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M.F v S (A176/2024) [2025] ZAFSHC 134 (19 May 2025)

78 Reportability
Criminal Law
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Brief Summary

Criminal Law — Appeal against sentence — Appellant a minor at time of offence — Sentencing without pre-sentence report — Original sentence of 10 years’ imprisonment deemed inappropriate — Appeal upheld and sentence substituted with 2 years’ imprisonment. The appellant, a 16-year-old, pleaded guilty to attempted murder and was sentenced to 10 years’ imprisonment. The appeal focused on the court's failure to consider the appellant's age, personal circumstances, and the absence of a pre-sentence report. The court found the original sentence harsh and inappropriate, leading to the substitution of the sentence with 2 years’ imprisonment, antedated to the original sentencing date.

Comprehensive Summary

Case Note


Case Name: M[…] F[…] v THE STATE

Citation: Case no: A176/2024

Date: Heard on 12 May 2025 and Delivered on 19 May 2025


Reportability


This case is reportable because it involves the sentencing of a minor for a serious offence, where the trial court did not secure a pre-sentence report that could have informed an individualized sentence suitable to the appellant’s personal circumstances. The judgment is significant as it emphasizes the need for judicial discretion in balancing the severity of the offence with the appellant’s age, background, and prospects for rehabilitation.


The appeal raises important issues regarding proportionality in sentencing and the judicial approach to misdirection in the sentencing process. It reinforces the principle that judicial discretion should only be interfered with in cases of material error or misdirection. The case also serves as a cautionary tale regarding the procedures required in sentencing minors, particularly when pre-sentence reports are unavailable.


The outcome of this case, which resulted in a substantial reduction of the sentence from 10 years to 2 years’ imprisonment, underscores the court’s concern for fairness and the appropriate tailoring of punishment to a young offender’s circumstances.


Cases Cited


S v Rabie 1975 (4) 855 (A)

S v Malgas 2001 (1) SACR, 469 (SCA)


Legislation Cited


Criminal Procedure Act 51 of 1977 (including Section 112 and Section 282)

Section 28(2) of the Constitution


Rules of Court Cited


None identified in the judgment.


HEADNOTE


Summary


The appellant, a minor charged with attempted murder, pleaded guilty and was initially sentenced to 10 years’ imprisonment by the Bloemfontein Regional Court. The sentencing was imposed without a complete pre-sentence report due to administrative delays and the appellant’s failure to attend scheduled appointments with a social worker. On appeal, the High Court found that the sentence was not only excessive given his age and personal circumstances but also procedurally flawed due to the absence of key mitigating evidence.


The court scrutinized the trial process, particularly highlighting the lack of individualized assessment resulting from the missed pre-sentence report. The appellant’s youth, poor educational background, and status as a first offender were given significant weight in the appellate review. The judgment reflects a broader judicial commitment to ensuring that sentencing in youth cases is fair and rehabilitative rather than purely punitive.


Ultimately, the High Court set aside the original sentence and substituted it with a sentence of two years’ imprisonment, demonstrating a recalibration of discretion in light of the principles of proportionality and judicial fairness. The decision reflects the court’s insistence on proper procedural adherence when determining sentences for minors.


Key Issues


The legal issues addressed include whether the trial court’s failure to obtain a pre-sentence report resulted in a misdirection that led to an excessively harsh sentence. The court was also required to assess if the sentencing was disproportionate given the appellant’s young age, limited education, and status as a first offender. A further question was whether the appellant’s non-compliance with the social worker’s appointments should justify disregarding his mitigating personal circumstances.


Held


The appeal against the 10-year sentence was upheld. The High Court held that the sentencing process was flawed due to the failure to obtain a pre-sentence report, which was critical in properly assessing the appellant’s mitigating circumstances. Consequently, the original sentence was set aside and replaced with a sentence of two years’ imprisonment, effective from 3 August 2023.


THE FACTS


The appellant, who was 16 years old at the time of the offence, was involved in a physical altercation with a 15-year-old complainant during which he stabbed the complainant on multiple occasions. After committing the offence, the appellant fled the scene but was subsequently apprehended. His plea of guilty was recorded on 12 May 2023. The case was further complicated by the failure of the social worker to complete the pre-sentence report due to difficulties in contacting the appellant and his mother.


The sequence of events included multiple attempts by the social worker to secure a meeting with the appellant and his mother, which ultimately proved unsuccessful on the scheduled dates. Despite these efforts, the court proceeded with sentencing in the absence of the report, a decision that later became central to the appeal. The facts also note that the appellant had a minimal formal education and was required to work odd jobs after the incident, showing a clear lack of rehabilitation prospects under the original sentence.


The factual matrix of the case illustrates both procedural shortcomings and substantive concerns regarding the imposition of a lengthy sentence on a minor without a full appreciation of his personal background and mitigating circumstances.


THE ISSUES


The primary legal question was whether the trial court had erred in sentencing the minor to 10 years’ imprisonment without the benefit of a complete pre-sentence report. The court needed to determine if the absence of a comprehensive assessment of the appellant’s personal circumstances, including his age, educational background, and the fact that he was a first offender, amounted to a judicial misdirection or error in law.


Another issue was whether the trial court’s determination that the appellant’s failure to engage with the social worker and testify in mitigation justified a harsher sentence. The case also raised broader questions about the appropriate balance between the interests of justice and the need for individualized, rehabilitative sentencing in cases involving juvenile offenders.


These issues required the appellate court to carefully consider the principles of judicial discretion and proportionality in sentencing, especially in contexts where essential mitigating evidence was lacking.


ANALYSIS


The court’s analysis focused on established legal principles regarding discretionary sentencing and the necessity of individualized evaluation, particularly for minors. It emphasized that punishment is primarily within the discretion of the trial court, yet such discretion must be exercised in a manner that is both judicially proper and informed by all relevant evidence. The court criticized the trial judge’s failure to secure the pre-sentence report, which led to a lack of critical mitigating information.


In reviewing the sentences under the guiding principles from S v Rabie and S v Malgas, the court reiterated that an appellate court should only intervene if the discretion of the trial court was misdirected. The analysis underlined that in the absence of material misdirection or irregularity, appellate courts typically do not substitute their preferred sentence for that of the trial court. However, because the pre-sentence report was not obtained, the trial court’s discretion was flawed, and its failure to appropriately individualize the sentence warranted corrective intervention.


The court also noted the negative judicial interpretation of the appellant’s failure to engage with the rehabilitation process. It argued that the delays and administrative frustrations should not have led to an unduly harsh sentence on a young offender, whose mitigating circumstances were insufficiently considered. The analysis culminated in the finding that a sentence of two years was more appropriate and proportionate given the circumstances.


REMEDY


The court remedied the situation by setting aside the 10-year sentence imposed by the lower court. It substituted this sentence with a new sentence of two years’ imprisonment, thereby ensuring that the appellant’s youth and mitigating circumstances were more appropriately reflected in the punishment. The new sentence was antedated to 3 August 2023, aligning the effective date with that of the original sentencing.


This remedial order not only corrected the immediate procedural error but also served as a reminder of the essential role of pre-sentence reports in cases involving minors. It underscored the need for thorough judicial discretion that takes into account both the letter and the spirit of sentencing principles, especially for vulnerable offenders.


The remedy provided by the court sought to balance the interests of justice with the imperative of rehabilitation, ensuring that the sentence imposed was both fair and proportionate under the circumstances of the case.


LEGAL PRINCIPLES


The case reinforces the principle that sentencing, particularly in cases involving minors, must consider the best interests of the child as mandated by section 28(2) of the Constitution. It highlights that the absence of a pre-sentence report can result in a misdirected exercise of judicial discretion. Emphasis is placed on the necessity for individualized sentencing that takes into account the offender’s age, personal circumstances, and potential for rehabilitation.


Furthermore, the judgment reiterates the longstanding judicial standard that appellate intervention in sentencing is appropriate only when there is clear evidence of misdirection or irregularity. The case underscores that the discretion of the trial court must be respected unless it is evident that the judicial process did not adequately account for all mitigating factors. Lastly, the decision affirms that a failure to properly individualize the sentence may result in a disturbingly inappropriate punishment, which is contrary to established legal principles.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

Reportable / Not reportable
Case no: A176/2024

In the matter between

M[…] F[…] Appellant

and
THE STATE Respondent

Coram: Naidoo J et Daniso J
Heard: 12 May 2025
Delivered: 19 May 2025

Summary: Appeal – criminal law – appeal against sentence – appellant a minor when
offence committed – matter finalised without a pre- sentence report – 10 years direct
imprisonment inappropriate – set aside and substituted with two years’ imprisonment –
appeal upheld.

ORDER

1 T he appeal against the sentence in this matter is upheld and the order of the court a
quo is set aside and substituted with the following:

‘The accused is sentenced to two years’ imprisonment’
2 In terms of s 282 of the Criminal Procedure Act 51 of 1977, the sentence of two
years’ imprisonment is antedated to 3 August 2023
2


JUDGMENT

Naidoo J (Daniso J concurring)
[1] The appellant was charged with one count of attempted murder in the Bloemfontein
Regional Court. He pleaded guilty and was sentenced to 10 years’ imprisonment on 3
August 2023. The appellant approaches us with the leave of the High Court, after his petition to the Judge President of this Division was successful. The appeal lies only against his sentence.

[2] The appellant’s grounds of appeal against the sentence are, in essence, that the court
erred in:

a. not taking into account that 10 years’ imprisonment is strikingly inappropriate;
b. not recognising that it induces a sense of shock and is out of proportion to the totality
of the accepted facts in mitigation;
c. not taking account of his age, namely that he was 16 years old at the time of
commission of the offence, and his personal circumstances being an element of rehabilitation;

d. not taking account of the fact that the appellant is a first offender and that he pleaded
guilty on 12 May 2023

e. sentencing the appellant without the benefit of a pre- sentence report, thus ignoring his
personal circumstances which would have informed the sentence imposed on him.
[3] The appellant and complainant (who was15 years old at the time), were involved in a
quarrel that turned physical. According to the appellant’s statement in terms of s 112 of the
Criminal Procedure Act 51 of 1977, in amplification of his plea of guilty, the appellant alleged that he drew a knife that he had in his possession and stabbed the complainant. It
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is common cause that he stabbed the complainant four times. He then fled the scene, but
was apprehended and arrested. After recording his plea of guilty on 12 May 2023, the court a quo remanded the matter for a pre- sentence report by a social worker to 19 June 2023.
On that date the report had not been completed, due to the unavailability of a social worker to deal with the matter. It was then remanded to 3 August 2023.
[4] On the latter date, the prosecutor informed the court that the social worker tried to
make contact with the appellant and his mother twice, on the 19
th and 21st July 2023, but
did not find them at their address. On the third occasion, being 26 July 2023, the social
worker went to the appellant’s house, accompanied by the investigating officer, and found
the appellant and his mother there. An appointment was made for the appellant and his
mother to see the social worker on 28 July 2023. It seems that the social worker did not find them at their house on that agreed day. She drove around the area looking for them, but still could not find them, so she left. The social worker completed her report, concluding that the appellant was not taking the matter seriously, and was wasting government resources which could have been utilized for those really in need of such resources.

[5] The court merely confirmed that the social worker had contacted the legal
representative and that the appellant had heard what the social worker reported on. The
court then pronounced that the social worker took all reasonable steps to secure a meeting
with the appellant, but was not successful in doing so. The court hence directed that the
sentencing of the appellant proceed without the pre- sentence report . The matter was
finalized accordingly with the court imposing a sentence of 10 years’ direct imprisonment
on the appellant.
[6] It is well established in our law that absent a misdirection, irregularity or error in
law, an appeal court will not lightly interfere with sentence.
This trite principle has been
well settled in our law, and was succinctly enunciated 50 years ago in the oft quoted case of S v Rabie 1975 (4) 855 (A) at 857, where Holmes JA said:

‘1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal –
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(a) should be guided by the principle that punishment is "pre-eminently a matter for the
discretion of the trial Court"; and
(b) should be careful not to erode such discretion: hence the further principle that the
sentence should only be altered if the discretion has not been "judicially and properly exercised".
2. The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate.’

This principle was subsequently re- iterated in the much- quoted case of S v Malgas
2001
(1) SACR, 469 (SCA) at 478 para 12, where the court remarked that:

‘. . . 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. . .’.


[7] As alluded to earlier, the appellant was a 16- year old scholar at the time the
offence was committed, and eighteen years old when he pleaded guilty. He was single,
had no children and was a first offender. His highest school qualification was grade 8. The appellant alleged that he did not return to school after the incident, as the investigating officer had told him that returning to school might be construed as threatening to the complainant. He was then obliged to do odd jobs in order to earn a
living.

[8] The court’s robust approach in this matter is evident in the manner in which it
interacted with the appellant and his legal representative. When the attorney submitted
that the appellant had not returned to school because the police advise him against it, the court asked the attorney twice whether she believed that the police would say that, before remarking that the court should not put the attorney ‘in a spot’. The court then
5
asked the appellant if he had heard what the social worker said, without pursuing the
matter further. There is no indication on the record that the court asked either the appellant or his attorney for any explanation or reason for the appellant’s failure. The
attorney attempted to implore the court not to interpret his failure as lack of respect for
the court but was cut short and asked not to testify from the Bar.

[9] The court also appeared to regard negatively the appellant’s failure to testify in
mitigation. The court indicated that it did not believe that the appellant had intended to
plead guilty from the outset, as submitted by his attorney. The court’s remarks at page 25 line 20 to page 26, lines 1- 3 bear this out. I point out that other than the allegation
that the complainant was stabbed four times, there was no evidence on record as to the circumstances under which the injuries were sustained or the seriousness of the injuries. It was the duty of the state to place this evidence before the court in aggravation, especially as the state submitted how serious the offence was and advocated for direct imprisonment as opposed to a suspended sentence or correctional
supervision.

[10] The court was clearly aware of the importance of the pre- sentence report and
articulated that awareness when addressing the appellant about his failure to keep the
appointments with the social worker tasked with preparing the pre- sentence report. It is
also difficult to see how the court concluded that the appellant is a person who did not present a positive prognosis for rehabilitation, when no evidence was presented to the
court in this regard. It is a trite principle that in sentencing a child the c ourt must
consider the best interests of the child as provided for in section 28(2) of the
Constitution. In this matter, it is clear that when arriving at the imposed sentence, the element of individualization was not taken into account due to the absence of the pre-sentencing report. It is understandable that the court felt annoyance and frustration at
the delays in the matter, but the failure to see that the appellant himself was a child,
clearly immature and in need of guidance to rehabilitate himself is , in my view, reason
for this court to intervene. It was expected of the court to obtain a full explanation from both the accused and his mother for their failure to keep their appointments with the social worker in order to enable her to complete the pre- sentence report. A remand one
6
more time to obtain the pre -sentence report, in order to sentence the appellant
appropriately, would, in my view, have been the appropriate course of action. The
failure to obtain a pre- sentence report in this matter is a misdirection and another
reason for this court to intervene. It remains the duty of the presiding officer to ensure that all available facts are properly enquired into in order that the most appropriate sentence can be imposed

[11] It has become a trite principle of law and legal practice that young offenders are
to be treated differently to adults and that detention of a child should be a measure of
last resort, and only for the shortest possible time. Rehabilitation of offenders,
especially youthful offenders has been emphasized. The provisions of the Child Justice
Act 75 of 2008 and the Constitutional imperatives of ensuring that the interests of a child are paramount and that detention of a child should be the last resort were ignored in this matter. Section 71(1) (c)(i) of the Child Justice Act stipulates that a child justice
court may not dispense with a pre- sentence report where it may impose a sentence,
inter alia , of imprisonment. The court a quo in this matter was dealing with a minor, and
ought to have taken all steps to ensure that the pre- sentence report was procured. I am
not satisfied that the court a quo did so in this matter. The sentence of ten years’ imprisonment is, in my view, harsh, inappropriate and induces a sense of shock.

[12] The respondent (the state) candidly conceded this and agreed that the
sentencing the appellant without obtaining a pre- sentence report is a misdirection. Ms
Abrahams, for the appellant, argued that even though her heads of argument indicated
that a sentence of three years should have been imposed, that upon reflection, she submitted that two years’ imprisonment, ante dated to the date of sentencing would be more appropriate. The state agreed with this submission.

[13] In the circumstances, I make the following order:

1 The appeal against the sentence in this matter is upheld and the order of the court a
quo is set aside and substituted with the following:
‘The accused is sentenced to two years’ imprisonment’.
7

2 In terms of s 282 of the Criminal Procedure Act 51 of 1977, the sentence of two
years’ imprisonment is antedated to 3 August 2023


NAIDOO J

I concur.

DANISO J

Appearances

For the Appellant: Adv V Abrahams
Instructed by: Legal Aid South
Africa Bloemfontein
For the Respondent: Adv EB Ontong
Instructed by: Director of Public Prosecutions
Bloemfontein

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