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2026
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[2026] ZAMPMHC 13
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Lukhele v S (A35/2023) [2026] ZAMPMHC 13 (18 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MIDDELBURG
Case
Number:
A35/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE
18/02/2026
SIGNATURE
In
the matter between:
THABO
LUKHELE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Malangeni
AJ
et
Langa J
Introduction
[1]
The appellant appeared before Piet Retief regional court (“the
Court
a quo
”) facing the following counts:
a. Robbery with
aggravating circumstances read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
, (“the CLAA”).
b. Malicious damage
to property and
c.
Contravention of section 49(1)(a) of the Immigration Act 13 of 2002
(Illegal Immigrant).
[2]
He was convicted in respect of all counts and subsequently sentenced
as follows:
a. Count 1:
15 years’ imprisonment.
b. Count 2: 2
years’ imprisonment.
c. Count 3: 3
years’ imprisonment.
d. The trial
court ordered the sentences imposed on counts 2 and 3 shall run
concurrently with the sentence in count
1.
[3]
The appellant hereby notes an appeal against sentence in respect of
count 1 only.
Grounds
of appeal
[4]
The appellant contends that in sentencing the appellants, the court
a
quo
erred in the following respects:
a. The sentence of
fifteen (15) years imposed by the court a
quo
was harsh and
disproportionate to the offence committed.
b. The court
misdirected itself by not infusing a measure of mercy into the
sentence.
c. The court
erred by not considering the total value of the robbed items, being
two mobile phones valued at R850.00
before sentencing.
The
Law
[5]
It is trite that section 51(2) of CLAA prescribes a mandatory
sentence of 15 (Fifteen) years for a first-time
offender in the case
of robbery with aggravated circumstances. However, section 51(3) of
the same Act empowers the court to deviate
from imposing the minimum
sentence if there are substantial and compelling circumstances.
[6]
It is trite that there is no clear definition of the concept of
substantial and compelling circumstances.
What is of utmost
importance is that deviation should not be granted on ordinary
circumstances. In
S
v Malgas
[1]
the court gave very useful guidelines and pointers to be considered
in determining whether substantial and compelling circumstances
are
present. It also emphasised that the prescribed sentences are not to
be departed from for flimsy reasons.
[7]
The only instance in which departure would be justified is if the
circumstances relevant to sentencing
were substantial and compelling.
In this regard, the court in
S v Malgas
observed:
“
if the sentencing
court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence”.
[2]
[8]
It is further trite that sentencing is a matter for the discretion of
the trial court. In
S
v Rabie
[3]
the law in this regard was put as follows:
“
In every appeal
against sentence, whether imposed by a Magistrate or a Judge, the
court hearing the appeal:
(a) Should be guided by
the principle that the punishment is “pre-eminently a matter
for the discretion of the trial Court”;
and
(b) should be careful not
to erode such discretion: hence the further principle that the
sentence should only be altered if the
discretion has not been
"judicially and properly exercised".
The test under (b) is
whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate.”
[9]
The above principles were confirmed in
S
v Pillay
[4]
where the court held as follows:
"The essential
inquiry in an appeal against sentence is not whether sentence was
right or as wrong but whether the
court in imposing
sentence executed its discretion properly or judicially, a mere
misdirection is not by itself sufficient
to entitle the Appeal Court
to interfere with sentence. It must be of such a nature,
degree of seriousness that it shows
directly or inferentially that
the court did not exercise its discretion at all or exercised
it improperly
or unreasonably. Such a misdirection
is usually and conveniently termed one that vitiates the court’s
decision on sentence.”
Submissions
on appeal
[10]
The appellant submitted that the trial court misdirected itself in
finding that the appellant’s personal
circumstances
cumulatively did not constitute substantial and compelling
circumstances which would have justified the court to
deviate from
prescribed sentence of 15 years’ imprisonment and impose lesser
sentence than the prescribed sentence.
[11]
Furthermore, the trial court misdirected itself in finding that the
personal circumstances of the appellant, cumulatively
considered, are
not sufficient to constitute substantial and compelling
circumstances. To this end, the appellant contended that
the trial
court failed to consider the following circumstances:
(a) That the
appellant is still relatively young, at the age of 31 years;
(b) He was first
offender;
(c) That the
appellant has 5 minor children even though their respective ages
could not be ascertained. It was also argued
that even though, there
is no evidence that the appellant is a primary caregiver, the court
should not have ignored that he may
be contributing to the financial
needs of these children.
[12]
The appellant disagreed that he did not show any sign of remorse and
also argued that the trial court ignored the
fact that the stolen
items were recovered through the conduct of the appellant who
returned them the following morning.
[13]
On the other hand, the state argued that the trial court did not
misdirect itself in imposing the sentence of fifteen
years
imprisonment for the following reasons:
(a) The court
considered all factors that are mentioned in mitigation.
(b) The offence was
gruesome; the court was compelled to impose sentence that would send
a message to other would be offenders.
(c) Violence
committed by males against woman in our country has gone out of
proportion.
[14]
Lastly, the State submitted that the trial court exercised its
discretion properly. There is no misdirection. Further,
that the
sentence imposed is just and does not induce any sense of shock. The
State argued therefore that there are no prospects
of another court
coming to a different conclusion on sentence.
Analysis
[15]
In imposing sentence, the court must strike a balance between
competing factors. In
S
v Zinn
[5]
the court stated that in imposing a sentence the court must consider
“the triad consisting of the crime, the offender and
the
interests of the society.”
[16]
The trial court in this matter mentioned having considered the
accused’s personal circumstances and the nature
of the offence
and its prevalence. It also referred to the outcry. I take that to be
the public’s outcry; therefore, it means
that it considered the
interests of the society.
[17]
It must be emphasised that when it comes to sentencing, there is no
formula, each case must be decided on its own
facts. In
S
v Letsoalo
[6]
the court observed:
“
The court must
consider the personal circumstances of the accused, the nature of the
offense that has been committed and the interest
of society. It must
forever consider the recognized objectives of sentencing which are
prevention, rehabilitation, deterrence and
retribution.
The seriousness of the
offense, the circumstances under which they were committed, and the
victims are all relevant factors that
must also be considered. The
personal circumstances of the accused including his age, education,
dependents etc, his previous convictions
if any, his employment and
other relevant conduct or activities also call for consideration in
respect of the possibility of rehabilitation.
An appropriate sentence
should also have regard to and serve the interest of society and the
protection of its needs and the deterrence
of the would-be
criminals.”
[18]
It is true and correct that gender-based violence is rife in our
jurisdiction and countrywide. To me, it is one
of the troubling
offences. The appellant was and/or is the lover to the complainant.
He stabbed the complainant and took away her
cellphones. No evidence
was adduced to the effect that the complainant was armed. I therefore
take that she was defenceless. There
was no reason advanced for or
towards this stabbing, I therefore take that the stabbing was without
any apparent reasons.
[19]
In
Kekana
v the State
[7]
it was stated that:
“
Domestic
violence has become a scourge in our society and should not be
treated lightly. It has to be deplored and also severely
punished.
Hardly a day passes without a report in the media of a woman or a
child being beaten, raped or even killed in this country.
Many women
and children live in constant fear for their lives. This is in some
respects a negation of many of their fundamental
rights such as
equality, human dignity and boldly integrity”.
[20]
It is then safe to say that gender-based violence negatively affects
the community and mostly women. In
S
v Msimanga and Another
[8]
the court held that violent conduct in any form can no longer be
tolerated, and courts, by imposing heavier sentences, convey the
massage, on the one hand, to the prospective criminals that such
conduct is unacceptable and, on the other hand, to the public
that
the courts take seriously the restoration and maintenance of safe
living conditions.
[21]
It is on record that accused is the father of five children. The
record is silent about the mother or the mothers
of his children. It
is further silent on whether he is the sole breadwinner or the
primary caregiver. The Constitution of the country
(Act 108 of 1996)
caters for the rights of children. Section 28 (2) of the Act provides
that “A child’s best interests
are of paramount
importance in every matter concerning the child”.
[23]
Children cannot be used as tools to escape incarceration. In
Director
of Public Prosecution: Gauteng, Pretoria v Mtshali
[9]
the court stated that:
“
It is clear
from the authorities that sentencing officers cannot always protect
children from the consequences of direct imprisonment.
The
relationship between an accused, convicted of serious crimes, and his
children are merely one of the factors to be weighed
up in each given
case in determining a proper sentence. Children cannot be used as an
excuse to avoid incarceration. See
S v Chetty
2013 (2) SACR
142
(SCA) ([2013] ZASCA 6) para 13. The trial court has the duty to
satisfy itself that, should imprisonment be imposed, the children
will be taken care of. It appears to me that the trial court allowed
the interests of the children to override all the other aims
of
sentencing”.
Conclusion
[24]
From the evidence of the appellant, I cannot find any element of
remorse. The fact that he returned the items belonging
to the
complainant is not a sign of remorse. He did not take responsibility
of his actions instead insisted with his denial of
guilty.
[25]
I cannot find any fault or misdirection or irregularity on the
sentence imposed by the trial court. It is proper
in the
circumstances. The magistrate exercised his discretion judicially.
Order
[26]
In the result, I make the following order:
1. The
appeal against sentence is dismissed.
2. The
sentence of fifteen (15) years imprisonment is hereby confirmed.
M MALANGENI
ACTING JUDGE OF THE
HIGH COURT
MPUMALANGA DIVISION,
MIDDLEBURG
I
agree, and it is so ordered
MBG LANGA
JUDGE OF THE HIGH
COURT
MPUMALANGA
DIVISION, MIDDLEBURG
Appearances
For the
Appellant
:
Advocate
M.Moloi
Legal
Aid of South Africa
For the
Respondent
:
Advocate
B.E. Maoke
DPP’s
Office, Middelburg
Date of
the hearing
:
17
October 2025
Date of the
Judgement :
18 February 2026
[1]
2001 (1) SACR 469 (SCA).
[2]
Id
at para 25.
[3]
1975
(1) SA 855
(A) 857 D-F.
[4]
1977
(4) SA 531 (A) 535 F-G.
[5]
1969(2) SA 537 (A) at 541G:
[6]
[2023] ZAGPJHC 452 (10 May 2023) at paras 4-6.
[7]
Kekana
v the State
[2014] ZASCA para 20.
[8]
2005(1) SACR 377 (A).
[9]
2016 (2) SACR 463
(GP) at para 8.