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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION: MTHATHA
CASE NO.CC 16A/24
In the matter between: Heard: 08 April 26
Delivered: 09 April26
THE STATE
Reportable Yes /No
VS
T[...] F[...]
_________________________________________________________
JUDGMENT ON SENTENCE
_________________________________________________________
MJAME AJ
INTRODUCTION
[1] Everyone in this country has the right to life. This right is
entrenched in Section 11 of the Bill of Rights of our Constitution
Act 108 of 1996.The sentence involves gender-based violence and
femicide perpetrated by the accused against his partner. The
progression of physical violence ended up in the death of the
accused partner, S[...] M[...].
[2] Mr F[...] was convicted of murder read with the provisions of
section 51(1) of the Criminal Law Amendment Act 105 of 1997.
This is a stage for the court to impose sentence upon the accused.
[3] Sentencing is indeed regarded as one of the most difficul t tasks
which a presiding officer in any criminal matter has to deal with.
It has been described as a painful difficult problem and involves a
careful and dispassionate consideration of all factors.
[4] Imposing a sentence is an action that requires the C ourt to work
purposefully at finding the most appropriate sentence in a manner
which accords with an accused’s fair trial that embodied in section
35 of the Constitution. Our courts emphasized repeatedly that a
sentence imposed must always be individualise d, considered and
passed dispassionately, objectively and upon careful consideration
of all relevant factors on the basis that retribution and revenge
alone do not drive sentencing1
[5] When considering an appropriate sentence, the court should have
regard to all relevant factors as well as the circumstances of a
case, especially the factual matrix which underpins such facts
against the aims of punishment and triad.
[6] A court is required to consider the four objectives of punishment,
(that is, deterren ce, prevention, retribution and rehabilitation), in
1 S vs Lourens (16424, 205/16, 26/2016 ZA WCH 58, 2016(2) SACR 624 WC at paragraph 15
view of the triad of factors as set out in S vs Zinn2 . These factors
are:
(i) the personal circumstances of the offender, including his
character, conduct in life and personality, and everything that
influenced the commission of the offence,
(ii) the nature and seriousness of the offence committed, and
(iii) the interests of the community, including the necessity of level
of uniformity in sentencing.
[7] However, In S vs Swart 3, Nugent JA (as then he was) said that “
“the serious crimes will normally require that the retribution and
deterrence come to the fore and that rehabilitation will play a
relatively smaller role.
Given the circumstances and the manner in which these horrific
offences were co mmitted by the accused, this is one of those
cases where retribution and deterrence comes to the fore and the
rehabilitation of the accused takes a backseat. It must give
expression to the relative gravity of the offence, the prevalence of
domestic violence, which culminates in the murder of women and
act as a deterrent for would be offenders in domestic partnership
that such conduct will not be countenanced.”
NATURE AND SERIOUSNESS OF THE OFFENCE
[8] The offences which accused has been convicted of are without
any doubt, very serious. Murder is regarded as such as a serious
2 1969(2) SA537 (A)
3 2004 (2) SACR 370 SCA
offence that if falls within the categories mentioned in the Schedule
of Act 105 of 1997.
Our courts, and society considers human life as being precious
and more particularly dispensation such as ours, where the right to
life is guaranteed and regarded as sacrosanct. Not only does it
end the life of a loved family member, but it leaves much hardship
and pain for the remaining family members. It is without doubt a
painful reality that no sentence will ever bring back the life of the
deceased person. In this matter deceased had an intimate
relationship with the accused which means that the death of the
deceased resulted from gender-based violence. Society’s outraged
at the gruesome killings in a domestic relationship has attracted a
prescribed minimum sentence in cases of this nature. Women are
victims of gender-based violence including intimate femicide.
[9] The Court in S vs Robertson 4 stated that:
‘It is so easy t o glibly use the phrases and terminology of femicide
and gender -based violence in part because of the relentless
frequency of its occurrence in our society, communities and
homes, that is hardly causes anyone to bat an eyelid or to raise an
eyebrow …. This disease of gender -based violence and
femicide…. Permeates the psyche of our country.”
[10] In Mudau vs State 5, the Court emphasizing the seriousness of
this kind of offence stated that: -
“Domestic violence has become scourge in our society and should
not be treated lightly.
4 2022 ZAWCHC 104,2023 (2) SACR 156(WCC) par 2
5 2014 ZASCA 43(31/03/2014) par 7
It has to be deplored and also severely punished. Hardly a day
passes without a report in the media of a woman or a child being
beaten, raped or even killed in this country. Many women and
children live in constant fear for their lives. This is in some respects
a negation of many of their fundamental rights as equality, human
dignity and bodily integrity.”
[11] Our Courts have consistently held that the vulnerable individuals
such as women must be protected and treated with digni ty. It is
noteworthy that sentences imposed does not satisfy the public
opinion but must serve the public interest. (See S vs Mafu 6, S vs
Karg7, S vs Schietekat8)
There is a strong feeling of annoyance, displeasure and opposition
to gender -based violen ce. Women in particular are experiencing
worry and ease. They are very eager and concerned to have
something done for their safety and security.
[12] The deceased was brutally killed by her husband. He sustained
multiple gunshots wounds on the skull, neck, chest, abdomen,
upper limbs and thighs. All these injuries inflicted on a defenceless
woman.
PERSONAL CIRCUMSTANCES OF THE ACCUSED
[13] The accused T[...] F[...] testified under oath in mitigation on
sentence.
He testified that he is 47 years old. He is a first offender.
6 1992 (2) SACR 494 (AD)@ 496g-j)
7 1961(1) SA 231 (AD)
8 1998(2) SACR 707 CPD
He has two young boys, born in 2010 and 2017.
The said children are staying with him. He is a primary care giver.
He is also responsible for his elderly parents. He is a business
man owning Amabhele Cash loans and is hiring with tents, mobile
freezers. His children and parents depend on him financially.
He apologises to the deceased ‘s family also reading on record the
note he penned down for apology. He indicated that he is fully
taking the responsibility and remorseful for his conduct. He
testified that he regrets the date of the commission of the o ffence.
He testified that the young children are in safe hands being taken
care by his siblings.
[14] Defence also submitted on his behalf that accused is remorseful
for the death of the deceased. His conduct after the shooting the
deceased handing himself to the police is a sign of remorse. He
submits that the personal circumstances of the accused
cumulatively constitutes substantial and compelling circumstances
for deviation from the prescribed sentence.
Defence referred the court to a case of S vs Soni 2021(2) SACR
241 SCA, S vs Pillay 2018 (2) SACR 192 (KZD) at paragraph 10.
in which the court deviated from the prescribed minimum sentence
after it considered the mitigating circumstances and personal
circumstances of the accused.
[15] In aggravation of sentence the state called two social workers who
compiled the victim impact reports.
Bongiwe Gqomfa , the social worker who compiled the victim
impact report in respect of the two children who are staying with
the accused person. The report shows that the said children are
taken care of by accused’s siblings. They are in conducive
environment. The plight of the elder one is to lose her father if he is
incarcerated.
Welisiwe Agnes Somlotha , compiled victim impact report of
deceased family. It is clear on this report that death od deceased
had a negative impact on the family. Deceased was financially
providing the family. Her child who is staying with deceased aunt
could not accept the death of her mother. She is also disturbed by
the fact that she is separated from her siblings who were refused
to attend their mother’s funeral.
The State also submitted th at the court must sentence accused to
life imprisonment. The state referred the court to Malgas and,
Matyityi case. State submits that there are no substantial and
compelling circumstances for deviation from the prescribed
sentence.
State further argued th at deceased was the wife to the accused.
She died in the hands of her lover. Accused did not show any
remorse. Domestic violence is a pandemic in this country.
[17] The offence committed by the accused falls within the prescripts of
the minimum sentence a s envisaged in section 51(1) of the
Criminal Law Amendment Act 105 of 1997. The prescribed
sentence is Life imprisonment, the court may deviate from the
prescribed minimum sentence if there are substantial and
compelling circumstances which justify the dev iation from the
prescribed sentence.
[18] Section 51(3) states that if any court referred to in subsection 1 or
2 is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than the sentence
prescribed in these subsections, it shall enter these circumstances
on the record of the proceedings and must thereupon impose such
lesser sentence.
[19] The guidelines to establish the existence of substantial and
compelling circumstances are clearly stated in S vs Malgas 9,
where it was stated that : the court may deviate from the
prescribed minimum sentence “ if the court on consideration of the
particular case is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
criminal and the needs of the society so that injustice would be
done by imposing that sentence , it is entitled to impose a lesser
sentence . That the courts may not deviate from the prescribed
sentences just for lightly and flimsy reasons.
[20] In Sv Vilakazi 10, it was said that:
“In cases of serious crimes, 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 impris onment, the question whether the
accused is married or single, whether he has two or three children,
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 kind of “flimsy” grounds that Malgas should be avoided.”
[21] The defence also mentioned that accused is apologetic towards
deceased’s family which is an indication of remorse.
9 2001 (1) SACR 469 @ paragraph 25
10 2009(1) SACR 552 SCA @ paragraph 58
The issue of remorsefulness was dealt with in S vs Matyityi 11,
Ponnan JA, as then he was, had the foll owing to say on this
aspect: -
“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 pligh t 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 factua l 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 genuine of the contrition
alleged to exist cannot be determined. After all, before a
court can find that an accused person is genuine remorseful,
it needs to have a proper appreciation of, inter -alia: - what
motivated the accused to commit the deed, what had 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.”
[25] It is not clear when the remorsefulness of the accused started.
This offence happened in 2020, ever since then accused did never
11 2011(1) SACR 40 SCA @paragraph 13
apologise to the deceased family. It is only now after conviction he
thinks of apology.
[26] If regard is to be had to the manner in which accused kill ed the
deceased person, it becomes clear he had intentions to get rid of
her. The extent and the amount of violence used to kill the
deceased person, the gruesome and senseless killing was clearly
out of proportion and induces a sense of shock..
[27] I am of the view that when the nature and seriousness of the
offence committed by the accused, the gruesome manner under
which the offence was committed as well as devastating impact on
the deceased families are weighed against the personal
circumstances of th e accused person, it cannot be said that the
substantial and compelling circumstances exist that justify a
departure from the prescribed sentence. I am mindful that a finding
of an absence of these circumstances will result in the gravest of
sentences bein g passed and that the consequences of this are
profound, effectively removing an individual from society.
[28] In the circumstances the appropriate sentence to impose is:
The accused is sentenced in terms of Section 51(1) of the Criminal Law
Amendment Act 105 of 1997 to Life Imprisonment.
Court Order: In terms of section 103 of the Fire -arms Act 60 of 2000
accused is declared unfit to possess fire arm.
P.C.N. Mjame
ACTING JUDGE: MTHATHA HIGH COURT
Appearances:
Counsel for the state : T. Qebeyi
Instructed by : NDPP
Mthatha
Counsel for the accused : S. Modi
Instructed by : S Modi Attorneys
Queenstown