IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable/Not Reportable
Case no: A29/2025
In the matter between:
SIBONGILE PATU APPELLANT
and
THE STATE RESPONDENT
Coram: V C SALDANHA J et SALLER AJ
Heard: 18 June 2025
Delivered: 3 September 2025
JUDGMENT
Saller AJ
INTRODUCTION
[1] On 1 July 2013 the appellant, Mr Sibongile Patu , together with Mr Luzuko
Zembe (“accused 1”), approached two men on the streets of Khayelitsha. They
were Mr Manelisi Ntwaiko and Mr Athenkosi Nteyi.
[2] Accused 1 approached Mr Nteyi , robbed hi m of his cell phone and in the
course of the robbery, stabbed him with a knife. Mr Nteyi managed to run
away after being stabbed , but later died as a result of his injuries at the
Khayelitsha Day Hospital.
[3] While accused 1 dealt with Mr Nteyi, the appellant went to Mr Ntwaiko, held
and searched him, and took his phone and some coins. When accused 1 joined
them and aggressively demanded more goods, including by attempting to stab
Mr Ntwaiko as well, the latter was able to free himself and run away. Despite a
chase by the two accused, Mr Ntwaiko escaped and later testified at the trial.
[4] The cell phones were recovered the next day from the accused by members of
the South African police.
[5] On 3 March 2020, t he two accused were convicted in the regional court in
Khayelitsha on two counts of robbery with aggravating circumstances, and one
count of murder , after the trial court found that they had acted in common
purpose.
[6] The provisions of the Minimum Sentence legislation (the Criminal Law
Amendment Act 105 of 1997) are applicable to the charge s, and were
explained to the accused.
[7] In sentencing the accused on 15 October 2020 , the trial court found there were
substantial and compelling circumstances to deviate from the prescribed
minimum sentences. The court sentenced them both to 12 years imprisonment
on counts 1 and 2 (the robbery char ges) and to 15 years imprisonment on
count 3 (the murder charge). The court further ordered that seven years of the
sentence on counts 1 and 2 should run concurrently with that on count 3,
sentencing the accused to an effective 20 years’ imprisonment.
[8] Before us, t he appellant appeals against sentence only , with the trial court ’s
leave. Accused 1 has not appealed.
[9] The appellant appeals on the grounds that the circumstances of the case were
such that, considered cumulatively, they call ed for a further deviation from the
prescribed minimum sentence s; and that the court misdirected itself in
balancing th e factors relevant to sentencing . The factors on which the
appellant relies and which he says were not properly taken into account can be
grouped as follows : (a) the a ppellant’s personal circumstances; (b) the limited
participation by the appellant in the offences; (c) the length of the appellant’s
incarceration awaiting trial; and (d) the lack of proper treatment of the deceased
Mr Nteyi by the Hospital.
[10] The appellant further submitted that the court attached too little or no weight to
rehabilitation in the course of sentencing , and overemphasised the prevalence
of the crimes of which the appellant was convicted as a factor in sentencing.
[11] We invited counsel to submit additional written submissions dealing with th e
following: first, the trial court’s finding that the Hospital had been negligent in
treating the deceased, and whether and to what extent this should be taken into
account for the purpose of sentence; second, whether the trial court erred in
failing to distinguish between the two accused for the purpose of sentence
despite their conviction on the basis of common purpose; and third, whether the
trial court misdirected itself when it ordered only part of the sentences it
imposed on the various charges to run concurrently. Counsel did so, and we
are grateful for their cogent submissions.
THE TEST ON APPEAL
[12] The powers of an appeal court in relation to sentencing are well established. In
Bogaards v S (CCT 120/11) (2012) ZACC 23; 2013 (1) SACR 1 (CC) para 41,
the Constitutional Court explained this as follows (authorities omitted):
“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 there has been an irregularity that
results in failure of justi ce; 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. …
[13] It will not suffice for us to merely disagree with the sentence imposed by the
trial court, or the manner in which the trial court balanced the various factors in
arriving at the sentence imposed. We may only interfere if we conclude that
the trial court has materially misdirected itself , or the sentence is otherwise
disturbingly inappropriate, disproportionate or such that no reasonable court
would have imposed it (see S v Giannoulis 1975 (4) SA 867 (A) at 873G-H; S v
Kibido 1998 (2) SACR 213 (SCA) at 216G-J; S v Salzwedel & Others 1999 (2)
SACR 586 (SCA) para [10])
[14] In that case, as explained in S v Malgas 2001 (1) SACR 469 (SCA) at para 12,
“[w]here material misdirection by the trial court vitiates its exercise of that
discretion, an appellate Court is of course entitled to c onsider the question of
sentence afresh. In doing so, it assesses sentence as if it were a court of first
instance and the sentence imposed by the trial court has no relevance. As it is
said, an appellant court is large.”
[15] With these principles in min d, I turn to the trial court’s determination of the
sentence.
PROPER DETERMINATION OF SENTENCE
[16] The trial court’s discussion of the factors it considered in the determination of
sentence is not extensive. After referring to well-established principles first set
out in S v Zinn 1969 (2) SA 537 (A) , S v Khumalo 1973 (3) SA 697 (A) , and S
v Swart 2004 2004 (2) SACR 370 (SCA) , the trial court found that the
circumstances of the case were too serious to consider any other sentence than
direct imprisonment. This was because of the seriousness of the offences of
which the accused were convicted; the importance of according the principles
of retribution and deterrence their due weight in such cases; and the fact that
the stabbing took place as part of the kind of robbery with which our society is
plagued, for little gain but with great violence and with no regard for the
sanctity of human life.
[17] Despite this, t he trial court went on to find that special and compelling
circumstances existed which justified a departure from the minimum sentence
periods prescribed in legislation. The most significant of these was the fact that
the accused had been imprisoned await ing the conclusion of their trial for a
period of seven years . The court also took into account the relative youth of
the accused, and the fact that they did not have relevant previous convictions.
[18] At the outset, it is necessary to comment on a particularly concerning aspect of
the trial court’s reasons. When referring to the testimony of the deceased’s
mother in aggravation of sentence, the Magistrate brought his evidently very
personal experience and loss to bear : “Ten years ago my daughter was killed
by an unknown person who is still out there and we do not know who. So I
understand what you feel .” That was inappropriate. Sentence must be passed
in a manner that is dispassionate and objective. Every accused, no matter the
gravity of the offence, is entitled to be judged in this manner, and must be seen
to be so judged.
to be so judged.
[19] Many years ago already, Corbett JA in S v Rabie 1975 (4) SA 855 (A) at 866 A
cautioned that “a judicial officer should not approach punishment in a spirit of
anger, because, being human, that will make it difficult for him to achieve that
delicate balance between the crime, criminal and the interest of society which
his task and th e objects of punishment demand of him .” The manner in which
the trial court approached the appella nt’s sentencing amounts to a misdirection
that opens the door for a reconsideration of the appellant’s sentence on appeal.
[20] Under sections 51(1) and (2) of the Criminal Law Amendment Act, 105 of
1997 read with relevant parts of Schedule 2, prescribed minimum sentences
apply to the offences of which the accused were convicted. They are 15 years
imprisonment in respect of the convictions for robbe ry with aggravating
circumstances, and life imprisonment in respect of the murder convictions
because the murder was committed during a robbery and was also committed
by the accused in the execution or furtherance of a common purpose. Under
section 51(3), a lesser sentence may be imposed if substantial and compelling
circumstances exist warranting a departure.
[21] As regards the question whether there are substantial and compelling
circumstances to depart from the minimum sentences prescribed in the
Criminal Law Amendment Act 105 of 1997 in respect of the accused’s
offences, in Radebe and another v S 2013 (2) SACR 165 (SCA) Lewis JA
addressed this question as follows (my emphasis):
"[13] In my view there should be no rule of thumb in respect of the calculation
of the weight to be given to the period spent by an accused awaiting trial. (See
also S v Seboko 2009 (2) SACR 573 (NGK) para 22). A mechanical formula to
determine the extent t o which the proposed sentence should be reduced, by
reason of the period of detention prior to conviction, is unhelpful. The
circumstances of an individual accused must be assessed in each case in
determining the extent to which the sentence proposed shoul d be reduced. (It
should be noted that this court left open the question of how to approach the
matter in S v Dlamini 2012 (2) SACR 1 (SCA) para 41.)
matter in S v Dlamini 2012 (2) SACR 1 (SCA) para 41.)
[14] A better approach, in my view, is that the period in detention pre
sentencing is but one of the fac tors that should be taken into account in
determining whether the effective period of imprisonment to be imposed is
justified: whether it is proportionate to the crime committed. Such an approach
would take into account the conditions affecting the accused in detention and
the reason for a prolonged period of detention. And accordingly, in
determining, in respect of the charge of robbery with aggravating
circumstances, whether substantial and compelling circumstances warrant a
lesser sentence than that pres cribed by the Criminal Law Amendment Act 105
of 1997 (15 years' imprisonment for robbery), the test is not whether on its own
that period of detention constitutes a substantial or compelling circumstance,
but whether the effective sentence proposed is prop ortionate to the crime or
crimes committed: whether the sentence in all the circumstances, including the
period spent in detention prior to conviction and sentencing, is a just one."
[22] Further, in S v RO and Another 2000 (2) SACR 248 (SCA) para [30], Heher JA
said the following (my emphasis):
"Sentencing is about achieving the right balance or in more high -flown terms,
proportionality. The elements at play are the crime, the offender, the interests
of society with d ifferent nuance, prevention, retribution, reformation and
deterrence, invariably there are overlaps that render the process unscientific,
even a proper exercise of a judicial function allows reasonable people to arrive
at different conclusions."
[23] It follows that in determining an appropriate sentence on appeal, our aim is to
balance the well-established trifecta of the crime, the offender, and the interests
of the community. The aims and purposes of punishment are relevant
considerations. And as explained by Lewis JA quoted above, these factors must
be considered against the backdrop of the mandated sentences.
THE APPELLANT’S CIRCUMSTANCES
[24] The trial court’s assessment of the gravity of the crime and the interests of
society cannot be faulted. It is the assessment of the appellant’s circumstances
that requires reconsideration.
[25] In its judgment on sentence, the trial court somewhat tersely sets out the
personal circumstances of the two accused as reflected in the correctional
services reports admitted into evidence for that purpose.
[26] With reference to those repo rts, the trial court records that a ccused 1 was 32
years old at the time of sentencing , which makes him 25 at the time of the
offence. He was born in the Eastern Cape. Accused 1 was not married and ha d
one child of nine years old. He dropped out of school in grade 10 due to
financial constraints. At the time of his arrest, he was working as a security
guard in Montague Gardens.
[27] The trial court records that the appellant was 27 years old at the time of
sentencing, and therefore 20 years old at the time of the offence. He was born
in Cape Town . He was not married and ha d no children. He passed grade 10
and was employed at a local tavern in Khayelitsha.
[28] It is a well -established principle that sentenc e must always be individualised,
with the circumstances of a convicted accused constituting one of the three
essential elements of sentencing (see the oft -quoted dictum of Majiedt JA in
Mudau v S (764/12) [2013] ZASCA 56, 2013 (2) SACR 292 (SCA) at para 13).
This is so regardless of whether the accused committed the offence in common
purpose with another perpetrator.
[29] Appellant’s counsel submitted that the appellant should be considered a ‘young
person’ – a concept that appears in sentencing guidelines of Scotland to which
he referred us , on the basis that a person under the age of 25 will generally
have a lower level of maturity and greater capacity for change and
rehabilitation. That is not a concept formally adopted in South Africa.
Legislative protections for young people in the criminal justice system (notably
the Child Justice Act 75 of 2008) generally do not apply to persons over the
age of 18, unless the Director of Public Prosecutions having jurisdiction directs
age of 18, unless the Director of Public Prosecutions having jurisdiction directs
otherwise under section 4(2) of the Child Justice Act.
[30] In S v Matyityi 2011 (1) SACR 40 (SCA) at para 14, Ponnan JA dealt with this
question as follows:
“Turning to the respondent's age: ... The question, in the final analysis, is
whether the offender’s immaturity, lack of experience, indiscretion and
susceptibility to being influenced by others reduces his blameworthiness.
Thus, whilst someone under the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult. In my view a person of 20
years or more must show by acceptable evidence that he was immature to such
an extent that his immaturity can operate as a mitigating factor.”
[31] The appellant’s age alone does not constitute a mitigation. However, there is
another aspect to this. There is a five -year age difference between the two
accused, a significant difference at that stage in l ife. The age difference likely
goes some way to explaining the evident lead which accused 1 took in the
commission of the offences. Although the appellant made common purpose
with accused 1 for the purpose of the robbery, and did not disassociate himself
from events after he saw accused 1 take out the knife – even joining in on the
chase of Mr Ntwaiko when he ran away – it is significant that he did not
actively participate in the stabbing of the deceased Mr Nteyi.
[32] It is also relevant that the appellant apologised to the deceased’s mother, for the
emotional loss of her child and also the loss of her son’s future support. The
trial court was critical of the fact that the appellant did not take full
responsibility for his actions . It is correct that when he addressed the court in
mitigation, the appellant highlighted the actions of accused 1 and described
himself as witnessing rather than participating the events which led to
Mr Nteyi’s death. But on a closer consideration of his testimony, it is clear that
the appellant’s focus on the actions of accused 1 were not an effort to distract
the appellant’s focus on the actions of accused 1 were not an effort to distract
from his own responsibility but rather to dispute the version put up by accused
1 with whom he was found to have acted in common purpose – accused 1’s
version was that it was another person altogether, with whom the appellant had
no association , who stabbed the deceased . By emphatically denying that
version, the appellant clearly implicated himself. There is no indication that his
remorse at the stabbing and the death of Mr Nyathi is not genuine.
THE LENGTH OF THE APPELLANT’S PRE TRIAL DETENTION
[33] The accused spent seven years awaiting trial. As mentioned, this is a part of
the totality of factors that must be weighed in order to determine whether
substantial and compelling circumstances exist to reduce the sentence from the
prescribed minimum.
[34] The delay is an extraordinarily long on e. It cannot be placed at the appellant’s
door, but arose, in the main, from the State’s repeated unsuccessful attempts to
place evidence before the court regarding the medical treatment the deceased
received at the hospital at the urging of the Magistrate.
[35] In those circumstances, t he length of the accused’s pre-trial detention is a
substantial and compelling circumstances to be taken into account, and must
feature in our determination of the appropriate sentence.
CONCURRENT SENTENCE
[36] The appel lant was convicted of three counts (counts 1 and 2 relating to the
robbery of Mr Ntwaiko and Mr Nteyi, respectively, and count 3 relating to the
murder of Mr Nteyi). Counsel for the appellant urged us to have the sentences
for all three counts run concurr ently in toto on the grounds that they originated
from the same incident, that they were committed at the same place and at the
same time, and that two of the charges (relating to Mr Nteyi) have the same
victim.
[37] I agree that the offences arose in the context of a single chain of escalating
events, and it is appropriate that the sentences should run concurrently.
THE TREATMENT WHICH THE VICTIM RECEIVED AT THE HOSPITAL
[38] Lastly I consider the trial court’s finding that the Hos pital which treated the
deceased, the Khayelitsha Day Hospital, was grossly negligent in treating the
deceased.
[39] It is not clear precisely what happened when Mr Nteyi ran away after being
stabbed by accused 1. In a statement of his brother admitted into evidence by
the State, the brother says he was contacted by their mother around 2am in the
morning and told where to look for Mr Nteyi. The brother found him, heavily
bleeding, in a taxi which later took hi m to the hospital . There, Mr Nteyi died
around 6am the same morning.
[40] The post-mortem report admitted into evidence raised questions in the mind of
the Magistrate whether the (lack of) treatment provided to Mr Nteyi at the
Khayelitsha Day Hospital constituted a novus actus interven iens – an
intervening act breaking the causal chain leading from the stabbing to to
Mr Nteyi’s death. Despite several attempt s by the State to call the doctors
treating Mr Nteyi’s injuries, only the pathologist was eventually available to
give evidence. Based on her testimony, the trial court concluded that there had
been gross negligence on the part of the Hospital, but held, with reference to S
v Tembani 2007 (2) SA 291 (SCA), that even gross negligence on the part of
the Hospital c ould not relieve the accused of their criminal liability for the
death of Mr Nteyi.
[41] I agree on the legal pri nciple. A later event can only break the chain of
causality if it is a completely independent act, having nothing to do and bearing
no relationship to the accused’s unlawful act. See Minister of Justice and
Correctional Services and Others v Estate Late James Stransham -Ford and
Others 2017 (3) SA 152 (SCA) paras 48-49.
[42] We are, however, concerned here with sentence. The question is whether the
inadequate treatment which the deceased received constitutes a relevant factor
inadequate treatment which the deceased received constitutes a relevant factor
for sentencing. For the reasons that follow, it does not.
[43] In S v Tembani 2007 (2) SA 291 (SCA) th e SCA was seized with an appeal
against conviction for murder on the basis of intervening negligence by the
treating hospital. Cameron JA found that the hospital’s negligence in that
matter did nothing to lessen the appellant’s legal culpability . It did not lessen
the perpetrator’s “moral culpability” and in no way diminished “ the burden of
moral and legal guilt he must bear ” (para 26). That reasoning is equally
applicable to the determination of sentence.
[44] Second, contrary to the trial court’s approach of supposing an “ideal situation”
against which to measure the outcomes in present matter, Cameron JA went on
to explain at para 27 that in a country like South Africa “where medical
resources are not only sparse but grievously maldistributed, it seems to me
quite wrong to impute legal liability on the supposition that efficient and
reliable medical attention will be accessible to a victim , or to hold that its
absence should exculpate a fatal assailant from responsibility for death . … To
assume the uniform availability of sound medical intervention would impute
legal liability in its absence on the basis of a fiction and this cannot serve t he
creation of a sound system of criminal liability.”
[45] On the established facts, it is thus far from clear that the re was negligence on
the part of t he Hos pital that contributed to Mr Nyathi’s death . The only
shortcoming clearly established is the lack of adequate records of the treatment
which he received . The evidence of the only medical expert witness, forensic
pathologist Ms Chong, was to the effect that where, as here, the liver is pierced
it would generally be difficult for a surgeon to stem the bleedin g. Even if the
liver’s membrane could be stitched , Ms Chong was not prepared to say that
Mr Nyathi’s life could have been saved through blood transfusions.
[46] In the face of Ms Chong’s reticence, the trial court proceeded to speculate on
[46] In the face of Ms Chong’s reticence, the trial court proceeded to speculate on
the possible outcome of medical interventions , based on the Magistrate’s
“experience having dealt with a lot of these things ”. The trial court concluded
that there was a possibility that the deceased could have survived , had the
Hospital provided him with treatment in accordance with what the Magistrate
said would have been the “ normal procedure that Khayelitsha Hospital should
have taken”.
[47] Ms Chong appears to have felt compelled to agree with the Magistrate ’s
speculation after his questioning of her that can be fairly described as akin to
cross-examination. But her evidence preceding this concession makes clear
that she regarded herself as neither having the medical specialist skills, nor
factual knowledge of the medical treatment which the deceased received, to
arrive at such a conclusion. The trial court’s conclusion in this regard must
therefore be rejected.
[48] For all these reasons, the deceased’s medical treatment is not a relevant factor
for sentencing the appellant.
CONCLUSION
[49] I am in full agreement with the trial court that a lengthy period of incarceration
is manifestly appropriate, given the seriousness of the offences, the disregard
for human life shown by the appellant and his co -accused, and the scrounge of
violent robbery on the community.
[50] Having regard to the above, however, I find that there are nevertheless
substantial and compelling circumstances to depart from the mandated
minimum sentences, that the two charges of robbery on counts 1 and 2 be taken
together for the purpose of sentence, and that the sentences ought to run
concurrently.
[51] The appellant is accordingly sentenced to twelve years imprisonment in respect
of the robbery charges on count 1 and 2, and to fifteen years imprisonment in
respect of the murder charge on count 3. The sentences are to run concurrently,
resulting in an effective period of direct imprisonment of fifteen years.
_____________________________
K S SALLER
ACTING JUDGE OF THE HIGH COURT
I agree
_____________________________
V C SALDANHA
JUDGE OF THE HIGH COURT
Appearances
For appellant: Mr Marthinus Strauss (Wimpie Strauss) (Legal Aid) 082 375 8735
For respondent:
State Advocate:
Leon Snyman
lsnyman@npa.gov.za
021 - 487 7377
078 451 9139