SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE NORTH WEST HIGH COURT, MAHIKENG
CASE NO: CA 10/2025
COURT A QUO: RC H28/2018
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
GONTSE STEVENS NKADIMENG Appellant
AND
THE STATE Respondent
DATE OF HEARING : 19 March 2026
DATE OF JUDGMENT : 23 March 2026
FOR THE APPELLANT : Mr. Semino
FOR THE RESPONDENT : Adv. Phetlhu
Corum: HENDRICKS JP & WESSELS AJ
JUDGMENT
Delivered: This judgment was handed down electronically by
circulation to the parties’ legal representatives via email.
The date and time for hand -down is deemed to be 1 0h00
on 23 March 2026.
ORDER
Resultantly, the following order is made:
(i) The appeal against sentence is upheld.
(ii) The sentence of 15 years imprisonment is set aside and is
substituted with a sentence of 10 years imprisonment.
(iii) The sentence is ante-dated to 19 December 2019.
JUDGMENT
Summary
Sentence – minimum sentence – for the offence of robbery with
aggravating circumstances – whether appropriate when the ‘firearm’
used was a toy. Minimum sentence of 15 years imposed shockingly
severe and excessive. Sentence set aside and substitut ed with a
sentence of 10 years imprisonment. Sentence to be ante-dated.
HENDRICKS JP
[1] The appellant, Mr. Gontse Stevens Nkadimeng, together with his
co-accused Mr. Louis Zebilion Tipe, were arraigned before the
Regional Court, Ga R ankawa and charged with robbery with
aggravating circumstances, in that a fire -arm was used. They
pleaded guilty to the charge and were each sentenced to an
effective term of 15 years i mprisonment on 19 December 2019.
Leave to appeal against sentence was refused on 24 August 2023.
The appellant successfully petitioned and leave to appea l against
sentence was granted on 10 November 2023.
[2] This appeal is one which was to be dealt with as part of the
appeals project embarked upon in an endeavor to eradicate the
appeals backlog in this division . A panel consisting of two acting
judges w ere assigned to deal with thi s appeal on 13 June 2025.
The attempt to deal with this matter is expeditiously as possible did
not yield any positive results. On the contrary, regrettably to state,
the matter was even further delayed. The file was re -allocated to
the present panel of judges on 1 9 March 2026, to be finalized
without any further delay. The delay is indeed regrettable.
[3] The appellant, as well as his co-accused, pleaded guilty to robbery
with aggravating circumstances . A plea explanation was read into
the record and confirmed by the appellant. It reads thus:
“Statement in terms of section 112(2) of act 51 of 1977, as amended:
I, the undersigned Gontse Stevens Nkadimeng, with ID number 9[...],
do hereby make oath and state that:
I am the accused in this matter and make this statement freely and
voluntarily, without undue influence and while in my sound and sober
senses.
I understand the charges against me and wish to plead guilty to the
charge of one count of robbery with aggravating circumstances, read
with the provisions of section 51(2), 52(A) and 52(8) of the Criminal
Law Amendment Act 105 of 1997 contained in the cha rge sheet and
to make the following admissions as set out herein.
I admit that on or about the 7 th January 2018 at Kgabalatsane in the
North West Regional Division, we unlawfully and intentionally
assaulted Poppie Masike and did then and with force take t he
following items: two cell phones, bankcards, shopping cards and
R340 cash and a wallet.
I gave a lift to the complainant. When she was about to alight, we
had a disagreement as to how much she was willing to pay for the
lift. She told us that she had no money. That then irritated us and I
demanded her handbag. I ordered her to get out of the motor vehicle
and I sped off with her handbag.
The firearm shown to her was a toy gun and it would not have hurt
anybody but it is conceded that a person being ro bbed will not think
of it as a harmless toy gun.
We then went on to divide the proceeds of the crime but we were
naive to commit such a serious crime without any thought of covering
our tracks."
"The complainant reported the crime and she remembered the car
number plate, make and the two perpetrators. We were apprehended
the same day and· everything stolen was recovered.
We did not deny our crime and cooperated with the police as soon as
they contacted us. I admit that this act was unlawful and intentional.
I admit that I knew at the time of the commission of the offence that
what I was doing was wrong . I knew that there was no legal
justification for my action and that I acted unlawfully and that my
actions were punishable by law.
I admit all the facts as set out in the charge sheet. I admit that I knew
at the time of the offence that my conduct was u nlawful and that I
could be punished for such conduct.”
“I therefore admit that I am guilty of one count of robbery with
aggravating circumstances, read with the provisions of section 51(2),
52(2), 52(A) and 52(8) of the Criminal Law Amendment Act 105 of
1997 contained in the charge sheet.”
As can be gleaned from the plea explanation, the appellant
admitted all the elements of the offense, but stated that the firearm
that was used in the commission of the offence was a toy and not
a real fir e-arm. This explanation was accepted by the State
(respondent), which makes it common cause.
[4] The Regional Magistrate in th e judgment on sentence stated that
there are no substantial and compelling circumstances present in
this case that warrants a deviation from imposing the prescribed
minimum sentence or 15 years imprisonment. The sentence
imposed is assailed on the basis tha t the Regional Magistrate
erred in this regard and that the minimum sentence of 15 years
imprisonment is shockingly severe and excessive.
[5] Sentencing is pre -eminently in the discretion of the trial court. A
court of appeal will not lightly interfere with the exercise of the
discretion by the trial court . A court of appeal can only interfere in
certain limited instances w ith the sentence imposed by the trial
court. This is trite1. A court of appeal will only interfere if the re is a
serious misdirection (s) committed; or where an irregularity is
committed by the trial court that vitiates the proceedings; or where
the sentence imposed is shockingly severe and excessive and
therefore disturbingly inappropriate to such an extent that no
reasonable court would have imposed it. The disparity between the
sentence imposed by the trial court and the sentence that the court
of appeal would have imposed had it been the trial court, must be
significantly different to such an extent that the sentence imposed
is rendered grossly unfair . If it is not, a c ourt of appeal will not
interfere with the sentencing discretion exercised by the trial court2.
[6] With regard to the toy which was used as a fire -arm, the Regional
Magistrate stated:
“That despite the fact that the firearm was used was a toy gun and
that was established from the ballistic report results, that in itself
does not render the offence to be less blameworthy or reprehensible.
The facts of this case are such that on the day in issue, you had a
firearm, or what accused 2 called as a gun and that it has been
qualified today that it has been a toy gun or a pellet gun, whatever
1 S v Bogaards 2013 (1) SACR 1(CC),
S v Rabie 1975 (4) SA 855 (A),
2 S v Petkar [1988] 2 All SA 550 (A).
the case may be but that was an instrument that resembles a firearm
and that was the very instrument that was used to inspire fear and
the one that had traumatised subsequently the victim in the
circumstances.
That is the reason why the criminal justice system had described a
firearm as being so many, including an air gun and other instruments
that resembles a gun or a firearm and the argument that the conduct
of both the accused on the day in issue were of impu lsive, error in
judgment and it was driven by some kind of naivety and
youthfulness, that kind of argument by your legal representative is
very problematic because it is in itself opportunistic and then it is
ingenious because on that particular day, I think you were carrying
this kind of instrument inside the car for a purpose.”
[7] This is a misdirection. There is no evidence that the appellant and
his co-accused ‘were carrying this kind of instrument inside the car
for a purpose ’. The appellant stat ed that no harm would be
suffered by the complainant as the fire -arm is a toy, to which the
Regional Magistrate found ‘that in itself does not render the
offence, to be less blameworthy or reprehensible.’ I don't agree.
Whilst it may well be that t he toy was used in order to induce the
complainant into compliance and be robbed and therefore
constitute one of the elements of the offense, it should surely be
taken into consideration in imposing a suitable sentence.
[8] The following personal circumstances and mitigating factors are
placed on the record. The appellant was 24 years of age ; was
unmarried and had no children; he was a first offender; he pleaded
guilty to the offence which is a sign of remorse or contrition; all the
items were recovered; and the complainant was not assaulted nor
sustained any injury as a result of this ordeal.
[9] In finding that there are no substantial and compelling
circumstances present in this case, the Regional Magistrates state:
“As I have said , Malgas said the Court does not have any opinion
because the offence you have been convicted of has been re ad with
the provisions of section 51, which obliged the Court to me te out a
prescribed minimum sentence and it has to, if circumstances are of
such a nature, it has to ordinarily, it says it has to ordinarily imposed
the sentence unless if there's something else that is compelling and
substantial.
The fact that you have pleaded guilty to the offence, that in itself, it
is something that is conventional . There is nothing extraordinary
about pleading guilty to the offense.
The fact that you have given the police officers the cooperation,
you had no option but to because they had information at the
disposal and then you had no option but to cooperate.
The fact that you are first offenders, does not have any bearing in
this kind of an offence because that very factor is the one that is
assisting the Court in making a determination with an assessment as
to which one is the sentence that is required or obliged to mete out.
If you are first offender, the legislature says 15 years ’
imprisonment. If second, it is 20. A third is 25. It is as simple as that.”
The Regional Magistrate erred in this regard too.
[10] In S v Malgas3 to which the Regional Magistrate refers, it is
categorically stated that all the personal circumstances as well as
mitigating factors, taken cumulatively, should be taken into account
to determine whether substantial and compelling circumstances
exist. In my view, taken all these factors holistically into account,
substantial and compelling circumstances do exist in this case. It
therefore places this Court at liberty to interfere with the sentence
imposed and to substitute it with an appropriate sentence.
[11] Mr. Semino who represented the appellant submitted in his heads
of argument that under the circumstances of this case, a sentence
of 10 years imprisonment would be an appropriate sentence. I
agree. Taking into account that the appellant is a youthful first
offender that can be rehabilitated, as well as all the other personal
circumstances and mitigating features present in this case, an
effective term of 10 years is indeed appropriate . The sentence
should also be ante-dated to 19 December 2019.
Order
[12] Resultantly, the following order is made:
(i) The appeal against sentence is upheld.
(ii) The sentence of 15 years imprisonment is set aside and is
substituted with a sentence of 10 years imprisonment.
3 S v Malgas 2001 (1) SACR 469 SCA at par [9].
(iii) The sentence is ante-dated to 19 December 2019.
____________________
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
I agree
____________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG