REP U BLI C OF SO UT H AFRICA
IN THE HJ G H COll R T OF SOUTH AFRICA ,
MPlfMALANGA DlVISJON (MAIN SEA T )
Case N umber: A22/2024
l. REPORT ABLE: YES/ NO
2. OF INTEREST TO OTHER
3. REV ISED.
DATE
r n the matter between:
VUSIMll JSI MIKE KHOZA A ppellant
and
T H E STATE Respondent
Th is judgment will be handed down by email to the parties and by publication on
SAFUJ. The date of the delivery of the judgment shall be deemed to be on 19
SE PTEMBER 2025 at I 0:00
Coram: Vukeya Jet Roelofse AJ
Roelofse AJ:
JUDGMENT
[ 1] This is an appeal. The main issue in this appeal is the concurrency and
cumulative effect of sentences.
THETRAlL
[2) The appellant stood arraigned in the Regional Division of Mpumalanga held
at Eerstehoek for murder read with the provisions of section 51(2) of the Criminal
Law Amendment Act 105 of I 997. He pleaded guilty to the charge. On 26 April
2023, the appellant was sentenced to 15 years imprisonment by the Regional Court.
His application for leave to appeal in the Regional Court was dismissed. For reasons
that wiJI appear below, I shall refer to this murder as "the second murder" and refer
to the sentence as ''the second sentence".
[3] ln his plea. the appellant said that the deceased confronted him because he had
spoken to the deceased's girlfriend. After this initial confrontation, the appellant
thought that the issue was resolved but the deceased followed him when he left a
tavern whereupon there was an altercation. The appellant knew that he was not up
to a fist fight. The appellant said: " .... because I am a coward 1 resorted to using a
knife to stab him as I l01ow that! am not fit tofistfight".
2
[ 4] The State accepted the appellant's plea. The post-mortem report was tendered
into evidence without the appellant objecting. The plea and the post-mortem were
the evidence upon which the appellant was convicted.
[5] The appellant did not present evidence in the sentencing proceedings, neither
did the State. The appelJant's attorney presented argument in mitigation of sentence.
The State presented argument in aggravation.
[6] Jn the appellant's argument, it was disclosed to the court lhat the appellant
was convicted and sentenced on or about March 2020 to 15 years imprisonment for
another murder that he committed on the same day as the second murder. I shall refer
to this murder as "the first murder" and refer to the sentence as '1he first sentence".
The appellant had already served two years of the first sentence on the date that the
second sentence was imposed.
[7] The appellant was 22 years old when the second sentence was imposed and
19 years old when the murders were committed. The appellant was living with his
mother, a sister and a niece at the time of the first murder.
[8] It was argued on behalf of the appellant that his youthful age at the time the
murders were committed must be taken into account and that the possibility of
rehabilitation must be considered. The element of mercy was also mentioned in the
context of the Regional Court ordering that the sentences run concurrently. It was
also argued on behalf of the appellant that the circumstances under which the second
murder was committed must be considered as reason to deviate from the minimum
3
sentence.
[9] It was argued on behalf of the State that the crime was serious and that the
court should not deviate from the minimum prescribed sentence.
IN THIS COURT
[ I O] The appellant seeks to appeal his sentence. The appellant's Notice of Appeal
was late. For this the appellant applies for condonation. The appellant's attorney of
record deposed to the founding affidavit in the application for condonation. Not
much is said in the founding affidavit save that the attorney who represented the
appellant at the trial has taken a transfer to another province and therefore, no notice
of appeal was filed. However sparce the grounds for the application are, the State
did not oppose the application. Therefore, this court shall grant the appellant
condonation for the late filing of this leave to appeal.
[ 11] Before I deal with the appellant's ground of appeal, I observe that "Ordinarily,
sentencing is within the discretion of the trial court. An appellate court's power to
interfere with sentences imposed by the courts below is circumscribed. it can only
do so where Lhere has been an irregularity Lhat results in failure ofjustice; 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. A court of appeal can also impose a different sentence it sets aside a
conviction in relation to charge and convicts the accused of another "1
1 Bogaards v S (CCTl20/l l (2012) ZACC 23; 2012 ( 12) BCLR 1261 (CC); 2013 (I) SACR
I (CC) (28 September 2012.
4
[ 12] In S v Bailey 2013 (2) SACR 533 (SCA), it was said that:
"[20] What then is the correct approach by an appellate court on appeal
against a sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the h'ial court after exercising ifs
discretion properly simply because iT is not the sentence ·which it would have
imposed or that it finds if shocking? The approach to an appeal on sentence
imposed in terms of the Act, should in my view. be different to an approach to
other sentences imposed under the ordinary sentencing regime. This in my
view is so because the minimum semences to be imposed are ordained by the
Act. They cannot be departed from lightly or for flimsy reasons. It follows
zherefore that a proper enquiry on appeal is wherher the facts which were
considered by the sentencing court are substantial and compelli11g or not.,.
[ 13 J In assessing the appellant's grounds of appeal against the material that was
before the Regional Court and its reasoning, I shall apply the aforementioned
principles.
[ 14] The appellant challenges his sentence on five grounds. The appellant says that
the Regional Court: (a) imposed a sentence that was harsh and disproportionate to
the offence commjtted having regard to the circumstances under which the offence
was committed~ (b) failed to take into account the time the appellant has already
served for the first murder, as the first murder " ... .[was] committed on the same day
emanating from the same incident.";" ... .[m]isdirected Use/f by not excessing [sic}
a measure of mercy before imposing sentence."; (c) misdirected itself by not
5
ordering the sentence to run concurrently with the sentence the appellant was serving
when the sentence was imposed; (d) misdirected itself when it found that there were
no substantial and corn pell ing circumstances to deviate from imposing the minimum
prescribed sentence; (e) misdirected itself by overemphasizing the seriousness of the
offence and the interests of society at the expense of the appellant's personal
circumstances
Ground (a)
[ 15] The appellant murdered the deceased with a knife because he says that he was
a coward and not fit for a fist fight. This explanation is somewhat vague. According
to the post-mortem report, the deceased was stabbed twice. One stab wound in the
right chest and a stab wound between the second and third ribs through the aorta. Jn
the appellant's plea, he admitted that his actions were intentional and was rightfully
convicted.
[ 16] The appellant did not disclose or explain why he stabbed the deceased twice.
Simply put, the appellant intended to kill the deceased and succeeded - this much
was admitted in the appellant's plea and is supported by the post-mortem. These
were the facts before the Regional Cowt . In this court's view, these circumstances,
as they stand, do not show that the Regional Court misdirected itself in this regard
when it imposed the sentence it did.
Grounds (b) and (c)
[17] In these grounds, the appellant's challenge is that the Regional Court did not
take into account that the appellant was already serving a sentence for the first
6
murder, which murder was committed on the same day as the second murder. 1t is
clear from the record that the Regional Court was aware of this fact yet, the record
does not show that this was expressly considered when the Learned Magistrate
imposed the sentence. This issue touches on the concurrency of sentences and the
cumulative effect of the sentences that are imposed.
[ 18] In order to decide whether sentences should be ordered to run concurrently,
there generally aught to be an inextricable 1 ink between the crimes for with the
sentences must be imposed.:! Save that the first murder was committed on the same
day, there wa s no evidence before the Regional Court to find that lhere was an
inextricable link between the first murder and the murder of the deceased in the sense
that they form part of the same transaction or were committed as part of the overall
criminal conduct. I therefore find that the Regional Court did not err not to order that
the sentenced of the first and second sentences to run concurrently.
[19] The Regional Court did not misdirect itself when it imposed the minimum
prescribed sentence of 15 years for the murder. There were no substantial and
compelling circumstances that would have warranted a deviation. In any event:
"Despite certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation conhnues to be alarming. It follows
that. to borrow from Ma/gas, it still is 'no longer business as usual'. And yet one
notices all too frequently a willingness on the part of sentencing courts to deviate
from the minimum sentences prescribed by the legislature.for the.flimsiest of reasons
- reasons, as here, that do not survive scrutiny. As Ma/gas makes plain cow·ts have
2 See: Dlamini v S [2023] Z AGPPHC 468; A215 /22 (13 June 2023 )
7
a duty, despite any personal doubts about the efficacy of the policy or personal
aversion 10 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 legitimate domains of power of the other
arms of state. Here parliament has spoken. It has ordained minimum sentences for
certain specified offences. Courts are obliged to impose those sentences unless there
are truly convincing reasons for departing/ram them. 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 ii/founded hypotheses that appear to fit
the particular sentencing officer's personal notion of fairness. Predictable
outcomes, not outcomes based on the ·whim of an individual judicial officer, is
foundational to the rule of law which lies at the hear/ of our constitutional order. •• 3
[20) Where this court has to part ways with the Regional Court is where lhe
cumulative effect of the sentence for the first murder and the second murder is
considered. The cumulative effect of the sentences is thirty years imprisonment. In
this court's view, this is excessive. In this regard the Regional Court materially
misdirected itself when it, notwithstanding being informed of the first sentence, did
not consider that the sentences should run concurrently.
[21] This is more so when the age of the appellant at the time of the first and second
sentence is considered. The appellant was 22 years old when he was sentenced for
the second murder and 19 years old when he committed the murders. His youthful
age and the prospects that he may still be rehabilitated having regard that the murders
3 S v Maty1tyi 20 I I (I) SACR 40 (SCA) at para. 23.
8
were his only convictions, should have been given due weight. This was not done
by the Regional Court, and this constitutes a misdirection which this court has no
other option but to correct.
Grounds (d) and {e)
[22] This judgment already found above that the Regional Court did not misdirect
itself regarding whether compelling and substantial circumstances existed and in
considering the seriousness of the crime. There is no need to say more.
l23] ln the premises, I propose the following order:
(a) Condonation is granted.
(b) The appeal is upheld.
(c) The sentence of by the Regional Court held at Eerstehoek imposed
on 13 April 2023 ("sentence date") is hereby ordered to run
concurrently with the sentence the appelJant was serving on the
sentence date ("'the first sentence") and is hereby antedated to the
date of the first sentence.
9
Vukeya J
Judge of the H igh Courl
\ V Roelpfse AJ
Acting Judge of the H(gh Court
ft
DATE OF HEARING:
DATE OF JUDGMENT:
APPEARANCES
6 June 2025
1 9 September 2025
There was no appearance because the appeal was dealt with in accordance with
section 19(a) of the Superior Courts Act, 10 of 2013.
The Appellants were represented by Coert Jordaan Inc Attorneys.
10