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2026
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[2026] ZAGPJHC 318
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Siphiwe v S (A2025/111601) [2026] ZAGPJHC 318 (24 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
CASE
NUMBER
: A2025-111601
DPP
REF NO
: 10/2/5/1-2025/21
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED: YES
In
the
matter between:
MANDIWO
SIPHIWE
APPELLANT
and
THE
STATE
Respondent
JUDGMENT
NEMAVHIDI,
AJ
:
APPLICATION FOR
CONDONATION AND APPEAL AGAINST SENTENCE
A.
INTRODUCTION
[
1
]
This is an appeal against the sentence imposed
upon the Appellant by the learned Magistrate Evans in the Regional
Court, Protea,
on 26 February 2024.
[
2
]
The Appellant also seeks condonation for the late
filing of this appeal.
[
3
]
The Appellant was convicted on three counts of
housebreaking with intent to steal and theft, to which he pleaded
guilty. He was
sentenced as follows:
Count 1: 10 years'
imprisonment
Count 2: 10 years'
imprisonment
Count 3: 5 years'
imprisonment
The sentences were
ordered to run consecutively, resulting in an effective term of 25
years' direct imprisonment.
[4]
The Appellant does not appeal against his
convictions. The appeal is directed solely at the sentence imposed
.
B.
CONDONATION
[5]
Background to the delay
[
5.1
]
The Appellant was sentenced on 26 February
2024.
[
5.2
]
An application for leave to appeal was
initially filed late. The Appellant's family experienced severe
difficulties in obtaining
the funds needed to prosecute the appeal,
as the Appellant was in custody and had to rely on the charity of
friends and family
to raise the necessary funds. The transcript was
applied for promptly once funds were available.
[
5.3
]
The court considered that the appellant had
reasonable prospects of success on appeal and condonation was
granted.
C.
GROUNDS OF APPEA
L
[6]
The Appellant appeals against the sentence
on the following grounds:
[6.1]
The learned magistrate misdirected himself by
over-emphasising the seriousness of the offence
and
the interests of society, while under-emphasising the Appellant's
personal circumstances
a
nd mitigating
factors.
[
6.2
]
The learned magistrate erred in finding that a
suspended sentence would be wholly inappropriate,
despite
the State having no objection to a suspended sentence.
[6.3]
The learned magistrate misdirected himself
by comparing the Appellant to unrelated cases involving violence and
community attacks,
thereby allowing extraneous factors to cloud his
judgment.
[6.4]
The
learned magistrate erred in his approach to the two years spent by
the Appellant in custody
awaiting
trial, stating that this period should be "doubled to the amount
of four years".
[6.5]
The
learned magistrate failed to give proper weight to the Appellant's
guilty plea, his remorse, and
his cooperation in
facilitating the return of stolen property.
[6.6]
The
effective sentence of 25 years' imprisonment is so excessive that it
induces a sense of shock and is disproportionate to the
offences
committed.
D.
APPLICABLE LEGAL PRINCIPLES
[7]
Approach on appeal against sentence
[7.1]
It
is trite that the imposition of sentence is pre-eminently a matter
for the discretion of
the
trial
court. An appeal court will not
interfere with the sentence imposed by a lower court unless it is
satisfied that the trial court
did not exercise its discretion
properly and judicially.
[7.2]
In
S v Malgas
[1]
2001 (1) SACR 469
(SCA) at para 12, the court held that interference is justified
where:
-
The sentence is vitiated by a misdirection;
-
The sentence is startlingly inappropriate;
-
The sentence induces a sense of shock; or
-
A disparity exists between the sentence imposed and the sentence the
appeal court would hav
e
imposed, such that
the appeal court's interference is warranted
[7.3]
In
S v Kgosimore
[2]
1999 (2) SACR
238
(SCA) at 241f-h, the court stated: "
It
is trite law that
sentence
is a matter for the discretion of the court burdened with the task of
imposing the sentence. Various tests have been formulated
as to when
a Court of appeal may interfere. These include whether the reasoning
of the trial court is vitiated by misdirection
or whether the
sentence imposed can be said to be startling inappropriate or to
induce a sense of shock or whether there is a
striking
disparity between the sentence imposed and sentence the Court of
appeal would impose. All these formulations, however,
are aimed at
determining the same thing, viz whether there was a proper
reasonable
exercise of the discretion bestowed upon the court
imposing
sentence. In the ultimate analysis, this is the true inquiry. Either
the discretion was properly and reasonably exercised
or it was not.
If it was, a Court of appeal has no power to interfere; if it was
not, it is free to do so".
[8]
The triad of sentencing
[
8.1
]
In
S v Zinn
[3]
1969 (2) SA 537
(A)
at 540G, the court established the triad of factors to be considered
in sentencing:
- The personal
circumstances of the offender;
-
The seriousness of the crime; and
-
The interests of society.
[8.2]
These factors must be balanced. No single factor
should dominate the sentencing exercise to
t
he
exclusion of others.
[
9
]
The purposes of punishment
[9.1]
In
S v Mhlakaza
[4]
1997 (1) SACR
515
(SCA) at 518a-b, the court held that the objectives of punishment
include deterrence, prevention, rehabilitation, and retribution.
[9.2]
However,
as stated in S v Dodo
[5]
[2001] ZACC 16
;
2001
(1) SACR 594
(CC) at para 38:
"Human
beings are not commodities to which a price can be attached; they are
creatures with
inherent and infinite
worth; they ought to be treated as ends in themselves, never merely
as
means to an end. Where the length of a sentence,
which has been imposed because of its general deterrent effect on
others bears
no relation to the gravity of the offence... the
offender
is being used essentially as a means to another
end and the offender's dignity assailed."
[10]
Proportionality
[
1
0
.1
]
In
S v Bogaards
[6]
2013 (1) SACR 1
(CC) at para 42, the Constitutional Court affirmed that
sentences
must be proportionate to the offence and the offender's
blameworthiness.
[
1
0
.2
]
In
S v RO & Another
[7]
2010
(2) SACR 248
(SCA) at para 30, Heher JA stated:
"Sentencing
is about achieving the right balance (or, in more high-flown terms,
proportionality. The elements at play are the
crime, the offender and
the interests of society or, with different nuance, prevention,
retribution, reformation and deterrence”.
E.
SUBMISSIONS ON THE MERITS OF THE APPEAL
[11]
The learned magistrate misdirected himself by
over-emphasising extraneous factors
[
11
.1
]
During sentencing, the magistrate referred to
unrelated cases which have no bearing to
the
appellant’s case.
[
1
1
.
2]
In
Ndlovu
v S (AR 29/10)
[8]
[2010]
ZAKZPHC
,
the court held that a sentencing court must focus on the facts of the
case before it and not be swayed by factors unrelated to
the offence
or
t
he
offender.
[1
2
]
The magistrate failed to give proper weight to
substantial mitigating factors
[1
2
.1]
The Appellant's personal circumstances were
compelling:
- He was 28 years old at
the time of sentencing.
- He is married in terms
of customary law.
- He has two minor
children, aged 4 and 2 years.
- He possesses a Grade
12.
- He spent two years in
custody awaiting trial.
[12.2]
The Appellant demonstrated genuine remorse:
-
He consistently expressed his intention to plead guilty from an early
stage.
-
He
plea
de
d guilty to all three charges, saving
the court time and sparing complainants
t
h
e
trauma o
f
testifying.
-
In
count 3, he facilitated the return of stolen property by taking the
complainant to
where the
goods
were stored.
- He expressed remorse
and took full responsibility for his actions.
[12.3]
In
S v Matyityi
[9]
2011 (1) SACR 40
(SCA) at para 13, the court emphasised the importance of genuine
remorse as a mitigating factor, stating that it demonstrates an
acceptance of responsibility and a willingness to turn away from a
life of crime.
[12.4]
W
hile the Appellant was not a first offender
(having a previous conviction for possession of
drugs
for which he was cautioned and discharged), the magistrate correctly
treated him as a first
offender for
purposes of these proceedings, as the previous conviction was for an
unrelated offence.
[12.5]
In
S v De Kock
[10]
1997 (2) SACR
171
(T) at 200d-e, the court held that a sentencing court must
consider
all appropriate sentencing options and provide reasons for rejecting
non-custodial
alternatives
where they are seriously proposed.
[
1
3
]
The effective sentence of 25 years is shockingly
disproportionate
[13.1]
The offences in question are housebreaking with
intent to steal and theft. They do not involve violence, threats, or
confrontation
with complainants. They do not fall within the category
of offences for which minimum sentences are prescribed.
[13.2]
The total value of stolen property, while
significant, does not justify an effective sentence of 25 years'
imprisonment. Count 1
involved items valued at approximately R25,500;
count 2 involved items valued at approximately R21,250; count 3
involved items
of unspecified value, most of which were recovered.
[13.3]
The
cumulative effect of consecutive sentences is a term of imprisonment
that is more appropriate for serious violent offences or
offences
involving minimum sentence legislation.
[13.4]
I
n
Ras
v The State
(885/2024)
[11]
[2025] ZASCA 92
the
court cautioned against the cumulative
effect
of consecutive sentences, stating that the overall sentence must be
proportionate to the
t
otality
of the criminal conduct.
[13.5]
In S v Mhlakaza (supra), the court emphasised that
while deterrence is important, an
offender
must not be "sacrificed on the altar of deterrence."
[13.6]
The sentence of 25 years' imprisonment for
non-violent property offences, committed by a
relatively
young offender who pleaded guilty and demonstrated remorse, is so
disproportionate that it induces a sense of shock and
warrants
interference by this Court.
[14]
Comparative sentences
[1
4
.1]
In
Zimila
v S (1179/16)
[12]
[2017] ZASCA
55
, the court ordered sentences for multiple counts to run
concurrently, reducing the total effective sentences by mitigating
the
overall length.
[14.2]
In
Ntuli
v S (128/2023)
[13]
[2025]
ZASCA 114
, the court ordered 12 of 15 years for robbery to run
concurrently with another 15-year sentence to avoid an excessive
30-year sentence.
[14.3]
While each case must be decided on its own facts,
these comparative sentences demonstrate that the sentence of 25 years
imposed
on the Appellant falls outside the normal range for
offences of this nature.
Consequently, the
cumulative sentence of 25 years is set aside, and the following
sentence is imposed:
1.
Sentences in count 2 and 3 to run
concurrently with the 10 years in count 1
2.
Two years of the concurrent sentence in
count 1 is suspended for a period of 5 years on condition the
appellant is not convicted
of a similar offence committed during the
period of suspension.
3.
Appellant is to serve a total sentence of 8
(eight) years imprisonment.
4.
The sentence is antedated to 26 February
2024
.
NEMAVHIDI
AJ
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
I
concur
MOTHA
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES:
For the
Appellant:
Mr. Matsimbi
For the
Respondent:
Adv. Matshidza
Instructed
by:
National Director of Public Prosecutions
Date of
appeal:
9 February 2026
Dat
of Judgment:
2
4
March 2026
[1]
2001 (1) SACR 469
(SCA) at para 12
[2]
1999 (2) SACR 238
(SCA) at 241f-h
[3]
1969 (2) sa 537 (A) at 540G
[4]
1997 (1) SACR 515
(SCA) at 518a-b
[5]
2001 (1) sacr 594 (CC) at para 38
[6]
2013
(1) SACR 1
(CC) at para 42
[7]
2010
(2) SACR 248
(SCA) at para 30
[8]
2010
ZAKZPHC
[9]
2011
(1) SACR 40
(SCA) at para 13
[10]
1997
(2) SACR 171
(T) at 200d-e
[11]
2025
ZASCA 92
[12]
2017
ZASCA 114
[13]
2025 ZASCA 114