IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA&R 107/2025
In the matter between:
RENALDO BHAKAZA LUITER Appellant
and
THE STATE Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
RUSI J
[1] The appellant stood trial in the East London Regional Court on 20
November 2024 on a charge of robbery wit h aggravating circumstances during
which a white Toyota Corolla, 2007 model was taken and the victim caused
grievous bodily harm. On 26 February 2025, the appellant was convicted of the
lesser offence of theft of a motor vehicle and sentenced to 10 years’
imprisonment.
[2] At the time of his sentencing in the court a quo, the appellant had begun
serving a 6-year-term of imprisonment which was previously imposed on him in
2023 for a similar offence. The learned Regional Magistrate ordered that the
term of 1 0 years’ imprisonment shall run concurrently with the 6 -year-term
previously imposed on the appellant.
[3] This is an appeal, with leave of the court a quo, against the 10 -year-term
of imprisonment.
The grounds of appeal
[4] The appeal rests on two grounds. The appellant contends that the court
aquo erred in not according appropriate weight to his personal circumstances,
and in over -emphasizing the seriousness of the offence and the interests of
society. He further contends that the sentence imposed on him induces a sense
of shock when regard is had to the circumstances of the case.
The factual background
[5] The appellant stood trial in the court a quo together with another accused
named Mighty Ngxabane (Ngxabane). The appellant was charged with one
count of robbery with aggravating circumstances, and he pleaded not guilty to
the charge.
[6] These are the facts which the court a quo found to have been proven and
on the basis of which it convicted the appellant of theft of a motor vehicle: on
03 March 2020, and in East London, the appellant and Ngxabane robbed Mr
Aiden Spark of his white Toyota Coroll a and other items including his
cellphone. A firearm was used during the robbery, and this fact brought the
offence within the ambit of the minimum sentence of 15 years’ imprisonment
which section 51(2) of the Criminal Law Amendment Act 105 of 1997
prescribes on conviction where the person convicted is a first offender.
[7] Confirmation was given in evidence by Mr Spark of his ownership of the
motor vehicle and that on 03 March 2020 he was robbed of his vehicle and
other items which included groceries and h is cellphone. He further gave
confirmation of his cellphone’s identity in the form of its International Mobile
Equipment Identity number (the IMEI number). He could not identify his
robbers. He further confirmed that his cellphone was later recovered.
[8] Ms Xoliswa Mboxela, one of the witnesses for the prosecution, was the
one whose evidence linked the appellant to the commission of the offence. She
was the appellant’s girlfriend. According to her evidence, the appellant and
Ngxabane arrived at her home i n Dutywa on 27 March 2020 , and they were
traveling in a While Toyota Corolla. On their arrival, the appellant gave her
groceries and a cellphone. At the time, the love relationship she had with the
appellant had ended but the appellant was still pursuing h er. She later learned
that the cellphone was taken from Mr Spark during a robbery. The cellphone
was traced to her by the police. Even though she had not seen who the driver of
the white Toyota Corolla was between the appellant and Ngxabane on their
arrival at her home, when they left, the appellant drove the vehicle.
[9] Sergeants Maja; Mphanda and Mpalala of the SAPS who were involved
in the various aspects of the investigation of the robbery, confirmed that Mr
Spark’s cellphone was traced to Ms Mboxela in Dutywa by means of its IMEI
number. Ms Mboxela also confirmed to them that the cellphone was given to
her by the appellant who was in the company of Ngxabane.
The sentencing proceedings in the quo a quo
[10] It was submitted on behalf of the appellant in mitigation of sentence that
he was 33 years old, unmarried with an 8 -year-old child, a female, who lived
with her mother. He was unemployed. According to the appellant’s legal
representative, the fact that the appellant was found guilty of a competent
verdict together with the fact that the cellphone was recovered and returned to
its owner stood as extenuating factors. Even though no previous convictions
were proven against the appellant, it was disclosed by his legal representative
that at the time of the sentencing proceedings in the court a quo, the appellant
had begun serving 6 years’ imprisonment that was imposed on him in 2023. In
this regard, it was submitted that this factor ought to be considered together with
the time that the appellant spent i n custody awaiting the trial of the matter. The
record indicates that the appellant’s first appearance was on 28 August 2023
even though the trial of the case in the Regional Court only commenced on 20
November 2024.
[11] In aggravation of sentence, the pr osecutor submitted that the seriousness
of the offence, coupled with the fact that the stolen vehicle was never recovered
warranted a custodial sentence. He placed emphasis on the fact that the
appellant was then serving a sentence for another instance of theft of a motor
vehicle. It is not clear from the record when in relation to his conviction in the
present case the appellant was convicted of the said offence.
[12] In sentencing the appellant to 10 years’ imprisonment, the learned
Regional Magistrate found that a non-custodial sentence of any form would not
be appropriate punishment. She took into account the gravity of the offence and
its prevalence countrywide. She further reasoned that the offence causes
economic loss to its victims and the financial service providers who insure
people’s assets against risk such as theft. It is an act of disregard for other
people’s possessions. The learned Regional Magistrate concluded that in the
circumstances of the appellant’s case, the interests of society demand ed severe
punishment.
[13] Since it was indicated that at the time of sentencing the appellant had
begun serving a previously imposed sentence of 6 years’ imprisonment, the
learned Regional Magistrate ordered that the sentence of 10 years’
imprisonment shall be served concurrently with the previously imposed 6 -year-
term.
Counsel’ s submissions in this Court
[14] Mr Sojada who appeared for the appellant, and Mr Mondliwa for the
respondent, referred us to their respective heads of argument and elected not to
make any further submissions.
[15] In the appellant’s heads of argument, Mr Sojada submitted that in the
light of the personal circumstances of the appellant and the time that he spent in
custody awaiting the trial of his case, the court a quo ought to have considered
alternative forms of punishment. Further, that, the court overemphasized the
seriousness of the offence and the interests of society at the expense of the
appellant’s personal circumstances, thereby falling short of the balancing a ct
that the law requires in the sentencing of the offender.
[16] In the heads of argument filed on behalf of the respondent, Mr Mondliwa
submitted that even though the appellant was convicted of a competent verdict
of theft and not the main count of robbe ry, the circumstances in which the
robbery was committed were still a relevant consideration in the determination
of the appropriate sentence for the competent verdict. In substantiating this
contention, he submitted that since theft is a continuing offenc e, those who
continue with it align themselves with the manner in which the property was
appropriated. Mr Mondliwa took the view that the reason for the appellant’s pre-
sentence detention for a period of 2 years was not related to the delays in the
commencement of the trial of his case but the fact that he had begun serving
sentence that was previously imposed on him.
[17] It was further submitted that the appellant’s personal circumstances were
outweighed by the aggravating factors. Mr Mondliwa emphasized the fact that
the appellant had the propensity to commit theft of motor vehicles, hence he
was then serving 6 years imprisonment for theft of a motor vehicle. For all these
reasons, Mr Mondliwa submitted that the learned Regional Magistrate properly
exercised her sentencing discretion and there were no grounds to interfere with
the sentence imposed on the appellant.
The legal principles
[18] It is a settled principle of the law that on appeal against a sentence
imposed by a trial court, the appellate court cannot, in the absence of material
misdirection, approach the question of sentence as if it were the trial court and
then substitute the sentence arrived at by it simply because it prefers it. 1 Nor
does the appellate court enjoy unlimited powers to interf ere with the terms and
conditions imposed by a sentencing court on how or when the sentence is to be
served.2 The sentence of the trial court will be interfered with if the appellate
court is satisfied that the trial court committed a misdirection of suc h a nature,
degree and seriousness that shows that it did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when imposing
sentence.3 This will be the case where there exists a ‘striking’ or ‘startling’ or
‘disturbing’ disparity between the trial court’s sentence and that which the
appellate court would have imposed.4
[19] Punishment should fit the criminal as well as the crime and be fair to
society.5 It is not enough for an appellant to use the phrase that ‘the sentence
induces a sense of shock’ as a way of expressing unfounded disapproval of how
1 S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR
469 (SCA) (19 March 2001) (Malgas), para 12.
2 Mokela v S 2012 (1) SACR 431 (SCA) para 9.
3 S v Hewitt 2017 (1) SACR 309 (SCA) at para 8.
2 Mokela v S 2012 (1) SACR 431 (SCA) para 9.
3 S v Hewitt 2017 (1) SACR 309 (SCA) at para 8.
4 Hewitt, para 8; S v Sadler 2000 (1) SACR 331 (SCA) para 8.
5 S v Rabie 1975(4) SA 855 (A) 862G; S v Samuels 2011 (1) SACR 9 (SCA), para 9.
the court’s sentencing discretion was exercised. Whether the sentence induces a
sense of shock must be det ermined against an understanding of what society
requires or expects of the law in punishing crime. It must be shown that the
sentence is disproportionate to the crime, the criminal, and the needs of society.
Discussion
[20] In the exercise of its senten cing function the trial court has a wide
discretion in deciding which factors should be allowed to influence it in
determining the measure of punishment and in determining the value to be
attached to each of the factors it takes into account. A failure to take certain
factors into account or an improper determination of the value of such factors
amounts to a misdirection, but only when the dictates of justice carry clear
conviction that an error has been committed in this regard.6
[21] Mr Sojada had difficulty pointing to any misdirection on the part of the
court a quo in sentencing the appellant. The record indicates that the appellant
was linked to the crime by the complainant’s cell phone which he lost together
with his vehicle. The cellphone was alien ated to the appellant’s then girlfriend
whose evidence I have summarized above.
[22] Fundamentally, the complainant’s vehicle was not recovered. Throughout
the investigation of the crime the appellant had outright denied involvement in
the commission of the offence. Regard must be had to the fact that a motor
vehicle is one of the items of property which are easily disposable. Needless to
emphasize the prevalence of this offence the country over. Furthermore, the
appellant’s unwavering denia l of any involvement in the crime clearly
diminished prospects of its discovery or timeous discovery. These are weighty
6 S v Kibido 1998 (2) SACR 213 (SCA) at 216g-I; S v Pillay 1977 (4) SA 531 (A), at 535E.
considerations for the purposes sentence, and they served to aggravate the
offence that the appellant stood convicted of.
[23] After considering the appellant’s personal circumstances, the court a quo
took into account the gravity of the offence and its adverse financial effects on
not only the vehicle owner but insurance companies who are saddled with
contractual obligations to replace the lost property. She further considered that
the interests of society demand that offences of this nature punished severely
punishment. This is in keeping with t he paramount consideration in the court’s
exercise of its sentencing discretion is finding th e right balance between the
crime, the offender, and the interests of society.7
[24] While regard is to be had to the known purposes of punishment, namely,
prevention, retribution, reformation and deterrence, each of these purposes of
punishment need not be given the same weight. Proper weight must be accorded
to each according to the circumstances of the case, with the result that serious
crimes will usually require that retribution and deterrence should come to the
fore and with other purposes playing a relatively smaller role.8
[25] The offence of which the appellant was convicted is no doubt a serious
one marked by not only a brazen disregard of the law but other persons’
property rights. The sentence that the learned Magistrate imposed possesses the
required retributive and deterrent effects commensurate to the gravity of the
offence, the circumstances in which it was committed and the legitimate needs
of society when it comes to punishment of offences such as the present. We find
no fault with the approach adopted by the court aquo in this regard.
7 S v Zinn 1969 (2) SA 537 (A); S v RO and Another 2010(2) SACR 248 para 30.
8 S v Swart 2004 (2) SACR 370 (SCA) at para 12.
[26] Not only this, but the learned Regional Magistrate was mindful of her
duty to pay her mind to the cumulative effect of sentences. It having been
submitted to her that at the time of sentencing, the app ellant had begun serving
a 6 -year- term of imprisonment in respect of a similar offence of theft of a
motor vehicle, she ordered that the sentence of 10 years’ imprisonment shall run
concurrently with the term that the appellant had begun serving.
[27] As observed by the Court in Radebe and Another v S ,9 there is no
mechanical formula to determine the extent to which the proposed sentence
should be reduced, by reason of the period of detention prior to conviction. In
that case, the Court held that the circumstances of an individual accused and the
reason for a prolonged period of detention is among the factors to be considered
in making the assessment of what weight to be attached to the period of
presentencing detention.10
[28] Although it is not clear from the record when in relation to his sentencing
in the present matter, the appellant was convicted of the other offence of theft of
a motor vehicle, it was further indicated that at the time of his sentencing by the
Regional Magistrate, he was 2 years aw ay from completing that sentence. The
learned Regional Magistrate’s finding that the two years that the appellant spent
awaiting the trial of the present case carried no weight in the determination of
the extent to which the sentence under consideration sh ould be reduced was
correctly made. The contention made in the appellant’s heads of argument that
the court a quo failed to take into consideration the period that the appellant had
spent in custody awaiting the trial of the present matter, cannot be sustained.
[29] Mr Sojada candidly conceded that there was no merit in the present
appeal. His concession was well made. The appeal falls to be dismissed.
9 Radebe and Another v S (726/12) [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) (27 March 2013).
10 Id, para 13-14.
[30] In the result, I would make the following order:
1. The appeal is dismissed.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
MTSHABE AJ:
I agree.
__________________
NR MTSHABE
JUDGE OF THE HIGH COURT
(ACTING)
Appearances:
Counsel for the appellant : VM Sojada
Legal Aid South Africa
Makhanda Justice Centre
Counsel for the respondent : H Mondliwa
Office of the Director of Public
Prosecutions, Makhanda
Date heard: 15 October 2025
Date delivered: 10 March 2026