SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. CC 31/2025
In the matter between:
THE STATE
and
SAKHUMZI MHAGA ACCUSED
JUDGMENT ON SENTENCE
Rugunanan J
[1] The accused was convicted on counts of murder (the mens rea being
dolus eventualis) and attempting to defeat or obstruct the ends of justice. The
crimes were committed during the period 31 May 2024 to 4 June 2024 when he
unlawfully and intentionally strang led and killed Ms Z[...] T[...] (the deceased
victim), with whom he was involved in a romantic relationship. In attempting to
avoid detection of the murder, the accused concealed the deceased’s body under
his bed and later buried it in a shallow grave not far from his place of residence.
[2] The indictment forewarns that the sentencing preferences pursued by the
State for the accused’s murder conviction are in accordance with the Criminal
Law Amendment Act 105 of 1997, as amended. The provisions of s 51(1) read
with Part I of Schedule 2 mandates a minimum sentence of life imprisonment.
The operation of the sentence is triggered by the fact that the death of the victim
resulted from physical abuse in a romantic relationship within the definitions of
‘domestic violence’ and ‘domestic relationship’ in s 1 of the Domestic Violence Act
116 of 1998. Alternatively, s 51(2)(a) of the Criminal Law Amendment Act
mandates a minimum sentence of 15 years’ imprisonment in a case of a first
offender.
[3] The minimum sentence legisl ation enjoins a court to approach the
imposition of sentence cognisant that the legislature has proclaimed the
specified sentences as those which should ordinarily be imposed. The specified
sentences may only be departed from if the court is satisfied that substantial and
compelling circumstances exist which justify the imposition of a sentence lesser
than the prescribed minimum.
[4] In determining the accused’s sentence, the principal issue to be addressed
is whether there are circumstances substantial and compelling which may justify
deviation from the prescribed sentences.
[5] The starting point of the enquiry is the postulate that the imposition of the
prescribed sentences should ordinarily be appropriate. The overarching
approach is that all factors traditiona lly taken into account (whether or not they
diminish moral guilt) assume relevance. 1 Included is the foundational principle
well-known as the Zinn triad, namely, the nature and seriousness of the crime,
the interests of society and the personal circumstan ces of the accused. 2
Cognisance should also be taken of the purposes of sentence, namely
retribution, prevention, deterrence and rehabilitation. 3 Ultimately, the
punishment must draw on mitigating and aggravating factors and reflect a
carefully balanced and objective consideration – without undue emphasis – of
all the relevant considerations mentioned above.4 The degree of emphasis of any
relevant factor is ordinarily a matter falling within the realm of judicial
discretion.5 The impact is measured against the composite yardstick ‘substantial
and compelling’ and must be such as to cumulatively justify a departure from
the prescribed sentences. The departure is only justified where the cumulative
weight of all factors renders the prescribed sentences unjust or disproportionate.
The caveat is that the prescribed sentences are not to be departed from lightly or
for flimsy reasons, or without weighty j ustification, or if there are no truly
convincing reasons for a different response, or for reasons attributed to
misplaced sympathy. 6 In its entirety, the enquiry is nuanced. It is a unitary
1 See generally S v Malgas 2001 (2) SA 1222 (SCA) para 25. In determining whether or not substantial and
compelling circumstances may exist, S v Vilakazi 2009 (1) SACR 40 (SCA) makes it plain that a court must
consider: ‘All factors relevant to the nature and seriousness of the cri minal act itself as well as all relevant
personal and other circumstances relating to the offender which could have a bearing on the seriousness of the
offence and the culpability of the offender. If a court is indeed satisfied that a lesser sentence is ca lled for in a
particular case thus justifying a departure from the prescribed sentence then it hardly needs saying that the court
is bound to impose that lesser sentence.’
2 S v Zinn 1969 (2) SA 537 (A) at 540G–H.
3 S v Rabie 1975 (4) SA 855 (A) at 862A.
4 S v Thonga 1993 (1) SACR 365 (V) at 370d-e.
5 S v Rabie supra at 864F.
6 S v Malgas supra paras 8, 9 and 18; S v Matyityi 2011 (1) SACR 40 (SCA) para 23: ‘Despite certain limited
successes there has been no real let -up in the crime pandemic that engulfs o ur country. The situation continues
to be alarming. It follows that, to borrow from Malgas, it still is “no longer business as usual”. And yet one
notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentenc es
prescribed by the legislature for the flimsiest of reasons – reasons, as here, that do not survive scrutiny. As
Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal
aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other
arms of State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol
the boundaries of their own power by showing due defe rence to the legitimate domains of power of the other
arms of State. Here Parliament has spoken. It has ordained the minimum sentences for certain specified
exercise of all the aforesaid interconnected factors – it is innately controversial7
and often not undertaken without considerable difficulty given the tensions that
may exist between them.
[6] Focus shifts to the evidence. No oral evidence was presented by either of
the parties during the sentence proceedings. Sworn affi davits were tendered and
submissions were made from the bar. Strictly speaking, evidence in mitigation
and aggravation should be placed before court by way of oral evidence given on
oath.8 The accused did not raise issue with the contents of the State’s a ffidavit
by the deceased’s father, Mr S[...] B[...]. The State, however, indicated that it
took issue with the affidavit deposed by the accused. It was submitted for the
accused that relevant facts regarding a proper sentence could not be ignored by
the court and that the accused should be afforded the opportunity to place them
before the court in the manner of his choosing. Section 274(1) of the Criminal
Procedure Act 51 of 1977 states that ‘a court may, before passing sentence, receive
such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.’
Consistent with the principle of a fair trial is the recognition of the need that all
facts relevant to sentence be placed before the court.9 Deferring to constitutional
and statutory demands, the accused’s affidavit was accepted. While both sets of
affidavits carry evidential weight, they effectively insulate the deponents from
being cross-examined.
offences. Courts are obliged to impose those sentences unless there are truly convincing reasons fo r departing
from them. Courts are not free to subvert the will of the legislature by resort to vague, ill -defined concepts such
as “relative youthfulness” or other equally vague and ill -founded hypotheses that appear to fit the particular
sentencing office r’s personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an
individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.’
7 See S v M 2007 (2) SACR 539 (CC) para 10 and fn 3 of the judgment wherein reference is made to the variety
of public expectations, inter alia the justness of the sentence, the condemnation of the crime, the protection of
the public against future crimes, the reformation of the offender, the deterren t effect on potential offenders, the
interests of victims of crime, and the expectation that the sentence must be restorative in the sense of
compensation the victim who suffered loss.
8 Du Toit et al Commentary on the Criminal Procedure Act at 28 -5 [Service 59, 2017]. Oral statements from the
bar, if admitted, carry the same weight as facts presented to the court as evidence under oath, and the court is
bound to consider them as though they had been proved in evidence. The default position is that evidence should
be presented on oath as such evidence can be tested in cross -examination. See Cele v The State (681/2024)
[2025] ZASCA 199 (19 December 2025) paras 10 and 11.
9 S v Mokela 2012 (1) SACR 431 (SCA) at 437e.
[7] In mitigation, the personal circumstances of the accused are gathered
from his affidavit. He was born in Willowvale and is presently 35 years of age.
He is the third eldest of six siblings. He attended school in East London and
matriculated in 2009 whereafter he attended Fort Hare University. He graduated
with an LLB degree in 2014, and in 2019 he obtained a diploma in Labour Law
from the University of South Africa (Unisa). At the time of the commission of
the offences for which he was arrested and convicted, he was reading for an
LLM degree at Nelson Mandela University. The accused is unmarried and has a
five-year old child who lives with her mother, a former girlfriend of the
accused. The child is schooling and is dependent on the accused for financial
support. Prior to his arrest the accused held employment in KwaMaqoma
(formerly Fort Beaufort) with the Department of Labour as a supervisor for
labour inspectors. The deceased was a co-employee with whom he was involved
in a steady romantic relationship since February 2023.
[8] Avowing that it is not good to speak ill of the dead, the accused describes
the relationship as ‘very rocky’ – both he and the deceased contributed to their
relationship problems. Their problems were known to the deceased’s brother,
her sister and an aunt. The accused expresses remorse. He wished to apologise
to the deceased’s family but was not allowed to do so. He declares his respect
for the parents of the deceased even though he never met them in person.
Having read the affidavit of the deceased’s father, the accused proclaims that he
comprehends, the trauma w hich the deceased’s family are experiencing and
expresses the hope that he will be forgiven.
[9] Commenting on the broader circumstances of the commission of the
offences, the accused states that he and the deceased consumed alcohol. Even
though the alcohol d id not affect his faculties, he asserts that it did play some
though the alcohol d id not affect his faculties, he asserts that it did play some
role in his conduct. After the physical altercation with the deceased, he panicked
when he realised that she was dead – and somewhat uncharacteristic of his
personality, he buried her. It is ext raordinary to perceive that the accused
gathered the physical strength to do so while maintaining that alcohol played
some role in his conduct. No weight is accorded to his intake of alcohol as a
mitigating factor.
[10] The accused proclaims that he is ‘extremely traumatised by the event’ and
wanted to commit suicide but disclosed what had happened which led to the
discovery of the deceased’s body shortly after the incident. As for the specific
circumstances attendant on the commission of the offences he maintai ns that he
‘played open cards with the court’ . It is understood in that regard, that he relies on
the statement of facts tendered in his plea of guilty.
[11] The affidavit by the deceased’s father Mr B[...] contains hearsay matter.
The contents of the affidavit were not disputed and the material assumes weight
in aggravation of sentence. Mr B[...] described the deceased as a ‘vibrant young
woman who carried herself with dignity, compassion and respect’. She was the pride of
his family. After the passing of her m other in 2021, she assumed responsibility
for her late mother’s maternal responsibilities.
[12] The deceased was also the breadwinner of the family and assumed
financial responsibility for the well -being of her siblings. The family are
struggling to cope with t heir altered traumatic circumstances and the attendant
financial distress brought upon them by the loss of financial support and the
unexpected additional funeral expenses of the deceased. Mr B[...] and his family
are undergoing continuous counselling.
[13] According to Mr B[...], the tragedy that has befallen the deceased has
exacerbated his poor health and has emotionally destroyed her younger sister.
The sister has been particularly affected by the incident and has not found peace
since the death of her el der sibling. Sometime before the deceased was killed,
the younger sister received a message from the deceased saying that if she ever
went missing, the first person to confront should be the accused.
[14] In summary, Mr B[...] expresses himself in the following terms:
‘Emotionally I am completely broken. I once carried in my heart a beautiful picture of my
daughter – full of life, energy, laughter, and promise. That picture has been replaced by the
haunting image of how my daughter was murdered, buried like a d og, and later found in a
shallow grave. On the evening when my daughter’s body was recovered, I was personally
present and witnessed her being dug out of that shallow grave in a deserted field in Fort
Beaufort. That horrific image remains engraved in my mi nd to this day. The condition of her
body was so distressing that the family could not even view her during the burial. That is the
picture I carry with me always.
The memory of seeing her body in that state – so disfigured that our family could not even
view her during her burial – has left a permanent scar on my mind. I carry that painful image
with me every single day. It is something no parent should ever have to endure. … The pain
of knowing what my daughter went through before her death is unbearable…’
[15] On its own the bare picture created by the divergent evidence in
mitigation and aggravation is unavailing. The depth of the enquiry into
substantial and compelling circumstances requires collaborative analysis with
the triad formulation and the purpose of imposing sentence.
[16] The accused’s personal circumstances indicate that his relationship with
the deceased was rocky. Except for the plea of guilty in which he indicated that
the deceased was a jealous person, the accused gives no explanation for what he
meant to convey by that description of his relationship with her. Nothing is said
about whether this related to instability, tumultuousness, or a gruelling
about whether this related to instability, tumultuousness, or a gruelling
partnership marked by frequent arguments, conflicts, or emotional tension.
[17] What is known is that the accused and the deceased were romantic
partners in a relationship that endured for more than a year and that her murder
is an instance of gender -based violence, more particularly, intimate femicide.
This observation converges with the nature and seriousness of the crime.10
[18] Resonating therewith is the shift in emphasis to the ‘objective gravity’ of
the crime as underscored by the Supreme Court of Appeal in S v Malgas.11 In S
v Manyathi12 2025 (1) SACR 446 (ECMk), a recent judgment of this court,
Govindjee J observed (his footnotes consecutively incorporated herein):
‘Gender-based violence manifests in various forms, including physical harm. It is mostly
perpetrated by the current or former intimate partner and may end in the murder of a female
partner.13 Depending on various factors, such as location, between 25 -65% of women in
South Africa reported ever experiencing physical / sexual and emotional abuse by a current or
ex-partner.14 The killing of women by intimate partners (also known as intimate female
homicide or intimate femicide) is the most extreme form and consequence of violence against
women.15 In S v Kasongo (Kasongo), expert testimony revealed that intimate femicide was
much more common in South Africa compared to other countries, with an average of almost
3 women killed by their intimate partners per day.’16
[19] In the course of the plea proceedings the State led expert medical
evidence by Doctor Sithandiwe Kunyuza with regard to the mechanism of the
deceased’s death. The physiological and biological processes in the chain of
events leading to death was explained in significant detail and should be read as
if incorporated herein. The judgment on conviction indicates that the ex pert
10 The corrosive and destructive impact of gender based violence and femicide (GBVF) on families and the
concomitant economic cost to society moved the president during November 2025 to declare it a pandemic and
a national disaster. See https://www.gov.za/blog/violence-against-women-national-disaster-demands-national-
action; also https://www.parliament.gov.za/press-releases/media-statement-committee-welcomes-presidents-
declaration-gbvf-national-crisis; accessed 15 February 2026.
11 At 1230G.
12 S v Manyathi 2025 (1) SACR 446 (ECMk) para 1.
13 A van der Merwe ‘Sentencing’ (2023) 36 SACJ 341 at 349.
14 S v Kasongo [2022] ZAWCHC 224; 2023 (1) SACR 321 (WCC) (Kasongo) para 14.
15 S Mathews et al ‘Every six hours a woman is killed by her intimate partner: A national study of female
homicide in South Africa’ MRC Policy Brief (No. 5) (June 2004).
16 Kasongo above para 15.
evidence contradicted the version put up by the accused in his statement of
facts. The expert evidence was, in addition, not inconsistent with the objective
findings in the post -mortem report, nor with those objectively depicted in the
series of photographs that were admitted into evidence. On a conspectus of the
evidence, it may reasonably be concluded that the ordeal suffered by the
deceased was torturous and that her life came to a brutal and an undignified end
with unspeakable violence.
[20] In imposing sentence recognition should be accorded to the natural
indignation of the community at large (sometimes variously referred to as the
interests of society or the public interest) and the fears and apprehensions of
interested persons. 17 As interested person s, the effect of a crime is in most
instances readily apparent through the testimony of family members and
victims. The affidavit by the deceased’s father Mr B[...] requires no further
elaboration. Both he and his family are painfully enduring the devastat ing
effects of their altered circumstances brought about by the murder of the
deceased. His only plea is that he asks that ‘justice be served for my daughter …
whose life was taken in such a cruel and inhumane manner.’
[21] To determine an appropriate sentence, the overarching approach requires
the court to weigh and attempt to balance all relevant factors without unduly
emphasising any one of them. The task should not be approached by the court in
a spirit of anger, or by attempting to deliberately exhibit seve rity, or to set an
example to placate public opinion. It is not the object of sentencing to satisfy
public opinion, 18 but to serve the public interest; 19 and where possible – if the
circumstances justify this – the sentence must be melded with a degree of
17 See S v M 1997 (1) SACR 276 (WLD) at 277i.
18 S v Ishwarall and Another (CC103/2015) [2018] ZAKZDHC 55 (8 November 2018) para 26.
18 S v Ishwarall and Another (CC103/2015) [2018] ZAKZDHC 55 (8 November 2018) para 26.
19 S v Mhlakhaza and Another (386/96) [1997] ZASCA 7 (13 March 1997) para 7. Also see S v Manyathi fn12
para 16 and the cases referenced.
mercy.20 In that regard considerable store was placed on the remorse expressed
by the accused. In S v Matyityi the Supreme Court of Appeal definitively
stated:21
‘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 … genuine
contrition can only come from an appreciation and acknowledgement of the ex tent of one’s
error … It is the surrounding actions of the accused, rather than what he says in court, that
one should rather look at. 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.’
[22] The accused did not take this court into his confidence when he decided
not to testify in mitigation. That, however, was his choice. The consequence of
that choice is that this court accepts that the accused regrets his a ctions but it is
not persuaded that there is evidence of genuine remorse. In attempting to
underline his professed remorse the accused states in his affidavit that he, ‘gave
the information out as to what happened, [t]hat is why the deceased’s body was discovered so
shortly after the incident’ . It was disclosed by the prosecution during address in
aggravation of sentence that the deceased’s body was discovered on 4 June
2024 and that he was arrested on 6 June 2024. On the facts, the discovery
preceded the a rrest. Precisely how the accused gave out information is not
disclosed. Absent such evidence, there is nothing indicative of his level of
insight into the commission of the offences in order to assess his prospects of
rehabilitation. Remorse must precede rehabilitation. The aspect of rehabilitation
was, in any event, not explored during argument in mitigation, and no basis has
been laid therefor. 22 In the case of very serious crime deserving of long term
imprisonment, it is not a significant consideration.23
imprisonment, it is not a significant consideration.23
20 S v Rabie supra at 862G. In S v Zinn supra at 541C: ‘The purpose of punishment … should not be to destroy
the offender completely.’
21 S v Matyityi supra at 47a-c.
22 S v Nkomo 2007 (2) SACR 198 (SCA) at 203e.
23 SS Terblanche, A Guide to Sentencing in South Africa (LexisNexis, 3ed. 2016) at 152.
[23] Pointing to the accused’s circumstances and the commission of the
offence, on their own, none of the individual factors, such as the fact that he
supports a child, or that he is a first offender, or that alcohol played a role would
move this court to impose an indulgent sentence. Tritely, if the role of alcohol is
to be considered a substantial and compelling factor in mitigation, it must be
shown that the accused’s consumption impaired his faculties or judgment and
diminished his moral blameworthiness.24
[24] The accused is 35 years of age and a material consideration is whether he
can be expected to offend again. While that can never be confidently predicted
his circumstances might assist in making at least some assessment. In this case
the accused had reache d a mature age without any previous brushes with the
law. He is educated and held stable employment. He has the intellectual
capability to advance his career and improve his station in life. These attributes
are not indicative of an inherently lawless char acter. As for the circumstances
relating to the commission of the offence, the deceased exhibited jealousy when
she saw the accused’s former girlfriend at the tavern. She slapped the accused
once they returned from the tavern to his flat. These are matters that should not
be excluded from assessing the events that followed. To that may be added, as
mitigating features, that the accused belatedly regrets his actions and that the
murder was not committed with dolus directus.25
[25] In the final assessment, the preceding considerations cumulatively suffice
to demonstrate that it would be disproportionate to impose the life sentence for
the crime of murder . This remark does not diminish the impact on the
deceased’s family and the gruesome nature of the crime. The med ical evidence
24 DPP, Grahamstown v Peli 2018 (2) SACR 1 (SCA) at 4g.
25 S v Sigwahla 1967 (4) SA 566 (A) at 571H: ‘Trial courts, in their conspectus of possible extenuating
circumstances, should not overlook the fact (if it be such) that it is a case of dolus eventualis [and] while it
cannot be said that this factor must necessarily be an extenuating circumstance, in many cases it may well be so,
either alone or together with other features, depending on the particular facts of the case.
revealed that manual strangulation of a victim requires physical contact – the
perpetrator would notice signs of the victim losing breath and struggling. The
deduction that the accused lacked empathy for the deceased is obvious.
[26] In what has been an onerous task for this court the reasons for a finding
of disproportionality were painstakingly considered and cannot be said to be
flimsy or to have been lightly taken. The accused’s conviction for murder is
undoubtedly for a very shocking and serious offence. Retribution and deterrence
must assume prominence which renders it unlikely for the imposition of a
lenient sentence.
[27] A substantial sentence of twenty-eight (28) years’ imprisonment seems to
be sufficient to bring home to the accused the g ravity of the conviction for
murder and to exact sufficient retribution for his crime. To make him pay for it
with the remainder of his life would seem to be grossly disproportionate where
the cumulative weight of the evidential material points to the pres ence of
substantial and compelling circumstances. Where these are shown life
imprisonment would not be mandatory, nor would the prescribed minimum of
15 years’ imprisonment be competent as a mandatory alternative.26
[28] The ultimate sentence imposed on the acc used is, however, within the
discretion of this court, this with due recognition accorded for the legislature’s
desire for a firmer punishment. 27 In that regard it has been held that t he purpose
of the Criminal Law Amendment Act is ‘to ensure that consiste ntly heavier sentences
are imposed in relation to the serious crimes covered by section 51’. 28 To ensure that
consistently heavier sentences are imposed the legislature did not limit the
discretion of the court to impose a sentence in excess of the prescri bed
26 See S v Mahomotsa 2002 (2) SACR 435 (SCA) para 18.
27 S v Mahomotsa supra para 18.
28 S v Mthembu 2011 (1) SACR 272 (KZP) at 278d-i and the cases cited therein.
minimum. The question as to whether a sentence in excess of the prescribed
minimum is competent was answered in the affirmative in S v Mthembu 2011
(1) SACR 272 (KZP) which was approved of and confirmed on appeal in S v
Mthembu 2012 (1) SACR 517 (SCA). The full court held as follows:29
‘In order to ensure that consistently heavier sentences were imposed, the intention of the
legislature was to limit the discretion of courts in one direction, ie the imposition of sentences
less than the prescribed minimu m, and to leave the courts’ discretion unlimited in the other
direction, ie to impose sentences heavier than the prescribed minimum.’
[29] Counsel for the accused did not make any submissions to the contrary,
and having considered the matter anxiously, I am of the view that a sentence of
28 years’ imprisonment is justified. The order below reflects the sentence
imposed for the second count of attempting to defeat or obstruct the ends of
justice. It is not inappropriate to order that part of the sentences should run
concurrently.
[30] In the result the accused is sentenced as follows:
1. On count 1, Murder – the accused is sentenced to 28 (twenty -eight)
years’ imprisonment.
2. On count 2, A ttempting to defeat or obstruct the ends of justice – the
accused is sentenced to 4 (four) years’ imprisonment.
3. It is further ordered that 2 (two) years of the sentence on count 2 shall
run concurrently with the sentence on count 1 so that the accused
serves an effective thirty 30 (thirty) years’ imprisonment.
29 S v Mthembu 2011 (1) SACR 272 (KZP) at 278g. See also S v Khomo (CCD 50/2020) [2020] ZAKZPHC 60
(16 October 2020) para 32.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the State: H Obermeyer, Instructed by the Office of the Director of Public
Prosecutions, Makhanda.
For the Accused: M F T Botha, Instructed by Makhanya Attorneys, Makhanda.
Date heard: 9 February 2026.
Date delivered: 20 February 2026.