IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO: A 156/2023
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OJHER JUDGES: NO
(3) REVISED: NO ,j
Signatur·
Date: 30 April 2025
In the matter between:
MZWANDILE CLIFFORD MNTUNGWA
And
THE STATE Appellant
Respondent
This judgment is handed down electronically by uploading it to the electronic file of this matter on
Case Lines. As a courtesy gesture. it will be sent to the parties/thei r legal representatives by
email. The date for hand-down is deemed to be 30 April 2025 at 14:00
JUDGMENT
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LENYAI J (TEFFO J and Mc Aslin AJ CONCURRING)
[1 J The appellant appeared at Bronkhorstspruit Regional Magistrate Court on the 6th
February 2018 on the following charges:
1.1 Count 1: Attempted robbery with aggravating circumstances of a truck, two
trailers and load from E Ndunyanga on 9th April 2015;
1.2 Count 2: Kidnapping of E Ndunyanga on 9th April 2015;
1.3 Count 3: Robbery with aggravating circumstances of a truck, two trailers, load and
other items from S Mofokeng on 10th April 2015;
1.4 Count 4: Robbery with aggravating circumstances of a truck, two trailers, load and
other items from J Mzwandile on 8th May 2015; and
1.5. Count 5: Robbery with aggravating circumstances of a truck, two trailers, load and
other items from S Mamba on 12th May 2015.
[2] Counts 3, 4 and 5 were read with the provisions of section 51 (2) of the Criminal Law
Amendment Act, 105 of 1997.
[3] The appellant was convicted on the 4th March 2019 and found guilty on all the charges
except on count 4, where he was discharged in terms of Section 174 of the Criminal
Procedure Act 51 of 1977. He was sentenced as follows on the 11th March 2019:
3.1 Count 1 and 2 were taken together for sentencing purposes and a sentence of 8 years
imprisonment was imposed;
3.2 Count 3: 15 years' imprisonment; and
3.3 Count 5: 20 years' imprisonment.
3.4 The trial court further ordered that the sentences on counts 3 and 5 will be served in
such a way that it does not exceed 25 years of imprisonment.
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(4] The appellant applied for leave to appeal his conviction and sentences on the 11 March
2019 before the Regional Magistrate Court, which application was denied. He then
petitioned the Pretoria High Court for leave to appeal in respect of his conviction and
sentences. On the 4th February 2021 his petition to the Pretoria High Court was refused.
The Appellant thereafter petitioned the Supreme Court of Appeal for leave to appeal the
conviction and sentences and on 14th April 2023, leave to appeal was granted to the Full
Court of the Gauteng Division of the High Court, Pretoria, only in respect of the sentence.
[5] The respondent made a substantial application for the condonation for the late filing
of its Heads of Argument. The respondent submitted that its Heads of Argument were
saved on a PDF file and placed twice on caselines on the 8th August 2024. The
respondent then decided to delete one of PDF files on caselines The respondent's
counsel averred that he was then advised by counsel for the appellant that the
respondent's Heads of Argument were not on caselines . It was only then that the
respondent realised the mistake that had occurred in that instead of deleting one PDF file
on caselines, it had accidentally deleted both. There was no opposition to the application
and the Court granted the condonation as requested .
[6] The appellant raised a point in limine, and submitted that the appeal record was
incomplete. The evidence of Mr Lewis Nyanga was not transcribed. Both the appellant
and the respondent agreed that the appeal can be finalised on the record as it is, as the
appeal is directed only against the sentence and the evidence of Mr Lewis Nyanga is not
required or relevant in respect of sentencing. See the matter of S v Zondi 2003 (3) SACR
227 (W), where the court held that "the adequacy of an appeal record therefore depends
on the basis and grounds of the particular appeal".
[7] The appellant contends that the sentence of 33 years direct imprisonment is harsh
and inappropriate especially because:
7.1. The court did not consider the substantial and compelling circumstances of the
appellant when imposing the sentence;
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7.2. The court did not take into consideration the fact that the appellant was a first time
offender when imposing the sentence, with specific reference to count 5; and
7.3. The cumulative effect of the sentence is harsh and it could not have been the
intention of the court.
[8] During the trial the State called 7 witnesses to prove its case. The first witness, Mr
Sipho Piet Mofokeng , testified that he was a driver for the Company Ni-Da Transport. On
1 O April 2015 he was transporting soya beans with a truck and two trailers. Along the road
he picked up the Appellant , who was wearing the same uniform as him and he recognised
him as a co-worker for the same Company he worked for. Mr Mofokeng testified that he
had stopped to buy food and was approached by the Appellant requesting a lift. The
Appellant was accompanied by another male person. While Mr Mofokeng ate his food,
the Appellant was driving the truck. Along the way, he was attacked with a knife and was
stabbed in the arm and shoulder. He was ordered to alight from the truck and was robbed
of his personal belongings as well as the truck and the trailers.
[9] The second witness, Mr Jacobus Lodewicus Maritz, testified that he was employed
by Ni-Da Transport during the robbery incidents. He was the operations manager in
charge of the trucks and trailers and the daily operations of the company . He testified
about all the robbery incidents which were reported to him by the drivers. He further
testified that the Appellant was employed at his company for approximately one month.
He was dismissed after he had abandoned one of the company's trucks.
[10] The third witness, Constable Naledzani Edwin Tshikumbu , testified that on 10 April
2015, he assisted in the tracking of a hi-jacked truck. The truck was traced but he did not
approach the truck as there were many people at the truck. These people were
transferring the load from the hi-jacked truck onto another truck. When the unknown truck
left, he followed the truck and eventually stopped the truck. The truck driver, Jan Dlamini
was arrested for possession of suspected stolen goods.
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[11] The fourth witness, Mr Lewis Nyanga, testified that on 9th April 2015 there was an
attempted hi-jacking of the truck that was in his possession . He identified the Appellant
as one of the perpetrators . The Appellant and another person had pretended that they
wanted to charge a cell phone, whereafter the witness was attacked. He was threatened
with a knife, and his hands and feet were tied. The Appellant did not manage to take the
truck.
[12] The fifth witness, Mr Sabelo Friday Mamba, testified that he was driving the
company's truck on the 12th May 2015 and he stopped along the road to buy food. He
was then approached by two men who pointed a firearm at him and hi-jacked him. A white
Mercedes Benz had parked in front of the truck in such a way that he was unable to move
his truck. He was initially instructed to drive the truck and follow the Mercedes Benz
because the robbers were unable to drive the truck. He memorised the registration
number of the Mercedes Benz. After the load in the truck was off-loaded , he was taken
to the N4 and left there with the truck.
[13] The sixth witness, Constable Phumzile Josephine Mahlangu , testified that she took
down the statement of Mr Ndyanga.
[14] The seventh witness, Sergeant Gaile Samuel Mpholo, testified that he received
instructions to investigate two hi-jackings that occurred on the 11 th April 2015 at
Bronkhorstpruit. He had established that the Mercedes Benz was lent to the Appellant.
He had also received the contact number of the Appellant , and found that this contact
number was a common link between four hi-jacking cases that had been reported to the
police.
[15] The statement of Mr Sibusiso Mduduzi Mkhonza was handed in as Exhibit F, wherein
he declared that he was the owner of the Mercedes Benz and had borrowed it to Mr
Mzwandile Ndlangamandla .
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(16] The appellant was represented in the proceedings of the court a quo and he testified
in his own defence and denied any involvement in any of the incidents. No witnesses
were called to testify in his defence.
(17] The appellant contends that he is a first offender and the court a quo did not take
this into consideration when it sentenced him. The respondent conceded this ground of
appeal.
(18] The other ground of appeal is that the court a quo did not consider the the substantial
and compelling circumstances of the appellant when imposing the sentence. The
following personal circumstances of the appellant were placed before the court:
18.1 The appellant was 28 years old;
18.2 He is single;
18.3 He has 5 children aged 5, 4 (twins) and 2 (twins) years;
18.4 The one set of twins resided with the appellant and the other set of twins resided
with the appellant's aunt. The 5 year old child resided with the biological mother;
18.5. All the children received social grants;
18.6 He was employed by Open Cube, but had not yet received his first salary;
18.7 He had passed grade 12 and
18.8 He was a first offender.
[19] The respondent again conceded that the court a quo did not refer to the substantial
and compelling circumstances which were placed before it when it imposed the sentence .
Instead the court a quo only focused on the aggravating circumstances. The aggravating
circumstances being that the offences were planned, the appellant had information about
the itinerary of the drivers, the appellant made use of the fact that he previously worked
at the company to commit the offences, the offences were escalating at an alarming rate
and the appellant only stopped because he was arrested and he showed no remorse. A
fire-arm was used to threaten the complainants in counts 3 and 5 to co-operate and work
with the perpetrators while the complainant in count 3 was also stabbed with a knife.
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[20] The appellant submitted that a minimum sentence of 15 years' imprisonment in
terms of section 51 (2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, is provided
for in respect of counts 3 and 5 for a first time offender for robbery with aggravating
circumstances.
[21] He further contended that in terms of section 51 (3) of the Criminal Law Amendment
Act 105 of 1997, a court must impose a lesser sentence than the prescribed minimum
sentence when it finds substantial and compelling circumstances to justify the imposition
of a lesser sentence. The appellant argued that the court did not consider both the Act
and the substantial and compelling circumstances that were placed before it when it
sentenced him.
[22] The respondent agreed with the submissions of the appellant and further stated that
the appeal record does not reflect that the court aqua considered the substantial and
compelling circumstances of the appellant when imposing the sentence.
[23] In S v Ma/gas 2001 (1) SACR 469 (SCA) at para 12 Marais JA said the following
regarding appeal on sentence:
" ... A court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply because it prefers
it. To do so would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its exercise of that discretion, an
appellate Court is of course entitled to consider the question of sentence afresh.
In doing so, it assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance. As it is said, an appellate
Court is at large. However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering with the sentence imposed by the
trial court. It may do so when the disparity between the sentence of the trial court
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and the sentence which the appellate Court would have imposed had it been the
trial court is so marked that it can properly be described as 'shocking' , 'startling' or
'disturbingly inappropriate'. It must be emphasised that in the latter situation the
appellate court is not at large in the sense in which it is at large in the former. In
the latter situation it may not substitute the sentence which it thinks appropriate
merely because it does not accord with the sentence imposed by the trial court or
because it prefers it to that sentence. It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned. "
[24] In terms of the Criminal Law Amendment Act 105 of 1997 section 51 (3)(a) provides
that:
"If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist, which justify the imposition of a lesser sentence
than the sentence prescribed in those subsections , it shall enter those
circumstances on the record of the proceedings and must thereupon impose such
lesser sentence"
[25] The Constitutional Court endorse~ the principles set in S v Malgas in the matter
of S v Dodo 2001 (3) SA 382 (CC), where it was held that it is incumbent upon a
court in every case before it imposes a prescribed sentence to assess upon a
consideration of all the circumstances of a particular case, whether the prescribed
sentence is indeed proportionate to the particular offence. The Constitutional Court
made it clear that what is meant by the offence in that context consists of all factors
relevant to the nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances relating to the offender which could
have a bearing on the seriousness of the offence and the culpability of the offender -:
If the court is satisfied that a lesser sentence is called for in a particular case, thus
justifying a departure from the prescribed sentence , then the court is bound to
impose that lesser sentence.
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[26] The record shows that the court a quo did not consider whether there are
substantial and compelling circumstances to justify a lesser sentence than the one
prescribed for offences in counts 3 and 5. Be that as it may, having regard to the
totality of the evidence, the nature of the offences committed and the seriousness
thereof, the interests of society and the personal circumstances of the appellant , I
cannot find any substantial and compelling circumstances that justify the
imposition of lesser sentences that prescribed . I am of the view that the court a
quo was correct in imposing the sentence of 15 years' imprisonment in count 3. I
am of the view that the sentence imposed in counts 1 and 2 is disproportionate to
the offences committed . There is therefore a material misdirection by the court a
quo and this court has to interfere.
[27] The court a quo further misdirected itself in not following the sentencing provisions
imposed by the Act in terms count 5, where the court imposed a sentence of 20
years' imprisonment without explaining its reasoning for imposing such a sentence
which clearly is contrary to the provisions of the Act.
[28] With regard to the cumulative effect of the sentence , the appellant contends that it
is shocking and excessive and does not comply with the law. The court a quo
ordered as follows: 'It is the order of the court that the imprisonment imposed on
count 3 and 5 will be served in such a way that it does not exceed 25 years'
imprisonment ."
[29] The appellant submitted that what the order actually means is that, a maximum of
25 years is to be served in respect of counts 3 and 5, plus another 8 years in
respect of counts 1 and 2, which is a cumulative amount of 33 years' imprisonment.
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[30] There was no serious opposition from the respondent, and actually agreed with
the submissions of the appellant.
[31] Section 280(2) of the Criminal Law Amendment Act 105 of 1997 provides as
follows:
"Such punishments , when consisting of imprisonment , shall commence the one
after the expiration , setting aside or remission of the other, in such order as the
court may direct, unless the court directs that such sentences of imprisonment
shall run concurrently. "
[32] Under the circumstances I propose the following order:
1. The application by the respondents for the condonation of late filing of the
Heads of Argument is granted;
2. The appeal is upheld and the sentence imposed by the Regional Court is
set aside and substituted with the following:
2.1 The sentence imposed in counts 1 and 2 is reduced to 3 years
imprisonment;
2.2 The sentence imposed in count 3 remains at 15 years;
2.3 The sentence imposed in count 5 is reduced to 15 years;
2.4 All the sentences are to run concurrently ;
2.5 Effectively the appellant is sentenced to 15 years' imprisonment ;
2.6 In terms of the provisions of section 282 of the Criminal Procedure Act, the
substituted sentence is ante dated to the 11 March 2019, being the date the
appellant was sentenced .
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2.6 In terms of the provisions of section 282 of the Criminal Procedure Act, the
substituted sentence is ante dated to the 11 March 2019, being the date the
appellant was sentenced .
M.M.D LENYAI
JUDGE OF THE HIGH COURT
I agree
1/~
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
JUDGE OF THE HIGH COURT
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Appearances
Counsel for Appellant
Instructed by
Counsel for Respondent
Instructed by
Date of Hearing
Date of Judgement Adv F van As
Legal Aid South Africa
Adv C Pruis
Director of Public Prosecutions
09 September 2024
30 April 2025
12