REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: )'.ES/ NO
(2) OF INTEREST TO OTHER JUDGES: YSS' / NO
CASE NO: A 123/2025
In the matter between:
ALBERTO HLA TCHWAYO APPELLANT
And
THE STATE RESPONDENT
JUDGMENT : CR IMINAL APPEAL
Coram: Holland- Muter J and Matjele AJ
MATJELE AJ:
INTRODUCTION:
1. The Appellant was charged and convicted in the Regional Division of Gauteng held
at Fochville with one count of Robbery with aggravating circumstances read with
section 51 (2) of Act 105 of 1997.
2. On the 14 May 2024 the appellant was legally represented throughout the trial in
the court a quo. He pleaded guilty on the count of robbery with aggravating
circumstances as charged, and was accordingly convicted.
3. In terms of his plea, he was with four friends and that they drank alcohol during the
day. In the evening they drove back from Potchefstroom and stopped at an Engen
Garage on the N 12 in Fochville. One of the five men remained in the car while the
other four went into the garage's shop. Two of the men were armed with firearms.
The agreement was that the men with firearms would point the employees while
the appellant and another robber removed money and cigarettes from the shelf. All
happened as planned.
4. The appellant had several previous convictions, viz:
a. 31 August 1994, Theft, sentenced to 4 years imprisonment;
b. 10 July 1995, Theft committed on 21 April 1995, sentenced 4 years
imprisonment;
c. 31 August 2002, trespass sentenced to 3 months imprisonment; Theft
sentenced to 3 years imprisonment, 2 years of which was suspended for 5
years; and possession of gold sentenced to 2 years imprisonment, and gold
to be forfeited to Harmony Gold mine; and
d. 13 January 2010, Robbery, sentenced to 17 years imprisonment, and
declared unfit to possess a firearm per s.103 of Act 60 of 2000.
5. He was therefore sentenced to 20 years imprisonment, and declared unfit to
possess a firearm in terms of section 103(1) of Act 60 of 2000 for this robbery with
aggravating circumstances.
AD SENTENCE:
6. The appellant now appeals against his sentence only, and application for Leave to
Appeal against the sentence was granted on 12 November 2024.
7. It is argued on behalf of the Appellant that the court 'a quo' did not consider his
personal circumstances that at the time of sentence, the Appellant was 53 years
old, not married, but having a partner; having three minor children and three adult
dependants; had passed grade seven at school; and was not employed, but did
informal work when available. It was further argued that he showed remorse by
pleading guilty, and that his previous convictions were old.
8. Case law relied upon by the applicant emphasised the need for proportionality 1 in
sentencing, arguing that the court 'a quo' emphasised only the interests of society
and deterrence purposes of sentencing.
1 S v SMM 2013 (2) SACR 292 (SCA para 13; S v Makwanyane 1995 (3) SA 391 (CC) paragraph [94]; S v Vilakazi
2009 (1) SACR 552 (SCA) par [15]; and S v Dodo 2001 (3) SA 382 (CC) paragraph [37).
9. It is the respondent's submissions, on the other hand, that the sentence imposed
is not shockingly inappropriate in the light of the prevalence of the offence; the
appellant's several previous convictions of robbery and theft, all similar in nature
to the present offence; that the appellant was not deterred by his previous
sentences, with his criminal actions having seemingly increased in severity with
the present premeditated robbery of the victims at gun point, among others. His
plea of guilty, which was almost two years later, the respondent argues was
necessitated by the strong case against the Appellant , and not remorse.
10. The essential inquiry in an appeal against sentence is not whether the sentence
was right or wrong, but whether the sentencing court exercised its discretion
properly and judicially. It is trite that sentencing is a judicious exercise which lies
exclusively with the discretion of a sentencing court. In S v Mokela2 it was held that
sentencing remains pre-eminently within the discretion of the sentencing court, and
the appeal court does not enjoy the privilege to interfere with the sentence which
has been properly imposed by a sentencing court.
11 . The appeal court will only interfere with the sentence of the trial court if the imposed
sentence induces a sense of shock or manifestly inappropriate.
12. S v Ma/gas3 sets out clear guidelines on the consideration of the minimum
sentence provisions (as the Act is often referred to) in cases where they apply. It
2 2012 (2) SACR 431 (SCA), at 435f
3 5 v Ma/gas 2001 (1) SACR 469 (SCA).
is however unfortunate that it has often been said that courts tend to pay little more
than lip service to these guidelines.4 Ponnan JA states as follows in S v Matyityi,5
a view I fully align myself with that Courts are obliged to impose prescribed
sentences unless there are truly convincing reasons for departing from them, and
not subvert the will of the legislature by resort to vague, ill-defined concepts such
as "relative youthfulness" or other equally vague and ill-founded hypotheses.
13.1 agree with the Court 'a quo' that there are no substantial and compelling
circumstances that justify a departure from imposing the prescribed minimum
sentence. In light of the last previous conviction of robbery in 2010, albeit
committed not with aggravating circumstances, he was sentenced to 17 years
imprisonment, which sentence he was still serving, and in all probabilities on parole
when he committed the present offence. There is no justification for deviating from
the imposed prescribed 20 years imprisonment minimum sentence prescribed for
a second offender.
14. There is therefore no basis for interfering with the sentence imposed on the
appellant.
15. In the premises I make the following order:
a) The appeal against sentence is dismissed.
4 See 5 v Dodo 2001 (1) SACR 594 (CC) at 602-603; 5 v 8/ignaut 2008 (1) SACR 78 (SCA) para 3 and 5 v
Nkunkuma & others 2014 (2) SACR 168 (SCA) paras 9 and 10.
5 S v Matyityi 2011 (1) SACR 40 (SCA), para 23.
I agree
Heads of argument prepared by:
On behalf of the applicant: Adv. Leana Augustyn
Instructed by: Legal Aid Board
On behalf of the respondent: Adv. A Coetzee
Instructed by: DPP PRETORIA
Date of hearing: 13th May 2026
Date of judgment: 14th May 2026
Holland-Muter l