(1)
(2)
(3)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA (LIMPOPO DIVISION, POLOKWANE)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES : YES/NO REVISED : YES/NO
VANWYK ASL (AJ)
18 March 2026
In the matter between:
MPHAHLELE DERRICK BALOYI
and
THE STATE
JUDGMENT
VANWYK ASL (AJ):
INTRODUCTION
CASE NO: A25/2024
APPELLANT
RESPONDENT
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[1] The Appellant was convicted on a charge of theft (out of a motor vehicle) after
he tendered a plea of guilty in terms of Section 112(2) of the Criminal
Procedure Act, 51 of 1977.
[2] The Appellant, a 25-year-old male, was sentenced to three years (36 Months)
imprisonment on the 17th of May 2024 by Magistrate Mabasa in the Polokwane
Magistrates Court. The sentence of three years direct imprisonment was
imposed after the court a quo found that the statement by the accused' legal
representative, tendered from the bar, on the accused's behalf was
aggravating in nature as regards the offence of theft committed, together with
the accused's previous conviction dated 11 May 2016 as indicated in Exhibit
B.
[3] The Magistrate held that the accused appeared to have not been deterred from
committing similar offences or further offences based on his previous
convictions if consideration is given to the mitigation factors presented by his
legal representative.
[4] The Appellant was legally represented during the trial. The appeal is against
sentence only.
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[5] The settled approach to be adopted by this court is that the sentencing task
resorts primarily within the scope of the trial court's discretion, and the court
on appeal shall not interfere with a sentence so imposed, save for if it is found
that the sentence is ominously inappropriate and or disproportionate to the
severity of the offence or that the trial court did not exercise its discretion
judiciously. The Appeal court can only interfere with the court a quo's
sentence if the presiding officer had committed a material misdirection and
when the sentence was imposed can be considered shockingly inappropriate.
[6] It was submitted on behalf of the Appellant that an effective sentence of 36
months is shockingly inappropriate, harsh and induces a sense of shock
under the circumstances of this case. The Appellant submitted that the court a
quo erred in failing to consider a suspended sentence as a suitable option
under the prevailing circumstances.
[7] The Appellant further submitted that the Magistrate misdirected himself by
imposing a custodial sentence under the circumstances and wanted to send a
message to offenders such as the Appellant. It was further submitted on
behalf of the Appellant that he was sacrificed on the altar of deterrence and
the Magistrate failed to consider the submitted mitigating and aggravating
factors and as a result, misdirected himself.
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[8] It was further submitted that the Magistrate failed to consider that there were
higher prospects for the Appellants' rehabilitation considering that he pleaded
guilty and did not waste valuable court time and resources. It must be
emphasised that the Appellant initially denied his previous conviction of theft,
that he paid a fine as a result thereof, but later during the proceedings
regained his memory in that regard and admitted his previous conviction .
[9] It was furthermore submitted that the Magistrate misdirected himself by failing
to distinguish between a previous conviction and an admission of guilt fine. It
was submitted that the fine was paid at the police station , the Appellant was
not convicted by a court and the consequences of such payment following the
conviction was not explained to the Appellant. The SAPS69 document
reflected that the Appellant was found guilty on 11 May 2016 as regards the
offence of theft and paid a R 100-00 fine as a result thereof. The Appellant
admitted the contents of the SAPS69 document, confirmed the correctness
thereof, and it was accepted by the court a quo as evidence.
[1 O] It was further submitted on behalf of the Appellant that the Magistrate
misdirected himself in finding that the Appellants' failure to testify under oath
insofar as mitigating factors for the sentence are concerned resulted in his
failure to show remorse for the offence committed. It was submitted that an
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appropriate sentence under the circumstances was a custodial sentence
coupled with a fine.
[11] In conclusion it was submitted on behalf of the Appellant that the court a quo
erred by not finding that the cumulative weight of the following mitigating
factors warranted a sentence far less than 36 months effective imprisonment:
11.1 The Appellant pleaded guilty;
11.2 The Appellant apologized to the complainant ;
11.3 The Appellant is remorseful and had high prospects of rehabilitation.
11.4 The Appellant remained in custody for more than six months awaiting
trial. He was 25 years old when he was convicted.
11.5 The Appellant completed Grade 12 and obtained a Diploma in Civil
Engineering at Capricorn Tvet College at Seshego. He was never
employed from date of obtaining his Diploma. He cooperated with the
South African Police Services from date of his arrest.
11.6 The Appellant is not married and has two minor children aged three
and five, respectively. He used the proceeds from the sale of the
stolen cellphone to purchase diapers, groceries, and clothes for the
minor children. His mother is an unemployed elderly lady.
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[12] The State submitted that the trial court correctly found that direct imprisonment
of three years (36 months) was appropriate under the prevailing
circumstances specifically considering the Appellants previous co~viction of
theft.
THE LAW
[13] In S v RO and Another 2000 (2) SACR 248 (SCA) at para 30, Hener JA
stated as follows:
" .. sentencing is about achieving the right balance or in more high flow terms,
proportionality. The elements at play are the crime, the offender, the interest
of society with different nuances, prevention, retribution, rehabilitation,
reformation and deterrence. Invariably there are overlaps that render the
process more unscientific, even a proper exercise of the judicial function
allows reasonable people to arrive at different conclusions."
[14] In evaluating the evidence tendered, to reach an appropriate sentence, one of
the very important principles applicable is the Zinn triad as determined by S v
Zinn 1969 (2) SA 537 (A) at para 57 which consists of 'the offender, the
offence and interest of society'. In terms thereof the court must weigh the
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personal circumstances of the offender against the nature of the offence and
the interest of society. A court should, when determining sentence, strive to
accomplish and arrive at a judicious counterbalance between these elements ·.
in order to ensure that one element is not unduly accentuated at the expense
of and to the exclusion of the others. (see S v Banda 1991 (2) SA 3·52 (BG)
at 355A).
[15] In Radebe and Another v S 2013 (2) SACR 165 (SCA) at para 14 Lewis JA
stated as follows:
" 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 prolonged period of detention."
[16] In 5 v Bogaards 2013 (1) SACR 1 (CC) at para 41 Khampepe J had the
following to say regarding the power of a court of appeal to interfere with
sentences imposed by courts below:
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"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. It can only do so where the has been an irregularity that
results in failure of justice ; the court below misdirected itself to such an
extent that its discretion on sentence is vitiated, or the senten·ce is so
disproportionate or shocking that no reasonable court could have imposed
it. A court of appeal can also impose a different senten_ce when it sets aside
a conviction in relation to one charge and convicts the accused of another"
[17] The Appellant does not rely on an irregularity. His case or challenge is that
the court a qua overemphasised the following factors:
17 .1 the seriousness of the offence ;
17.2 the interest of society at the expense of the Appellant' personal
circumstances;
17.3 the deterrent effect of the sentence ;
17.4 the prevalence of the offence;
17.5 the retributive element of sentencing and
17.6 theft (from inside a motor vehicle) statistics in the district of
Polokwane
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17. 7 the previous conviction of theft by the Appellant where he paid R
100-00 as an admission of guilt fine, more than 8 years before he
pleaded guilty to a subsequent charge.
[18] Notwithstanding the Appellant's previous conviction of theft, the imposition of
a sentence of 36 months imprisonment under the circu.r:nstances set out
above, prima facie induces a sense of shock. In S v Baartman 1997 (1)
SACR 304 (E), the following comments made at 305d-e are apposite to this
matter:
"In a case such as this it is necessary to be aware of three considerations:
(a) The accused should be sentenced for the offence charged and not
for his previous record.
(b) The public interest is harmed rather than served by sentences that
are out of proportion to gravity of the offence; and
(c) While it may be justifiable up to a point to impose escalating
sentences on offenders who keep on repeating the same offence,
there are boundaries to the extent to which sentences for petty
crimes can be increased"
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DISCUSSION
[19] It is this court's view that the court a quo undoubtedly overemphasised the
factors listed in paragraph 17 above by failing to consciously . and
appropriately consider and give effect to the factors highlighted in
paragraph 11.1 to 11.6 above. There is a striking imbalance between the
Appellants previous conviction, his personal circumstances and the
complainants ' interests, the interest of society and the interest of justice .
[20] Considering the facts and evidence of this matter holistically it is this court's
view that the period of imprisonment that the court a quo imposed is not
proportionate to the offence committed and accordingly inappropriate.
[21] It follows that the court a quo was obliged to sentence the Appellant for the
theft of the cellular phone (out of a motor vehicle) and not his previous
conviction as regards the admission of guilt and subsequent fine.
[22] The term of imprisonment that the court a quo imposed is so excessive that
interference with that sentence is justified on appeal.
CONCLUSION
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[23] This Court is of the view that justice will be served if the sentence to 36
months' imprisonment is set aside and replaced with a sentence of 3~
months imprisonment of which 18 months is suspended for a perio? of ·
three years on condition that the accused is not found guilty of theft or
attempted theft during the period of suspension.
[24] As a result, I make the following order:
24.1 The appeal against sentence is upheld.
24.2 The sentence of the court a quo is set aside and substituted with
the following sentence:
"The Accused is sentences to 36 months imprisonment , of which 18
months is suspended for a period of three years, on condition the
Accused is not found guilty of theft or attempted theft during the
period of suspension "
24.3 The sentence is ante-dated to 17th of May 2024
HEARD ON
JUDGMENT DELIVERED ON
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ASLVAN WYK
Acting Judge of the High Court
. .
Limpopo Division, Polokwane
I AGREE:
• popo Division, Polokwane
APPEARANCES:
6 JUNE 2025
18 MARCH 2026 . This judgment
was handed down electronically by
circulation to the parties' representatives
FOR THE APPELLANT
FOR THE STATE
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by email. The date and time for hand
down of the judgment is deemed to be at
10:00
MP LEGODI
POLOKWANE LOCAL OFFICE;
LEGAL AID SOUTH AFRICA
MR MATHABATHA
DIRECTOR OF PUBLIC POSECUTION
STATE ATTORNEY , POLOKWANE