REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
| (2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE SIGNATURE
CASE NUMBER: A21/2025
In the matter between:
MAHLATJI TSOALEDI KAIZER Appellant
and
THE STATE Respondent
JUDGMENT
DOSIO J:
Introduction
[1] The appellant was charged with one count of murder read with the provisions of s51(2)
of the Criminal Law Amendment Act 105 of 1997 (‘Act 105 of 1997’). The court a quo
found the appellant guilty and sentenced him to 20 years imprisonment.
[2] The appellant was legally represented. = 10 February 2017, the appellant was granted
leave to appeal his sentence.
Ad sentence
[3] It is trite that in an appeal against sentence, the court of appeal should be guided by the
principle that punishment is pre-eminently a matter for the discretion of the trial court and
the court of appeal should be careful not to erode that discretion.
[4] A sentence imposed by a lower court should only be altered if:
i. An irregularity took place during the trial or sentencing stage.
ii. The trial court misdirected itself in respect to the imposition of the sentence.
iii. The sentence imposed by the trial court could be described as disturbingly or
shockingly inappropriate."
[5] As stated by the learned Maya DP (as she then was) in the case of S v Hewitt2
“It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court.
An appellate court may not interfere with this discretion merely because it would have imposed
a different sentence. In other words, it is not enough to conclude that its own choice of penalty
would have been an appropriate penalty. Something more is required; it must conclude that its
own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is
not. Thus, the appellate court must be satisfied that the trial court committed a misdirection of
such a nature, degree and seriousness that shows that it did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when imposing it. So, interference is
justified only where there exists a ‘striking’ or ‘startling’ or ‘disturbing’ disparity between the trial
court’s sentence and that which the appellate court would have imposed. And in such instances
the trial court's discretion is regarded as having been unreasonably exercised.”
[6] The trial court should be allowed to exercise its discretion in the imposition of sentence
within reasonable bounds.
[7] Section 51(2) of Act 105 of 1997 states that:
“(2) Notwithstanding any other law but subject to subsections (3) and (6). a regional court or a
High Court shall sentence a person who has been convicted a person of an offence referred to
in-
"Sv Salzwedel 1999 (2) SACR 586 (SCA) at 591 F-G, and Kgosimore v § 1999 (2) SACR 238 (SCA).
2 Sv Hewitt 2017 (1) SACR SCA.
(a) Part Il of Schedule 2, in the case _
(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; and
(iii) (iii) a third or subsequent offender of any such offence, to imprisonment for a period
not less than 25 years; ...
Provided that the maximum sentence that a regional court may impose in terms of this subsection
shall not exceed the minimum term of imprisonment that it must impose in terms of this
subsection by more that five years.”
[8] It is common cause that the transcript of the court a quo is incomplete, however both the
counsel for the appellant and the respondent agreed that the available record is sufficient
for this court to adjudicate the appeal against sentence.
[9] Counsel for the appellant contended that the court a quo misdirected itself in that:
(a) it failed to enquire into the personal circumstances of the appellant, even though the
appellant was legally represented. As such, the court a quo failed to exercise its judicial
discretion, in the absence of the personal circumstances, to consider an appropriate
sentence. Reference was made to the case of S v Dhlamini.3 Reference was also made
to the case of S v Hepworth? where the appellate division, (as it then was), stated that:
“A criminal trial is not a game where one side is entitled to claim the benefit to any omission or
mistake made by the other side ... A judge or an administrator of justice ..., has not only to direct
or control proceedings according to recognized rules of procedure but to see that justice is done.”
As a result, it was contended that the court a quo overemphasized the seriousness of
the offence and the interests of society, resulting in a sentence that is shockingly
inappropriate.
[10] Reference was made by the appellant's counsel to the case of S v Makatu,® where the
Supreme Court of Appeal changed a sentence of 15 years imprisonment to 12 years
imprisonment for a man that had pleaded guilty to shooting his wife seven times.
(11] Reference was made by the appellant's counsel to the case of Director of Public
Prosecutions, Gauteng v Pistorius,® where notwithstanding that the respondent elected
> Sv Dhlamini 2000 (2) SACR 266 (T).
* Sv Hepworth 1928 AD.
5S v Makatu 2006 (2) SACR 582.
° Director of Public Prosecutions, Gauteng v Pistorius 2018 (1) SACR 115 SCA.