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2026
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[2026] ZAMPMHC 4
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Mahlangu and Others v S (A44-2022) [2026] ZAMPMHC 4 (27 January 2026)
FLYNOTES:
CRIMINAL
– Corruption –
Sentence
–
Solicitation
by police officers – Payment to make a suspected case
“disappear” – Seven years imprisonment
–
Trial court materially misdirected itself by overemphasising
status as law enforcement officials – Underemphasised
individual circumstances and broader sentencing considerations –
Imposed sentence was disproportionate and shockingly
inappropriate
notwithstanding that direct imprisonment remained justified –
Set aside and replaced with a term of three
years’
imprisonment.
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MIDDELBURG
CASE NO: A44/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
27/01/2026
In the matter between:
LOEL
THULANI MAHLANGU
FIRST APPELLANT
LUCAS DEE BUTI
MTSWENI
SECOND APPELLANT
BANENGI
MGIDI
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Delivered: This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The
date and time for
hand-down is deemed to be 10:00 on 27January 2026.
JUDGMENT
Coram : Phahlamohlaka
J
et
Langa J
Phahlamohlaka J
Introduction
[1] This is an
appeal only against the sentence imposed by the regional court
sitting at Kwaggafontein (“the court
a quo
”).
[2] On 16 February
2023, the appellants were each sentenced to 7 (seven) years
imprisonment after they were convicted of corruption
in contravention
of section 4(1)(a) of the Prevention and Combating of Corrupt
Activities Act, 12 of 2004, (“PRECCA”).
[3] Although the
appellants sought to appeal both the conviction and sentence, the
court a
quo
only granted them leave to appeal against the
sentence. The appellants petitioned the Judge President of this
Division seeking
leave to appeal the conviction, but their petition
was dismissed, effectively confirming the convictions by the court
a
quo
.
Background Facts
[4] The appellants
were police officers at the time of the commission of the offence.
The evidence is that on 6 December 2013
the second appellant called
the complainant and made an appointment for a haircut as the
complainant was a hairdresser. After five
minutes or so the second
appellant called again informing the complainant that he was outside
the complainant’s parental
home. The complainant approached the
motor vehicle in which the second appellant was an occupant. Another
occupant at the left
back seat of the vehicle, who was later
identified as the third appellant, requested the complainant to come
closer to him. The
complainant obliged and as he approached,
whereupon the third appellant requested him to get inside the
vehicle, which he did.
[5] Inside the
vehicle the complainant found the three appellants. The first
appellant was the driver of the vehicle, the
second appellant was
seated on the front passenger seat and the third appellant at the
back seat. The third appellant then solicited
a bribe from the
complainant in order to make a case against the complainant
“disappear”. The complainant was suspected
of having
stolen airtime vouchers, but charges had not yet been laid against
him. The proposal of the bribe was initiated by the
second appellant.
The complainant ultimately handed an amount of R2 500.00 to the
third appellant.
[6] After a lengthy
trial the court
a quo
was satisfied that the state had
succeeded in proving the guilt of all the appellants beyond
reasonable doubt, hence the conviction
and sentence.
Grounds of Appeal
[7] The appellant
raised the following grounds of appeal some of which are repetitive:
“
7.1
The
court did not strike a balance between the personal circumstances of
the appellant, the crime and the interests of the society
.
7.2
The court overemphasized the
seriousness of the offence and wanted to punish the appellants so
heavily. The court wanted to make
an example out of the appellants
and did not consider the totality of the facts when punishing the
appellants.
7.3 The court
overemphasized the prevalence of the offence and wanted the
appellants to serve as an example to the community and
punish him so
heavily.
7.4 The court erred in
finding that there is not any other suitable punishment other than
the sentence of direct imprisonment and
overlooked other forms of
punishment.
7.5 The court
overlooked the recommendations by the probation officers and social
workers’ reports and sentenced the appellants
to direct
imprisonment.
7.6 The court did not
take into account the number of years that have passed since the
incident and could have realized that the
appellants have moved on
with their lives and their personal circumstances have changed
completely.
7.7 The court
overlooked the fact that the appellants are breadwinners in their
respective families and sentenced the appellants
to such a heavy
punishment (direct imprisonment).
7.8
The court did not take into account the fact that they have been
punished more than enough in respect of this in that they have
already lost their jobs and alla
the
benefits that goes with their
employment
.
7.9 The amount of
money involved is so little that the appellants do not deserve such
kind of punishment.
7.9 The court punished
the appellants heavily merely because the appellants were police
officers at the time of the commission of
the offence rather than
taking factors of sentencing into account when sentencing the
appellants. The appellant’s profession
was detrimental to
their sentence in this case.
7.10 Even though the
court said it blended their sentence with mercy, there was no mercy
shown by the court in sentencing the appellants.
7.11 The effective
sentence of seven (7) years imprisonment is harsh and inappropriate
under the circumstances and induces a sense
of shock.
7.12 The court erred
in finding that aggravating circumstances far more outweigh the
mitigating factors.”
[8] I am not
intending to deal with each and every ground in my judgment because
of the prolix and repetitive nature thereof.
The issues on appeal are
very crisp, and I will therefore confine myself to the question
whether the court
a quo
has misdirected itself when sentencing
the appellants.
The Legal Position
[9]
It is trite that sentencing is pre-eminently a matter that falls
within the discretion of the trial court. The court of
appeal
therefore does not enjoy unfettered powers to interfere with the
sentencing discretion of the trial court. As a result,
the powers of
the appeal court to interfere with that discretion are very limited.
R
v Dhlumayo and Another
[1]
1948
(2) SA 677
(A) at
705-7061991 (1) SACR 198
(A) at 204E).
[10]
In
S
v Malgas
,
[2]
where
the Supreme Court of Appeal held that:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.”
[11]
Therefore, a court of appeal will only interfere with the sentence by
the trial court if the discretion was exercised
wrongly, or the
sentence is vitiated with an irregularity, or misdirection, or when
the sentence is shockingly severe or totally
disproportionate to the
offence committed.
[3]
Evaluation
[12] In
casu
the
court
a quo
was guided by the penal provisions as contained in
section 26(1) of PRECCA, which provides as follows:
“
Any
person who is convicted of the offence referred to in…
(a)
Part 1,2,3 or 4 or section 18 of Chapter 2 is
liable...
(i)
…
.
(ii)
In the case of a sentence to be imposed by a
regional court, to a fine or to imprisonment for a period not
exceeding 18 years.’
[13] It becomes
clear form the penalty provision that the Legislature intended to
afford the offenders convicted of the offences
mentioned in PRECCA an
option of a fine. It was therefore imperative for the trial court to
consider all the facts placed before
it before imposing the sentence.
[14]
The principles regarding sentencing proceedings are well established
in the well-known ‘triad of Zinn
[4]
’
which requires the sentencing court to strike a balance between the
gravity of the offence, the personal circumstances of
the offender as
well as the interests of the society. In
S
v Chipape
[5]
the
court emphasised that all these factors have to be considered on an
equal basis without overemphasising or underemphasising
the one
against the other.
[15] It is
concerning that the court
a quo
disregarded the triad
principles regarding sentencing by even declaring that “this
whole Appellate Division rule that the
court must impose a balanced
sentence in which no factor or aim is overemphasised at the cost of
another is a lot of words.”
[16] By
overemphasising one factor above the others, as it happened in
casu,
the sentencing court ran the risk of imposing a sentence based on
emotions. This would likely lead to the imposition of a sentence
that
is disproportionate, either to the offence or to the offender.
[17] It cannot be
underemphasised that the offence of corruption is a very serious one,
especially when committed by a law
enforcement official who is tasked
with a duty to maintain law and order. The appellants took money from
a vulnerable indigent
person who evidently struggles to make ends
meet.
[18] All the three
appellants were members of the South African Police services, and
therefore they were law enforcement officers.
By virtue of them being
law enforcement officers they ought to have known better about the
consequences of the crime they committed.
I therefore agree with the
court
a quo
that the offence of which the appellants have been
convicted is a very serios one.
[19] However, the
seriousness of the offence alone does not justify a harsher sentence.
It is not the only consideration.
A balance ought to be struck
between the seriousness of the offence, the personal circumstances of
the appellants as well as the
demands of the society. Once a balance
is struck the trial court is enjoined to impose an appropriate
sentence, and not necessarily
a harsher sentence. The sentence
imposed must not be disproportionate to the offence and the offender.
[20]
In S
v
Dodo
[6]
Ackermann
J made the following remarks:
“
The
concept
of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhumane or degrading, particularly
where, as
here, it is almost exclusively the length of time for which an
offender is sentenced that is in issue. This was recognized
in
S
v
Makwanyane
.
Section 12(1)(a) [of the Constitution] guarantees, amongst others,
the right not to be deprived of freedom without just cause.
The
cause’ justifying penal incarceration and thus the deprivation
of the offender’s freedom is the offence committed.
‘Offence’,
as used throughout in the present context, consists of all factors
relevant to the nature and seriousness
of the criminal act itself, as
well as all the relevant personnel and other circumstances relating
to the offender which could
have a bearing on the seriousness of the
offense and the culpability of the offender. In order to justify the
deprivation of an
offender's freedom it must be shown that it is
reasonably necessary to curb the offence and punish the offender.
Thus, the length
of punishment must be appropriate proportionate to
the offence.”
[21]
In casu
the court
a quo
gave no reasons for the sentence it imposed.
In my view the court
a quo
imposed a sentence which is
disproportionate to the offence and the offender. While I agree with
the court
a quo
that a term of direct imprisonment is an
appropriate sentence in the circumstances of this case, I am,
however, of the view that
the sentence imposed by the court a
quo
is shockingly inappropriate and justifies interference by this
court.
Conclusion
[22] From the
reasoning of the court
a quo
it is blatant that the sentence
imposed by the learned magistrate is dispassionate as she emphasised
the fact that the accused
are law enforcement officers above other
factors. This, in my view constitutes a misdirection which justifies
interference with
the discretion of the court
a quo
.
Order
[23] In the result,
I propose the following order:
(a)
The appeal succeeds to the extent of the order in
paragraph (b) below;
(b)
The order of the court
a
quo
is set aside and replaced with the
following:
“
Each
of the accused is sentenced to 3 (three) years imprisonment.”
(c) The sentence is
antedated to 16 February 2023.
KF PHAHLAMOHLAKA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MIDDELBURG
I agree, and it is so
ordered.
M B G LANGA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MIDDELBURG
Appearances
For the
Applicants:
Adv N J Du Plessis
Instructed
by:
Coert
Jordaan Inc. Attorneys
Email:
admin@jorlaw.co.za
For the
Respondent: Adv Moake
Instructed
by:
Office
of the DPP, Middelburg.
Email:
BEmaoke@npa.gov.za
Judgment delivered on:
27 January 2026
Judgment Reserved on:
07 November 2025
[1]
R
v Dhlumayo and Another
[1]
1948
(2) SA 677
(A) at
705-7061991 (1) SACR 198
(A) at 204E).
[2]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12.
[3]
See
Bogaards v S (CCT120/11)
(2012) ZASCA 23
; 2012912) BCLR 1261 (CC);
2013(1) SACR 1 (CC) at para 41. “Ordinarily, sentencing is
within the discretion of the trial
court. An appellate court’s
power to interfere with sentences imposed by courts below is
circumscribed. (S v Anderson 1964(3)
SA 494 (AD) at 495 C-H. See
also S v Salzwedel and Others
1999 (2) SACR 586
(SCA) at para 10.
[4]
S v
Zinn
1969 (2) SA 537
(A) at 540G
[5]
2010(1)
SACR 245 GNP at para 8
[6]
[2001] ZASCA 16:
2001
(5) BCLR 423
(CC)