THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 53/2021

In the matter between:

SIBONGILE LUPUMLO MPUQE                                                            APPELLANT

and

THE STATE                                                                                RESPONDENT

Neutral Citation: Sibongile Lupumlo Mpuqe v The State (53/2021) [2022]
ZASCA 37 (4 April 2022)

Coram:
MOLEMELA, MBATHA and CARELSE JJA and SMITH
and WEINER AJJA

Heard:

15 February 2022

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the website of the Supreme
Court of Appeal and release to SAFLII. The date and time for hand-down are
deemed to be 11h00 on 4 April 2022.

Summary: Criminal Law and Procedure – appellant indicted for murder under
s 51(2) of the Criminal Law Amendment Act 105 of 1997 – convicted and
sentenced under s 51(1) of the Criminal Law Amendment Act – sentence of life
imprisonment confirmed; sentence relating to possession of firearms and
ammunition under s 51(2) of the Criminal Law Amendment Act confirmed;
appellant convicted for attempted murder under common law – sentence of 15
years’ imprisonment set aside – reduced to 10 years – to run concurrently with
other sentences.
________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Davis,
Goliath and Henney JJ, sitting as court of appeal):

The appeal against the sentences imposed in respect of counts two, four
and five is dismissed.
The appeal against the sentence of 15 years’ imprisonment, imposed in
respect of count three, is upheld. The sentence is set aside and substituted with
the following:
‘The accused is sentenced to ten (10) years’ imprisonment on count 3 for
attempted murder.’
The sentence set out in para 2 above is antedated to 15 December 2010 and
is to run concurrently with the sentences imposed in respect of counts one, two,
four and five.

________________________________________________________________

JUDGMENT
________________________________________________________________

Mbatha JA (Molemela and Carelse JJA and Smith and Weiner AJJA
concurring)

[1] The appellant, Mr Sibongile Lupumlo Mpuqe and his erstwhile co-accused
were arraigned in the Western Cape Division of the High Court, Cape Town, on
a charge of robbery with aggravating circumstances (count one), murder (count
two), attempted murder (count three), possession of unlicensed firearms (count
four) and illegal possession of ammunition (count five). The provisions of the
Criminal Law Amendment Act 105 of 1997 (the CLAA) applied to counts one,
two and four.

[2] Despite the appellant’s plea of not guilty, he was convicted as charged. The
trial court found no substantial and compelling circumstances that warranted a
deviation from the minimum sentences than the ones prescribed in terms of the
CLAA, in respect of counts one, two and four. The appellant was accordingly
sentenced to 15 years’ imprisonment in respect of count one, life imprisonment
in respect of count two, 15 years’ imprisonment in respect of count three, and 15
years’ imprisonment on counts four and five, which were taken together for
purposes of sentence. In respect of the attempted murder conviction in count
three, which did not fall under the purview of the CLAA, a sentence of 15 years’
imprisonment was imposed. All the sentences were ordered to run concurrently.

[3] Aggrieved by this result, the appellant applied for leave to appeal against
both convictions and sentences to the full court. The trial court granted him leave

to appeal against the sentences, but denied him leave against the convictions. His
appeal on sentences to the full court failed. Subsequently, the appellant was
granted special leave to appeal to this Court only in respect of sentence, hence the
present appeal. Both parties agreed that the matter may be disposed of in terms
of s 19(a) of the Superior Courts Act 10 of 2013, without hearing any oral
argument.

[4] The appellant also applied in terms of rule 12 of the Rules of the Supreme
Court of Appeal (the Rules) for condonation for failure to comply with rule 7(b)
of the Rules, by not filing the notice of appeal within the prescribed one month
period from the date of granting leave to appeal. The application was unopposed.
This Court having satisfied itself that a proper case for condonation was made
out, granted condonation.

[5] A  summary of the relevant evidence adduced at the trial is as follows. On
18 December 2007, two unsuspecting security officers, deployed to collect cash
from a Pick n Pay Supermarket to an Absa Bank in Hermanus, came under fire
from a group of robbers. The robbers ordered them to drop  the money bags on
the floor. Eventhough  they complied with the orders, the robbers shot at them at
close range. One of the security officers, Mr Norawuzana (the deceased),
succumbed to his  injuries and died on the scene, and the other, Mr Mabhikwana,
was saved by the metal lining of his bulletproof vest. This enabled him to run
away and seek cover in one of the shops.

[6] Having committed these brazen acts, the robbers took the money bags and
drove off in a getaway motor vehicle. As they sped off at high speed, their motor
vehicle collided with a kerb a few kilometres from the crime scene. The motor

vehicle  was abandoned by the robbers, who fled on foot in  different  directions.
As they fled from the crashed motor vehicle, they were spotted and pursued by
civilians who kept them in sight at all times. Upon the arrival of the police,  the
robbers  were arrested in the immediate vicinity of the abandoned motor vehicle.
The bags containing the money were recovered as well as the firearms. The
appellant was amongst those arrested by the police in close proximity to the
getaway motor vehicle and the firearms, which were recovered by police officers.

[7] It is apparent to this Court that on the day of the incident the appellant and
his co-accused were on a mission to commit a crime in Hermanus, a very busy
holiday town in the Western Cape. Such an inference can be drawn from the
following objective facts: they had organised a getaway motor vehicle; they were
armed with semi-automatic firearms; the robbery was executed after a long
weekend during a very busy period of the year and they shot at the security
officers several times to further their intention of committing a robbery. The
aforementioned objective facts constituted sufficient evidence to conclude that
the offences committed were premeditated and committed by a group of persons
in furtherance of a common purpose.

[8] I now turn to the question of law raised by the appellant, which impacts on
the sentences imposed by the trial court and confirmed by the court a quo. It is
trite that an appeal court will interfere with sentencing only if there is a
misdirection with regard to the sentence. However, a misdirection alone does not
suffice for a court of appeal to interfere, save where it is material.1

1 S v Sadler [2000] ZASCA 13; [2000] 2 All SA 121 (A) para 8.

[9] In respect of the murder conviction, the appellant was sentenced to life
imprisonment in terms of s 51(1) of the CLAA. The indictment only referred to s
51(2) of the CLAA. In dismissing the appeal against the appellant, the court a quo
found that he was correctly sentenced in terms of s 51(1) of CLAA and that there
was no infringement of his right to a fair trial. The court a quo stated that the trial
court had enquired from counsel for the appellant’s erstwhile co-accused number
one, if he had apprised his client of the minimum sentence legislation and its
application to the counts that were relevant thereto. The response was that counsel
for the then-accused number one had not done so, as he had focused on the merits
of the case. The trial court afforderd him an opportunity to explain the CLAA
provisions and their implications to his client. On that basis, the court a quo found
that it was implausible that the rest of the legal team, including counsel for the
appellant, would not have taken advantage of that opportunity to explain to their
clients, including the appellant, what the CLAA entailed and its consequences.
This was in line with the principle that the trial court was enjoined to satisfy itself
on this aspect before the commencement of the proceedings.

[10] The indictment, in this case, referred to the applicability of the CLAA, but
wrongly  referred to s 51(2), which attracts a sentence of 15 years’ imprisonment
for the first offender. Notably, the prosecutor, defence counsel and the court made
reference to the sentence of life imprisonment throughout the hearing. Had it been
a misdirection on the part of the court, objections would have been raised by any
of the defence counsel representing the accused.

[11] This Court held in S v Legoa2 (Legoa) that sentencing in lieu of  a
conviction must encompass all the elements of the offence set out in the Schedule.

2 S v Legoa [2002] ZASCA 122; [2002] 4 All SA 373 para 14.

Schedule 2 to the CLAA reflects those specific serious offences where the
legislature has ordained the prescribed minimum sentences. The murder count
faced by the appellant involved multiple accused, which was premeditated and
planned. This occurred during the robbery and was committed by persons acting
in furtherance of a common purpose. Therefore, such a murder falls under the
provision of s 51(1) and attracts a sentence of life imprisonment. The fate of this
appeal hinges in considerable measure on whether the sentence of life
imprisonment was correctly imposed. Therefore, it is appropriate for this court to
consider the record in its entirety, particularly before conviction, to determine if
such a material defect occurred and if it led to an unfair trial.

[12] This appeal is distinguishable from  Ndlovu v S3 (Ndlovu),  where the
appellant had been erroneously sentenced to life imprisonment instead of 15 years
in line with the charges against him in terms of s 51(2) of CLAA. When the
regional court found Ndlovu guilty as charged, it was aware that he was charged
in terms of s 51(2) and not s 51(1) of CLAA. Accordingly, when the regional
court imposed a sentence of life imprisonment, it exceeded its jurisdiction. Hence,
the Constitutional Court had to decide whether the imposition of a harsher
sentence than that envisaged in the indictment infringed Ndlovu’s right to a fair
trial.

[13] In Ndlovu, the Constitutional Court affirmed that s 35(3) of the
Constitution guarantees the right to a fair trial, which includes the right to be
informed of the charge with sufficient detail to answer it.4 An accused person’s

3 Ndlovu v S [2017] ZACC 19; 2017 (10) BCLR 1286 (CC).
4 Ibid para 2 at fn 1.

right to a fair trial has been the subject of various decisions of this Court.5 For
example, in the case of S v Makatu6 (Makatu) the court held that:
‘Following Legoa this Court in Ndlovu held that the relevant sentence provisions of the Act
must be brought to the attention of an accused in such a way that the charge can be properly
met before conviction.’ (Footnotes omitted.)

[14] In Mashinini and Another v S,7 the appellants were erroneously charged
with rape, read with the provisions of s 51(2) instead of s 51(1) of the CLAA. The
sentence was set aside by this Court. In casu, the court held that:
‘[17] In this matter, the State decided to restrict itself to s 51(2), where Part III of Schedule 2
prescribes a sentence of ten years’ imprisonment. This is what was put to the appellants and to
which they pleaded guilty. It was not thereafter open to the court to invoke a completely
different section which provides for a more severe sentence unless the State had sought and
been granted an amendment of the charge sheet in terms of s 86 of the Criminal Procedure Act
prior to conviction. The State did not launch such an application. The magistrate was therefore
bound to impose a sentence in terms of s 51(2) read with Part III of Schedule 2. (Footnote
omitted.)
[18] In my view, the fact that the proceedings had been stopped and referred to the high
court for sentencing cannot be regarded as a ground to deprive the accused of his constitutional
right to fair trial. This is akin to allowing the State to benefit from its own mistakes. In the
result, I find there was a misdirection which vitiates the sentence. The misdirection lies in the
fact that the appellants were sentenced for an offence different to the one for which they were
convicted. There was therefore no need for this matter to be referred to the high court as the
regional magistrate had the competence to sentence the appellants. Undoubtedly, the judge
below erred in sentencing the appellants in terms of s 51(1) instead of s 51(2) read with Part
III of Schedule 2 of the Act. The appeal against sentence has to succeed.’

5 See Mashinini and Another v S [2012] ZASCA 1; 2012 (1) SACR 604 (SCA); Machongo v S  [2014] ZASCA
179 ; Tshoga v S [2016] ZASCA 205; 2017 (1) SACR 420 (SCA); Kolea v S [2012] ZASCA 199; 2013 (1) SACR
409 (SCA) (Kolea); S v Makatu [2006] ZASCA 72 (SCA); [2007] 1 All SA 470 (SCA) (Makatu).
6 Makatu  para 5.
7 Footnote 5.

[15] The question that arises in this case is  whether there was a failure to apprise
the appellant of the provisions of the CLAA, which vitiated his right to a fair trial.
This Court settled this issue in Kolea v S,8 where the court emphatically stated
that the CLAA does not create new offences. The fact that the charge sheet is not
amended does not translate to invalid proceedings. A formal application to amend
the charge is not always required. The test is whether the accused suffered any
prejudice. In this case, it is clear that it was always uppermost in the mind of the
trial court that it was dealing with the murder in terms of s 51(1) of the CLAA.
As a matter of fact, the pertinent issues relating to the elements of the conviction
in terms of s 51(1) were conclusively proved by evidence.

[16] In this case, the odds are heavily stacked against the appellant. As a result,
I agree with the conclusion of this Court in Makatu where the court confirmed
the dictum in Legoa and held that:
‘there is no general rule that the indictment must “recite either the specific form of the
scheduled offence with which the accused is charged, or the facts the State intends to prove to
establish it”.’9
The overriding factor will always be whether there has been unfairness or
prejudice. I, therefore, conclude that the appellant’s right to a fair trial was not
vitiated by any irregularity, as the trial court afforded him the appropriate
protection.

[17] I endorse the findings by the court a quo that there were no substantial and
compelling circumstances that could have persuaded the trial court to depart from
imposing the prescribed minimum sentences. The trial court aptly summarised
the conduct of the appellant and his erstwhile co-accused as follows: ‘The success

8 Kolea para 17.
9 Makatu para 4.

of the plan depended upon the killing of the guards because the accused knew
they were armed. This conclusion is drawn from the fact that the robbers armed
themselves with firearms and shots were fired at the deceased and his colleague
in the parts of the body where death would be instant.’

[18] The convictions on possession of illegal firearms and ammunition were
treated as one for purposes of sentencing. The provisions of Part II of Schedule 2
of the CLAA were applicable to the firearm charges and provided a minimum
sentence of 15 years’ imprisonment. A sentencing court is obliged to apply the
prescribed minimum sentence unless there are substantial and compelling
circumstances that would persuade it from imposing the prescribed sentences. As
a final string on the bow, it was contended on behalf of the appellant that the 15
years imposed by the trial court should have been regarded as a maximum
sentence instead of the minimum sentence. This was attributed to the alleged
conflict between the Firearms Control Act 60 of 2000 (the FCA) and the CLAA,
which have different sentencing regimes.

[19] In terms of s 3 of the FCA, possession of a firearm, including a semi-
automatic firearm, attracts a maximum sentence of 15 years. This is distinct from
the provisions of s 51(2)(a) of  the CLAA which imposes a minimum sentence of
15 years’ imprisonment to a first offender, 20 years to a second offender and 25
years to a third offender. The indictment pertinently referred to s 51(2), hence the
appellant was sentenced in terms of the CLAA. This was difficult for the appellant
to reconcile, and various conflicting decisions on the subject at hand were referred
to. The court in Swartz v S10 (Swartz) held that when s 51 of the CLAA was
substituted in terms of s 1 of the Criminal Law (Sentencing) Amendment Act 38

10 Swartz v S [2014] ZAWCHC 113; 2016 (2) SACR 268 (WCC) at 273.

of 2007, the legislature’s use of the phrase ‘notwithstanding any other law’ meant
that the minimum sentences were intended to supersede the general penalty
provisions of the FCA. The finding in Swartz, is in line with the decision of this
Court in S v Thembalethu,11 where this Court held that the opening words in s
51(2) namely, ‘notwithstanding any other law’ meant that the sentencing regime
in the CLAA took precedence over that laid down in the Arms and Ammunition
Act 75 of 1969.

[20] In S v Baartman12 the court held a different view. It held that the phrase
‘notwithstanding any other law’ in s 51(2) of the CLAA could not have been
intended to override a future law which introduced its own regulatory and
sentencing regime.13 The same view was held by the WCC in S v Mentoor14 in
that it did not refer to the FCA.

[21] Section 3(1) of the FCA provides that:
‘No person may possess a firearm unless he or she holds for that firearm –
(a)
a licence, permit or authorisation issued in terms of this Act; or
(b)
a licence, permit authorisation or registration certificate contemplated in item 1, 2, 3, 4,
4A or 5 of Schedule 1.’
Similarly, s 90 of the FCA prohibits possession of ammunition without a licence.
Within the prescripts of the FCA, where the accused person was found in
possession of a firearm or ammunition without a licence, the court must impose
an appropriate sentence. This court in Nkabinde and Others v S15 held that
‘sentencing lies in the discretion of the trial court’.16

11 S v Thembalethu 2009 (1) SACR 50 (SCA).
12 S v Baartman 2011 (2) SACR 79 (WCC).
13 Ibid para 34.
14 S v Mentoor case A395/2013.
15 Nkabinde and Others v S [2017] ZASCA 75; 2017 (2) SACR 431 (SCA).
16 Ibid para 51.

[22] On the other hand, s 51 of the CLAA provides for minimum discretionary
sentences for certain serious offences. Important in this case is s 51(2)(a) of Part
2 of Schedule 2, which provides as follows:
‘Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a
High Court shall sentence a person who has been convicted of an offence referred to in —
(a)
Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than
20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a

period not less than 25 years.’17
According to Netshivhodza v S18 (Netshivhodza), ‘[t]he minimum sentence has
been set as a benchmark prescribing the sentence to be ordinarily imposed for
specific crimes and should not be departed from for superficial reasons.’19
Netshivhodza’s finding was in line with the principle set out in Centre for Child
Law v Minister for Justice and Constitutional Development.20 Relying on various
cases,21 the Constitutional Court in Centre for Child Law v Minister for Justice
and Constitutional Development held that:
‘. . . the starting point for a sentencing court is the minimum sentence, the next question being
whether substantial and compelling circumstances can be found to exist. This is answered by
considering whether the minimum sentence is clearly disproportionate to the crime.’22

17 Although this is not the only offence covered there, part II of Schedule 2 of the CLAA refers to any offence
relating to possession of an automatic or semi-automatic firearms which is dealt with in this case.
18 Netshivhodza v S [2014] ZASCA 145.
19 Ibid para 8.
20 Centre for Child Law v Minister for Justice and Constitutional Development and Others [2009] ZACC 18; 2009
(2) SACR 477 (CC).
21 S v Malgas 2001 (1) SACR 469 (SCA) (Malgas); S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC); Vilakazi
v S [2008] ZASCA 87; [2008] 4 All SA 396 (SCA).
22 Footnote 20 para 39.

[23] According to S v Malgas, s 51 of the CLAA ‘has limited but not eliminated
the courts' discretion in imposing sentence in respect of offences referred to in
Part 1 of Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2)’.23

[24] On the other hand, s 121 of the FCA provides for penalties in respect of
any person convicted of a contravention of or a failure to comply with various
sections mentioned there. In the case of any contravention of sections 3 and 90 of
the FCA, the Act provides that the maximum period of the conviction is 15 years.
This clearly shows that there are two different regimes in respect of the latter
section and to s 51 of the CLAA .

[25] In the absence of a material misdirection by the trial court, an appellate
court cannot approach the question of sentence as if it were the trial court and
then substitute the trial court’s sentence simply because it prefers to.24 The same
would apply to an accused who cannot choose the sentencing regime that he
prefers. In addition, this Court in Nkabinde and Others v S25 (Nkabinde) held that
where the Court a quo had:
‘imposed the minimum sentences prescribed in the Criminal Law Amendment Act 105 of 1997
in respect of the charges of murder, robbery with aggravating circumstances, possession of
semi-automatic and automatic firearms . . . After considering the factors required to be taken
into account in the imposition of sentence, including the appellants’ personal circumstances,
the Court a quo came to the conclusion that there were no substantial and compelling
circumstances to deviate from the prescribed minimum sentences.’ 26 (Emphasis added.)

23 Malgas para 25.
24 Ibid para 12.
25 Nkabinde and Others v S [2017] ZASCA 75; 2017 (2) SACR 431 (SCA).
26 Ibid para 52.

This clearly sets out the intention of the legislature to give severe punishment to
those who commit crimes with semi-automatic firearms or possess them for
criminal purposes. The FCA caters only for possession of any firearm or
ammunition without a licence.
This was endorsed in Nkabinde as follows:
‘. . . the prescribed minimum sentences should not be departed from lightly and for flimsy
reasons. The legislature has ruled that these are the sentences that ordinarily, and in the absence
of weighty justification, should be imposed for the specified crimes, unless there are truly
convincing reasons for a different response.’27

[26] The sentence imposed was in line with the prescripts of s 51(2)(a) of the
CLAA. There was no error or misdirection on the part of the trial court in
sentencing the appellant as indicated. There is no reason for this Court to interfere
with the sentence in counts four and five.

[27] It is now convenient to deal with the charge of attempted murder. The
appellant’s challenge to the attempted murder charge is that it was inappropriate
for the court a quo to confirm the sentence of 15 years’ imprisonment for this
conviction as if it was akin to the sentence for murder in terms of s 51(2) of
CLAA. It bears mentioning that the attempted murder conviction was in terms of
the common law and not the CLAA. I re-iterate that sentencing is pre-eminently
within the discretion of the trial court. A correct synopsis of the law with regard
to the limited point of interference was set out in Hewitt v S28  as follows:
‘It is a trite principle of our law that the imposition of sentence is the prerogative of the trial
court. An appellate court may not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not enough to conclude that its own choice
of penalty would have been an appropriate penalty. Something more is required; it must

27 Ibid para 54.
28 Hewitt v S [2016] ZASCA 100; 2017 (1) SACR 309 (SCA).

conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen
by the trial court is not. Thus, the appellate court must be satisfied that the trial court committed
a misdirection of such a nature, degree and seriousness that shows that it did not exercise its
sentencing discretion at all or exercised it improperly or unreasonably when imposing it. So,
interference is justified only where there exists a ‘striking’ or ‘startling’ or ‘disturbing’
disparity between the trial court’s sentence and that which the appellate court would have
imposed. And in such instances the trial court’s discretion is regarded as having been
unreasonably exercised.’29 (Footnotes omitted.)

[28] It was contended on behalf of the appellant that the sentence imposed for
attempted murder was more severe than what the high courts had in the past held
to be appropriate in cases of this kind. Courts must be cautious of such
comparisons with other cases as each case must be decided on its merits. I have
taken into account that the security guard did not sustain any injuries. I am of the
view that there exists a striking disparity between the sentence imposed by the
trial court in respect of the charge of attempted murder and the sentence that
another court would impose on appeal. This leads me to conclude that the trial
court’s sentencing discretion was not reasonably exercised. This court is therefore
at large to consider sentence in respect of the attempted murder charge afresh.

[29] I have considered the sentence in line with the principles set out in S v
Zinn.30 The offence committed by the appellant  remains a serious offence.  These
kind of violent crimes should be  visited with sentences that should deter not only
the appellant, but others from committing them. These factors need to be
considered together with the nature and seriousness of the offence, interests of
society and interests of the accused persons. In this regard, I am of the view  that
the sentence of 15 years’ imprisonment is disproportionate under the

29 Ibid para 8.
30 S v Zinn 1969 (2) SA 537 (A).

circumstances and ought to be set aside and be replaced  with the sentence of 10
years’ imprisonment.

[30] Accordingly, I make the following order:
The appeal against the sentences imposed in respect of counts two, four
and five is dismissed.
The appeal against the sentence of 15 years’ imprisonment, imposed in
respect of count three, is upheld. The sentence is set aside and substituted with
the following:
‘The accused is sentenced to ten (10) years’ imprisonment on count 3 for
attempted murder.’
The sentence set out in para 2 above is antedated to 15 December 2010 and
is to run concurrently with the sentences imposed in respect of counts one, two,
four and five.

_______________________
Y T MBATHA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

J Van Der Berg

Instructed by:

Mathewson Gess Inc., Cape Town

Symington & De Kok, Bloemfontein

For Respondent:

G D Wolmarans

Instructed by:

Director of Public Prosecutions, Cape Town

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:
4 April 2022
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
Sibongile Lupumlo Mpuqe v The State (53/2021) [2022] ZASCA 37 (4 April 2022)

Today the Supreme Court of Appeal (SCA) upheld an appeal from the Western Cape Division
of the High Court, Cape Town (high court), in respect of the sentence imposed on the appellant
for a charge of attempted murder, and substituted the sentence with one from 15 years’
imprisonment to 10 years.
The appellant was charged with robbery, murder, attempted murder, possession of unlicenced
firearms and illegal possession of ammunition. These charges were in connection with a
robbery of money that was transported by security officers. The appellant murdered one of the
officers while the second officer was saved by his protective clothing and was sentenced by
the trial court to life imprisonment for the murder and 15 years’ imprisonment for attempted
murder. The appellant was granted leave to appeal his sentence.
This appeal revolved around the question whether section 51(2) of the Criminal Law
Amendment Act 105 of 1997 (CLAA) was correctly referred to. The appellant had been
sentenced to life imprisonment for the murder in terms of section 51(1) whereas the indictment
only referred to section 51(2), which attracts a sentence of 15 years for first offenders. This
raised the question whether the appellant’s trial had been fair. The SCA was, however, satisfied
that the appellant’s right to a fair trial had not been violated as there was no failure by the court

a quo to appraise the appellant of the content of the CLAA. The court a quo, from the matter’s
inception, had been dealing with murder in terms of section 51(2).
With regards to the convictions on possession of illegal firearms and ammunition was treated
as one for the purpose of sentencing. A prescribed minimum sentence of 15 years applied,
unless it could be proven that exceptional circumstances exist which would persuade the Court
to impose a lesser sentence. In light hereof, the SCA found that South Africa’s jurisprudence
clearly indicated that the starting point for a sentencing court is the minimum sentence. The
next question is to consider whether substantial and compelling reasons exist which could
possibly alter the minimum sentence. This is answered by considering whether the sentence is
disproportionate to the crime.
The SCA found that the sentence imposed was in line with the prescripts of section 51(2) of
the CLAA and saw no reason to interfere with the sentence imposed regarding the charges of
firearms and ammunition. However, this Court did find that the sentence imposed in terms of
the charge of attempted murder was disproportionate and that the trial court did not exercise its
sentencing discretion reasonably.
In the result, the SCA upheld the appeal in respect of the sentence imposed on the appellant,
and substituted the sentence with one from 15 years’ imprisonment to 10 years in respect of
the charge of attempted murder.
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