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2026
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[2026] ZANCHC 34
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S v Mouton (Sentence) (K/S20/2024) [2026] ZANCHC 34 (17 April 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
GARIEP DIVISION,
UPINGTON
Case No:
K/S20/2024
Heard
on:
16/04/2026
Delivered
on:
17/04/2026
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THE
STATE
and
JOHN
IVAN FRANCIOUS MOUTON
Accused
JUDGMENT ON SENTENCE
MAMOSEBO
J
[1]
The irresponsible use of firearms in violent crimes in this country
is disconcerting what
this court must address in this matter. Its
impact on society is immense. Families lose their loved ones in a
matter of seconds.
This case is a classical example of how an accused
should not have behaved at an accident
scene.
[2]
On 15 April 2026 the accused was convicted of two counts of
premeditated murder read with
the provisions of s 51(1) of the
Criminal Law Amendment Act, 105 of 1997 (CLAA) with
dolus directus
as the form of intent and four counts of attempted murder read
with the provisions of s 51(1) of the CLAA.
[3]
The instructive remarks in
Mudau
v The State
[1]
bear
repeating:
‘
Courts
must therefore always strive to arrive at a sentence which is just
and fair to both the victim and the perpetrator, has regard
to the
nature of the crime and take account of the interests of society.
Sentencing involves a very high degree of responsibility
which should
be carried out with equanimity, as Corbett JA put it in S v Rabie
[1975 (4) SA 855
(A) at 866 A – C]:
“
A
judicial officer should not approach punishment in a spirit of anger,
because, being human, that will make it difficult for him
[or her] to
achieve that delicate balance between the crime, the criminal and the
interest of society which his [or her] task and
the objects of
punishment demand of him [or her]. Nor should he [or she] strive
after severity; nor, on the other hand, surrender
himself [or
herself] to misplaced pity. While not flinching from firmness, where
firmness is called for, he [or she] should approach
his [or her] task
with a humane and compassionate understanding of human frailties and
the pressures of society which contribute
to criminality.”’
[4]
The State proved one previous conviction which was admitted by the
accused: on 26 February
2010 he was convicted of a contravention of
s 65(2)B) of Act 93 of 1996, occupying the driver’s seat
of a motor vehicle
of which the engine is running while the
concentration of alcohol in the blood exceeded the prescribed limit.
He was sentenced
to R3,000.00 or six months imprisonment wholly
suspended for four years on specified conditions. This is a very old
conviction,
and I will keep the lid closed thereby treating him as a
first offender.
[5]
It has become settled since the classic case of
Zinn
[2]
that
for this court to impose an appropriate sentence it must consider the
triad consisting of the personal circumstances of the
accused, the
seriousness of the offence as well as the interests of society.
Punishment should, as espoused in
Rabie,
[3]
fit the criminal as well as the crime, be fair to society, and
blended with a measure of mercy according to the circumstances.
Furthermore, regard must be had to the main purposes of punishment,
which are, deterrence, prevention, reformation/rehabilitation
and
retribution.
[6]
The personal circumstances of the accused were placed on record from
the bar as follows:
that the accused was born on 8 December 1975 and
is 50 years old. He was 47 years old during the commission of the
offence. He
is married with three children aged 24, 21 and 9 years
old. The family resides in Upington. His wife is employed as an
administrator,
and their youngest child is in Grade 4. After
completing his matric he attained a diploma as a medical technician.
Before the incident
he was running his own electrical shop, but the
shop has since been closed due to affordability to rent the business
space. For
the past two years he has been working from home as a
building contractor. His current project involves building rooms for
the
local old age home. He has ten employees in his work
establishment, among them, his two sons. He earns about R10,000 per
month
depending on the availability of projects. He admitted his
previous conviction. He suffers from the following ailments:
diabetes,
high blood pressure and cholesterol for which he is taking
medication. He is a member of the Congregational Church. He is the
third
of six siblings. Both his parents are deceased.
[7]
Ms April, for the accused, relied on
Mahomotsa
[4]
in
her submission that the mere fact that an offence falls under the
ambit of s 51(1) of Act 105 of 1997, does not necessarily mean
that
life imprisonment should follow. Counsel raised the following as
mitigating circumstances: that the accused has lost his vehicle
permanently because it was written off after colliding with the grey
Fortuner on the day of the incident; he did not discharge
the firearm
immediately after the collision and his interaction with the other
driver, Mr Joshua Rock; and that after the shooting
incident he
handed himself and the firearm over to the South African Police.
Counsel urged the Court to consider the circumstances
of this case in
its determination. Counsel, conceding the seriousness of the crime of
murder, further argued that the accused’s
personal
circumstances coupled with the surrounding circumstances would amount
to substantial and compelling circumstances warranting
a deviation
from the prescribed minimum sentences.
[8]
Counsel further submitted that a suitable form of punishment would be
a substantial term
of imprisonment, however, should the court
sentence the accused to imprisonment for life, his chances of
rehabilitation may be
affected because he will be permanently
incarcerated. The SCA having remarked in
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others
[5]
that
it is optimistic in the extreme to assume that there are always
effective rehabilitation programmes in place, it further articulated
that traditional objectives of sentencing include retribution,
deterrence and rehabilitation. It does not necessarily follow that
a
shorter sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one
of the
considerations when sentence is being imposed. 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.
[6]
[9]
In as far as the attempted murder convictions are concerned, counsel
submitted that because
none of the complainants sustained physical
injuries a non-custodial sentence would be appropriate. However,
should the court not
be with her in that regard, whichever custodial
sentence the court imposes should run concurrently with the murder
sentence in
order to curb the cumulative effect of the sentence.
[10]
Mr Shadrack Dube, the deceased in count 1, died of multiple gunshot
wounds. I only reiterate the two
gunshot wounds that took the
deceased’s life. What is perturbing about this conduct is that
the accused had aimed at the
deceased’s upper body, his head
and chest, and literally blew the deceased’s head off as
recorded by Dr Surtie in the
postmortem report at paragraph 4 (a) and
(e). At (a) it was a 13 x 8mm elliptical gunshot entrance wound with
8 x 7mm inferior
medial tract and surrounding abrasion, blackening
(burning) that does not wipe off and black smudging that does wipe
off left temporal
area. Underlying
25 x 20mm inward bevelling skull
[7]
defect with multiple fractures radiating from it. Tract continuing
inferior medially through brain and exiting skull through ±
20x20mm fractured area in anterior medial left sphenoid bone
[8]
with fractures radiating from it. Tract continuing with structural
damage to exit right cheek with 20 x 8mm lacerated exit wound.
At (e)
10 x 8mm entrance gunshot wound with abrasion rim left lateral
anterior chest 190mm from midline and 10mm below sternal
notch
[9]
with inferior medial posterior tract entering chest cavity through
4
th
intercostal space with fracture of 4
th
rib. Tract continuing through left lung and exiting chest through 7
th
intercostal space next to spine with fracture of 8
th
rib. 15 x 7mm exit wound with small lacerations left central back.
500ml blood left chest.
[11]
The same applies to the deceased, Bophelo Khumalo. Although he was
struck by one bullet, it was also
on his upper body, his chest to be
precise. During this shooting two people died and four, of which the
accused was convicted of
attempted murder, had to flee the scene.
They are lucky to live to tell the tale. Ms Engelbrecht, for the
State, urged the Court
to regard this incident as callous and even
execution style following what Dr Surtie had said that the firearm
could either be
loose contact or barely touched Dube’s head
when it was fired, and shortly after eliminating him, struck Khumalo
and was
short of a massacre with the remaining complainants. The
accused was clearly running amok with his firearm notwithstanding his
brother’s advice to put the firearm back in its holster.
[12]
Murder is unquestionably an atrocious offence, taking away the right
to life that is constitutionally
entrenched.
[10]
The collision was unexpected and made the accused angry. It is the
extent of his anger that got him in this situation. Damage to
a
vehicle is repairable. A vehicle is even replaceable unlike life. No
amount of anger can justify taking a life or attempting
to take a
life. Everyone is equal before the law and has the right to equal
protection and benefit of the law
[11]
.
The interests of the society demand the imposition of appropriate
sentences to maintain public confidence in the courts and to
prevent
lawlessness where people will resort to taking the law into their own
hands.
[13]
The SCA in
Matyityi
[12]
advocates for victim-centred sentences. The Court in that case
reasoned that by accommodating the victim during the sentencing
process the court will be better informed before sentencing about the
after-effects of the crime. The court will thus have at its
disposal
information pertaining to both the accused and victim, and in that
way hopefully a more balanced approach to sentencing
can be achieved.
Absent evidence from the victim, the court will only have half of the
information necessary to properly exercise
its sentencing discretion.
It is thus important that information pertaining not just to the
objective gravity of the offence, but
also the impact of the crime on
the victim, be placed before the court. That in turn will contribute
to the achievement of the
right sense of balance and in the ultimate
analysis will enhance proportionality, rather than harshness.
[13]
[14]
Ms Engelbrecht presented five Victim Impact Statements marked
exhibits “K”, “L”,
“M”, “N”,
and “O”. In sum their contents are the following:
(a)
Exh “K” is the statement of Ms
Nosisi Maria Khumalo. She is the mother of the deceased, Bophelo
Khumalo. Deceased assisted
her financially. He also contributed
towards the community by uplifting the computer literacy skills of
the youth. He was also
a lay preacher in their church. The family is
left with the trauma of losing him.
(b)
Exh “L” is the statement of Ms
Caroline Dube. She is the maternal aunt of the deceased, Shadrack
Dube. She says the
deceased was her late brother’s only child.
The family expected the Dube lineage to grow from him. His death in
December
has robbed his fiancé of a future as plans of their
marriage were underway with a date already issued for February 2023,
a mere two months away. The deceased was the family peacemaker. He
played several instruments including keyboard and guitar which
skills
he transferred to the youth in his family and in the community. His
death has just left everyone traumatised.
(c)
Exh “M” relates to Mr Kealeboga
Gaolehelwe, one of the complainants in the attempted murder count. He
came to Upington
in pursuit of a better life for himself and his
family in August 2022. The tragic incident occurred in December of
the same year
where he lost two of his friends, Khumalo and Dube. He
no longer enjoys partying, has lost his confidence and was on the
verge
of committing suicide. The sound of gunshots, even on
television, frightens him. Seeing the Khumalo family saddens him
because
he is unable to assist them emotionally or financially.
(d)
Exh “N” pertains to Ms Ranchiya
Nokayi. She is a member of the South African Police Service. The
incident has affected
her personally and officially. She even had to
undergo psychological counselling. She could not bear the sound of
guns whereas
her job requires her to attend a shooting range
annually. Her boyfriend, Mr Alfred Mogorosi had difficulty coping
with the loss
of his two friends, which puts her in a difficult
position because she does not know what to say or do under the
circumstances.
(e)
Exh “O” is Mr Alfred Mogorosi.
Losing two friends who had become brothers in the same incident and
almost losing his
and his girlfriend’s lives is very traumatic.
The aftermath of such an event had adverse consequences for his
security company
because he lost employees and clients. He lost his
confidence and his work performance was affected. The deceased had
contributed
meaningfully to help him build his company and losing
them has left a traumatic void in his life.
[15]
Every family and friends deserve closure after the loss of a loved
one. The pain and loss they suffered
cannot be gainsaid. They are all
grieving the loss in their own ways. The ghastly sight in which the
four complainants saw Dube
at the shooting scene will continue to
linger in their minds. It must have been unimaginable to them to
celebrate a year end function
with their colleagues and friends not
knowing that it was their last. However, there is no punishment that
can replace the loss
of life.
[16]
Pertaining to the enquiry into substantial and compelling
circumstances the SCA said the following
in
Matyityi
[14]
:
‘…
.
Malgas
[15]
,
which has since been followed in a long line of cases, set out how
the minimum sentencing regime should be approached, and in
particular
how the enquiry into substantial and compelling circumstances is to
be conducted by a court. To paraphrase from
Malgas
:
the fact that Parliament had enacted the minimum sentencing
legislation was an indication that it was no longer 'business as
usual'. A court no longer had a clean slate to inscribe whatever
sentence it thought fit for the specified crimes. It had to approach
the question of sentencing, conscious of the fact that the minimum
sentence had been ordained as the sentence which ordinarily
should be
imposed, unless substantial and compelling circumstances were found
to be present.’
[17]
The circumstances in which the murders against Dube and Khumalo were
perpetrated undoubtedly render
it necessary to impose a sentence of
life imprisonment unless substantial and compelling circumstances
justify a departure from
the prescribed sentence. I have already
found that the shooting was premeditated. I have also dealt with the
fact that the premeditation
occurred shortly before the shooting. The
personal circumstances of the accused must recede into the
background
[16]
and retribution
and deterrence must come to the fore.
[17]
The fact that the accused handed himself and the firearm to the
police after the shooting is a mitigating factor because, in any
event, he was known and seen by eyewitnesses, the complainants in the
attempted murder cases and his brother. Therefore, the police
would
have found him anyway.
[18]
Of the accused’s three children, one is still a 9-year-old
minor. The accused and his wife lived
with their three children. The
accused’s wife is employed as an administrator, and the
children will be in her care. They
shared the primary residency. I
have noted the ailments suffered by the accused, namely, diabetes,
high blood pressure and cholesterol.
However, it is necessary to
point out that his mere say so, without more, does not entitle him to
escape incarceration. The Department
of Correctional Services has
hospital facilities for medical care and it would be expected from
them to offer him proper medical
services.
[19]
What I find most perturbing is the fact that the accused is a holder
of a valid firearm licence. He
was supposed to know better in terms
of the handling of that firearm. This country is bleeding violent
crime mainly with the use
of firearms. My remark is not meant to
sacrifice the accused at the altar of deterrence. However, the
murders of both Dube and
Khumalo were unjustified and could have been
avoided. The accused had the direct intention to kill both deceased.
In fact, the
seriousness of these two murders negates whatever
factors considered singularly or cumulatively to constitute
substantial and compelling
circumstances justifying a departure from
the prescribed minimum sentence of life imprisonment.
[20]
In as far as the four counts of attempted murder are concerned, the
State’s submission was that
because in the indictment the
offence is read with
s 51(1)
of the
Criminal Law Amendment Act, 105
of 1997
, I must also sentence the accused to imprisonment for life. I
do not agree. The SCA in
Malgas
[18]
pronounced:
‘
I.
If the sentencing court on consideration of the circumstances of the
particular
case is satisfied that they render the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal
and the needs of society, so that an injustice would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
I
am of the view that life imprisonment under the circumstances would
render the sentence unjust. I would not by any stretch of
imagination
diminish or undermine the fear they must have gone through when
dodging bullets. They could have died. The shots were
fired in all
directions and they were lucky to have escaped death. The evident
scars on them show the lingering trauma. No-one
wishes to experience
a near death situation. An injustice would ensue if an appropriate
sentence is not meted out in these counts.
[21]
In the result, the following sentences are imposed:
1.
In respect of count 1: premeditated murder
(
dolus directus
)
r/w
s 51
(1) of the
Criminal Law Amendment Act 105 of 1997
–
the accused is sentenced to life imprisonment.
2.
In respect of count 2: premeditated murder
(
dolus directus
)
r/w
s 51
(1) of the
Criminal Law Amendment Act 105 of 1997
–
the accused is sentenced to life imprisonment.
3.
In respect count 3 of attempted murder: the
accused is sentenced to 10 years imprisonment.
4.
In respect count 4 of attempted murder: the
accused is sentenced to 10 years imprisonment.
5.
In respect count 5 of attempted murder: the
accused is sentenced to 10 years imprisonment.
6.
In respect count 6 of attempted murder: the
accused is sentenced to 10 years imprisonment
7.
The sentences in counts 2, 3, 4, 5, and 6
are ordered to run concurrently with the sentence in count 1.
MAMOSEBO J
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For
the State
Adv
MZC Engelbrecht
Instructed
by:
Office
of the Director Public Prosecutions
For the Accused:
Ms B April
Instructed by:
Justice
Centre, Kimberley
[1]
(764/2012)
[2012] ZASCA 56
(9 May 2013) para 13
[2]
S
v Zinn 1969 (2)
SA
537 (A)
[3]
S v Rabie
1975 (4) SA 855
(A) at 862G - H
[4]
S
v Mahomotsa 2002 (2) SACR 435 (SCA)
[5]
2009
(2) SACR 361
(SCA) para 21
[6]
Ibid para 22
[7]
Inward
(or internal) bevelling of the skull is a key forensic marker
indicating the entry point of a high-velocity projectile,
such as a
bullet).
[8]
The
sphenoid bone is an unpaired, butterfly-shaped bone at the base of
the skull (often called the wasp bone) that forms part
of the
cranial floor and eye sockets. It acts as a keystone, anchoring
surrounding bones, housing the pituitary gland, and forming
part of
the sphenoidal sinuses.
[9]
The
sternal notch, or suprasternal notch, is a large, visible, and
palpable depression at the superior border of the manubrium
of the
sternum, located between the clavicles at the base of the neck
[10]
Section 11 of the Constitution of the Republic of South Africa, 108
of 1996
[11]
Section 9(1) of the Constitution.
[12]
S v Matyityi
2011 (1) SACR 40
(SCA) para 16
[13]
Ibid
para
17
[14]
Ibid para 11
[15]
S v Malgas
2001 (1) SACR 469
(SCA)
[16]
S
v Vilakazi
2009 (1) SACR 525
(SCA) para 58
[17]
S v Swart
2004 (2) SACR 370
(SCA) para 12
[18]
Ibid at 482e at para 25 I