SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: CC49/2022
In the matter between:
THE STATE
And
L[...] S[...] ACCUSED
Coram: YAKE AJ
Argument: 25 May 2026
Delivered: 25 & 27 May 2026
Summary: Section 51(3) (a) of the Criminal Law Amendment Act 105 of 1997
- no substantial and compelling circumstances advanced justifying departure
from the prescribed minimum sentence.
________________________________________________________________
ORDER
________________________________________________________________
1 Count 1: Sentenced to Life imprisonment
2 Count 2: Sentenced to Eight (8) years imprisonment
3 Count 3: Sentenced to Eight (8) years imprisonment
4 Count 6: Sentenced to Life imprisonment
5 Count 7: Sentenced to Twenty (20) years imprisonment
6 Count 8: Sentenced to Five (5) years imprisonment
7 In terms of Section 280(2) of the CPA, the court orders that the sentences
imposed on counts 2, 3, 6, 7 and 8 shall run concurrently with the
sentence in count 1.
8 In terms of section 103 of the Firearms Control Act, Accused
automatically unfit to possess firearm.
JUDGMENT ON SENTENCE
YAKE AJ
Introduction
[1] Mr. S[...], on 25 February 2026, you were convicted on six counts:
• Two counts of murder of Mr. Zola Spaji (“Spaji”) and Mr. Sizwe Feke
(“Feke”) respectively;
• Two counts of attempted murder of Mr. Luxolo Kowa and Constable
Sivuyile Qokombane respectively;
• One count of Illegal possession of a prohibited firearm; and
• One count of Unlawful possession of ammunition.
The two convictions on murder were committed under the circumstances falling
within the purview of section 51(1) of the Criminal Law Amendment Act 1,
(“The
CLAA”); the conviction on illegal possession of semi-automatic firearm in
contravention of section 3 of the Firearms Control Act2, (“The Firearms Control
Act”) falls within the purview of section 51 (2) of the CLAA ; the two
convictions
on attempted murder together with one count of unlawful possession of
ammunition, in contravention of section 90 of the Firearms Control Act are all
subject to the general principles of sentencing, as such the Court has unfettered
discretion to impose a suitable sentence.
[2] Pursuant to your conviction, the matter was postponed for the Defence to
obtain pre-sentence report and as well as the State to obtain victim impact
statements. While regrettable, such postponements are not uncommon in
matters
where prescribed minimum sentences are applicable, as the Court must be
furnished with all relevant information before pronouncing sentence. These
reports are essential, for they provide the Court with a comprehensive insight
into
the accused’s personal circumstances, background, and prospects for
rehabilitation. In S v Lewis3, it was held that ‘the main purpose of a pre-sentence
report is to provide guidance to the exercise of the sentence discretion. It aims
to
assist the presiding officer in gaining a better understanding of the offender and
the reasons for his crime.’ Sentencing is therefore not to be imposed in a
vacuum;
1 Act 105 of 1997
2 Act 60 of 2000
3 S v Lewis 1986 (2) PH H96 (AD)
rather, it must be approached with due regard to the seriousness of the offences,
the circumstances of the offender, and the interests of society.
[3] Upon resumption, the court heard evidence in mitigation of sentence from
your mother, Ms. V[...] N[...] S[...], together with submissions by the defence
counsel, Ms. Adams. These will be considered in due course when your
personal circumstances are addressed. Counsel for the State, Ms. Cecil, tendered
no oral evidence but advanced submissions in aggravation of sentence.
[4] All reports were duly compiled and admitted into evidence as exhibits.
The
Court has had the benefit of considering these reports in conjunction with the
evidence adduced during the trial and the submissions advanced by both
counsel.
[5] It follows that in respect of convictions on murder and illegal possession
of semi-automatic firearm, this court does not have unfettered discretion to
impose any sentences it deems meet. The court must impose the applicable
prescribed minimum sentences and can depart from it, if substantial and
compelling circumstances justifying such a departure are found to exist.
[6] The Supreme Court of Appeal (SCA) in S v Matyityi4, affirming its earlier
decision in the locus classicus case of S v Malgas5 stated as follows:
‘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 deference to the legitimate domains of power of the other arms of
State. Here Parliament has spoken. It has ordained minimum sentences for certain specified
offences. Courts are obliged to impose those sentences unless there are truly convincing
4 S v Matyityi 2011 (1) SACR 40 (SCA), para 23.
4 S v Matyityi 2011 (1) SACR 40 (SCA), para 23.
5 S v Malgas 2001 (1) SACR 469 (SCA).
reasons for 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 officer’s personal
notion of fairness.’
[7] The main objectives of sentencing, entail four primary elements, namely:
deterrence, prevention, retribution, and rehabilitation. Bearing in mind that
these objectives will not necessarily apply equally in every case, rather the
circumstances of each case will determine which objective must be prioritized.
What is of importance is that the sentencing court must always strive to achieve
a proper balance among them. S v Swart 2004 (2) SACR 370 (SCA).
[8] Closely linked to these objectives, is the triad of facts as laid down in the
classic case of S v Zinn6, which requires consideration of the offender’s personal
circumstances, the gravity of the offence that the offender has been convicted
of, and the interests of society. When considering the personal circumstances as
contemplated in the Zinn supra, it is appropriate to also examine whether the
offender has demonstrated genuine remorse. As Ponnan JA observed in S v
Matyityi7 supra; that ‘there exists a clear distinction between mere regret and
true remorse.’ True remorse involves a sincere acknowledgment of wrongdoing
and a willingness to make amends, whereas mere regret may simply reflect
dissatisfaction at being apprehended.
[9] Similarly, the Court must guard against approaching its sentencing task in
a spirit of anger or with a deliberate attempt to demonstrate severity, or to set an
example merely to satisfy public opinion, for that is not the object of
sentencing.
In S v Masda 8 the court referred to S v Mhlakaza and Another 9 where it was
held
6 S v Zinn 1969 (2) SA 537 (A).
7 S v Matyityi 2011 (1) SACR 40 (SCA)
8 S v Masda 2010 (2) SCAR 311 (SCA) at 315
that the object of sentencing is not to satisfy public opinion, but to serve public
interest; a sentencing court that caters predominantly or exclusively for public
opinion is inherently flawed. It remains the court’s duty to impose fearlessly
appropriate and fair sentence even if the sentence does not satisfy public
opinion.”
[10] The Court is also mindful of the fact that whatever sentence to be
imposed,
it should be blended with a degree of mercy which is the hallmark of a civilized
and enlightened criminal justice system. See S v Rabie10. At pages 866, Corbett
JA in Rabie11 supra eloquently summarized the approach in exercising mercy as
follows:
‘A judicial officer should not approach punishment in a spirit of anger because, being human,
that will make it difficult for him to achieve that delicate balance between the crime, the
criminal and the interests of society which his task and the objects of punishment demand of
him. Nor should he strive after severity, nor, on the other hand, surrender to misplaced pity.
While not flinching from firmness where firmness is called for, he should approach his task
with a humane and compassionate understanding of human frailties and the pressures of
society which contribute to criminality. It is in the context of this attitude of mind that I see
mercy as an element in the determination of the appropriate punishment in the light of all the
circumstances of the particular case.’
[11] Further sentencing principles require the Court to give due regard to the
rights and interests of the victims and their families. As such the Court must
ensure that the sentence imposed reflects society’s condemnation of such
violent
conduct, while also affirming the dignity and humanity of the victims whose
lives
9 S v Mhlakaza and Another [1997] 2 All SA 185 (A) at 189
10 S v Rabie10 1975(4) SA 855 (A) at 861-2
11 Footnote 7
were so brutally taken. In this way, the sentence serves not only as a measure of
retribution and deterrence but also as a reaffirmation of the values upon which
our constitutional order is founded.
The Offender
[12] I pause to consider your personal circumstances as drawn from the pre -
sentence report compiled by Probation Officer Ms. Chantal Clarke, the evidence
tendered by your mother, the submissions advanced by y our counsel together
with evidence led during trial. These circumstances may be summarized as
follows:
[13] You were born in Ugie, Eastern Cape, on 5 June 1990, and are presently
35 years of age. However, at the time of the commission of the offence you
were 31 years old. You were raised primarily by your mother, as your father
was not involved in your upbringing, your parents were never married. You are
the second-born child among your siblings.
[14] In pursuit of employment opportunities, your mother relocated to
Gauteng while you were still young, resulting in you and your siblings being
placed in the care of your maternal grandmother. During 2006/2007, the family
moved to Site B, Makhaza, Khayelitsha, at which time you were approximately
four years old. In 2014, your mother relocated to Cape Town to rejoin the
family. Throughout your upbringing, a neighbour, Mr. Simon Maphape,
assumed a paternal role and provided guidance and support in your
development.
[15] You are unmarried and the father of two minor children, each born of
different mothers. Your first child, a son named I[...] L[...] , was born in 201 7
and currently resides in the Eastern Cape with his mother, Ms. Sive. Your
second child, a son named Z[...] M[...], was born in 2019 and resides with your
mother. In 2015, at the age of 25, you established contact with your biological
father and four siblings from his side of the family. Since that time, you have
developed and maintained a close and supportive relationship with them. Your
father however passed away in 2017.
[16] You completed your matric at Sinako High School. Thereafter, you
enrolled at Standford College to pursue studies in Information Technology.
However, you discontinued your studies during your second year, as you were
compelled to seek employment in order to provide financial assistance to your
mother.
[17] At the age of 25, you obtained employment at Edgars, Cavendish Square,
where you worked as a sales agent for a period of three months. Between 2016
and 2017, you were engaged on a contractual basis as a salesman for Assupol
Life Ltd, earning income on commission. You were subsequently employed by
WBHO Construction Company as a construction worker at the Waterfront. To
supplement your income, you engaged in the sale of paraffin and other goods
and also operated as a money lender. From these earnings, you contributed to
the support of your children and family.
[18] Since 2022, you have been suffering from a chronic illness for which you
are receiving ongoing medical treatment and chronic medication. Proof of such
chronic illness was admitted into the record as an exhibit.
[19] You are not a first offender. In 2018, you were convicted of the offence
of possession of an unlicensed firearm. For that offence, you were sentenced to
a term of four years’ imprisonment, which was wholly suspended for a period of
five years, on condition that you were not convicted of any statutory offence
relating to the possession of a firearm or ammunition during the period of
suspension.
[20] The evidence tendered by your mother did not materially assist the court.
Her appearance was directed more towards seeking assistance with your alleged
child, a matter which ought to have been raised with the probation officer
during her consultation. I decline to engage with the implausible allegation that
you have a 28 -year-old child while you are yourself 35 years of age, as such a
claim is logically untenable. In effect, her testimony undermined your position,
for she presented a version inconsistent with that which you had already placed
before this Court. Your personal circumstances should therefore be seen and
weighed against the aggravating factors with the context in which the offences
in question took place as the key factor.
The Offence
[21] The factual matrix that led to your conviction are as follows: on the
evening in question, Mr Luxolo Kowa, an Uber driver, conveyed the deceased,
Mr Zola Spaji, to Dlavu Close. Upon arrival, while the two remained seated in
the vehicle conversing, three unidentified males approached and started firing
shots at them. Mr Kowa managed to flee the scene and sought assistance.
During his absence, members of the South African Police Service arrived and
took cover in nearby houses. It was at this juncture that you appeared and
advanced towards the direction of Constable Qokombane and discharged a
firearm. Constable Qokombane and his colleagues returned fire, and in the
process you sustained a gunshot wound to the thigh. A firearm was
subsequently recovered in close proximity to where you fell.
[22] When Mr Kowa returned to the scene, he identified you as one of the
assailants who had fired shots at them earlier. The bodies of the deceased, Mr
Zola Spaji and Mr Sizwe Feke, were later discovered at eMsindweni informal
settlement, situated not far from Dlavu Close. You were thereafter arrested.
[23] There can be no doubt that the offences of which you stand convicted of
are of the utmost seriousness. Murder constitutes an irreversible violation of the
constitutional right to life, as enshrined in section 11 of the Constitution. What
renders this matter particularly heinous is that the killings of the deceased were
committed by more than one individual. This is borne out by the cartridges
recovered at the scene, which were traced to different firearms, in addition to
the weapon found in your possession. To this day, the motive for these killings
remains unknown as you denied any involvement in the offences throughout
trial. In taking the lives of the deceased, you infringed upon their fundamental
rights to life, freedom, and security, including the right to be free from all forms
of violence, as envisaged in sections 11 and 12(1)(c) of the Constitution.12
[24] Equally, the attempted murders of Mr. Kowa and Mr. Qokombane cannot
be regarded as offences of lesser gravity. The motive for the shooting of Mr.
Kowa remains known only to you, and it was by sheer fortune that he managed
to escape the scene unharmed. In contrast, Mr. Qokombane was targeted while
discharging his lawful duties. As correctly submitted by the State, you
discharged your firearm repeatedly at Mr. Qokombane, thereby unequivocally
demonstrating your intention to kill him.
[25] Your actions did not merely extinguished two lives; the deceased were
deprived of the opportunity to live full and meaningful lives, to see their
children grow, and to contribute to their families and communities. Their loved
ones are left behind to grieve their violent demise, carrying the trauma and pain
of their loss. The ripple effect of these crimes extends far beyond the immediate
families, instilling fear and insecurity within society at large. You must count
yourself fortunate that you did not succeed in killing Kowa and Qokombane, for
in that event you would have faced four counts of murder.
in that event you would have faced four counts of murder.
12 Constitution of South Africa Act 108 of 1996
Impact of offences on the family of victim
[26] Mr Phumlani Spaji , the maternal cousin of the deceased Zola Spaji ,
consulted with the probation officer and deposed to a victim impact statement.
It was reported by Mr Spaji that the deceased is survived by three sisters and a
minor son, O[...], who was six years old at the time of his father’s passing. The
family is experiencing financial hardship in raising O[...], who still requires
support for his education and cultural initiation. At the time of his death, the
deceased was in a relationship with O[...]’s mother and was providing financial
support to both his son and his extended family.
[27] Mr. Spaji conveyed that the family was devastated by the ruthless manner
in which the deceased met his death, as he was regarded as a respectful and
caring man. His cousins expressed anger towards you and implored the Court to
impose an appropriate punishment for what they described as a heinous crime.
Mr. Spaji continues to grieve deeply, particularly when confronted with the
deceased’s belongings at home.
[28] It was further reported that the deceased’s son became extremely
emotional during the funeral and, at the graveside . He uttered the words: “his
father must not worry, he will find the person that killed him.” The deceased’s
partner suffered an anxiety attack , fell ill in the aftermath and is struggling to
cope with his loss . Although the deceased had a funeral policy, the burial
nonetheless imposed significant financial strain upon the family.
[29] The probation officer further consulted with Mr. Bulelani Feke, who also
deposed to a victim impact statement concerning the death of Mr. Sizwe Feke.
It was reported that the family expressed reluctance to engage with the
probation officer, citing fear for their safety. The deceased is survived by his
mother, siblings, and a son aged twenty-one years.
[30] Mr. Bulelani Feke described the deceased as a loving, caring individual
of good humanity, who maintained a close relationship with his son, mother,
and extended family. He reported that the death had a profound and adverse
impact on the family, particularly on the deceased’s mother, who developed
hypertension and now requires chronic medication. His mother is blaming
herself that she did not raise the deceased well. The tragedy was compounded
by the fact that the family was still mourning the murder of their eldest brother,
who was killed by the deceased, when, a year later, the deceased himself passed
away. As the family they have unanswered questions.
[31] Mr. Feke acknowledged that the deceased had not lived an innocent life
but emphasised that no person deserves to die in such a manner. He explained
that the deceased had been financially responsible for his mother and son; in his
absence, his mother now relies solely on her pension grant. The family has
suffered financial strain, as the deceased had no burial policy. His son, left
without parents as his mother also passed away. He endured immense grief and
was emotionally affected when he had to undergo circumcision shortly after his
father’s death. The family, still burdened by grief and hardship, seeks closure
and has requested that you be sentenced to life imprisonment.
[32] Mr. Luxolo Kowa, who also compiled a victim impact statement and
consulted with the probation officer, reported that following his dismissal from
the South African Police Service , he sought alternative employment as an Uber
driver. He recounted that, at the time of the incident, he experienced numbness
and shock, his thoughts consumed by the proximity of death during the
shooting. He was deeply traumatised by the sight of the deceased, and the event
has since had a psychological impact upon him. He reflected with anguish that
his children might have been left without a father to provide for them.
[33] Mr. Kowa stated that he now suffers from persistent insomnia,
occasioned by recurring flashbacks of the incident. He described feelings of
depression and admitted to increased reliance on alcohol as a means of
alleviating his distress. He has withdrawn socially, preferring isolation within
his home, and lives in constant fear for his own safety and that of his family,
particularly his children.
[34] He further reported that the incident imposed a financial burden upon
him, as he was required to repair a damaged vehicle that did not belong to him.
In an effort to continue with his life, he has resorted to denial, though the
psychological scars remain evident.
[35] Constable Sivuyile Qokombane also deposed to a victim impact
statement and consulted the probation officer. He reported that he experienced
severe aftershocks following the incident, as this was his first encounter in his
line of duty. He described feelings of devastation and emotional turmoil,
particularly as he reflected upon his three children who, had he perished, would
have been left without a father. The incident further impacted his family, as his
mother became ill upon learning of the events and now suffers ongoing stress
whenever he is required to report for duty. Qokombane has since sought a
transfer to the Eastern Cape, though his efforts have thus far been unsuccessful.
He continues to endure recurring flashbacks of the incident, which weigh
heavily upon his wellbeing.
Interests of Society
[36] The Courts have, on numerous occasions, reflected upon the horrific and
repulsive nature of offences of this kind. The interests of society demand that
those who commit such crimes must be punished, and in deserving cases, the
punishment must be severe. The prevalence of murder, attempted murder and
the illegal possession of firearms in South Africa necessitates the imposition of
stern sentences, so as to send a clear and strong message that such conduct will
not be tolerated. Society requires not only the effective punishment of those
who commit serious crimes, but also protection from people like you. Should
the courts fail to deal adequately with offenders, public confidence in the
justice system will be eroded. This, in turn, may prompt members of society to
take the law into their own hands; an eventuality which the court must guard
against.
Minimum Sentence Regime
[37] I pause to deal with the minimum sentence regime. It is trite that where
the Legislature has ordained a prescribed minimum sentence, the court is bound
to give effect thereto unless it finds that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence. Only if the
evidence discloses circumstances which are truly substantial and compelling,
rendering the prescribed sentence unjust in the particular case, may the court
deviate therefrom. Mere personal hardship or ordinary mitigating factors will
not suffice. The threshold is deliberately high, and rightly so, given the
seriousness of the offences for which minimum sentences have been enacted .
This principle is firmly entrenched in our jurisprudence and serves to promote
consistency, certainty, and proportionality in sentencing.
[38] Section 51 of the Criminal Law Amendment Act provides.
“(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall
(a) if it has convicted a person of an offence referred to in Part I of Schedule 2; or
(b) if the matter has been referred to it under section 51 (2) for sentence after the
person concerned has been convicted of an offence referred to in Part 1 of Schedule 2,
sentence the person to imprisonment for life.
(2) Notwithstanding any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person who has been convicted of an offence
referred to in—
(a) Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less than 15 years.
(ii) a second offender of any such offence, to imprisonment for a period not less than
20 years.
(iii)……..”
[39] Section 51 (3) (a) provides 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, the court shall enter those
circumstances on the record of the proceedings and must then impose such
lesser sentence.
[40] In S v Malgas13, the Supreme Court of Appeal stated:
‘[25] What stands out quite clearly is that, the courts are a good deal freer to depart
from the prescribed sentences than has been supposed in some of the previously
decided cases and that it is they, who are to judge whether or not the circumstances of
any particular case are such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service to, the legislature’s view that the prescribed
periods of imprisonment are to be taken to be ordinarily appropriate when crimes of
the specified kind are committed.’
13 (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A) (19 March 2001), para 25
Do substantial and compelling circumstances exist?
[41] It is trite that the concept of “substantial and compelling circumstances”
has not been defined by our legislation. It has been left up to the courts to
decide based on the circumstances of each case, as to what constitutes
substantial and compelling factors. Importantly, such circumstances need not be
exceptional in the sense of being rare or seldom encountered. Rather departure
from prescribed minimum sentence would be justified if, upon a cumulative
consideration of all relevant factors, the court finds convincing reasons to
impose a lesser sentence. However, the courts have consistently cautioned
against departing from the minimum sentence lightly or for flimsy reasons.
There must be truly convincing reasons justifying such departure. S v PB 2013
(2) SACR 533 (SCA) para 20.
[42] In S v Malgas supra , the Supreme Court of Appeal made it clear that “it
is no longer business as usual”, the legislature intended that the prescribed
sentences be imposed unless there are truly convincing reasons for departure.
Courts are cautioned that the minimum sentence should not be departed lightly
and for flimsy reasons which could not withstand scrutiny, as this would defeat
the deterrent and retributive objectives of the minimum sentence regime. And
certainly, put the administration of justice into disrepute.
[43] In S v Vilakazi 14 the Supreme Court of Appeal explained that particular
factors, whether aggravating or mitigating, should not be taken individually and
in isolation as substantial or compelling circumstances. In deciding whether
substantial and compelling circumstances exist, one must look at traditional
mitigating and aggravating factors and consider the cumulative effect thereof.
When considering the personal circumstances of an accused, the court must be
14S v Vilakazi 2009 (1) SACR 552 (SCA)
alive that only some carry sufficient weight to tip the scales in favour of the
accused to impact on the sentence to be imposed. Often the fact that the accused
is young and is a first offender has the effect of reducing a sentence. The SCA
went further to state that, the court may not move away from imposing the
minimum sentence on “flimsy reasons”.
[44] At paragraph 58 the court went further to state:
‘In cases 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 children or three, whether or not
he is in employment are in themselves largely immaterial to what that period should
be, and those seem to be the kind of flimsy grounds that S v Malgas case said should
be avoided. But they are nonetheless relevant in another respect. A material
consideration is whether the accused can be expected to offend again. While that can
never be confidently predicted, his or her circumstances might assist in making at
least some assessment.’
[45] In S v Matyityi 15, the court referred to the fact that such deviations must
be based on convincing reasons. Ponnan JA, at para 14, said: 'Turning to the
respondent's age: ...Thus, whilst someone under the age of 18 years is to be
regarded as naturally immature, the same does not hold true for an adult. In my
view a person of 20 years or more must show by acceptable evidence that he
was immature to such an extent that his immaturity can operate as a mitigating
factor. At the age of 27 the respondent could hardly be described as a callow
youth.'
[46] Against the backdrop of the authorities referred to, it is settled law that
the imposition of the prescribed minimum sentence must be approached with
caution. Courts are enjoined to adopt the proportionality test, having regard to
the triad considerations.
15 Footnote 2 supra
[47] Ms Adams , urged the court to find that substantial and compelling
circumstances exist which justify a departure from the prescribed minimum
sentence. In support of this submission, reliance was placed upon the following
factors:
(a) that you have been in custody for a period exceeding four years
awaiting trial;
(b) that you have no history of violence;
(c)that you can still be rehabilitated;
(d) that your HIV status requires you to take medical condition for it;
(e) that you once suffered from TB whilst incarcerated and
(f) that your personal circumstances as a whole should be considered.
[48] Counsel contended that, taken cumulatively, these circumstances ought to
be regarded as substantial and compelling, thereby warranting deviation from
the prescribed minimum sentence. She proposed that a sentence of twenty
years’ imprisonment be imposed on each count of murder. In respect of the
convictions for attempted murder, unlawful possession of a firearm, and
unlawful possession of ammunition, she requested that the sentences be ordered
to run concurrently with the counts of murder. No submissions were advanced
in relation to section 103 of the Firearms Control Act.
[49] Ms. Cecil, on the other hand, argued that you failed to take this court into
confidence by not giving any evidence under oath whether during trial or in
mitigation of sentence. This, according to M s. Cecil, demonstrates lack of
genuine remorse. She submitted that the evidence against you was
overwhelming. Referring to the authority of Radebe v the State 16, M s Cecil
argued that the mere fact of having spent four years in custody cannot, on its
own, be regarded as a substantial and compelling circumstance. Similarly, your
16 Radebe v The State 2013 (2) SACR 165 SCA
personal circumstances cannot be said to constitute such a circumstance. In light
of the gravity of the crimes and the interests of society, she submitted that there
are no substantial and compelling circumstances.
[50] The court has considered the report submitted on your behalf, to the
extent that no reference is made to every aspect of the report, but this should not
be construed as indicating that it was not fully considered. The probation officer
recommended a sentence of long-term imprisonment as an appropriate sentence.
The court is mindful that the probation officer’s recommendation is limited to
being recommendation and not binding on the court.
[51] Having carefully assessed your personal circumstances, particularly
attentive to the interests and well -being of your children, who may be adversely
impacted by your incarceration, it is clear that you are not the primary care
giver of your children as one reside with his mother in Easter Cape while your
mother is taking care of the other child. Further consideration is that at the time
of the commission of the offence you were 31years old, however notably you
were already an adult and were fully aware of the consequences of your actions.
[52] Furthermore, you have exhibited no remorse for your actions before this
court. The probation officer recorded that you continue to maintain your
innocence notwithstanding your conviction, and that you failed to display
conduct or verbal expressions indicative of genuine contrition. While it has been
submitted on your behalf that you remain capable of rehabilitation, it is my
considered view that a person who does not acknowledge the wrongfulness of
his conduct is far from being rehabilitated. True rehabilitation begins with
an appreciation of the gravity and unlawfulness of one’s actions; an
appreciation which you have not demonstrated.
[53] With r egard to the time spent in custody, it is acknowledged that both
[53] With r egard to the time spent in custody, it is acknowledged that both
counsels accept that you spent a period of four years in custody awaiting trial, a
circumstance which cannot be attributed to any fault on your part. The question,
however, is whether this factor may properly be elevated to substantial and
compelling in the light of the totality of evidence . The court is of the view that ,
given the seriousness of the offences committed, the time spent in custody
cannot be regarded as substantial and compelling circumstance warranting
deviation from the prescribed sentence . This view aligns with various decisions
of the Supreme Court of Appeal.
[54] The question of whether the period the accused spent in custody awaiting
trial, constitutes substantial and compelling circumstances was dealt with in
Ngcobo v S 17 where the SCA ruled 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 disproportionate and unjust. It was held that the 2 years spent in custody
would make a minimal impact on a sentence of life imprisonment and did not
render the sentence shockingly disproportionate.’
[55] Once more, this was again investigated by the SCA in Ludidi and Others
v S 18,where the appellant was incarcerated for 5 years and 8 months. Nicholls
JA concluded that pre -sentencing incarceration is but one of the factors to take
into consideration when determining the existence of substantial and compelling
circumstances. The reasons for the prolonged period of detention prior to
sentencing is relevant. However, a court cannot approach a life sentence as
anything other than a sentence which is imposed for the rest of that person's life.
It cannot be 'reduced' by the period spent in custody awaiting trial and it would
be improper for a court to consider the possibility. The court went further to
17 (1344/2016) [2018] ZASCA 6; 20 18 (I) SACR 479 (SCA) (23 February 2018) paras 7 and 21.
18 Loyiso Ludidi and Others v S (983/2022; 056/2024) (2024] ZASCA 162; 2025 (I) SACR 225
18 Loyiso Ludidi and Others v S (983/2022; 056/2024) (2024] ZASCA 162; 2025 (I) SACR 225
(SCA) (29 November 2024) para 13.
state that, there unless this is an exceptionally long period of time to which the
conduct of the accused persons has not materially contributed, in my view, can
never in and of itself, be a substantial and compelling circumstance where life
imprisonment is imposed.
[56] Having considered all the surrounding circumstances cumulatively;
including the nature and seriousness of the crimes committed, your personal
circumstances, the interests of the victims, and the interests of society; it is
evident that the imposition of a sentence of direct imprisonment is the suitable
sentence under the circumstances. The court is mindful of the interests and
well-being of your minor children, who stand to be adversely affected by the
incarceration of their parent. Nevertheless, the court finds that none of the
factors advanced constitute substantial and compelling circumstances. As stated
in S v Malgas supra, such factors amount to no more than flimsy reasons. It is
the considered view of this court that the imposition of the prescribed minimum
sentences would not be disproportionate to the crimes committed; to you as the
offender, or to the needs of society. Their imposition will not result in an
injustice.
ORDER
[57] In the circumstances you are sentenced as follows:
(a) Count 1: sentenced to Life imprisonment.
(b) Count 2: sentenced to undergo eight (8) years imprisonment.
(c) Count 3: sentenced to undergo eight (8) years imprisonment.
(d) Count 6: sentenced to Life imprisonment.
(e) Count 7: sentenced to undergo twenty (20) years imprisonment.
(f) Count 8: sentenced to undergo five (5) years imprisonment
[58] It is ordered that in terms of section 280 (2) of the Criminal Procedure
Act 51 of 1977, the sentences imposed on counts 2, 3 , 6, 7 and 8 shall run
concurrently with the sentence imposed on count 1.
[59] In terms of section 103 of the Firearms Control Act, the accused is
automatically unfit to possess firearm.
________________________________
S. YAKE
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the State: Adv. E. Cecil
The Director of Public Prosecution
Cape Town
Counsel for Accused: Ms. L. Adams
Legal Aid South Africa
Cape Town