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[2026] ZAGPPHC 312
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Mathe v S (A156/2025) [2026] ZAGPPHC 312 (6 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A156/2025
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED: NO
DATE:
06 March 2026
SIGNATURE
In
the matter between:
KITJA
JOHN MATHE
And
THE
STATE
Appellant
Respondent
Coram
:
MOSOPA
J, MUNZHELLE J AND KEKANA AJ
Heard
on
:
19
JANUARY 2026
This
Judgment was handed down electronically and by circulation to the
parties’ legal representatives by way of email and
shall be
uploaded on caselines. The date for hand down is deemed to be on 06
March 2026.
JUDGMENT
KEKANA
AJ (MOSOPA J AND MUNZHELELE J CONCURRING)
Introduction and
Background
[1]
This
is an appeal against the sentence handed down by Sardiwalla J
on
24 August 2018. The appellant was convicted of the following counts:
i)
Murder (read with the provisions of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
); and
ii)
Defeating the cause of justice.
[2]
The Appellant was convicted on both counts on 21 June 2018
and
sentenced by Sardiwalla J on 24 August 2018 as follows
[1]
:
1. That the
accused is sentenced to life imprisonment in terms of
section
51(1)(a)
and (e) of the
Criminal Procedure Amendment Act, 105 of
1997
;
2.
He is also declared a dangerous
criminal in terms of section 286(1) of the Criminal Procedure Act
(CPA) 51 of 1977. In terms of
section 286(1)(b), the accused is
sentenced to undergo imprisonment for an indefinite period, and it is
directed that the accused
shall be brought before this Court on the
expiration of a period of 25 years to enable this Court to reconsider
the sentence as
contemplated in terms of section 286(b)(2).
3.
The registrar of this court is herewith directed to furnish the head
of the prison
to which the accused is sent with a copy of the Court’s
judgment.
4.
The accused is found to be unsuitable to work with children and old
aged people.
5.
The accused is found unsuitable to hold a firearm.
6.
The registrar of the court must in terms of section 221 of the
Children’s Act,
notify the Director General, Department of
Social Development in writing the findings of this Court in terms of
section 120(4)
of the Children’s Act, that the accused is
unsuitable to work with children and old people for the Director to
enter the
name of the accused as contemplated in terms of section 120
Part 2, in the register.
Submissions by the
parties
Point
in limine
[3]
The Appellant raised a point
in
limine
that the record is incomplete in that the entire evidence of the
sentencing proceedings, the addresses by the defence on mitigation,
as well as the aggravating factors by the state, were not recorded,
hence they do not appear on the record.
[2]
[4]
The Respondent, however, submitted that the appeal against the
sentence can proceed even without the
said records, as they will not
have an impact on the current proceedings.
[3]
[5]
The Appellant opted to abandon the point
in
limine
initially raised, and since the
issue is now moot, this court will not adjudicate nor make any ruling
thereon but focus only on
the substance of the matter before it,
which is the sentencing of the Appellant.
[6]
The argument by the Appellant as regards the sentence can be
summarised as follows:
6.1
that the sentence of life imprisonment is disproportionate to the
circumstances of the case;
6.2
that the trial court erred in not taking into account the personal
circumstances and mitigating
factors of the Appellant;
6.3
that the trial court erred in declaring the Appellant a dangerous
criminal in terms of section
286(1) of the CPA, in that section
286(1) pertains exclusively to habitual criminals, not dangerous
criminals;
6.4
that the court committed a material misdirection by invoking an
incorrect statutory provision;
6.5
that the court failed to comply with section 286A (2) (a) and (b)
which states that if it
appears to a court referred to in section
286(1) that an accused is a dangerous criminal, the court may after
conviction direct
that the matter be enquired into and reported on in
accordance with the provisions of subsection (3);
6.6
that the trial court failed to comply with the mandatory duty to warn
the accused as required by section
286A(2)(b); and
6.7
that the trial court committed a procedural irregularity in not
imposing a sentence in relation
to count 2.
[7]
The Respondent’s contentions are that:
7.1
the
sentence for life imprisonment is not at all disproportionate to the
circumstances of the case, as there were no substantial
and
compelling circumstances found for the Court
a
quo
to deviate from the prescribed minimum sentence.
[4]
7.2
the
Court
a
quo
correctly made the orders stipulated in paragraphs 3 – 6 of the
sentence.
[5]
[8]
The Respondent concurs with the Appellant on the
following:
8.1
that
the trial court did not utilise the correct statutory framework as
provided for by the legislature in section 286A of the CPA.
The
Appellant could therefore not be sentenced to a second period of
imprisonment for an indefinite duration after being sentenced
to life
imprisonment;
[6]
8.2
that
the trial court did not sentence the Appellant on count 2
[7]
;
and
8.3
submits
further in relation to the same count 2 that since Sardiwalla J has
retired, the Respondent will not have any objection
if the sentence
of the Appellant on count 2 runs concurrently with the life
imprisonment sentence in terms of Section 280 of the
CPA.
[8]
Legal principle and
analysis.
Imposition of the
sentence of life imprisonment
[9]
The argument by the Appellant regarding the disproportionality of the
life sentence imposed by the court
a
quo,
that
the trial court failed to take into account the personal
circumstances of the Appellant and overemphasised the seriousness
of
the offence, cannot be sustained. As regards the former, records show
that the court did consider the personal circumstances
of the
Appellant,
[9]
and
those were outweighed by aggravating factors, and hence the trial
court found no reason to deviate from the prescribed minimum
sentence. As regards the latter, it cannot be correct that the court
overemphasised the seriousness of the offence, as the crime
committed
was a very heinous one; cutting the deceased's body into pieces
cannot be less serious, and it was found to have been
committed with
premeditation. That it was committed with premeditation has not been
disputed.
[10]
The Appellant relied on the case of
S
v Malgas
[10]
that
courts must consider whether, viewed cumulatively, the personal
circumstances of the accused, together with the specific facts
of the
offence, justify a lesser sentence.
[11]
It
is in the same
Malgas
where the Supreme Court of Appeal (SCA) ruled that these
circumstances must be truly convincing and not based on trivial
factors.
In
S
v Jonas and Others
[12]
,
the court ruled that being a first-time offender or having dependents
did not automatically constitute exceptional circumstances.
The SCA
also reaffirmed in
S
v Matyityi
[13]
that
departures from mandatory sentences require significantly different
circumstances beyond standard mitigating factors, reinforcing
the
high threshold required for deviation.
[11]
Records show that the trial court went at length to consider the
personal circumstances.
[14]
The
Appellant's argument that personal circumstances were ignored cannot
be sustained. It is trite that the individual circumstances
of the
offender must be considered, but they are subordinate to, and must be
balanced against, the seriousness of the offence and
the need for
proportional punishment.
[12]
Factors stated by the appellant that they amount to substantial and
compelling circumstances
have no merit. The argument raised by the
appellant that the appellant is a first offender cannot stand as such
a factor
[15]
. It cannot be
correct that when the offence was committed the appellant was not in
his normal cognitive and emotional state, reference
should be made to
Weskoppies' report where the appellant was found to be of sound mind
at the time of the commission of the offence.
The period spend in
custody on its own is not a substantial and compelling
circumstance.
[16]
[13]
Personal circumstances cannot override the seriousness of the crime.
The crime set the tone,
and looking at the nature of the crime, the
gravity thereof and the conduct of the Appellant after committing the
crime, not showing
any remorse and going at length to hide the
deceased’s body, I am not persuaded that there are compelling
and substantial
factors to warrant deviation from the minimum
sentence. The conclusion is strong that the crime was premeditated.
[14]
In the circumstances, the argument by the Appellant that the sentence
of life imprisonment was
disproportionate has no merit. I am of the
view that the sentence of life imprisonment was warranted and
correctly imposed. The
sentence of life imprisonment arose consequent
upon the trial court’s proper assessment of evidence and the
exercise of its
discretion. I do not have a basis to interfere with
the decision of the court
a quo
.
Declaring the
Appellant a dangerous criminal
[15]
Section 286(1)
[17]
states
that:
‘
Subject
to the provisions of subsection (2), a superior court or a regional
court which convicts a person of one or more offences,
may, if it is
satisfied that the said person habitually commits offences and that
the community should be protected against him,
declare him an
habitual criminal, in lieu of the imposition of any other punishment
for the offence or offences of which he is
convicted’.
[16]
Section 286A(1)
[18]
states
that:
‘
Subject
to the provisions of subsections (2), (3) and (4), a superior court
or a regional court which convicts a person of one or
more offences,
may, if it is satisfied that the said person represents a danger to
the physical or mental well-being of other persons
and that the
community should be protected against him, declare him a dangerous
criminal’.
[17]
The trial judge relied on section 286(1) in declaring the Appellant a
dangerous criminal
[19]
while
it is clear from the reading of the two provisions above that the
relevant section that deals with declaring an accused ‘dangerous
criminal’ is section 286(A), section 286(1) was wrongly relied
on by the trial judge as it deals with declaring an accused
a
‘habitual criminal’. It is therefore concluded that the
trial judge erred when relying on an incorrect legal framework
in
declaring the Appellant a dangerous criminal.
Imposition of another
sentence in terms of section 286B of the Criminal Procedure Act
[18]
A person cannot be sentenced twice for the same offence. If a person
is formally convicted on
only one count in a court of law, then the
court can only impose one sentence for that single count.
The
constitutional right against double jeopardy and the related
common-law principles makes it illegal for the state to punish
an
individual twice for the same offence.
[20]
[19]
In the case of
S
v Rabie
[21]
,
it
was stated by Holmes JA
that:
“
in
every appeal
against a sentence, whether imposed by a magistrate or a Judge, the
Court hearing the appeal -
i)
should
be guided by the principle that punishment is "pre-eminently a
matter for the discretion of the trial Court"; and
ii)
should be
careful not to erode such discretion; hence the further principle
that the sentence should only be altered if the discretion
has not
been "judicially and properly exercised."
[20]
It is incorrect for a judicial officer to pass two separate
substantive sentences in respect
of a single formal count of
conviction. Having found that it was warranted and proper for the
trial court to impose a sentence
of life imprisonment on a charge of
murder, it then became improper for the trial court to again impose
another sentence of an
indefinite period under section 286B. In the
premises, this court would be justified in interfering with the
discretion of the
trial court.
[21]
Moreover, no enquiry was conducted as provided by that subsection
(2). The trial court also exercised
the power that it did not possess
by ordering that the appellant be found unsuitable to work with
children and old age people,
as this is only applicable where an
offender is convicted of sexually related offences. There is also no
need for the head of prison
to be furnished with a copy of the trial
court judgment at this stage.
Imposition of the
sentence on count 2 by the appeal court
[22]
The trial judge did find the Appellant guilty of both charges
[22]
however,
no sentence was imposed on count 2. Both the Appellant and the
Respondent are
ad
idem
on this court imposing a sentence on count 2, and also that the said
sentence should run concurrently with the life imprisonment
sentence
in terms of section 280 of the CPA. I agree with the submissions made
by the parties that this court impose a sentence
which should run
concurrently with the sentence of life imprisonment.
Conclusion
[23]
It is my view that the trial judge erred in declaring the Appellant a
dangerous criminal in terms
of section 286(1) of the CPA, as the said
provision applies to habitual criminals and not dangerous criminals.
[24]
By imposing life imprisonment and again imposing a sentence of an
indefinite period under section
286B, the trial judge punished the
Appellant twice for the same offence. Having found that the
imposition of the sentence under
286B was wrong and incorrect, this
court concludes that it was improper for the trial court to impose
another sentence under section
286B.
Order
[25]
In the premises, the following order is made:
1.
The appeal against the sentence is upheld
in part.
2.
The sentence imposed in respect of count 1
is confirmed, but to read as follows:
2.1
That the accused is sentenced to life
imprisonment in terms of
section 51
(1) of the
Criminal Law Amendment
Act 105 of 1997
.
3.
The Appellant is sentenced to six months'
imprisonment in respect of count 2.
4.
The sentences imposed on count 2 will run
concurrently with the sentence imposed in respect of count 1.
5.
The sentence is antedated to 24 August
2018.
KEKANA AJ
Acting Judge of the High
Court
MOSOPA J
Judge of the High Court
MUNZHELELE J
Judge of the High Court
[1]
Judgment
by Sardiwalla J.
[2]
Para
5 of the Appellant’s heads of argument.
[3]
Para
2.2 of the Respondent’s heads of argument.
[4]
Para
4.4 of the Respondent’s heads of argument.
[5]
Para
4.7 of the Respondent's heads of argument.
[6]
Para 4.6
of
the Respondent's heads of argument.
[7]
Para
5.1 of the Respondent's heads of argument.
[8]
Para
5.2 of the Respondent's heads of argument.
[9]
Record Vol 3 p247.
[10]
2001 (1) SACR 969 (SCA).
[11]
Para
11 of the Appellant’s heads of argument.
[12]
1998 (2) SACR 677 (SE).
[13]
2011 (1) SACR 40 (SCA).
[14]
Record Vol 3 p239 - 255.
[15]
S v
Vilakazi
2009 (1) SACR 552
at para 58.
[16]
S v
Radebe
2013(2) SACR 165 (SCA) .
[17]
Criminal
Procedure Act 51 of 1977 (as amended).
[18]
Ibid.
[19]
Record
Vol 3 p257.
[20]
Section
35(3)(m) of the Constitution.
[21]
1975
SA (4) 855 (A).
[22]
Records
Vol 3 p232.