Not only has the trial court the opportunity
of observing their demeanour, but also , their appearances and whole
personality. This should not be overlooked.”
[22] The principle was restated in S v Hadebe and Others2 where the following
was stated:
“Before considering these submissions it would be well to recall yet
again, that there are well-established principles governing the hearing
of appeals against findings of fact. In short, in the absence of demonstrable
and material misdirection by the trial Court, its findings of fact are presumed
to be correct and will only be disregarded if the recorded evidence shows
them to be clearly wrong.”
[23] A similar approached was adopted in S v Pistorius3, which cited, inter alia
Dhlumayo with approval:
“It is a time-honoured principle that once a trial court has made credibility
findings, an appeal court should be deferential and slow to interfere therewith
unless it is convinced on a conspectus of the evidence that the trial court was
clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Kebana
[2010] 1 All SA 310 (SCA) para 12. It can hardly be disputed that the magistrate had
advantages which we, as an appeal court, do not have of having seen, observed and
heard the witnesses testify in his presence in court. As the saying goes, he was
steeped in the atmosphere of the trial. Absent any positive finding that he was wrong,
this court is not at liberty to interfere with his findings.”
1 1948 (2) SA 677 (A) at 705
2 1997 (2) SACR 641 (SCA) at 645e - f
3 2014 (2) SACR 315 (SCA) para 30
Evaluation
[24] The main issue to be considered on this appeal is whether the discrepancies
and the contradictions between the evidence of the State witnesses, their viva voce
evidence in court vis -a-vis the statements made to the police are material so as to
affect their credibility an d warranted rejection by the court a quo. If the answer is in
affirmative, then the court a quo misdirected itself in convicting the appellants. It
stands to reason if the appeal court found misdirection on convicti on by the court a
quo, the conviction should be set aside , and sentence will automatically fall away.
However, if no misdirection is found on the court a quo’s decision, then the appeal
court will proceed to consider sentence. When considering sentence, the appeal
court will consider whether there are any substantial and compelling circumstances
which warrant deviation from the prescribed minimum sentence.
[25] Counsel for the appellants raised several contradictions in the testimony of
the witnesses in both her papers filed on record and during her argument in court.
She contends that the contradictions were material and the court a quo failed to
consider them. The contradictions she referred include inter alia; the fact that
Sibulele testified that he did not see Gcobisa at the scene; the role played the first
appellant and accused 3 during the stabbing of the deceased; the fact that
Gcobisa made her statement late, identification of the second appellant and
discrepancies between the witness statements.
[26] The appellant’s contention that there are material contradictions in the State
case, especially in light of discrepancies in the witnesses’ statements to the
police and their viva voce evidence, with reference to Thayanda and Sibulele cannot
in my view be regarded as material. The court a quo adequately addressed the
question of contradictions as well as the applicable law thereto in her judgment.
question of contradictions as well as the applicable law thereto in her judgment.
[27] The court a quo could not make any negative finding on Gcobisa’s statement
which was taken months after the incident. Instead, the court a quo made positive
credibility findings in favour of Gcobisa and accepted the manner in which she
presented her evidence. I could not find that the court a quo misdirected itself in its
findings based on the following:
[27.1] Gcobisa was adamant in her testimony that both appellants together
with accused 3 stabbed the deceased.
[27.2] Her identification of the two appellants was consistent throughout and
could not be successfully challenged by the appellants.
[27.3] She kn ew the first appellant from the area , she spent a pproximately
three hours at the tavern with the second appellant.
[27.4] Her evidence of identification pertaining to the second appellant finds
corroboration in the first appellant’s testimony who confirmed seeing her
sitting with the second appellant at the tavern.
[28] In S v Mthethwa4 the court said the following regarding identification:
"Because of the fallibility of human observation, evidence of identification is
approached by the courts with some caution. It is not enough for the identifying
witness to be honest: the reliability of his observation must also be tested. This
depends on various factors, such as lighting, visibility, and eyesight; the proximity of
the witness; the opportunity for observation, both as to time and situation; the extent
of his prior knowledge of the accused; th e mobility of the scene; corroboration;
suggestibility; the accused's face, voice, build, gait and dress; the result of any
identification parades, if any; and of course the evidence on behalf of the accused.
The list is not exhaustive. These factors or su ch of them as are applicable in a
particular case, are not individually decisive, but must be weighed one against the
other, in the light of the totality of the evidence, and the probabilities.”
[29] Upon reading record, I agree with the findings of the court a quo that Gcobisa
appeared to be honest in her observation of the witnesses. She had an opportunity
to observe the appellants as she was within their close proximity when the incident
occurred, the visibility was clear and she had prior knowledge. Same as the court a
quo, I could not find any biasness on her against the appellants.
quo, I could not find any biasness on her against the appellants.
[30] Same with the court a quo’s finding on Thayanda, I could not find any
misdirection. Thayanda testified that he saw the second appellant earlier that day.
He
4 1972 (3) SA 766 (A) 768A-C
was able describe his clothing and had an opportunity to observe him during
the stabbing. See S v Mthethwa supra. The contention by the appellant’s counsel
that the discrepancies in Thayanda’s evidence may affect the weight of his evidence
has been adequately addressed. Once more, I cannot fault the reasoning and
findings of the court a quo in accepting Thayanda’s evidence.
[31] In weighing up the contradiction in Sibulele’s evidence and statement, the
court a quo considered that the first appellant and accused 3 were known to
Sibulele. In Abdullah v S5, the Supreme Court of Appeal stated:
"…when seeing a person who is known to you, it is not a process of observation that
takes place but rather one of recognition. This is a different cognitive process which
plays a vital role in our everyday social interaction. The time necessary to
recognize a known face as opposed to identifying a person for the first time, is very
different. It has been recognized by our courts that where a witness knows the
person sought to be identified, or has seen him frequently, the identification is likely
to be accurate."
[32] The court a quo found that Sibulele had an opportunity to observe the first
appellant and accused 3 when they were carrying knives with blood in their hands.
The evidence of Sibulele is consistent with the evidence of first appellant who
admitted carrying knife on the day. The court a quo found the contradictions not
material that it detracts the truth. In my view the court a quo did not misdirect itself in
accepting Sibulele’s evidence.
[33] In evaluating contradictions and discrepancies in the State's case, the court
should first established whether the contradictions are material or not. In S v
Bruiners and Another6 the question of contradictions and witness statement was
addressed as follows:
“two or more witnesses hardly ever gave identical evidence with reference
to the same incident or events. It was thus obligatory on the trial court to decide,
to the same incident or events. It was thus obligatory on the trial court to decide,
considering the evidence holistically, to hold whether such differences were material
to warrant the rejection of the State's version.”
5 [2022] ZASCA 33 (31 March 2022) para 13
6 1998 (2) SACR 432 (SE) 435 a-b
[34] In S v Mafaladiso7 the court held that:
"The court must handle discrepancies between different versions of the same
witness with circumspection. First the court must ascertain what the witness meant to
say in order to determine whether there was a discrepancy and the extent of the
discrepancy. The court must take into account the following: the fact that a statement
to the police was not Subjected to cross -examination, language and cultural
differences between the witness and the person who took the statement, and the fact
that the police did not require any explanation of a statement. Secondly, not every
error by, or discrepancy in the statement affects the witness credibility. Thirdly, the
different versions must be evaluated holistically. This evaluation includes the
circumstances in which the versions were given, reasons for the discrepancies, the
effect of the discrepancies on the witness's credibility and whether the witness had
sufficient opportunity to explain the discrepancies. Lastly, the witness's statement to
the police must be weighed up against the witness's viva voce evidence".
[35] It must be remembered that contradictions per se do not lead to total the
rejection of a witness's evidence because they may not be indicative of dishonesty or
untruthfulness but error. Moreover, not every error made by a witness affects his
credibility. See S v Mkohle8.
[36] The findings by the court a quo on a question of fact and credibility of
witnesses, is in my view presumed to be correct, as it was the one with an
advantage of seeing and hearing witnesses and was in the best position to
determine where the truth lies. See S v Hadebe and Others supra.
[37] Turning to the appellant’s version, it is trite that the proper approach is to look
at the evidence holistically in order to determine whether the guilt of the appellants
has been proved beyond reasonable doubt. In Tshiki v S9, the court explained this
approach as follows:
7 2003(1) SACR 583(SCA) (594a-g)
approach as follows:
7 2003(1) SACR 583(SCA) (594a-g)
8 1990 (1) SACR 95 (A)
9 [2020] ZASCA 92 (18 August 2020)
“In a criminal trial, a court’s approach in assessing evidence is to weigh up all the
elements that point towards the guilt of the accused against all that which is indicative
of their innocence taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and having done so, to decide whether
the balance weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused’s guilt. . .’
[38] The evidence of the two appellants was riddled with improbabilities. The first
appellant tried very hard to give exculpatory evidence and negate any wrongdoing
on his part whilst the second appellant was distancing himself from the incident. In
analysing the appellant’s case the court a quo found that the first appellant gave
evidence which was consistent on material aspects with the State case, in that he
confirmed that second appellant was chatting with Gcobisa, He even placed the
second appellant at the scene as the person who chased Sibulele and came back
with blood in his takkies and pants. He admitted carrying knife but denied using it.
[39] For the second appellant, the court a quo found that his evidence lacked
sufficient detail and understanding. He contradicted himself and adapted his
evidence as he went along. He brought new evidence under cross examination
without being able to give explanation thereto. In my view, the court a quo correctly
rejected the version of both appellants.
[40] In considering the totality of the evidence , it is clear that from reading of the
record, the court a quo carefully considered and evaluated the evidence before it.
The State witnesses corroborated each other on all material respect, and the
identification of the appellant s was not really placed in dispute. The two appellants
acted in the furtherance of common purpose in that they both stabbed the deceased
and thereafter fled. There was no material misdirection that I could pick up form the
and thereafter fled. There was no material misdirection that I could pick up form the
findings of the court a quo. I am not persuaded that in convicting the appellant s, the
court a quo misdirected itself in any material respect in its assessment of evidence
The version of the appellants is clearly not reasonably possibly true and stands to be
rejected.
[41] I align myself with Bosielo JA in S v Engelbrecht10 when he pointed out
that: "Having read the transcript, I am unable to find any fault with the assessment of these
witnesses by the trial court, which had the advantage of seeing them testify and observing
their reactions to questions during cross-examination. This gave the trial court an advantage
which this court does not have as a court of appeal. In the absence of any misdirection by the
trial court, I decline to interfere with such a finding".
[42] In the result, the appeal on conviction must therefore be dismissed.
[43] Having found that the court a quo did not misdirect itself in convicting the
appellants, I turn to consider the appeal against sentence. It is trite that the task of
imposing sentence is pre -eminently a matter which falls within the domain and
discretion of the trial court, and an appeal c ourt should not easily interfere with such
discretion unless it is satisfied that it has not been judicially and properly exercised.
[44] The appellant s were convicted of murder committed in furtherance of a
common purpose, which carries a mandatory life sentence.11 Section 51 (3) (a) of
the CLAA provides that the court may only deviate from the prescribed minimum
sentence if it finds substantial and compelling circumstances which warrant
deviation. The courts have been warned not depart from the prescribed sentence
lightly and for flimsy reasons, there must truly be convincing reasons to deviate.12
[45] Counsel for appellants submitted and urged this Court to exercise its
discretion and impose a sentence that reflects mercy, proportionality and
constitutional imperative to prioriti se rehabilitation. She argued that the court should
deviate from the prescribed minimum sentence considering that both appellants are
still young.
[46] The re spondent strongly opposed the appeal submitt ing that the sentence
imposed by the court a quo is fair and appropriate under the circumstances.
imposed by the court a quo is fair and appropriate under the circumstances.
According to the respondent, both appellants showed no remorse. The second
appellant callously took the life of the deceased, robbing a mother of her son whilst
10 2011 (2) SACR 540 (SCA) at para 18
11 Section 51(1) of the Criminal Law Amendment Act 105 of 1997
12 S v Malgas 2001 (1) SACR 469 (SCA) paras 9 and 25.
the first appellant attacked the deceased whilst he was already injured. The
respondent contend s that the court a quo did not misdirect itself as it took into
consideration all the relevant factors when sentencing the appellants.
[47] In considering an appropriate sentence , the court a quo took into account
what is commonly referred to as the triad in S v Zinn ,13 namely, the crime, the
offender and the interests of society. The personal circumstances of the first
appellant a re that: he is 35 years old, single with one minor child aged 6 and the
child resides with his mother. He was employed and was contributing towards the
maintenance of his child. He is HIV positive and rec eives ongoing treatment. He is a
first offender. The personal circumstances of the second appellant that he is 29years
old, single with two children who are residing in Eastern Cape. He was employed
and financially supporting his children. He is standing b efore the court as a first
offender.
[48] The court a quo also considered that the deceased was still young , 19 years
old and was unarmed when attacked by three people which led to his demise. After
considering the personal circumstances of both appellants, the probation officer’s
reports, the victim impact reports as well as submissions by attorneys of both
appellants and submissions by the State, the court a quo found that there we re no
substantial and compelling circumstances which justified a deviation from the
prescribed minimum sentence.
[49] It is trite that t he phrase 'substantial and compelling circumstances ', has not
been defined by our legislature. It has been left to the court to decide what
constitutes substantial and compelling circumstances having regard the surrounding
circumstances of each case which include the factors traditionally considered by
courts when sentencing offenders. For circumstances to qualify as substantial and
compelling, they 'need not be ' exceptional' in the sense that they are seldom
compelling, they 'need not be ' exceptional' in the sense that they are seldom
encountered or rare, nor are they limited to those which diminish the moral guilt of
the offender' (see S v Pillay 2018 (2) SACR 192 (KZD) at paragraph 10).
13 S v Zinn 1969 (2) SA 537 (A) at 540G-H.
[50] In S v Pillay 14 the issue which concerned the court was whether to impose
the prescribed minimum sentences of life imprisonment in respect of murder and 15-
years' imprisonment in respect of possession of firearm , or whether to deviate from
such sentences. Henriques J stated that where a court is convinced, after
considering all the factors, an injustice would follow if the minimum sentence is
imposed, then it can characterise such factors as constituting substantial and
compelling circumstances and deviate from imposi ng the prescribed minimum
sentence.
[51] In S v Vilakazi 15 the court explained that particular factors, whether
aggravating or mitigating, should not be taken individually and in isolation as
substantial or compelling circumstances. In deciding whether substantial and
compelling circumstances exist, one must look at traditional mitigating and
aggravating factors and consider the cumulative effect thereof. When sentencing, a
court considers the personal circumstances of an accused. However, only some
carry sufficient weight to tip the scales in favour of the accuse d to impact on the
sentence to be imposed. Often the fact that the accused is young and is a first
offender has the effect of reducing a sentence.
[52] I am conscious to the fact the offence of murder is by its nature a very serious
offence as it is an irreversible act. A person’s constitutional right to life in terms of
section 11 of the SA Constitution Act 1098 of 1996 has been infringed. Sadly, no
amount of punishment that any court can impose will undo what has been done and
return the life that was wrongfully taken away. It is concerning that most often than
not, when alcohol is involved; someone’s life will be lost. This is a serious scourge
which needs serious attention and intervention. That is why when imposing sentence
the focus should be on the offender as that is the person who needs to reflect on his
actions and probably be rehabilitated to become a better person. By doing so,
actions and probably be rehabilitated to become a better person. By doing so,
hopefully the influx that we see alcohol related murders will decrease. Ours is not to
give effect to vengeance or revenge but to consider retribution as part of our
sentencing rationale.
14 2018 (2) SACR 192 (KZD)
15 2009 (1) SACR 552 (SCA)
Conclusion
[53] Having carefully considered the submissions by both parties and regard to
the mitigating as well as aggravating factors. Without trivialising the offence, I am of
the view that the traditional factors normally taken when considering a sentence still
plays a vital role. I find that the personal circumstances of both appellants, the fact
that
they have clean records and that alcohol may have played a role in the commission
of
this offence, the seriousness of the offence, the interest of the family of the deceased
as well as the interest of community at large, those factors if taken cumulatively
constitute substantial and compelling circumstances which warrants this court to
deviate from the prescribed minimum sentence.
[54] Notwithstanding, that there are substantial and compelling circ umstances in
the
matter, I am of the view that a long term of imprisonment is without any doubt
warranted in this matter . In the results, the sentence imposed by the court a quo is
set
aside.
ORDER
[55] Accordingly, in respect of both appellants; I make the following order:
[55.1] Appeal against conviction is dismissed.
[55.2] Appeal against sentence is upheld. The sentenced of life imprisonment
is set aside and replaced by a sentence of 20 years imprisonment.
___________________________
S. YAKE
Acting Judge of the High Court
I agree, and it is so ordered
___________________________
C. N. NZIWENI
Judge of the High Court
Appearances:
Counsel for the Appellant: Ms. S. Kunn
Legal Aid South Africa
Cape Town Justice Centre
Counsel for the Respondent: Mr L. Snyman
Office of Director of Public Prosecutions
Western Cape