REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: A260 /2023
(1) REPOR T ABLE: Y ES / NO
(2) OF INTEREST TO OTHER JUDGES: YES /NO
(3) RE VISED.
SIGN A TURE
In the ma tter between:
SIBUSISO NKOSI
and
THE STATE
31 O ctober 2025
D ATE
APPELLANT
RESPONDENT
This Judgmen t w as handed dow n electronically and by circulation to the parties' legal
representatives by w ay of ema il and shall be uploaded on caselines. The date for hand
dow n is deemed to be on 31 October 2025 .
JUDGMENT
MKHABELA J (MOSHOANA J CONCURRING )
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Introduction
[1] The appellant was convicted in the Regional Court, Benoni, of attempted
murder, after he had pleaded not guilty. On 28 March 2023, he was convicted and
subsequently sentenced to 14 years’ imprisonment. In addition, the appellant was
declared unfit to possess a firearm.
[2] The application for leave to appeal against both conviction and sentence was
dismissed by the trial court. However, with leave of this Court and pursuant to his
successful petition, the appellant was granted leave to appeal his sentence only.
Consequently, he now appeals against his sentence.
Background facts
[3] The appellant and the complainant were neighbours who grew up together in
the same neighbourhood. On 1 January 2021, the appellant and the complainant had
an argument about the sale of dagga. As a result, a fight was looming between them.
[4] People who were present at the time, warned and dissuaded them from fighting.
They appeared to oblige and went to their respective homes.
[5] However, the appellant returned from his home armed with a knife. A fist fight
ensued and in the course of that fight, the appellant took out a knife and stabbed the
complainant multiple times.
[6] The complainant’s brother, Mr Thabo Nkosi (Nkosi) who was sleeping at the
time, heard the commotion, got out of his bed, and went outside to investigate. Upon
seeing the appellant stabbing his brother, Nkosi kicked the appellant away from his
brother.
[7] Nkosi then dragged the complainant into his house. The police arrived and the
appellant was arrested. The Police did not take the knife when they arrested the
appellant.
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[7] During the trial, the appellant admitted to stabbing the complainant, but
asserted that he did so in self-defence. He also stated that he used a knife that was in
the nail cutter, which is normally smaller than the knife that was actually used in
stabbing the complainant.
[8] The undisputed medical evidence indicates that the complainant was stabbed
four times on his chest, twice on his arms and once on his head. Accordingly, the total
number of stab wounds inflicted were seven in total and the injuries sustained were
life threatening.
[9] The length of some of the stab wounds was approximately 1 – 3 centimetres
and one of the stab wounds was sufficiently deep to reach the complainant’s lungs.
[10] In considering an appropriate sentence, the trial court had regard to the relevant
mitigating and aggravating circumstances. The appellant’s personal circumstances
were considered, including that he was 32 years old, unmarried, had a four -year-old
child, and lived with his sister and his child.
[11] In addition, the trial court took into account the fact that the appellant was
gainfully employed, earning R1000.00 per week, was a breadwinner for his family and
had no previous convictions. The court was also informed that the child receives a
grant of R450 per month.
[12] Although alcohol was found to have played a role in the commission of the
offence, the appellant’s decision to go back to his home to get a knife, notwithstanding
the previous reprimands by people who were around him, were factors that the trial
court regarded as aggravating.
[13] Similarly, the brutality of the manner in which the complainant was stabbed,
concomitant with the absence of any provocation or justification to stab the
complainant, were held as aggravating factors. The trial court described the multiple
stab wounds as an indication of “utmost brutality” and indicated that attempted
murders where knives were used are offences that are rife in the court’s jurisdiction.
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[14] After taking into account the nature of the crime, the interest of society, and the
personal circumstances of the appellant, the court found that a sentence of direct
imprisonment was appropriate and sentenced the appellant to 14 years’ imprisonment.
[15] Before this Court, the appellant effectively attacked the sentence on various
grounds. First, that there were indications before the trial court that the appellant could
be a primary caregiver and therefore, the trial court was enjoined to investigate and
ultimately consider the best interests of the appellant’s minor child before the appellant
could be sentenced. It was submitted on behalf of the appellant that the trial court
committed a misdirection in failing to investigate the circumstances of the minor child
before imposing the custodial sentence.
[16] The second ground of appeal was that the trial court had failed to take into
account that the appellant was a first offender. The intimation was that the appellant
should not have been given a custodial sentence.
[17] The third ground upon which the sentence is challenged is that 14 years’
imprisonment is disturbingly and shockingly inappropriate and that this Court should
interfere and impose an appropriate sentence.
[18] During oral submissions, Counsel for the appellant did not persist with the
contention that the appellant was supposed to be given a non -custodial sentence on
the premise that he was a first offender. What was pursued with vigour was that the
Court should direct the Department of Social Services to ensure that the welfare of the
child is taken care of whilst the appellant is in prison.
[19] When the Court pressed the appellant’s Counsel to suggest what an
appropriate sentence should be, he suggested 5 years’ imprisonment.
The law
[20] In the case of S v M,1 the Constitutional Court stated as follows:
1 [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) at para 35.
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“Thus, it is not the sentencing of the primary caregiver in and of itself that threatens
to violate the interests of the children. It is the imposition of the sentence without
paying appropriate attention to the need to have special regard for the children’s
interests that threatens to do so. The purpose of emphasising the duty of the
sentencing court to acknowledge the interests of the children, then, is not to permit
errant parents unreasonably to avoid appropriate punishment. Rather, it is to protect
the innocent children as much as is reasonably possible in the circumstances from
avoidable harm.”
[21] The Constitutional Court further held that:2
“There is no formula that can guarantee right results. However, the guidelines that
follow would, I believe, promote uniformity of principle, consistency of treatment and
individualisation of outcome.
(a) A sentencing court should find out whether a convicted person is a primary
caregiver whenever there are indications that this might be so.
(b) A probation officer’s report is not needed to determine this in each case. The
convicted person can be asked for the information and if the presiding officer
has reason to doubt the answer, he or she can ask the convicted person to lead
evidence to establish the fact. The prosecution should also contribute what
information it can; its normal adversarial posture should be relaxed when the
interests of children are involved. The court should also ascertain the effect on
the children of a custodial sentence if such a sentence is being considered.
(c) If on the Zinn triad approach the appropriate sentence is clearly custodial and
the convicted person is a primary caregiver, the court must apply its mind to
whether it is necessary to take steps to ensure that the children will be
adequately cared for while the caregiver is incarcerated.
(d) If the appropriate sentence is clearly non -custodial, the court must determine
the appropriate sentence, bearing in mind the interests of the children.
the appropriate sentence, bearing in mind the interests of the children.
(e) Finally, if there is a range of appropriate sentences on the Zinn approach, then
the court must use the paramountcy principle concerning the interests of the
child as an important guide in deciding which sentence to impose.”
2 Above at para 36.
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[22] With regard to the leeway that an appellate court has to interfere with the
sentencing court’s sentencing discretion, the principle is clear. It was encapsulated in
the statement of Holmes JA in S v Rabie and I can do no better than reproducing it as
follows:3
“1. In every appeal against sentence, whether imposed by a magistrate or a Judge,
the Court hearing the appeal –
(a) should be guided by the principle that punishment is “pre -eminently a matter
for the discretion of the trial Court,” and
(b) should be careful not to erode such discretion, hence the further principle that
the sentence should only be altered if the discretion has not been judicially and
properly exercised.”
2. The test under (b) is whether the sentence is vitiated by irregularity or misdirection
or is disturbingly inappropriate.”
[23] In S v Bogaards , the Constitutional Court summarised an appellate court’s
power to interfere with the sentence imposed by a lower court as follows:4
“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.)
[24] It is trite that there have been different formulations of when a sentence is
considered to be so disproportionate or shocking that no reasonable court could have
imposed it.5
Analysis
[25] The appellant’s counsel conceded during oral submissions that the trial court
was not informed that the appellant was a primary caregiver to his minor child, but
3 1975 (4) SA 855 (A) at 857 D-F.
4 [2012] ZACC 23; 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) at para 41.
7
5 S v Sadler [2000] ZASCA 13; 2000 (1) SACR 331 (SCA); [2000] 2 All SA 121 (A) at para 10.
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what the trial court was told was that the appellant was a breadwinner who was
gainfully employed.
[26] Furthermore, the evidence was that the appellant lives with the minor child and
his sister and that the biological mother also visits the child. The appellant contended
that the State accepted the personal circumstances of the appellant during closing
argument pertaining to sentence.
[27] Consequently, the appellant submitted that the trial court was obligated to
comply with guideline (a), which was laid down by the Constitutional Court, namely
that “a sentencing court should find out whether a convicted person is a primary
caregiver whenever there are indications that this might be so.”6
[28] The appellant relies on the following extracts from the record, which is attributed
to the Prosecutor’s oral address to the trial court, which is as follows:
“the personal circumstances of the accused are on record your Worship, as being
outlined by the legal representative that the accused is gainfully employed and he
is a father of a two-year-old.”
[29] It is trite that the quoted guidelines in the preceding paragraph from S v M
obliges a sentencing court to find out whether a convicted person is a primary
caregiver whenever there are indications that this might be so.
[30] Notwithstanding the concession that the trial court was not informed that the
appellant was a primary caregiver, the appellant’s counsel submitted vociferously that
the trial court was enjoined to investigate the plight of the minor child in the light of the
imposed custodial sentence. I disagree.
[30] The evidence before the trial court was that the appellant was a breadwinner
and not a primary caregiver. There is a very sharp distinction between a breadwinner
and a primary caregiver. The former presupposes a person who supports the child
6 Above n 1 at para 36.
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financially and the latter, as was defined in S v M, is a person who takes care of the
day-to-day caring of the child.7
[31] The trial court took into account that the appellant’s sister was also living with
the child and that the child’s biological mother was involved in the child’s life and would
occasionally visit the child.
[32] However, even if the appellant is indeed the primary caregiver, there was
sufficient evidence before the trial court that the child would not be left stranded or that
he would have to be placed in alternative care in the light of the custodial sentence.
On the contrary, in S v M, it was not disputed that the children would have to be placed
in alternative care had their mother been given a custodial sentence.
[33] Moreover, the best interests’ principle is not absolute. Even if the appellant is
indeed the primary caregiver, this does not mean that he cannot receive a custodial
sentence. All that a sentencing court is enjoined to do is to be aware of the existence
of the minor child and then grant an appropriate relief that would ensure the child is
taken care whilst the primary caregiver is in prison.
[34] I therefore conclude that there is no justification to make an order that the
Department of Social Development must ensure that the needs and interests of the
child are fulfilled, since the child is being taken care of by the appellant’s sister and his
biological mother.
[35] It follows, therefore, that in the absence of a misdirection by the trial court, this
court, as an appellate court, cannot substitute the trial court’s sentence simply
because it prefers it 8. This is by now means the end of the matter though given the
other ground on which the sentence is challenged as it is apparent below.
[36] I turn now to the custodial sentence of 14 years’ direct imprisonment and, in
particular, whether it is disturbingly inappropriate when one considers the triad
7 Above n 1 at para 28.
7 Above n 1 at para 28.
8 Mpuqe v S [2022] ZASCA 37 at paras 25 and 27; Hewitt v S [2016] ZASCA 100; 2017 (1) SACR 309 (SCA) at
para 8.
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principles of Zinn. These are the nature of the crime, the personal circumstances of
the accused, as well as the interests of the community, as relevant factors
determinative of an appropriate sentence.
[37] As already indicated, the appellant’s counsel conceded, and rightly so in my
view, that the appellant has committed a serious offence and that a custodial sentence
is warranted, but that a sentence of 5 years imprisonment would be appropriate. I
cannot disagree more. The incontrovertible evidence is that the four chest wounds
were life threatening and one was sufficiently deep to penetrate the complainant’s
lungs.
[38] In Mpuqe v S,9 the Supreme Court of Appeal reduced the sentence imposed by
a trial court from 15 years to 10 years imprisonment. The Supreme Court of Appeal
took into account that the complainant, who was lucky to be alive, did not sustain any
injuries.
[39] The facts that gave rise to the attempted murder charge in that case were that
the appellant shot the complainant and the bullet hit the metal lining of his bulletproof
vest, and as such, he did not sustain any injuries at all.
[40] The Supreme Court of Appeal reduced the period of 15 years to 10 years
imprisonment as the complainant did not sustain any injuries. In doing so it cautioned
courts against comparing cases since each case must be decided on its own merits10.
[40] In this case, the appellant stabbed the complainant seven times in total. Had it
not been for the bravery of the complainant’s brother, the complainant could have
sustained additional stab wounds that could have caused his death.
[41] The brutality of the attack by the appellant was unprovoked in that it was the
appellant who went home to fetch a knife and returned to start a fight, emboldened by
the fact that he was armed.
9 Mpuqe (above n 8).
10 Mpuqe (above n 8) at para 28.
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[42] Significantly, the complainant was not armed when he was stabbed, nor did he
use any dangerous weapon when the fight was ensuing. Moreover, the appellant’s
conduct was not only brutal, as the trial court correctly found, but was also
premeditated in that he went home to fetch the knife. The situation would have been
different had the knife had been in his pocket all along and prior to the commencement
of the fight.
[43] Despite the above salient facts, I am nevertheless of the view that there exists
a striking disparity between the sentence imposed by the trial court in respect of the
14 years imprisonment for the charge of attempted murder and the sentence that this
court would have imposed had it been the trial court11.
[44] In arriving at the above conclusion, I am aptly aware of the words of Marais JA
in S v Sadler to the effect that “sentencing appropriately is one of the more difficult
tasks which faces courts and it is not surprising that honest differences of opinion will
frequently exist. However, the hierarchical structure of our courts is such that where
such differences exist it is the view of the appellate court which must prevail”12.
[45] It is therefore warranted to interfere with the sentence of the trial court on the
above ground, and it is trite that an appellate court is not at large to interfere with the
sentence of the trial court, as it would have been the case had there been a material
misdirection13. The sentence to be imposed must demonstrate the seriousness of the
crime and the personal circumstances of the accused must recede into the
background14.
[46] In my view, had I been in the shoes of the trial court, I would have imposed 12
years of direct imprisonment for the charge of attempted murder, given its brutality and
the absence of remorse on the part of the appellant.
11 S v Malgas [2001] ZASCA 30; 2001 (2) SA 1222 (SCA); [2001] 3 All SA 220 (A) at para 12.
12 S v Sadler 2000 (1) SACR 331 (SCA) at para 10
13 As above.
12 S v Sadler 2000 (1) SACR 331 (SCA) at para 10
13 As above.
14 S v Vilakazi [2008] ZASCA 87; 2012 (6) SA 353 (SCA); [2008] 4 All SA 396 (SCA) at para 58.
ORDER:
1. It is ordered that the appeal against the sentence of 14 years' direct
imprisonment is upheld.
2. The sentence is set aside and substituted for a sentence of 12 years'
direct imprisonment.
3. It is further ordered that the sentence is antedated to 28 March 2023.
I AGR EE,
APPEARANCES:
For the Appellant:
For the Respondent:
Date of hearing:
Adv F Va n As
francoisv@legal-aid.co .. za
A dv G JC M aritz
gjcmaritza@npa.gov.za
R. MKHAB ELA
JU DGE O F TH E H IGH COUR T
G.N MOS HOANA
JU DGE O F THE H IGH COUR T
Date of delivery of the judgme nt:
9 Oc tober 2025
31 October 2025
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