REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
(1) REPORTABLE: ¥-eSf NO
(2) OF INTEREST TO OTHER JUDGES: ¥eS / NO
(3) REVISED
02 September 2026
DATE SIGNATURE
IN THE MATTER BETWEEN :
BONGANI SIBIYA
AND
THE STATE
MATJELE AJ
JUDGMENT
Case No: A235/2025
APPELLANT
RESPONDENT
Introduction
1. This is an appeal against sentence arising from proceedings in the Regional Court,
Pretoria. The Appellant was convicted on 3 August 2023, pursuant to pleas of
guilty, of murder read with the provisions of section 51 (1) of the Criminal Law
Amendment Act 105 of 1997 ("the CLAA''), possession of an unlicensed firearm,
and unlawful possession of ammunition.
2. On 16 November 2023, the Regional Court sentenced the Appellant to life
imprisonment on the murder count, 15 years' imprisonment in respect of the firearm
offence and five years' imprisonment in respect of the ammunition offence. The
determinate sentences were ordered to run concurrently with the sentence of life
imprisonment.
3. The Appellant enjoys an automatic right of appeal by virtue of the sentence of life
imprisonment imposed by the Regional Court. The present appeal is directed
against sentence only.
4. The principal issue is whether the court a quo materially misdirected itself in finding
that the Appellant's guilty plea, personal circumstances and period spent in custody
awaiting finalisation of the matter, considered cumulatively, did not constitute
substantial and compelling circumstances warranting departure from the
prescribed sentence of life imprisonment.
Facts:
5. The circumstances surrounding the offences emerge principally from the
Appellant's plea and the admitted evidence. On 10 September 2022 the deceased,
a university student, was on his way home from university when the Appellant
encountered him and decided to rob him of his cellular telephone. According to the
Appellant's version, when the deceased placed his hand in his pocket, the
Appellant panicked and shot him. The Appellant thereafter entered the motor
vehicle being used and left the scene. The police stopped them a short distance
away and found the firearm and ammunition in the Appellant's possession.
6. The Appellant pleaded guilty to murder, unlawful possession of the firearm and
ammunition, and made the necessary admissions concerning the post-mortem
findings and chain evidence. The murder was committed in the course of an
attempted armed robbery, bringing it withins 51(1), read with Part I of Schedule
2, of the Criminal Law Amendment Act 105 of 1997, for which the prescribed
sentence is life imprisonment unless substantial and compelling circumstances
justify a lesser sentence.
Grounds of appeal
7. The Appellant contends that the court a quo failed to attach sufficient weight to his
guilty plea, his personal circumstances and the approximately 14 months which he
spent in custody awaiting finalisation of the trial. His personal circumstances
included that he was 39 years old, had four children, had previously been
employed, and had limited schooling.
8. It is submitted that those circumstances , considered cumulatively, constitute
substantial and compelling circumstances within the meaning of section 51 (3)(a)
of the CLAA. The Appellant consequently contends that life imprisonment is
excessively severe and that the sentencing court misdirected itself by failing to
impose a lesser sentence.
9. The State opposes the appeal. It submits that there was no material misdirection
and that the sentence imposed properly reflects the seriousness of the offence, the
Appellant's personal circumstances and the interests of society. Of particular
significance to the State's argument is the Appellant's previous conviction for
murder, in 2004 for which he was sentenced to 10 years' imprisonment. Despite
having been afforded an opportunity for rehabilitation , he subsequently committed
another murder.
10. The trial court expressly considered the guilty plea and other mitigating factors
cumulatively but concluded that they did not constitute substantial and compelling
circumstances , particularly in the light of that previous conviction.
11. There is a distinction between remorse and a guilty plea. A guilty plea is certainly
relevant, but it does not automatically establish genuine remorse, particularly
where the accused did not testify in mitigation explaining his motivation or
demonstrating insight into his repeated violent conduct. The State specifically
relies, among others, on this fact. It makes the previous murder conviction
particularly important when assessing rehabilitation and whether there is any
convincing basis for departing from life imprisonment.
12. That previous conviction materially changes the sentencing enquiry. This is not a
first offender whose conduct may plausibly be regarded as an isolated lapse.
Despite having previously been convicted of murder and sentenced to ten years'
imprisonment , the Appellant again unlawfully killed another person. This means
the previous sentence did not achieve the desired deterrent or rehabilitative effect.
Issue
13. The question before this Court is accordingly not whether this Court might have
imposed a different sentence had it sat as the court of first instance. The enquiry
is whether the court a quo committed a material misdirection or imposed a
sentence so disproportionate that appellate interference is warranted.
Law
14. It is trite that sentencing is pre-eminently a matter for the discretion of the trial court.
An appellate court does not approach sentence as though it were exercising the
sentencing discretion afresh. The appeal court's power to interfere is also limited.
S v Rabie 1975 (4) SA 855 (A) establishes that sentence may be interfered with
only where that discretion was not judicially exercised , because of a material
misdirection or because the sentence is disturbingly inappropriate.
15. In S v Pillay 1977 (4) SA 531 (A) the Court explained that not every misdirection
entitles an appellate court to interfere . The misdirection must be of such a nature,
degree or seriousness that it demonstrates that the sentencing court failed properly
degree or seriousness that it demonstrates that the sentencing court failed properly
or reasonably to exercise its sentencing discretion. Similarly, in S v Kibido 1998
(2) SACR 214 (SCA) it was reiterated that the determination of sentence falls
primarily within the discretion of the sentencing court, both in identifying relevant
factors and in determining the weight to be attached to them.
16. In respect of prescribed minimum sentence regime, the governing principles were
formulated in S v Maiga~ ?001 (1) SACR 469 (SCA). Ma/gas does not require the
sentencing court mechanically to impose the prescribed sentence. The court
remains obliged to consider all circumstances relevant to sentence. At the same
time , the prescribed sentence is not to be departed from lightly or for flimsy
reasons. Ordinary mitigating circumstances do not necessarily become substantial
and compelling merely because several of them are present. The ultimate enquiry
remains whether, having regard to all relevant circumstances cumulatively, the
prescribed sentence would be unjust or disproportionate.
17. The State correctly relies upon the warning in Ma/gas against departing from
prescribed sentences based on speculative considerations , misplaced sympathy,
marginal differences in personal circumstances or other considerations incapable
of justifying departure from the legislative sentencing regime. Likewise, S v
Matyityi 2011 (1) SACR 40 (SCA) emphasises that courts must give proper_ effect
to the minimum-sentence regime and should depart from prescribed sentences
only where truly convincing reasons exist.
18. Equally, the Appellant correctly relies upon S v Vilakazi 2009 (1) SACR 552 (SCA)
for the proposition that the individual circumstances of the particular offence and
offender remain important and that moral blameworthiness must be assessed on
the facts of each case.
19. These principles are complementary rather than contradictory. A sentencing court
must respect the legislative prescription while remaining alive to its constitutional
duty to ensure that punishment remains proportionate to the offence, the offender
and the legitimate interests of society.
Application :
and the legitimate interests of society.
Application :
20. The guilty plea is a mitigating consideration, but it cannot be viewed in isolation. A
guilty plea may demonstrate acceptance of responsibility and save judicial
resources, but in this matter, it is substantially outweighed by the seriousness of
the offence, the circumstances in which the deceased was killed, the use of an
unlawfully possessed firearm, and particularly the previous conviction for the same
grave offence.
21. The Appellant's guilty plea, his personal circumstances and the period spent in
custody before sentence are mitigating factors and have been considered
cumulatively. They do not, however, constitute substantial and compelling
circumstances within the meaning of section 51(3)(a) of Act 105 of 1997. Of
considerable significance is the Appellant's previous conviction for murder. Despite
having previously been sentenced to a substantial term of imprisonment for taking
another person's life, he again committed murder, this time during an attempted
armed robbery. The previous sentence plainly failed to deter him from serious
violent offending.
22. This attempted robbery offence was motivated by greed in terms of the Appellant's
plea. He was drinking at a tavern in Mamelodi, decided to drive to Hatfield, a
predominantly student populated area, where he could rob one student of a cell
phone, sell it and buy more alcohol. It is while implementing his planned robbery,
that he perceived resistance from the targeted student, and then shot him.
23. The proportionality enquiry does not produce a different result. The Appellant
correctly stressed that life imprisonment is the most severe sentence available and
requires careful consideration. But proportionality involves the crime, the
offender, the interests of society and the impact on the victim and his family, not
the offender's personal circumstances alon~. The deceased was a university
postgraduate student who was killed during an attempted robbery for a cellphone.
The Respondent's heads also place emphasis on the impact of the killing upon his
family and the prevalence and seriousness of violent crime.
24. In these circumstances the interests of society, deterrence, prevention and
24. In these circumstances the interests of society, deterrence, prevention and
retribution assume considerable weight. The guilty plea, while deserving of
appropriate recognition, cannot neutralise the seriousness of the offence or the
compelling aggravating effect of the Appellant's antecedent conviction for murder.
Viewed cumulatively, the mitigating factors do not render the prescribed sentence
unjust or disproportionate.
Whether the court a quo misdirected itself:
25. The Appellant has not demonstrated that the Regional Court overlooked any
material mitigating circumstance. On the contrary, the argument advanced on
appeal is substantially one concerning the weight which the sentencing court
attached to the mitigating factors. A difference of opinion concerning the weight
assigned to individual sentencing considerations does not, without more, amount
to a material misdirection.
26. The Regional Court considered the guilty plea and the Appellant's personal
circumstances . It considered the prescribed minimum sentence and whether
substantial and compelling circumstances existed. It also considered the previous
murder conviction. Its conclusion that the mitigating circumstances did not justify
departure from life imprisonment was one which it was entitled to reach.
27. On these facts the sentencing court committed no material misdirection and its
conclusion does not induce a sense of shock. There is consequently no basis upon
which this Court is entitled to interfere with the sentencing discretion exercised by
the court a quo. Life imprisonment remains an appropriate and proportionate
sentence .
28. Applying the principles in Rabie , Pi/lay and Kibido , there is accordingly no proper
basis upon which this Court may interfere. Even if this Court were entitled to
consider sentence afresh, the cumulative circumstances would, in my view, justify
the same result.
Order:
29. In the result, the following order is made:
1. The appeal against sentence is dismissed.
2. The sentence of life imprisonment imposed by the Regional Couft in respect
of the conviction for murder is confirmed.
3. The sentences imposed in respect of the firearm and ammunition convictions
are confirmed.
4. The order that the determinate sentences be served concurrently with the
sentence of life imprisonment remains undisturbed .
L MATJELEAJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree. ~
J
L M MOLOPA- SETHOSA J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
On behalf of the Appellant:
Instructed by:
Email :
Ref No:
On behalf of the Respondent:
Instructed by:
Adv. H. L. Alberts
Legal Aid Board
Justice Centre Pretoria
Pretoria Local Office
4th floor Locamo House
Francis Baard str. 317 Pretoria.
073 752 11 70
hermana@legal-aid .co.za
PA 15/2025
Adv. L.A. More
DIRECTOR OF PUBLIC PROSECUTIONS
Gauteng Division (Pretoria)
(012) 351 6735
0609609155
8
Date of hearing: 2nd June 2026
Date of judgment: 2nd September 2026