IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION
NORTH -EASTERN CIRCUIT
Case No: CC24/2023
In the matter between:
PHILANI CARLOS MZIMELA APPLICANT
and
THE STATE RESPONDENT
Coram : Mossop J
Heard : 17 June 2025
Delivered : 17 June 2025
ORDER
The following order is granted:
1. The application for leave to appeal against sentence is refused.
JUDGMENT
MOSSOP J:
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[1] This is an ex tempore judgment.
[2] Mr Philani Carlos Mzimela (the applicant) seeks leave to appeal against the
sentence s imposed upon him consequent upon his conviction . He was one of four
accused who stood trial before me in the North -eastern Circuit Court sitting at
Mtubatuba. This application for leave to appeal d oes not challenge his conviction on
multiple counts nor does it involve his three co -accused who stood trial with the
applicant and who were also convicted and sentenced by me .
[3] On Monday, 12 June 2023 I convict ed all four accused on multiple counts
that essentially related to the botched robbery of a store in a Mtubatuba shopping
mall. As far as the app licant is concerned, he was convicted of:
(a) Four counts of robbery with aggravating circumstances , for which he was
sentenced to 18 years’ imprisonment on each count , all of which sentences were
ordered to run concurrently with each other;
(b) Three counts of attempted murder , in respect of which he was sentence d to
15 years’ imprisonment on each count, which sentences were ordered to run
concurrently with each other and with the effective period of imprisonment of 18
years mentioned in paragraph (a) above; and
(c) One count of unlawfully possessing a firearm , in respect of which I
sentenced him to 15 years’ imprisonment, seven years of which was ordered to run
concurrently with the effective 18 years’ imprisonment imposed for the offence
mentioned in paragraph (a) above.
[4] The nett effect of this is that the appellant was sentenced to an effective
period of imprisonment of 26 years.
[5] The appellant now believes that the sentences imposed upon him are too
sever e and seeks to appeal them to a higher court , in the belief that such court might
come to a different conclusion on his punishment than the one to which I came.
[6] It is so that a court that sentences a convicted citizen has a discretion when
it come s to the imposition of sentence. The court ca lculates the sentence to be
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imposed based upon the facts that it has found to have been proven when viewed ,
inter alia, in the context of the accused’s personal circumstances and the broader
interests of the community. In S v Bogaards ,1 the Constitutional Court, observed as
follows:
‘… sentencing is within the discretion of the trial court. An appellate court’s power to interfere
with sentences imposed by courts below is circumscribed. It can only do so where there has
been an irregularity that results in a 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.’ (Footnotes
omitted.)
[7] A higher court therefore cannot interfere with a sentence simply because it
may have imposed a different one to the sentence imposed by the lower court . Thus,
the Supreme Court of Appeal remarked in S v Malgas2 that an appeal court may not
approach an appeal:
‘… 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 …’
[8] To demonstrate an improper exercise of a sentencing court’s discretion, an
appellant will have to show the existence of misdirection or misdirection s on the part
of that court. In the app licant’s heads of argument, it is submitted that I misdirected
myself in two respects:
(a) I failed to consider the personal circumstances of the app licant ; and
(b) I over emphasised the seriousness of the offence and the interests of society
without according any , or due , weight to the personal circumstances of the app licant .
[9] I deal with the first ground of appeal by simply referring to an extract from my
judgment on sentence in which I discussed the personal circumstances of the
applicant :
1 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC) para 41.
2 S v Malgas 2001 (1) SACR 469 (SCA) para 12.
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‘Accused three, Mr Mzimela: you are 41 years old and the father of four children, the eldest
of which was born in 2001 and the youngest of which is 3 years old. At school you attained a
grade 11 level of education. You have, as previously mentioned, a previous conviction for
robbery. During your incarceration, you suffered the loss of your father. You were sentenced
to imprisonment in 2009 and were released in 2014 and it appears that you have been in
and out of employment since then. You worked at a Spar store in the bakery section and at
the time of your arrest you were working as an Uber driver earning R2 100 per month;’
[10] I considered, and mentioned, every fact that was advanced to me by the
applicant’s counsel that related to the applicant . To suggest that I did not do so is
simply incorrect and it is accordingly unlikely that a higher court will find that I did not
consider the applicant’s personal circumstances .
[11] As regards the second ground of appeal , the interests of society have long
been recognised as being a vital consideration when addressing the issue of
sentence. So much so is said in the religiously cited matter of S v Zinn ,3 in which the
Appellate Division laid down that a court, in performing its sentencing duties , was
required to address three primary considerations, namely the crime, the offender and
the interests of society.4
[12] The applicant was convicted of criminal offence s involving the attempted
murder of a number of people , the robbery of a store in a public mall, the use of a
firearm and the brazen application of force both to members of the public and the
South African Police Services. He had a previous conviction for robbery and had
been sentenced to direct imprisonment as a consequence . In my opinion, the
agglomeration of these factors called for a weighty sentence in the circumstances .
[13] When determining the appropriate sentence for the applicant, I considered
all relevant factors and constructed the sentence to ensure that because of multiple
convictions, the cumulative weight of the sentence to be imposed upon the applicant
would not be unduly burdensome. That the applicant would be jailed for a
considerable period of time brook ed of no doubt. I do not think that there can be any
3 S v Zinn 1969 (2) SA 537 (A).
4 Ibid 540G.
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realistic expectation that another court would conclude that a lesser sentence ought
to have been imposed upon the applicant given the facts of this matter and the
applicant’s unsatisfactory criminal history .
[14] Society is entitled to look to the courts to impose appropriate sentences
when rampant criminality rears its unattractive , and violent, head. While the
applicant’s personal circumstances were a valid consideration, their importance was
overshadowed by the facts of this matter.
[15] I am satisfied that there are no reasonable prospects of another court
coming to a different conclusion on the issue of sentence. The application for leave
to appeal against sentence has no merit and is accordingly dismissed .
_____________________________
MOSSOP J
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APPEARANCES
Counsel for the applicant : Mr P Daniso
Instructed by : Legal Aid South Africa
Durban Local Office
The Mari ne Building
22 Dorothy Nyembe Street
Durban
Counsel for the respondent : Ms T P Ntsele
Instructed by: Director of Public Prosecutions
Pietermaritzburg