South Africa Case Law

S v Tyolo (04/2024)

S v Tyolo (04/2024) [2024] ZAECMKHC 30; 2024 (2) SACR 39 (ECMk) (14 March 2024)

Court

Eastern Cape High Court, Makhanda

Case number

04/2024

Judge

Govindjee

The court held that belief in witchcraft, on its own, cannot constitute a substantial and compelling circumstance to justify deviation from the prescribed minimum sentence of life imprisonment for murder linked to witchcraft-related offences. The legislature has expressly included such offences as deserving of the most severe punishment. The accused's personal circumstances, including his guilty plea, alcohol consumption, and support for his children, were outweighed by aggravating factors: the premeditated and brutal nature of the murder, the victim's advanced age, the familial relationship,…

Source excerpt

• Murder
• Witchcraft Suppression Act
• Minimum Sentencing
• Aggravating Circumstances
• Belief In Witchcraft
• Older Persons Act

S v Phokela en 'n Ander (367/94)

S v Phokela en 'n Ander (367/94) [1995] ZASCA 55 (22 May 1995)

Court

Supreme Court of Appeal

Case number

367/94

Judges

Smalberger, FH Grosskopf, Van den Heever

The Supreme Court of Appeal held that while a genuine belief in witchcraft can be a mitigating factor, its impact must be assessed on the facts of each case. In this matter, the appellants did not provide evidence of a deep-rooted or overwhelming belief, nor did they testify to the extent of their fear or remorse. The trial magistrate considered all relevant factors, including the appellants' personal circumstances and their belief in witchcraft. The severity and brutality of the crime, including the initiation and execution of the attack and the burning of the deceased's body, justified the…

Source excerpt

• Sentencing
• Mitigating Factors
• Belief In Witchcraft
• Murder
• Appeal Against Sentence

S v Lukhwa and Another (698/92)

S v Lukhwa and Another (698/92) [1993] ZASCA 177 (23 November 1993)

Court

Supreme Court of Appeal

Case number

698/92

Judges

Hefer, Van Coller, Harms

Appeal against death sentences for multiple murders during a Venda witch-hunt. The court set aside the death penalty and imposed life imprisonment.

• Mitigating Factors
• Belief In Witchcraft
• Sentencing Discretion
• Murder
• Extenuating Circumstances
• Criminal-sentencing

S v Netshiavha (366/87)

S v Netshiavha (366/87) [1990] ZASCA 101 (25 September 1990)

Court

Supreme Court of Appeal

Case number

366/87

Judges

Van Heerden, F H Grosskopf, Goldstone

The Supreme Court of Appeal found that the appellant's deep belief in witchcraft and lack of intent to kill were genuine and should be considered as mitigating factors. The evidence showed no motive or prior ill feelings between the appellant and the deceased. While the appellant acted with gross negligence in striking the deceased with an axe, his subjective belief in witchcraft explained his conduct. The original sentence of ten years' imprisonment was deemed excessive in light of these mitigating circumstances. The Court held that an effective sentence of four years' imprisonment was appro…

Source excerpt

• Culpable Homicide
• Mitigation Of Sentence
• Belief In Witchcraft
• Negligence
• Intent
• Sentencing Guidelines

S v Malaza (385/89)

S v Malaza (385/89) [1990] ZASCA 8 (8 March 1990)

Court

Supreme Court of Appeal

Case number

385/89

Judges

Smalberger, Kumleben, Goldstone

The court dismissed a murder appeal, holding that belief in witchcraft and psychological pressure did not amount to extenuating circumstances on the facts.

• Extenuating Circumstances
• Murder
• Mental Fitness
• Belief In Witchcraft
• Extenuating-circumstances
• Witchcraft-belief

S v Mampa and Others (51/88)

S v Mampa and Others (51/88) [1988] ZASCA 100 (20 September 1988)

Court

Supreme Court of Appeal

Case number

51/88

Judges

Rabie, Botha, Milne, Kumleben, Nicholas

The Supreme Court of Appeal found that the trial court misdirected itself by rejecting the evidence of a genuine belief in witchcraft held by the appellants. The evidence showed that the appellants and their community sincerely believed the deceased possessed occult powers and posed a real threat to their lives. This belief was directly associated with the crime and was corroborated by the conduct of the community and the events leading up to the murder. The Court held that such a belief, when genuine and directly related to the offence, constitutes an extenuating circumstance. The Court furt…

Source excerpt

• Murder
• Extenuating Circumstances
• Belief In Witchcraft
• Sentencing
• Death Penalty
• Witchcraft Suppression Act

S v Maenetja (386/85)

S v Maenetja (386/85) [1986] ZASCA 26 (24 March 1986)

Court

Supreme Court of Appeal

Case number

386/85

Judges

Joubert, Viljoen, Jacobs

The appeal court held that the appellant’s genuine belief in witchcraft was a mitigating circumstance. Death sentences were replaced with concurrent 15-year terms.

• Murder
• Sentencing
• Mitigating Circumstances
• Belief In Witchcraft
• Criminal-law
• Mitigating-circumstances

S v Ganadi (29/84)

S v Ganadi (29/84) [1984] ZASCA 81 (31 August 1984)

Court

Supreme Court of Appeal

Case number

29/84

Judges

Rabie, Miller, Van Heerden, Galgut, Vivier

The court dismissed a murder appeal, holding that the appellant’s belief in witchcraft did not amount to an extenuating circumstance on the facts.

• Extenuating Circumstances
• Belief In Witchcraft
• Murder
• Moral Blameworthiness
• Extenuating-circumstances
• Belief-in-witchcraft

S v Masemene (408/83)

S v Masemene (408/83) [1984] ZASCA 63 (29 May 1984)

Court

Supreme Court of Appeal

Case number

408/83

Judges

Rabie, Van Heerden, Nicholas, Galgut, Grosskopf

The appellate court upheld a murder conviction and death sentence, holding that the accused failed to prove extenuating circumstances based on witchcraft beliefs.

• Extenuating Circumstances
• Murder
• Belief In Witchcraft
• Sentencing
• Onus Of Proof
• Extenuating-circumstances

S v Makhwanya (270/1983)

S v Makhwanya (270/1983) [1984] ZASCA 3 (27 February 1984)

Court

Supreme Court of Appeal

Case number

270/1983

Judges

Hefer, Corbett, Viljoen

The Supreme Court of Appeal held that the trial court was justified in rejecting the appellant's claim of fear and belief in witchcraft as mitigating circumstances. The appellant's testimony was unconvincing, and he was found to be neither primitive nor genuinely fearful. Moreover, the evidence established that the appellant was himself a witchdoctor and participated in the murder for personal gain, having pressured others to commit the crime. In such circumstances, belief in witchcraft cannot reduce moral blameworthiness. The appeal against the finding of no mitigating circumstances and the…

Source excerpt

• Sentencing
• Mitigating Factors
• Belief In Witchcraft
• Murder