In the matter of: IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable/Not reportable
Appeal case no: A157/2024
Case no: 74/2015
SOLOMON MXOLISI POP Appellant
versus
THE STATE
Coram:
Heard:
Delivered:
Summary: Mbhele AJP, Van Rhyn J et Benade, AJ
22 April 2025
12 May 2025 Respondent
Appeal against sentence -whether appellant's personal
circumstances justify deviation from the prescribed minimum sentence -no
substantial and compelling circumstances found to exist -appeal dismissed .
ORDER
The appeal against the sentence imposed by the Trial Court is dismissed.
JUDGMENT
Benade AJ (Mbhele AJP et Van Rhyn J concurring)
Introduction 2
[1] This appeal, which is with the leave of the Supreme Court of Appeal, is
against a sentence imposed by this Court on 19 January 2016. The appellant was
convicted by Reinders Jon 18 November 2015 on one count of assault with intent to
do grievous bodily harm and one count of murder.
[2] He was, on 19 January 2016, sentenced by Musi JP to three years
imprisonment for the count of assault with intent to do grievous bodily harm and life
imprisonment for the count of murder. The appeal is directed at the sentence
imposed on the count of murder.
[3] The facts on which the appellant was convicted are shortly the following: the
incident happened on the night of 8 November 2014 in a house situated at
Kutlwanong Township, Odendaalsrus, Free State Province. Early on that fateful
evening, people were partying and dancing at the said house when the appellant
arrived carrying a beer bottle and joined people who were celebrating. After a while
the appellant got up and left, returning soon thereafter in company of four male
persons (accused 2 to 5 in the main trial), carrying a beer bottle and a knife. The
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appellant walked up to the deceased who was busy dancing and hit him over the
head with the bottle and it broke. People tried to intervene, but the appellant and his
companions continued with their attack on the deceased. The appellant stabbed him
with a knife, whereafter they left the house. While outside, the appellant remarked to
his companions that the deceased was not dead yet and instructed them to go kill
him. They re-entered the shack and attacked the deceased further.
[4] The evidence was that the appellant and his co-accused were members of a
rival gang and that there were several gangs operating in the township, which
terrorized members of the community.
[5] Section 51 ( 1) of the Criminal Law Amendment Act 105 of 1997 (CLAA)
determines that, notwithstanding any other law, a High Court shall sentence a
person it has convicted of an offence referred to in Part 1 of Schedule 2, to
imprisonment for life. The charge of murder that the accused was convicted of falls
within the purview of the aforementioned provisions of the CLAA.
[6] Section 51 (3) empowers the Court to deviate from the life sentence should the
court decide that there are substantial and compelling circumstances warranting the
imposition of a lesser sentence than life imprisonment.
[7] Advocate J Potgieter, on behalf of the appellant, submitted that the appellant
is a candidate for rehabilitation. He implored us to consider the appellant's youthful
age of 22 years at the time of sentencing and the fact that he was a student of
marketing prior to his arrest, which ought to serve as substantial and compelling
circumstances warranting deviation from the prescribed minimum sentence. He had
a two-year-old child and was in custody for 14 months awaiting trial. However, it
must be borne in mind that the appellant is not a first offender. On 4 September 2014
he was found guilty of the crime of robbery committed on 2 July 2013 wherein he
was sentenced to three years' imprisonment, suspended for five years on certain
conditions.
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[8] It is trite that sentencing should aim to strike a balance between the offence,
the offender and the interest of the community while at the same time bearing in
mind the four recognized objectives of sentencing, namely prevention , deterrence,
retribution and rehabilitation. In arriving at an appropriate and just sentence, the
court needs to strike a balance between the identified purposes of sentencing and to
accord due weight to each of the circumstances.1 The traditional factors known as
the triad of Zinn2 should be considered and the sentence be blended with an element
of mercy.
[9] In S v Nkunkuma3 the court referred to S v Ma/ga!f wherein the court said
that the circumstances used to justify a refusal to impose the specified minimum
sentence had to be substantial and compelling. The court quoted with approval the
following paragraph from S v Ma/gas:
'The specified sentences were not to be departed from lightly and for flimsy reasons which
could not withstand scrutiny. Speculative hypothesis favourable to the offender, maudlin
sympathy , aversion to imprisoning first offenders , personal doubts as to the efficacy of the
policy implicit in the amending legislation, and like considerations were equally obviously not
intended to qualify as substantial and compelling circumstances.'5
[1 OJ The legislature used the words 'substantial and compelling circumstances ' in
the aforementioned s 51 (3) for a specific reason. The circumstances at hand thus
have to be extraordinary in order to qualify as 'substantial and compelling '. It is
apparent that the appellant has a propensity to commit violent crimes and that he
displays no respect for the law. He committed the murder just two months after he
was sentenced for robbery and had a suspended sentence hanging over his head.
His personal circumstances do not qualify as substantial and compelling
circumstances . They are far outweighed by the aggravating factors.
1 S v Rabie 1975 (4) SA 855 A at 862A-B.
2 S v Zinn 1969 (2) SA 537 A.
3 S v Nkunkum a [2013] ZASCA 122; 2014 (2) SACR 168 (SCA) (Nkunkuma ) para 9.
4 S v Ma/gas 2001 (1) SACR 469 SCA (Ma/gas) at 477C-E.
5 Nkunkuma para 9, citing from Ma/gas at 4701.
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[11] When considering the totality of the facts and circumstances, as well as the
applicable principles in relation to sentencing, I completely agree with the court a
quo 's finding that there are no substantial and compelling circumstances which
justify the imposition of a lesser sentence than the prescribed minimum sentence of
life imprisonment. To regard the appellant's personal circumstance as substantial
and compelling would be to thwart the intention of the legislature . Accordingly, the
appeal stands to be dismissed .
Order:
[12] In the result the following order is issued:
The appeal is dismissed.
~adeAJ
I concur:
Mbhele, AJP
I concur:
ff
Appearances
For the appellant:
Instructed by:
For the respondent: Adv J Potgieter
B Jacobs
Jacobs Fourie Attorneys
Bloemfontein
Adv D Pretorius
Office of the Director of
Public Prosecutions,
Bloemfontein 6