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2015
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[2015] ZAFSHC 206
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Mkhize and Another v S (A94/2015) [2015] ZAFSHC 206 (13 October 2015)
IN
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No.: A94/2015
In
the matter between:
THULANI
MKHIZE AND
ANOTHER
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI, J et MOHALE, AJ
HEARD
ON:
12 OCTOBER 2015
DELIVERED
ON:
13 OCTOBER 2015
MOLOI,
J
[1]
The two appellants appeal the sentences imposed
for various convictions of
Robbery
with
Aggravating Circumstances,
Attempted
Robbery
with Aggravating Circumstances
and
a
series
of
Offences
under
the
Firearms Control Act
No.
60
of
2000
. The appellants were each
sentenced to minimum prescribed sentences in terms of
section
51
of Act
105 of
1997
but the trial court ordered that the sentences run concurrently
with the effect that each appellant would serve Twenty Five (25)
years imprisonment. The trial court granted the appellants
leave to appeal the sentences.
[2]
At the time of sentencing the appellants were already serving lengthy
sentences for similar offences. The first appellant
was serving
28 years imprisonment and the second appellant 15 years imprisonment.
The effect of the trial court's sentences is
that the first appellant
would serve a total of 53 years imprisonment and the second appellant
40 years imprisonment.
[3]
The court of appeal can only interfere with the sentencing discretion
of the trial court in limited circumstances. In this case
even Mr
Bontes for the prosecution conceeded that the imposed sentences were
shockingly inappropriate:
Zonda
v
S,
(62
7
1
12)
[2012]
ZASCA
51
of 28 March
2013 at paragraph 9.
[4]
Both Messrs Bontes for the prosecution and Mr Reyneke for the
appellant submitted that the trial court should have taken
into
account the sentences already being served in determining appropriate
sentences to impose as provided in
section
280
(2) of
the
Criminal
Procedure
Act
No
51
of
1977
and
Mokheseng
v S
(A24
7
!2011) ZAFS
HG
103
handed down on 31 May 2012). Both argued that the
latter sentences should consequently be tempered with.
We agree.
[5]
Consequently the following orders are made:
5.1
The appeal succeeds in part.
5.2
The sentence of twenty Five (25) years imprisonment · in
respect of each
appellant is set aside.
5.3
The sentence in respect of the first appellant is Twenty Five (25)
years imprisonment
of which Thirteen (13) years imprisonment is
ordered to run concurrently with the twenty Eight (28) years
imprisonment previously
imposed and the sentence in respect of the
Second appellant is altered to read Fifteen (15) years imprisonment
of which Ten (10)
years imprisonment is ordered to run concurrently
with the sentence of Twenty Eight (28) years imprisonment previously
imposed.
5.4
The above sentences are pre-dated to 27 May 2013.
_________________________
K.
J. MOLOI, J
I
concur.
_________________________
MOHALE,
AJ
On
behalf of the Appellant:
Adv.
REYNEKE
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of Respondent:
Adv
BONTES
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN