S v Masukunya (Sentence) (CC82/2023) [2024] ZAGPPHC 1043 (14 October 2024)
- Citation
- [2024] ZAGPPHC 1043
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Strijdom
- Case number
- CC82/2023
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Strijdom
- Case number
- CC82/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the prescribed minimum sentence for murder of a minor is life imprisonment, the cumulative effect of the accused's personal circumstances and mitigating factors—being a first offender, spending two years in custody awaiting trial, acting under the influence of liquor, immediate surrender to police, and lack of direct intent—constitute substantial and compelling circumstances justifying deviation from the minimum sentence. The court concluded that life imprisonment would be disproportionate and instead imposed a sentence of 25 years' imprisonment. The accused is automatically declared unfit to possess a firearm under section 103(1) of Act 60 of 2000.
Court disposition
The accused is sentenced to 25 years' imprisonment for murder and is declared unfit to possess a firearm.
Orders
- On count 1 (murder), the accused is sentenced to 25 years' imprisonment.
- The accused is automatically declared unfit to possess a firearm in terms of section 103(1) of Act 60 of 2000.
02
Material facts
Parties
The State
Applicant Counsel: Adv L SwhidzhoTshepo Thapedi Masukunya
Respondent Counsel: Adv LA Van WykAmounts and remedies
- Accused's Weekly Income (pre Arrest): ZAR 2,000
- Sentence Imposed (years): 25
- Pre Sentence Detention (years): 2
03
Procedural history
Posture
Criminal Law / Sentencing
04
Questions and positions
Legal issues
- 01
Whether substantial and compelling circumstances exist to deviate from the prescribed minimum sentence of life imprisonment for murder of a minor.
- 02
What is the appropriate sentence for the accused convicted of murder with dolus eventualis.
- 03
Whether the accused should be declared unfit to possess a firearm under section 103(1) of Act 60 of 2000.
Party arguments
- Applicant
- The State submitted that there are no substantial and/or compelling circumstances to impose a lesser sentence than the prescribed minimum of life imprisonment for the murder of a minor. The seriousness of the offence, the vulnerability of the victim, and the manner of assault were emphasized as aggravating factors.
- Respondent
- Counsel for the accused argued that the accused's personal circumstances, including being a first offender, spending two years in custody awaiting trial, his remorse, immediate surrender to police, and lack of direct intent, constitute substantial and compelling circumstances justifying deviation from the minimum sentence. The accused pleaded guilty to culpable homicide and was under the influence of liquor at the time of the offence.
05
Court’s reasoning
Legal principles
- 01
S v Zinn 1969 (2) SA 537 (A)
The triad of sentencing factors requires consideration of the gravity of the offence, the personal circumstances of the offender, and the interests of society.
- 02
Section 51(1), Criminal Law Amendment Act 105 of 1997
Minimum sentences for certain offences, including murder of a minor, must be imposed unless substantial and compelling circumstances justify deviation.
- 03
S v Malgas 2001 (1) SACR 469 (SCA)
Courts must implement prescribed minimum sentences unless there are truly convincing reasons to depart from them.
- 04
Section 28, Constitution of the Republic of South Africa, 1996
Every child has the right to be protected from maltreatment, neglect, abuse, or degradation.
- 05
Section 103(1), Firearms Control Act 60 of 2000
A person convicted of certain offences is automatically declared unfit to possess a firearm unless the court determines otherwise.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the prescribed minimum sentence for murder of a minor is life imprisonment, the cumulative effect of the accused's personal circumstances and mitigating factors—being a first offender, spending two years in custody awaiting trial, acting under the influence of liquor, immediate surrender to police, and lack of direct intent—constitute substantial and compelling circumstances justifying deviation from the minimum sentence. The court concluded that life imprisonment would be disproportionate and instead imposed a sentence of 25 years' imprisonment. The accused is automatically declared unfit to possess a firearm under section 103(1) of Act 60 of 2000.
Obiter and limits
- The court emphasized the need for courts to protect the dignity and freedom of all children, noting the constitutional rights violated in this case.
- Pre-sentence detention must be weighed as a mitigating factor together with all other mitigating and aggravating circumstances.
- The evidence did not establish that the accused had the direct intent to cause the death of the deceased, but rather dolus eventualis.
Court disposition
The accused is sentenced to 25 years' imprisonment for murder and is declared unfit to possess a firearm.
- On count 1 (murder), the accused is sentenced to 25 years' imprisonment.
- The accused is automatically declared unfit to possess a firearm in terms of section 103(1) of Act 60 of 2000.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(Gauteng Division, Pretoria)
Case no: CC82/2023
Heard on: 13 September 2024
Judgment handed down: 14 October 2024
In the matter between:
The State
Versus
Tshepo Thapedi Masukunya
Accused
JUDGMENT: Sentence
STRIJDOM, J
1. The accused was arraigned on the following charge:
(a) Murder read with the provisions of section 51(1) of Act 105 of 1997.
2. The accused pleaded "not guilty" to the charge of murder, but "guilty" to culpable homicide. The State did not accept the plea of "guilty" on culpable homicide. The accused was subsequently found guilty of murder with dolus eventualis as the form of intent.
3. In considering an appropriate sentence, the Court is mindful of the foundational sentencing principles that the punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy. In addition to that, the Court also considers the main purposes of punishment being retribution, deterrence, prevention and rehabilitation.
4. In determining a sentence that is just and fair, I have regard to the triad of factors that have to be considered as set out in the case of S v Zinn 1969 (2) SA 537 (A), that is the gravity of the offence, the personal circumstances of the offender and the interests of society. The Court must also consider the interests of the victims.
5. The following personal circumstances and/or mitigating factors were placed on record by the accused.
5.1 The accused is 40 years old and is single.
5.2 He is a first offender.
5.3 The deceased was his only child.
5.4 He was self employed as a builder and was earning an income of R1500,00 to R2 000,00 per week.
5.5 He is heartbroken because of the death of his son.
5.6 He was supporting five of his siblings who are unemployed and staying at his parental home.
5.7 He was arrested on 13 October 2022 and is still in custody. He spent two years in custody awaiting trial.
5.8 He immediately handed himself over to the police and is remorseful for what he has done.
5.9 He has pleaded guilty on culpable homicide.
5.10 The accused was under the influence of liquor.
6. The Court finds the following as aggravating circumstances:
6.1 The deceased was a defenseless 9-year-old boy with a mass of 23 kg.
6.2 The assault on the deceased was vicious, resulting in the serious injuries the deceased sustained.
6.3 Dr Soul conducted a post mortem examination on the body of the deceased. She notes injuries from paragraphs 4.3 of the report, and she numbered them alphabetically A to N which are 14 injuries mainly sustained on the deceased's head.
6.4 The deceased was still a minor. His constitutional right to life as stipulated under section 11 of the Constitution was violated.
7. I will now turn to the second factor to be considered being the gravity of the offence. Murder is a very serious offence. It is the most heinous of crimes.
8. The evidence led by the State revealed that you assaulted the deceased by hitting him with open hands and kicking him several times on his head. He sustained 14 injuries on his head.
9. The interests of society must be taken into consideration by the Courts. The Courts must protect the dignity and freedom of all children.
10. Section 12 of the Constitution provided that:
"Everyone has the right to be free from all violence and not to be treated in a cruel, inhumane and degrading way and every child has a right to be protected from maltreatment, neglect abuse or degration as per section 28 of the Constitution.”
11. The finding of guilty on murder activates the application of section 51(1) of Part 1 of Schedule 2 of the Criminal Law Amendment At 105 of 1997 for a minimum sentence of life imprisonment which is applicable upon conviction of murder of a minor.
12. The Court can only deviate from imposing the minimum sentence if there are substantial and compelling circumstances which will justify a lessor sentence.
13. In S v Malgas 2001 (1) SACR 469 (SCA) the Court held that a Court has a duty to implement these sentences, unless there are truly convincing reasons from departing from it.
14. In determining whether there are substantial and compelling circumstances the Court considers mitigating as opposed to aggravating circumstances and considers the cumulative effect thereof.
15. It was argued by counsel for the accused that the personal circumstances of the accused and the mitigating factors are substantial and compelling circumstances to deviate from the minimum prescribed sentence.
16. It was submitted by the State that there are no substantial and/or compelling circumstances to impose a lessor sentence.
17. On a conspectus of all the evidence placed before me, I am of the view that the following factors are compelling and substantial circumstances to deviate from the minimum prescribed sentence.
17.1 The accused is a first offender.
17.2 The accused spent two years in prison awaiting trial. Pre-sentence detention is a factor to be taken into account when considering the presence or absence of substantial and compelling circumstances. It must be weighed as a mitigating factor together with all the other mitigating and aggravating factors.
17.3 The accused was under the influence of liquor at the time of the offence.
17.4 The accused did report the incident immediately to the police.
17.5 The accused has pleaded guilty on culpable homicide.
17.6 The Court found the accused guilty of murder with dolus eventualis as the form of intent. The evidence does not establish that the accused had the direct intent to cause the death of the deceased.
18. I conclude that under the circumstances life imprisonment would be disproportionate to the crime, the offender and the interests of society.
19. The Court finds that the appropriate sentence is as follows: On count (1) murder, you are sentenced to 25 (twenty-five) years imprisonment.
20. In terms of section 103(1) of Act 60 of 2000 there were no reasons advanced for the Court to consider the possibility of determining otherwise. You are automatically declared unfit to possess a firearm.
JJ
STRIJDOM
JUDGE
OF THE HIGH COURT OF
SOUTH-AFRICA,
GAUTENG DIVISION
APPEARANCES:
For the accused: Adv LA Van Wyk Instructed by: Legal Aid Board For the State: Adv L Swhidzho Instructed by: Director of Public Prosecutions
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