IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR183/24
In the matter between:
MDUDUZI BUTHELEZI FIRST APPELLANT
MANDLA NGCOBO SECOND APPELLANT
JOHN THOBELA THIRD APPELLANT
and
THE STATE RESPONDENT
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ORDER
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On appeal from: Regional Court for the Regional Division of KwaZulu -Natal, held at
Durban (sitting as Court of first instance):
1. The appeal against sentence is upheld.
2. The sentence of ten years’ imprisonment is replaced with a sentence of five
years’ imprisonment.
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JUDGMENT
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MIZRACHI AJ (SHAPIRO AJ concurring)
[1] The matter before the Court is an appeal by three out of five individuals
convicted of theft of meat to the value of R80 000 on 31 May 2023 by the Court a
quo.
[2] The appeal is in respect of the sentence imposed on the five individuals on 18
August 2023 . The sentence imposed on the appellants for their part in the
commission of the offence was ten years’ imprisonment, while the other two
participants received a lesser sentence of five years’ imprisonment. This was
combined with an Order that the appellants were declared unfit to hold a firearm.
[3] The Court a quo found that no determination in terms of s 103(1) of the
Firearms Control Act 60 of 2000 was made and the appellants are consequently unfit
to possess a firearm. This aspect is not, however, subject to the appeal before this
Court.
[4] The three appellants’ appeal is limited to the sentence of ten years’ direct
imprisonment with leave to appeal having been granted by the Court a quo.
[5] Considering the discretionary nature of sentences, this Court would have to
determine whether there has been a material misdirection by the Court a quo. It is
therefore necessary to traverse the background facts and circumstances of this
case.
[6] This is particularly important c onsidering the unique circumstances and
context to the crime that was pivotal to the reasoning of the Court a quo in imposing
a sentence of ten years’ imprisonment.
[7] The offence occurred on 14 July 2021 in the midst of the unrest and looting
which ravaged the province, both economically and with tragic loss of life. The
appellants, together with two others, were stopped while travelling in the Chester
area by Sergeant Kobisa of the South African Police Service (“SAPS”).
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[8] They were directed to Chester police station due to the volatility of the
situation at the time. Upon arrival at Chester police station, the complainant, Mr
Luthuli, identified the boxes in the vehicle as belonging to him, having been looted
from his storage facility. The vehicle was stopped approximately two kilometers from
the storage facility coming from the direction of the facility.
[9] The meat contained in the boxes carried in the vehicle was identified by a
marking which the complainant confirmed was the marking on all of his products.
[10] The complainant indicated that when he attended his storage facility during
the looting which was taking place, approximately 5 000 people had flooded the yard
and were looting his property . The storage facility, together with trucks belonging to
the complainant and vehicles belonging to employees which were parked at the
premises and were not insured were destroyed and the complainant estimated the
total loss suffered to be approximately R70 million.
[11] The complainant furthermore gave painful testimony of the impact which this
event had on his life and his personal circumstances. He had unsuccessfully
attempted to extinguish the fires which were started on 13 July 2021 and which
engulfed his storage facility using only a hosepipe, as fire services were nowhere to
be found in the chaos of the unrest and looting which was taking place around the
province.
[12] He gave evidence that while insurance had paid for a portion of the loss he
sustained as a result of this incident, it did not come close to compensating him for
his actual loss, and he was required to substantially downgrade his life . He stated
that he had to leave his flat , downgrade and go back home, and that his children
could not continue with their schooling.
[13] The Court a quo refused leave to appeal the conviction by the appellants on
20 November 2023 and the petition for leave to appeal the conviction to the High
20 November 2023 and the petition for leave to appeal the conviction to the High
Court was subsequently refused on 11 June 2024 . The Court a quo , however,
granted leave to the appellants to appeal the sentence imposed.
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[14] The basis for the appeal on sentencing as set out in the appellants’ heads of
argument can be summarized as follows:
(a) Necessary weight was not given to the personal circumstances of the
appellants including the circumstances under which the theft took place;
(b) The Court over-emphasised the aggravating circumstances at the expense of
the mitigating factors;
(c) The sentence of ten years for theft was too high considering the appellants
were first offenders;
(d) The Court was misdirected in respect of the degree of culpability of the
appellants as the crime was impulsive and not premeditated;
(e) The Court failed to take into account that the value of the meat had drastically
reduced as by the time the meat was recovered, it was no longer fit for human
consumption;
(f) The Court misdirected itself by punishing the appellants more harshly than the
other two persons convicted of the same offence, based on the age difference
between them;
(g) The Court was overly concerned with the interest s of society at the expense
of the personal circumstances of the appellants;
(h) The evidence before the Court did not suggest that the appellants were a
danger to society.
[15] The respondent in its heads of argument set out the following:
(a) The sentence imposed upon the appellants appears to be exemplary,
motivated by the scale and impact the July unrest had on the country;
(b) The Court a quo, in differentiating the sentencing between the appellants and
the other two persons convicted appears to have only considered the age
difference between them as the sole deciding factor in imposing a harsher
sentence on the appellants despite them all having similar personal
circumstances, and all being first offenders;
(c) While the Court a quo warned itself against sacrificing the accused on the
altar of deterrence, it did not individualise the sentences nor temper them with
mercy;
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(d) The appellants showed no remorse, their conduct was clearly well
orchestrated and their part in the activities on the day had severe
repercussions on the complainant, his staff and his customers.
[16] The law in respect of an appeal Court ’s powers to interfere with sentencing is
well-established, and interference can only occur if the appeal Court is of the view
that the sentence imposed was unreasonable, unjust, is vitiated by irregularities or if
the Court a quo has misdirected itself materially.
[17] Similarly well-established are the considerations in respect of sentencing ,
commonly referred to the Zinn triad, namely, the crime, the offender and the interests
of society.1 The application of these factors was expanded upon in S v Banda and
Others2 where the Court held that a balance between these three factors must be
applied when considering an appropriate sentence, and the Court should ensure that
no one factor is overly or underly emphasised to the exclusion of the others.
[18] The Court in S v Sobandla3 held that:
‘As to the magistrate’s view of the need for a strongly deterrent sentence, the peculiar
circumstances of the present case do not, in my assessment, suggest the risk of a repeated
robbery or housebreaking by the appellant. Essentially what the trial court had in mind was,
in the interests of the community, a sentence which would deter others who might, given the
prevalence referred to, contemplate similar serious criminal conduct. Having regard to all the
facts of the present matter, however, it seems to me that appellant’s counsel (who appeared
at the court’s request, and for whose assistance we are grateful) was right in contending, in
effect, that appellant was sacrificed on the altar of deterrence, thus resulting in his receiving
an unduly severe sentence.’
[19] The respondent’s representative accepted at the hearing that the Court a quo
had misdirected itself in imposing a sentence of ten years’ imprisonment on the
had misdirected itself in imposing a sentence of ten years’ imprisonment on the
appellants. He submitted that the appeal should be upheld and that the sentence in
respect of the appellants should be reduced to five years’ imprisonment to bring
parity of sentencing with the two other persons convicted.
1 S v Zinn 1969 (2) SA 537 (A) at 540G.
2 S v Banda and Others 1991 (2) SA 352 (BG).
3 S v Sobandla 1992 (2) SACR 613 (A) at 617F-G.
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[20] The representative for the appellants initially stated that one year’s
imprisonment would be appropriate as the sentence, though he was not beholden to
this term.
[21] I agree with the position of the respondent and of the Court a quo that the
appellants showed no remorse for their actions, and that this is a factor to be
considered insofar as the prospect of rehabilitation of the appellants. I furthermore
agree with the Court a quo that the imposition of anything other than a sentence of
imprisonment would be inappropriate given the seriousness of the crime and the
surrounding circumstances in which the offence was committed.
[22] I, however, disagree with the Court a quo in respect of the severity of the
sentence imposed on the appellants.
[23] When considering the judgment of the Court a quo on sentencing, it is
apparent that it considered a sentence of ten years’ imprisonment to be an
appropriate sentence. It also considered a sentence of five years’ imprisonment to
be appropriate in respect of the other two persons convicted.
[24] The peculiar circumstance in the present case, being the commission of the
offence in the fervor of the July 2021 unrest, when considered alongside the fact that
the appellants were all first -time offenders at a late stage in their lives leads me to
conclude that the deterrence factor was weighted too heavily by the Court a quo.
[25] This is not to suggest that deterrence should not have been an important
consideration in arriving at an appropriate sentence . I consider this, however, to
have been correctly applied in both the refusal of the Court a quo to impose a fine,
suspended sentence or a sentence under s 276(1)(i) or (h) of the Criminal Procedure
Act 51 of 1977 and by the imposition of the sentence of imprisonment of five years
on the other two persons convicted.
[26] The imposition of a sentence of 10 years’ imprisonment for this offence
induces a sense of shock and accordingly constitutes a material misdirection by the
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Court a quo. I further view the imposition of the sentence of 10 years’ imprisonment
as being exceptional.
[27] A sentence of five years’ imprisonment adequately balances the factors
considered in the Zinn triad in the circumstances of this case.
[28] In light of the misdirection by the Court a quo , this Court is empowered to
intervene and to alter the sentence which was imposed on the appellants.
Order
[29] I accordingly make the following order:
1. The appeal in respect of sentence is upheld.
2. The sentence of ten years’ imprisonment is replaced with a sentence of
five years’ imprisonment.
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MIZRACHI AJ
I agree.
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SHAPIRO AJ
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Appearances
For the appellants: Ngidi Inc Attorneys
11 Bisset Street
Umkomaas
Adv N B Dlamini
Email: advocatedlamini@mplanet.co.za
For the respondent K M Shah
Office of the Director of Public
Prosecutions, KwaZulu-Natal
Email: kshah@npa.gov.za
Ref: 10/2/5/1/3 – 161/24
Date of hearing: 4 July 2025
Date of judgment: 04 November 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time for hand down is deemed to be 11h00
on 04 November 2025.