IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: CA 47/2025
Regional Court Case No: RC 44/2023
In the matter between:
HAMILTON RADEBE First Appellant
MICHAEL KGWETE Second Appellant
THABISO KGAME Third Appellant
and
THE STATE Respondent
rt
·~-~ l~~
Coram: Petersen ADJP, Masike AJ
Date enrolled and considered on the papers: 28 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for
hand-down of the judgment is deemed to be 10h00 on 05 February 2026.
Summary: Criminal law – sentence – robbery with aggravating circumstances –
whether the trial court misdirected itself in finding that the period spent in custody
awaiting trial did not constitute a substantial and compelling circumstance
warranting a deviation from the prescribed minimum sentence – whether the
sentence of 15 years imprisonment is disproportionate having regard to the
approximate two years and three months spent in custody awaiting trial- no
misdirection – appeal against sentence dismissed.
_______________________________________________________________
ORDER
________________________________________________________________
On appeal from : Regional Court, Klerksdorp ( Regional Magistrate Melodi ,
sitting as court of first instance):
The appeal against sentence is dismissed.
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JUDGMENT
________________________________________________________________
PETERSEN ADJP (MASIKE AJ CONCURRING)
[1] This appeal serves before us with the leave of the Regional Court,
Wolmaransstad, against the sentence of 15 years imprisonment imposed on each
of the appellants for robbery with aggravating circumstances. The leave to appeal
was granted principally on the question of whether the trial court correctly
exercised its discretion in finding that the period the appellants spent in custody
awaiting trial did not constitute a substantial and compelling circumstance
warranting a deviation from the prescribed minimum sentence.
[2] The central issue we must determine is the weight to be attached to the pre -
sentence detention period of approximately two years and three months.
[3] A plethora authority has evolved from the Supreme Court of Appeal. In the
most recent judgment of Supreme Court of Appeal judgment in Loyiso Ludidi and
Others v S
1, delivered on 29 November 2024, the SCA clarified the approach to
pre-sentence detention in the context of prescribed minimum sentences. The SCA
re-affirmed its earlier decision in Radebe and Another v S2, where the appellants
had spent some two years and four months as awaiting trial detainees.
1 Loyiso Ludidi and Others v S [2024] ZASCA 162; 2025 (1) SACR 225 (SCA).
2 Radebe and Another v S (726/12) [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) (27 March 2013).
[4] The body of authority from the SCA re -affirms that there is no automatic
deviation from the prescribed minimum sentence when considering the period
spent in custody awaiting trial since it is not, per se, a substantial and compelling
circumstance. It is merely one factor to be weighed in the broader assessment of
proportionality. Further, that there is no mechanical formula (such as a “rule of
thumb” deduction) for calculating the reduction of a sentence based on time
served. As opined in Radebe:
‘[13] … there should be no rule of thumb in respect of the calculation of the weight to be given
to the period spent by an accused awaiting trial . (See also S v Seboko 2009 (2) SACR
573 (NCK) para 22). A mechanical formula to determine the extent to which the proposed
sentence should be reduced, by reason of the period of detention prior to conviction, is
unhelpful. The circumstances of an individual accused must be assessed in each case in
determining the extent to which the sentence proposed should be reduced….’ (emphasis added)
[5] As to the “e xceptionally long” t hreshold, the SCA emphasized that pre -
sentence detention generally becomes a significant factor for deviation only when
it is for an “exceptionally long period of time ” and where the delays were not
occasioned by the conduct of the accused themselves. In Ludidi, a period of five
years and eight months was discussed in the context of life imprisonment, with
the court noting that delays caused by the appellants’ own conduct (e.g., changing
legal representatives) weakened their reliance on this factor. The SCA further re-
affirmed in Ludidi that p roportionality remains key and that t he ultimate test
remains whether the prescribed sentence is unjust or disproportionate to the
crime, the criminal, and the needs of society. The approach adumbrated in Radebe
remains key in assessing proportionality, where Lewis JA stated:
‘[14] A better approach, in my view, is that the period in detention pre-sentencing is but one of
the factors that should be taken into account in determining whether the effective period of
imprisonment to be imposed is justified: whether it is proportionate to the crime committed .
Such an approach would take into account the conditions affecting the accused in detention and
the reason for a prolonged period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances, whether substantial and compelling
circumstances warrant a lesser sentence than that prescribed by the Criminal Law Amendment
Act 105 of 1997 (15 years’ imprisonment for robbery), the test is not whether on its own that
period of detention constitutes a substantial or compelling circumstance, but whether the
effective sentence proposed is proportionate to the crime or crimes committed: whether the
sentence in all the circumstances, including the period spent in detention prior to conviction
and sentencing, is a just one.’ (emphasis added)
[6] As in Radebe, the appellants in the present matter, planned the robbery, they
travelled from Soweto in the Gauteng Province all the way to Wolmaransstad in
the North West Province, armed to the teeth. The victims Zaheer Khan, his
nephew Zabeer, and a cleaner were subjected to the following treatment by the
robbers; accused 1 and 2 in the court a quo, upon entering the shop, immediately
produced 9mm pistols. Accused 1 cocked his gun and pointed it directly at
Zaheer’s face. Accused 2 pointed his firearm at Zabeer. The victims were forced
into the storeroom at the back of the shop. Once there, they were ordered to lie
flat on their stomachs on the floor where the robbers tied their hands behind their
backs using cable ties. While the victims were lying prone, the robbers searched
them and removed their personal cellphones. Accused 2 was seen emptying the
pockets of Zabeer’s trousers while he lay on the floor. Zabeer testified that he did
not resist because he was “terrified for his life.” Before leaving, one of the robbers
stayed behind briefly and threatened t o shoot the victims if they did not remain
calm. Zabeer reported being traumatized by the event. He also felt pain in his
calm. Zabeer reported being traumatized by the event. He also felt pain in his
side, which required him to seek treatment from a doctor immediately after the
incident.
[7] The appellants made off with a substantial loot. Personal cellphones of the
three victims, including an iPhone 13 Pro Max belonging to Zabeer Khan was
taken from his pocket; a Samsung S20 belonging to Zaheer Khan was taken from
his hand; and the cleaner’s cellphone was also taken. Customers’ cellphones that
had been brought in for repairs were taken from a table in the storeroom ; and
additional customers’ cellphones were removed from drawers in the shop. New
contract cellphones stored in boxes in the storeroom were stolen; a pproximately
4 to 5 new cellphones were included in the haul . The robbers took “ everything
that was in the drawers and on the desk”. All the stolen items were loaded into a
backpack that the robbers also took from the shop. The total value of the stolen
cellphones was estimated to be over R200,000.
[9] The period spent in custody as awaiting trial detainees in the present matter
is on all fours with that in Radebe. The facts in the present matter are also greatly
analogous to those in Radebe. Placing the present matter in proper context, the
appellants in this matter were in custody from December 2022 to April 2025, a
period of roughly two years and three months.
[10] In Radebe, the SCA found that:
‘[16] … the prescribed sentence of 15 years’ imprisonment is fully justified in respect of the
robbery committed by both appellants. The robbery was planned; firearms were used; Mr
Henning was assaulted, and held naked at gunpoint; all three complainants were held at
gunpoint during the course of the robbery; the complainants were deeply distressed during and
after the robbery; and a firearm was stolen, as were jewellery and cellphones. The first appellant
had a previous conviction for theft (a competent verdict on a charge of robbery) and the second
appellant was convicted only three months before the commission of the offences in issue on
charges of unlawful possession of a firearm and ammunition.’ (emphasis added)
[11] When applying the principles from Radebe and Ludidi, a period of two years
and three months, while not insignificant, does not rise to the level of being
and three months, while not insignificant, does not rise to the level of being
“exceptionally long” in the context of serious regional court litigation, unlike the
five-plus years seen in Ludidi . The record does not indicate systemic delays
caused solely by the State that would render this detention “ unjust” to a degree
requiring a reduction in sentence. The offence was armed robbery with
aggravating circumstances using firearms and involving the terrorizing of staff at
a V odacom shop. The legislature has ordained a minimum sentence of 15 years
for such offences to address the scourge of violent crime.
[12] The trial court reasoned that the personal circumstances of the accused and
the time spent in custody did not outweigh the seriousness of the offence and the
interests of society. While the Magistrate granted leave to appeal on the possibility
that another court might view the custody period differently, Ludidi constrains
this court from treating that period as an automatic ticket to a lesser sentence.
Notably the trial court in our view applied the incorrect test in granting leave to
appeal. The standard is not a possibility that another court might come to a
different decision on the period of imprisonment. The test is whether there is a
probability that another court would not might come to a different decision.
[13] We are not persuaded that a pre -sentence period of just over two years
constitutes a “substantial and compelling circumstance” sufficient to displace the
legislative mandate of 15 years for armed robbery. To deviate on this ground
alone, given the relatively standard duration of the trial, would undermine the
minimum sentencing regime as interpreted by the SCA. The sentence of 15 years
is not disproportionate to the crime committed.
[14] Whatever sympathy one might have for time spent in custody, Radebe and
Ludidi dictates that it must be weighed strictly. The period here is not
exceptionally long, nor does it render the 15- year sentence shockingly
inappropriate. Accordingly, the trial court did not misdirect itself, and there is no
basis for this court to interfere.
Order
[15] In the result, the following order is made :
The appeal against sentence is dismissed.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
I agree.
TMASIKE
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the appellant: Mr T R Semino
Instructed by: Legal Aid South Africa
Mafikeng
For the respondent: Adv E C Manicus
Instructed by: The Director of Public
Prosecutions,
Mmabatho