IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR15/2025
In the matter between:
MELUSI KHOZA APPELLANT
and
THE STATE RESPONDENT
Coram: MOSSOP and HLATSHWAYO JJ
Heard: 20 February 2026
Delivered: 6 March 2026
ORDER
On appeal from: the Durban Regional Court (sitting as the court of first instance):
1. The appeal against sentence is upheld.
2. The sentence imposed upon the appellant on 26 September 2023 is set aside
and is replaced with the following sentence:
‘The accused is sentenced to 12 years’ imprisonment.’
3. This sentence is antedated, in terms of the provisions of s 282 of the Criminal
Procedure Act 51 of 1977, to 26 September 2023.
2
JUDGMENT
Mossop J (Hlatshwayo J concurring):
Introduction
[1] A Greek tragedy was traditionally performed in honour of the god of wine and
theatre, Dionysus, and usually featured a protagonist possessed of outstanding and
admirable personal qualities who, nonetheless, suffers disaster because of a
combination of the effects of an internal personal failing and external circumstances
that he is unable to control. Certain of the facts of this matter, relating primarily to the
appellant, suggest that this is such a drama with those features.
[2] The drama played itself out in a student residence of the Durban University of
Technology (DUT). The actors in the drama were all students at that institution. The
DUT is a multi-campus university, primarily situated in Durban but also having two
campuses in Pietermaritzburg. It offers accommodation to its students in residential
buildings located both on and off its campuses. The events that this appeal relates to
occurred at an off -campus residence in Durban, called Sterling House (Sterling
House). How such accommodation is structured is of utmost significance to the events
to be considered. Sterling House offers three -bedded residential units , which also
have an open plan kitchen of sorts, which is equipped with a fridge, crockery and,
significantly, cutlery.
[3] During the afternoon of 7 January 2021, and in the three-bedded unit occupied
by Mr Thabiso Mhlongo (the deceased), the appellant struck him with a single blow
with a kitchen knife to the left side of the base of his neck. The deceased collapsed,
bled profusely from his wound and then died. It was not disputed at his trial that the
appellant had stabbed the deceased , although the circumstances under which this
occurred were disputed.
3
The charge, conviction and sentence
[4] As a consequence of his conduct, the appellant was charged with a single
count of murder, read with the provisions of s 258 of the Criminal Procedure Act 51 of
1977 (the Act) and with s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the
CLAA).
[5] Section 51(2) of the CL AA required the court a quo, in the absence of any
substantial and compelling circumstances, upon conviction, to sentence the appellant,
a first offender, to imprisonment for a minimum period of 15 years. Despite pleading
not guilty to the charge of murder, the appellant was convicted by the Durban Regional
Court on th at count and received the minimum sentence prescribed by the CL AA,
namely 15 years’ imprisonment.
Leave to appeal
[6] Dissatisfied with that sentence, the appellant sought leave to appeal from the
regional magistrate who convicted and sentenced him. That application was
unsuccessful but a petition to the Judge President of this division in terms of the
provisions of s 309C of the Act was favourably viewed, and the appellant was granted
leave to appeal on the issue of sentence only.
The issue
[7] The only issue thus to be determined in this appeal is w hether the sentence
of 15 years ’ imprisonment imposed upon the appellant was appropriate in all the
circumstances of the matter.
The facts
[8] It is necessary to first go back to the facts of the matter and to consider them
in a little more detail before going forward to consider the appropriateness of the
sentence imposed upon the appellant.
[9] The deceased and the appellant were both residents of Sterling House but
were not accommodated in the same three-bedded unit. I shall refer to the unit in which
the deceased resided as ‘the deceased’s unit’.
4
[10] In the first week of January 2021 , students were returning to the D UT
residences in dribs and drabs in anticipation of commencing, or resum ing, their
academic studies once the new academic year formally began. On the afternoon of 7
January 2021, there were three persons seated within the deceased’s unit. Only two
of them were actually residents of that unit, namely the deceased and Mr Siyabonga
Dube (Mr Dube). The State’s principal witness at the trial of the appellant, Mr Luyanda
Dlamini (Mr Dlamini), was present in the room but did not ordinarily reside there.
[11] At some stage that afternoon, the appellant walked into the unit and greeted
Mr Dlamini and Mr Dube, who returned his greeting. The deceased apparently did not
return the greeting. The appellant remarked, caustically, that they were sitting with a
person who did not greet him in return. This was obviously a reference to the
deceased. The deceased said that the appellant was not entitled to say that of him, as
it was the appellant who had entered the room and had found him there and the
appellant was obliged to greet him.
[12] Apparently dissatisfied with this remark, t he appellant moved closer to the
seated deceased and began brushing the top of his head , back and forth, with his
hand, saying that the deceased was but a ‘boy’. At that, the deceased, by all accounts
a large man and not a boy, rose from his seated position but, according to Mr Dlamini,
moved backwards, away from the appellant. The appellant, by contrast, moved closer
to the deceased and, according to Mr Dlamini, appeared to then punch the deceased.
Mr Dlamini soon realised that the appellant had not, in fact, punched the deceased but
had stabbed him. He came to this realisation when the deceased exclaimed ‘oh, you
are stabbing me’. Mr Dlamini described the stabbing to have occurred on the left upper
side of the deceased’s body, between the shoulder and the neck. This was confirmed
by Mr Dube when he testified.
by Mr Dube when he testified.
[13] The deceased slumped initially to his knees. After the stabbing, which
consisted of that single blow, Mr Dlamini was able to see what had been used by the
appellant. It was a kitchen knife, that would ordinarily be used to chop vegetables. The
appellant had taken the knife from a shelf in the portion of the deceased’s unit that
functioned as a kitchen. It was common cause that the appellant had not possessed
the knife when he first entered the deceased’s unit. Having stabbed the deceased, the
5
appellant picked up his cellular telephone, placed the knife into his trouser pocket, and
left the deceased’s unit.
[14] Everyone in the deceased’s unit hurriedly left it in order to try and obtain help
and no one remained behind to try and assist the deceased, in what must have been
his moment of greatest need . Mr Dlamini was later informed by paramedics who
attended Sterling House that the deceased had passed away.
[15] According to the post -mortem examination conducted upon the deceased’s
body, he suffered an incisional wound of the neck that passed into his chest. A litre of
blood was found in his left thoracic cage. The wound was described as being 20mm
long, 12mm wide and approximately 130mm deep. The wound passed distally, and
posteriorly, into the deceased’s body, behind his left clavicle and resulted in an incision
of the subclavian blood vessels1 and the left lung. The cause of the deceased’s death
was said to be an incisional wound of the neck, passing into the chest.
[16] The findings of the post-mortem examination corresponded precisely with Mr
Dlamini’s observations regarding the inflicting of the fatal wound to the deceased.
Analysis
[17] The appellant advanced a defence of self -defence at his trial. In the light of
the evidence of Mr Dlamini and Mr Dube, it was correctly dismissed by the court a quo.
[18] The accepted facts bring the realisation that the death of the deceased was
entirely unnecessary and completely avoidable. It was a complete waste of a human
life over what can only be described as a meaningless triviality. A natural response,
when faced with such a senseless deprivation of life, is anger that it should ever have
occurred. However, as Corbett JA observed in S v Rabie:2
‘A judicial officer should not approach punishment in a spirit of anger because, being human,
that will make it difficult for him to achieve that delicate balance between the crime, the criminal
and the interests of society which his task and the objects of punishment demand of him. Nor
1 These are paired major arteries of the upper thorax and are situated below the clavicle and supply
blood to the posterior cerebrum, cerebellum, posterior neck, the upper limbs, and the superior and
anterior chest wall.
2 S v Rabie 1975 (4) SA 855 (A) at 866A-C.
6
should he strive after severity; nor, on the other hand, surrender to misplaced pity. While not
flinching from firmness , where firmness is called for, he should approach his task with a
humane and compassionate understanding of human frailties and the pressures of society
which contribute to criminality. It is in the context of this attitude of mind that I see mercy as
an e lement in the determination of the appropriate punishment in the light of all the
circumstances of the particular case.’
[19] Corbett JA was, of course, commenting at a time when the CLAA was not yet
enacted, but his comments on the approach that the judicial officer should adopt, and
evince, remain of value and are applicable even in the era of the minimum sentence
legislation. The fact that a minimum sentence may now be prescribed does not mean
it is to be simply mechanistically applied. Each person who appears before a court is
a unique individual and his or her qualities must be ascertained and evaluated as part
of the sentencing process. The judicial officer imposing the sentence is required to not
lose sight of the fact that a human being is to be sentenced.
[20] Because of the uniqueness of each person , there will be personal interests
that are emphasised in favour of the accused person in mitigation of the sentence to
be imposed. The accused’s personal interests are no less valuable, and important,
than any of the other considerations that must be taken into account when the
appropriate sentence is determined. Those personal interests will ordinarily compete
with two of the three basic sentencing considerations mentioned in the well-known,
and often cited, matter of S v Zinn.3 That competition, naturally, brings about a tension
between the interests mentioned in Zinn, and it is the skill of the judicial officer
presiding to properly and accurately determine how that tension can fairly be
accommodated in the sentence to be imposed. In some instances, as contemplated
accommodated in the sentence to be imposed. In some instances, as contemplated
by Nugent JA in S v Vilakazi ,4 that tension can only be resolved by permitting the
personal circumstances of the person about to be sentenced to assume a less
prominent consideration. As the learned judge observed:
‘In cases of serious crime the personal circumstances of the offender, by themselves, will
necessarily recede into the background. Once it becomes clear that the crime is deserving of
a substantial period of imprisonment the questions whether the accused is married or single,
3 S v Zinn 1969 (2) SA 537 (A) (Zinn). The two other interests are the nature of the crime and the
interests of the community.
4 S v Vilakazi [2008] ZASCA 87; 2009 (1) SACR 552 (SCA) (Vilakazi) para 58.
7
whether he has two children or three, whether or not he is in employment , are in themselves
largely immaterial to what that period should be, and those seem to me to be the kind of
“flimsy” grounds that Malgas said should be avoided. But they are nonetheless relevant in
another respect. A material consideration is whether the accused can be expected to offend
again. While that can never be confidently predicted his or her circumstances might assist in
making at least some assessment.’ (Emphasis added.)
[21] This matter has certain self -evident facts. The first is that the appellant was
convicted of a most serious crime . Murder ranks among the most heinous of crimes
because of the high value that society rightly places on human life. The appellant
unnecessarily took the life of the deceased over an issue of no moment. Secondly, it
is so that t he violent acts of those who destroy life ought not to be , and cannot be,
condoned. Thirdly, even the taking of a life, as with most things, has gradations that
mark degrees of seriousness.
[22] The picture that is formed from the evidence heard at a trial is not always only
painted in stark hues of black and white. It may also be infused with shades of grey,
which may permit the development of greater depth to the image sought to be
depicted. When the picture that is revealed is of a cold-blooded and premeditated
murder, it will usually be dealt with far more harshly than a picture that shows an
impulsive act that unlawfully led to a death.5
[23] The offence for which the appellant was convicted was palpably not a pre -
planned act but was, nonetheless, still serious. The State appreciated this from the
outset because it was its case that the appellant had arrived , unarmed, at the
deceased’s unit and had impulsively taken up a knife that he found there in order to
deliver the fatal blow t o the deceased. It is therefore safe to accept from these facts
deliver the fatal blow t o the deceased. It is therefore safe to accept from these facts
that the appellant had not entered the deceased’s unit with the fixed intention of killing
him. This was recognised when the State framed its charge against the appellant, for
he was charged with an offence in terms of s 51(2) of the CLAA and not with an offence
mentioned in s 51(1). That decision eliminated the possibility of the appellant receiving
a prescribed minimum sentence of life imprisonment if convicted . Thus, the State
5 S v Khiba 1993 (2) SACR 1 (A) at 4.
8
acknowledged that the facts of this case removed it from the most serious form of the
existing gradations that define the crime of murder.
[24] At the end of the day, a sentencing court is required, after evaluating all the
competing factors, to impose a sentence that is just. A just sentence may very well be
a severe sentence. But as was said by the Supreme Court of the United States of
America in Furman v Georgia:6
‘. . . a severe punishment must not be excessive. A punishment is excessive under this
principle if it is unnecessary . . . [i]f there is a significantly less severe punishment adequate to
achieve the purposes for which the punishment is inflicted, the pun ishment inflicted is
unnecessary and therefore excessive.’
[25] In setting about the difficult task of imposing an appropriate and just sentence,
it is important, in my view, not to commence with the mindset that the prescribed
minimum sentence is always a just sentence. It may be a just sentence given the facts
of a matter and the personal characteristics of the offender. But, on the other hand, it
may also not be. All the relevant circumstances of the case must be identified,
considered and evaluated and then it should be considered whether the prescribed
sentence is disproportionate to the crime, the offence and the legitimate needs of the
community. That will require the court to consider what a just sentence would be in all
the circumstances of the case. If a just sentence falls materially below the prescribed
sentence there will, in my view, be substantial and compelling circumstances justifying
a departure from the prescribed minimum sentence.7
[26] I mentioned at the outset of this judgment that the facts of this matter had
some of the qualities of a Greek tragedy. I inclined to that view once I had considered
the personal qualities of the appellant , as revealed by the evidence tendered in
mitigation of sentence at his trial. He has had a most unfortunate, but remarkable, life.
mitigation of sentence at his trial. He has had a most unfortunate, but remarkable, life.
[27] When he killed the deceased, the appellant was a young man of 20 years. He
was enrolled at DUT in order to study toward a bachelor’s degree in child and youth
6 Furman v Georgia [1972] USSC 170; 408 US 238 (1972) at 279, quoted with approval in S v
Makwanyane and Another [1995] ZACC 3; 1995 (2) SACR 1 (CC) para 232.
7 S v GK 2013 (2) SACR 505 (WCC) para 14.
9
care. As he explained when he testified under oath in mitigation of sentence, his own
life experiences had been the source of the inspiration behind this academic choice.
By way of brief explanation, he stated that he had literally grown up in a Streetwise
Shelter. These shelters form part of a scheme run by a not -for-profit organisation in
Durban that assists vulnerable children at risk. He had been housed in such a shelter
for approximately eight years of his life, from 2011 to 2018. The first four years were
spent at a shelter in Durban but in 2014, he had been rehoused to another shelter, still
within the Streetwise Shelter scheme , called the Sibusiso Halfway House , situated
near Hillcrest, and he remained there until he completed his matric examinations. He
was able to enrol at DUT because he obtained the correct form of matric pass that
permitted him to proceed to tertiary education and because he received funding both
from the National Student Financial Aid Scheme and from a person associated with
the running of the Streetwise Shelter, who he identified as being ‘Sister Helen’. The
latter person obviously recognised the potential in him and was impressed by him and
was prepared to assist him.
[28] What has just been narrated is the appellant’s description of his childhood.
The record reveals that he was reluctant to divulge its minutiae. He therefore did not
provide great detail of it but merely referred to it in broad brushstrokes. The pre -
sentencing report prepared by a registered social worker , however, added the fine
brush detail to the earlier years of his life. There was clearly much more that the
appellant could have said but did not. He was apparently severely abused by his
mother, who ultimately sent him away to live with his father at a young age, but after
a year , she demanded that he return to her. Having secured that, s he thereafter
continued to physically abuse him severely until the community itself became
continued to physically abuse him severely until the community itself became
concerned about his well -being and reported what was happening to him to social
services. Social services intervened , agreed that his treatment was intolerable and
saw to it that he was removed from his mother’s care and placed in the Streetwise
Shelter in 2011.
[29] After his transfer to the Sibusiso Halfway House, his father and his step -
mother would periodically visit him, but his biological mother never did. Once he was
discharged from the shelter after matriculating, he attempted to rekindle a relationship
with his mother, but his efforts were unfulfilled , and his attempts to restart this
10
relationship ultimately failed, again through no fault of his own and not for lack of effort
on his part.
[30] In my view, there is something to be said for a young man who is forced into
a charitable shelter through circumstances not of his own doing and yet who manages
to still make something of his life. The appellant kept his mind fixed on his studies
amidst the turmoil of his personal life and found a way to overcome his own difficulties
and matriculate from school with a pass that permitted him to enrol at an institution of
higher learning. In achieving this, the appellant displayed admirable qualities. To
achieve what he did could not have been easy, without the stabilising presence and
influence of parental figure s. The appellant is obviously possessed of remarkable
qualities of survival and a tenacious will. He is, in that sense, the archetypal hero of a
Greek tragedy.
[31] The appellant personally endured suffering in his formative years and has
achieved self -realisation, which ultimately found expression in his chosen field of
study. As to why he chose to study for a bachelor’s degree in child and youth care, he
explained as follows:
‘I wanted to be a help to my community, that is what I wanted, I wanted to bring change where
I come from, that is what I wanted, that was my goal, that is what I wanted.’
[32] There is no reason to doubt this because the appellant chose his field of study
before he committed the crime to which this appeal relates. It is not just something
cynically manufactured to achieve a lesser sentence. When considered against th e
backdrop of the wreckage of his family life, the sentiments contained in the extract
above are remarkable, even noble.
[33] But just like a hero in a Greek tragedy, the appellant’s character ha d an
imperceptible flaw that manifested itself on 7 January 2021 and led to his downfall.
Notwithstanding all that he went through in his younger years, perhaps even because
Notwithstanding all that he went through in his younger years, perhaps even because
of what he went through, it appears that the appellant was swift to anger and quick to
physically assert himself in a social setting . For that is what appears to have
manifested in his conduct in the deceased’s unit on that fateful day. He first behaved
11
boorishly and then aggressively and sought, in a way, to embarrass and humiliate the
deceased.
[34] When cross-examined while he gave evidence in mitigation of sentence, the
appellant admitted that at the time that he killed the deceased he had ‘anger issues’.
That, in truth, does not surprise me. The fact that he may naturally have a hair-trigger
temper, however, cannot assist him. As I had occasion to observe in Mudlay v S:8
‘[20] It seems to me that the appellant simply lost his temper based upon the complainant’s
alleged conduct. If he simply lost his temper and lashed out at the complainant in rage, then
it is well to bear in mind what was said in S v Kok, namely:
“Loss of temper, that is to say a failure to control one's emotional reactions, is not to
be confused with a loss of cognitive control (see S v Henry 1999 (1) SACR 13 (SCA) at
20d - f).”
[21] The law is crafted so that it applies to all those who are subject to it, and it treats all as
equals. It cannot be selectively applied to afford those who do not control their tempers a
defence against allegations of criminal conduct at the expense of those who habitually control
their tempers. The message must be clearly transmitted that consciously giving in to anger
and responding with violence will not be tolerated…’ (Footnote omitted.)
[35] It seems to me that t he situation that developed in the deceased’s unit was
solely as a consequence of the appellant’s conduct. At trial, he attempted to describe
a situation where he was forced to act in self-defence, but this was simply fanciful and
was correctly rejected by the regional magistrate. The possibility of violence was
absent until the appellant reacted as he did.
[36] Much of the appellant’s evidence in mitigation of sentence was devoted to
expressions of remorse uttered by him regarding his conduct. There are many
examples of this in his evidence but reference to only one such instance will suffice:
examples of this in his evidence but reference to only one such instance will suffice:
‘ACCUSED: Yes, the first thing I would like to say I am sorry, I am sorry in this court for like
- even to the family of the deceased. I just, I want the court to know that I never meant to harm
anyone, I never wanted like to hurt anyone. I never planned this, I am out of words.’
8 Mudlay v S [2024] ZAKZPHC 45.
12
[37] Saying sorry when the game is up is not a particularly difficult thing to do. It
may become an attractive thing to do when it is appreciated that such an approach
could soften the sentence to be imposed and it may accordingly be resorted to in an
attempt to manipulate the outcome. While the social worker who reported on the
appellant’s personal circumstances indicated that the appellant was remorseful, I have
the feeling that this may not have been true remorse on his part. I shall explain why I
believe this may be the case.
[38] First, it will be wise to remind oneself of the difference between remorse and
regret. Ponnan JA in S v Matyityi9 had the following to say:
‘There is, moreover, a chasm between regret and remorse. Many accused persons might well
regret their conduct, but that does not without more translate to genuine remorse. Remorse is
a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come
from an appreciation and acknowledgement of the extent of one's error. Whether the offender
is sincerely remorseful, and not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions of the accused, rather than what
he says in court, that one should rather look. In order for the remorse to be a valid
consideration, the penitence must be sincere and the accused must take the court fully into
his or her confidence. Until and unless that happens, the genuineness of the contrition alleged
to exist cannot be determined. After all, before a court can find that an accused person is
genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the
accused to commit the deed; what has since provoked his or her change of heart; and
whether he or she does indeed have a true appreciation of the consequences of those
actions.’ (Footnotes omitted)
[39] In my view, had the appellant been truly remorseful about what he had done,
[39] In my view, had the appellant been truly remorseful about what he had done,
he would have offered some assistance to the deceased after stabbing him, remained
at the scene of the murder, and surrendered himself to the South African Police
Service (SAPS) upon their arrival there. He did none of these things. He left the scene,
and the haemorrhaging deceased , and he left Stirling House and went to a bed and
breakfast establishment and then went on the run. He was on the run for a period o f
approximately two months before he was arrested.
9 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 13.
13
[40] This appears to me not to be conduct consistent with remorse, but conduct
focussed on his own survival. But is this surprising? I think not, because focussing on
his own survival is what had characterised his life up to that point. This was a quality
that he was compelled to develop in order to endure his childhood. I accept that as a
relatively young man, he may well have been fearful about what was potentially going
to happen to him because of what he had done. Fear and remorse are, obviously, two
distinctly different emotions. His actions in the immediate aftermath of his destructive
conduct do not show any signs of remorse and appear to show an absence of
contrition and more of a focus on his own survival.
[41] A further reason why I am sceptical about the appellant’s remorse is his plea
of not guilty to the charge of murder . He initially provided no plea explanation, which
is surprising when the defence actually relied upon is self -defence. This approach
would seem to indicate that the appellant denied his own criminal responsibility for
what he did, and that his plea was employed as a device to escape liability for it. The
appellant later explained that he had adopted this strategy because there were
allegations in some of the witnesses’ statements with which he did not agree. To his
credit, the appellant did, however, immediately admit that he had stabbed and killed
the deceased when he was called to give his evidence in chief.
[42] A plea of guilty would have been an unequivocal expression of remorse by the
appellant for what he had done. But it is possible that this is the legal advice that he
was given by his legal representative. It seems unlikely to have been a strategy that
the appellant, a person with no experience of the law, would have developed and taken
on his own.
[43] S v Malgas 10 is often mentioned when the issue of minimum sentences is
discussed. The regional magistrate mentioned it, as do I, for it is an influential decision
discussed. The regional magistrate mentioned it, as do I, for it is an influential decision
on the topic. In that matter, Marais JA observed that:11
‘C. Unless there are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore required to elicit a severe, standardised and
consistent response from the courts.
10 S v Malgas 2001 (1) SACR 469 (SCA).
11 Ibid para 25.
14
D. The specified sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning
first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and
marginal differences in personal circumstances or degrees of participation between co -
offenders are to be excluded.’
I caution myself against succumbing to any of the mentioned hypotheses.
[44] In sentencing a convicted person, it is not controversial that the judicial officer
exercises a discretion.12 As Schreiner JA mentioned in R v Owen:13
‘When it comes to the imposition of the sentence the judicial officer is no doubt entitled to take
a wide range of factors into account, including the accused's bad or good character, his
apparent reformability and the like.’
It is also not capable of being disputed that an appeal court will be slow to interfere
with a sentence imposed by a lower court, and that each case depends on its own
facts.14 An appeal court, such as this court, consequently, may not disturb a sentence
imposed by the sentencing court simply because the appeal court may have imposed
a different sentence. For an appeal court to intervene and upset a sentence imposed
by the sentencing court, there must be evidence of a misdirection of such seriousness
that demonstrates that the sentencing court either did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when imposing the
sentence.15
[45] In Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others,16 the
Supreme Court of Appeal observed as follows:
‘Surely, the nature of the offence related to the personality of the offender, the justifiable
expectations of the community and the effect of a sentence on both the offender and society
are all part of the equation? Pre- and post -Malgas the essential question is whether the
sentence imposed is in all the circumstances, just.’
sentence imposed is in all the circumstances, just.’
12 S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Sadler 2000 (1) SACR 331 (SCA) para 8.
13 R v Owen 1957 (1) SA 458 (A) at 462F-G.
14 S v Zulu 2003 (2) SACR 22 (SCA) para 11.
15 S v Pillay 1977 (4) SA 531 (A) at 535E-F; S v Hewitt [2016] ZASCA 100; 2017 (1) SACR 309 (SCA)
para 8.
16 Director of Public Prosecutions, KwaZulu-Natal v N gcobo and Others [2009] ZASCA 72; 2009 (2)
SACR 361 (SCA) para 22.
15
[46] The personality of the offender, mentioned in the extract just quoted, and his
qualities and personal circumstances are important considerations in determining a
just sentence. It seems to me that this is where the regional magistrate misdirected
herself.
[47] The regional magistrate diligently mentioned virtually everything that anyone
said on the subject of sentenc ing in her judgment on that topic. Understanding the
evidence led is obviously important and the judgment must reflect the presence of that
understanding. But there must also be a synthesis of that evidence to demonstrate the
thinking of the judicial officer and the process of her reasoning. That is lacking to a
degree in the judgment on sentence, for a conclusion was arrived at without as full an
exposition of the regional magistrate’s reasoning on the issue as I would consider
necessary.
[48] What the regional magistrate said about the appellant as a person that can be
considered to be her own thoughts appears in a single paragraph of her judgment on
sentence:
‘In so far as the evidence before this Court pertaining to you is concerned, in as much as you
allege you come from a family that may not have been united you had stability in respect of
the child and youth care centres where are you resided and developed in terms of your
education, ultimately enrolled at a tertiary institution. So, you cannot be described as
immature.’
[49] That reasoning is flawed, in my view. Rather than view life in a shelter as being
an undesirable experience, especially when it lasted for eight years, the regional
magistrate appears to have regarded it as a positive experience as it provided stability
to the appellant. In my view, that overlooks, and does not recognise, the awfulness of
having to be placed in such a centre. And it does not afford any significance to the
appellant’s physical mistreatment at the hands of his own mother that led to him being
placed in the shelter.
placed in the shelter.
[50] As regards whether there were any substantial and compelling circumstances
present that would justify a deviation from the prescribed minimum sentence, the
16
regional magistrate found that there were none. The prescribed minimum sentence
was thus imposed.
[51] The regional magistrate’s reasoning is not, with respect, convincing, justified,
or sufficient. It failed to demonstrate a full and proper consideration and understanding
of the appellant as a person and his life experiences , which were not afforded their
true weight and significance . This court is therefore at liberty to i ntervene in the
proceedings and reconsider the question of sentence.
[52] In my view, there were substantial and compelling reasons to depart from the
prescribed minimum sentence. They may be found in the spontaneous nature of the
offence, the appellant’s youthfulness when he committed the offence, the appellant’s
unsatisfactory and tragic childhood, and the fact that the appellant had spent a period
of two years and nine months in custody awaiting his trial. And, finally, it exists in the
difference, in my view, between what I consider to be a just sentence in the
circumstances of this matter and the minimum sentence imposed by the CLAA. I come
to this conclusion not forgetting the misgivings that I have about the appellant’s alleged
remorse.
[53] In my view, there is a strong possibility of the rehabilitation of the appellant ,
for he is young and has qualities that may be employed to successfully achieve this.
There is something worth saving in the appellant , who appears to be an intelligent
person, and I do not see him as posing a risk to the wellbeing of society, as the regional
magistrate found that he did . In addition, in my further view, this is not an instance
contemplated by Nugent JA in Vilakazi where the personal circumstances of the
appellant should be downgraded to a less prominent consideration. Those personal
circumstances must stand upfront in determining a just sentence.
[54] I do not believe that a sentence of 15 years’ imprisonment is appropriate on
[54] I do not believe that a sentence of 15 years’ imprisonment is appropriate on
the facts of this case. I cannot ignore the fact that , for some reason , the appellant
spent nearly three years awaiting trial in a matter that could not have been difficult to
investigate. That will be accounted for in the sentence to be imposed by this court, but
I caution that the proper approach is not simply to deduct the time spent in custody
18
APPEARANCES
Counsel for the appellant: Mr P Daniso
Instructed by: Legal Aid South Africa
Durban Local Office
The Marine Building
22 Dorothy Nyembe Street
Durban
Counsel for the respondent: Mr B N Mbokazi
Instructed by: Office of t he Director of Public
Prosecutions
KwaZulu-Natal