S v Makhenke (SS92/2021) [2022] ZAGPJHC 233 (12 April 2022)

S v Makhenke (SS92/2021) [2022] ZAGPJHC 233 (12 April 2022)

The court found that two substantial and compelling circumstances justified a departure from the prescribed minimum sentence for murder: Mr. Makhenke's clear and genuine remorse, evidenced by his prompt guilty plea and willingness to accept severe punishment, and the significant period he had already spent in pretrial custody. The absence of a presentencing report did not prejudice the accused, as the uncontested facts and circumstances were sufficient for sentencing. The court determined that the effective sentence should be reduced accordingly, balancing the seriousness of the offences with the mitigating factors present.

Citation
[2022] ZAGPJHC 233
Parties
Applicant: The State; Defendant: Thembilizwe Makhenke
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 April 2022
Case Number
SS92/2021
Procedural Posture
Criminal Law Trial / Sentencing
Outcome
Mr. Makhenke was sentenced to an effective fifteen years' direct imprisonment for murder, culpable homicide, and arson, with specified concurrency of sentences.
Judges
S D J Wilson
Legal Topics
Minimum Sentencing, Remorse, Mitigation of Sentence, Pretrial Incarceration, Culpable Homicide, Arson
Criminal Law Minimum Sentencing Remorse Mitigation of Sentence Pretrial Incarceration Culpable Homicide Arson

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 8 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

The State

Applicant

Thembilizwe Makhenke

Defendant

Procedural Posture

Criminal Law Trial / Sentencing

Legal Issues

  1. 1 Whether substantial and compelling circumstances exist to justify a departure from the minimum sentence for murder.
  2. 2 How Mr. Makhenke's remorse and pretrial incarceration should affect sentencing.
  3. 3 Whether the absence of a presentencing report prejudices the accused.

Ratio Decidendi

The court found that two substantial and compelling circumstances justified a departure from the prescribed minimum sentence for murder: Mr. Makhenke's clear and genuine remorse, evidenced by his prompt guilty plea and willingness to accept severe punishment, and the significant period he had already spent in pretrial custody. The absence of a presentencing report did not prejudice the accused, as the uncontested facts and circumstances were sufficient for sentencing. The court determined that the effective sentence should be reduced accordingly, balancing the seriousness of the offences with the mitigating factors present.

Court Disposition

Mr. Makhenke was sentenced to an effective fifteen years' direct imprisonment for murder, culpable homicide, and arson, with specified concurrency of sentences.

Orders

  • For the murder of Mawande Mafuya, 10 years' direct imprisonment.
  • For the culpable homicide of Siphiwe Chris Buthelezi, 10 years' direct imprisonment, 5 years of which will run concurrently with the sentence imposed for the murder of Mawande Mafuya.