IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A210/2023
In the matter between:
MTHOMBENI NTANDO Appellant
and
THE STATE Respondent
This judgment was prepared and authored by the Judge s whose name s are reflected and is handed
down electronically by circulation to the parties’ legal representatives by e- mail and by uploading it
to the electronic file of this matter on CaseLines. The date for hand -down is deemed to be 22 May
2025
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JUDGMENT
___________________________________________________________________
SK HASSIM J et NEMUTANDANI AJ
[1] In terms of section 51(2)(a)(ii) of the Criminal Law Amendment Act, Act No
105 of 1997 (“the Minimum Sentences Act” ) read with paragraph (a) of Part II
of Schedule 2 thereto, a court convicting a person for robbery when there are
aggravating circumstances shall impose a sentence of 20 years’
imprisonment if the conviction for robbery is a second one with aggravating
circumstances, or it involv es the taking of a motor vehicle.
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[2] Robbery, when there are aggravating circumstances or involving the taking of
a motor vehicle is listed in Part II of Schedule 2 to the Minimum Sentences
Act. A conviction carries with it a minimum sentence of either 15 years or 20
years imprisonment .
[3] Section 51(2) provides as follows:
“…a regional court or a High Court shall sentence a person who has been convicted of an
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;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20
years …
(iii) …”
[our underlining]
[4] The Appellant was charged in the Regional Court, Benoni with, and convicted
of robbery with aggravating circumstances. On 24 February 2022, h e was
sentenced to 20 years ’ direct imprisonment . The trial court refused the
Appellant’s application for leave to appeal . The Appellant successful ly
petition ed the Judge President to appeal the sentence.
[5] The facts are briefly: On or about 25 April 2020, the Appellant and another
person robbed the Complainant of a Volkswagen Polo Vivo (“the motor
vehicle”). They tied up the Complainant and put him into the boot of the motor
vehicle. They then drove the motor vehicle to Rand Swart, Cemetery where they tried to locate the tracking device on the motor vehicle in order to remove it.
[6] It is common cause that the Appellant had the following two previous convictions:
(i) Housebreaking with intent to steal, and theft for which he was
sentenced on 24 January 2005 to 4 years’ imprisonment wholly
suspended for a period of four years.
(ii) Robbery for which he was sentenced to 8 years’ imprisonment on 8
November 2008.
[7] Based on the previous conviction f or robbery , the trial court found that the
Appellant was a second offender as contemplated in section 51(2) (a)(ii) of
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the Minimum Sentences Act. He was thus sentenced to 20 years’
imprisonment.
[8] The State and the Appellant’s counsel agreed that the appeal is limited to one
issue: Did the court a quo commit a misdirection in finding that the Appellant
is a second offender for purposes of section 51(2)(a)(ii) of the Act thereby
attracting a minimum sentence of 20 years’ imprisonment? The Appellant ’s
counsel submitted that the sentence of 20 years’ imprisonment should be set
aside and replaced with a sentence of 15 years’ imprisonment. He did not
contend for a departure from the minimum sentence of 15 years’
imprisonment.
[9] The central question in this appeal is whether the Appellant ’s previous
conviction for “robbery” amounts to robbery with aggravating circumstances
for purposes of section 51(2)(a)(ii) .
[10] In Qwabe v State1 the trial court had found that a previous conviction for
“robbery” fell within the definition of “robbery” in section 51(2)(a)(ii) read with
Part II of Schedule 2 2. The Full Bench of the Western Cape High Court
disagreed. It upheld the appeal against the sentence and found –
“[26] [I]n order for the appellant to fall within the provisions of s 51(2) (a)(ii) his
previous conviction would have to have been of 'any such offence', namely
robbery when there (were) aggravating circumstances.
…
[30] It would seem to me that the word 'such', …, imports the concept of
similarity of 'kind or degree' or 'of the kind or degree already described or
implied in context', or 'of the aforesaid kind', into the offence under
consideration. It would follow from that, that not any robbery, ” but only a
robbery of such kind or degree, would qualify .”
[11] We agree with this interpretation of section 51(2)(a)(ii) of the Minimum
Sentences Act read with Part II of Schedule 2. There is nothing in the record
to support a finding that the Appellant had previously been convicted of
robbery with aggravating circumstances or involving the taking of a motor
vehicle. The Constitutional Court in S v Bogaards3, succinctly sets out the
boundaries of an appellate court ’s power to interfere with a sentence imposed
by a trial court . Kampepe J reiterated that a court of appeal can interfere with
1 2012 (1) SACR 347
2 P ara [25 ]
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a sentence on appeal only “ where there has been an irregularity that results in
the failure of justice; the court below misdirected itself to such an extent that
its decision on sentence is vitiated; or the sentence is so disproportionate or
shocking that no reasonable court could have imposed it.”
[12] In our view , the court a quo misdirected itself when it sentenced the Appellant
as a second offender for the offence of robbery with aggravating
circumstances. The Appellant does not have a previous conviction for
“robbery when there are aggravating circumstances”. He is thus a first
offender for robbery when there are aggravating circumstances. The
misdirection vitiated the trial court’s decision on sentence. We are therefore
at large to interfere with the sentence.
[13] The minimum prescribed sentence for robbery when there are aggravating
circumstances is 15 years’ imprisonment. Counsel for the Appellant, did not
argue, correctly so too, that there are substantial and compelling circumstances to warrant a departure from the minimum sentence.
[14] In the result , the sentence of 20 years imprisonment is set aside and is
substituted with a sentence of 15 years’ imprisonment.
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SK HASSIM
JUDGE OF THE HIGH COURT
GAUTE NG DIVISION, PRETORIA
_______________
FS NEMUTANDANI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the Appellant : Adv J.L Kgokane
Instructed by: Pretoria Justice Centre
Counsel for the Respondent: Adv M Shivuri :