The Director of Public Prosecutions, Gauteng Division, Pretoria v Portia Thulisile Tsotetsi

The respondent (Portia Thulisile Tsotetsi) was convicted of two counts of premeditated murder. Count 1 involved the murder of her husband, Mr Nzimeni Bednock Sithatu, on 21 February 2012. She had planned the killing since November/December 2011, approaching various individuals to kill him for financial reasons. She tried poisoning him and obtaining a firearm. Ultimately, she enlisted three men who executed the plan by making it appear as if Mr Sithatu committed suicide by hanging while he was drugged with sleeping tablets. The respondent was present throughout. Count 2 involved the murder of Mr Dumisani David Ngubeni on 16 May 2012, who was implicated in Count 1 but attempted to blackmail the respondent. She lured him to her shack where she and accomplices brutally stabbed him in the neck, then dumped his body in the Vaal River. The respondent was 27 at the time of the murders, a first offender with matric and N5 qualification. She denied all involvement despite overwhelming evidence. The trial court imposed 20 years' imprisonment on each count (to run concurrently), finding substantial and compelling circumstances. The DPP appealed.

• Whether the trial court erred in finding that substantial and compelling circumstances existed to justify a departure from the prescribed minimum sentence of life imprisonment for premeditated murder
• Whether the trial court properly weighed aggravating and mitigating factors in determining sentence
• What constitutes substantial and compelling circumstances under the Criminal Law Amendment Act 105 of 1997
• Whether the sentence imposed was proportionate to the crimes, the criminal and the needs of society

1. The appeal was upheld. 2. The sentences imposed by the trial court were set aside. 3. The respondent was sentenced to life imprisonment on Count 1 (murder of Mr Sithatu). 4. The respondent was sentenced to life imprisonment on Count 2 (murder of Mr Ngubeni). 5. The sentences of life imprisonment are to run concurrently. 6. Under s 282 of the Criminal Procedure Act 51 of 1977, the sentences were antedated to 1 February 2016.

1. Prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997 should ordinarily be imposed and are not to be departed from lightly. 2. Substantial and compelling circumstances must constitute truly convincing reasons or weighty justification for deviating from the prescribed sentence - they need not be exceptional but must go beyond ordinary mitigating factors. 3. The determinative test is 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 (applying S v Malgas). 4. Sentencing courts must properly weigh all aggravating and mitigating circumstances and cannot speculate about matters not in evidence (such as motive not raised by the accused). 5. Each count must be assessed separately when determining whether substantial and compelling circumstances exist - mitigating factors applicable to one count may not apply to another. 6. Contract killings are an abomination corrosive of the foundations of justice and must be severely punished to send a clear message of deterrence. 7. Genuine remorse requires appreciation and acknowledgement of wrongdoing; absence of remorse is a relevant factor that cannot be downplayed by speculation about future contrition. 8. Personal circumstances such as youth, first offender status, education and time in custody, while relevant, do not singularly or cumulatively constitute substantial and compelling circumstances in cases of premeditated, planned murder motivated by greed.

1. The Court noted approvingly the statement from S v Ferreira that premeditated and deliberate killing is 'the most offensive known to the law' and contract killing for reward is 'an abomination which is corrosive of the very foundations of justice and its administration.' 2. The Court observed that 'remorse is a process, and not an event that can be measured by a single act' (quoting the trial court), but emphasized that sentencing courts cannot speculate about future remorse and must assess remorse at the time of sentencing. 3. The Court commented that the respondent's background was 'not unique' and noted that '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.' 4. The Court noted a 'disturbing disparity' between the respondent's sentence as planner and co-executioner of two murders and the life sentence imposed on her co-accused who was only convicted of one murder, emphasizing the principle that justice must be seen to be done through reasonable uniformity in sentencing co-accused. 5. The Court observed that the respondent's intelligence and manipulativeness, which the trial court viewed as qualities that would help her play a positive role in society, should perhaps have been viewed differently given how she used these qualities to plan and execute the murders.

This case is significant in South African criminal law for: 1. Clarifying the application of the 'substantial and compelling circumstances' test under the Criminal Law Amendment Act 105 of 1997, emphasizing that prescribed minimum sentences should not be departed from lightly. 2. Reinforcing that substantial and compelling circumstances must be 'truly convincing reasons' or 'weighty justification' for deviation from prescribed sentences (applying S v Malgas and S v Vilakazi). 3. Emphasizing that courts must apply the proportionality test - whether the prescribed sentence is disproportionate to the crime, the criminal and the needs of society. 4. Affirming the particularly severe view South African courts take of contract killings and premeditated murder motivated by financial greed. 5. Clarifying that personal circumstances such as age, clean record, education and time in custody, without more, do not constitute substantial and compelling circumstances in cases of premeditated murder. 6. Emphasizing the importance of genuine remorse in sentencing and that courts cannot speculate about future remorse when none has been shown. 7. Highlighting the principle of consistency in sentencing co-accused, noting the disparity between the respondent's sentence and her co-accused who received life imprisonment.