THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 835/2021

In the matter between:

BANELE BAFO NHLAPO

Appellant

and

THE STATE

Respondent

Neutral citation:
Nhlapo v The State (Case no 835/2021) [2022] ZASCA 125 (26
September 2022)
Coram:
PETSE DP and MOTHLE and HUGHES JJA and CHETTY and
SIWENDU AJJA
Heard:
17 August 2022
Delivered:
26 September 2022

Summary: Criminal law and procedure – sentence in excess of the prescribed
minimum for robbery – whether effective sentence of 20 years’ imprisonment for
robbery and attempted murder was inappropriate – whether the whole of the
sentence for attempted murder ought to run concurrently with sentence for robbery.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Mngqibisa-Thusi J
and Phahlane AJ, sitting as court of appeal):

The appeal is dismissed.

JUDGMENT

Chetty AJA (Petse DP, Mothle and Hughes JJA and Siwendu AJA concurring):

[1] The appellant, Mr Banele Nhlapo, together with his co-accused Mr Boy
Lebyane, were convicted in the regional court, on 8 June 2011, of robbery with
aggravating circumstances and attempted murder. They were sentenced to 17 years’
imprisonment on the count of robbery and five years’ imprisonment on the count of
attempted murder. The regional court ordered two years of the sentence for
attempted murder to run concurrently with the sentence for robbery. The appellant
was therefore sentenced effectively to 20 years’ imprisonment. He applied for, and
was refused, leave to appeal against his conviction and sentence. On petition to the
Gauteng Division of the High Court, Pretoria (the high court), in terms of s 316(1) of
the Criminal Procedure Act 51 of 1977 (CPA), leave was granted in respect of
sentence only. That court dismissed the appeal on 6 December 2017 finding no
misdirection by the trial court in imposing an effective period of 20 years’
imprisonment.

[2] The appellant then applied to this Court for special leave to appeal against his
sentence, such application being granted on 9 June 2021. The issues for

determination before this Court are whether the high court erred in confirming the
sentence for robbery imposed by the trial court in excess of the prescribed minimum
in terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the CLA), and
in confirming that only a portion of the sentence for attempted murder was to run
concurrently with that of the sentence for robbery.

[3] The facts of the matter are relatively uncomplicated. The evidence before the
trial court was that the appellant was in the vicinity of a tavern in the area of
Etwatwa, Gauteng, on the evening of 3 October 2010 in the company of his co-
accused, Mr Lebyane, and other young ‘boys’. At the same time, the complainant, Mr
Ntuli, and his friend Mr Dlamini, visited the same tavern, where they had a few
drinks. On leaving the establishment in the early hours of the morning, the
complainant and Mr Dlamini walked through a passage where they were confronted
by the appellant and his accomplices. The appellant, without provocation, stabbed
the complainant in the head, back and neck. At this stage, Mr Dlamini noticed that Mr
Lebyane was pointing a firearm in his direction. Mr Dlamini fled the scene for his own
safety, leaving behind the complainant, who was being assaulted by the appellant.

[4] Upon being stabbed by the appellant, the complainant was robbed of his
cellular phone, R250 in cash and a ring. These items were never recovered. During
the ensuing attack, the complainant fled from his attackers and sought refuge in a
nearby yard belonging to Mr Ndala, who was asleep at the time and was awoken by
screams for help. Mr Ndala noticed three boys standing outside his yard, with the
complainant inside his yard, saying that he had just been robbed. When it appeared
that Mr Ndala might intercede on behalf of the complainant, one of the boys broke a
bottle and threatened to stab Mr Ndala if he interfered. The complainant, in
desperation, ran into Mr Ndala’s house, only to be pursued by the appellant and his
accomplices who dragged the complainant out of the house and into a nearby street
where he was repeatedly stabbed, until he lost consciousness. He only regained
consciousness in hospital. The J88 medical report, which was admitted into
evidence, is consistent with the evidence of the complainant as to the location and
extent of his injuries, revealing wounds to the chest, head, neck and multiple
lacerations to the back.

[5] The version of the appellant was that the complainant was assaulted by
someone else and that he had mistakenly identified the appellant as the person who
attacked and robbed him. This version was rightly rejected by the trial court in light of
the evidence by the State witnesses, as well as the fact that the appellant was
known to the complainant and Mr Dlamini. There could be no case of mistaken
identity.

[6] It bears noting that the trial court observed that the circumstances of this
attack were ‘different from the normal robberies’ it dealt with, in that after the
complainant’s possessions were taken, he fled the scene to seek help. Not satisfied
that they had robbed him, his attackers, including the appellant who by all indications
was the leader of the pack, pursued him into the property of Mr Ndala where the
complainant had sought refuge, dragged him outside and continued to repeatedly
assault him.

[7] Against this backdrop, the trial court concluded that despite the appellant
being relatively young at 20 years’ old, when weighed against the circumstances of
the offences and the interests of the community, the latter criteria displaced the
personal circumstances of the appellant.

[8] It is well established that the power of an appellate court to interfere with a
sentence imposed by a lower court is limited. In S v Rabie,1 this Court noted that
punishment is ‘pre-eminently a matter for the discretion of the trial court’, and that an
appeal court ‘should be careful not to erode such discretion’. Consequently, a
sentence imposed by the trial court may only be interfered with where it is ‘vitiated by
irregularity or misdirection or is disturbingly inappropriate’. 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 discretion.2 Counsel who appeared on behalf of the
appellant was unable to point to any misdirection in the high court’s confirmation of

1 S v Rabie 1975 (4) SA 855 (A) at 857; S v Sadler 2000 (1) SACR 331 (SCA); S v Shaik and Others
[2008] ZACC 7; 2008 (5) SA 354 (CC) para 66.
2 S v Jimenez [2003] ZASCA 2; [2003] 1 All SA 535 (SCA) para 7.

the sentence. As the high court correctly noted with reference to S v Kgosimore,3 the
critical enquiry is whether there was a ‘proper and reasonable exercise of the
discretion’ by the trial court. In the absence of a finding to the contrary, the appeal
court has no power to interfere.

[9] Counsel for the appellant contended that the trial court erred in referring only
to the appellant’s age when it ought to have considered the totality of his personal
circumstances in the context of sentencing. This criticism is without merit. The
learned magistrate prefaced his judgment by stating that he is required to take into
account ‘numerous factors’ in determining a suitable sentence. He added ‘I will take
into account everything which was stated by Mr Kathrada [the attorney] on your
behalf’. The record indicates that the trial court had earlier been appraised that the
appellant was 20 years old at the time, he was a first offender, completed standard
10 at school and was unemployed. This argument therefore must fail.

[10] Insofar as the prevalence of these crimes is concerned, the trial court noted
that in its experience, almost every matter involving robbery with aggravating
circumstances in its area of jurisdiction is committed by persons of an age similar to
the appellant. In S v Matyityi 4 this Court stated that an offender of ‘20 years or more
must show by acceptable evidence that he was immature to such an extent that his
immaturity can operate as a mitigating factor’.5 There is nothing on record to suggest
that the appellant’s relative youth was a factor which contributed to him committing
the offences in question or that he was influenced by others to do so.

[11] Having found that there were no substantial and compelling circumstances to
deviate ‘downwards’ from the prescribed penalty of 15 years’ imprisonment, the trial
court turned its attention to what it considered the aggravating features of the
offences, ‘where the facts call for it’. Despite the appellant’s counsel initially
contending that the trial court should have taken the appellant’s age and his status
as a first offender into account as constituting substantial and compelling
circumstances in terms of s 51(3)(a) of the CLA, he later conceded that, at best, the

3 S v Kgosimore [1999] ZASCA 63; 1999 (2) SACR 238 (SCA) para 10.
4 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA).
5 Ibid para 14.

appellant should have been sentenced to the minimum sentence of 15 years in
terms of s 51(2)(a), with the entire sentence of five years for attempted murder being
made to run concurrently with the sentence for robbery. Essentially, it was submitted
that the appellant should have been sentenced to 15 years’ imprisonment.

[12] The trial court misconstrued the provisions of s 51(2) of the CLA in stating that
its penal jurisdiction was increased to 20 years’ imprisonment. I do not, however,
consider this an irregularity justifying an interference as the sentence ultimately
imposed was within the range of permissible sentences in s 51(2). That section
reads:
‘Provided that the maximum term of imprisonment that a regional court may impose in terms
of this subsection shall not exceed the minimum term of imprisonment that it must impose in
terms of this subsection by more than five years.’

[13] As regards the argument based on the concurrency of sentences, the default
position in s 280(2) of the CPA is that sentences of imprisonment imposed for two or
more offences will run consecutively, unless the court directs that they run
concurrently. The purpose is to ensure that the cumulative effect of several
sentences imposed in one trial is not too severe in the light of the aggregate
sentence6 or unduly harsh,7 but at the same time does not underestimate the
seriousness of the offence.8

[14] I am in agreement with counsel for the respondent that to order the entire
sentence for attempted murder to run concurrently with the sentence for robbery
would be to negate the seriousness of the attack on the complainant. I am unable to
agree with counsel for the appellant that the injuries sustained by the complainant
were not the most serious or life threatening, hence the entire sentence for
attempted murder should have run concurrently with the sentence for robbery. As
counsel for the respondent correctly pointed out, the J88 medical report reveals that
the complainant suffered multiple lacerations on the back; two stab wounds on the
chest, one on the neck and he had difficulty in breathing to the extent that an

6 S v Cele 1991 (2) SACR 246 (A) at 248j.
7 Moswathupa v S [2011] ZASCA 172; 2012 (1) SACR 259 (SCA); S v Dube 2012 (2) SACR 579
(ECG) para 11.
8 S v Maraisana 1992 (2) SACR 507 (A) at 511g.

intercostal drain was inserted. In the trial court, it was conceded that the complainant
was ‘very, very severely stabbed’. In any event, it is clear that the trial court, in
ordering two years of the sentence for attempted murder to run concurrently with that
for robbery, must have applied its mind to the aspect of concurrency as a means to
ameliorate the impact of a cumulative lengthy sentence. In doing so, the trial court
was exercising its sentencing discretion. The appellant can point to no failing by the
trial court in the exercise of its discretion in allowing only a portion of the sentence to
run concurrently.9 This contention must fail.

[15] While it was not disputed that the appellant was aware of the implications of
the prescribed minimum sentence being applicable, in the event of his conviction for
an offence falling within the ambit of s 51(2), it was submitted on his behalf that the
trial court erred in failing to alert the appellant to the possibility of him receiving a
sentence in excess of the prescribed minimum of 15 years’ imprisonment and for not
setting out its reasons for imposing such sentence. A similar argument was rejected
by this Court in Shubane and Another v S10 which held:
‘In any event, when an accused person is at the commencement of a trial apprised of the
sentencing provisions in sections 51 and 52 of the Act, read with Schedule 2, that by
necessary implication includes the provisions relating to a Regional Magistrate’s power to
impose a sentence not exceeding five years more than the prescribed minimum sentence of
imprisonment.’11

[16] In Mthembu v S12 this Court referred with approval to Swain J’s exposition in
the court below13 on the ‘starting point’ for the imposition of a sentence higher than
the minimum. Swain J stated that:
‘Although the prescribed minimum sentence should be the starting point, this is solely for the
purpose of deciding whether a sentence less than the prescribed minimum sentence should
be imposed. The exercise of a discretion by the presiding officer to impose a sentence

9 S v Malgas 2001 (1) SACR 469 (SCA) at para 12: ‘A court exercising appellate jurisdiction cannot, in
the absence of 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 by it simply because it prefers it. To do
so would be to usurp the sentencing discretion of the trial court'.
10 Shubane and Another v S [2014] ZASCA 148.
11 Ibid para 8.
12 Mthembu v S [2011] ZASCA 179; 2012 (1) SACR 517 (SCA).
13 S v Mthembu 2011 (1) SACR 272 (KZP) para 19.1.

greater than the prescribed minimum sentence, does not have to be justified by reference to
the prescribed minimum sentence.’
I agree with the above statement by Swain J in S v Mthembu.14

[17] Moreover, insofar as it is contended that the trial court failed to provide
reasons for imposing a sentence in excess of the prescribed minimum, the language
used in s 51(2) of the CLA should be contrasted with that in s 51(3)(a) of the CLA
which states that where a presiding officer is satisfied that there are substantial and
compelling circumstances justifying the imposition of a lesser sentence than the
prescribed minimum, ‘it shall enter those circumstances on the record of the
proceedings’. No corresponding obligation exists when ‘deviating upwards’ of the
minimum prescribed. In this regard, s 51(2) contains repeated reference to the words
‘not less than’ in relation to the range of sentences which could be imposed by a
presiding officer.15 Properly interpreted, there can be no basis for the contention that
the magistrate was required to do anything more than exercise his or her discretion
in determining a suitable penalty, even where this results in a sentence greater than
15 years, as in the present case.16

[18] Despite not bearing such a burden, the trial court followed the prudent
practice of explaining why it imposed a heavier sentence than the prescribed
minimum, stating that the violent manner in which the appellant continued his attack
on the complainant, even after the robbery was complete, was purely gratuitous. The
trial court concluded that the present case was of a ‘different category’ to those
which routinely came before it, in that the circumstances were ‘worse than the
normal or everyday trial that we indeed hear’. The appellant’s contention that the trial
court erred in finding that there were aggravating circumstances which justified a
‘heavier’ sentence than the prescribed minimum in s 51(2) of the CLA is without
merit. I can find no misdirection in the trial court’s reasoning.

14 Ibid para 19.5.
15 Footnote 12 para 8.
16 See fn 13: ‘Once the presence or absence of substantial and compelling circumstances is
determined, then the exercise of the discretion required of the presiding officer, by the Act, is
complete’.

[19] The present case is one in which the personal circumstances of the appellant
are overshadowed by the seriousness of the crime and the interests of society.17 The
appellant showed no remorse for his conduct. The sentence is not considered
manifestly unjust, justifying interference.

[20] In the result, the following order is made:
The appeal is dismissed.

_______________________

M R CHETTY
ACTING JUDGE OF APPEAL

17 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).

APPEARANCES

For appellant:
F F Jacobs
Instructed by:

Honey Attorneys, Bloemfontein

For respondent:
M J Makgwatha

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:
26 September 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
Nhlapo v The State (Case no 835/2021) [2022] ZASCA 125 (26 September 2022)
Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Gauteng Division of the High
Court, Pretoria (high court). The appellant was convicted of attempted murder and robbery with
aggravating assault in the regional court (trial court), and sentenced to 17 years’ imprisonment on the
count of robbery and five years’ imprisonment on the count of attempted murder. The effective sentence
was 20 years’ imprisonment. Two years of the sentence for attempted murder was ordered to run
concurrent with the sentence for robbery. The appellant applied for leave to appeal his sentence to this
Court.
The appellant stabbed and robbed his victim, Mr Ntuli (Ntuli). Ntuli had exited a tavern upon which he
and a friend were accosted by the appellant and his co-accused. The friend managed to escape, but Ntuli
ran into the yard of a neighbour, who offered to provide assistance. However, the appellant threatened
to assault the neighbour if he interfered, upon which Ntuli desperately ran into his house. The appellant
and his co-accused rushed into the house and dragged Ntuli outside, whereupon the appellant stabbed
Ntuli numerous times in the chest, head, neck and back.
The trial court observed that the circumstances of the present matter were different than the normal
robberies it dealt with. The reasoning was that the appellant was not satisfied with merely robbing the
victim – he pursued his victim and repeatedly assaulted him after he had fled. The trial court held that
the interests of the appellant weighed against the interests of the community as well as the circumstances
of the offences, displaced the personal circumstances of the appellant, such as his relatively young age
of 20 years. The trial court found that there were no substantial and compelling circumstances to deviate
downwards from the prescribed minimum sentence.

It was submitted on behalf of the appellant that the trial court failed to provide appropriate reasons why
a sentence in excess of the minimum was imposed. The trial court applied its discretion in light of s
51(2) of the Criminal Law Amendment Act 51 of 1977 and this Court found that, properly interpreted,
there was no basis for the contention that the presiding officer ought to have done anything, more than
exercise his discretion to determine a suitable penalty, even in excess of the prescribed minimum.
Having exercised its inherent jurisdiction, the trial court applied its mind to the aspect of concurrency
as a means to ameliorate the impact of a cumulative lengthy sentence. Despite not having the burden to
do so, the trial court followed the prudent practice of explaining why it imposed a heavier sentence than
the prescribed minimum, stating that the violent manner in which the appellant continued his attack on
Ntuli was purely gratuitous. The personal circumstances of the appellant were overshadowed by the
seriousness of the crime and the interests of society. Additionally, the appellant displayed no remorse
for his conduct. This Court did not find the sentence manifestly unjust, justifying interference.
In the result, the SCA dismissed the appeal.
--------oOo--------