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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
In the matter between:
QAPHELANISHANDU
LUCKY NCUBE
and
THE STATE
ORDER
Case No. AR 113/25
First Appellant
Second Appellant
Respondent
On appeal from: The Regional Court for the Regional Division of Durban held at
Ntuzuma (Mrs E Le Grange sitting as court of first instance).
1. The appeal against sentence succeeds to the limited extent set out below.
2. The convictions and sentences imposed by the court a quo in respect of counts
1, 2, 3, 4, 5 and 6 are confirmed.
3. The order of the court a quo relating to the concurrency of the sentences in
counts 3, 4, 5 and 6 is set aside and amended to read as follows:
'The sentences in counts 5 and 6 are ordered to run concurrently with the sentences
imposed in counts 3 and 4.'
4. The effective sentence for each of the appellants is 20 years imprisonment and
ante-dated to 28 January 2020.
5. Save as aforesaid, the appeal against sentence are dismissed.
JUDGMENT
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Singh J (Henriques J concurring)
Introduction
[1] The appellants were convicted in the Ntuzuma Regional court on the following
counts:
(a) Two counts of robbery with aggravating circumstances read with the provisions
of s 51 (2) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997
('the CLAA') read further with the provisions of ss 1, 262(1) and 260 of the
Criminal Procedure Act 51 of 1977, ('the CPA').
(b) Two counts of attempted murder read with Part IV of Schedule 2 of the CLAA.
(c) One count of unlawful possession of a prohibited firearm with the serial number
being altered in contravention of s 41 (f)(iv) read with ss 1, 17, 19, 20, 103, 117,
120(1)(a), 121, 151 and Schedule IV of the Firearms Control Act 60 of 2000
('the FCA') and further read with s 250 of the CPA.
(d) One count of unlawful possession of ammunition in contravention of s 90 read
with ss 1, 103, 117, 120(1 )(a), 121, 151 and Schedule IV of the FCA and further
read withs 250 of the CPA.
[2] On 28 January 2020, the appellants were sentenced as follows:
(a) Fifteen (15) years imprisonment in respect of counts 1 and 2 which were taken
together for the purposes of sentence.
(b) Five (5) years imprisonment in respect of counts 3 and 4 which were taken
together for the purposes of sentence.
(c) Five (5) years imprisonment in respect of counts 5 and 6 which were taken
together for the purposes of sentence.
(d) The effective sentence was twenty-five (25) years direct imprisonment.
[3] Aggrieved by the outcome of the trial, the appellants sought leave to appeal to
the court a quo. The first appellant sought leave to appeal in respect of sentence only.
The second appellant sought leave to appeal in respect of the conviction and
sentence. Leave to appeal for the second appellant was refused in respect of the
conviction but was granted in respect of sentence . Both appellants ' appeal relates to
sentence only.
The facts
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[4] The court a quo in its judgment convicted the appellants on the following facts:
(a) On the evening of 29 December 2017, and at KwaMashu, the two appellants
who were in the company of three other suspects, held up the two complainants
in counts 1 and 2 at gunpoint, and took a Toyota Tazz motor vehicle, and three
cellphones from them.
(b) On the same evening, the two appellants still in the company of the three other
suspects were pursued and apprehended by the two complainants in counts 3
and 4. The two complainants were police officers and the two appellants shot
at the complainants.
(c) They were apprehended and the firearm and ammunition relating to counts 5
and 6 were found in their possession.
(d) The appellants were accordingly convicted, as charged.
The first appellant's personal circumstances
[5] The following personal circumstances, relating to the first appellant were placed
before the court a quo:
(a) He was 27 years old at the time of the commission of the offence.
(b) He was a first offender with no previous convictions.
(c) He had a five-year-old child and was unmarried. The child resided with his
mother, who received a.child care grant on behalf of the child.
(d) At the time of his arrest, he was unemployed but was looking for employment.
(e) He had been in custody for a period of two years and one month awaiting trial.
[6] A probation officer's report was also placed before the court a quo. In essence,
the report was a repetition of the first appellant's personal circumstances as set out
above.
The second appellant's personal circumstances
[7] The following personal circumstances relating to the second appellant were
placed before the court a quo:
(a) He was 25 years old, at the time of the commission of the offence.
(b) He was employed as a taxi driver and had three children.
(c) He maintained his three children and maternal family.
(d) He had a previous conviction for robbery, for which he was convicted on 3 July
2006, when he was 15 years old.
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The judgment of the court a quo
[8) The court a quo in its judgment took cognisance of both appellants' personal
circumstances. In relation to the first appellant, it also took cognisance of the fact that
he was shot during the commission of counts 3 and 4 and had a bullet lodged in his
jaw. The court a quo did not expressly make reference to the probation officer's report.
[9) In relation to the second appellant, it stated that the second appellant was
convicted of robbery approximately 11 years ago and that such previous conviction,
was 'indicative of the fact that accused 2 cannot be rehabilitated because he has been
convicted of robbery and the offences that he now has been convicted of has
escalated to being more serious than being the first offence of robbery, but for the
minimum sentence in legislation, the accused will be seen as a first offender'.1
[1 OJ The court a quo further held that despite the overwhelming evidence against
both appellants, they showed no remorse and still maintained their innocence.2 It took
into account that the courts were inundated with robberies where innocent road users
were robbed of their motor vehicles, as well as the degree of violence used by the
appellants in the commission of the offences.
[11) It further found that an aggravating feature of the appellants' conduct that was
that the two counts of attempted murder were committed when the appellants shot at
the two police officers, who were attempting to apprehend them. The police officers
were merely acting in their line of duty and their conduct was unacceptable.
The first appellant's submissions
[12) The first appellant, who at the hearing was represented by Mr P Daniso,
submitted that:
(a) the effective sentence of 25 years imprisonment was shockingly inappropriate
and that the court a quo erred in finding that there were no substantial and
compelling circumstances to deviate from the prescribed minimum sentence in
respect of counts 1 and 2. The court a quo failed to take into account the
respect of counts 1 and 2. The court a quo failed to take into account the
personal circumstances of the first appellant, which were contained in the
1 Record, lines 10 to 16, page 355
2 Record, lines 13 to 15, page 352
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probation officer's report, thus ignoring that probation officers in compiling
reports, performed a valuable task for the court.
(b) none of the complainants were injured and that the court a quo failed to take
this into account in imposing 15 years imprisonment in respect of counts 1 and
2.
(c) the court a quo ought to have made an appropriate order regarding the
concurrency of the sentences and that the total period of imprisonment to be
served by the first appellant ought to be 15 years imprisonment.
The second appellant's submissions
[13] The second appellant who was represented by Ms D Barnard submitted the
following:
(a) Counts 1 and 2 were correctly ordered to run concurrently in that both counts
were committed at the same time and at the same place. In so doing, the court
a quo exercised mercy and leniency to the appellant.
(b) That the court a quo ought to have however found that there were some
substantial and compelling circumstances in relation to counts 1 and 2 and for
that matter, counts 3 and 4, as this was not one of the worst cases faced by the
court a quo as no one was injured in the commission of counts 1, 2 3 and 4 nor
was there the use of gratuitous violence. In this regard, Ms Barnard referred the
court to S v Mabunda3, where the Supreme Court of Appeal ('the SCA') ordered
that 12 years of a sentence of 15 years imprisonment in count 2 was to run
concurrently with a 15 year sentence in count 1.
(c) The court a quo incorrectly took into account the second appellant's previous
conviction, which was more than ten years ago. The previous conviction
influenced the court a quo because it went on to state that in light of the previous
conviction the second appellant was not capable of rehabilitation.
(d) That the court a quo ought to have taken into consideration that the second
appellant spent time in detention awaiting trial.
(e) The gravest misdirection was that the cumulative effect of the sentences was
(e) The gravest misdirection was that the cumulative effect of the sentences was
25 years and that the court a quo ought to have taken into consideration that
counts 3 and 4 were committed with a relatively short time of counts 1 and 2.
The sentences in counts 2, 3, 4, 5 and 6 ought to therefore have been ordered
3 S v Mabunda 2013 (2) SACR 161 (SCA), para 8 - 10
6
to run concurrently with the sentence in count 1 and that a cumulative sentence
of 18 to 20 years imprisonment would have been most appropriate.
The State's submissions
[14] The State represented by Ms B Mbambo, submitted as follows:
(a) In relation to the first appellant, the probation officer's report was not binding on
the court and even if the court a quo did not state that it considered the
probation officer's report, all the personal circumstances of the first appellant
were considered and the court a quo found that none of the personal
circumstances constituted substantial and compelling circumstances .
(b) The fact that none of the complainants were injured did not mean that there
ought to have been a deviation of the prescribed minimum sentence. Though
there were no physical injuries to any of the complainants, the experiences of
the complainants in counts 1 and 2 would nonetheless have been mentally and
emotionally traumatic.
(c) In relation to counts 3 and 4, she submitted that those counts were already
ordered to run concurrently and that the fact that only the first appellant was
armed with a firearm did not reduce the second appellant's blameworthiness as
both appellants were charged with common purpose.
(d) Counts 3 and 4 were not closely linked to counts 1 and 2 as the police were
performing patrol duties when they came across the appellants and were not
pursuing them as potential suspects in counts 1 and 2.
(e) In relation to whether the court a quo took into account the second appellant's
previous conviction, it was submitted that although the court made mention of
same, it was clear that the second appellant was sentenced as a first offender
in relation to counts 1 and 2.
(f) It was submitted that the time spent in detention by both appellants could not
on its own amount to a substantial and compelling circumstance and that the
court correctly did not take it into account.
(g) Overall, the State submitted that this court ought not to interfere with the issue
(g) Overall, the State submitted that this court ought not to interfere with the issue
of sentence.
The law
[15) It is trite that sentencing or punishment is pre-eminently in the discretion of the
trial court. When exercising its appellate function, the appellate court will not in the
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absence of a material misdirection by the trial court, approach the question of sentence
as if it were the trial court and then substitute the sentence arrived at simply because
it prefers it. Having stated the test on appeal, this court must consider whether there
was any material misdirection by the court a quo. In considering whether there was
any material misdirection, one of the points raised by the appellants was that this court
must consider the issue of why the sentences in counts 3 to 6 were not ordered to run
concurrently with the sentences in counts 1 and 2.
(16] Section 280(2) of the CPA which relates to cumulative or concurrent sentences,
provides as follows:
'Such punishments , when consisting of imprisonment, shall commence the one after the
expiration , setting aside or remission of the other, in such order as the court may direct, unless
the court directs that such sentences of imprisonment shall run concurrently. '
[17] The aforesaid provision confers a discretion to the sentencing court to make
such an order. It is trite that in exercising its discretion, a sentencing court must do so
judicially to ensure that the cumulative effect of multiple sentences is not
disproportionate to the overall criminality. In Moswathupa4, the SCA held that
concurrency is particularly appropriate where offences are factually and contextually
linked, and treating them separately would exaggerate the gravity of the offender's
overall conduct. Furthermore in S v Vilakazi5, the SCA articulated the principle of
proportionality and warned against the effect of disproportionately harsh sentences.
Application of the law to the facts
(18] It is clear from the record that the court a quo was alive to all the personal
circumstances of both appellants. The criticism by the first appellant was that the court
did not take cognisance of the probation officer's report. The personal circumstances
of the first appellant, which were contained in the probation officer's report, were also
of the first appellant, which were contained in the probation officer's report, were also
laid before the court a quo by the appellants' legal representative in argument on
mitigation of sentence. The fact that the court a quo in its judgment did not specifically
refer to the probation officer's report, therefore was not a material misdirection.
[19] In relation to the second appellant, the crux of his complaint was that the court
a quo took cognisance of his previous conviction which was more than ten years old
4 Moswathupa v S [2011] ZASCA 172; 2012 (1) SACR 259 (SCA), para 8 (Moswathupa)
5 S v Vilakazi (2008] ZASCA 87; 2009 (1) SACR 552 (SCA) (Vilakazi)
8
and did not treat him as a first offender.6 In this regard, I am of the view, that whilst the
court a quo stated that the second appellant had previous convictions, it did not in fact
sentence the second appellant as if he was a second offender. I am therefore of the
view that the court a quo did not materially misdirect itself in arriving at a sentence of
15 years imprisonment in respect of counts 1 and 2 in relation to the second appellant.
[20] With regard to the submission that the sentence of 15 years imprisonment in
respect of counts 1 and 2, was harsh as no one was injured, regard must be had to
the fact that both appellants were charged in terms of the provisions of s 51 (2) and
Schedule 2 of the CLAA. The said charges attract a prescribed minimum sentence of
15 years imprisonment, unless there are substantial and compelling circumstances to
warrant a deviation.
[21] In interfering with sentence, this court must consider whether the court a quo
erred in finding that there were no substantial and compelling circumstances in respect
of counts 1 and 2. In S v Malgas7, Marais JA said at paragraph 25:
' ... 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.'
[22] This approach survived constitutional scrutiny in S v Dodo8. Subsequently in
Vilakazi9, the SCA explained that factors whether they are aggravating or mitigating
ought not to be taken individually but rather upon a consideration of all circumstances
of the particular case.
[23] Much was made on behalf of the second appellant that the court a quo
misdirected itself in failing to take into account that the appellants had been in custody
pre-trial for two years. In S v Radebe and Another10, the SCA stated:
pre-trial for two years. In S v Radebe and Another10, the SCA stated:
' ... the test is not whether on its own that a period of detention constitutes a substantial or
compelling circumstance, but whether the effective sentence proposed is proportionate to the
6 Record, lines 22 to 23, page 355
7 S v Ma/gas 2001 (1) SACR 469 (SCA); 2001 (1) SA 1222(SCA); (2001] 3 All SA 220 (SCA)
8 S v Dodo 2001 SACR 594 (CC); 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
9 Vilakazi para 15
10 S v Radebe and Another [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) (Radebe), para 14
9
crime or crimes committed; whether the sentence in all the circumstances, including the period
spent in detention prior to conviction and sentencing, is a just one.'
[24] The court in Radebe went on to state:
' ... the period in detention pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment to be imposed is
justified ... '
[25] The commission of counts 1 and 2, involved the taking of a motor vehicle and
the use of a firearm. In my view, it was fortuitous that no one was injured during the
commission of these counts. Likewise, it was also fortuitous that none of the police
officers involved in apprehending the appellants in counts 3 and 4 were killed or
injured. Against that background , I do not believe that any of either of the appellants'
personal circumstances constituted substantial and compelling circumstances in
respect to counts 1 and 2. Insofar as the sentences in counts 3, 4, 5 and 6 are
concerned, I consider that these too are fully justified.
[26] In my view, the gravity of the offences far outweighs both appellants' personal
circumstances. The sentences imposed do not induce a sense of shock. It may well
be that both the appellants spent two years in detention before they were convicted
but this factor does not outweigh the aggravating circumstances in respect of all six
counts. There is no reason to interfere with the length of the sentences imposed by
the court a quo and the appeal to that extent therefore fails.
[27] With regard to the issue of the court a quo failing to make an order that counts
2 to 6 run concurrently with count 1, this court takes into account that the offences
committed in counts 3 and 4 were independent criminal conduct from that of counts 1
and 2. Counts 3 and 4 were committed after the commission of counts 1 and 2. They
involved separate complainants , and were, in my view separate incidents and not
involved separate complainants , and were, in my view separate incidents and not
linked to each other. As held in Moswathupa , concurrency is appropriate where the
offences are factually and contextually linked. In casu, this was not so. I am satisfied
however that counts 5 and 6 being the charges of unlawful possession of a firearm
and ammunition were used in the commission of counts 3 and 4. It is therefore
appropriate that the sentences imposed in counts 5 and 6 ought to be ordered to run
concurrently with counts 3 and 4. To that extent, it is appropriate to interfere with
10
sentence imposed by the court a quo. To that limited extent, the appeal succeeds.
Each of the appellant's effective sentence is therefore twenty (20) years imprisonment.
Order
[28] In the circumstances, I propose the following order:
1. The appeal against sentence succeeds to the limited extent set out below.
2. The convictions and sentences imposed by the court a quo in respect of counts
1, 2, 3, 4, 5 and 6 are confirmed.
3. The order of the court a quo relating to the concurrency of the sentences in
counts 3, 4, 5 and 6 is set aside and amended to read as follows:
The sentences in counts 5 and 6 are ordered to run concurrently with the
sentences imposed in counts 3 and 4.'
4. The effective sentence for each of the appellants is 20 years imprisonment and
ante-dated to 28 January 2020.
5. Save as aforesaid, the appeal against sentence are dismi
I
I agree
CASE INFORMATION
Date of Hearing
Judgment Delivered
Counsel for the First Appellant
Instructed by
Counsel for the Second Appellant :
Instructed by
Counsel for the Respondent
Instructed by
12 June 2026
10 July 2026
Mr P Daniso
Legal Aid South Africa
The Marine Building
22 Dorothy Nyembe Street
Durban
Tel: 083 705 6276
Email: PumeleleD@legal-aid.co.za
Ms D Barnard
Mpungose Attorneys
296 Mathews Meyiwa Road
Durban
Ref: Mrs Mpungose
Tel: 031 563 3073 / 073 976 5200
Email: info@mpungoseattorneys.co.za
Barnard.dalene@gmail.com
Ms F B Mbambo
Director of Public Prosecutions
Pietermaritz Street
Pietermaritzburg
Tel: 083 635 6659
Email: bfncwane@npa.gov.za
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