IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No. AR 52/23
In the matter between:
KHULEKANI KINGSLEY MPANZA Appellant
and
THE STATE Respondent
ORDER
On appeal from: The Magistrates Court for the district of lnanda held at Ntuzuma (Ms
Mzimela sitting as court of first instance).
The following order shall issue:
1. The convictions in respect of counts 1, 2 and 3 by the court a quo are confirmed .
2. The appeal in respect of the sentences imposed pursuant to the said
convictions is upheld and the sentences are set aside.
3. The matter is remitted to the court a quo for sentence before another presiding
officer.
JUDGMENT
Singh J (Steyn ADJP concurring)
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Introduction
[1] On the evening of 27 January 2019, there was a collision involving the appellant
and a motor vehicle being driven by Mr Anthony Mayoni who was together with his
wife and two minor children. At the relevant time, the appellant did not hold a drivers
licence. It was common cause in the court a quo that the appellant had also abandoned
the scene of the collision and did not report the collision to the police.
[2] The appellant was convicted of one count of reckless driving (Count 1 ), one
count of driving without being in possession of a drivers licence (Count 2) and one
count of failing to comply with the duties of a driver after a collision (Count 3). The
appellant pleaded not guilty to all the counts and was convicted as charged on 5
October 2022. On 4 November 2022, he was sentenced as follows:
(a) Count 1: 'A fine of R15 0000 or two (2) years imprisonment of which one (1)
year is suspended for three (3) years on condition that the accused does not
commit a similar offence during the period of suspension ';
(b) Count 2: 'A fine of up to R500 without suspension ';
(c) Count 3: 'Twelve (12) months direct imprisonment without the option of a fine'.
[3] The court a quo granted the appellant leave to appeal in respect of conviction
and sentence. At the hearing of the appeal and in the heads of argument filed on behalf
of the appellant , Mrs Barnard who appeared on behalf of the appellant submitted that
the appeal was against the sentences in respect of counts 1 and 3 only. Accordingly ,
since the appeal is against the sentences only this judgment shall deal only with the
court a quo's conduct during the sentencing phase and the circumstances considered
by the court regarding the appropriate sentences .
The evidence in the court a quo
[4] The appellant testified in mitigation of sentence. The court a quo received a
correctional supervision report from Mr Hlengwa as well as a pre-sentencing report
from a probation officer, Mr Gumede. Both Messrs Hlengwa and Gumede testified
before the court a quo. Mr Mayoni testified in aggravation of sentence and the impact
of the collision on his family and him. The court a quo also received the victim impact
statement of his wife, Ms Mbatha.
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[5] When the appeal was heard, the following submissions were made by Mrs
Barnard:
(a) the sentence imposed in count 1 was not competent for the following reasons:
(i) a portion of the fine of R 15 000 also ought to have been suspended as
a portion of the sentence of imprisonment was suspended;
(ii) if it was the intention of the court a quo to have a further one year
imprisonment hanging over the head of the appellant, the sentence
ought to have read as follows:
'Fined R15 000.00 or two (2) years imprisonment in addition thereto one (1)
year imprisonment which is suspended for a period of three (3) years on
condition that the accused is not convicted of a contravention of section 63( 1)
of the National Road Traffic Act 93 of 1996 (reckless driving) committed during
the period of suspension '.
(iii) It was further submitted that as it stands, the condition of suspension is
too wide in that it does not specify that the conviction would trigger the
suspended portion to come into operation as it merely refers to 'a similar
offence'.
(b) there was no need to impose a term of direct imprisonment in respect of count
3 and remove the appellant from society. Although the incident had tragic and
far reaching consequences for the victims, the facts in the present matter are
exactly what the legislature had in mind when s 276(1 )(h) of the CPA was
enacted, namely not to remove an offender from society;
(c) the appellant was twenty nine years old at the time of the incident and a first
offender who is gainfully employed. He already had an academic qualification
and was reading for a further qualification . Both the probation officer and
correction supervision officers' report took the said factors into account in
recommending that the appellant met the criteria for correctional supervision in
terms of s 276(1 )(h) of the CPA.
(d) the court a quo in its judgment failed to furnish any reasons for why it rejected
the reports of the probation officer and the correction supervision officer. This
was further so because the court a quo did not believe that the manner in which
the appellant drove warranted a custodial sentence in count 1 in that the
appellant was given the option of a fine yet imposed direct imprisonment in
respect of count 3.
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(e) the court a quo erred in relying on S v Kibido1 to justify the imposition of a
custodial sentence in count 3 as the aforesaid case related to a case of reckless
driving. In any event, in Kibido, the court imposed a sentence in terms of s
276(1 )(i) of the Criminal Procedure Act 51 of 1977 ('the CPA').
The State's submissions
[6] Mr Singh who appeared on behalf of the State conceded that the sentence in
respect of count 1 was not competent and had to be set aside and amended.
[7] In respect of count 3, Mr Singh submitted in both oral and written submissions
that the collision was not a minor traffic offence and that the victims sustained serious
injuries. He further submitted that the appellant had driven without a drivers licence
and at high speed when the collision occurred. A further aggravating factor was that
he abandoned the collision without justification and attempted to conceal that he was
the driver of the motor vehicle.
[8] Mr Singh conceded that the court a quo's judgment did not reflect that the
correctional supervision report was seriously considered and that the judgment did not
stipulate any reasons for rejecting the correctional supervision as an appropriate
sentencing option or why the reports in support of correctional supervision should be
rejected.
The issues to be determined
[9] The issues for determination of this appeal is as follows:
(a) Whether the sentence in count 1 as it currently stands is competent ;
(b) Whether the court a quo erred in imposing a sentence of twelve months direct
imprisonment without the option of a fine in respect of count 3.
The general principles relating to sentence on appeal
[1 O] The cou~ sitting on appeal must be satisfied and interfere with sentence only if
the court a quo's sentencing discretion was not exercised at all or improperly or
unreasonably when imposing sentence. The fact that a sentence is disturbingly
inappropriate or sufficiently disparate has been accepted as sufficient reason for the
court of appeal to intervene.
1 S v Kibido 1998 (2) SACR 213 (SCA).
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[11] The court in Kibido2 stated:
'Now, it is trite law that the determination of a sentence in a criminal matter is pre-eminently a
matter for the discretion of the trial court. In the exercise of this function the trial court has a
wide discretion in (a) deciding which factors should be allowed to influence the court in
determining the measure of punishment and (b) in determining the value to attach to each
factor taken into account (see S v Fazzie and Others 1964 (4) SA 673 (A) at 684 A-8; S v
Pi/lay 1977 (4) SA 531 (A) at 535 A-8). A failure to take certain factors into account or an
improper determination of the value of such factors amounts to a misdirection, but only when
the dictates of justice carry clear conviction that an error has been committed in this regard (S
v Fazzie and Others (supra) at 684 8-C; S v Pi/lay (supra) at 535 E)'
The sentences in counts 1 and 2
[12) It is a fundamental principle in our law that a court order must be effective and
enforceable and it must be formulated in language that leaves no doubt as to what the
order requires to be done. Not only must the order be couched in clear terms but its
purpose has to be readily ascertainable from the language used. An accused person
must be left in no doubt as to the conditions that governs his sentence .
[13) I am in agreement with the submissions made by the appellant , and the State
has correctly conceded , that the sentence in count 1 has been framed too widely and
warrants amendment. It is not clear from the sentence as to what the 'similar offence'
that the appellant may not commit during the period of suspension is. Likewise, it is
not clear as submitted by Mrs Barnard whether a payment of a portion of the fine was
also suspended. In my view, the court a quo was misdirected when it failed to stipulate
the conditions of the suspension unambiguously and clearly. This misdirection by the
court a quo warrants interference by this court to set the sentence aside.
[14) Count 2 was not in issue despite the court a quo having granted leave to the
appellant in respect of the sentence for count 2. A reading of the record on count 2
reflects however that the sentence imposed was 'a fine of !!Q.JQ R500.00 without
suspension.'3 (my emphasis). Likewise, in my view this sentence is not clear as to
precisely what amount is payable by the appellant and the sentence in respect of this
count was also a misdirection .
2 S v Kibido as above, 216 G -1.
3 Lines 6 to 7, record, page 301.
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The sentence in count 3
(15] The record reflects that the court a quo approached the issue of sentence in
respect of count 3 on the basis that the appellant was involved in violent conduct. The
judgment states 'the violent conduct will be met with the full might of the law to ensure
the full effect of justice being not only done but also be seen to be done.'4
(16] The court a quo also appeared to have approached the question of sentencing
as if it was considering the applicability of a prescribed minimum sentence following
the conviction of the appellant on count 3.5
[17] Despite going into detail, regarding the evidence which was heard of the victim,
Mr Mayoni and considering the victim impact statement of Ms Mbatha, the court a quo
did not evaluate the correctional supervision report nor did it state why it rejected the
correctional supervision report. One would expect this approach to have been adopted
more so, because the probation officer's report also supported a sentence in terms of
s 276(1 )(h) of the CPA.
[18] The Supreme Court of Appeal in S v Samue/s6 in considering correctional
supervision as a suitable sentence succinctly stated:
'With appropriate conditions , correctional supervision can be made a suitably severe
sentence, even for persons convicted of serious offences.·
[19] The court in S v Trichart7 stated:
'It is important for the courts to take these reports seriously and to give rational, even if only
brief, reasons for rejecting the recommendat ions contained therein. The probation officers who
are officers of ever court established under the Magistrates ' Court Act 32 of 1944, and who
compile these reports, perform a valuable task, one that is of huge assistance to judicial
officers.'
[20] It is clear that the court a quo approached the sentence in count 3 as if it was
dealing with a sentence involving a count of negligence and/or reckless driving. The
issue of negligence and/or recklessness would have arisen in count 1 and not in count
4 Lines 5 to 7, record, page 292.
5 Lines 24 to 25 to line 12, record, pages 298 to 300.
6 S v Samuels 2011 (1) SACR 9 (SCA), para 10
7 S v Trichart 2014 (2) SACR 245 (GJ), at 250.
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3. For the court a quo to have considered the issue of negligence i111 count 3 would be
tantamount to sentence the appellant for his conduct in count 1 twice. In my view, the
court a quo did not seriously consider correctional supervision as an option. This was
a clear misdirection by the court a quo. The court a quo erred in over emphasising the
aggravating circumstances and did not fully apply its mind to the mitigating factors
contained in the correctional supervision report and the personal circumstances of the
appellant. At the very least, the court a quo ought to have considered the provisions
of s 276( 1 )(i) of the CPA, but the judgment does not reflect that s 276( 1 )(i) was even
considered . The sentence in count 3 must therefore be set aside.
[21] I have given anxious consideration to what the appropriate approach is in the
face of the sentences in respect of all three counts being set aside, and I am of the
view that the answer lies in the provisions of s 275(1) of the CPA which provides for
sentencing to be conducted by another judicial officer other than the judicial officer
who convicted the accused or appellant as the case may be. The matter ought
therefore to be remitted to the court a quo for the sentence -to be reconsidered by a
new judicial officer afresh.
[22] In the circumstances , I make the following order:
1. The conviction in respect of counts 1, 2 and 3 by the court a quo are confirmed.
2. The appeal in respect of the sentences imposed pursuant to the said
convictions is upheld and the sentences are set aside.
3. The matter is remitted to the court a quo for sentence before another presiding
officer.
Date of Hearing
Date of Judgment
Counsel for the Appellant
Instructed by
Counsel for the Respondent
Instructed by CASE INFORMATION
28 February 2025
24 March 2025
Ms D Barnard
Ndwandwe Attorneys
Suite 1106
Metlife Building
391 Anton Lembede Street
Durban
Email: louisbarnard67@gmail.com
Tel: 083 225 8122
Mr R Singh
The Director of Public Prosecutions
88 Joe Slovo Street
Durban
Tel: 031 334 5170
Email: raSingh@npa .gov.za 8