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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 15/2025
In the matter between:
YES / NO
YES / NO
YES/ NO
YES / NO
BAXOLELE NDOBENI Appellant
and
THE ST ATE Respondent
Neutral citation: Ndobeni v The State (Case no CA&R 15/2025) 14
November 2025.
Coram:
Heard:
Delivered:
STAN TON J and TYUTHUZA AJ.
08 September 2025.
14 November 2025.
Summary: Criminal law - Appeal against conviction of murder and related
sentence - Appellant shot and killed the deceased - Appellant pleading self
defence - Requirements for lawful self-defence - Evidence of a single witness -
Cautionary rule - Contradictions and inconsistencies - Appeal against conviction
and sentence dismissed.
2
ORDER
The appeal against both the conviction and sentence is dismissed.
JUDGMENT ON APPEAL
Tyuthuza AJ
Introduction:
[1] The appellant was charged with one count of murder read with the
provisions of section 51 (2) of the Criminal Law Amendment Act.1 It is
alleged that on 23 June 2020, and at or near Diskobolos Military Base,
Kimberley, in the Northern Cape, the appellant unlawfully and intentionally
killed Mr Ndaodane Sesethu Mh labathi ("the deceased") by shooting him
with a rifle.
[2] The appellant appeared at the Kimberley Regional Court, where he
pleaded not guilty to the charge. He was convicted on 19 June 2023. On
18 August 2023, he was sentenced to12 years' imprisonment.
[3] Leave to appeal against both his conviction and sentence was refused by
the trial court but granted by this Court on petition.
[4] A brief plea explanation that was given on behalf of the appellant by his
legal representative was to the effect that: (a) the appellant acted in self
defence when the deceased attacked him with an open knife, (b) the
deceased attacked the appellant from behind, (c) when the appellant
1 105 of 1997.
3
swung around, the deceased was about to stab him, and (d) the appellant
shot the deceased at close range with an R4 rifle.
[5] The appellant made certain formal admissions in terms of section 220 of
the Criminal Procedure Act 51 of 1977, ("the Act"), admitting: (a) the date
and place where the incident took place, (b) the identity of the deceased,
(c) the correctness of the facts and conclusions as contained in the post
mortem report, and (d) the cause of death as recorded in the post mortem
report, namely that the deceased died due to a gunshot to the chest.
Evidence:
[6] The evidence on which the appellant was convicted comprised of the oral
testimony of one eyewitness (Mr Mgoduka), two other witnesses (Mr
Nambani and Mr Mdlele), the photographs of the crime scene, and the
report on the post mortem examination.
[7] Mr Mgoduka , a colleague of both the appellant and the deceased, testified
that upon his arrival from his shift, he was informed by Mr Md lele of the
fight between the deceased and the appellant, and was asked to speak to
the two of them. He intervened and spoke to the appellant and the
deceased, who said that the two of them were okay. They further stated
that Mr Mdlele and Mr Mgoduka were the ones escalating things. Mr
Mgoduka 's testimony is that he went back inside the bungalow/sleeping
quarters and went to his bed, where he was eating and on a video call.
The appellant and the deceased entered the bungalow , and both of them
went to their beds.
[8] He explained that his bed was also closer to the appellant's bed, whilst the
deceased's bed was further away. The deceased and the appellant were
drunk and, whilst inside, exchanged words with each other. He testified
that the deceased moved from his bed and was coming towards their side
4
and told the appellant that he would "wipe him". The deceased moved
towards the bed of the appellant, the appellant was in his bed, and Mr
Mgoduka could not see what the appellant was doing in his bed as he was
busy on his phone. The deceased came back, stood next to Mr Mgoduka 's
bed and was swearing at the appellant. Mr Mgoduka stated that when he
looked back, he saw the appellant standing with his R4 rifle aiming
towards his locker. He saw the deceased take out a knife and smile wh ile
standing. He heard the gun being cocked, and the appellant fired two
shots, and the deceased fell to the ground. He stood up and ran away
because he was scared.
[9] M r Nambani testified that on the day of the incident, he was called to the
bungalow where the incident occurred. He was not present w hen the
shooting happened. Upo n arrival at the bungalow, he found the deceased
lying with his face down with an open knife in his right hand. The appellant
w as sitting on his bed. He enquired from the appellant what had
happened, and the appellant informed him that he had shot and killed the
deceased because, had he not done so, he would have been the one
killed. He testified to not having observed any physical injuries on the
deceased or the appellant.
[1 O] M r Mdlele testified that he was with the appellant and the deceased on the
day of the incident, and they we re drinking alcohol. He testified that a fight
ensued between the deceased and the appellant, and that the fight was
started by the deceased. Subsequently, the appellant went to sleep on his
bed, thereafter, he and the deceased followed the appellant to the
bungalow. He testified that the deceased was very drunk on the day of the
incident, whilst the appellant was tipsy. Whilst on his bed, he heard the
appellant saying that he is not afraid of the deceased, thereafter, the
deceased challenged the appellant to a fight outside the bungalow. He
testified that he did not pay attention to the argument between the
5
appellant and the deceased as he covered his head with the blankets,
ready to sleep.
[11] A few moments later, he heard a gunshot being discharged, and later
peeped through to see the deceased lying on his stomach and the
appellant on his bed with a rifle. He also testified that there was an okapi
knife lying some distance from where the deceased was lying. He further
testified that the distance between the deceased and the appellant was
about five metres.
[12] The appellant testified at trial. He testified that he and the deceased had a
good relationship when they started to work together, but that the
relationship turned sour, as they encountered some problems. On the day
of the incident, he found the deceased and another colleague consuming
alcohol, and he connected music from the speaker. The deceased told
him that he wanted to connect his phone to play music, the appellant took
out his phone and told the deceased to search for the music he wanted to
play. He later received a call, but his phone was still in the deceased's
possession, and the deceased would not give him his phone back and
rejected the call. The deceased eventually gave him his phone, and he left
to return the call. Upon his return, he found that the deceased was busy
trying to connect his phone, but it did not connect. The deceased told him
that he was undermining him and making him look like a fool, the
deceased hit him on his mouth with his elbow. He wanted to fight back,
but his colleague came between them and told him to leave the deceased
alone because he was drunk. He testified that the deceased was heavily
drunk.
[13] He continued with his testimony that he went into his bed and, as he was
In bed, he received a call and remembered that people owed him money.
He then retrieved their names from his phone to write them on the back of
his pay slip, which he had taken out. Whilst he was writing, he heard the
6
deceased's voice swearing at him, and when he looked back, he saw the
deceased holding a knife. He testified that the deceased attempted to stab
him with the knife, he dodged him, and they faced each other. Whilst they
were facing each other, he pushed the deceased, who staggered back,
and the deceased tried to stab him again. The deceased cut him on his
left arm during the second stabbing move. He then took out the gun and
the magazine from the locker, he put the magazine in the weapon , and as
he was busy, the deceased came running holding the knife upwards,
approaching him. He cocked the gun and shot. As he was shooting, he did
not realise that the gun was on automatic. The deceased fell in front of
him; he took the gun and put it away, and called Lieutenant Fish, whom he
could not get hold of, and then called 10111 and the police. Mr Nam bani
entered the room and asked him where the magazine of the gun was. He
did not answer and just pointed towards the locker. He was then
handcuffed and taken to the police station.
[14] He testified that when the deceased approached him with the knife, he
concluded that the deceased was going to stab him and he shot the
deceased because there was nowhere to run, as there were lockers and
beds behind him. Under cross-examination, when confronted about the
contradictions in his evidence, the appellant averred that his trial was not
conducted in accordance with his instructions, hence he changed his legal
representative.
The findings of the Court a quo:
[15] Upon evaluating the evidence presented, the court a quo considered the
fact that Mr Mgoduka is a single witness regarding the circumstances
under which the deceased was shot. The court a quo magistrate evidently
approached the evidence with caution. She found Mr Mgoduka to be an
honest witness whose evidence should be believed. The court a quo
further found that the witnesses, Mr Mgoduka and Mr Mdlele, corroborated
7
each other in relation to the events that had unfolded upon Mr Mgoduka 's
return from his shift; and that the evidence in the photo albums
corroborated the version of Mr Mgoduka's evidence in respect of the
position of the deceased body after the shooting incident. Further, the
court a quo found that the absence of blood trail indicated that the body
was not moved from the position where it was found as indicated by the
appellant.
[16] The court a quo also had regard to the contradictions in respect of the
position of the knife. It found that it was comm on cause that the deceased
was in possession of the knife prior to the shooting, and that whether the
knife was in his hand or not following the shooting, was imm aterial.
[17] In respect of the appellant's evidence, the court a quo found that:
17 .1. The appellant presented contradictory versions as to how the
deceased approached and attacked him, and how the shooting
happened.
17 .2. The abovementioned contradictions to be material.
17.3. The appellant's account as to where he was when he fired the
shots, how he was allegedly attacked by the deceased and wha t he
did after the shooting, not to be a reliable and truthful account.
17.4. When the shots were fired, there was no unlawful attack on the
appellant.
[18] Accordingly, the court a quo rejected the appellant's version of events,
specifically his claim that he acted in self-defence in killing the deceased.
Consequently, the court a quo convicted the appellant of murder and
sentenced him to 12 years imprisonm ent.
The grounds for appeal:
8
[19] The appellant contends that the court a quo erred in convicting him as it
committed the following misdirections:
19.1. Convicting the appellant on the single evidence of Mr Mgoduka;
19.2. Finding that the contradictions were not material;
19.3. Concluded that there was corroboration for the evidence of Mr
Mgoduka on the issue of self-defence; and
19.4. Finding that the appellant did not act in self-defence and thus
rejected his evidence.
Single witness evidence:
[20] Section 208 of the Act dictates that an accused person may be convicted
of any offence on the evidence of a single competent witness. Thus, a
conviction based on the evidence of a single witness would be sustainable
if such evidence is clear and satisfactory in all material respects.2
[21] The appellant submitted that the evidence of Mr Mgoduka was not clear
and satisfactory in every material aspect regarding the shooting of the
deceased, as he contradicted himself. In support of this submission, the
Court was referred to S v Mahlangu and Another 2011 (2) SACR 164
(SCA) at paragraph 21 , wherein the Supreme Court of Appeal ("SCA ")
held that:
'The court can base its finding on the evidence of a single witness, as long as
such evidence is substantially satisfactory in every material respect, or if there is
corroboration. The said corroboration need not necessarily link the accused to
the crime (See S v Hlongwa 1991 (1) SACR 583 (A); Stevens v S [2005] 1 All
SA 1 (SCA) para 17; and S v Artman and Another 1968 (3) SA 339 (A) at 341 A
B)."
2 R v Mokoena 1932 OPD 79 at 80.
9
[22] What the appellant seems to have ignored is the SCA's jurisprudence
elaborating on what it means for a single witness's evidence to be
substantially satisfactory in every material respect. In Rugnanan v S3, the
SCA further confirmed that an accused can be convicted of any offence on
the evidence of a single competent witness, but that such evidence must
be approached with caution, and made the following observation:
'The cautionary rule does not require that the evidence of a single witness must
be free of all conceivable criticism. The requirement is merely that it should be
substantially satisfactory in relation to material aspects or be corroborated.'
[23] Thus, evidence can be satisfactory, even if it is open to a degree of
criticism.4 Moreover, while caution is required, it ought not to be applied so
rigidly as to displace the proper exercise of common sense.5
[24] Further numerous authorities have confirmed that the evaluation of the
evidence of a single witness requires the trial court to consider such
evidence in the context of and together with all other evidence adduced at
the trial, to prove the guilt of the accused beyond reasonable doubt.6
Consequently, the conclusion reached by the court must account for all
the evidence.
[25] The court a quo was alive to the fact that it was dealing with the evidence
of a single witness. It held as follows: 'The court therefore in light of the
fact Mgoduka is a single witness, the Court therefore must be mindful of
3 (259/2018) [2020] ZASCA 166 (10 December 2020); [2020] JOL 49135 (SCA) para 23.
4 S v Sauls and Others 1981 (3) SA 172 (A) at 180F-H.
5 See also S v Artman and Another 1968 (3) SA 339 (A) at 341A-D.
6 Ibid. See also S v Chabalala (2003 (1) SACR 134 SCA) para 15; Naude and Another v S [2011]
2 All SA 517 (SCA) para 29.
10
the intrinsic dangers of Rifleman Mgoduka 's evidence as a single witness
and approach such evidence with caution.'7
[26] In regard to the evidence of Mr Mgoduka , the court further held: 'After
proper consideration of his evidence and in light of the totality of the
evidence, he impressed the Court as a witness whose evidence may and
should be believed.'
[27] The court a quo, in its analysis of the evidence of Mr Mgoduka as a whole
made credibility and factual findings. A court of appeal will be extremely
reticent to interfere with the credibility findings of the trial court, as well as
the evaluation of the oral testimony, given the better position of the trial
court in hearing and appraising the evidence of the witnesses. It will,
however, interfere if it is convinced that the credibility findings made by the
trial court are patently incorrect. 8
[28] In his statement to the police, Mr Mgoduka stated that he saw the
deceased remove a knife from his pocket and at the same time heard a
gun cocking. On the other hand, during his oral evidence, he testified that
he did not see a knife when the deceased passed him moving towards the
appellant, and he only saw the knife in the deceased's hand when the
deceased retreated. Under cross examination, Mr Mgoduka explained that
he did not know where the knife came from but had assumed that it must
have been from the deceased's pocket. Further, despite the
abovementioned differences between the police statement and his oral
evidence, it is significant to note that throughout his examination, Mr
Mgoduka insisted that when the shooting happened, he was laying in his
bed, the deceased was standing slightly in front of him, with a knife in his
h and , and the appellant was slightly behind him. He also maintained that
7 Record Vol 7 at 639 - 640.
8 S v Mkoh/e 1990 (1) SACR 95 (A) at 1 00E ; see also R v Dh/umayo and Another 1948 (2) SA
677 (A) at 705-706.
I I
when he turned around to look at the appellant, the appellant had the gun
in his possession and fired two shots towards the deceased.
[29] In my view, the court a quo carefully considered the evidence in its totality,
it considered both the State and the defence's cases and the credibility of
Mr Mgoduka. The court a quo stated: 'After the evaluation of the State's
case, the fact that the Court accepted the State's case is not sufficient
reason to reject the evidence presented by the defence. It is trite law that
the Court should consider the totality of the evidence and therefore the
Court must evaluate the evidence of the accused and to decide on the
totality of the evidence ... ' Thus, it would be disingenuous to argue that the
trial court disregarded the cautionary rules applicable to single witnesses.
Whether the contradictions were material:
[30] It is trite that when an appeal is centered on the issue of corroboration, the
appeal court would not lightly interfere with the factual findings of the trial
court unless they are manifestly wrong or are based on the wrong
premise. The Court in S v Francis9 said:
'Bearing in mind the advantage wh ich a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that the court of appeal will
be entitled to interfere with a trial court's evaluation of oral testimony.'
[31] The court a quo considered the contradictions regarding the knife and had
regard to the matter of S v Mafaladiso en Andere, 10 w herein the SCA
stated that the contradictory versions must be considered and evaluated
on a holistic basis to decide whether the truth has been told despite the
shortcomings.
9 1991 (1) SACR 198 (A) at 199A.
10 2003 (1) SACR 583 (SCA).
12
(32] Regarding the contradictory evidence in relation to where the knife was
immediately after the shooting, Mr Mdlele testified that it was lying on the
ground close to the deceased, wh ilst Mr Mgoduka testified that it was in
the deceased's hand. The court a quo considered the photographic
evidence before it, in which photographs depicted the knife on the ground,
and thus found corroboration for Mr Mdlele's evidence. The trial court
found that it was common cause that the deceased had a knife in his
possession prior to the shooting, thus whether the knife was in his hand or
not following the shooting was immaterial.11 The court also considered the
contradiction in Mr Mgoduka 's evidence and his police statement
regarding wherefrom the deceased took out the knife, and found that this
contradiction too was immaterial in that it was common cause that the
deceased had a knife in his possession.
[33] I agree that the contradictions are immaterial and insignificant. Mr
Mgoduka testified that everything happened fast, and it was a confusing
situation, thus, it is to be expected that his recollection is not perfect in all
respects. There were no indications of fabrication of evidence, and all the
witnesses testified to what they had seen and/or heard on the day.
Therefore, the court a quo assessed the contradictions holistically and
correctly found that there was a reasonable explanation for the difference
between the oral evidence and the police statement.
Self-defence:
[34] To successfully raise self-defence, an accused must show the following:
(a) that it was necessary to avert the attack; (b) that the means used were
11 See for example Mokoaleli v S (2023) JOL 58680 (FB) para 33.
13
a reasonable response to the attack and (c) that they were directed at the
attacker.12
[35] In Horn v S13, the following was stated:
'It is trite that a person acts lawfully when he/she uses force to repel an unlawful
attack, which has commenced, or is imminently threatening, upon her or
somebody else's life, bodily, integrity, property, or other interests, which deserves
to be protected, provided the defensive act is necessary to protect the interest
threatened, is directed against the attacker, and is reasonably proportionate to
the attack.
Although the test for self-defence is an objective one, our higher courts have
repeatedly stated that judicial officers should not judge the events like an
armchair critic but should place themselves in the shoes of the attacked person
at the critical moment , and keep in mind that the attacked person probably only
had a few seconds in which to make a decision, which was of vital importance to
him. In S v Ntuli 1975(1) SA 429 (AD) Holmes JA stated the following in that
regard:
"In applying these formulations to the flesh-and-blood facts, the Courts adopt a robust
approach, not seeking to measure with nice intellectual callipers, the precise balance of
legitimate self-defence or the foreseeability or foresight of resultant death".'
[36] It is common cause that the appellant raised self-defence from the onset.
[37] One of the most important elements of the said defence is that it can be
resorted to only when it is necessary to do so. The Court in Mpati v S 14
said the following in this regard:
12 S v Botha 2019 (1) SACR 127 (SCA); [2019] 1 All SA 42 (SCA) para 1 0; see a/so J Burchell
Principles of Criminal Law 5 ed (2016) at 125; see a/so J Burchell, PJ Schwikkard, TB Mosaka
Burchell's Principles of Criminal Law 6 ed (2025) at 117.
13 [2023] ZAWCHC 235 (5 September 2023) para 14-15.
14 [2013] ZAECGHC 40; [2017) JOL 36859 (ECG) para 25.
14
'It must be the only means available at the time for warding off the attack. The
force utilised to resist or prevent the attack must have been necessary and
proportional to the attack. If it were otherwise, private defence degenerates into
private vengeance. A defence which uses more force than is necessary, or which
is unjustified or unnecessary, is not protected.'
[38] The question whether the State has established beyond a reasonable
doubt that the appellant did not act in self-defence is mainly a factual
question that needs to be answered having regard to the totality of the
evidence.
[39] The State argued that the appellant presented contradictory versions
between his plea explanation and his oral evidence. In his plea
explanation, he stated that the deceased attacked him from behind ~nd he
shot the deceased with the rifle at close range. However , during cross
examination, the appellant introduced two instances of attack from the
deceased, such that the appellant shot the deceased during the second
attack after having pushed the deceased away during the first attack.
[40] The State also highlighted the appellant's testimony that he is
knowledgeable when it comes to an R4 rifle and that he was aware of the
live rounds he had loaded in the magazine. During cross-examination, the
appellant testified that it was his intention to shoot the deceased in order
to prevent the deceased from attacking him or to try and scare the
deceased, so that he would not injure him any further. He was persistent
that the deceased was approaching him at a fast speed.
[41] When questioned about the injuries he sustained, he explained that the
deceased had stabbed him on the upper arm and a scratch mark where
the knife had penetrated evidenced this. He testified that he did not bleed
heavily. He later testified that he could not say with certainty how the knife
had stabbed him on the inside of his arm . The appellant was at pains to
15
explain the circumstances which led to the shooting, the alleged injuries
he sustained, and at many times conceded that he is unable to explain
how things unfolded. Importantly, he seemed to be altering his evidence.
[42] During cross -examination, Mr Mgoduka accepted that, because he was
trying to eat while also on a video call, he could not tell for sure what the
deceased did the moment he lifted his eyes to look at the appellant. On
the other hand, Mr Mgoduka at all times maintained that the deceased
was standing slightly in front of him with a knife in his hand, and the
appellant had a rifle in his hand prior to the shooting. Having found the
evidence of Mr Mgoduka to be credible, it is clear therefrom that there was
no attack on the appellant at the time the shots were fired, the danger had
abated.
[43] Furthermore, the appellant conceded that the rifle he used was to shoot
and kill and not to scare off an attack. Although he was adamant that the
mere fact that an R4 is meant to shoot and kill does not necessarily mean
that death is imminent, there can be no doubt that the appellant knew
when he was cocking the gun that serious damage would result, including
death. It must follow, therefore, that the appellant failed to show that it was
necessary for him to avert the attack under the circumstances.
[44] The appellant could have averted the attack by resorting to conduct which
was less harmful to the deceased and which was necessary to overcome
the threat. The appellant could have fired warning shots to avert the
attack. I am of the view that a reasonable rifleman in the position of the
appellant would not have acted in the same way as the appellant, and
would not have shot the deceased.
[45] The court a quo correctly found that the State had proven that the
appellant had intentionally killed the deceased in the form of do/us
16
eventualis. The appellant conceded that the rifle is used to shoot and kill,
thus, I am satisfied that the appellant had foreseen the possibility of the
death of the deceased as a result of his actions, and that he had
reconciled himself with this possibility by shooting the deceased.15
(46] I agree with the court a quo in its finding that the appellant's version
consisted of inherent improbabilities and material contradictions and thus
false beyond reasonable doubt. It follows that the appeal against the
conviction must fail.
Sentence:
(47] I now turn to deal with sentence. As alluded to above, the appellant was
sentenced to twelve 12 years' imprisonment. The appellant conceded that
the court correctly found substantial and compelling reasons to deviate
from the minimum sentence, but submitted that the period of twelve years
is shockingly harsh and inappropriate. It was submitted that it be set aside
and substituted with a lesser sentence.
(48] In S v Bogaards16, the Constitutional Court held as follows:
'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 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. A court of appeal can
also impose a different sentence when it sets aside a conviction in relation to one
charge and convicts the accused of another.'
15 See Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 31 7 (SCA) para 51 .
16 (2012) ZACC 23; 2012 (12) BCLR 1261 (CC ); 2013 (1) SACR 1 (CC) para 41.
17
[49] In terms of section 51 (2) of the Criminal Law Amendment Act17, the
appellant, upon conviction, would be liable to imprisonment of fifteen (15)
years, unless the court finds that there are substantial and compelling
circumstances to deviate from the prescribed minimum sentence.
[50] The appellant contended that the sentence of ten (10) years would be
proportionate in the circumstances and referred the Court to comparative
authorities to support his contentions. It is well-established that each case
must be determined on its own facts. Sentences imposed in comparable
cases are not binding on the court; they serve only as persuasive
guidelines to inform the exercise of the court's sentencing discretion. The
Appellate Division in S v Sinden18 aptly puts it thus:
'Decided cases dealing with sentence may be of value also as providing
guidelines for the trial court's exercise of discretion (see S v S 1977 (3) SA 830
(A)) and they sometimes provide useful guidance where they show a succession
of punishments imposed for a particular type of crime. (See R v Karg 1961 (1) SA
231 (A) at 236G). But it is an idle exercise to match the colours of the case at
hand and the colours of other cases with the object of arriving at an appropriate
sentence. "(E)ach case should be dealt with on its own facts, connected with the
crime and the criminal".'
[51] Likewise, the court in S v 0 19 pertinently observed that 'decided cases on
sentence provide guidelines, not straitjackets.' Furthermore, in S v PB 20,
the SCA warned against a slavish adherence to previous sentencing
decisions, noting that such an approach would not only be improper, but
that it may amount to an abdication by the court of 'its duty and discretion
to consider sentence untrammelled by sentences imposed by another
court, albeit in a similar case.'
17 Supra fn 1.
16 1995 (2) SACR 704 (A) at 708A - B.
19 1995 (1) SACR 259 (A) at 260E.
20 2013 (2) SACR 533 (SCA) para 16.
18
[52] Thus, it is crucial that the sentencing court exercises its discretion
properly. Nonetheless, it is equally imperative that sentencing in
comparable cases reflects a measure of consistency.21
[53] The sentence which was imposed in this case is not materially different
from the sentences which were imposed in other comparable cases
referred to by the appellant, wherein sentences between 1 0 and 12 years
were imposed.
[54] Having considered this matter, I am of the view that the fact that the
appellant was an experienced rifleman is an aggravating factor. He was
aware of the serious damage that could result when he fired the rifle. The
sentence of 12 years can hardly be said to be disproportionate to the
offence for which the appellant was convicted. The appellant's sentence is
consonant with other sentences in other comparative cases. There is no
basis on which this Court can interfere with the sentence imposed by the
court a quo. It therefore follows that the appeal against the sentence must
also fail.
Order:
[55] In the result, the following order is made:
1. The appeal against both the conviction and sentence is dismissed.
ACTING JUDGE
NORT
21 S v McMillan 2003 (1) SACR 27 (SCA) para 10.
Appearances
For Appellant:
Instructed by:
For Respondent:
Instructed by:
19
I concur
S ANTON J
JUDGE OF THE HIGH COURT
NORTHERN CAPE D IVISION
Adv H Steynberg
Legal Aid South Africa
Adv E Kruger
Director of Public Prosecutions