IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Appeal case number: A 104/2020
Regional Court case number : MSH 174/16
In the matter between:
SITHEMBILE GIDI Appellant
and
THE STATE Respondent
JUDGMENT DELIVERED ON 29 MAY 2025
VAN ZYL AJ :
Introductio n
1. This is an appeal against the appellant’s conviction and sentence on two
counts , arising from a decision of the Mossel Bay Regional Court, held at
George. The appellant was one of two accused before the regional court.
2. The appellant was arraigned on the following charges:
2.1. one count of robbery with aggravating circumstances as defined in
section 1 of the Criminal Procedure Act 51 of 1977 (“the CPA”), rea d
with the provisions of section 51(2) of the Criminal Law Amendment Act
105 of 1997 (“the CLAA”), in that he had unlawfully and intentionally
robbed the complainants1 whilst threatening them with a firearm; and
2.2. one count of the contravention of section 3 of the Firearms Control Act
60 of 2000 (“the FCA”), namely the unlawful possession of a firearm
(namely a 7.65 caliber CZ model 27 a semi -automatic pistol) without
being the holder of a licence, permit , or authorisation issued in terms of
the FCA.
3. Prior to the leading of evidence and at the outset of the hearing the appellant
was warned that the provisions of section 51(2) read with Schedule 2 Part 2 of
the C LAA would apply should he be found guilty on either of the charges.
4. The appellant was legally r epresented throughout the trial, and pleaded not
guilty to both counts. On 13 December 2017, he was convicted on both
counts, and sentenced to 15 years’ imprisonment in respect of each count . It
was ordered that the sentences were to run concurrently.
5. On 16 January 2018, the appellant and his co -accused successfully applied
for leave to appeal against their conviction s and sentence s. There was a
substantial delay in obtaining the record in the regional court so as to prepare
the record on appeal. It seems that there were problems with the regional
court’s main server, which complicated the transcript of the recorded
evidence. T he appeal of the appellant’s co -accused was finalized in 2020, but
the appellant’s appeal was delayed because of an incomplete record. The
situation was eventually remedied in 2024 – it is unfortunate indeed that the
appellant has had to wait seven years before the hearing of his appeal.
1 Only on e of the complainants, Mr Kawanula, gave evidence at the trial. The other
complainant could not be located .
6. It appears from the record th at the appellant has been, and remains, in
custody.
The grounds of appeal
7. The appellant’s defence at the trial was effectively a bare denial – he testified
that he was not near the scene of the crime at the material time, and that he
had no knowledge of the presence of the firearm and stolen goods found in
the house where the police had tracked him to. The appellant’s grounds of
appeal are equally generic :
7.1. that the State failed to prove its case beyond a reasonable doubt;
7.2. that the regional court failed correctly to evaluate the evidence
presented by the State, considering contradictions presented in the
State's case;
7.3. that the regional court did not assess the complainant ’s (Mr
Kawanula 's) evidence with the necessary degree of caution , in that
such evidence was considered sufficient to prove the appellant's guilt
beyond reasonable doubt in respect of the charge of robbery with
aggravating circumstances charge;
7.4. that the regional court was wrong in finding that the appellant had
knowledge of the firearm, that he was in possession of the firearm, and
had the intention to possess the firearm , and in finding that the
evidence of the eyewitnesses was sufficient to prove such knowledge
and poss ession of the firearm; and
7.5. that the regional court erred by rejecting the appellant’s version, and in
concluding that his version was not reasonably possibly true.
8. Is there merit in these contentions ? I turn to a discussion of the facts in the
context of the relevant principles.
The convictions
9. It is trite that a court of appeal’s powers to interfere with the findings of a trial
court are limited to cases where there was a material misdirection from the
trial court on findings of fact, and that the recorded evidence shows such
finding s to be clearly wrong. The reason for this is obvious: the trial court has
the advantage of seeing, hearing , and appraising witnesses. A court of appeal
would therefore only interfere with the trial court's evaluation o f oral evidence
in exceptional circumstances .2
10. The State called six witnesses in support of their case against the appellant. I
refer briefly to their evidence.
11. Mr Kawanul a, one of the complainants, worked at the Jabulani shop in Mossel
Bay with Mr Archiso, the other complainant. He knew the appellant and his co -
accused : he knew the co -accused ’s name and where he reside d, but only
knew the appellant by face. On the day of the incident, f our men came into
the shop, including the appellant and his co -accused . When the c o-accused
went outside again , the appellant took out a firearm and pointed it at Mr
Kawanula and Mr Archiso , demanding money . They knelt down. The appellant
took various items, which h e placed in a black backpack. The appellant had
nothing covering his head, and there was enough time for Mr Kawanula to
recognize him. The police were contacted and , after having arrested them,
brought Mr Kawanula to the appellant and his co-accused for identification.
12. Constable Shawn Kiewet was on duty on the day in question. I t was evening
when he received a compl aint of a business robbery. He was the first to arrive
on the scene . He w ent to the co -accused ’s residence and arrested him, and
then proceeded to the address of a shack, provided by the co -accused, to look
for the appellant . There he a rrested the appellant and a woman. A firearm
was found under the bed in the shack, as well as a backpack containing some
2 S v Monyane and others 2008 (1) SACR 543 (SCA) para 15.
of the stole n items , including airtime vouchers and cigarettes .
13. Constable Joseph Oosthuizen responded to the report of the robbery and
went first to the co-accused house, because he knew the co-accused. He and
his colleagues then went to the shack where they found a male and female
seated on the bed. When they searched the premises, they found a firearm .
The appellant denied any knowledge thereof.
14. Sergeant Donovan Geswindt, knew both the a ppellant and the co-accused.
He was not involved in their arrest, but he took the warning statements. He
informed the appellant of the co-accused ’s version, whereupon the appellant
replied that he kn ew nothing of a firearm as he had come out of prison the
previous day .
15. Ms Juliana Stuurman knew the co-accused and appellant ; the latter was her
exboyfriend. She was at her friend’s place when the appellant came by. He
was intoxicated and had a firea rm in his possession. She left with him and he
bought drugs on the way . This was after nine in the evening. The appellant
had a black and orange Karrimor backpack with him , with several packets of
cigarettes . While walking, the appellant spotted the police and told her to run .
When they reached the shack, the appellant tossed the gun under the bed ,
and the bag on top of the bed . The bed did not have a mattress.
16. Ms Neliswa Daw eti was the co-accused ’s girlfri end. She knew the appellant,
who had just been released from prison. On the evening before the incident
the appellant came to the co -accused’s house and s aid he had a firearm that
he would like to sell. The co -accused had a buyer. The y left to fetch the
firearm where the appellant had previously resided. Upon their return, the
appellant had the firearm, and they planned to sell it the next day. The
appellant returned the next day, and he and the co -accused left around 17:00
with the firearm. At 19 :00, the appellant returned with Ms Stuurman . He had
a karrimor bag , from which he took the firearm. There was an argument
between him and his co -accused.
17. The appellant testified in his own defence , and did not call any witnesses . He
denied all the allegations against him, explaining that he was merely sleeping
at his co -accused ’s shack. He therefore did not know about the firearm and
the backpack, or that those items were inside the shack.
18. The co -accused did not give evidence . At the onset of the case the State
submitted various exhibits to the court on an undisputed basis . These included
a photo identity parade, where both the appellant and his co -accused were
identified by the complainants , and a ballistic s report in respec t of the unlawful
firearm .
19. As regards proof beyond reasonable doubt, in S v Chabalal a3 the Supreme
Court of Appeal (”SCA”) formulated the principles for evaluating the evidence
of the State and the accused in criminal trials as follows:
"The trial court's approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct
approach is to weigh up all the elements which points towards the guilt of the
accused against all those which are indicative of his innocence, taking proper
account of the inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether the
balance weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused's guilt .”
20. In S v Van der Meyden4 the Court held:
“A court does not base its conclusion, whether it be to convict or to acquit, on
only part of the evidence …. The proper test is that the accused is bound to be
convicted if the evidence established his guilt beyond reasonable doubt, and
the logical corolla ry is that he must be acquitted if it is reasonably possible that
he might be innocent. The process of reasoning which is appropriate to the
application of that test in any particular case will depend on the nature of the
3 2003 (1) SACR 134 (SCA) para 15. Emphasis supplied.
4 1999 (1) SACR 447 (W) at 449I-450B. Emphasis supplied.
evidence which the court has befor e it. What must be borne in mind, however,
is that the conclusion which is reached (whether it be to convict or to acquit)
must account for all the evidence. Some of the evidence might be found to be
false; some of it might be found unreliable; some of it might be found to be
possibly false or unreliable; but none may simply be ignored .”
21. Proof beyond reasonable doubt must thus be determined by assessing all
probabilities and improbabilities , not only in the evidence of the state, but also
in the evidence o f the accused :5
"But whilst it is entirely permissible for a court to test an accused's evidence
against the probabilities, it is improper to determine his or her guilt on a
balance of probabilities. The standard of proof remains proof beyond
reasonable doubt, i.e. evidenc e with such a high degree of probability that the
ordinary reasonable man, after mature consideration comes to the conclusion
that there exists no reasonable doubt that an accused has committed the
crime charged . An accused's evidence therefore can be reje cted on the basis
of probabilities only if found to be so improbable that it cannot be reasonably
possibly true ...”
22. There is no obligation on the State to close every avenue of escape for the
accused. The State’s evidence must, however, be of such a degr ee that upon
mature consideration a reasonable person would have no doubt that the
accused committed the offence. In evaluating the evidence, a court must
adopt a holistic approach and consider and evaluate all the evidence as
presented.6 The accused does not bear any onus.7
23. In the present matter, the regional court carefully weighed and considered the
evidence at its disposal, including the contradictions upon which the appellant
relies. When considering contradictory versions or contradicto ry parts of the
oral evidence of witnesses, a holistic evaluation is required . This is what the
5 Monageng v S [2009] 1 All SA 237 (SCA) paras 13 -14. Emphasis supplied.
6 R v Mlambo [1957] 4 All SA 326 (A) at 337.
7 See S v V 2001 (1) SACR 453 (SCA) para 3.
regional court did. It recognized that "..... not every error made by the witness
affects his credibility; in each case the trier of facts has to make an eval uation;
taking into account such matters as the nature of the contradictions, their
number and importance and their bearing on the other parts of the witness's
evidence".8
24. S v Mafaladiso en andere9 is also instructive in this respect . The relevant
extract, translated from the original Afrikaans, reads as follows:
"The judicial approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such inter alia,
between her or his viva voce evidence and previous statement) is in principle
(even if not in degree), identical. Indeed in neither case is the aim to prove
which of the versions is correct, but to satisfy oneself that the witness could
err, either because of defective recollection or by disho nesty. …
The mere fact that there are self -contradictions must be approach with caution
by the court. Firstly, it must be carefully determined whether there is an actual
contradiction and what the precise nature thereof is. ... Secondly , it must be
kept in mind that not every error by a witness and not every contradiction or
deviation affects the credibi lity of a witness. Non -material deviations are not
necessarily relevant …. Thirdly, the contradictory versions must be considered
on a holistic basis. The circumstances under which the versions were made,
the proven reasons for the contradictions, the actua l effect of the
contradictions with regard to the reliability and credibility of the witness, the
question whether the witness was given sufficient opportunity to explain
contradictions - and the quality of the explanations - and the connection
between the contradictions and the rest of the witness' evidence, amongst
other factors, to be taken into consideration and weighed up …. Lastly, there is
the final task of the trial Judge, namely to weigh up the previous statement
against the viva voce evidence, to c onsider all the evidence and to decide
8 S v Oosthuizen 1982 (3) SA 571 (T) at 576G -H. See also S v Bruiners en ‘n ander 1998 (2)
SACR 432 (SE) at 439E -F: “Ondervinding het geleer dat daar byna nooit twee of drie getuies sal wees
wat presies dieselfde getuienis sal aflê met betrekking tot dieselfde voorval of gebeure nie .” [My loose
translation: “ Experience has taught that there would almost never be two or three witnesses who
would give exactly the same evidence in relation to the same incident or even ts”.
9 2003 ( 1) SACR 583 (SCA) at 593 F-594G . Emphasis supplied.
whether it is reliable or not and to decide whether the truth have been told,
despite any shortcomings. "
25. The appellant places heavy reliance on the following contradictions in the
evidence, and criticizes the regiona l court for nevertheless convicting the
appellant:
25.1. Mr Kawanul a was adamant that he had seen the appellant a few days
before the incident despite it being disputed that this was impossible
because the appellant was in custody. Also, in his statements Mr
Kawanul a only mentioned that he knew one of the four men who ha d
entered the shop, which would be the co -accused. In court he testified
that he knew the appellant.
25.2. The police officers testified that the appellant and Ms Stuurman were
sleeping on the bed in the shack. However, Ms Stuurman indicated that
the bed had n o mattress . Ms Stuurman further testified that the
karrimor bag was on the bed, but the police officers indicated it was on
the floor.
25.3. In examination -in-chief Ms Stuurman never mentioned the person
known as Pikes . It was only during cross -examination that she testified
that Pikes was with the appellant when the later fetched her at her
friend’s house.
25.4. Ms Stuurman dispute d going to the co -accused ’s residence despite Ms
Daweti testifying that Ms Stuurman was there with the appellant.
25.5. Ms Stuurman testifi ed that she was afraid of the appellant , yet she went
with him and even ran with him when he saw the police . She testified
that she threw the drugs they had bought away, which is unlikely : if she
was afraid of the appellant she could have informed the po lice about
the drugs .
26. I do not agree with the appellant that these contradictions are material to the
extent that they would affect the credibility of the relevant witness, or taint the
reliability of the evidence against the appellant, viewed holisticall y.
27. Where contradictions exist between Mr Kawanula’s evidence and his
statement previously made to the police , these contradictions are immaterial ,
and sufficient explanation thereof was provided by Mr Kawanula under cross -
examination . It is clear from the transcript of the proceedings that there were
difficulties with the interpretation of his evidence. This was probably the case,
too, at the time when he gave his statement to the police. This did not,
however, affect the inherent q uality of his evidence. He remained consistent.
28. In my view, the regional court gave due regard to the fallibility of identification ,
and sufficiently addressed the manner in which the appellant was identified .
The facts indicate that Mr K awanula was fam iliar with both accused. He ha d
encountered them previously, prior to the day of the incident, and recognized
them. He was adamant in cross -examinatio n that he had not only known the
appellant from the day of the incident, but had seen him previous ly. M r
Kawanula was certain about the identification of the appellant when he
pointed him out to the police . There was no hesitation on his part. He
remained clear and consistent in this respect even under cross -examination.
29. In Abdullah v S ,10 the SCA stated that "when seeing a person who is known to
you, it is not a process of observation that takes place but rather one of
recognition . This is a different cognitive process which plays a vital role in our
everyday social interaction. The time n ecessary to recognize a known face as
opposed to identifying a person for the first time, is very different. It has been
recognized by our courts that where a witness knows the person sought to be
identified, or has seen him frequently, the identification is likely to be
accurate."
31. Thus, where a witness know s a person, questions of identification, of facial
10 [2022] ZASCA 33 (31 March 2022) para 13. Emphasis supplied.
characteristics, and of clothing are of m uch less importance than in cases
where there is no previous acquaintance with the person sought to be
identified. What must be tested is the degree of previous knowledge and the
opportunity for a correct identification, having regard to the circumstances in
which the identification was made.11 The way in which Mr Kawanula
described his encounter with the appellant in the shop during the incident
leaves little room for doubt, let alone reasonable doubt. The appellant was
correctly convicted on the charge of robbery with aggravating circumstances.
30. Mr Kawanula was a single witness in respect of the identification of the
appellant at the scene of the crime. His evidence is, however, corroborated
by the other facts placed before the regional court. In S v Sauls and others12 it
was held that :
“There is no rule of thumb test or formula to apply when i t comes to a
consideration of the credibility of a single witness. The trial judge will weigh his
evidence, will consider its merits and demerits and having done so, will decide
whether it is trustworthy and whether despite the fact that there are
shortcom ings or defects or contradictions in the testimony, he is satisfied that
the truth has been told … It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common sense.”
31. On the evidence as a whole Mr Kawanula’s identification of the appellant as
one of the perpetrators cannot be faulted.
32. In determining whether the appellant possessed the firearm for the purposes
of the second charge, the regional court again considered all of the available
evidence ho listically.
33. The witnesses Ms Stuurman and Ms Daweti both knew the appellant . They
testified , independently, that immediately prior to and on the day of the
robbery , the appellant was in possession of the firearm. Ms Stuurman
11 R v Dladla 1962 (1) SA 307 (A) at 310C -E.
12 1981 (3) SA 172 (A) at 180F -H.
confirms that on the day when the appellant was arrested , the firearm was
found under the bed in the shack where she and the appellant had been
traced to by the police. She had earlier observed the appellant flinging the
firearm under the bed , just prior to the police entering the sha ck. She further
insists she had seen the appellant carrying the firearm in the front of his pants
earlier the day . It was upon arrival of the police at the shack that he took the
firearm from his waist and tossed it under the bed. She had also, prior to that
day, seen the firearm in the appellant’s possession , at the time when they
were living as partners .
34. Constable Ooshuizen , with his colleagues Constable Kiewiet and Sergeant
Geswindt , confirms that the firearm was found in the shack where Ms
Stuurman and the appellant w ere present. Constable Oosthuizen was the one
who had found the firearm under the bed .
35. Ms D aweti, who was the girlfriend of the appellant’s co -accused , testified that
she had heard a discussion between the appellant and his co -accused about
the sale of the firearm to a potential buyer. That same night she saw the
appellant produce the firearm that w as to be sold to a potential buyer from a
plastic sling b ag. She further testified that on the next day she observed the
firearm in a black Karrimor bag in the appellant’s possession .
36. All of t his evidence cannot be skirted over merely because of the presence of
immaterial contradictions. The ballistics report that was handed in confirm ed
that the firearm found in the appellant’s possession was a 7.65 calibe r CZ
model 27 a semi -automatic pistol.
37. The regional court, taking into account the facts before it, correctly concluded
that the appellant at all relevant times had knowledge of the firearm, was in
possession of the firearm , and had the intention to possess the firearm. The
appellant was thus corr ectly convict ed on the charge of contraven ing section 3
the F CA.
Should the sentences be reduced on appeal?
38. The test on appeal in relation to sentence is “ whether the court a quo
misdirected itself by the sentence imposed or if there is a disparity betwe en
the sentence of the trial court and the sentence which the Appellate Court
would have imposed had it been the trial court that it so marked that it can
properly be described as shockingly, startling or disturbingly inappropriate ”.13
39. Sentencing is about achieving the right balance between the crime, the
offender, and the interests of the community .14 A court should, when
determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements to ensure that one element is not
unduly accentuated at the expense of and to the exclusion of the others.15
40. The question is essentially whether, on a consideration of the particular facts
of the case, the sentence imposed is proportionate to the offence, with
reference to the nature of the office, the interests of society , and the
circumstances of the offender.
41. In S v Pillay16 the appellate division (as it then was) held that the word
“misdirection” simply means an error committed by the court in determining or
applying th e facts for assessing the appropriate sentence. As the essential
enquiry on appeal against sentence is not whether the sentence was right or
wrong, but whether the court that imposed 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. The misdirection must be of such a
nature, degree or seriousness that it shows, directly or inferentially, that the
court did not exercise its discretion at all or exer cised it improperly or
unreasonably. Such a misdirection is usually and conveniently termed one
that vitiates the court’s discretion on sentence.
13 S v Van de Venter 2011 (1) SACR 238 (SCA) para 14. See also S v Grobler 2015 (2) SACR
210 (SCA) para 5.
14 S v Zinn 1969 (2) SA 537 (A) at 540G -H.
15 S v Banda 1991 (2) SA 352 (BG) at 355A.
16 1977 (4) SA 531 (A) at 535E -F.
42. In the present matter the prescribed minimum sentence in respect of each of
the charges against the appellant was 15 years in respect of a first offender .17
The appellant contends that the following circumstances, viewed as a whole,
should have been regarded as substantial and compelling:
42.1. The appellant was 3 2 years old at date of the commission of the
offence and 34 years old at the time of sentencing .
42.2. He was in a relation ship, and have a minor son.
42.3. He achieved grade 11 at school .
42.4. The appellant was previously employed on a casual basis earning
about R80 -R100 day, and worked two to three days per week.
42.5. The appellant was i n custody for more than a year.
42.6. He was a first offen der in relation to the offences of which he had been
convicted .
42.7. No violence was us ed in the commission of the offences , and the
complainants were not injured .
42.8. The firearm was d efective .
42.9. Some of the stolen terns were recovered .
43. The appellant’s counsel sensibly did not press these circumstances in
argument. She nevertheless urged this Court to show mercy to the appellant
in recon sidering the sentences.
44. It seems to me that mercy – however wide and undefined its ambit may be in
17 See section 51(2)(a)(i) of the CLAA, read with Schedule 2 Part 2 to the CLAA.
the circumstances – is by itself not a sufficient ground upon which to deviate
from the prescribed sentences. Courts may not lightly depart from the
prescribed minimum sentences:18
''… courts have a duty, despite any personal doubts about efficacy of the
policy or personal aversion to it, to implement those sentences . 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 leg itimate domains of the power of the other arms of the State. Here
Parliament has spoken. It has ordained minimum sentences for specified
offences. Courts are obliged to impose those sentences unless there are truly
convincing reasons for departing from the m. Courts are not free to subvert the
will of the legislature by resort to vague, ill -defined concepts such as 'relative
youthfulness' or other equally vague and ill -founded hypotheses that appear fit
the particular sentencing officer personal notions of f airness . Predictable
outcomes, not outcomes based on the whim of an individual judicial officer, is
foundational to the rule of law, which lies at the heart of our constitutional
order. ”
45. In S v Malgas19 the Supreme Court of Appeal provided guidelines to b e
followed in determining whether substantial and compelling circumstances
exist to justify the departure from the prescribed sentence. The Court stated,
inter alia , that:
45.1. Courts are required to approach the imposition of sentence conscious
that the legi slature has ordained life imprisonment as the sentence that
should ordinarily and in the absence of weighty justification be imposed
for certain crimes.
45.2. Unless there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore required to elicit
18 See S v Matyityi 2011 (1) SACR 40 (SCA) para 23. Emphasis supplied.
19 2001 (1) SACR 469 (SCA).
a severe, standardised , and consistent response from the courts.
45.3. The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sym pathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation, and
marginal differences in personal circumstances or degrees of
participation between co -offenders are to be excluded.
45.4. All factors traditionally taken into account in sentencing continue to play
a role. None is excluded at the outset from consideration in the
sentencing process.
45.5. The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (“substantial and
compelling”) and must be such as would cumulatively justify a
departure from the standardised response that the legislature has
ordained.
46. Substantial and compelling circumstances need not be exceptional in the
sense that they are rare or seldom encountered, nor are they limited to factors
which diminish the moral guilt of the accused. As discussed in S v Malgas ,
the essential issue is whether the sentence imposed is proportional having
regard the triad in S v Zinn .
47. The appellant does not indicate what he regards as an appropriate sentence
in the circumstances. Be that as it may, I do not agree that the regional court
erred in imposing the sentences that it did. The prescribed minimum
sentences themselves already to ok into account that the appellant was a first
offender in relation to the types of offences involved.20 These types of
offences are prevalent in the community, who requires justice to be done.
20 Section 51(2)(i) of the CLAA: “ … a regional court or a High Court shall sentence a person who
has been convicted of a n offence referred to in - (a) Part II of Schedule 2, in the case of - (i) a first
offender , to imprisonment for a period not less than 15 years; …” (emphasis supplied).
There is nothing substantial and compelling in the appellant’s personal
circumstances , or in the circumstances pertaining to the offences. As far as
the firearm is concerned, the regional court took into account that it might
have been defective, but explained why this should not be considered a
mitigatin g factor in his assessment of what an appropriate sentence should
be.
48. The aggravating factors by far overshadow any mitigating factors in the
present case. The appellant has shown no remorse, insisting to this day that
he was far removed from the scene of the crime. He has attempted to put as
much distance between himself and the events of that day as possible, even
implicating his co -accused in respect of possession of the firearm. He
committed these crimes one day after having been released from prison , and
while still on parole . This bodes ill for any realistic prospect of rehabilitation.21
49. The appellant has, in addition, two previous convictions in respect of which
violence was an element, including rape, where he was sentenced to long -
term imprison ment of 10 years imposed in terms of section 51(2) of the CLAA.
50. It follows that the two 15 -year sentence s are not shockingly inappropriate. In
fact, in ordering them to run concurrently in terms of section 280(2)22 of the
CPA, the regional court showed c onsiderable m ercy. In my view, the regional
court cannot be faulted on the sentence s imposed.
Order
51. In the circumstances , I suggest that the appeal be dismissed.
____________________
21 See S v Tsotetsi 2019 (2) SACR 594 (W) para 29, where the court sets out the basic
principles to be considered in the sentencing process , including that “rehabilitation serves as a
purpose of punishment only if there is the potential to achieve it. ”
22 Section 280(2) of the CPA : “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. ”
P. S. VAN ZYL
Acting Judge of the High Court
I agree, and it is so ordered.
____________________
M. FRANCIS
Judge of the High Court
Appearances:
For the appellant : Ms N. Abdurahman, Legal Aid South Africa
For the respondent : Ms A. Hess, Directorate of Public
Prosecutions, Western Cape*