THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 170/2017

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG DIVISION, PRETORIA
APPELLANT

and

PORTIA THULISILE TSOTETSI
RESPONDENT

Neutral citation:The Director of Public Prosecutions: Gauteng Division,
Pretoria v Portia Thulisile Tsotetsi (170/2017) [2017] ZASCA 083 (02 June
2017)

Bench:
Leach, Saldulker, Zondi and Mathopo JJA and Coppin
AJA

Heard:
4 May 2017

Delivered:
02 June 2017

Summary: Sentence: premeditated murder: prescribed minimum sentence: in
terms of the Criminal Law Amendment Act, 105 of 1997: what constitutes
substantial and compelling circumstances: effect of failing to take into account
certain aggravating factors: prescribed sentence not to be lightly deviated from:
to be imposed if it is not disproportionate to the crime, the criminal and the
needs of society.

ORDER

On appeal from: Gauteng Division, Pretoria, of the High Court, (Makgoka J
sitting as court of first instance):
1 The appeal is upheld;
2 The sentences imposed by the trial court are set aside and replaced with the
following:
a) On count 1 (murder) accused no 1 is sentenced to life imprisonment;
b) On count 2 (murder) accused no 1 is sentenced to life imprisonment;
c) The sentences of life imprisonment are to run concurrently.
d) Under s 282 of the Criminal Procedure Act, 51 of 1977, the above
sentences are antedated to 1 February 2016.

JUDGMENT

Coppin AJA (Leach, Saldulker, Zondi and Mathopo JJA concurring):

[1] This is an appeal brought by the Director of Public Prosecutions (DPP)
in terms of s 316B of the Criminal Procedure Act1 against the sentences
imposed on the respondent by the Gauteng Division, Pretoria, of the High
Court (the trial court), in respect of two counts of murder on 1 February 2016.
Leave to appeal to this court was granted on petition. The only issue on appeal
is whether the trial court erred in finding that there were substantial and
compelling factors in respect of both counts, justifying a lesser sentence than
the prescribed minimum sentence of life imprisonment.

[2] The respondent, who was accused no 1 in the trial court, was convicted
of murdering her husband, Mr Nzimeni Bednock Sithatu (Mr Sithatu), a school
teacher, on 21 February 2012 (count 1). She was also convicted (together with

1 Criminal Procedure Act 51 of 1977.

a co-accused) of murdering Mr Dumisani David Ngubeni (Mr Ngubeni) on
16 May 2012 (count 2). Mr Ngubeni was implicated in the murder of Mr Sithatu.

[3] The minimum sentence of life imprisonment applied to both counts2, but
the trial court found that there were substantial and compelling circumstances
justifying the imposition of a lesser sentence in respect of the two counts. The
trial court, consequently, imposed a sentence of 20 years' imprisonment on the
respondent in respect of each count and ordered the sentences to run
concurrently. Resultantly, the respondent was sentenced to an effective term of
20 years’ imprisonment for both the murders. In contrast, the respondent’s co-
accused, who was only convicted in respect of count 2, was sentenced to life
imprisonment. The trial of a third accused, Mr Nhlapo Motsamai Mahlasela
(Mr Motsamai), who had also been implicated in both murders, was separated
from that of the respondent and her co-accused, after he was diagnosed with
schizophrenia.

[4] The DPP contends, in essence, that the trial court had misdirected itself
in a number of respects in concluding that there were substantial and
compelling circumstances which justified the imposition on the respondent of
lesser sentences than the prescribed minimum sentence. Counsel for the
respondent, on the other hand, argued in support of the correctness of the trial
court's findings in respect of the substantial and compelling circumstances and
submitted that the sentences imposed were ‘just and fair’. I shall revert to these
arguments.

[5] An outline of the facts is necessary as background. It was established at
the trial that the respondent had approached various individuals with a request
that they undertake the task of killing Mr Sithatu and essentially told them that
she wanted him killed for financial reasons. Before Mr Sithatu’s actual killing on
21 February 2012, the respondent had told one of them, Mr Sabelo Hadebe
(Mr Hadebe) that she had not been successful in her effort to poison Mr Sithatu
with 'tiger's liver' or 'crocodile liver'. She also made promises to one of them,

2 As contemplated in s 51, Part 1 of Schedule 2 of the Criminal Law Amendment Act, 105 of 1997.

Mr Thabo Mokoena (Mr Mokoena) to obtain a firearm to facilitate Mr Sithatu’s
murder.

[6] By 21 February 2012 the respondent had successfully enlisted the
assistance of three men for performance of the gruesome task, Mr Motsamai,
Mr Ngubeni, (who is the deceased in count 2) and Mr Mbuso Nicolas Mdluli,
(Mr Mdluli), who testified against her at the trial. In the early evening of that
day, with the co-operation of the respondent and under the pretext that they
were coming to borrow money from her, Mr Ngubeni and Mr Mdluli went to the
matrimonial home in Rooikoppen, Sakhile, Standerton, in order for Mr Ngubeni
to identify their intended victim,  Mr Sithatu. The plan was to return later to kill
him and make it seem as if he had committed suicide by hanging. Later that
evening, when Mr Sithatu was asleep, after the respondent had given him
sleeping tablets, and on her prompting, the three men went back to the
matrimonial home, where they, together with the respondent, executed their
plan successfully. The respondent was present throughout. Afterwards, the
respondent summoned neighbours to the scene, feigning surprise and
ignorance at the circumstances of Mr Sithatu's death.

[7] Mr Sithatu’s body was found hanging by the neck, from a rafter in the
bathroom of the house. The bed was without a sheet or covering, pillow cases
had been stripped off and there were pension or insurance documents on the
bedside table. The cause of Mr Sithatu's death was found to be consistent with
hanging.

[8] Mr Ngubeni had left the scene with a plastic bag containing incriminating
evidence, inter alia, a blood spattered bed cover, pillow case and the gloves
that were used. This, it turned out, was the precursor of his demise at the
hands of the respondent, her co-accused and Mr Motsamai, when he used the
bag's contents to blackmail the respondent and attempted to extort more
money from her for his role in Mr Sithatu's killing.

[9] By 16 May 2012 the respondent, recently widowed, had moved into a
shack in the yard of her parental home in Sakhile. She lured Mr Ngubeni to her

place with promises of payment and when he arrived, she together with her co-
accused and Mr Motsamai, killed him inside the shack, by brutally and
repeatedly stabbing him in the neck. They cleaned the scene and burned items
of clothing and a carpet behind the shack. Mr Ngubeni’s body, which was
wrapped in a blanket, was then dumped on a bank of the Vaal river in Sakhile.

[10] Death threats made by the respondent to her neighbour, Mr Bongani
Nhlapo (Nhlapo), who witnessed the happenings at her home on 16 May 2012,
proved to be the undoing of the respondent and her surviving cohorts.

[11] Mr Nhlapo, out of fear for his life and prompted by a friend, went to the
police and made a statement. The arrest of the respondent and her cohorts
followed. This also led to the discovery of Mr Ngubeni's body. The cause of
Mr Ngubeni's death was found to be 'multiple incised wounds on the neck'.
Expert evidence was led at the trial to the effect that there would have been a
substantial loss of blood as a result of the infliction of those injuries. Upon a
visit to the respondent's home, shortly after the respondent's arrest, a
policeman found what he thought to be, a new carpet, on the floor of the shack.

[12] Despite the overwhelming evidence against her, the respondent
doggedly maintained that she was innocent of wrongdoing. She tried to give an
impression of having been a doting wife, who cooked and cared for her
husband, attending to his needs, including seeing to it that he took his
medication. She denied contracting persons to kill him, dismissing it as
fabrication. Of significance, she testified that two weeks before his death she
discovered, after having had insight into his personal file at a medical facility,
that he was taking antiretroviral medication (ARV's) and was infected with the
human immunodeficiency virus (HIV) and that a week before his death she
established that she had also been infected and was HIV positive. She
ascribed her infection to her husband, but did not raise it as a reason for killing
him and maintained her innocence throughout.

[13] The respondent, similarly unconvincingly, denied any involvement in the
murder of Mr Ngubeni. According to her, they had a long standing love

relationship. She testified that on 16 May 2012 Mr Ngubeni had been upset
when he found that she had employed two men to assist her to move furniture
and with settling in at her  new home. She testified that this was soon resolved
and that after Mr Ngubeni had eaten a meal with her and the two men in the
shack, he left. She denied threatening Mr Nhlapo. Notwithstanding, the
evidence against her was overwhelming and her conviction for both murders
was inevitable and clearly correct.

[14] In respect of the sentence, the DPP called Mr Sithatu's brother who
testified about the hurt and loss caused by the slaying of Mr Sithatu, who had
three brothers and two sisters. He was a teacher at the local school and was
37 when he died. Earlier in the trial Mr Andrew Sipho Ngwenya, a local
councillor and friend of Mr Sithatu, testfied that Mr Sithatu’s death was a great
loss to him and he described Mr Sithatu, in the context of his work as a
teacher, as ‘a gifted , brilliant person’. Mr Sithatu was supporting a daughter
from his previous marriage and she was 2 years old at the time of his death.
Mr Sithatu’s family relied on him and besides resulting in a loss for his family,
his death caused his mother to become ill.

[15] In the trial court, in respect of sentencing, counsel for the respondent
mentioned certain personal circumstances of the respondent from the bar and
the respondent also gave evidence. She stated that she wanted 'to extend
peace' to her late husband's family. She explained that by that she meant that
she was asking forgiveness from them for what happened. When questioned,
she did not admit killing either her husband, or Mr Ngubeni, but her answer
was: ‘Yes, I am saying as I listened to the witnesses as they were testifying it
appeared that I am involved there so my name is being mentioned there. That
is why I said that I must ask for forgiveness’. In response to a follow up
question she stated: ‘I do not admit that I killed them but I am sorry about what
happened. That is why I am saying that I am asking for peace’.

[16] The respondent is a first offender. At the time of the murders she was
27 years old and at the time of sentencing she had reached the age of 30. She
had completed matric and obtained a N5 qualification. She had no children and

when she was eighteen years old, her mother passed away and she and her
younger brother were raised by her grandmother who was unemployed. She
became like a mother to her sibling. She did not experience parental love
because her mother, while alive, drank alcohol. When she was staying at her
grandmother's place she was compelled to work to earn money to buy what
was required for school. She met Mr Sithatu in 2008 and they subsequently got
married and lived together as husband and wife until his death in 2012. She
sold clothing for a living and earned R2 000 to R3 000 a month. She had been
in prison awaiting trial for about three years and eight months. The respondent
also testified that she was a Christian and a member of the Potter’s House
Church.

[17] The trial court held that the same circumstances that were substantial
and compelling in respect of count 1 also applied in respect of count 2,
because the murder of Mr Ngubeni was ‘a snowball effect’ of the murder of Mr
Sithatu. It held that the motive or reason for killing her husband was that he
infected her with HIV, even though this was not the evidence of the respondent
at all. It held that there was no evidence that the motive was financial and that
it could reasonably be expected from the respondent not to have informed any
of those whom she had approached to kill her husband, of her real motive. The
trial court also seemed to have had doubts about whether the respondent had
shown remorse, despite the respondent’s dogged denial of any wrongdoing.
The trial court was of the view, that ‘. . . remorse is a process, and not an event
that can be measured by a single act, during the trial’ and that ‘[f]or some it
might take a while for reflection . . . ’. Referring to S v Nkomo,3 the trial court
concluded that for that reason it had to be very slow to conclude that a lack of
remorse was an indication of a lack of prospects of rehabilitation. The
respondent’s personal circumstances, her intelligence and manipulativeness
seemed to have impressed the trial court as qualities which would ‘doubtlessly’
have resulted in the respondent playing ‘a positive role in society’ if she was
given an opportunity.

3 S v Nkomo 2007 (2) SACR 198 (SCA) para 30.

[18] The trial court held that all the circumstances, including her personal
circumstances, clean record and her HIV status, as well as the time she had
spent in prison awaiting trial, justified a lesser sentence than the prescribed
minimum sentence in respect of both counts of murder. The trial court then
imposed the sentences, which served concurrently amounted to a total of
20 years’ imprisonment, and which, according to the DPP do ‘not instil
confidence in the criminal justice system.’

[19] The DPP's counsel correctly submitted that the trial court did not give
sufficient consideration to weighty aggravating circumstances, such as the
planning of the killings and the respondent’s personal involvement in them.

[20] The submission by the counsel for the respondent that those
aggravating circumstances were ‘neutralised’ by the cumulative mitigating
factors, has no merit and is based on a misconception of the weight of the
alleged mitigating factors. The respondent planned the killing of her husband
long before the fateful day of his death. As early as November or December
2011 the respondent asked individuals to kill her husband for payment. She
had tried killing him by poisoning and through the use of a firearm. The actual
killing was executed according to a plan and with her active participation.

[21] The killing of Mr Ngubeni was also planned. She enticed him to her
home with promises of payment. The deed was probably executed there and
the incriminating evidence was destroyed. She was probably present when he
was killed inside her shack and apparently did not shrink from cleaning the
bloodied scene after the murder.

[22] Further, counsel for the DPP correctly submitted that the trial court also
erred in finding that the respondent’s motive for killing her husband was
because he had infected her with HIV. This was never the respondent’s
version. To the end she denied ever killing him. She portrayed herself as a
caring wife. Besides the fact that the trial court was not at large to speculate
about motive, the respondent, on her version, only discovered her husband’s
HIV status about two weeks before the killing and her own HIV status

approximately a week before that. But she had already evinced the intention to
kill her husband as early as November or December 2011 and had taken
active steps from then to achieve that objective.

[23] According to at least three of the individuals whom she had approached
to kill her husband, she had given financial or monetary reasons for wanting to
do so. She told Mr Mokoena that her husband had refused to exclude his
mother and daughter as beneficiaries from his insurance. To a Mr Hadebe she
said that she did not love her husband and only wanted his money and that
she would get the money if he died because he had made ‘her the beneficiary
in all things’. To Mr Mdluli, she had said that, unless her husband was killed,
she would lose everything as he was in the process of leaving her. The
contention by the respondent’s counsel that these were ‘mutually destructive’
versions is erroneous. These were not different versions of the same event. In
any event, their essence is not different. The benevolent interpretation the trial
court gave these intimations, namely, that it was reasonable for her not to tell
them of the true reason why she wanted him killed, was a misdirection,
particularly, because as pointed out earlier, on her own version, she would not
have known of her HIV status when she spoke to Messrs Mokoena and
Hadebe in about November or December 2011. The trial court thus also erred
in finding that there was no evidence that the respondent’s motive for killing her
husband was financial.

[24] On behalf of the State Ms Thandi Priscilla Mosia testified that Mr Sithatu
had obtained a protection order from the magistrate’s court in Standerton in
February 20124. The order interdicted the respondent from removing any
property from their matrimonial home and sought to prevent the respondent
from committing any act of domestic violence or getting the help of any person
to commit any act of domestic violence. Mr Sithatu gave details of the domestic
violence in his application, which was admitted in evidence as an exhibit,
stating that he found the respondent in their matrimonial bed with another man;
that they discussed the incident and that she apologised and he forgave her.
After two days her family came to remove her from their home and on each

4 The protection order was obtained in terms of the Domestic Violence Act 116 of 1998.

occasion when she returned to the house, she removed some things on the
instruction of her family. His complaint, in essence, was that they were married
in community of property and that she was wrongfully depleting their joint
estate. This application shows that it was not Mr Sithatu’s intention to leave
her, because he states in the application that ‘[i]f ever she is intending for
divorce she must follow the correct procedure through court’. It is also
supportive of the conclusion that her motive for his murder was financial greed.

[25] As submitted by the appellant’s counsel, the trial court also erred in
giving insufficient weight to the respondent’s lack of remorse. Even though
there is a possibility that a convicted person who has not shown any remorse
at the time of sentencing, may do so in the future, a sentencing court cannot
speculate in that regard and, in effect, downplay the seriousness of the
absence of remorse. At the time of the sentencing, on 1 February 2015, more
than three years had passed since the murders and she still did not appreciate
and acknowledge the wrong that she had done. On the contrary, despite the
overwhelming evidence against her, the respondent persisted with her denial
of any involvement in the murders. She clearly exhibited no insight into her
wrong doing. In S v Matyityi 5 it was stated that:
‘[r]emorse is a gnawing pain of conscience for the plight of another. Thus genuine
contrition can only come from an appreciation and acknowledgement of the extent of
one's error… 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 confidence.’

[26] It was also correctly submitted by counsel for the DPP that the trial court
erred in finding that because Mr Ngubeni’s murder was ‘a snowball effect’ of
the murder of Mr Sithatu, the same circumstances that justified the imposition
of a lesser sentence in respect of count 1 also applied in respect of count 2.
Certain of the circumstances, or factors, taken into account in respect of count
1 could not have been mitigating in respect of count 2. That Mr Sithatu may
have infected the respondent with HIV could not possibly serve as mitigation
for the murder of Mr Ngubeni. In any event, the approach adopted by the trial
court was wrong. It ought to have weighed the circumstances against the facts

5 In S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 13.

of each of the counts separately, in line with the determinative test laid down in
S v Malgas,6 (Malgas). In order to determine whether the minimum prescribed
sentence is just, a sentencing court must consider whether in light of the
circumstances
of
the
particular
case
the
prescribed
sentence
is
disproportionate to the crime, the criminal and the needs of society.

[27] As held in Malgas7 confirmed in S v Dodo,8 and explained in
S v Vilakazi,9 even though ‘substantial and compelling’ factors need not be
exceptional they must be truly convincing reasons, or ‘weighty justification’, for
deviating from the prescribed sentence. The minimum sentence is not to be
deviated from lightly and should ordinarily be imposed.10

[28] Contract killing has always been regarded as a severely aggravating
circumstance and an abomination. 11  In S v Ferreira & others Marais JA, albeit
in a dissenting judgment, describes a pre-meditated and deliberate desire to
kill as ‘the most offensive . . . known to the law. . . ‘ and describes a contract
killing for reward, as one which ‘in the eyes of most reasonable people’
constitutes ‘an abomination which is corrosive of the very foundations of justice
and its administration’.12 It is therefore imperative for the courts to consistently
send out a clear message that such crimes shall be severely punished.

[29] There is, in my view, also a disturbing disparity between the sentence of
the respondent, as the planner and co-executioner of the two murders, and the
life sentence which was imposed on her co-accused, who was only convicted
of the murder of Mr Ngubeni. The general principle is that if justice is to be
done and seen to be done, where a number of people are convicted of the
same crime, there ought to be reasonable uniformity in respect of the
sentences imposed on them, due regard being given to respective mitigating

6 S v Malgas 2001 (1) SACR 469 (SCA) paras 22 and 25.
7 S v Malgas para 25.
8 S v Dodo 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) para 11.
9 S v Vilakazi [2008] ZASCA 87;2009 (1) SACR 552 (SCA) para16.
10 S v Malgas para 25.
11 See S v Mlumbi en ‘n ander 1991 (1) SACR 235 (A) at 251G-I; S v Ntshangase 1992 (2) SACR 141 (A)
at 145A-C; S v Ferreira & others 2004 (2) SACR 454 (SCA) para 33.
12 S v Ferreira & others above para 65.

and aggravating circumstances.13 The respondent’s role was a leading one
and the sentence should have reflected the seriousness of what she had done.

[30] Compared to the nature and the seriousness of each of the two
murders, those factors that were put forward as justifying a lesser sentence
than the minimum sentence for the respective counts of murder - including the
respondent’s age, clean record, the period of her incarceration awaiting trial,
her background and her educational achievements - do neither, singularly, nor
cumulatively constitute substantial or compelling circumstances that render the
minimum sentence of life imprisonment unjust. The trial court therefore
misdirected itself in concluding that there were substantial and compelling
circumstances present in this case.

[31] The respondent’s background is not unique and could not have been a
justification for her callous deeds for which she showed no remorse. There are
many persons with similar and more challenging backgrounds who do not
resort to crime and who live as upright citizens, respecting the law and the
rights of their fellow human beings. The murders were callous, premeditated
and motivated by greed.

[32] In light of all the circumstances, consisting of all factors relevant to the
nature and seriousness of the respective crimes and relating to the respondent
which could have a bearing on the seriousness of the offences and the
respondent’s culpability14, the minimum sentence of life imprisonment, in
respect of both counts, was not disproportionate and should have been
imposed in respect of both murders. Those sentences are not unjust.15 Indeed,
life imprisonment, in light of all the circumstances, is the only appropriate
sentence on each count. As pointed out by this court in S v Mashava,16 by
operation of law, these sentence are to run concurrently.

13 S v Dombeni 1991 (2) SACR 241 (A) at 245c-d.
14 S v Malgas above para 25.
15 Director of Public Prosecutions, KwaZulu-Natal v Ngcobo & others [2009] ZASCA 72; 2009 (2) SACR
361 (SCA) para 22.
16 S v Mashava [2013] ZASCA 200; 2014 (1) SACR 541 (SCA).

[33] The appellant has been in custody since before her trial and it is in the
interest of justice that these sentences be antedated to 1 February 2016 when
sentence was imposed in the trial court.

[34] In the result:
1 The appeal is upheld;
2 The sentences imposed by the trial court are set aside and replaced with the
following:
a) On count 1 (murder) accused no 1 is sentenced to life imprisonment;
b) On count 2 (murder) accused no 1 is sentenced to life imprisonment;
c) The sentences of life imprisonment are to run concurrently.
d) Under s 282 of the Criminal Procedure Act, 51 of 1977, the above sentences
are antedated to 1 February 2016.

______________________
P Coppin
Acting Judge of Appeal

APPEARANCES:
For the Appellant:

A Coetzee
Instructed by: Director of Public Prosecutions,
Pretoria

Director of Public Prosecutions, Bloemfontein

For the Respondent:
J M Mojuto

Instructed by: Legal Aid South Africa, Pretoria

Legal Aid South Africa, Bloemfontein

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

THE DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG DIVISION, PRETORIA
V PORTIA THULISILE TSOTETSI

From:  The Registrar, Supreme Court of Appeal
Date:    02 June 2017
Status:  Immediate

Please note that the media summary is for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (SCA) today upheld an appeal by the appellant
against the sentences imposed on the respondent by the Gauteng Division, Pretoria,
of the High Court, (the trial court) in respect of two counts of murder.

The issue on appeal was whether the trial court erred in finding that there were
substantial and compelling factors in respect of both counts, justifying a lesser
sentence than the prescribed minimum sentence of life imprisonment.

The SCA held that the trial court erred in finding that there were substantial and
compelling factors which justified a lesser sentence than the minimum prescribed
sentence. The sentence of life imprisonment in respect of each count was not unjust
and was appropriate.

The SCA, accordingly, set aside the sentence imposed by the trial court and
imposed the prescribed minimum sentence of life imprisonment in respect of each
count of murder. But the sentences of life imprisonment were ordered to run
concurrently and were antedated to 1 February 2016, being the date on which the
respondent was originally sentenced.