REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
CASE NO. : A35/2025
In the matter between:
CAYTON TEMMIES FIRST APPELLANT
MALIXOLE YOSE SECOND APPELLANT
and
THE STATE RESPONDENT
Neutral citation : Temmies and Another v S (case no A35/2025 ) [202 5] ZAWCHC
(29 April 2025 )
Coram : ALLIE J et MOOSA AJ
Heard : 25 April 2025
Delivered : 30 April 2025 (delivered via email to the respective Counsel)
Summary : Criminal law – appeal - test for trial court misdirection – sentence
announced by trial court different to sentence recorded on charge
sheet – determining official sentence – ‘open justice’ principle
'1pfl~.
I. J., .J.. 1.,.1
'\ .,._ -c
applied – appeal court sentencing afresh – applicable pr inciples –
theft of essential infrastructure – electricity - minimum sentence
ORDER
On appeal from the regional court at Stellenbosch, the following is ordered:
(a) Condonation is granted for the late filing of the respondent’s heads of
argument.
(b) The appeal against the court a quo’s sentence of the First Appellant on count
1 and count 2 is upheld. The court a quo’s order on sentencing for both
counts is set aside and is substituted with the following in its stead:
‘(i) On count 1, accused no. 1 is sen tenced to 10 years direct imprisonment;
(ii) On count 2, accused no. 1 is sentenced to 15 years direct imprisonment;
(iii) The sentences for count 1 and count 2 shall run concurrently.’
(c) The appeal against the court a quo’s sentence of the Second Appella nt on
count 1 and count 2 is upheld. The court a quo’s order on sentencing for both
counts is set aside and is substituted with the following in its stead:
‘(i) On count 1, accused no. 2 is sentenced to 8 years direct imprisonment;
(ii) On count 2, accuse d no. 2 is sentenced to 15 years direct imprisonment;
(iii) The sentences for count 1 and count 2 shall run concurrently. ’
and
(d) The appeal against the court a quo’s declaration that the First Appellant and
Second Appellant respectively are unfit to possess a firearm is dismissed.
JUDGMENT
Moosa AJ (Allie J concurring )
INTRODUCTION
1. This is a criminal appeal stemming from proceedings in the regional court at
Stellenbosch . Appellants pleaded not guilty and were, after a trial, convicted on
13 July 2023 and sentenced on 19 September 2023 for two charges emanating
from the Criminal Matters Amendment Act 18 of 2015 ( the CMAA ).
2. After unsuccessfully petitioning the trial magistrate for leave to appeal, the
Appellants successfully petitioned the hig h court for leave to appeal. They were
granted leave, but only for their sentences. This judgment relates to that appeal.
3. When the hearing commenced , respondent’s Counsel, Ms Monis, moved for an
order condon ing the extremely late filing of her heads of argument. That
application was unopposed and was granted only to avoid further prejudice to the
Appellants in the pursuit of their appeal .
4. At the hearing, t his Court expressed its displeasure a t the fac t that the
respondent filed its heads of argument only a few court days before the hearing,
bearing in mind the rule of court regulating the filing of heads in a criminal appeal .
This conduct is seriously prejudic ial to the Appellants and their right to prepare
timeously for this appeal, and it is disrespectful to this Court a nd its rules which
are designed to promote fairness in the administration of justice . The failure by
the Office of the Director of Public Pro secutions to appoint a substitute legal
practitioner to draft and file heads of argument while Ms Monis was unable to do
so for personal reasons is conduct that this Court views in a most serious light. It
cannot be countenanced.
5. It is also necessary to r ecord that, prior to the hearing, a written communication
was sent to the Appellants’ Counsel drawing his attention to the fact that he
ought to be prepared to address this Court on the issue of a possible increase in
the sentence imposed on the Second App ellant by the trial court on count 2.
SALIENT BACKGROUND FACTS
6. In count 1, the appellants were charged with the offence of tampering, damaging,
or destroying essential infrastructure1 that provides a basic service2 to the public.
It was alleged, and later proved at trial, that on 19 February 2022 at the Stone Hill
Farm in Devon Valley, they, acting in concert, cut and removed 600 metres of
seven strand overhead copper conductor cables valued at about R41 886 which
was owned by Eskom ( the property ).
7. In terms of s 3(1)(a) of the CMAA, an accused is liable, upon conviction of this
offence, to be sentenced ‘to a period of imprisonment not exceeding 30 years’.
Both appellants were convict ed on count 1 and sentenced to 15 years each.
8. On appeal, respondent’s Counsel argued for the first time that a minimum
sentence applies to count 1. Appellants’ Counsel objected, and for good reason.
On being asked by this Court whether, in the court a qu o, Appellants’ attention
1 In this context, the term ‘essential infrastructure’ is defined in section 1 of the CMAA to mean ‘any
installation, structure, facility or system, whether publicly or privately owned, the loss or damage
of, or the tampering with, which may interfere with t he provision or distribution of a basic service
to the public ’.
2 In this context, the term ‘basic service’ is defined in section 1 of the CMAA to mean ‘a service,
provided by the public or private sector, relating to energy, transport, water, sanitation and
communication, the interference with which may prejudice the livelihood, well -being, daily
operations or economic activity of the public ’.
was drawn to the possible application of a minimum sentence on count 1, Ms
Monis was constrained to concede that this was not done.
9. In fact, t he trial record shows that, on 24 November 2022, the magistrate
informed the appellants that count 1 carries a maximum sentence of 30 years.3
No minimum sentence was mentioned at all. As a result, the appeal was argued
on the basis that a minimum sentence only applies to count 2. This appears to be
the correct legal position, regardless of the charge sheets’ contents.
10. In count 2, the appellants were charged with theft of the property, being ferrous
or non -ferrous metals forming part of essential infrastructure as defined in the
CMAA. As stated above, they were convicted on this count too.
11. By virtue of Part II in Schedule 2 to the Criminal Law Amendment Act 105 of
1997 ( the CLAA ), minimum sentences are prescribed for persons convicted of
theft of ferrous or non -ferrous metals forming part of essential infrastructure. The
prescribed minimum sentence varies, depending on whether an accused is a
first, second, third or subsequent offender of any such offence.
12. It is common cause that both appellants were first offenders as regards their
conviction of theft of ferrous or non -ferrous metals form ing part of essential
infrastructure. As such, a prescribed minimum sentence of ‘not less than 15
years’ applies ex lege, unless a court finds substantial and compelling
circumstances exist in relation to a particular accused.
13. Argument on sentencing occurred in the court a quo on 18 September 2023. The
transcribed record reveals that at this crucial stage of the proceedings, neither
the State prosecutor nor the appellants’ Attorney reminded the trial court that a
different sente ncing regime operated by law in respect of counts 1 and 2. This
3 Record: page 30 lines 9 - 14.
may have contributed to some of the seemingly bona fide errors made by the trial
magistrate at the time of sentencing.
14. The appeal record read as a whole reveal that a regrettable series of errors
occurred on 19 September 2023 when the case resumed for sentencing. The
impact of the errors on the sentences is discussed later in this judgment.
15. At the time of sentencing the First Appellant on count 2, the trial magistrate
informed him that she had found substantial and compelling circumstances
meriting a deviation from the mandated minimum sentence of 15 years. However,
for reasons unexplained in the record, she then handed down a sentence of 15
years direct imprisonment.
16. This relevant part of the record (at page 246 lines 8 -12) reads as follows:
‘I have approach your case with an element of mercy Mr Temmies and in the
result I have … [indistinct] … in regards to count one your sentenced to 15 years
imprisonment with regards to count two you ar e sentenced to 15 years
imprisonment. ’ (my emphasis)
17. Notwithstanding this utterance to the First Appellant, e x facie the front page of
the J15 form, the trial magistrate recorded ‘Twelve (12) years’ as his sentence for
count 2. This is less than the mini mum sentence prescribed by law and less than
the sentence which the trial court informed the First Appellant is the actual
sentence imposed on him for count 2.
18. While the sentence recorded on the J15 for count 2 is consistent with the trial
magistrate’s fi nding of substantial and compelling circumstances relating to the
First Appellant, it gives rise to a legal problem, namely, what is the official
sentence in relation to count 2 for all purposes in law, including for this appeal: is
it 12 years or 15 years imprisonment? Appellants’ Counsel, Mr Calitz, urged this
Court to find that the former is the legally binding sentence.
19. Mr Calitz argued further that the gravity of the problem increases manifold when
regard is had to the magistrate’s failure to order that the sentences on both
counts for the First and Second Appellants respectively run concurrently under s
280(2) of the Cr iminal Procedure Act 51 of 1977 (the CPA).
20. On this basis, Mr Calitz contended that the trial magistrate misdirected herself in
a material way which, so he argued, justifies this Court intervening on appeal.
ISSUES FOR ADJUDICATION
21. Three crisp issues a rise for determination. The first is a novel question of law,
namely, when an inconsistency arises between the sentence announced by a
trial court to an accused and that recorded on the J15 form contemporaneous
with the sentence uttered in court, then whic h sentence takes precedence for
purposes arising under the CPA – is it the sentence communicated to an
accused in court, or the sentence recorded by the judicial officer on the J15
form?
22. The second issue arising for adjudication is whether the trial magistrate
misdirected herself and did so to such a degree that it impels this Court to set
aside the sentences imposed on the appellants , or either of them.
23. If this latter issue is decided in the affirmative and the sentences are set aside in
whole or in part, then the third issue arising for determination is: what would an
appropriate sentence be in the circumstances of this case in substitution of the
sentence(s) set aside by this Court?
24. I now turn to deal in turn with each of these issues.
THE FIRST ISSUE: A NOVEL QUESTION OF LAW EXAMINED
25. Mr Calitz was unable to cite any authority for his proposition that the 12 -year
sentence recorded on the J15 form has the force of law for purposes o f the CPA
over the sentence announced in open court to the First Appellant.
26. My research has also not yielded any case law directly on point. However, I
consider that S v Mbewu (case no. 214517) [2009] ZAECHC 8 (29 January 2009)
as provid ing some useful guidance. I shall revert thereto later.
27. Section 35 of our Constitution, 1996 entrenches the right of every accused to a
fair trial. This includes the rights to a fair trial in public and to fairness in
sentencing. See, for eg, the right in s 35(3) (n) to the least severe punishment
imposed by law, if certain constitutionally imposed requirements are met.
28. It would be a violation of an accused’s right to a fair trial in public if a trial court
were permitted to announce one sentence in court and then be permitted to, in
effect, alter that sentence by record ing a completely different sentence on a J15
form without any obligation to inform an affected accused of the sentence so
recorded and sought to be imposed on him/her .
29. I find that, as a matter of principle, i t would be egregiously unfair if the latter
sentence recorded on a J15 form has the force of law and prevails over the
sentence announced in a courtroom to an accused (and the public, if any) .
30. If a sentence recorded on a J15 form automaticall y, and without more, prevails
over that communicated to an accused and members of the public in court at the
relevant time, then this would put at risk the accused ’s and the public’s
confidence in the judiciary and our criminal justice system . This is beca use such
a legal position would create fertile opportunity for potential abuse of judicial
power through the imposition of sentences out of the public eye and in secret.
31. In S v Jaipal 2005 (4) SA 581 (CC) para 29, the apex court held as follows:
‘The right of an accused to a fair trial requires fairness to the accused, as well as
fairness to the public as represented by the State. It has to instil confidence in the
criminal justice sys tem with the public, including those close to the accused, as
well as those distressed by the audacity and horror of crime. ’
32. I find that the passing of a sentence in secret (as distinct from passing sentence
in camera) is incongruent with the ‘open justic e’ principle applicable in the context
of s 35(3) of the Constitution. Such a practice may have a pre-constitutional
vintage and may hark back to a by -gone era when the rights of accused were
routinely trampled upon, resulting in a real need to entrench a universal fair trial
rights regime for all accused persons withi n s 35 of the Bill of Rights located in
Chapter 2 of our final Constitution.
33. The principle of ‘open justice’ in judicial proceedings serves the public interest
and, in criminal proceedings, protects accused by ensuring that justice is
administered open ly and transparent ly (not in secret) . See Savoi and others v
NDPP and another 2024 (1) SACR 343 (CC) para 1; E. Sat (Pty) Ltd and others v
Lucken NO and others 2024 (2) SACR 377 (KZD) para 96.
34. The imposition of legally binding sentences on accused persons through acts by
judicial officers occurring out of the public eye in a non -transparent process is a
slippery slope en route to the administration of criminal justice in ways antithetical
to s 35(3) of the Constitution. This cannot be tolerated.
35. The recording of a sentence on the J15 form must align in every material respect
with the sentence announced by a judicial officer in court. If there is a material
inconsistency between them, as in casu, then an irregularity exists which
warrants setting aside the sentence in every respect. In practice, this can occur
on appeal, or on automatic review in cases where judicial error cannot be
rectified under s 298 of the C PA (as happened in S v Mbewu supra).4
36. S v Mbewu is an unreported review judgment in which the sentence appearing ex
facie the J15 is ‘a fine of R500 or … imprisonment for 30 years ’ and that in the
trial record is ‘a fine of R500 or … remain in jail for at least 30 days ’. (my
emphasis ) The review court corrected this error at the request of the presiding
magistrate who accepted that he was functus officio by the time that the bona
fide error came to his attention. At para 5, the court usefully explained that a J15
form is no more than an annexure to the record of the trial proceeding.
37. In S v Mbewu supra, Nhlangulela J (Petse ADJP concurring) held (at para 5) :
‘Whereas the record is a device, as in tapes, discs or paper, in which everything
that happens during the trial is captured, the charge sheet is a document that is
drawn by the prosecutor before the trial and presented to the court to show the
nature of the charge which has been preferred against the accused. The recordal
of the imposed sentence on the charge sheet can only take place at the end of
the trial when the verdict and sentence would have already been recorded in the
tapes, disc or on paper.’
38. All this gives rise to the obvious question: what purpose is served by a trial court
recording on a J15 form an already announced verdict and sentence, and then
appends his/her signature to that form?
4 Section 298 reads: ‘When by mistake a wrong sentence is passed, the court ma y, before or
immediately after it is recorded, amend the sentence.’
39. The answer to this question lies in an understanding of the role which a signed
J15 form plays in the administrative processes involved in our criminal justice
system after an accused is convicted and sentenced in a criminal court.
40. For present purposes, it is unnecessary to provide an exhaustive explanation. It
suffices to say that a signed J15 form containing details of an accused’s
conviction and sentence is used for several administrative purposes (such as,
enabling a determination to be made whether a sentence imposed is reviewable
under s 302 of the CPA) . See S v King (56/2023) [2024] ZAWCHC 122 (7 May
2024) para 1.
41. An appreciation of the role played by a signed J15 form in the administration of
justice makes it clear that the recordal of a senten ce thereon is an administrative
step by a judicial officer aimed , inter alia, at facilitating the convicted and
sentenced person to be processed in the next phase of our criminal justice
system.
42. Accordingly, a signed J15 form serves as documentary evidence that an accused
has been convicted on a particular charge and sentenced thereon in a particular
way. However, that document does not serve as conclusive evidence for all
purposes under the CPA of the sentence imposed on an accused . Whe re an
inconsistency exists between the sentence recorded on a signed J15 form and
the sentence read out in court to an accused, then , in my view, the latter
sentence must , for all purposes under the CPA, prevail until it is set aside on
appeal or review, o r by way of a correction under s 298 of the CPA , if correction
is possible in the circumstances of a particular case .
43. The view expressed here accords with our Bill of Rights demanding fairness in
the administration of justice and the promotion of ‘open j ustice’ in the open and
democratic society established by our supreme Constitution . The fact that a
lesser sentence tha n the minimum sentence prescribed by law was recorded on
the J15 form on count 2 which benefits the First Appellant is of no moment.
44. For the reasons outlined above, I find that written recordal on the J15 form of a
12-year sentence for count 2 has no binding legal force or effect. In these
circumstances, I conclude that the 15 -year sentence announced in court to the
First Appellant is the actual, official sentence for purposes of the CPA , including
for this appeal. That sentence cannot be ignored nor wished away.
45. Mr Calitz urged this Court to set aside th e 15 -year sentence imposed if his
submission related to the 12 -year sentence recorded on the J15 form is rejected.
I now turn my attention to that issue.
THE SECOND ISSUE: SHOULD THE SENTENCES BE SET ASIDE ?
46. Having adjudicated the first issue formulated above, it is now ripe to determine
whether valid grounds exist for this Cou rt to interfere with the sentences imposed
by the trial court in relation to counts 1 and/or 2.
47. At the onset, the applicable legal principles emerging from case law will be
outlined. Thereafter, those principles will be applied to the facts in casu.
48. An appellate court must be slow to interfere with a trial court’s discretion on
senten ce. It is a truism that t he imposition of punishment is pre -eminently a
question for a trial court. See S v Rabie 1975 (4) SA 855 (A) at 857D.
49. In S v Malgas 2001 (1) SACR 496 (SCA) para 12 , this salutary legal principle
was expressed as follows:
‘A court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it was the
trial court and then substitute the sent ence arrived at by it simply because it
prefers it. To do so would usurp the sentencing of the trial court. ’
50. An appellate court can only interfere with a trial court’s sentence if it failed to act
judicially and properly within legal limits. See S v Rabie supra at 857E .
51. The prerogative of a trial court on sentencing is jealously guarded. Therefore, an
appellate court can interfere with a sentence in the following circumscribed
instances relevant to the present appeal against a sentence (not a conviction):
(a) if the sentence is vitiated by an irregularity during the trial or sentencing
process that results in a failure of justice. See S v Bogaards 2013 (1)
SACR 1 (CC) para 41 ; or
(b) if a trial court misdirects itself in relation to the sentence imposed and
does so in such a nature, degree, and seriousness that the trial court
cannot be said to have exercised its sentencing discretion at all, or
exercised its discretion improperly or u nreasonably, thereby vitiating the
sentence imposed. See S v Hewitt 2017 (1) SACR 309 (SCA) para 8; or
(c) if the sentence imposed by a trial court ‘is one to which no reasonable
court could have come, in other words, one where there is a striking
disparity b etween the sentence imposed and that which this Court
considers appropriate ’ (S v Petkar 1988 (3) SA 571 (A) at 574C).
52. As regards the ground in (b) , in S v Pillay 1977 (4) SA 531 (A) at 535E -F, the
former Appellate Division (now Supreme Court of Appeal) held a ‘misdirection’
‘… means an error committed by the Court in determining or applying the facts
for assessing the appropriate sentence. As the essential inquiry in an appeal
against sentence, however, is not whether the sentence was right or wrong, but
whether the Court in imposing it exercised its discretion properly and judicially, a
mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature, degree, or seriousness th at it
shows, directly or inferentially, that the Court did not exercise its discretion at all
or exercised it improperly or unreasonably ’.
Application of the relevant principles to the facts in casu
53. For the various reasons articulated below under this heading, I find that th e trial
court exercised its discretion on sentencing unreasonably and imposed
sentences strikingly disproportionate to the crimes. This Court is not only entitled
but obliged to inter vene . Any failure to intervene would be tanta mount to an
abdication of this Court’s constitutional duty to avert the injustice which would
ensue if the unjust sentences imposed were to be served by the appellants.
Hence, I propose the orders formulated below in this judgment .
(i) Ad the First and the S econd Appellant s jointly
54. Appellants’ Counsel, Mr Calitz, pointed out that the magistrate ’s judgment is
silent on s 280(2) of the CPA .5 He argued that this silence indicates an omission
by the trial magistrate to consider this question. He reasoned that this failure is a
serious misdirection which, he contends , led to a further misdirection, namely, the
magistrate’s failure to order that the sentences imposed on the appellants
respectively for counts 1 and 2 shall run concurrently.
5 For present purposes, t he relevant portion of s 280 reads:
‘(1) When a person is at any trial convicted of two or more offences or when a person under
sentence or undergoing sentence is convicted of another offence, the court may sentence him to
such several punishments for such offences or, as the case may be, to the punishment for such
other offence, as the court is competent to impose.
(2) 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. ’
55. Respondent’s Counsel, Ms Monis, conceded that the trial court appear s to have
misdirect ed itself in the manner contended by Mr Calitz. However, she left this
question of law for determination by thi s Court , although she stated that the
respondent does not object to the sentences running concurrently.
56. It is correct, as argued by Mr Calitz, that the trial magistrate’s judgment does not
refer to s 280(2) of the CPA, nor does the printed transcript give any indication
that the magistrate considered the question whether the sentences imposed on
the appellants respectively ought to run concurrently.
57. I am mindful that no judgment can ever be entirely exhaustive . Merely because
the trial court’s judgment d oes not refer to s 280(2) of the CPA nor to the
question of concurrent sentences does not in and of itself mean that the trial
magistrate did not consider the question of whether the sentences ought to run
concurrently. See R v Dhlumayo and another 1948 (2) SA 677 (A) at 702.
58. However, the fact that the sentences imposed on the appellants were not ordered
to run concurrently is a serious misdirection which culminated in the imposition of
imprisonment for durations that can, in respect of both appell ants respectively, be
aptly described as shocki ng, or ‘disturbingly inappropriate’ ( S v Narker and
another 1975 (1) SA 583 (AD) at 585C).
59. The trial magistrate’s failure to order that the sentences run concurrently means
that the First Appellant was sentenced to an effective 30 -year imprisonment
(ignoring the 12 years noted on the J15 form); the Second Appellant was
sentenced to an effective 25 years in prison. All this is unjust – it gives rise to a
real sense of shock because of the disproportionality with the crimes charged
and the other factors relevant when a fair and just sentence is determined.
60. In this context, one must not lose sight of the fact that a sentence ought to ha ve a
deterrent effect on would -be criminals. However, if a sentence imposed is, as
shown by the appellants to be the case here, so shockingly disproportionate to
the offences charged when balanced against the factors relevant to the
determination of an app ropriate sentence, then the sentence imposed will likely
lose its potential for having an effective deterrent outlook.
61. Logic and common -sense dictate that this must be so because the shock caused
by the sentences imposed would be so overwhelming that a would -be criminal is
likely not to view the sentences with seriousness but rather see the sentences for
what they truly ar e – unjust and unfair.
62. This consideration fortifies my view that the magistrate’s misdirection in failing to
issue an order under s 280(2) of the CPA is of such a sufficient degree of
seriousness as to warrant this Court’s interference with the sentences imposed
on both appellants. However, there are additional grounds which impel this Court
to intervene by sentencing the appellants afresh, rather than to remit the case
back to the trial court for re -sentencing. These individualised grounds will
hencefort h be dealt with, albeit separately in relation to each appellant.
(ii) Ad the First Appellant only: count 1
63. The trial magistrate committed a misdirection by the manner she approached the
relevant facts for purposes of assessing an appropriate sentence fo r the First
Appellant on count 1.
64. A consideration that played a key role in determining the 15 -year sentence
emerges from the following extract on sentence (at page 246 lines 3 -7):
‘With regards to accused number one you are not a first offender to this Court
you have been given numerous opportunities by the court in order to rehabilitate
yourself but it seems that have fallen on deaf ears. ’ (my emphasis)
65. The reference to ‘numerous opportunities’ given to the First Appellant is wrong.
This is not borne o ut by his SAP 69. It reveals that the First Appellant only had
two convictions for theft: one in 2008 and another in 2016.
66. The trial magistrate misdirected herself when she failed to consider that one of
these convictions occurred more than 16 years befo re the offence charged in the
current indictment. The magistrate also erred when she said that ‘in 2006’ the
First Appellant was convicted of a ‘similar offence of theft’.6
67. This alleged third conviction does not appear on the First Appellant’s SAP 69 in
Exhibit E and is a serious error that contributed to the magistrate finding
considerable aggravation and an absence of the potential for rehabilitation.
68. Under these circumstances, the trial magistrate misdirected herself by wrongly
determining that the First Appellant had committed ‘numerous’ crimes and was
given ‘numerous opportunities’ to rehabilitate himself but failed to do so.
69. The trial magistrate’s assessment of this as an aggravating factor for sentencing
purposes is a misdirection that contribu ted to the imposition of a disturbingly
inappropriate sentence for count 1 which, in my view, no reasonable court would
have imposed if a proper, judicious evaluation were made of the triad of factors to
be considered when determining a fair and just sente nce.
70. On this basis, I propose that the sentence imposed on the First Appellant for
count 1 be set aside and that he be re -sentenced afresh by this Court.
(iii) Ad the First Appellant only: count 2
71. In the context of this case, the finding by the trial magistrate that substantial and
compelling circumstances exist for the First Appellant meriting a deviation from
6 Record: page 244 (line 14).
the prescribed minimum sentence is a material misdirection that cannot remain
intact. The legal and factual basis for my view appears below whe n I deal with
the re -sentencing of the First Appellant on count 2.
72. The trial magistrate found there to be substantial and compelling circumstances
meriting a deviation from the minimum mandated sentence for count 2. Based on
this finding, the First Appel lant was entitled to, but did not receive, a sentence
less than the 15 -year prescribed minimum.
73. The pronouncement by the trial magistrate of the 15 -year sentence is an
irregularity to a significant degree because ‘ a different sentence [to that
mandated by law] must be imposed if the court is satisfied that substantial and
compelling circumstances exist which “justify” … it’ ( S v Malgas supra para 14).
74. For the reasons already discussed above in relation to the first issue, the fact that
the trial magistrate recorded a 12 -year sentence on the front page of the J15
form for count 2 does not cure the irregularity, nor does it cure her misdirection.
Indeed, I find that it compounds the severity thereof. This is because there is a
material inconsistency between the 12-year sentence recorded on the front of the
J15 form and th e 15 -year sentence announced to the First Appellant while he
was in the dock at the ti me of being sentenc ed.
75. The two sentences apparent from different parts of the record in relation to count
2 are entirely incompatible with one another. This fact on its own vitiates the
sentence for count 2 . Both the sentence and the sentencing process is tainted
with irregularity leading to a failure of justice . As a result, I propose to set aside
the sentence and re -sentence the First Appellant afresh on count 2 .
76. It is common cause that the discrepancy between the sentence announced in
open court on co unt 2 and that recorded on the J15 form was brought to the trial
magistrate’s attention during the First Appellant’s failed bid for leave to appeal
served before her on 29 November 2023. Despite this, the magistrate decided
not to correct the situation, no r refer the matter for review. This failure on the
magistrate’s part is inexplicable and is a further misdirection which justifies
intervention in the manner which I propose in the preceding paragraph.
77. It is not open to this Court to resolve the problem b y interpreting the transcribed
judgment with a view to determine which sentence the trial magistrate truly
intended to impose (viz, the 15 years announced in court, or the 12 years written
on the J15). This is not a question of construction – it is one of misdirection.
(iv) Ad the Second Appellant only: count 1
78. After considering the sentence imposed on the Second Appellant in relation to
count 1 and the factors which the trial court took into account in the determination
thereof, I find that the re is merit in Mr Calitz’s argument that the trial magistrate
misdirected herself by underplaying the Second Appellant’s personal
circumstances.
79. I am satisfied that t his misdirection contributed significantly to the imposition of a
15-year imprisonment sentence which does not bear the hallmarks of a healthy
blend between the well -rehearsed triad of factors listed in S v Zinn 1969 (2) SA
537 (A). Therefore, the sentence imposed for count 1 in relation to the Se cond
Appellant ought to be set aside. I propose that it be so ordered.
(v) Ad the Second Appellant only: count 2
80. When sentencing the Second Appellant , the trial magistrate informed him that
she could not find substantial and compelling circumstances. However, for
reasons unexplained in the record, she imposed ten years direct imprisonment
(as opposed to at least the mandatory 15-year minimum sentence).
81. The relev ant part of the record (at page 246 lines 16 -21) on sentence reads:
‘Unlike Mr Temmies … [indistinct] … I could not find any substantial or
compelling circumstances to deviate from the prescribed minimum sentence in
your case with regards to count one I make the following order you are
sentenced to 15 years imprisonment with regards to count 2 you are sentenced
to 10 years imprisonment. ’ (my emphasis)
82. It was for this reason that the written communication refer red to in paragraph 5
above was sent to the Second Appellant’s Counsel prior to the appeal hearing.
83. The deviation from the minimum sentence of 15 years is irregular . That sentence
flies in the face of the magistrate’s express finding that she did not find
substantial and compelling circumstances which merited deviating from the
minimum 15 -year sentence prescribed by law. In these circumstances, I would
propose that an order setting aside the 10 -year sentence be granted.
84. The trial m agistrate’s deviation fr om the prescribed minimum sentence does not
pass muster of the settled test enunciated in S v Malgas supra para 25 (and
approved in S v Dodo 2001 (1) SACR 594 (CC) ), which test was aptly described
by Navsa JA as being ‘enduring and uncomplicated’.7
85. In her heads of argument, Ms C Monis submitted that the imposition of the 10 -
year sentence is an exercise of the trial m agistrate’s ‘inherent jurisdiction ’ and
ought not to be interfered with on appeal . At the hearing, Ms Monis did not persist
with her argument, correctly so. Her submission on this score is untenable as a
matter of law and is rejected.
7 DPP KZN v Ngcobo 2009 (2) SACR 361 (SCA) para 12 (cited with approval in S v Matyityi 2011
(1) SACR 40 (SCA) para 11) .
86. Regional courts are part of the magistracy. All magistrates’ courts are creations
of statute. Therefore, all magistrates are imbued with only those powers granted
unto them by an empowering statute passed by a competent legislative body.
Unlike judges, magistrates lack any inherent powers at common law. See CC
(Nee O) v DGC 2024 (3) SA 109 (WCC) p ara 17.
87. Accord ingly, the trial court was bound by law to impose the mandatory minimum
15-year sentence on the Second Appellant, unless it found substantial and
compelling circumstances within the meaning of that expression. It did not.
Therefore, its failure to impose t he 15 -year minimum sentence on the Second
Appellant on count 2 is a material misdirection obliging this Court to intervene by
setting aside the 10 -year sentence. I propose an order to this effect.
THE THIRD ISSUE: SETENCING THE APPELLANTS AFRESH
88. At the hearing, Mr Calitz and Ms Monis were in agreement that if this Court finds
a misdirection of the kind which vitiates the sentences imposed on the appellants
or either of them for counts 1 and/or 2, then if this Court sets aside the relevant
sentences, then it ought to re -sentence the appellants afresh without remitting
the matter back to the trial court. As a result, they argued the appeal on this
basis.
89. Consequent on my proposed setting aside of the sentences imposed on the
appellants for counts 1 and 2 respectively, and in the light of the common cause
position referred to in the preceding paragraph, it is incumbent on this Court to
consider the question of a just and appropriate sentence afresh. To this end,
some first principles are recited upfront.
Basic sentencing guidelin es
90. S v Zinn supra remains the locus classicus for the guidelines to be applied at the
sentencing phase of a criminal proceeding. The punishment imposed must fit the
crime and the criminal , and it must be fair to the broader society.
91. The Zinn trifecta of traditional factors apply irrespective whether the sentencing
relates to an offence for which there is a minimum mandated sentence , or not .
See S v Malgas supra para 25 (approved in S v Dodo supra para 40).
92. Thus, when determining sentence, this C ourt is enjoined to focus on inter alia: (i)
the crime: its nature, seriousness, and prevalence; (ii) the offender: his personal
circumstances, and prospects of rehabilitation; and (iii) the interests of society.
These considera tions are to be carefully calibrated to ensure that none is over -
emphasised, and none is under -emphasised. Each consideration must be given
its due weight to arrive at a well-balanced, just sentence.
93. Dispensing justice through sentencing under the aegis o f the CMAA, read with
the CPA and CLAA, demands the promotion of the ideals of restorative justice
(not retribution). Age-old principles of punishment have been jettisoned by our
Constitution and its values favouring a more human -centric approach to
senten cing infused with modern notions of justice and fairness.
94. As a result, when determining a fair a nd just sentence , this Court must moderate
its evaluation with a healthy mix of, on the one hand, mercy and compassion,
and, on the other, judicious consideration of the appellants’ respective personal
circumstances and potential for rehabilitation. This has appropriately been
described as “an awesome responsibility” vested in cour ts of law ( S v Banda and
others 1991 (2) SA 352 (BG) at 353C).
95. It is trite that there is no magic or scientific formula for determining with surgical
precision the length of imprisonment that would, in any case, pass the litmus test
for a fair and just sentence. The circumstances related to every accused person --
must b e considered separately to ensure that an appropriate individualised
sentence is determined.
(a) Consideration of t he crime and broader societal interests
96. At the onset, I consider the crimes involved and fairness to the interests of
society. In this context , the legislature’s objectives under the CMAA are relevant.
The sentences to be imposed should, as far as is reasonably possible, further the
attainment of those aims and not undermine them – ie, to protect essential
infrastructure for the benefit of commu nities and society at large.
97. Counts 1 and 2 of the indictment comprise serious offences. Both are contained
in the CMAA. Ms Monis argued, correctly so in my view, that a sentencing court
cannot overlook the fact that these statutory offences are, by desig n, legislative
responses to a ‘scourge ’ in our society, namely, the tampering with, damaging,
destroying and theft of essential infrastructure which play a critical role in the
proper functioning of our society for public benefit .
98. For this reason, so Ms Monis argued, criminal conduct of this nature is singled
out for special attention in the CMAA. I agree. Although the periods envisaged by
the statutory provisions differ, imprisonment is foreshadowed as an appropriate
punishment. This shows the legislature’s serious intent and society’s attitude
towards the crimes in question.
99. To achieve the legislative aim in the furtherance of societal interests, a relatively
high minimum sentence is prescribed for theft of ferrous and non -ferrous metals
forming part of essential infrastructure (count 2), and an even higher maximum
prison sentence is imposed for tampering, damaging, or destroying essential
infrastructure providing a basic service to the public (count 1).
100. When sentencing the appell ants for these crimes, I am mindful of the serious
effects flowing from their actions, and the public’s need for courts to deter these
crimes through, inter alia , the imposition of stiff prison sentences. Too light a
sentence would undermine the public int erest and the achievement of the
legislature’s aims to protect essential infrastructure for public benefit. However, a
shockingly inappropriate sentence would likely, as discussed elsewhere above in
this judgment, undermine the deterrent effect of a crimin al’s sentence.
101. The State proved that the appellants’ actions in casu prejudiced not only Eskom,
as owner of the stolen copper cables, but also the broader business and
residential community in the Devon Valley of Stellenbosch.
102. The oral evidence of Mr Ru aan Engelbrecht, duly supported by Exhibit B, shows
that it cost Eskom no less than R80 316,01 to repair the damage to essential
infrastructure caused by the appellants’ tampering and theft of copper cabling
worth about R41 866. In addition, Mr Engelbrecht ’s evidence taken with his
statement in Exhibit C shows that Eskom incurs a recurring financial expense to
employ him and other private investigators as part of it’s on -going, much -needed
operational plan to prevent, combat, and investigate widespread copp er cabling
theft perpetrated by criminals (such as, the appellants).
103. Logic and common -sense dictates that all this has a knock -on effect for the
general public, namely, higher electricity prices and, as the facts of this case
shows, Eskom’s inability, fr om time to time, to deliver an essential service to
members of the public, namely, the provision of electricity. All this is important as
part of the adverse financial and societal impact considerations arising from the
commission of crimes of the nature w ith which the appellants were convicted.
This cannot be ignored at the time of sentencing.
104. When considering an appropriate sentence in cases involving either tampering,
damaging, destroying, and/or theft of essential infrastructure, it is incumbent on
courts to look beyond the traditional narrow interests of the directly affected
complainant (su ch as, Eskom in casu).
105. It is necessary to take cognisance of the broader socio -economic impact of an
accused’s conduct, and of the fact that the victims of the crime may comprise a
wider array of persons. A failure to do so may, in appropriate cases, qualify as a
misdirection in sentencing. This approach to sentencing aligns with that
advanced in the instructive dictum originating in S v Matyityi supra para 16:
‘An enlightened and just penal policy requires consideration of a broad range of
sentencing options from which an appro priate option can be selected that best
fits the unique circumstances of the case before court. To that should be added,
it also needs to be victim -centred. ’ (my emphasis)
106. To this end, the following testimony by Mr Ruaan Engelbrecht about the impact of
the appellants’ actions on the other affected victims is significant:8
‘Yes, all the properties from where the links were pulled on the line to switch the
line off. All properties including a hotel, a winery, a private residence, all were
without power unt il the line was fixed which was approximately two days later.
The replacement value on just the cabling according to all the lists that is with
Eskom is R47 000,00. ’
107. Mr Denver Marlin Pedro also provides useful testimony about the impact of the
power outa ge on the surrounding business and residential communities:9
‘The cable that was stolen forms part of Eskom’s essential infrastructure and it is
used to distribute electricity from one place to another. This specific line supplied
the farms as well as the Devon Valley Golf Estate which include the hotel and the
8 Record: page 53 line s 5 - 11.
9 Record: page 72 line s 5 – 20.
restaurant at the farm side. … The cables were cut … on a Friday night. I went
out the Saturday morning. I was called out. And the electricity was only restored
to those areas on the Tuesday due to the fact that over weekends we only work
on a skeleton staff … Obviously people are going to be without electricity for the
duration of the repairs because we could not feed from another point. … The
farmers and the farm workers especially, like I said, it basically created an
opportunity for criminals as well due to the fact that it is dark after hours. ’
108. Mr D.M. Pedro was not cross -examined. Hence, his afore -quoted evidence
stands unchallenged. Although Mr R. Engelbrecht was cross -examined, his
afore -quoted testimony was undisputed and remains intact.
109. The evidence established that the appellants (togethe r with four others who ran
away when they were confronted)10 used bolt cutters to remove 600 metres of
copper cabling from Eskom’s functional power line infrastructure that provides
electricity to parts of the Devon Valley in Stellenbosch. They stole th e cabling ,
weighing about 260 kgs, by placing it onto the back of a bakkie and then riding
away with it . Their actions caused a severe power outage which affected the
business and neighbouring residential community for a whole weekend .
110. The appellants’ condu ct left a community in darkness. As testified by Mr Pedro,
this placed farmers and farm workers at risk – they were vulnerable to attack by
criminals. This impact on community members is an aggravating factor.
111. In S v Matyityi supra para 16, it was held:
‘In South Africa victim empowerment is based on restorative justice. Restorative
justice seeks to emphasise that a crime is more than the breaking of the law or
offending against the state – it is an injury or wrong done to another person. ...
As in any true participatory democracy its underlying philosophy is to give
10 Record: page 87 lines 13 - 18.
meaningful content to the rights of all citizens, particularly victims of sexual
abuse, by reaffirming one of our founding democratic values namely human
dignity. It enables us as well to vi ndicate our collective sense of humanity and
humanness. ’
112. As a matter of principle, all victims of crime matter. In this case, the dignity of all
the affected victims of the appellants’ crimes (such as, farmers and farmworkers)
are entitled to no less cons ideration for sentencing purposes. Mr Calitz was
constrained to concede that the appellants’ crimes to some degree adversely
impacted the Devon Valley business and residential community, although he
argued that the full extent and nature of that impact is unknown.
113. While Mr Calitz’s latter point is well made, there can be no doubt that the power
failure resulting from the appellants’ actions directly rendered to residents and
visitors in the affected Devon Valley area being vulnerable to attack in the dark
and some parts of the community were unable to enjoy a dignified living for an
entire weekend by not having access to a supply of electricity.
114. As a result, the affected victims of the appellants’ crimes were unable, inter alia,
to cook hot food; to boil water; to frost items in a freezer or to keep them cold in a
fridge; or to operate necessary home appliances and/or tools. This is the
pernicious effect of what the appellants did - this justifies their prosecutions.
115. Moreover, it cannot be overlooked t hat access to e lectricity is pivotal for the
fulfilment of the Constitution’s promise of a better quality, dignified life for its
beneficiaries. Eskom is the parastatal tasked with this important responsibility.
116. Our courts infer the existence of a constit utional right to electricity by drawing on
a cluster of rights entrenched in the Bill of Rights including, but not limited to, the
right to human dignity in section 10 thereof. See F Dube & CG Moyo “The right to
electricity in South Africa” 2021 (24) Potch efstroom Electronic Law Journal at
page 9 .
117. This right in the hands of the affected Devon Valley residents and other persons
in that community on the weekend in question was violated by the appellants’
actions. This is a serious aggravating factor for sentencing purposes.
118. Accordingly, I am satisfi ed that a sentence of direct imprisonment for both
appellants is warranted on counts 1 and 2. In the circumstances, I propose that
an order to this effect be granted.
119. The question now arising is the following : for how long should each appellant be
impris oned ? I now turn to deal with this issue.
(b) Consideration of the First Appellant’s personal circumstances
120. First Appellant’s personal circumstances are: he is 39 years old, unmarried, with
three children (ages 16, 6 and 4 years), all of whom reside in Grabouw. He is a
self-employed mechanic and was so employed for about 11 years when the
offences were committed. He earned an income of about R4 000 pm. His highest
educational qualification is matric. He is a repeat offender, having one relevant
previous conviction in 2016 for theft. In 2020, he was convicted twice for offences
under the Drugs and Drug Trafficking Act 140 of 1992, although these drug
relate d offences do not serve as aggravating factors in this case.
121. I consider the First Appellant’s age to be a mitigating factor. He is a mature adult
at aged 39 years. As such, his age does not diminish his moral blameworthiness.
However, as a middle -aged ma n, this age suggests to me that his prospects of
rehabilitation during incarceration are good. This shows potential that, on release,
he may not pose a danger to repeat his crime.
122. Another mitigating factor that ought to be factored into the equation when
deciding on the length of his incarceration is that the First Appellant has two
young children (ages 4 and 6 respectively), and a child -teen aged 16, all of
whose best interests should not be overlooked. The period of imprisonment
ought, as far as is reas onably possible, to allow these children to still enjoy some
relationship with their father post his incarceration (and vice versa). In my view, a
10-year period of imprisonment under s 276(1)(b) of the CPA read with s 3(1)(a)
of the CMAA would still enabl e this to occur.
123. A further mitigating factor is that the First Appellant was, at the time of his
sentencing in the court a quo, an awaiting trial prisoner for about 18 months. See
S v M 2007 (2) SACR 60 (W) para 113.
124. An aggravating factor is the First App ellant’s lack of remorse for his actions.11 He
pleaded not guilty, as is his right. See S v Dzukuda and others; S v Tshilo 2000
(4) SA 1078 (CC) para 40. However, he and his co -accused were caught red -
handed and had no real defence. Despite this, they proc eeded to waste the trial
court’s time and valuable judicial resources by causing a nine -day trial to be run
at taxpayers’ expense until its completion at sentencing.
125. Mr Calitz argued that another mitigating factor is that the stolen copper cables
were recovered. This fact, so he argued, reduces the financial loss suffered by
Eskom. I endorse the view expressed by Ms Monis who argued that the
appellants ought not to benefit from the recovery of the stolen copper cables
11 The concept of remorse and how to evaluate if an accused is remorseful has been explained as
follows: ‘ Many accused persons might well regret their conduct but that does not without more
translate to genuine remorse. Remorse is a gnawing pain of conscience for the pl ight of another.
Thus genuine contrition can only come from an appreciation and acknowledgement of the extent
of one’s error. Whether the offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught is a factua l question. It is to the surrounding actions of
the accused rather than what he says in court that one should rather look. In order for the
remorse to be a valid consideration, the penitence must be sincere and the accused must take
the court fully into hi s or her confidence.’ (S v Matyityi supra para 13 )
because there is no evidence that t hey can be re -used by Eskom, nor that they
have any monetary value for Eskom.
126. Ms Monis argued further, with merit, that the appellants did not surrender the
copper cables of their own volition. They were caught red -handed. In other
words, the stolen coppe r cables were recovered through good investigative work
by Mr Ruaan Engelbrecht and his team of investigators, rather than by reason of
any good conduct on the part of the appellants, or either of them. Thus, so Ms
Monis argued, this ought to be viewed as an aggravating factor.
127. Having regard to all the foregoing, I conclude that a 10 -year period of
imprisonment ought to be imposed on count 1 for the First Appellant. This
duration is mixed with a healthy dosage of mercy and compassion, when due
consid eration is given to the maximum sentence allowed by law , as well as the
degree of aggravating and mitigating considerations highlighted above.
(c) Consideration of the Second Appellant’s personal circumstances
128. The Second Appellant’s personal circumstances ar e, in the main, substantially
similar to that of the First Appellant, except he has no prior conviction. This latter
fact accounts, albeit in part only, for the different period of imprisonment imposed
on him in relation to count 1.
129. Second Appellant’s Cou nsel emphasised the following personal circumstances:
Second Appellant is 38 years old, unmarried, with three children (ages 1, 7, and
15 years). He is a seasonal farmworker in Grabouw who, when he worked,
earned about R3 000 pm.
130. The Second Appellant is a first offender and a middle -aged man. As with the First
Appellant, I similarly hold the view that the Second Appellant’s age is a mitigating
factor. His prospects of rehabilitation during incarceration appear to be good.
131. As with the First Appellant, another mitigating factor when fixing the period of
incarceration is the best interests of the Second Appellant’s children and the
promotion of an opportunity to maintain and build a parent -child bond post -
incarceration. To impose a p rison sentence of such length that any prospect of
nurturing such a bond in the future would be impossible, is in my view a sentence
that is disproportionate to the crimes in the context of this case.
132. As with the First Appellant, another mitigating factor is that at the time of his
sentencing, the Second Appellant had been an awaiting trial prisoner for about
18 months.
133. As with the First Appellant, an aggravating factor is the lack of remorse and the
waste of valuable court time and judici al resources on a nine -day trial.
134. In the light of all these relevant considerations, I propose an 8-year period of
imprisonment under s 276(1)(b) of the CPA read with s 3(1)(a) of the CMAA.
Count 2: prescribed minimum sentence - does substantial and com pelling
circumstances exist for deviation from the minimum sentence?
135. On the issue of imposing minimum sentences, the SCA emphasised the following
in S v Matyityi supra para 23 :
‘Our courts derive their power from the Constitution and like other arms of state
owe their fealty to it. Our constitutional order can hardly survive if courts fail to
properly patrol the boundaries of their own power by showing due deference to
the legitimate domains of power of the other arms of state. Here parliament has
spoken . It has ordained minimum sentences for certain specified offences.
Courts are obliged to impose those sentences unless there are truly convincing
reasons for departing from them .’
136. Accordingly, I must yield to the sentencing regime in the CMAA by imposing on
each appellant at least the minimum prison sentence of 15 years for count 2,
unless I find substantial and compelling circumstances for one or both of them.
137. It goes without say ing that when sentencing the appellants on count 2, I must
bring an unbiased, impartial, independent mind to bear on this issue.
138. I am not bound by the trial magistrate’s decision in which she found substantial
and compelling circumstances in relation to the First Appellant, and not so in
relation to the Second Appellant. Nor should I be influenced by either of those
decisions. I mus t consider the issue at hand de novo through my own lens.
139. For purposes of the charge in count 2, both appellants are first offenders. As
such, the statutorily specified sentence of at least 15 years for first offenders
applies. It is now settled law that a minimum prescribed sentence must “not be
departed from lightly and for flimsy reasons …, and marginal differences in
personal circumstances or degrees of participation between co -offenders are to
be excluded” from judicial consideration. See S v Mal gas supra para 25.
140. In the trial court and on appeal, the appellant’s Counsel relied on their personal
circumstances sketched above as the basis for his contention that substantial
and compelling circumstances exist for each and that a deviation from the
mandatory, statutorily ordained sentence is merited. I disagree.
141. The personal circumstances of both appellants do not, in my view, qualify as
weighty justification for imposing a period of imprisonment less than the minimum
sentence prescribed by law. To do so would be unjust and incongruent with the
legal principles that have developed over time in authoritative jurisprudence
emanating from both the SCA and our apex court.
142. To this end, I rely on the oft -quoted dictum i n S v Vilakazi 2009 (1) SACR 552
(SCA) para 58 :
“In cases of serious crimes, the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it becomes clear
that the crime is deserving of a substantial period of imprisonment the question of
whether the accused is married or single, whether he has two children or three,
whether he is employed are in themselves largely immaterial to what that period
should be and those seem to me to be what the kind of ‘flimsy’ grounds that
Malgas said should be avoided. ”
143. Therefore, I find that the imposition of the prescribed minimum sentence of 15
years in relation to count 2 would be a just sentence in relation to both
appellants. I propose that it be so ordered.
144. Finally, the trial court’s declaration, in accordance with s 103 of the Firearms
Control Act 60 of 2000, that the appellants are both unfit to possess a firearm
cannot be faulted. Probably for that reason, the appellants did not persist with
their challeng e against that decision at the hearing of this appeal.
ORDER OF COURT :
145. In the result, I would make the following orders:
(a) Condonation is granted for the late filing of the respondent’s heads of
argument.
(b) The appeal against the court a quo’s sentence o f the First Appellant on count
1 and count 2 is upheld. The court a quo’s order on sentencing for both
counts is set aside and is substituted with the following in its stead:
‘(i) On count 1, accused no. 1 is sentenced to 10 years direct imprisonment;
(ii) On count 2, accused no. 1 is sentenced to 15 years direct imprisonment;
(iii) The sentences for count 1 and count 2 shall run concurrently.’
(c) The appeal against the court a quo’s sentence of the Second Appellant on
count 1 and count 2 is upheld. The court a quo’s order on sentencing for both
counts is set aside and is substituted with the following in its stead:
‘(i) On count 1, accused no. 2 is sentenced to 8 years direct imprisonment;
(ii) On count 2, accused no. 2 is sentenced to 15 years direct imprisonment;
(iii) The sentences for count 1 and count 2 shall run concurrently. ’
and
(d) The appeal against the court a quo’s declaration that the First Appellant and
Second Appellant respectively are unfit to possess a firearm is dismissed.
_____________________
FAREED MOOSA
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_____________________
ROSHENI ALLIE
JUDGE OF THE HIGH COURT
Appearances :
For appellants: M Calitz
Instructed by: Cape Town Justice Centre
For respondent: C Monis
Instructed by: Office of the Director of Public Prosecutions, Cape Town.