IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION , PIETERMARITZBURG
Case number: R41/2025
In the matter between:
THE STATE
and
NHLAKANIPHO MTSHALI
Coram: Mossop J and E. Bezuidenhout J
Judgment received: 14 February 2025
Review judgment d elivered: 21 February 2025
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ORDER
______________________________________________________________________
The following order is granted :
1. The conviction of Mr Mtshali is confirmed.
2. The sentence imposed upon Mr Mtshali is set aside and replaced with the
following sentence:
‘Mr Mtshali is sentenced to pay a fine of R500 or in default of payment to undergo
imprisonment for a period of 30 days.’
2
3. Mr Mtshali’s disqualification from possessing a firearm in terms of s 103(1) of the
Firearms Control Act 60 of 2000 is set aside.
4. If Mr Mtshali has not paid the fine initially imposed by the magistrate and has
consequently been incarcerated for a period of six months, the Registrar of this court is
directed to forthwith inform the Department of Correctional Service of the variation of the
sentence.
5. A copy of this judgment is to be sent by the Registrar of this court to the
magistrate of the Newcastle Magistrate’s Court for his consideration .
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REVIEW JUDGMENT
______________________________________________________________________
MOSSOP J (E BEZUIDENHOUT J concurring) :
[1] This matter has been received on review from the magistrate of Newcastle,
KwaZulu -Natal . The accused, Mr Nhlakanipho Mtshali (Mr Mtshali) was charged with
stealing two tins of shoe polish with an alleged value of R170 from a Spar store in
Madadeni. He was unrepresented when he appeared before the additional magistrate of
Newcastle (the additional magistrate) but pleaded guilty when called upon to plead and
was duly convicted on that plea which was tendered in terms of section 112(1) (a) of the
Criminal Procedure Act 51 of 1977 (the Act) .1 He was sentenced to pay a fine of R500
or in default of payment to undergo six months imprisonment. In terms of s 103(1) of Act
60 of 2000 he was declared to be unfit to possess a firearm.
1 S 112(1) (a) of the Act reads as follows:
‘Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence
of which he may be convicted on the charge and the prosecutor accepts that plea -
(a) the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the
offence does not merit punishment of imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the
Gazette , convict the accused in respect of the offence to which he or she has pleaded guilty on his or her
plea of guilty only and —
(i) impose any competent sentence, other than imprisonment or any other form of detention without the
option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in
the Gazette ; or
(ii) deal with the accused otherwise in accordance with law; ’
3
[2] The matter is reviewable in terms of the provisions of s 302(1)(a) of the Act2 by
virtue of the fact that the additional magistrate that dealt with Mr Mtshali was only
appointed to the position of additional magistrate on 1 July 2024.
[3] I am concerned with a number of issues arising out of the proceedings in which
Mr Mtshali was convicted and sentenced, and I deal sequentially with each of them.
[4] Mr Mtshali was charged with shoplifting, an offence that he freely admitted in
tendering his plea . How Mr Mtshali stole the two tins of shoe polish was not considered
at the plea stage given the fact that s 112(1) (a) of the Act was invoked to convict him.
During mitigation of sentence a few of those details emerged. I t appears to me that on a
conspectus of all the available information Mr Mtshali intended to plead guilty and was
guilty of shoplifting. His conviction was therefore in order. However, t he sage words of
Olsen J of this division in S v Gumede and others ,3 continue to resonate , namely that :
‘There appears to be little scope for exercising a discretion in favour of proceeding under s
112(1)(a) when the accused is unrepresented .’
I would, in the circumstances suggest that s 112(1) (a) should be cautiously applied
where the accused person is unrepresented. The criminal justice system, after all,
strives to ensure that only truly guilty people are convicted and the possibility of that
occurring where an accused person is not represented is heightened .
[5] The next disquieting aspect of what occurred is the nature of the sentence
imposed upon Mr Mtshali. There is an incongruence between the amount of the fine,
2 Section 302(1) of the Act reads as follows:
‘Any sentence imposed by a magistrate’s court - (i) which, in the case of imprisonment (including
detention in a child and youth care centre providing a programme contemplated in section 191(2)(j) of the
Children’s Act, 2005 (Act 32 of 2005)), exceeds a period of three months, if imposed by a judicial officer
who has not held the substantive rank of magistrate or higher for a period of seven years, or which
exceeds a period of six months, if imposed by a judicial officer who has held the substantive rank of
magistrate or higher for a period of seven years or longer;
…
shall be subject in the ordinary course to review by a judge of the provincial or local division having
jurisdiction. ’
3 S v Gumede and others [2019] ZAKZPHC 70; 2020 (1) SACR 644 (KZP) para 41(e).
4
R500, and the alternative period of detention, 6 months. The alternative sentence of
imprisonment appears to me to be too harsh when compared with the quantum of the
fine imposed. Fines that are imposed are not always paid and the consequence is that
the term of imprisonment must be served. Care must thus be taken to ensure that two
sentences are in balance with each other. Considering that s 112(1) (a) of the Act was
applied , the proper sentence should have been a fine of R500 or an alternative period of
incarceration of 30 days. The sentence of the additional magistrate shall accordingly be
altered to reflect that .
[6] I have no way of knowing whether Mr Mtshali paid the fine imposed upon him or
chose to undergo the imposed sentence of imprisonment. It is possible that he did not
pay and with that in mind this judgment has been prepared in some haste.
[7] The next issue to be considered is the fact that Mr Mtshali was found to be unfit
to possess a firearm as a consequence of his conviction. The basis for this finding
escapes me. Section 103(1) of the Firearms Control Act 60 of 2000 (the FCA) sets out
15 offences upon the establishment of which will require a court to make a
determination of whether the convicted person should be declared incompetent to
possess a firearm. Theft is not one of those offence s.4 Dishonesty is , however,
4 Section 103(1) of the Firearms Control Act reads as follows:
‘(1) Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted of –
(a) the unlawful possession of a firearm or ammunition;
(b) any crime or offence involving the unlawful use or handling of a firearm, whether the firearm was used
or handled by that person or by another participant in that offence;
(c) an offence regarding the failure to store firearms or ammunition in accordance with the requirements
of this Act;
(d) an offence involving the negligent handling or loss of a firearm while the firearm was in his or her
possession or under his or her direct control;
(e) an offence involving the handling of a firearm while under the influence of any substance which has an
intoxicating or narcotic effect;
(f) any other crime or offence in the commission of which a firearm was used, whether the firearm was
used or handled by that person or by another participant in the offence;
(g) any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a
period of imprisonment without the option of a fine;
(h) any other offence under or in terms of this Act in respect of which the accused is sentenced to a period
of imprisonment without the option of a fine;
(i) any offence involving physical or sexual abuse occurring in a domestic relationship as defined in
section 1 of the Domestic Violence Act, 1998 (Act 116 of 1998);
(j) any offence involving the abuse of alcohol or drugs;
5
mentioned in s 103(1) (g), but only in the context of a term of imprisonment without the
option of a fine. Spending even a second in thought would have led to the realisation
that s 103(1) (g) could not apply because of the use of s 112(1) (a) of the Act which
requires the imposition of a fine . There is no other sub -section in the FCA that entitled
the magistrate to disqualify Mr Mtshali from possessing a firearm in the future . No order
of disqualification could, or should, have been ordered and that finding must be set
aside.
[8] The areas of concern just mentioned are all capable of being remedied by a
higher court. What is profoundly disturbing, however, and which cannot be cured by a
reviewing court, is the aggressive attitude manifested by the additional magistrate
during the proceedings over which she presided . They were brief given the plea of Mr
Mtshali and the sparse reasons given by the additional magistrate for convicting him
and then sentencing him. But despite this, there are several disturbing moments in the
proceedings where the additional magistrate acted in an unacceptable manner.
[9] The first disturbing incident occurred before Mr Mtshali pleaded. It went like this:
‘COURT : Thank you. Mr Mtshali, stop what you are doing. Even yesterday I did warn you.
You’re not a makoti5 here … [vernacular ]. You look straight into me when I’m talking to you and
when you are answering you face the Court, you do not look down and when you are talking
you talk until I can hear what you’re saying, because you can hear me and I cannot hear you
and who is the fool now? Is it me or you? It is me. So stop that. Where is your proof of
schooling?’
[10] This was the forerunner of a more unpalatable outburst by the additional
(k) any offence involving dealing in drugs;
(l) any offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998) in respect of which the
accused is sentenced to a period of imprisonment without the option of a fine;
(m) any offence in terms of the Explosives Act, 1956 (Act 26 of 1956), in respect of which the accused is
sentenced to a period of imprisonment without the option of a fine;
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping, or
child stealing; or
(o) any conspiracy, incitement or attempt to commit an offence referred to above.’
5 The meaning of ‘makoti’ is ‘a bride; a newly -wed woman or a daughter -in-law; a term used by the family
of a woman’s husband to refer to her.’ Online Dictionary of South African English:
https://dsae.co.za/entry/makoti/e04492 . A makoti traditionally does not make eye contact with someone
addressing her and generally acts coyly.
6
magistrate that later occurred , which encompassed the following:
‘COURT : Thank you. You can sit down. Yes, Mr Mntambo, would you – can you kindly
address in aggravation?
PROSECUTOR : I had already addressed, Your Worship.
COURT : Oh yes, yes, you did. Thank you, sir. Stand up. Do you want to know how I knew
that everything you were saying you were lying to me, because I am not a sangoma and I’m not
a prophet?
ACCUSED : ... [no audible reply ]
COURT : It is your poor acting. You act like you are, you are shy when you are looking down and
speaking softly. I can tell that you are the worst of the worst. The court will sentence you as
follows.’
[11] A judicial officer is expected to behave courteously to all people appearing before
him or her. As was stated in Khuboni v S ,6 an appeal matter in which I sat:
‘It is implicit in our constitutional dispensation that all persons have inherent human dignity. This
includes those who come before a court, be they witnesses or accused persons. Such persons
are to be treated with dignity by a judicial officer. All are human beings and are entitled to be
treated politely and respectfully. ’ (footnotes omitted)
[12] To describe Mr Mtshali as being a liar and being the ‘worst of the worst’ was
unjustified and intemperate. He was charged with shoplifting, not a crime against
humanity. He had recognised the error of his ways and had not wasted the court’s time
with a spurious plea of not guilty. A magistrate is endowed with considerable power in
the exercise of his or her duties but should not see it fit to demonstrate that power by
gratuitously insulting accused persons who have no means of replying to , or refuting ,
the comments made from the bench . It is redolent of a form of judicial bullying. This
form of conduct is unbecoming of a civilised legal system , should not be permitted to
take root and must be stopped now.
[13] In the circumstances, I would propose the following order:
1. The conviction of Mr Mtshali is confirmed.
6 Khuboni v S [2021] ZAKZPHC 73; 2022 (1) SACR 470 (KZP) para 25.
7
2. The sentence imposed upon Mr Mtshali is set aside and replaced with the
following sentence:
‘Mr Mtshali is sentenced to pay a fine of R500 or in default of payment to undergo
imprisonment for a period of 30 days.’
3. Mr Mtshali’s disqualification f rom possessing a firearm in terms of s 103(1) of the
Firearms Control Act 60 of 2000 is set aside.
4. If Mr Mtshali has not paid the fine initially imposed by the additional magistrate
and has consequently been incarcerated for a period of six months, the Registrar of this
court is directed to forthwith inform the Department of Correctional Service s of the
variation of the sentence.
5. A copy of this judgment is to be sent by the Registrar of this court to the
magistrate of the Newcastle Magistrate’s Court for his consideration.
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MOSSOP J
I agree:
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E BEZUIDENHOUT J