THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 593/2020

In the matter between:

ISAAC MLUNGISI MHLAMBI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Isaac M Mhlambi v The State (593/20) [2021] ZASCA 49 (21
April 2021)

Coram:
Zondi, Schippers and Mbatha JJA and Carelse and Mabindla-
Boqwana AJJA

Heard:
17 February 2021

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to Saflii. The date and time of hand-down is deemed to be
10h00 on 21 April 2021.

Summary: Criminal law and procedure – sentence – two counts of robbery with
aggravating circumstances – possession of firearm – special leave to appeal
granted – cumulative effect of sentence properly considered – sentence
appropriate – appeal dismissed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Kubushi and
Louw JJ sitting as court of appeal):
The appeal is dismissed.

JUDGMENT

Schippers JA (Zondi and Mbatha JJA and Carelse and Mabindla-Boqwana
AJJA concurring):

[1] The appellant was convicted in the regional court, Oberholzer, on two
counts of robbery with aggravating circumstances, one count of unlawful
possession of a firearm and one count of unlawful possession of ammunition. He
was sentenced to 15 years’ imprisonment on each of the two counts of robbery
(counts 1 and 2); five years’ imprisonment on the charge of unlawful possession
of a firearm (count 4); and five years’ imprisonment on the charge of unlawful
possession of ammunition (count 5). The regional court ordered the sentences on
counts 2, 4 and 5 to run concurrently. Thus, the appellant was sentenced
effectively to 30 years’ imprisonment.

[2] The appellant and his co-accused, Mr Tshepo Reginald Matshego,
successfully petitioned the Gauteng Division of the High Court, Pretoria (the high
court) for leave to appeal against their conviction and sentence. The State
conceded that it had not proved that they had unlawfully possessed ammunition
(count 5) and consequently that they should not have been convicted of that
offence. Save for setting aside the conviction of unlawful possession of

ammunition,1 the high court dismissed the appeal against conviction. The
appellant’s appeal against sentence was partially successful. The sentence of 15
years’ imprisonment on count 1 was set aside and replaced with a sentence of 10
years’ imprisonment. The appellant’s effective term of imprisonment was thus
reduced to 25 years. Mr Matshego’s appeal against sentence was dismissed.

[3] The appellant then petitioned this Court for special leave to appeal against
his conviction and sentence. He was granted leave to appeal against sentence
only. The parties have agreed that this Court may dispose of the appeal without
hearing oral argument, in terms of s 19(1)(a) of the Superior Courts Act 10 of
2013.2

[4] The basic facts can be shortly stated. It is clear from the evidence that the
robberies were perpetrated by more than three persons, although only the
appellant and two of his co-accused had been charged with committing the
crimes. On count 1 (robbery with aggravating circumstances) the appellant was
convicted of hijacking a Hino 26-ton truck (a horse and trailer) and its cargo, in
broad daylight on 19 June 2007 in Carltonville. The truck was fairly new and
valued in excess of R1 million, and its cargo of foodstuff, at about R300 000.

[5] The modus operandi of the appellant and his co-perpetrators was this. Two
of the robbers travelling in a bakkie pulled up alongside the truck and falsely
signalled to the driver that the truck was open. The truck stopped. When the driver

1 Nothing turns on the fact that the Gauteng Division of the High Court, Pretoria set aside this conviction in the
body of the judgment and that it is not referred to in the court's order. It is a settled principle that when interpreting
a court’s judgment or order, the court’s intention must be ascertained primarily from the language of the judgment
or order according to the usual, well-known rules of interpretation. The judgment or order and the courts reasons
for giving it must be read as a whole in order to ascertain its intention (Firestone South Africa (Pty) Ltd v Genticuro
AG 1977 (4) SA 298 (A) at 304D-F; Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015
(4) SA 34 (SCA) para 10.
2 Section 19(a) provides: ‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in
addition to any power as may specifically be provided for in any other law-
(a)
dispose of an appeal without the hearing of oral argument’.

got to the back of the trailer, the appellant and two of his co-perpetrators, who
were all armed, emerged from a white Toyota Tazz motor vehicle (the Tazz),
parked at the back of the truck.

[6] The robbers pointed their firearms at the driver of the truck and ordered
him to get into the Tazz. Two workers who were in the truck got out and went to
the trailer to see what was happening. They too were ordered into the Tazz at
gunpoint. Meanwhile, the robbers in the bakkie returned to the truck and ordered
Mr Samuel Zwandile Madai, a worker who had remained in the truck, to get into
the bakkie, which he did. He was also ordered not to look at their faces. The
robbers then stole the truck. Mr Madai was taken to some bushes nearby where
the robbers communicated by cell phone. He overheard them saying that he was
an old man and would not give them any problem. The robbers kept Mr Madai
there and ordered him not to get up until they left that place. Some 30 minutes
later, after the robbers had left Mr Madai sought help from a farmer who took
him to a nearby police station.

[7] The truck driver and his passengers were driven away in the Tazz in the
direction of Ventersdorp and taken down a farm road in Klerkskraal. There they
were ordered to get out of the car, crawl under a bush and held hostage for some
five hours by one of the appellant’s co-accused who was armed. Another robber
returned with the Tazz to fetch the one who had been guarding them. The truck
driver and his passenger then walked to the N14 and took a taxi to Ventersdorp
where they reported the robbery.

[8] On 10 July 2007 at about 20h00 and in Ventersdorp, the appellant and his
co-accused hijacked a second truck, a Mercedes-Benz horse and trailer carrying
a cargo of cement valued at R800 000 (count 2). The truck driver had stopped to
check whether its headlights were working. As he got back into the truck three

robbers were at the driver’s door. One of them pulled him out of the truck and
overpowered him. The driver did not give evidence; he had left the employ of the
truck’s owner. The appellant’s palm print was found on the driver’s door of the
truck. The passenger, Mr Kaizer Stock, tried to flee. One of the robbers pointed
a firearm at him, and ordered him to get back into the truck and lie on the bed.
Another robber then drove the truck for a considerable distance on the N14
Freeway in Krugersdorp.

[9] At Klerkskraal the robbers ordered Mr Stock to get out of the truck, which
he did. The appellant’s co-accused, Mr Matshego, who arrived in a red Toyota
Corolla (the Corolla) which had been following the truck, pointed a firearm at Mr
Stock, ordered him to get down and not to look at his face. Another robber tied
Mr Stock’s hands and feet and left him on the side of the road. The robbers stole
the Mercedes truck. The appellant and Mr Matshego left in the Corolla.
Subsequently Mr Stock managed to free himself and found his way to Klerkskraal
Police Station. There he was informed that the police were already searching for
the truck, which had been fitted with a satellite tracking device.

[10] The Mercedes truck was tracked to Carltonville where it had stopped. The
robbers fled. Employees of the tracking company who had searched for the truck
received a radio report that the Corolla was involved in the robbery. It had passed
them on the road. When they saw that the police were already at the truck they
turned around, pursued the Corolla and pulled it off the road, some five kilometres
from where the truck had been found. The appellant and Mr Matshego were
apprehended. When the police arrived, they were arrested. A 9 mm pistol was
found in the cubbyhole of the Corolla. This firearm was licensed to Mr Nkosana
William Ndlovu, the appellant’s brother-in-law. The evidence showed that the
appellant had called Mr Ndlovu numerous times on his cell phone before, during
and after both robberies. Mr Ndlovu was also charged on both counts of robbery

with aggravating circumstances, but passed away whilst the proceedings were
pending in the regional court.

[11] It was the modus operandi of the appellant and his co-perpetrators on count
2, which led to their arrest on count 1. They had taken the driver of the Hino truck
and his passengers to the same area in Klerkskraal, where they were held hostage.
During the first robbery, Mr Ndlovu was a passenger in the Tazz. Both he and the
appellant were identified by two different witnesses as having been involved in
the robbery of the Hino truck. When the investigating officer testified in July
2009 – two years after the robbery had been committed – the Hino truck had not
been found. There is no evidence that its cargo was recovered.

[12] The appellant’s defence put to the State witnesses was that he was not
involved in any of the hijackings. At the close of the State case, the appellant and
his co-accused chose not to testify, did not present evidence by any other
witnesses in their defence and closed their case.

[13] The grounds of appeal, in summary, are these. Despite its finding that the
trial court was under the wrong impression that the minimum sentences in s 51 of
the Criminal Law Amendment Act 105 of 1997 were applicable to counts 1 and
2, the high court erred in failing to find that the sentences on those counts were
vitiated by material misdirection. It should have remitted the matter to the trial
court to impose sentence afresh. The high court erred in overemphasising the
seriousness of the offence and the interests of society, and failed to balance these
factors properly against the appellant’s personal circumstances. It also erred in
overemphasising the deterrent and retributive aspects of punishment at the
expense of rehabilitation and prevention. The court failed to take into account the
cumulative effect of the sentences imposed.

[14] It is trite that the power of an appellate court to interfere with a sentence
imposed by a lower court is limited. In S v Rabie,3 Holmes JA stated the principle
thus:
‘1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the court
hearing the appeal –
(a)
should be guided by the principle that punishment is “pre-eminently a matter for the
discretion of the trial court”;
and
(b)
should be careful not to erode such discretion: hence the further principle that the
sentence should only be altered if the discretion has not been “judicially and properly
exercised”.
2.
The test under (b) is whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate.’4

[15] Applied to the present case, in my view it cannot be said that in reducing
the appellant’s sentence to an effective term of imprisonment of 25 years, the high
court failed to exercise its discretion judicially and properly. The high court,
citing Nndateni,5 had regard to the fact that the trial court had committed a
procedural irregularity by invoking the provisions of the Criminal Law
Amendment Act 105 of 1997, without warning the appellant that minimum
sentences were applicable in respect of counts 1 and 2. The court noted that it was
not in dispute between the State and the defence that although the minimum
sentences legislation was incorrectly applied, the trial court’s jurisdiction entitled
it to impose a sentence of 15 years’ imprisonment in respect of counts 1 and 2. It
is a settled principle that even where a sentence is not shockingly inappropriate,
an appellate court is entitled to interfere or at least consider the sentence afresh,
if there has been a material misdirection in the exercise of the sentencing

3 S v Rabie 1975 (4) SA 855 (A) at 857.
4 Rabie fn 3 affirmed by the Constitutional Court in S v Shaik and Others 2008 (5) SA 354 (CC) para 66.
5 Nndateni v S [2014] ZASCA 122

discretion.6 As appears from paragraph 24 below, the high court considered that
the sentence imposed on the appellant was shockingly inappropriate.

[16] The high court did not overemphasise the gravity of the offences and the
interests of society. The robberies were carefully planned, brazenly executed by
a number of robbers and highly organised. The hijacked trucks and their cargo
were of high value, and the appellant and his co-accused would not have
committed armed robbery of this sort, unless there was an organised illicit market
to dispose of the vehicles and cargo. The cargo in the first robbery consisted of
numerous pallets of mealie-meal, samp mealies, cooking oil and rice valued at
R300 000; and in the second robbery, 17 pallets of cement worth some R800 000
– goods that can exchange hands very quickly.

[17] The appellant and his co-perpetrators subdued their victims by threatening
them with firearms. Contrary to the appellant’s submission, the fact that no one
was killed or injured was not due to the conduct of the robbers, but because of the
fear they instilled in their victims. A further aggravating factor was that the driver
of the Hino truck and his passengers were kidnapped and held hostage for five
hours at gunpoint. This was so that they could not alert the police to the robbery
and to ensure that the appellant and his co-accused could make a complete
getaway with the truck and its cargo. In this they succeeded. There is no
admissible evidence that the Hino truck was found and it is clear that its cargo
was never recovered.

[18] Barely three weeks after the first armed robbery, the appellant and his co-
accused committed the second robbery. Mr Stock said that he was terrified when
the firearm was pointed at him and he was ordered to lie face down in the truck;

6 S v Jimenez [2003] ZASCA 2; [2003] 1 All SA 535 (SCA) para 7.

and that the robber who drove the truck later said that he would not kill him. He
was also threatened with a firearm whilst being bound hand and foot, and left on
the side of the road. He testified that he has nightmares about the incident. But
for the tracking device and swift reaction by employees of the tracking company
and the police to recover the truck and apprehend the appellant, he and his co-
accused would have got away with the truck and its cargo. Further, the trial court
rightly took into account the prevalence of armed hijacking of trucks within its
area of jurisdiction, and their adverse impact on business and the economy. The
theft of cargo has a ripple effect on the supply chain going beyond the stolen
goods. This includes increased insurance premiums for freight companies, loss of
sales and additional stock replacement and transport costs. All these costs are
ultimately paid by consumers as the costs of goods increase to offset these losses.

[19] What is more, the appellant overlooks his conviction and sentence in
respect of the unlawful possession of a firearm – a 9mm Parabellum semi-
automatic pistol. The unlicensed possession of semi-automatic firearms is
extremely serious and violent crime involving the use of such weapons has not
diminished. The legislature had in mind that generally unlicensed weapons of that
kind are possessed for use in serious crimes such as robbery with aggravating
circumstances and hijacking, hence the prescribed minimum sentence of 15
years’ imprisonment in the absence of substantial and compelling circumstances.7
The appellant had easy access to the firearm which was licensed to Mr Ndlovu.
The appellant assisted the licensed firearm owner to use it to commit crimes: it
was used in both armed robberies.

[20] In the circumstances, the submission on behalf of the appellant that the
sentence imposed ‘is an extremely severe punishment that should be reserved for

7 S v Swartz 2016 (2) SACR 268 (WCC) para 41, affirmed in S v Motloung [2016] ZASCA 96; 2016 (2) SACR
243 (SCA) para 23.

particular heinous offences’, has no merit. The cases relied upon by the appellant
are distinguishable on their facts and do not support the submission advanced.8

[21] The appellant’s personal circumstances were properly taken into account.
For practical purposes, he was a first offender. He owned property that pointed to
stability. He was 33 years old when the crimes were committed, had passed
matric, has two children aged 9 and 13, and earned R800 per week making and
installing burglar bars and security gates.

[22] The present case is one in which the personal circumstances of the
appellant are overshadowed by the seriousness of the crimes and the interests of
society.9 The appellant showed no remorse and consequently is not a good
candidate for rehabilitation.10

[23] The submission that the high court should have remitted the matter to the
trial court to consider sentence afresh because it was wrongly under the
impression that minimum sentences were applicable, has no foundation. Again,
the authorities relied upon by the appellant do not support this submission.11 The
high court approached the matter on the basis that counts 1 and 2 should be treated
separately in determining an appropriate sentence. This approach is beyond
criticism. In S v Young,12 the importance of treating offences separately to
determine an appropriate sentence, was stated as follows:
‘[I]n the present case I think it conduces to clearer thinking in determining the appropriate
sentences to treat each offence separately. Moreover, no risk of duplication of punishment
thereby arises for each offence is sufficiently distinct, different and serious; and in the ultimate

8 Muller v S [2011] ZASCA 151; Zondo v S [2012] ZASCA 27; Moswathupa v S [2011] ZASCA 172.
9 S v Segole and Another 1999 (2) SACR 115 (W) at 124-125; S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA
396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA 353 (SCA) para 58.
10 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 12.
11 Nndateni v S [2014] ZASCA 122; Moswathupa fn 5 para 6.
12 S v Young 1977 (1) SA 602 (A) at 610G-H.

result the cumulative effect of all the sentences imposed can be otherwise suitably controlled
to avoid undue harshness to the appellant.’

[24] The cumulative effect of the sentences imposed on the appellant in respect
of counts 1, 2 and 4 were properly controlled and its undue harshness suitably
mitigated in the high court’s order. It held that whilst individual sentences ought
not to be disturbed when there was no misdirection by the sentencing court, the
effective sentence of 30 years’ imprisonment was excessive, and induced a sense
of shock. It referred to the judgments of this Court in which it has warned against
the imposition by trial courts of excessively long sentences; and held that such
sentences ‘ought to be realistic and should not be open to the interpretation that
they have been designed for public consumption’.13

[25] The high court accordingly set aside the sentence of 15 years’
imprisonment imposed on the appellant in respect of count 1 and substituted it
with a sentence of 10 years’ imprisonment. In doing so, the court reasoned that
since both the appellant and Mr Matshego had been convicted on count 2, if the
sentences on counts 1 and 2 had to run concurrently in their entirety, the purpose
of adequately punishing the appellant for his conduct, would be defeated. This
finding and the reasons for it cannot be faulted.

[26] In the result, the appeal is dismissed.

_______________________

A SCHIPPERS
JUDGE OF APPEAL

13 Zondo v S [2012] ZASCA 51; S v S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 524.

APPEARANCES

For appellant:
M Kilian

Instructed by:

Du Toit Attorneys, Pretoria
SMO Seobe Attorneys, Bloemfontein

For respondent:
M J van Vuuren

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
21 April 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Isaac M Mhlambi v The State (593/2020) [2021] ZASCA 49 (21 April 2021)

Today the Supreme Court of Appeal (SCA) dismissed an appeal against sentence by the
appellant, Mr Isaac Mhlambi. On 1 December 2014, Mr Mhlambi was convicted in the Regional
Court, Oberholzer of two counts of robbery with aggravating circumstances, one count of
unlawful possession of a firearm and one count of unlawful possession of ammunition. He was
sentenced to fifteen years’ imprisonment on each count of robbery, five years’ imprisonment
on the offence of unlawful possession of a firearm and five years’ imprisonment on the offence
of unlawful possession of ammunition. The latter two sentences were ordered to run
concurrently with the sentences for robbery. Mr Mhlambi was thus sentenced to an effective
term of 30 years’ imprisonment.

Mr Mhlambi successfully appealed to the Gauteng Division of the High Court, Pretoria (the
high court). The conviction for unlawful possession of ammunition was set aside and the
sentence on one of the robbery charges reduced to ten years’ imprisonment. Mr Mhlambi’s
sentence was therefore reduced to an effective term of 25 years’ imprisonment.

Mr Mhlambi then successfully petitioned this Court for leave to appeal against his sentence.
The SCA dismissed his appeal on the grounds that the high court’s order altering the sentence
to an effective term of 25 years’ imprisonment was appropriate. Mr Mhlambi had been
convicted of hijacking two trucks valued in excess of R2 million with a cargo valued at some
R300 000 and R800 000, respectively. One of the trucks and its cargo were never recovered.
He had acted in concert with co-perpetrators, most of whom had firearms and had held their
victims hostage for five hours. Given the seriousness of the offences, the SCA held that this
was a case where Mr Mhlambi’s personal circumstances had to recede into the background.

~~~~ends~~~~