REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A313I2024
(1) REPORTABLE: NOPt5
(2) OF INTEREST TQ. (lTHER JUDGES: ~ /NO
(3) REVISED: NO/Y~
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DATE SIGNATURE
In the matter between:
SIPHOKAZI SHENXANI Appellant
and
THE STATE Respondent
Delivery: This judgment has been delivered by uploading it to the Court on line digital
data base of the Gauteng Division, Pretoria and by email to the attorneys of record of
the parties. The date of delivery of the judgment is deemed to be ~o April 2026.
JUDGMENT
MAKHOBA , J
Introduction
[1] On 12 October 2023, the Appellant pleaded guilty on one count of theft of 1 Ox
Amalgam gold balls weighing 7.05 kg, valued at R 1 778 731. (One Million Seven
Hundred and Seventy-Eight Thousand Seven Hundred and Thirty One Rands).
[2] The Appellant was sentenced to 12 years imprisonment. The appeal is against
sentence only.
Background
[3] The Appellant was employed by East Driefontein Mine in Carletonville. On 14
February 2023, the Appellant stole 1 Ox Amalgam gold balls and pleaded guilty to the
theft.
Grounds of Appeal
[4] Counsel submitted that the court a quo erred in over-emphasising the
seriousness of the offence, the prevalence thereof and the interests of society over
the personal circumstances of the appellant.
[5] Counsel further argued that the court a quo did not investigate the availability
of an alternative caregiver for the children. The rights of the children were, therefore,
violated, in terms of Section 28 of the Constitution. Counsel argued further that, the
trial court breached Article 19 of the African Charter on the Rights and Welfare of the
child.
[6] Counsel submitted further that 12 years imprisonment is disproportionate to the
circumstances of the offence and must be reduced.
[7] Counsel for the respondent asked that the appeal against the sentence be
dismissed.
Legal framework and analysis
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[8] It is trite that sentence is pre-eminently a matter within the discretion of the trial
court. A court on appeal is not at liberty to interfere with the discretion of the trial court
on sentence unless it can be demonstrated, on the basis of evidence, that that
discretion was not judicially and properly exercised and that as a consequence,
misdirection occurred which resulted in the imposition of a sentence that was
disproportionate to the offence or shockingly inappropriate.1
[9] At the trial, the Appellant did not testify in mitigation of sentence. The legal
representative placed the mitigating factors of the Appellant on record from the bar.
[1 O] The Appellant has no previous conviction and was 43 years old when she was
sentenced. She had two children, 17 and 7 years old, respectively. The whereabouts
of the fathers were unknown.
[11] She was a sole bread winner renting a place to stay. She was prepared to pay
a fine.
[12] The offense for which the Appellant has been convicted, falls within the purview
of Section 51 of the Criminal Law Amendment Act. 2 The prescribed minimum sentence
in this case is fifteen years imprisonment.
[13] In S v Ma/gas, 3 the Supreme Court of Appeal stated ten factors to be considered
by the courts in applying minimum sentence legislation and determining whether there
are substantial and compelling circumstances that could justify a departure from the
prescribed minimum sentence.
[14] The ultimate impact of circumstances relevant to sentencing must be measured
against the phrase: substantial and compelling circumstances. All circumstances
taken into account when a sentence is meted out must cumulatively justify the
minimum sentence to be imposed.4
[15] The argument that, the learned magistrate did not take into account the plight
of the minor children is incorrect because on page 15 (lines 5-8) of the record, the
1 See Director of Public Prosecutions, KZN v P 2006 (1) SACR 243 (SCA) at para 10.
2 Act 1 05 of 1997.
2 Act 1 05 of 1997.
3 2001 (1 ) SACR 469 (SCA) at para 25.
4 Id at para 25, point G.
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learned magistrate is the one who asked for the probation officer's report to address
the issue of the children.
[16] On page 25 (lines 18-25) again, the learned magistrate emphasises the
importance of the probation officer's report in addressing the issue of the minor
children.
[17] In S v Mhlakaza and Another, 5 the court held that:
"The object of sentencing is not to satisfy public opinion but to serve the public interest.
A sentencing policy that caters predominantly or exclusively for public opinion is
inherently flawed. It remains the court's duty to impose fearlessly an appropriate and
fair sentence even if the sentence does not satisfy the public." (references omitted)
[18] In S v Rabie,6 the court held that "Punishment should fit the criminal as well as
the crime, be fair to society, and be blended with a measure of mercy according to the
circumstances ".
[19] It should be borne in mind that, the Appellant stole from the employer, which,
in itself, is an aggravating factor.
[20] Furthermore, the value of the gold is R 1 778 731.
[21] The learned Magistrate, however, considered all the facts before him and found
that there were substantial and compelling circumstances. Thus, he sentenced the
Appellant to 12 years imprisonment.
[22] In my view I cannot find fault with the sentence imposed by the learned
magistrate.
Order
[23] In the premises, I make the following order:
5 1997 (1) SACR 515 (SCA) at 518E-F.
6 1975 (4) SA 855 (A) at 862G .
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1. The appeal against sentence is dismissed.
I agree, it is so ordered
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
RTOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Date of Hearing
Date of Judgment
For the appellant
Instructed by
For the respondent
Instructed by
: 12 March 2026
: 20 APRIL 2026
: Mr MB Kgagara
: Legal Aid South Africa
: MJ Nethononda
: Director of Public Prosecutions , Pretoria
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