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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: CC2/2026
In the matter between:
THE STATE
and
X[...] S[...] Accused
SENTENCE
MALUNGA AJ
Introduction
[1] The accused was convicted of 1, murder a nd count 2, robbery with
aggravating circumstances as defined in section 1(1)(b) of the Criminal
Procedure Act 51 of 1977. The accused pleaded guilty and has been
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convicted on both counts. He must now be sentenced for having commited
the offences.
[2] In State v Rabie 1, Holmes JA reminded judicial officers of the
importance of being fair to both the accused and to society in handing down
a sentence. Justice, it was said, includes the element of mercy, which is the
hallmark of a civilized and enlightened criminal justice system.
[3] The point of departure in sentencing is to have regard to the three
interconnected factors relevant to an appropriate punishment, namely the
offence convicted of, the offender and the interests of society. It is the
Court’s task to have regard not only to the offender, but also to the offence
itself and the interests which society has in the imposition of a suitable
sentence (S v Zinn 1969 (2) SA 537 (A)).
[4] Concurrenyly sentencing must be directed at addressing the traditional
purposes of punishment. Those are deterrence, prevention, retribution and
rehabilitation of the offender. At the end of it all, it is the unenviable task of
the presiding officer of the court to achieve a proper balance amongst these
competing factors and ultimately arrive at a sentence that is just.
Background
1 1975(4) SA 855 (A) at 861-2.
[5] A consideration of all the documents and the address by the respective
counsel discloses the following background facts: the accused is the
biological son of the deceased, the person he killed w hen she was 71 years
of age. He lived with her in the same house at the time of the commission of
the offences.
[6] On the evening of Sunday, 6 April 2025 and at Hofmeyer, the accused
went to a tavern on Saturday evening. He returned home and found the
deceased asleep. He decided to kill her in order to take her money.
[7] He strangled and/or suffocated her whilst she was asleep and took her
wallet. He removed the R556.00 from her wallet, put the empty wallet in his
bedroom, and he returned to drink liquor with his friends.
[8] The following morning, the deceased was found in her house. Her
face was covered with a blanket and a pillow. Her empty wallet was found in
the accused’s room.
[9] The police were informed, and their investigation led to the arrest o f
the accused.
[10] The medico -legal post -mortem examination established the cause of
death as (manual strangulation).
[11] The state allege that aggravating circumstances were present in that
the accused inflicted grievous bodily harm on the victims body.
[12] The state, in the circumstances, sought the implementation of the
prescribed minimum sentence provisions under section 51(1), read with Part
I of Schedule 2, of the Criminal Law Amendment Act, 105 of 1997
(hereinafter “the CLAA”).
[13] The accused handed in a statement through his legal representative Mr
Charles, in terms of section 112 of the CPA wherein he pleaded guilty. The
state, which was represented by Mr Vena, accepted his plea. The court
convicted the accused on the strength of his statement.
Legal Framework
[14] The provisions of Section 51(1) of the CLAA stipulate that a court
shall sentence a person convicted of an offence referred to in Part I of
Schedule 2 to imprisonment for life. The provisions are subject, however, to
Section 51(3) of the CLAA, which permits a court to impose a lesser
sentence if it is satisfied that substantial and compelling circumstances exist.
[15] The offences for which the accused has been convicted indeed fall
within the ambit of Section 51(1) of the CLAA, i n relation to the minimum
sentence of life imprisonment in that the death of the victim was caused in
course of committing or after having committed robbery with aggravating
circumstances as defined in section 1 of the CLA.
[16] Furthermore, the death of t he victim resulted from physical abuse, as
contemplated in paragraphs (a) and (b) of the definition of ‘domestic
violence’ in section 1 of the Domestic Violence Act, 116 of 1998, by the
accused, who was in a domestic relationship, as defined in section 1 o f the
Act.
[17] The enquiry as to whether substantial and compelling circumstances
exist is central to the determination to the proper sentence.
[18] In S v Malgas ,2 Marais JA held as follows regarding the meaning of
‘substantial and compelling circumstances’:
“That [the legislature] has refrained from giving such guidance as was done in
Minnesota from whence the concept of “substantial and compelling
circumstances” was derived is significant. It signals that it has deliberately left
and advisedly left it to the courts to decide in the final analysis whether the
circumstances of any particular case call for a departure from the prescribed
sentence. In doing so, they are required to regard the prescribed sentences as
being generally appropriate for crimes of the kind specified and enjoined not to
depart from them unless they are satisfied that there is weighty justification for
doing so.”i
2 2001 (1) SACR 469 (SCA) at para 18.
[19] In S v Dodo ,3 the Constitutional Court emphasized the principle of
proportionality in relation to sentencing. Akermann J held that:
‘…The concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is
almost exclusively the length of time for which an offender is sentenced that is in
issue. This was recognized in S v Makwanyane. Section 12(1) guarantees,
amongst others, the right “not to be deprived of freedom …without just cause.”
The ”cause” justifying penal incarceration and thus the deprivation of offender’s
freedom, is the offe nce committed. “Offence”, as used throughout in the present
context, consists of all factors relevant to the nature and seriousness of the
criminal act itself, as well as all relevant personal and other circumstances relating
to the offender which could ha ve bearing on the seriousness of the offence and
culpability of the offender. In order to justify the deprivation of the offender’s
freedom it must show that it is reasonably necessary to curb the offence and
punish the offender. Thus, the length of the pu nishment must be proportionate to
the offence.”
[20] The above rationale was followed in S v Vilakazi ,4 in which the
Supreme Court of Appeal confirmed those principles. The court also
reiterated the importance of the principle of proportionality. It held t hat the
punishment must be proportionate to what the offender deserves, no less and
no more, since humans ought to be treated as ends in themselves, never
3 2001 (1) SACR 594 (CC) at para 37.
4 2009 (1) SACR 522 (SCA).
merely as a means to an end. 5 For the purposes of assessing proportionality,
a court is required to consider all the circumstances of the case.6
[21] With the above in mind, the imposition of a sentence is solely within
the discretion of the trial court.7
Submissions by the Parties
[22] The parties called no witnesses for the purposes of sentencing, and
they opted to make submissions from the bar.
[23] In making those submissions the parties handed up the following
exhibits by agreement, (i) accused’s statement in terms of section 112 of
CPA marked exhibit A; (ii) a list of previous convictions, marked exhibit B;
(iii) the post -mortem report, marked exhibit C; and the photo album
depicting the scene of the crime marked exhibit D.
[24] Mr Charles, urged the court to consider the three factors as set out in S
v Zinn 8 and, in doing so, consider them cumulat ively, to achieve the most
just and equitable outcome.
[25] Counsel placed the accused’s personal circumstances on record,
which were the following:
5 At paragraph [3].
6 At Paragraph [15].
7 S v Rabie 1975 (4) SA 855 (A) at p857 D-E.
8 1969 (2) SA 537 (A).
25.1 He 43 years old and single, with a twenty -four-year-old son
residing in Cape Town with his mother.
25.2 He has a standard six (grade eight) level of education.
25.3 At the time of the arrest, the accused was employed on a farm
as a general worker earning R3 500.00 per month.
25.4 He was residing with his mother (the deceased).
25.5 He has been in custody since 8 March 2025.
25.6 He does not have any pending cases.
[26] Mr Charles submitted that although both the offences are serious
offences, the accused showed remorse and by pleading guilty.
[27] Counsel went on to submited that the form of intent that wa s involved
in the commission of the murder must be considered by the court, in that it
was dolus eventualis , as opposed to dolus directus , which he submitted,
lessened the accused’s blameworthiness.
[28] Regarding the interests of society, Mr Charles submi tted that a
sentence of a long imprisonment is inevitable, but the accused should not
attract the ultimate sentence of life imprisonment.
[29] Mr Vena, urged the court to impose life imprisonment. He submitted
that the accused murdered his own mother, who was asleep at the time, by
suffocating her with a pillow, the cause of death, namely manual
strangulation as described by the postmortem report, however I am bound by
the section 112 statement.
[30] He further submitted in aggravation of sentence, that the accused was
a repeat offender, as he has previous convictions. In 2003 he was convicted
of house breaking with the intent to steal and theft, and was sentenced to
imprisonment for one year, suspended for five years on condition that he did
not commit the same or similar offence during the period of suspension.
[31] In 2004 he was convicted of assault with intent to do grievous bodily
harm and house breaking with the intent to steal and theft. Both counts were
taken as one, and the accused was sentenced to seven years imprisonment.
[32] In 2015, the accused was convicted of house breaking with the intent
to steal and theft and was sentenced to three years imprisonment, and the
court issued an order declaring him unfit to possess a firearm.
[33] Mr Vena fur ther submitted that the nature of the crime, in that it fell
within the ambit of domestic violence and gender -based violence in our
country, warranted the prescribed minimum sentence.
[34] Mr Vena then drew the court’s attention to the fact that the decea sed
was an elderly woman, which the court had to consider when looking at the
interest of society.
[35] Mr Vena submitted that when the above factors cumulatively, they do
not support any substantial and compelling circumstances which warrant the
departure from the prescribed minimum sentence.
Discussion
[36] When dealing with a sentence, the court is mindful of the triad of
factors set out in S v Zinn 9 , which today remain as relevant as ever. The
Court must consider the crime, the offender, and the interests of society.
[37] I shall now turn to deal with the relevant factors in the determination
if there are any substantial and compelling circumstances which warrant a
departure from the prescribed minimum sentence.
[38] I have anxiously considered the p ersonal circumstances of the accused,
to ascertain whether they qualify as substantial and compelling. The most
prominent are that: He has no dependants, he is in his forties, he has three
previous convictions which show a propensity to commit crimes, he l ived
with his mother, whom he murdered. In my view do not qualify as
9 1969 (2) SA 537 (A).
substantial and compelling circumstances but rather “flimsy” as previously
characterised in precedent.
[39] In S v Vilakazi ,10 the court held as follows regarding the personal
circumstances of an accused and departing from the prescribed minimum
sentence for “flimsy reasons”:
“The personal circumstances of the appellant, so far as they are disclosed in the
evidence, have been set out earlier. In the case of serious crime 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 imprisonment the questions whether the accused is married or single,
whether he has two or thr ee, whether or not he is employed, are in themselves
largely immaterial to what that period should be, and those seem to me to be the
kind of ‘flimsy’ grounds that Malgas said should be avoided.”
[40] There is nothing remarkable about the accused’s persona l
circumstances which could persuade the court to deviate from the prescribed
minimum sentence and the authorities warn against departure from the
prescribed sentence minimum based on flimsy reasons.
[41] It goes without saying that murder, together with r obbery with
aggravating circumstances, are by their very nature horrendous and heinous
crimes, which have been frowned upon by society as far back as antiquity.
10 S v Vilakazi supra at para 58.
[42] However, the murder of one’s own mother is the ultimate betrayal in
society, where an indi vidual can end the very life that gave birth, succour
and upbringing to him.
[43] A society is judged on how it treats its most vulnerable members,
such as the elderly and disabled in this matter, for a frail seventy -one-year-
old woman to be brutally murd ered, at the hands of her son, who should
have been her protector is something that must be condemned by all in
society.
[44] To add salt to the wound, the accused killed his own mother for a
mere R556.00 so that he could purchase liquor. Mr Charles argu ed that the
fact that the murder fell within the ambit of dolus eventualis, as opposed to
dolus directus, should be considered by the court. I, however, disagree, as
the accused found his mother asleep and has sufficient opportunity to
reconcile himself with what he was about to do.
[45] The accused indeed pleaded guilty and was said to be remorseful. Mr
Vena, however, argued that the state had a substantial and formidable case
against the accused in any event and that the accused was more regretful
than r emorseful. His guilty plea in the circumstances was a neutral factor
rather than a mitigating one. In my view he has failed to pass the stringent
test for remorse as set out in S v Matyityi.11
Conclusion
[46] The test for when the prescribed sentence may be departed from was
expressed as follows in S v Malgas:12
“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, th e criminal and the needs of society, so that an
injustice would be done by imposing that sentence, it is to impose a lesser
sentence.”
Conclusion
[47] In S v Vilakazi 13, the court held that the test set out in S v Malgas, in
essence, means that:
“It is in cumbent upon a court in every case, before it imposes a prescribed
minimum sentence, to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is indeed proportionate to the
particular offence.”
11 2011 (1)SACR 40 (SCA) para 13
12 S v Malgas supra at para 25.
13 S v Vilakazi supra at para 15.
[58] Mr Charles correctly conceded that the accused was looking at
substantial period of imprisonment; he, however, urged the court to sentence
the accused to between eighteen and twenty years imprisonment
[49] In dealing with a sentence of life imprisonment, th e Supreme Court of
Appeal held in Ngcobo v S 14 that the period spent in custody before
conviction and sentencing is not, on its own, a substantial and compelling
circumstance. It is merely a factor in determining whether the sentence
imposed is disproportio nate and unjust. The time that the accused spent in
custody in this case is not a substantial and compelling circumstance which
warrants the court to deviate from the minimum prescribed sentence.
Furthermore I also did not come to the conclusion that the s entence is
disproportionate when all the factors and precedent are considered.
[50] After holistically considering all the factors set out and weighing this
judgment, I am not satisfied that there are substantial and compelling
circumstances which warrant the deviation from the prescribed minimum
sentence
Order
[51] Accordingly, the following order is made:
14 Ngcobo v S 2018 (1) SACR 479 (SCA) para 14.
1. Count 1 , murder; the accused is sentenced to undergo life
imprisonment; and
2. Count 2, robbery with aggravating circumstances the accused
is sentenced to undergo 15 years imprisonment.
3. The sentence in count 2 shall be ordered to run concurrently,
with the sentence on count 1 as ordered by statute.
S Y MALUNGA
ACTING JUDGE OF THE HIGH COURT EASTERN CAPE
DIVISION
APPEARANCES:
Counsel for the State : Adv Vena
Instructed by : Director of Public Prosecutions
Makhanda
Counsel for the Accused : Adv Charles
Instructed by : Legal Aid South Africa
Makhanda
Heard on : 23, 24 February 2026
Judgment Delivered on : 27 February 2026