IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT
Reportable
CASE NO.: A99/2025
In the matter between:
MARCELINO GOLIATH FIRST APPELLANT
PIET SEDERSTROOM SECOND APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Goliath and Another v S (case no A99/2025) [2025] ZAWCHC
Coram: SLINGERS J AND MOOSA AJ
Heard: 5 September 2025
Delivered: 14 November 2025 (delivered via email to the respective Counsel)
Summary: Criminal law – appeal on sentence – no cross appeal – possibility
of increasing sentence raised by the court – prior notice given of
court’s intention to consider harsher sentence – notice of
abandonment of appeal filed without leave of the court – leave to
withdraw refused at the hearing – no material misdirection by trial
'1pfl~.
I. J., .J.. 1.,.1
'\ .,._ -c

court found – s 322(6) of the Criminal Procedure Act not applied –
sentence confirmed.

ORDER

On appeal from the Regional Court in Oudtshoorn, the following is ordered:
1. The appeal against the sentence is dismissed.


JUDGMENT

Moosa AJ (Slingers J concurring)

Introduction
[1] On 19 April 2022, in the Regional Court at Oudtshoorn, the appellants
(sometimes collectively called “the accused”) pleaded not guilty to one count of
attempted murder. The charge sheet allege d that, on 22 August 2021 at Bridgton , the
accused, acting with common purpose, unlawfully and intentionally attempted to murder
Henry Coetzee (“Coetzee”) with an axe and a panga respectively. On 28 March 2023,
they were convicted , despite their testimony in denial of any involvement in the crime.
On 11 August 2023, both were sentenced to seven years imprisonment. It is common
cause that, owing to the offence occurr ing on 22 August 2021 , the minimum sentence
regime for attempted murder introduced in to the Criminal Law Amendment Act 105 of
1997 (“the CLAA, 1997”) with effect from 5 August 2022 , is inapplicable. In accordance
with s 103 of the Firearms Control Act 60 of 2000, the trial court declared the accused
unfit to possess a firearm.

[2] After leave to appeal was refused by the trial court, l eave was granted by this
Court in relation to sentence alone. There is no cross -appeal. Before us, Mr R.J.
Sivnarain and Mr N.G. Breyl appeared for the accused and the State respectively.

[3] A vital procedural issue arose during the appeal before us. It requires elucidation.
While reading the record, th is Court formed a prima facie view that it may, mero motu,
consider increasing the sentence imposed by the trial court . This power is reserved in s
322(1)(b) read with (6) of the Criminal Procedure Act 51 of 1977 (“the CPA”). While the
former sub-section empowers a court of appeal to ‘impose such punishment as ought to
have been imposed at the trial’, t he latter expressly imbues an appea l court with the
power to impose a more severe punishment. Section 322(6) of the CPA reads:

‘The powers conferred by this section upon the court of appeal in relation to the imposition of
punishments, shall include the power to impose a punishment more se vere than that imposed
by the court below or to impose another punishment in lieu of or in addition to such punishment.’

[4] The power in s 322(6) must be exercised without infringing an appellant’s right to
a substantively fair appeal process as entrenched in s 35(3)( o) of the Constitution,
1996.1 Prior notice of an appeal court’s intention to consider imposing a harsher
sentence must be given. In Bogaards v S,2 the rationale for the notice requirement was
explained thus:

‘The notice requirement is merely a prerequisite to the appellate court’s exercise of its
discretion. After notice has been given and the accused person has had an opportunity to give
pointed submissions on the potential increase or the imposition of a higher sentence upon
conviction of another offence, the appellate court is entitled to increase the sentence or impose
a higher sentence if it determines that this is what justice requires.’

a higher sentence if it determines that this is what justice requires.’


1 The fair trial right of an accused includes fair sentencing procedures. See S v Mabaso 2014 (1)
SACR 299 (KZP) paras 74 - 76.
2 2013 (1) SACR 1 (CC) para 72. Also, see Nabolisa v S 2013 (2) SACR 221 (CC) paras 32 - 34.

[5] Prior notice serves to ensure procedural fairness by giving effect to the audi
alteram partem principle.3 The notice requirement was satisfied in this case . First, a
meeting was convened on 25 August 2025 where the court’s intention to consider
invoking its powers under s 322(6) of the CPA was communicated to counsel for both
sides. This verbal notification was followed-up with written notice despatched via email
on 27 August 2025.

[6] In response, on 4 September 2025, the appellants’ attorneys delivered a notice of
abandonment of the appeal. This was met with immediate opposition. Mr Breyl promptly
sent an email in which he submitted that the right o f abandonment lapsed once the
court gave notice of its intention to consider increasing the sentence. Mr Breyl relied on
the following passage by Du Toit et al Commentary on the Criminal Procedure Act at 30-
50:

‘As soon as it were to become known that the court of appeal intended increasing the sentence,
the appellant would indeed be able to prevent the court from exercising the power to increase
sentence by withdrawing his appeal. For this reason the right to withdraw an appeal lapses as
soon as the court of appeal has notified the appellant via the registrar that an increase is under
consideration.’ (my emphasis added)

[7] In law, t he right to abandon an appeal does not lapse once notice is given of a
court’s intention to consider in creasing a sentence. The correct legal position is that the
right continues, but its exercise is fettered by a procedural requirement , namely, an
appellant requires leave of the court to effect an intended abandonment (i.e.,
withdrawal).4


3 Bogaards v S supra para 66. At para 65, the apex court held:
‘Notifying an appellant that the court is considering an increase in sentence or the imposition of a
higher sentence on conviction of a different offence is primarily for the benefit of that appellant. It

ensures that the appel lant is not taken by surprise at the hearing and, importantly, gives her a
meaningful and adequate opportunity to make full representations on sentencing and, specifically,
on why the sentence should not be increased or a higher sentence should not be impo sed after
conviction on another offence. This, in turn, ensures that all the relevant information is before the
court in order for a fully informed decision to be made.’ (footnotes omitted)
4 Bogaards v S supra para 57.

[8] My view that a mere limitation of the right to withdraw an appeal operates ex
lege, as distinct from an extinction of that right through its lapsing, is supported by
judicial precedent.5 It also finds support in Bogaards v S supra para 70. In that case, the
apex court held as follows:

‘It must be noted that , in formalising this notice requirement, this Court is also formalising the
corollary practice of limiting an accused person’s right to withdraw an appeal once notice of an
increased sentence has been given.’ (my emphasis added)

[9] Accordingly, Mr Sivnarain was afforded the opportunity to apply for leave to
withdraw the appeal . He did so from the bar. Mr Sivnarain informed the Court that the
appellants instructed that their appeal be withdrawn based on advice from Mr Sivnarain.
He furnished the Court with a copy of an email that he despatched on 25 August 2025
to his instructing attorney where he provided feedback on the gist of the meeting held
on that day where this C ourt gave notice of its intention to consider increasing the
sentence. The following extract from Mr Sivnarain’s email is relevant in the application
to withdraw:

‘There is a great likelihood that the clients’ sentence will be increased on appeal.
Please take instruc tions as to whether they still want to proceed with the appeal in the light of
the above.’

[10] The application for leave to withdraw the appeal was refused. The reasons for
the refusal were encapsulated in an ex tempore judgment by Slingers J. I have nothing
to add, save to say the Court found that good cause was lacking for the granting of
leave to withdraw the appeal after notification was given of th is Court’s intention to
consider a harsher sentence. The circumstances of this case are distinguishable in
material respects from that in Nabolisa v S supra paras 66 - 68. Hence, the outcome
differs too.


5 See R v Grundlingh 1955 (2) SA 269 (A) at 272A; S v Du Toit 1979 (3) SA 846 (A) at 855A-E; S v

Kirsten 1988 (1) SA 415 (A) at 420C-J; Bogaards v S supra para 57.

Salient background facts
[11] To assess the merits of this appeal and/or whether this Court ought to invoke its
powers under s 322(6) of the CPA, it is necessary to discuss key aspects of the record.

[12] On 22 August 2021, Coetzee was at the home of aunt Emmie , the elder who
reared him as a c hild. While there, Coetzee ate lunch. The appellants came to the yard
area of aunt Emmie’s property in search of Coetzee. As Coetzee believed the first
appellant was there to sell him the airtime which Coetzee sought to purchase from him
earlier that day, Coetzee went outside to meet the appellants. Others were also present,
including persons named Wayne and Mario. When Coetzee saw the appellants, he
noticed that the first appellant had a panga in his hand, while the second appellant held
a small axe.

[13] The appellants, who are a father and son duo, enquired from Coetzee as to his
knowledge of a robbery perpetrated on them. When Coetzee indicated that he bore no
knowledge thereof , the second appellant struck at Coetzee with his axe, but missed.
Coetzee, Wayne and Mario then fled. They ran into a room at aunt Emmie’s house .
They locked the door. The appellants followed them to the room and banged on the
door.

[14] Wayne and Mario escaped through an opening. Coetzee stayed. He felt that he
had no reason to fear because he had done nothing wrong. The first appellant, aged 28,
entered the room. He started a fight with Coetzee. At some point, Coetzee unlocked the
door and opened it to escape. However, the second appellant, aged 57, stood outside.
Using his axe, he hit Coetzee on his right elbow and other areas of Coetzee’s body. The
first appellant did likewise with his panga. The assaults were brutal. Coetzee was
unarmed and defended himself against the violent onslaughts using only his forearms.

[15] Eventually, Coetzee could no longer lift his arms to defend himself. He fell to the
ground. While he lay there, the appellants continued hitting Coetzee all over his body

ground. While he lay there, the appellants continued hitting Coetzee all over his body
using the panga and axe they brought with them. When Coetzee’s body looked lifeless,

the appellants stop ped. They left believing that Coetzee was dead. However, he
survived.

[16] The medical evidence support ed Coetzee’s version. The J88 form by Dr Van der
Linde revealed the severity of the violence. The J88 show ed that Coetzee sustained
serious trauma on his head, face, arms, hands, fingers, and legs. Dr Van der Linde
recorded that the ‘injuries is life-threatening’. This is consistent with the appellants using
dangerous weapons. All this supported the magistrate’s finding of an intent to commit
murder.


[17] Coetzee survived the vicious attack, but he was left with serious injuries. The
quality of his life changed drastically. The brutal attack left Coetzee physically disabled.
He will likely be disabled for the re st of his life . He is eligible for a disability grant at
taxpayers’ expense. After considering the Zinn triad of relevant factors for sentencing
purposes, and the period of incarceration imposed in Grigor v S6 for attempted murder,
the trial court sentenced the appellants to seven years direct imprisonment.

Issues for adjudication
[18] The issues before us for adjudication are two-fold. First, the issue arises whether
the appellants proved that the magistrate failed to exercise h er discretion on sentence
judicially and properly.7 If this is answered affirmative ly, then the sentences imposed a
quo fall to be set aside and this Court would then, based on the facts in the record, be at
large to sentence the appellants afresh.8

[19] Secondly, if the first question formulated above is answered in the negative, then
the question arises whether the circumstances of this case justify the sentences

6 [2012] ZASCA 95 (1 June 2012)
7 S v Rabie 1975 (4) SA 855 (A) at 857D-F.
8 See S v Malgas 2001 (2) SA 1222 (SCA) para 12.

imposed by the trial court be increased pursuant to this Court’s power s in s 322(6) of
the CPA.

Submissions by counsel
[20] Mr Sivnarain contended that the magistrate misdirected herself on sentence.
Relying on S v Maliswane and Another ,9 he argued that the magistrate under -
emphasised the appellants’ personal circumstances, their prospects of rehabilitation,
and the remose showed for their conduct. Relying on S v Malgas supra, Mr Sivnarain
submitted that the sentence of direct imprisonment for seven years is shocking. Relying
on S v Beukes10 and S v Petzer,11 he submitted that the magistrate misdirected herself
by finding that direct imprisonment was the only appropriate sentence in the context of
this case.
[21] Accordingly, Mr Sivnarain urged us to set aside the sentence of seven years
direct imprisonment and to substitute it with a less harsh sentence as determined by this
Court.

[22] Mr Breyl, for the State, was in a difficult position . While he wished to argue in
favour of this Court exercising its s 322(6) powers, Mr Breyl was mindful that he
opposed the appellants’ application for leave to appeal on the following basis with
regard to sentence:

‘20. Respondent agrees with the sentence imposed by the honourable court and that it is a
just and suitable sentence. The respondent also humbly submits that another Court will
not interfere with the trial court as there is no material misdirection nor is it ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.’

[23] In his heads filed in relation to this appeal, Mr Breyl persisted with the view
expressed in the extract quoted. However, at the hearing, he made submissions

9 2017 (1) SACR 26 (ECG),
10 1990 (2) SACR 323 (C).
11 1992 (1) SACR 633 (A).

favouring this Court imposing a harsher sentence pursuant to its powers under s 322(6)
of the CPA.

[24] Ultimately, Mr Breyl aligned himself with Mr Sivnarain’s submission that the
sentence of seven years direct imprisonment is inappropriate in this case . He argued
that it is too lenient. Mr Breyl invited us to consider the changed norms in relation to
sentencing for attempted murder. He drew our attention to the minimum sentenc e
regime introduced into the CLAA, 1997 with effect from 5 August 2022. Mr Breyl argued
that a sentence ranging between 10 to 15 years imprisonment would be just and fair for
both appellants as it would reflect the seriousness of the crime.

[25] This Court must resist Mr Breyl’s invitation to consider the new sentencing
guidelines. Doing so would violate the appellant s’ fundamental right to a fair appeal
procedure as is entrenched in s 35(3)( o) of the Constitution. 12 The minimum sentence
did not apply when the appellants attempted to murder Coetzee. Therefore, the trial
court, correctly so, did not apply the minimum sentence guidelines. Moreover, the
appellants were not informed at trial that the minimum sentence may be used for
sentencing purposes, if they are convicted. Accordingly, if this Court were t o be guided
by the minimum sentence regime in any way for purposes of its powers under s 322(6)
of the CPA , then this would be a material irregularity that would lead to a failure of
justice.

[26] On this basis , I hold that t his Court should apply the law and the sentencing
norms which operated when the crime was committed for which the appellants were
convicted. For purposes of this appeal, this Court should not be g uided by the new
sentencing norms that have the force of law when this appeal is adjudicated.

General principles on sentencing at trial and on appeal

12 Section 35(3) of the Constitution confers on an accused ‘a right to a fair trial, which includes the
right … (o) of appeal to, or review by, a higher court’.

[27] Owing to this Court’s stated intention to consider imposing a harsher sentence by
invoking its powers under s 322(6) of the CPA, it is necessary to discuss certain basic
principles that are germane to sentencing , both at the level of a trial court and on
appeal.

[28] Sentencing is not a scientific process in which a just sentence may be
determined with absolute precision. Sentencing is a mental process involving the
exercise of judicial discretion. At times , that discretion is regulated by a legislated
minimum sentence regime from which deviation is permissible only if a court finds that
substantial and compelling circumstances exist. 13 For sentencing, a ge-old principles of
punishment have been jettisoned by the Constitution, 1996 and its values in favour of a
more human-centric approach that balances the rights of victims with an accused’s right
to a fair process.14

[29] Holding the fate of an accused in one’s hands is a weighty judicial
responsibility.15 The formulation of a just sentence is informed by a judicial officer’s
sense (or feel) for what would be just in the circumstances of a case, moderated with a
healthy dose of compassion and mercy, and mediated by the ideals of restorative
justice.16 When sentencing an accused , the aims of deterrence, rehabilitation,
retribution, and crime prevention is also promoted in the interests of society . Although
every sentence send s a message (or warning) to societal members, fairness demands
that an accused is not used as a sacrificial lamb on the altar of deterrence for would -be
offenders.17

13 S v Matyityi 2011 (1) SACR 40 (SCA) para 23.
14 Temmies and Another v S [2025] 3 All SA 876 (WCC) para 93.
15 In S v Banda and Others 1991 (2) SA 352 (BG) at 353C, sentencing is described as an ‘awesome
responsibility’.
16 In S v Matyityi supra para 16, the following was held:
‘In South Africa victim empowerment is based on restorative justice. Restorative justice seeks to

emphasise that a crime is more than the breaking of the law or offending against the state – it is
an injury or wrong done to another person. ... As in any true participatory democracy its
underlying philosophy is to give meaningful content to the rights of all citizens, particularly victims
of sexual abuse, by reaffirming one of our founding democratic values namely human dignity. It
enables us as well to vindicate our collective sense of humanity and human ness.’
17 S v Scott-Crossley 2008 (1) SACR 223 (SCA) para 35. Also, see S v Sinden 1995 (2) SACR 704
(A) at 709A - B.

[30] A just sentence is one bearing the hallmarks of proportionality between the crime
and the criminal . A sentence must fit the crime and the criminal who perpetrated it .18
While crimes are similar in nature, no two cases are likely to be on all-fours with each
other; and accused persons a re unlikely to have identical personal circumstances.
Therefore, sentencing is a n individualised process that is fact -based and context -
specific. Sentencing an accused is also not a mechanical process.

[31] Taking into consideration aggravating and mitigating factors, a sentence should
be carefully calibrated by striking a delicate, but fair, balance between those competing
interests and considerations relevant to the mental process of sentencing. The factors
that are legally relevant in this context are: (i) the personal circumstances of the
offender, and his/her prospects for rehabilitation; (ii) the nature, gravity, and prevalence
of the offence(s) involved; (iii) the broader interests of society, including the interests of
the community where the offence (s) was/were committed; and (iv) the impact of the
offence on its victim (s). Each of these factors should be given their due weight to
determine a well -balanced sentence , with no single factor pre-dominating over any
other. None should be over -emphasised, nor under-emphasised. All the factors should
be equipoised.
[32] The addition of (iv) in the list of factors mentioned in the preceding paragraph
aligns with this Division recently holding, correctly so in my view, that the time is ripe to
expand the well-known Zinn trifecta to a quartet that includes consideration of the
consequences of a crime on its victim(s).19 Routinely, our criminal courts consider a pre-
sentence victim impact assessment report . This aligns with an enlightened, victim-
centred penal philosophy as was advanced in, for e.g., S v Matyityi supra para 16.

[33] It would be a usurpation of a trial court’s hallowed prerogative i f it s sentence

[33] It would be a usurpation of a trial court’s hallowed prerogative i f it s sentence
could be substituted simply because an a ppeal court prefers a different punishment.

18 In S v Rabie supra at 862G-H, it was held:
‘Punishment should fit the criminal as well as the crime, be fair to society and be blended with a
measure of mercy according to the circumstances.’
19 S v Buhlungu [2025] ZAWCHC 331 (18 June 2025) para 26.

The power to interfere on appeal is circumscribed.20 Interference is permissible: (i) when
a trial court committed an irregularity result ing in a failure of justice; 21 (ii) when a trial
court misdirected itself in such nature, degree, and seriousness that it shows, directly or
inferentially, that the court did not exercise its discretion at all, or exercised it improperly
or unreasonably, thereby vitiating its decision on sentence; 22 (iii) when the sentence is
so disproportionate, shocking, or startling that no reasonable court could have imposed
it;23 (iv) when there is a striking disparity between the sentence imposed by the trial
court and that which a court of appeal would have imposed if it were the trial court; 24
and (v) when a court of appeal sets aside a conviction on one charge and convicts the
accused of another offence.25

[34] The enquiry on appeal is not whether a trial court’s sentence is right or wrong ; nor
is a mere misdirection in and of itself sufficient to entitle a court of appeal to set aside a
sentence. More is required. What is envisaged here is the existence of indications which
convincingly show that there has not been a proper and reasonable exercise of the trial
court’s sentencing discretion.26 In the absence of distinguishing features of such nature
and effect, interference on appeal with a lower court’s sentence would not be justified.

[35] In law, t his would be so unless the circumstances justify the invocation of an
appellate court’s power to impose a harsher sentence under s 322(6) of the CPA . That
power cannot be utilised indiscriminately (such as, for purposes of imposing a sentence
which an appellate court considers more appropriate merely because it prefers a
harsher sentence to the perceived more lenient sentence imposed by a trial court).27

20 Director of Public Prosecutions, Gauteng v Pistorius 2018 (1) SACR 115 (SCA) para 17.
21 In this context, an irregularity is ‘a wrongful or irregular deviation from the formalities and rules of

procedure aimed at ensuring a fair trial’ ( Nabolisa v S supra para 24). Irregularities are, therefore,
deviations from that which ‘ one would regularly ex pect in a properly conducted criminal trial’ ( S v Jaipal
2005 (4) SA 581 (CC) para 44).
22 S v Hewitt 2017 (1) SACR 309 (SCA) para 8. A misdirection is ‘an error committed by the Court in
determining or applying the facts for assessing the appropriate sentence’ (S v Pillay 1977 (4) SA 531 (A)
at 535E).
23 S v Malgas supra para 12.
24 S v Pillay supra at 535E - F; S v Petkar 1988 (3) SA 571 (A) at 574C.
25 S v Bogaards supra para 41.
26 S v Pillay supra at 535F; Kgosimore v S 1999 (2) SACR 238 (SCA) para 10.
27 S v Malgas supra para 12.

[36] For an appellate court to invoke its power s under s 322(6) of the CPA, it should
first satisfy itself that the difference between the sentence it would impose as compared
with that imposed by the trial court is so substantial that the trial court’s sentence would
appropriately attract the labels (or epithets) of shocking, or startling, or disturbingly
inappropriate.28 If not, then the power to impose a harsher sentence should not be
utilised. In such instances, an appeal court should defer to the trial court’s discretion.

Evaluation of the trial court’s sentence in this case
[37] To apply the test discussed under the preceding heading in the context of this
appeal, it is necessary to consider the trial magistrate’s judgment on sentence . If her
basis for imposing the seven-year direct imprisonment sentence is flawed to the extent
that her sentencing discretion can be said to have been exercised injudiciously, then
interference on appeal would be warranted.

[38] The magistrate’s judgment on sentence was comprehensive. In the course of her
judgment, the magistrate considered the principles on sentencing with reference to well-
known, relevant judicial precedents. This includes , amongst others, S v Zinn ,29 S v
Rabie supra, S v Matyityi supra, and Grigor v S supra.

[39] On the basis of the Zinn triad, the trial magistrate considered: (a) the appellants’
personal circumstances (such as, their respective ages, employment, education, marital
status, and dependents); (b) the ir potential for rehabilitation; and (c) the ab sence of a
prior criminal record for the second appellant. As aggravating factors, the trial
magistrate considered: (d) the absence of remorse and the presence of mere regret;30

28 S v Malgas supra para 12.
29 1969 (2) SA 537 (A).
30 The concept of remorse and how to evaluate whether an accused is remorseful has been usefully
explained as follows: ‘ Many accused persons might well regret their conduct but that does not

explained as follows: ‘ Many accused persons might well regret their conduct but that does not
without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the
plight of another. Thus genuine contrition can only come from an appreciation and
acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful and
not simply feeling sorry for himself or herself at having been caught is a factual question. It is to
the surrounding actions of the accused rather than what he says in court that one should rather

(e) the appellants’ dishonesty when they testified that they were wrongly implicated but
later, only after conviction, the second appellant admitted their participation in the crime;
(f) the offence is serious and involv ed substantial violence; and (g) the interests of
society to be protected from dangerous individuals. The first appellant’s prior criminal
record was also considered as aggravating, but for him only. On all this, the magistrate
cannot be faulted.

[40] The magistrate was mindful that she was tasked with striking a delicate balance
between the interests of society on the one hand, and that of the accused on the other.
Her awareness of this critical aspect is revealed in the following comment made by her:

‘Sentence imposed must boost the confidence of the public in our courts and the criminal justice
system, but this does not mean that the accused must be sacrificed on the alter of
deterrence.’31

[41] The magistrate also considered the contents of the pre-sentencing report filed in
relation to th e appellants. She explained her rationale for not supporting the
recommendations contained therein. She held that ‘the court is of the view that under
these circumstances and the seriousness of the offence t here is no other sentence that
the court can impose except that of direct imprisonment’. 32 This conclusion is , in my
view, unassailable.
[42] The magistrate gave due and proper weight to the appellants’ respective
personal circumstances. When doing so, she expressly recorded, correctly so, that in
cases of serious crimes (such as, attempted murder) , an accused’s personal
circumstances recedes into the background , and the interests of society in crime
prevention, deterrence, and retribution should come to th e fore and assume greater
significance.33


look. In order for the remorse to be a valid consideration, the penitence must be sincere and the
accused must take the court fully into his or her confidence.’ (S v Matyityi supra para 13).

accused must take the court fully into his or her confidence.’ (S v Matyityi supra para 13).
31 Record page 407: lines 14 – 17.
32 Record page 412: lines 4 - 7.
33 DPP , Gauteng v Pistorius supra paras 22 - 23.

[43] The magistrate considered different sentencing options and held that a
suspended sentence or sentence in terms of section 276(1)( h) of the CPA , as
recommended in the Correctional Supervision Report , will send a wrong message to
society. On this basis, the magistrate rejected those options. This conclusion too is , in
my view, unassailable.

[44] When determining the period of incarceration, the magistrate considered Grigor v
S supra and another appeal case of 2015 whose citation is unclear from the record. 34
The magistrate pointed to the fact that the SCA in both matters upheld prison terms of
six and five years respectively for the crime of attempted murder.

[45] The magistrate recognised that while she may be guided by judicial precedent,
the sentence which she imposes should, as explained in para [30] above, be fact-based
and context -specific. This is judicious conduct on the magistrate’s part when
determining a just and fair period of imprisonment for attempted murder.

[46] The magistrate imposed a period of seven years direct imprisonment. This
decision reflects that the magistrate applied her mind to the facts and circumstances of
the case before her, and did not simply adopt the prison term imposed in the two cases
cited by her. The magistrate was evidently alive to the additional aggravating factors in
the case with which she was seized (such as, the attack on Coetzee was pre -meditated
and unprovoked; both appellants had ample time and opportunity to leave the scene at
aunt Emmie’s premises before the attack on Coetzee, but both elected to remain and
attack Coetzee with weapons of death and using substantial violence).
[47] I conclude that the sentence imposed by the trial court is not tainted with
misdirection; nor is the sentence shocking (or alarming); nor is the sentence capable of
sustaining the epithet of startling or disturbingly inappropriate. For all these reasons, I
propose to dismiss the appeals by both appellants against their respective sentence.

propose to dismiss the appeals by both appellants against their respective sentence.


34 Record: page 412: lines 22 - 25.

[48] As regards my prima facie view favouring a heavier sentence, I have decided
that this is not an appropriate case where this Court’s powers under s 322(6) of the CPA
should be used . On the basis discuss ed in paras [35] to [36] above, the powers in s
322(6) should be exercised sparingly, and only when appropriate. Although I may have
been inclined to impose a longer period of imprisonment if I were the trial court, I am
alive to the fact that this is not the test for invoking s 322(6). In this appeal, deference
should be shown to the trial court’s wide discretion on sentence.

Order
[49] In the result, based on all the foregoing, I would make the following order:
“The appeal against the sentence is dismissed.”

_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT

I agree, and it is so ordered.

_____________________
H. SLINGERS
JUDGE OF THE HIGH COURT


Appearances:
For appellants: R J Sivnarain
Instructed by: Legal Aid South Africa, Cape Town

For respondent: N G Breyl
Instructed by: Office of the Director of Public Prosecutions, Cape Town