THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case Number  :  588 / 06

In the matter between

J BLIGNAUT

APPELLANT

and

THE STATE
RESPONDENT

Coram :

MTHIYANE, HEHER and PONNAN JJA

Date of hearing :

16 AUGUST 2007

Date of delivery :
30 AUGUST 2007

SUMMARY
Sentencing – minimum sentence – substantial and compelling circumstances – misdirection
by trial court

Neutral citation:  This judgment may be referred to as :
Blignaut v The State [2007] SCA 94 (RSA)

PONNAN  JA
[1] The appellant, a first offender, was convicted, pursuant to his guilty
plea, by the Port Elizabeth Regional Court on charges of robbery with
aggravating circumstances and kidnapping.  In terms of s 51(2)(a) of the
Criminal Law Amendment Act 105 of 1997 (the Act), a regional court is
obliged to sentence a first offender on a conviction of the former offence
to a term of imprisonment of not less than 15 years.  A lesser sentence
may only be imposed if substantial and compelling circumstances within
the meaning of that expression are found to exist justifying the
imposition of such lesser sentence (s 51(3)(a)).  The regional magistrate,
being of the view that no such circumstances existed, thus imposed a
sentence of 15 years’ imprisonment on the robbery count.  On the
kidnapping, the appellant was sentenced to a term of imprisonment for a
period of 5 years which was ordered to run concurrently with the 15
years imposed on the robbery. An appeal to the Grahamstown High

Court (Erasmus J, Maqubela AJ) against the finding that no such
circumstances existed proved unsuccessful and the further appeal to
this Court is with its leave.

[2] The facts and circumstances relating to the conviction can be
gleaned from the appellant’s written statement adduced in amplification
of his plea, which reads:
‘My family had been going through a financial crisis for quite some time.  I had a lot
of debt at the time.  In April 2001 I had lost my job after I had an argument with my
supervisor.  About a month later my wife got retrenched from her job.  Both of us
were unemployed at that stage.  I used the money which I had received from my
provident fund to pay most of our debts. However I still owed Credit Indemnity (a
cash loans company) R3 000.
By January 2002 all of our monies were finished.  My wife started complaining about
money that we didn’t have.  My parents in law by whom we were living, complained
to my wife that we were not paying rent.  She in turn complained to me.  I was

getting tired of all the moaning and groaning about money and food that was not
there.  There was no income in the household.  I then started drinking alcohol
regularly.  Previously I drank occasionally on weekends.  I started drinking a lot with
my friends.  This continued for a long time.  About a week before the incident, I
decided to break away from the pressure and decided to go and stay with my wife’s
cousin in extension 29 in Bethelsdorp.  I left the Thursday and went back home on
the Saturday.  When I got home, it was the same story about money and food
shortages in the house.  It continued for the Sunday and Monday.  I got to the stage
where I could not cope anymore.  On that Monday I decided to go for a walk.  I
walked from our house in Extension 21 toward Arcadia.  At the Shopping Complex in
Arcadia, I picked up a shoe box, which I intended to use to hold all of my radio
cassettes.  I then walked further through West End toward Cleary Park.  I walked
through the park near Machu Primary School where I picked up a motor with the
wires attached to it, that belongs to a washing machine.  Our washing machine had
recently broken.  I then put this part into the box and continued to walk towards
Cleary Park.  When I got to Cleary Park Shopping Centre I sat outside the complex
for a long while.  I then picked up paper and plastic packets and stuffed it in the box.

I picked up 2 plastic packets and put the box in these packets.  I then went into the
complex and sat inside First National Bank.  I then fetched a deposit slip and wrote
on it.  I wrote the following words, “I HAVE A BOM GIVE ME SOME MOYNE OR I
WILL BLOW YOU UP”.  I then went to the counter and gave the slip to the teller.
The lady teller took the note and then went to the teller next to her.
She showed her the note and I remained waiting at the counter.  I indicated that I
have a bomb in the box and that I have a detonator in my hand.  Shortly after that I
saw all the people going out of the bank.  I asked what is happening and the teller
told me that they want to get all the customers out of the bank.  I told them that I am
looking for money.  I was told to wait.  The lady then went to the back of the bank
and I remained standing at the counter.
I then heard a knock at the door.  The lady told me that it was the bank manager.
Thereafter the lady gave me a sum of R5 000.00.  I told the man and the lady that
both of them must come with me to get out of the bank.  I told them that I was going
to use the lady as my hostage.  We then proceeded out of the building.  The man
who pretended to be the bank manager then convinced me to let the lady go and I
agreed to that.  When we got outside, the so-called bank manager then took a

bakkie from a gentleman in the parking lot and the two of us drove off in the direction
of Bethelsdorp.  While we were driving in Bethelsdorp the man convinced me to
throw away the detonator.  I then threw it away out of the window.  He then stopped
the bakkie and I got out of the bakkie.  He also got out and then arrested me.  He
took the box, which contained the so-called bomb and took the money from me.  I
later learn that the man was a police officer.’

[3] The approach of a sentencing tribunal to the imposition of the
minimum sentences prescribed by the Act is to be found in the detailed
judgment of Marais JA in S v Malgas 2001 (1) SACR 469 (SCA).  The
main principles appearing in that judgment which are of particular
application to the present appeal are: First, the court has a duty to
consider all the circumstances of the case, including the many factors
traditionally taken into account by courts when sentencing offenders.
Secondly, for circumstances to qualify as substantial and compelling,

they do not have to be exceptional in the sense of seldom encountered
or rare. Thirdly, although the prescribed sentences required a severe,
standardised and consistent response from the courts unless there
were, and could be seen to be, truly convincing reasons for a different
response, the statutory framework nonetheless left the courts free to
continue to exercise a substantial measure of judicial discretion in
imposing sentence.  (See also S v Fatyi 2001 (1) SACR 485 (SCA) para
5; S v Abrahams 2002 (1) SACR 116 (SCA) para 13.)

[4] The circumstances entitling a court of appeal to interfere in a
sentence imposed by a trial court were recapitulated in Malgas (para
12), where Marais JA held:
‘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. . . . However,
even in the absence of material misdirection an appellate court may yet be justified
in interfering with the sentence imposed by the trial court.  It may do so when the
disparity between the sentence of the trial court and the sentence which the
appellate Court would have imposed had it been the trial court is so marked that it
can properly be described as “shocking”, “startling” or “disturbingly inappropriate”.’

[5] The question therefore is whether there was a material
misdirection by the trial court in the manner in which it weighed the
factors relevant to the determination of sentence or, if not, whether the
sentence imposed was in any event so shockingly inappropriate as to
give rise to the inference that there had been a failure to properly
exercise the sentencing discretion (Abrahams para 15).

[6] In my view the test for intervention on the first leg is satisfied and it
is thus unnecessary to consider the second.  The record reflects that the
regional magistrate erred in several respects in his approach to
sentence. He thus materially misdirected himself in imposing a sentence
of fifteen years.  First, he stated without elaboration or greater specificity
that there were aggravating circumstances present. Plainly, there were
none.  Secondly, he wrongly characterised the appellant’s conduct as an
attempt to perpetrate, as he put it, a popular crime.   Thirdly, the
magistrate emphasised the community interest and general deterrence
in arriving at what he considered to be a just sentence, whilst the other
traditional aims of sentencing such as personal deterrence, rehabilitation
and reformation did not merit a mention in his judgment.  Fourthly, the
many mitigating factors that were present were not afforded appropriate
recognition by the magistrate, nor were they balanced against what he
perceived to be the aggravating features in the commission of the

offences.  It follows that the sentence imposed by the magistrate falls to
be set aside and this Court is accordingly free to impose the sentence it
considers appropriate subject of course to the provisions of the Act.

[7] Against that backdrop I turn to the mitigating factors present in this
case.  It is in the appellant’s favour that his first criminal transgression
had occurred at the relatively mature age of 34 and that he had
maintained an unblemished record until then.  He had, until the loss of
his job, been in gainful employment and had supported his wife and two
children.  The loss of his employment had resulted in deteriorating
financial security for his family and acute embarrassment for himself –
resulting; it would seem, in him being driven to despair. To cope, he
drew greater solace from alcohol.  Despite all of this though, according
to the probation officer, he continued to have a warm and meaningful
relationship with his wife and children.  The offence itself was ill-

conceived and executed in a rather inept and amateurish manner.  It
occurred without any real preplanning or forethought.  Although the
personnel at the bank responded to his bomb threat with genuine
apprehension and anxiety, the appellant was in truth not possessed of a
bomb or armed in any other manner; he thus posed no real danger to
anyone.  Although not proffered as an excuse for his conduct, his
desperate situation no doubt drove him to commit the offences for which,
by pleading guilty he has demonstrated remorse.  He must undoubtedly
have learnt from his first brush with the law and he is thus unlikely to
resort to crime again.  Personal deterrence accordingly ought not to
weigh too heavily in the sentencing process.  That all of the money was
recovered and that the appellant was arrested with relative ease is
perhaps indicative of his lack of sophistication and guile.  In short, his
conduct on the day in question was childlike and naïve and, if the truth
be told, woeful and pathetic.

[8] In my view the cumulative effect of the aforegoing factors, all of
which the sentencing court failed to take into account, constitute
substantial and compelling circumstances within the meaning of that
expression. I am thus persuaded that a departure from the prescribed
minimum is justified on the basis that such a sentence would be
disproportionate to the crime, the criminal and the legitimate interests of
society (S v Mahomotsa 2002 (2) SACR 435 (SCA) para 20).  It follows
that the fifteen years’ imprisonment imposed on the appellant by the
regional magistrate is not a just sentence.  Plainly, for an offence of the
kind encountered here, a custodial sentence is clearly warranted.
Reconsidering the matter, I consider a sentence of 5 years’
imprisonment to be appropriate in respect of count 1 – the robbery with
aggravating circumstances.

[9] In the result:
(a)
The appeal against sentence succeeds.
(b)
The sentence of 15 years’ imprisonment imposed by the regional
court pursuant to the appellant’s conviction on count 1 - the
robbery with aggravating circumstances is set aside and replaced
with the following:  ‘The accused is sentenced to imprisonment for
a term of 5 years’.

V M  PONNAN
JUDGE OF APPEAL
CONCUR:

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 August 2007

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

J BLIGNAUT v THE STATE
(Case No 588 / 06)

Media Statement

Today the SCA upheld an appeal by Joseph Blignaut against a sentence of 15 years’ imprisonment
imposed by the Port Elizabeth Regional Court in consequence of his conviction on charges of robbery
and kidnapping.

The appellant had pleaded guilty to the charges and in his plea explanation he stated that he had lost
his employment and had fallen on hard times. On the day in question, whilst out walking he had come
upon an empty shoe box, a discarded motor with wires attached to it, some paper and two plastic
packets. He placed the latter three items into the shoe box. When he got to the First National Bank in
Cleary Park in Port Elizabeth he wrote the words: ‘I have a bom give me some moyne or I will blow
you up’ onto a deposit slip and handed it to a teller. He observed the bank being evacuated and whilst
that was happening a person entered the bank who was introduced to him as the ‘bank manager’. He
was given R5 000 by the teller and thereafter left the bank together with the bank manager and teller.
He was persuaded by the bank manager to release the teller, who he proposed taking hostage. Once
outside the bank he boarded a bakkie together with the bank manager. En route to Bethelsdorp the
bank manager convinced him to throw away the motor. He then arrested the appellant. The appellant
later learnt that the ‘bank manager’ was in fact a police officer.

The regional court held that there were no substantial and compelling circumstances present
warranting a departure from the statutorily prescribed minimum sentence. It accordingly imposed a
sentence of 15 years’ imprisonment in respect of the robbery. On the charge of kidnapping the
appellant was sentenced to imprisonment for a term of 5 years which was ordered to run concurrently
with the 15 years. An appeal to the Grahamstown High Court was unsuccessful. That court however
granted the appellant leave to appeal to the SCA.

According to the SCA, the regional court had misdirected itself in several respects. It held that the
offences had been perpetrated without any preplanning in a rather inept and amateurish manner and
that the various mitigating factors such as: the appellant was a first offender, he had, by pleading
guilty, demonstrated remorse for his conduct, he did not in fact pose a threat to anyone, and all of the
money had been recovered; had not been afforded due weight by the regional court. It accordingly
found that the cumulative effect of all of those factors constituted substantial and compelling
circumstances and thus set aside the sentence of 15 years and replaced it with a term of
imprisonment for a period of 5 years.
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