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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
CASE NO: CA 127/2025
NOT REPORTABLE
In the matter between:
S[...] M[...] Appellant
and
THE STATE Respondent
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APPEAL JUDGMENT
__________________________________________________________________
HARTLE J,
[1] This appeal, against sentence, is before us with the leave of the trial court.
[2] The appellant was convicted of the murder of his three -year old daughter
under circumstances which, all the parties agree, were grievous.
[3] The appellant used a “ knobkierie” to inflict multiple wounds to his child’s
head that caused her death. The doctor who compiled the customary J88 report in
his testimony before the trial court emphasized that the injuries were “very severe”,
“gross in nature”, “extensive”, and quite unlike typical assault wounds. Indeed he
explained that the injuries inflicted on the child were the sort that one would see in
motor vehicle accidents occasioned by high impact blows to the body, or mob -
justice attacks where the experience would be of “many men beating one person”.
[4] The trial court, consistent with the do ctor’s opinion, found that severe blunt
force would have been necessary to have fractured the child’s skull. The doctor
explained that scalp fractures in children are rarely seen because their bones are
almost like “ plastic”, or softer, for want of a bet ter description. This analogy
helped the doctor to speak to the extent of the force that had been applied to the
child’s head to have caused the extreme head injuries.
[5] To paint a complete picture of the gravity of the offence, the trial court in its
judgement on the merits and in an attempt to get to the bottom of the appellant’s
motive for the killing, evidently wrestled with the “ferocity and sheer senselessness
of the assault”.
[6] At least one of the witnesses who testified, Mr. Dini, was privy to the assault
when it commenced inside the appellant’s house. On the facts related by the trial
court the child had said to the appellant that she was hungry. Although indicating
that he would prepare some food for her, he instead assaulted her with the stick
which he took from behind the sofa. He struck the child (at that point only with a
single blow) causing her to fall to the ground. The witness saw an open wound on
the side of her head and blood coming from her nose. When he protested, the
appellant urged hi m not to involve himself. He also insisted that the child was a
witch. He drew an okapi knife and forced the witness outside before closing the
door behind him. Mr. Dini clarified that he was afraid that the appellant would stab
him if he attempted to int ervene further. As he departed, to seek help, he heard a
commotion from inside the house and assumed thereby that the appellant had
resumed his assault on the child. When he returned to the house later he saw the
child lying motionless on the sofa.
[7] Another witnesses, a neighbour to the appellant, who had been summoned
by Mr. Dini’s sister to assist, related that he had found the child lying face down on
the veranda when he arrived at the appellant’s home. Asked what had happened,
the appellant picked the child up from the ground and placed her on the sofa inside.
Asked again what had happened, the appellant let out a cry of despair and reported
that a group of people had come to attack him, a version that the appellant roundly
rejected. What he did asser t though is that Mr. Dini, who he suggested bore a
grudge against him, killed his child while he was asleep, a defence that the trial
court in its judgement on the merits had no hesitation in rejecting as false beyond
reasonable doubt.
[8] The child was born of a relationship between the appellant and her mother.
They had cohabited for almost four years but by the time of the incident had
separated for about two months. The mother testified - and related the same
collateral to a social worker who compiled a victim impact statement presented to
the trial court during sentencing, that the appellant had been abusive toward her.
She ascribed the reason for the breakdown of their relationship as being due to the
fact that he often threatened her with a knife when there was conflict between
them. He often falsely accused her of having other boyfriends. Despite this she
had not seen the appellant be aggressive to anyone else, and she was further
confident that her child, when she visited with the appellant on the f ateful day, was
in safe hands. On the day of the incident she coincidentally encountered the
appellant at a taxi rank in Ugie. This was the first time she had seen him since
their separation. The child was happy to see her father. The appellant in the n ature
of an accusation had questioned whether she was in a relationship with another
man but had allayed her fear that he wanted to make a fuss about this. He asked if
he could take the child home with him since he had not seen her for a long time.
He undertook to return with her the next day. The parents tarried together in each
other’s company for a while, buying groceries together at a local supermarket.
They all left Ugie in the same taxi. She alighted first leaving the appellant with
their daughter to travel further together. That was the last time she saw her child
alive.
[9] The timeline was not subjected to any introspection by the trial court, but it
appears that Mr. Dini was present when the appellant arrived at his destination
from town with the child and assisted him by transporting his groceries in a
wheelbarrow from the bus stop to the appellant’s home where the killing played
out shortly thereafter.
[10] The sole question before us is whether the trial court was correct in finding
that there were no substantial and compelling circumstances justifying a deviation
from the pr escribed minimum sentence of life imprisonment that is legislated in
terms of section 51 of the Criminal Law Amendment Act, No. 51 of 1997
(“CLAA”), referring to the murder of a child.
[11] There is no question that such a sentence would, as a starting point, be
considered as appropriate for the intentional taking of the life of a child which the
trial court found proven beyond a reasonable doubt.
[12] In filicide cases our courts have frequently highlighted amongst the
commonly aggravating features of such unfortu nate incidents, the breach of
parental trust, the vulnerability of the child, pre-meditation, and concealment.
[13] Mr. Geldenhuys, who appeared for the appellant, reminded this court of the
principles guiding the imposition of the minimum sentences and the de termination
of whether a sentencing court can deviate from them as set out in the well -known
case of S v Malgas .1 The relevant provisions of the CLAA have limited, but not
eliminated, a sentencing court’s discretion. The import of the minimum sentencing
provisions is that the prescribed sentences should be deviated from only when
there is weighty justification for the deviation, and not for flimsy reasons.
Traditional factors continue to play a role, and ultimately the test is whether the
1 2001 (1) SACR 469 (SCA).
prescribed sentence is proportionate to the crime, the criminal, and the needs of
society, and is therefore just.2
[14] The underlying reason for the appeal is that the sentence is not a just one.
[15] In this instance the trial court found a sentence of life imprisonment to be
appropriate in all the circumstances.
[16] In sentencing, the trial court appears to have correctly applied the guiding
principles applicable to the serious offence of which the appellant had been
convicted, referencing S v Malgas ,3 as well as S v Dodo 4 and Vilikazi v S 5 which
underscore the need for a court to meaningfully apply the principle of
proportionality so that courts do not become vehicles for injustice by being
mechanical about the application of the minimum sentencing provisions.
[17] In the present appeal the appellant submits that the trial court erred in under -
emphasized four mitigating features. The first is his age. He was a 51 year old
first offender in respect of the murder conviction. It is absolutely fair to accept that
if one reaches such an age, with a clean record, that this would generally be a
mitigating factor. The second is that he “ acted out of character ” during the
commission of the offence. The third factor is that he had consumed alcohol prior
to the commissi on of the offence, and the fourth is that he had acted in a state of
emotional upheaval at the time of killing his child.
2 S v Bhala and Others (Sentence) (CC 62/2019) [2025] ZAWCHC 61 (21 February 2025) at para [32].
3 Supra.
44 (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC); 2001 (1) SACR 594 (CC) (5
April 2001).
5 (576/07) [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA 353 (SCA) (3
September 2008).
[18] Mr. Geldenhuys urged upon this court to find that the trial court erred in not
considering that these factors were substantial and c ompelling circumstances
justifying a departure from the prescribed minimum sentence of life imprisonment,
and, as a necessary corollary, that it erred in over -emphasizing the obvious
seriousness of the offence and the interests of the community at the expe nse of his
client’s personal circumstances.
[19] Mr. Mgenge who appeared on behalf of the State conversely argued in
support of the sentence, pointing out the obviously aggravating circumstances that
would have militated against a deviation from the prescribed minimum sentencing
benchmark. These in themselves, so he submitted, justified the imposition of the
harshest of sentences.
[20] I summarize these aggravating features: The offence is a serious one which
is rife and prevalent not only in this court, but throu ghout the country. The
deceased was a defenceless three -year old. There was a relationship of trust
between the deceased’s mother and the appellant which he took advantage of. The
child was brutally assaulted with a stick. The appellant is not remorseful at all of
his crime and therefore is not a candidate for rehabilitation. The child was
murdered in her own home where she was entitled to expect protection from a
parent. Finally, the impact of the crime to both the child’s mother and grandmother
was significantly damaging.
[21] I should point out that other than inputting his personal circumstances, the
indisputable fact of his age and the absence of any history of violent crime
committed during his lifetime, the appellant hardly took the trial court into hi s
confidence regarding the last three mitigating circumstances contended for.
[22] The State during sentencing proceedings adduced the evidence of Ms.
Stamper, a social worker, in aggravation of sentence. In response to a request by
the Director of Public Pr osecutions in Makhanda, she compiled a report in respect
of the victim with regard to the impact of the offence to the child’s mother.
[23] She was constrained to point out, quite firmly, that although everyone was
quite surprised by the appellant’s actions, given the community’s regard for him as
a “ very calm ” and “ very humble ” person and one who loved his daughter, she
herself did not believe that he had acted out of character on the day in question.
She explained, in answer to a question posed to her duri ng cross examination by
Mr. Geldenhuys that quite to the contrary, the appellant had exhibited “ coercive
behaviour” during his relationship with the mother towards her and she thought it
inevitable that the “ end result of it,…went to, the child being…kille d”. She
referenced the appellant’s controlling behaviour in the relationship and her
experience of such violent relationships where the abuser escalates violence to
another level in a bid to maintain control. She agreed that she had not consulted
with the appellant to understand what had gone on in his mind when he killed his
child, but qualified her understanding of the situation with reference to her
expertise in working with abused people and their abusers.
[24] It is necessary to reference the seminal par agraph in her report on which she
relied to voice her opinion against the notion that the appellant, even just on the
basis of the outrageous nature of the attack upon the child, had acted contrary to
expectation:
“The perpetrators of this kind of abuse are manipulators or are using manipulative
behaviors and tendencies to instill trust. The first thing they do is to kill the victim’s self
esteem. Being accused of being in in a relationship, making her to doubt her decision of
allowing her child to go with him, making her to make excuses for his behaviour by
accepting his acts as being caused by jealousy or evil spirit, denying the paternity of their
child and later took responsibility, acting calm and understanding at times are all the
means of destroying the self worth when making the victim to doubt herself. These affect
the victim’s cognitive abilities. This form of abuse heightens the feelings of guilt and
self-blame to the victim finding herself justifying for t he accused’s actions. The calm
personality that is sometimes presented by perpetrators is an act that is the reason the
victims are sometimes not believed and the community at times is overwhelmed with
disbelief. The known personality and the act seemed to clash. This is the danger and the
intensity of the impact of these kinds of abuse on victims. They leave emotional and
psychological scars which are having long term effects on victims.” (sic)
[25] She concluded with her view, based on the examining doctor’s evidence put
to her regarding the vast extent of the injuries and the force that must have been
employed, which is that she saw anger and power coming to the fore in the
appellant’s behaviour that clearly needed to be addressed by the court in the
sentence which it imposed. In her opinion and professional experience this kind of
behaviour was not uncommon, namely that aim is taken at the loved ones of the
abused person to get at the latter.
[26] Following Ms. Stamper’s testimony, the trial court raised a conce rn with
counsel regarding the question of the appellant’s criminal responsibility at the time
of the commission of the offence. The trial court revealed in its judgment on
of the commission of the offence. The trial court revealed in its judgment on
sentence that it had been startled by the violent nature of the attack on the child, the
absence of clear evidence regarding the extent of his use of alcohol at the time of
the incident, and the lack of a clear motive. This had formed the basis for the
court’s perceived need to issue a directive for an inquiry into and report on his
criminal responsibility in terms of section 79 of the Criminal Procedure Act, No.
51 of 1977 (“CP A”).
[27] The appellant was duly assessed by Ms. Karen Andrews, a clinical
psychologist, at the instance of the trial court. She produced a report soon after.
[28] In her subsequent testimony she absolved the appellant of any mental
instability at the time of the commission of the offence or the lack of an
appreciation between right and wrong and the ability to act accordingly. She
explicated, but clearly within her mandate to report on his criminal capacity, that
he relied on a psychological defence of denial as a mechanism to cope with the fact
that he had killed his own daughter.
[29] For so long as he remained in denial, so she explained, the appellant would
be unab le to demonstrate remorse. As was related by the trial court in its
judgment, Ms. Andrews’ opinion was that denial would enable him to avoid the
feelings of pain and horror associated with any recognition of such a heinous fact
and to maintain his mental and emotional integrity.
[30] Whatever concerns the trial court had had up until that moment in respect of
the appellant’s mental status, they were upon receipt of Ms. Andrews’ report and
upon testing her views in court, laid to rest. The court accepted withou t hesitation
her opinion that the appellant had acted with the necessary criminal capacity at the
time of the killing of his child and that his mental functioning was entirely up to
par.
[31] On the issue of his abuse of alcohol she noted the appellant’s insis tence that
he had minimized his use of alcohol in the days leading up to the incident, and on
the day itself. He further denied the possibility that he may have been more
intoxicated than he had maintained he was. It is to be noted that the trial court too
in its merits judgement had discounted the role of alcohol as a basis for diminished
responsibility especially since the appellant had never relied on this factor as a
basis to avoid liability. Indeed in his testimony the appellant had thrice said that
alcohol had not affected him that evening. He offered that he did drink one beer
that day which he shared with the child’s mother, but that this had no effect on him
and that he was not drunk. He claimed that what had made him to sleep that day –
it was h is defence that the child was attacked by Mr. Dini while he slept, was the
fact that he had had a headache.
[32] So too the appellant denied to Ms. Andrews the possibility that he had
unresolved issues with the child’s mother who had a new boyfriend, or that h e had
become irritated with the child when she started complaining that she was hungry,
which had triggered a rage response that was easier to indulge under the influence
of alcohol.
[33] What Ms. Andrews had objectively noted however was that the appellant
had notable yellowing of the eyes, which in her professional opinion was typically
associated with chronic alcohol use and/or abuse. In this context she explained
that it would take very little alcohol to disinhibit him. She also clarified that having
regard to the appellant’s abuse of alcohol, his age and its impact on his
neuropsychological networking, that he would behave in a typical way whenever
he drinks alcohol. In her view there would be no way of circumventing the way he
would normally respond to alcohol, namely with aggression and by being abusive,
as the child’s mother had reported was a common feature of their relationship.
[34] It appears that Ms. Andrews made certain assumptions in her assessment,
based on the trial court’s merits’ judgement that the appellant may have been under
the influence of alcohol at the time he committed the offence, and the noting of his
irrational and aggressive behaviour towards the child’s mother. In her dealing in
her report with his emotional functioning, based on ge neral patterns of behaviour
professionally known to her, she offered the following proposition in substitution
of what the appellant had blocked out regarding his memory of the incident:
“It is common behaviour to act out unresolved anger indirectly in response to a minor
irritation, on a weaker innocent target, particularly when under the influence of alcohol.
Alcohol is a disinhibitor - under the influence of alcohol it is easier to indulge one’s
impulses, often resulting in unacceptable actions.”
[35] She enlarged upon this in her testimony as follows:
“So we know that during the incident Mr. Dini, the first State witness, witnessed Mr.
M[...] hitting the deceased with the kierie on the side of the head, and accu sing, when he
was confronted by Mr. Dini he said no the deceased was a witch, and that this was
triggered by the 3 year old child saying that she was hungry, and we know the 3 year olds
in their immaturity can be quite nagging when they're hungry, and this seems to have
triggered Mr. M[...]’s underlying anger related to his girlfriend, and any other unresolved
anger from his life possibly, that goes together mentally, and under the influence of
alcohol it was easier for him in a disinhibited state to act ou t this anger on a weaker
target, being his daughter.”
[36] Ms. Andrews seemed to be stumped when asked whether the appellant was a
candidate for rehabilitation given his “ foreclosing” on anything related to the
experience of his daughter or their mother and th eir relationship and being unable
to respond mentally or emotionally to her attempt to draw him out on the fact of
his daughter’s death. She explained her predicament thus:
“It’s difficult to say because he is a normal man in all respects, his problem is that he
committed a crime under the influence of alcohol and with unresolved aggression, so it's
not that he is, you know because he doesn't have any previous convictions to my
knowledge, is not a typical psychopath or chronic antisocial functioning person. I actually
don't know what to say about his rehabilitation, this is such a unique situation this, it's out
of keeping with his character that he would have done something like this, this is a thing,
it's not like he's got a criminal history or he's got a criminal mind, so I'm really I'm not
really qualified to answer that, I don't know how justice works here.”
[37] In mitigation of sentence Mr. Geldenhuys had prevailed upon the trial court
to find that that despite the opinion of Ms. Stamper on the issue, the appellant had
acted out of character in the sense that he had spent over fifty years not coming
into conflict with the law. The trial court repeated this sentiment in its judgement
without making a comment on what the social worker and clinical psycholog ist
had meant with reference to such a concept, each in their own context.
[38] On the issue of the use of alcohol, Mr. Geldenhuys had submitted that
alcohol had played a major role in the commission of the offence, but this based on
Ms. Andrews’ conclusion, w hich was self -evidently against the grain of the
appellant’s own evidence and the ultimate finding of the trial court on the issue.
The trial court correctly warned Mr. Geldenhuys in this respect that the extent of
what alcohol had been used was contentious.
[39] On the issue of the appellant’s rehabilitation, he acknowledged the general
tenor of decisions of the courts that a person cannot be rehabilitated unless they
admit what they have done, but was constrained by the fact that the appellant was
in the claimed state of denial.
[40] Concerning the circumstances of the offence relevant to the appellant’s
moral blameworthiness, it appears that Mr. Geldenhuys had himself resorted to
speculation as to what had caused the appellant to act out as he did, assuming as
Ms. Andrews’ had suggested that he had experienced an emotional upheaval, that
something had triggered him, that he had experienced rage, and that he was
intoxicated which probably disinhibited him.
[41] Mr. Mgenge in arguing in aggravation of sentence raised t he same
aggravating factors highlighted in paragraph 19 above, but added a further
important feature, which is that the appellant had clearly had an opportunity to stop
his conduct, even assuming he was enraged, when Mr. Dini tried to stop him. Here
was a voice of reason sensitizing the appellant to stop what he was doing. But
instead he drew his knife and threatened to stab Mr. Dini. He chased him out of his
house and then continued to assault his child until she lost her life.
[42] Also on the subject of his lack of remorse, Mr. Mgenge poignantly noted that
the appellant failed to demonstrate signs of remorse during the trial. The child’s
mother necessarily had to testify, and up until today is none the wiser why he killed
their child. She speculates that it was out of jealousy, or perhaps because he was
trying to make her feel bad. Not surprisingly Ms. Stamper highlighted the anguish
she feels because the appellant holds the power to these answers that she needs to
cope with her grief and to get on with her life.
[43] Ironically Ms. Andrews’ assessment of the appellant is that he is devoid of
empathy for the life and manner of early death of his daughter because of being
emotionally defensive regarding the incident and regarding his relationship with
the child’s mother. On the flip side, in his defence to the charge that he pursued in
the trial (before the trial court requested the criminal capacity assessment), there
was no empathy expressed for the supposed murder of his child by another, no
regret that it happened on his watch and that he could not protect his own child
from danger, and no comfort or apology offered to her mother either, unfortunately
making the inference irresistible that he meant to punish her by his conduct.
[44] In giving leave to appeal the trial co urt cautiously acknowledged that
another court may well find, based on Ms. Andrews’ opinion of the possible impact
on the appellant’s conduct by the single unit of alcohol imbibed by him and
unresolved anger, and the fact that the killing of his daughter seemed in the opinion
of people he knew (because of his character) to cause surprise, that these posed
additional or significant factors in the determination of an appropriate sentence
which this court on appeal may find gave rise to substantial and compell ing
circumstances required for a departure from the prescribed minimum sentence.
[45] We are however not persuaded that the trial court misdirected itself in any
manner in finding the sentence of life imprisonment to have been appropriate in all
the circumstances.
[46] It was, as pointed out above, entirely by chance that the court requested the
psychological assessment to rule out any question of a lack of criminal capacity.
Ultimately through that exercise Ms. Andrews was largely left to speculate as to
the motive for the killing because of the appellant’s psychological defence of
denial. It is from this lack that these possible excuses for his moral
blameworthiness arose, whilst forgetting the appellant’s very express defence
fashioned in the trial that he stuck to, coupled with his express acknowledgement
that he had not been so drunk at the time as not to remember or appreciate what
was going on around him.
[47] Whilst we are prepared to accept that the appellant acted “ out of character”
in the sense that he had a clean record and had not come into formal conflict with
the law before, quite evidently his violent aggression towards the child’s mother
was not something new. Further, there is hardly a person who would not be
surprised, or outraged, by the sensel ess killing of a defenceless little child, but that
does not equate to non -pathological temporary reduced criminal responsibility on
the part of the appellant at the time. This was simply never his defence.
[48] At the end of the day the trial court was in o ur view correct to find that the
latent issues of the suggested role of alcohol, the appellant’s “emotional upheaval”,
and the notion that he acted out of character were insufficient, either on their own
or cumulatively (even assuming them to be valid or r ealistic) to have constituted
substantial and compelling circumstances. The focus was instead correctly directed
at the abhorrent nature of the offence, entailing horrific injuries inflicted on a
defenceless child, as well as the community’s sense of compl ete outrage, which by
far outweighed his personal circumstances.
[49] In the result the following order is made:
(1) The appeal is dismissed.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
I AGREE,
_________________
M JOLW ANA
JUDGE OF THE HIGH COURT
I AGREE,
_________________
N P NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
DATE OF APPEAL : 23 February 2026
DATE OF JUDGMENT : 3 March 2026
Appearances:
For the Appellants: Mr. D Geld enhuys of Legal Aid South Africa, Makhanda, (ref. Adv.
Geldenhuys/McCullum).
For the Respondents: Mr S Mgenge of the Director of Public Prosecutions, Makhanda (ref. Mr.
Mgenge).