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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: CC168/17

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

THE STATE

and

KHAZAMULA EMANUEL BALOYI                                                   ACCUSED

JUDGMENT ON SENTENCE

HATTINGH AJ

[1]. This court now reached a stage in the trial where and when it has to deal with the imposition of what in its view is an appropriate sentence. The court has to take into account certain considerations. Sentence is a form of punishment which is the consequence of conviction. In the end a court is an instrument through which the community holds the offender accountable for their actions.

[2]. In the imposition of sentence the court must always keep an eye on the purpose of sentencing, as stated in the case of S v Zinn 1969 (2) SA 537 (A) at page 540. In the case of R v Swanepoel 1945 AD 444 at page 445 the court said: "The main purpose of punishment are deterrent, preventive, reformative and retributive.”

[3]. The object of deterrence is to discourage potential offenders from committing any offence or offences of a particular nature if they are made aware of the type of punishment that lies ahead of them. This, however, does not mean that the evildoer is sacrificed on the altar of deterrence. A sentence leaning more towards deterrence is normally resorted to under the following circumstances:

3.1.        If the crime under consideration is particularly of a serious nature;

3.2.        If the crime is considered to be prevalent in a particular area.

[4].  It is however important to point out that it is imperative that each case should be dealt with according to its own merits and that no two cases are the same.

[ 5.] The second purpose of sentence is prevention. The purpose of this type of sentence is to prevent the offender from committing any further offences. This is done by removing the offender from the community e.g. by a long sentence. This belief is that while the offender languishes in prison he is incapacitated from committing any further offences. In the case of 5 v Mhlakaza 1997 (1)   SACR

515 (SCA) the court held that: "The object of a lengthy sentence of imprisonment is the removal of a serious offender from society. 11 This type of sentence is appropriate in the case of offenders who commit offences repeatedly, people who do not learn from their own mistakes.

[6]. The third purpose of sentence is rehabilitation. It is also an important consideration in sentencing. In essence rehabilitation is aimed at improving the life of the offender by exerting some influence on him or her to become a law abiding citizen.

[7]. The fourth and final purpose of sentencing is retribution. According to SS Terblanche in his book, The Guide to Sentencing in South Africa, on page 99 he states as follows: "Punishment is a justified reaction to the commission of a crime. In other words, punishment is justified because it is deserved." Sometims retribution is viewed as society's expression of the moral abomination it has abouta crim e. Sometimes also referred to as vengeance. The purpose of this kind of sentence gets preferred where we deal with serious and senseless

offences.

[8].   In our law there are three very important considerations that any court Seized with the task of imposing sentence, has to take into account in the determination of an appropriate sentence. These are:

8.1.     The crime, that is the offence that an accused person has committed;

8.2.    The criminal, that is the personal circumstances of the person who stands before the court; and

8.3.   The interests of the society.

[9]. The duty of any court that is seized with the task of imposing sentence shall weigh up all these considerations to give them equal weight and to extract a balanced sentence from them. This court would be committing a misdireciton if it overemphasised one of these three considerations above the others. The imposition of sentence is not an easy task. There exists no fixed formula in terms of the correct sentence. It is trite that the courts use past authorities or case law as guidance in the imposition of sentence. In the case of S v Zinn (supra) it was held that the court must consider a sentence which it thinks is suitable in the circumstances. What has to be considered is the triad consisting of the crime, the offender and the interest of society.

[10]. In the present matter the accused (hereinafter referred to as Mr Baloyi) chose not to testify in mitigation of sentence. The court does not hold anything against him for not testifying. It is customary and done in this way in most cases. All the factors that this court was asked to take in consideration in mitigation of his sentence, were placed on record by his counsel and by a social worker, Mrs J.C. Wolmarans, which compiled a Psycho Social Pre-Sentence Report and also testified in court.

[11]. Mrs J.C Wolmarans placed evidence before court that she achieved a diploma in social work at Hugenote College, Wellington in 1980 and a further National Diploma in Human Resources Management at Technicon SA in 1999. Her experience is listed that she worked as a social worker at The Christelike Maatskaplike Raad: Durban, Vryheid Child and Family Welfare Society, as well as Vryheid Christelike Maatskaplike Raad for a period of 7 years. She was also employed by the SAPS as an industrial social worker, which include the duties as area Manager, with the rank of Superintendent Social Work Services: area North Rand for a period of 15 years. Since then she has been in private practice, specializing in the conducting of pre-sentence reports for the past 20 years.

[ 12.]  She testified that Mr Baloyi has two daughters called Amukelani Baloyi born on 24 October 2011 and Nkateko Maphuti Baloyi born in June 2014 and that both have been in the care of their maternal grandmother since7 January 2017.

[13]. It is also clear from the Psycho Social Pre-Sentence Report that Mr Baloyi grew up in a loving environment and his parents are still together. He furthermore came from a well educated family. His father has been employed as a pharmacist at different state hospitals, being Mahwelereng State Hospital, Steve Biko Hospital and Voortrekker State Hospital at Mokopane. His mother has been employed as a teacher for approximately 25 years. Both are presently retired. It is clear from the above that he had a good and solid upbringing. Mr Baloyi completed his senior level of education in 1999 and obtained his matric certificate. Mr Baloyi also attended Wits Technicon in 2000 and obtained a one year certificate in production management during 2000. It is clear that Mr Baloyi had a happy and stable childhood with the family relationships between him, his siblings, parents and extended family being strong and supportive.

[14]. Mr Baloyi, at the time of the incident, tried to commit suicide. It was testified by Mrs Wolmarans that Mr Baloyi was removed from the scene of the crime by ambulance and spent almost two months in hospital. Mr Baloyi was never incarcerated on this offence up and until he was found guilty of the offence on 25 May 2018. Since that date he has been in custody.

[15]. Mr Baloyi and the deceased met each other during January 2010 and subsequently got married on 28 November 2015. At that stage both were employed. Mr Baloyi was employed by ABSA Bank and the deceased was a qualified nursing sister at Steve Biko Hospital. The deceased got pregnant and the family started the lobola negotiations during September 2011. On 8 December 2012 a ceremony to celebrate the completion of lobola negotiations and payment was held in Limpopo. They lived together since 2011 and decided to have their white wedding on 28 November 2015. They were married for approximately 15 (fifteen) months before Mr Baloyi murdered his wife.

[16]. Mr Baloyi told Mrs Wolmarans that the relationship has been under strain since they moved in together. The witness then listed certain events to substantiate such strain in the marriage.

16.1.    Mrs Wolmarans states that during 2012 Mr Baloyi was employed by ABSA Bank. The conflict in their relationship affected his concentration and he was referred to counselling by his supervisor. Notwithstanding this setback, the families with the couple had a ceremony of welcoming in Limpopo.

16.2.     During 2013 Mr Baloyi struggled at his workplace, as he struggled to concentrate. The problems at home apparently affected him emotionally and he had to attend a disciplinary hearing at work. He resigned at the end of October 2013, as he feared that he might be dismissed. The court will address this issue later in this judgment.

1 6.3   During 2014 the family experienced a few setbacks, a broken down vehicle, house breaking and the deceased had surgery. Mr Baloyi described this period as the best time of his marriage. During 2015 they got married and it was also a happy time until two weeks after the marriage, when the deceased and both children went to her family.

16.4.    During 2016 the deceased entered a three year course and attended class at night. This apparently led to the relationship deteriorating and subsequently to Mr Baloyi filing for a divorce. Then Mr Baloyi was requested by both families not to proceed with the divorce.

16.5.   During 2017 the arguments persisted and according to Mrs Wolmarans Mr Baloyi informed her, that the deceased confessed having a boyfriend during Christmas 2016, when she spent time at her parental home.

16.6.    A week before Mr Baloyi murdered the deceased, Mr Baloyi went for a blood test to determine his HIV status. He did that because he suffered from swellings in his face and on his head, which relate to HIV symptoms. He received the results a day before the incident, which confirmed that he was HIV-positive. Then Mr Baloyi told Mrs Wolmarans that he never had any relationships outside his marriage and was furious about the results of the HIV test. The deceased tested herself and the test was negative. It is the contention of Mr Baloyi that the tests were never released, but there is evidence before this court that the deceased in fact did a home test for HIV and the result was negative. This clearly lays waste to the evidence of Mr Baloyi that the deceased gave him the disease. The court also accepted a Pathology Report in terms of a HIV Elisa test done on the deceased, dated 2 July 2016, that clearly indicate that her status was non­ reactive and therefore negative. So much for the argument that the deceased gave him the dreaded disease. The court will come back to this.

[17]. Mrs Wolmarans also testified that Mr Baloyi and his children had a close relationship.

[18]. It was testified by Mrs Wolmarans that there exist a strong relationship between Mr Baloyi and his family. Mr Baloyi also told her that on the day of the incident, the doctor informed him that he has Aids and that it is a death sentence.

[19]. The report by Mrs Wolmarans makes further mention of the fact that Mr Baloyi slit his throat after he continuously stabbed the deceased and that this is somehow proof of the fact that the deceased was devastated and had no wish to continue with his life. It, however, cannot be excluded that he might have been so guilt-ridden that he decided to take his own life, alternatively that he merely staged his own suicide.

[20].      The aggravating factors listed by Mrs Wolmarans were the following:

20.1.    The victim was 29 (twenty nine) years when she was killed. She dieda violent death, being stabbed 45 (forty five) times by Mr Baloyi. What she left out was that some of these stab wounds were even from behind into her back. This clearly is totally inconsistent with the version of Mr Baloyi that he was merely defending himself from an attack by the deceased.

20.2.    The parties were involved in a relationship for a period in excess of 7 (seven) years.

20.3.   Mr Baloyi was informed of his HIV status a day before the incident.

20.4.  The two young daughters have to be brought up without the love and care of their parents. Also with the knowledge that their father murdered their mother.

20.5.    The mother passed away and the father is incarcerated. It however goes beyond this. After Mr Baloyi was diagnosed with HIV and told by the doctor that it is a death sentence and after the deceased told him that she was HIV negative, he killed her, denying their daughters the love and affection of their mother.

[21].      It was testified by Mrs Wolmarans that the following factors must be considered mitigating factors:

21.1.      He has been in custody since his conviction on 25 May 2018.

21.2.     Mr Baloyi accepted responsibility for his actions.

21.3.     That he is at the age of 35 (thirty five) years a first offender.

21.4.       Mr Baloyi is remorseful.

21.5.      He is on a daily basis reminded that he killed a person he clearly loved.

21.6.      He started to seek assistance and therapy.

21.7.       It was a violent and unstable relationship and he was consistently humiliated by the deceased.

21.8.    The fact that he was diagnosed being HIV positive.

[ 22.] It is indeed so that there exists a minimum sentence in terms of the Criminal Law Amendment Act 105 of 1997 as amended by Criminal Law Amendment Act 38 of 2007 in terms of Section 51 (2)(a) that prescribe a minimum sentence of 15 (fifteen) years imprisonment in the case of a first offence. These rights were explained to Mr Baloyi.

[23]. The court requested a victim impact report that was presented by Mrs Talita Mogudi. In the said report Mrs Jabulisile Khoza is the victim of the crime as her daughter is the deceased. The two children born out of the marriage between Mr Baloyi and the deceased are presently in the primary care of their maternal grandparents. She also explains that even when they were still babies the parents left them in her care for months on end. She is further of the view that any plan to move the children would affect the children's emotional stability.

[24]. In the report the victim was described as a pleasant individual who was caring and helpful to those around her. She was quiet by nature and an active Christian even from childhood. The deceased is described as a loving mother to her children and that Mr Baloyi was the only boyfriend that was introduced to the family up and until they got married.

[25]. In the report the mother of the deceased said that she was numb with shock when she saw the deceased's body with multiple stab wounds. She furthermore stated that she was not aware of Mr Baloyi's violent behaviour. She also confirmed that the deceased was stabbed 45 times.

[26.] The victim further stated to Mrs Mogudi, who compiled the victim impact report, that the crime has changed her life for ever. She testified that she regarded Mr Baloyi as a family member and that she even lent him R20,000.00 (twenty thousand rand) when he was unemployed. She and her family had to attend counselling because they could not handle the loss but more specifically the manner in which it occurred. She furthermore stated that she was very angry with the police that was assigned to this matter and thought that justice would never be done.

[27]. The victim furthermore stated that her family took all the financial responsibility of the burial of her daughter without any assistance from Mr Baloy'is family. She says that the children do not understand what is happening. The elder child used to ask her continuously why their mother was no longer phoning them and whether their father is a bad person.

[28]. The father of the deceased stated in the victim report that this incident caused him unbearable pain, especially when Mr Baloyi denied the weapon of crime during the trial. He said that his only consolation is that they buried their daughter at the place near their home. They would be able to visit her grave and keep it clean.

[29].Nontobeko, the elder sister to the deceased mentioned to the probation   officer that Mr Baloyi has been abusive to the deceased and on one occasion beat the deceased in her presence. The victim further mentioned that the eldest daughter was greatly affected by this incident because she saw the deceased first hand at the scene of the crime and had to help clean up the bloody murder scene. The victim finds solace every time that she sees the children of the deceased laughing and playing.

[30]. The victim also stated that this incident caused her to have financial expenses she never planned for. She has been paying for therapy, educational fees for the children of the deceased, and for their daily needs. She further stated that her family had to get professional intervention to help them cope. She personally received therapy until April 2018.

[31]. The probation officer once again re-affirmed the importance of the Domestic Violence Act, No 116 of 1998 that defines physical abuse as a physically aggressive behaviour, which include stabbing, beating etc. The fact that the deceased's eldest sister saw the signs of domestic violence. The deceased has been described as a young loving mother, who was caring and always celebrated life and good moments with the family. The minor children have been robbed of a role model. These children will never experience their mother's love and positive influences. This would have a lasting impact on these children. This court must take cognisance of the fact that minor children are the silent victims of domestic violence and although the violence was not directly targeted at them, it does gravely affect them.

[32]. The probation officer finds that the victim has assumed the role of the primary care-giver to the minor children, which she had initially done periodically, but presently on a permanent basis. She is also an educator in a primary school which makes her a great benefit in the children's educational needs.

[33].      In the victim impact report, Mrs Mogudi made the following assessment:

33.1.      The victim, the mother of the deceased, never thought of Mr Baloyi as a person that would harm his family.

33.2.      The deceased's elder sister saw the signs of domestic violence and gave support to the deceased. She confronted the deceased to take control of her life and not be submissive to Mr Baloyi.

33.3.     It is normal of an abused person to deny the seriousness of the abuse and delay seeking outside help.

33.4.     Most people who experiencing violence in their relationship do not speak out.

33. 5. The victim described the deceased as a young loving mother, who was caring and always celebrated life and good moments with the family and those close to her.

33.6.       The victim further states that the deceased's small daughters have been robbed of a role model at a young age. They will never experience their mother's love and positive influences in their future. They will forever experience the sudden unexplained disappearance of their mother and the end of video calls that they shared with the deceased.

33.7.       This murder would have a lasting impact on the children, especially the elder child who is asking questions about not seeing both parents.

33.8.       The minor children are silent victims of domestic violence, although the abuse was not directly targeted at them, it has gravely affected them.

33.9.       The victim has assumed the role of the primary care-giver to the minor children which she had periodically done since the children were small. She herself is an educator in a primary school and she will be of benefit in the children's education.

[34]. Mrs Mogudi, with her 27 (twenty seven) years' experience asa Social Worker, impressed the court with her victim impact report and concluded in saying that the recent trend in the country shows that a lot of people are affected by domestic violence, most woman are brutally killed by their male partners. She further stated that the communities and families expect the Justice System to deal harshly with these acts of violence towards the vulnerable and defenceless individuals. She concludes that the Constitution of the Republic of South Africa states that everyone has the right to life.

[35]. Both the mother of Mr Baloyi and of the deceased testified in anticipation of sentencing. The mother of Mr Baloyi testified that they contributed R5,000.00 (five thousand rand) towards the funeral of the deceased but that they presently don't contribute towards the maintenance of the children of Mr Baloyi. It was also testified that the estate of the deceased still needs to be wound up. It is clear to the court that there exist a great deal of animosity between both families.

[36]. Mrs Khoza, the mother of the deceased, testified and confirmed that the estate has not been wound up. She however testified that the parents of Mr Baloyi did not contribute RS,000.00 (five thousand rand) directly to them. Mrs Khoza was very unhappy about the time that it took the police to arrest Mr Baloyi. It was stated by counsel for the defence that Mr Baloyi was not arrested for 10 (ten) months after the incident because he was in hospital and there was an inquest held afterwards. She testified that it was heartbroken to her that the family of Mr Baloyi never approached them to ask for forgiveness, nor do they contribute towards the maintenance and upbringing of the children of Mr Baloyi.

[37]. Mrs Khoza further testified that the children of the deceased are in a private school. She pays the school fees for the children that is R15,800.00 (fifteen thousand eight hundred rand) per annum and that she further contribute R1,000.00 (one thousand rand) per month for the transport of the eldest child to school and R250,00 (two hundred and fifty rand) for the youngest child. It further costs her R1,000.00 (one thousand rand) per month per child for food to take to school. She was unable to tell the court how much clothing costs her in terms of the children. It was clear from the demeanour of the mother of the deceased that she is struggling to come to terms with the death of her daughter.

[38]. The court now deals with the personal circumstances of Mr Baloyi. Most of these personal circumstances were properly dealt with in the Psycho Social Pre­

Sentence Report by Mrs JC Wolmarans. The court however lists succinctly some of these circumstances:

38.1.        Mr Baloyi was 35 years at the commission of this offence and 36 years at the time that he was convicted.

38.2.        Mr Baloyi has no previous conviction.

38.3.        Mr Baloyi was working during the time of the commission of theo ffenc.e He had a business that supplied atjar to certain Spar outlets.

38.4 Mr Baloyi passed his matric during 1999 and completed a certificate in production management during 2000 at Wits Technicon.

38.5.     Counsel for Mr Baloyi argued that there exists compelling and substantial circumstances why the court can give a lesser sentence as the prescribed minimum sentence.

38.6.    The court should also take cognisance of the fact that Mr Baloyi was detained from the day of his conviction on 25 May 2018. This means that Mr Baloyi was in custody for +/- 4 months.

[39]. The court now moves on to the second element namely the crime. The crime of which Mr Baloyi was convicted, is a very serious crime. Mr Baloyi first blamed his wife (the deceased) that she gave him HIV. The deceased then apparently informed him that she did a quick blood test and it came back HIV negative. Mr Baloyi at that stage lost control and stabbed her to death. He stabbed her in total 45 times with a knife and she finally died of these wounds. A large portion of these stab wounds were into the back of the deceased and some even on her legs. This clearly indicates to this court that Mr Baloyi was the aggressor and not the victim as he tried to convince the court of. It seems that his attack was largely unresisted as there were no defence wounds on the hands and arms of the deceased. This is clear from the photos of the murder scene as accepted as evidence. The floor of the bathroom and main bedroom had blood all over Some of the curtains in the bedroom had blood on them. The weapons used by Mr Baloyi were found at the scene of the crime. It was a sharp and pointed knife and also a meat clever.

[40]. It is clear that Mr Baloyi was relentless in his attack on the deceased. This killing was indeed a wanton waste of life. Nothing will ever bring the deceased back to life again no matter the kind of sentence that the court can impose. Nothing will ever bring a mother and daughter back to her family. A woman that bettered her life by studying and contributed to help sick people as a sister. This court must take into account the seriousness of the crime, the degree and extent of violence used, the nature of the weapon used, the brutality and cruelty of the attack, the nature and character of the deceased and the fact that she was unarmed and defenceless. The motive with which the crime was committed is also a factor that this court must take into account. A mitigating factor in the case of Mr Baloyi was that this murder was not premeditated and probably a spur of the moment attack.

[41]. There is furthermore an absence of real remorse from Mr Baloyi. This is clearly evident from the fact that he unashamedly still blames the deceased for what happened to her. He refers to the marriage being very unstable. Mr Baloyi also does not take any responsibility and stated in his psycho social pre-sentence report, that due to the conflict in his marriage relationship, his lack of concentration caused his supervisor at ABSA to send him for counselling. He furthermore stated in the pre-sentence report that he resigned at the end of October 2013 from ABSA, as he feared that his services might be terminated. This is clearly indicative of Mr Baloyi rather taking the easy way out instead of taking responsibility . A person would have expected a responsible person to face his disciplinary hearing and at least take responsibility. He, however, takes the easy way out and blames the disciplinary hearing on problems at home.

[42]. It cannot be excluded, that the fact that he was HIV positive and not the deceased, caused him to attack her and kill her. It is again a case of Mr Baloyi blaming the deceased for his HIV status. It is post facto clear from the evidence that the deceased died HIV negative. This is another example of someone not taking responsibility for his actions. The fact that Mr Baloyi, even in the pre­ sentence report still blames the deceased for his unhappy marriage, is indicative of someone that demonstrates no remorse.

[43]. It is stated in the pre-sentence report that Mr Baloyi expressed his remorse as well as the responsibility to accept that he knows he must be punished for his actions. This statement rings hollow and is without any real substance in terms of remorse. It is further stated in the said report that Mr Baloyi is remorseful and is very sorry for all the sorrow and trauma this incident had on everybody. The only factor that is in favour of Mr Baloyi when it comes to remorse, is the fact that Mr Baloyi pleaded guilty to murder. His plea of guilty was however not accepted by the state, that maintained that the murder was premeditated. The court found in terms of conviction, that there was indeed absence of premeditation.

[44]. At the beginning of this trial the court explained to Mr Baloyi the ramifications of the Criminal Law Amendment Act, 105 of 1997. This piece of legislation is indicative of how serious the legislature, regards these offences. The discretion to impose sentence belong to the courts. The level of violence and the seriousness of the offences committed led to the legislature deeming it necessary to prescribe minimum sentences. The purpose of these minimum sentences is to demonstrate to the public the serious light in which government

sees these crimes.

[45]. To the deceased family and relatives, this court says that the court is an instrument by which the community, as I have pointed out, exerts punishment of offenders. It was stated in S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) that: "The object of sentencing is not to satisfy the public opinion but to serve the interest of the society". In S v Lister 1993 SACR 228 (A) the court stated: "To focus on the well-being of the accused at the expense of all other aims of sentencing such as the interest of society is to distort the process and to produce in all likelihood a warped sentence".

[46]. It is clear from the evidence that Mr Baloyi has no previous convictions. There exists authority that lack of previous convictions, might be a ground to consider it substantial and compelling circumstances to warrant a lesser sentence than the minimum sentence. This court however, in exercising its discretion, belief that the aggravating circumstances outweigh those in mitigation. It is furthermore so that the minimum sentence is 15 (fifteen) years imprisonment. It is what it purports to be and that is a minimum sentence.

[47]. In S v Shubane and Another [2014] ZASCA 148 (unreported, SCA case No 073/14, (26 September 2014) the Supreme Court of Appeal once again confirmed, with reference to Mthembu 2011 (1) SACR 272 (KZP), that there is no requirement in our law that a sentencing officer should forewarn an accused person of a contemplation to impose a sentence in excess of the statutory prescribed minimum sentence (at [7]). At [8] Majiedt JA (Shongwe and Mbha JJA concurring) also said: "In any event, when an accused person is at the commencement of a trial appraised of the sentencing provisions in section 51 and 52 of... [Act 105 of 1997]... read with Schedule 2, that by necessary implication includes the provisions" . The principle that a sentencing court is in appropriate circumstances permitted to impose a more severe sentence than the one prescribed in terms of Act 105 of 1997 was also applied in S v Mokgalaka 2017 (2) SACR 159 (GJ). In the abovementioned case Kuny AJ found that several factors called "for a sentenceabove the prescribed minimum".

[48]. The total lack of real remorse, demonstrated by Mr Baloyi, is disconcerting to this court and coupled with the fact that Mr Baloyi still maintains that the deceased was substantially the cause of his actions demonstrate a lack of remorse. The court took this into account to come to a just sentence.

[49]. It is indeed a sad day when parents must bury their daughter. It is often said that a parent should never bury his or her child. It is unimaginable the trauma the mother of the deceased would have gone through in the days following the death of her daughter. The worst part is that the deceased had died at the hands of her husband, someone who was supposed to love and protect her. The mother of the deceased is so distraught that she indicated that Mr Baloyi should be given one year imprisonment for each stab he gave the deceased. That would cumulatively be 45 (forty five) years.

[50]. Mr Baloyi has been convicted of murder with direct intent (do/us directus), but with absent premeditation or pre-planning. The colour photographs of the deceased and the injuries depicted in those photographs tell the story of a deliberate dastardly act which took the life of a young woman in the prime of her life and still so much to offer to her two young children.

[51]. In the matter of S v Raath 2009 (2) SACR 46 (C) Bozalek J, said the following in terms of the imposition of an appropriate sentence relative to applicable minimum sentences:

" ... it must be borne in mind, of course that the provisions of Act 105 of 1997 prescribe a minimum and not a maximum sentence, and it is thus open to the court, in appropriate circumstances, to sentence the appellant to a more severe sentence, including life imprisonment, even though, prima facie, he qualifies for a lesser minimum sentence..."

[52].     Majiedt JA in Madau v S, (764/2012) [2012) ZASCA 56 (09 May 2013) stated at para 13 as follows:

"Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity, as Corbett JA put it in S v Rabie 1975 (4) SA 855 (A) at 866 A-C:

'[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 interest of society which his task and the object of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender himself 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'."

[53]. It is clear from recent cases that the killing of life partners has become a far too regular occurrence. It was stated in the unreported matter of 5 v Ngubeni case no SS184/2016 in the High court of South Africa Gauteng Local   Division,

Johannesburg as follows by Adams J:

"[20)...The killing of life partners has become a far too regular occurrence. There is even a term for it - Femicide - the killing of a woman, in particular by a man and on account of her gender. We should all be concerned with the high level of femicide in our country. The deceased did not deserve - nobody does - to die in such a brutal manner. She had her whole life ahead of her, and she left behind a grieving mother, father and other friends and family, who are still coming to terms with her untimely and senseless death."

[54]. It is clear from the evidence that Mr Baloyi mercilessly stabbed the deceased, his wife and the mother of his two children, 45 times of which some of the wounds were from behind. The photos depicting the murder scene were simply filled with the blood of the deceased. There was also a lack of defensive wounds that is clearly indicative of Mr Baloyi being the aggressor and not the deceased. These factors are aggravating in the extreme. It cannot be excluded that when he confronted the deceased with his HIV positive test results combined with the fact that she told him that she had a quick blood test done and the result was negative might have been the tipping point that caused Mr Baloyi to kill his wife.

[55].      lt was further stated in the matter of S v Ngubeni (supra) as follows:

"[26] Violence against woman and children is a scourge which appears to be damaging the very fabric of our society. It is an indictment against us. It should be eradicated. The vast majority of South Africans no doubt abhor the scourge of femicide seemingly based on male dominance and a perverse abuse of power by a male person over a female person.,,

[56]. The punishment should reflect society's shock and indignation and serve as retribution for the crime and deter, at the least, other offenders from similar conduct. It should be mentioned that the two children were respectively 2 (two) and 5 (five) years old at the time of the murder. The fact that they were of such a tender age, must be taken as an aggravating factor in sentencing.

[57]. It was also argued that the accused attempted to commit suicide. His apology and remorse should however be seen from whom it is coming. It is highly likely that the attempt to commit suicide was either staged and/or that after the murder he probably realised what a terrible mistake he had made and regretted it.

[58].      Having regret does not however necessarily mean that he is remorseful.   It was stated in S v Matyityi 2011 (1) SACR 40 (SCA) by Ponnan JA at par 13 as

follows:

"There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. This genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her evidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of inter alia; what motivated the accused to commit the deed; what has since provoked his or her change of heart; whether her or she does indeed have a true appreciation of her consequences of those actions."

[59].      In Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) the court said in para 14:

"[14] A failure by our courts to impose appropriate sentences, in particular for violent crimes by men against woman, will lead to society losing its confidence in the criminal justice system. This is so because domestic violence has become pervasive and endemic. Courts should take due cognisance of the salutary warning expressed by Marais JA in S v Roberts, 2000 (2) SACR 522 (SCA) para 20 where he stated:

'It [the sentence] fails utterly to reflect the gravity of the crime and to take account of the prevalence of domestic violence in South Africa. It ignores the need for the courts to be seen to be ready to impose direct imprisonment for crimes of this kind, lest others be misled into believing that they run no real risk of imprisonment if they inflict physical violence upon those with whom they have intimate relationships'."

[60].       It was further stated by Wallis J in S v Mbatha, 2009 (2) SACR 623   (KZP) at paragraph 20 when he held:

"On that approach there is as much a necessity for the court in its judgment on sentence to identify on record the aggravating circumstances that take the case out of the ordinary, as there is for it in the converse situation to identify those substantial and compelling circumstances that warrant the imposition of a lesser sentence than the prescribed minimum. The trial judge should identify the circumstances that impel her or him to impose a sentence greater than the prescribed minimum and explain why they render the particular case one where a departure from the prescribed sentence is justified. The factors that render the accused more morally blameworthy must be clearly articulated.

[61]. In S v Raath (supra) the appeal court imposed a sentence of 22 years direct imprisonment for the unplanned murder by the appellant who had shot and killed his wife on the spur of the moment.

[62]. In the unreported judgment Mudau v S (547/13) [2014] ZASCA 43 (31 March 2014) at para 6 Mathopo AJA said the following:

"Domestic Violence has become a scourge in our society and should not be treated lightly, but deplored and also severally punished. Hardlya day passes without a report in the media of a woman or child being beaten, raped or even killed in this country. Many woman and children live in constant fear. This is in some respects a negation of many fundamental rights such as equality, human dignity and bodily integrity.

[63). In s v SD, 2015(2) SACR 363 (SCA) at 368 para 18, Brand JA's remarks are instructive:

"[16] When one looks at the offences under present consideration and the interests of society, I come to one conclusion only: the offences for which the appellant has been convicted are so severe that incarceration cannot be avoided. In that sense it is 'the last resort punishment' ... Any sentences which fails to recognise the severity of these crimes may lead to society losing its confidence in the criminal justice system. Especially in a society where violence has become prevalent and endemic, one simply cannot afford that risk."

[64]. Another unreported judgment was that of S v Mantsoe, SS 104/2017 held on the 3rd of May 2018 in the High Court of South Africa, Gauteng Local Division, Johannesburg where the accused was sentenced to 30 (thirty) years imprisonment for the murder of his girlfriend. This should be a message for future offenders that our courts are not going to tolerate domestic violence.

[65].      After taking into account the aforegoing principles and having proper and due consideration to all the circumstances, I am of the view that the aggravating features of this case far outweigh the mitigating circumstances. There are no substantial and compelling circumstances in this matter which would warrant a deviation from the minimum sentence to be imposed. This court has considered all of the personal circumstances of Mr Baloyi. l am also mindful of the fact that mercy must be shown to Mr Baloyi. I have also given regard to the severity of the crime. I also take into account the interest of the community at large.

[66].      Act 105 of 1997 (supra) prescribes a minimum sentence of 15 (fifteen) years' imprisonment to be imposed upon a person who is convicted of the offences of murder. The court may only deviate therefrom in the event that substantial and compelling circumstances are found.

[67]. To the extent that mitigating or aggravating circumstances are argued to exist to cumulatively amount to substantial and compelling circumstances, they have already been discussed. I also take into account that there is pain and aggravation in incarceration. This further compounded by the separation from his children and the rest of his extended family. I am mindful to show mercy to Mr Baloyi when I impose sentence.

[68]. It should be stressed that violence is never the answer. Killing of a human being can never be justified not even in instances of adultery of which there are frankly no evidence in this matter, except for Mr Baloyi's says so. There are, in fact, evidence presented by the sister of the deceased indicating domestic violence by Mr Baloyi on the deceased. The deceased did not deserve to die in the manner she did. The evidence of the post mortem report, but more specifically the photographs depicting the injuries sustained by the deceased is indicative of the heinous and merciless attack on the deceased.

[69]. Having regard to the purpose of punishment and the seriousness of the crime there can be no doubt that the only appropriate punishment for Mr Baloyi is a sentence of long-term imprisonment. When all the aggravating and mitigating factors are taken into account, and bearing in mind that every sentence must be blended with a measure of mercy, and the appropriate sentence for the murder conviction should be in excess of this 15 (fifteen) years imprisonment. The future of community relies on strong and vibrant families. The South African family is the future of South Africa. Here we had the quintessential family in that both parents were gainfully employed. Both had some form of tertiary education. They started their lives together in suburbia with dreams and aspirations of a beautiful future. Out of this hopeful marriage come forth two beautiful daughters. Then in one heinous and murderous act, the mother in the prime of her life is killed by Mr Baloyi and the children are left without parents and living presently with their maternal grandparents. Grandparents that were supposed to enjoy their old age after supporting their children are now thrust into parenthood again. This again places an additional financial burden on them to take care and maintain their granddaughters.

[70]. Mr Baloyi will live forever knowing that he cut short the life of a young woman, deprived a mother and father of their child. I intend imposing in my judgment on sentence, an appropriate sentence, which will properly serve the retributive, deterrent and rehabilitative purposes of sentence.

[71].    These crimes are of a serious nature and the sentences imposed should recognise the severity of these offences.

SENTENCE

[72].    In the result Mr Baloyi is sentenced, on the conviction of murder, to 25 (twenty­ five) years imprisonment.

J.J. HATTINGH AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

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