SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO:   627/12
Not Reportable

In the matter between:

SIBONGUMUSA HENRY ZONDO                                                                 APPELLANT

and

THE STATE                                                                                                 RESPONDENT

Neutral citation:   Zondo v S (627/12) [2012] ZASCA 51 (28 March 2013)

Coram:
Maya, Shongwe, Leach JJA et Swain, Mbha AJJA

Heard:
14 March 2013
Delivered:
28 March 2013

Summary:
Criminal procedure - sentence – imprisonment – cumulative effect of a
sentence of a total of 39 years imprisonment in respect of two separate
convictions for robbery committed with aggravating circumstances - sentence held
to induce a sense of shock and reduced accordingly.

ORDER

On appeal from:
North Gauteng High Court, Pretoria (Southwood et Patel JJ sitting as
court of appeal):

(a)
The appeal against sentence is upheld to the extent indicated below.
(b)
Paras 2 and 3 of the high court’s order are set aside and are substituted with the
following:
‘2.
The appeal is upheld in respect of the sentence of 10 years’ imprisonment
imposed in respect of the convictions of attempted murder. Such sentence is set aside
and substituted with a sentence of seven years’ imprisonment.
3.
The sentence of seven years’ imprisonment imposed for robbery with aggravating
circumstances (count 1), and the sentence of 7 years’ imprisonment in respect of the
nine convictions for attempted murder (counts 4-12), are ordered to run concurrently.’

JUDGMENT

MBHA AJA (MAYA, SHONGWE, LEACH JJA ET SWAIN AJA CONCURRING)

[1] Arising out of a cash in transit heist and related events more fully described below,
the appellant was convicted in the Secunda Regional Magistrate Court (the trial court) on
a count of robbery with aggravating circumstances (count 1), a count of robbery involving
the theft by force of a motor vehicle (count 2), ten counts of attempted murder (counts 3-
12), one count of attempted robbery of another motor vehicle (count 13) and four counts
of unlawful possession of firearms consisting of rifles, handguns and ammunition. On 10
May 2002 he was sentenced to seven years’ imprisonment for robbery with aggravating
circumstances (count 1), three years’ imprisonment for robbery and attempted robbery
(counts 2 and 13 having been taken together for purposes of sentence), ten years’

imprisonment for the ten counts of attempted murder and five years imprisonment for the
four counts of unlawful possession of firearms and ammunition. It was ordered that the
sentences imposed for the ten counts of attempted murder and unlawful possession of
firearms and ammunition should be served concurrently. Effectively, he was to serve 20
years’ imprisonment.

[2] The appellant’s subsequent appeal to the North Gauteng High Court, Pretoria
(Southwood and Patel JJ), against both the conviction and sentence, was partially
successful. That court upheld the appeal against the convictions in respect of robbery
(count 2), one of the counts of attempted murder (count 3), the count of attempted
robbery (count 13) and counts of unlawful possession of firearms and ammunitions
(counts 14-17). The sentence of seven years imprisonment imposed in respect of count 1
was left unaltered. However, the sentence of ten years’ imprisonment in respect of the
remaining convictions for attempted murder (counts 4-12) was set aside and substituted
with a sentence of seven years’ imprisonment. In terms of s 282 of the Criminal
Procedure Act 51 of 1977 (the Act), the altered sentence was antedated to 10 May 2002.
Effectively, the appellant was to serve 14 years’ imprisonment from that date.

[3] This appeal, with leave of the court below, is against the sentence only. The
cumulative effect of the sentence of 14 years imprisonment imposed by the high court,
taken together with the sentence of 25 years’ imprisonment which was imposed on the
appellant on 25 February 2000 in respect of an earlier conviction and which he was
already serving when he was tried by the trial court, resulted in him being obliged to
serve a total sentence of 39 years imprisonment. This the appellant argued, is shockingly
inappropriate.

[4] Before considering the issues for determination in this appeal, it is necessary to
briefly set out the factual background of the matter. The evidence led before the trial
court disclosed that on 2 December 1997, at the Secunda Business Centre, the
appellant, then a police officer in the employ of the South African Police Service holding
the rank of constable, together with about 14 other men who were all armed with assault
rifles and handguns, robbed security officers of Khulani Springbok Patrols of two boxes
containing an undisclosed amount of money and a .38 special revolver. This robbery,
which formed the basis of count 1 in the charge sheet, occurred as the security officers

were leaving the premises of United Bank after collecting the boxes. The perpetrators
fled in two LDV vehicles. Numerous members of the police and traffic officers chased the
robbers, who then started firing back in order to avoid arrest. Consequently, at least one
police officer and member of the public sustained gunshot wounds. It is these shooting
incidents which gave rise to the counts of attempted murder. The gang also robbed one
Burman Wessels Pretorius of his Nissan Maxima and also attempted to rob Solomon
Nkosi of his employer’s Toyota Conquest vehicle: the basis of counts 2 and 13
respectively. The State led the evidence of 27 witnesses, including that of one Richard
Khuzwayo, one of the perpetrators who later became the State’s main witness. As stated
above, the appellant was subsequently convicted on all 17 charges brought against him.

[5] After conviction and when the appellant was leading evidence in mitigation, he
brought it to the attention of the trial court that he was already serving a sentence of 25
years’ imprisonment for a robbery with aggravating circumstances committed on 15
November 1998.

[6] In imposing a sentence of 20 years imprisonment, the trial court appropriately
considered the triad as espoused in S v Zinn.1 Having found, rightly, that the Criminal
Law Amendment Act 105 of 1997 was not applicable, (the Act only came into operation
on 1 May 1998) the trial court concluded that the aggravating circumstances far
outweighed the mitigating factors, in particular because the appellant was a police officer
who was in a position of trust to the public; that the robbery was planned well in advance
and executed with military precision; firearms were used; and the robbers, instead of
handing themselves over when confronted by the police, chose to shoot back at their
pursuers thus endangering the lives not only of the police but of members of the public as
well.

[7] In my view, the trial court erred, however, in omitting to consider the appellant’s
request that whatever sentence was going to be imposed had to be ordered to run
concurrently with the sentence of 25 years’ imprisonment that he was already serving at
the time. The high court erroneously perpetuated this. It appears from its judgment in
granting leave to appeal that the fact that the appellant was serving 25 years’
imprisonment was not drawn to its attention during argument and that in imposing the

1 S v Zinn 1969 (2) SA 537 (A).

sentences that it did it took no account of the fact that its sentence would lead to a
cumulative effective sentence of 39 years’ imprisonment.

[8] The appellant was 37 years old when he was sentenced by the trial court, on 10
May 2007. This means that he will be 76 years old by the time he completes serving his
sentence. This appears to have completely escaped the attention of the trial court when it
imposed a sentence of 20 years’ imprisonment on him. The court a quo also ignored this
factor when it reduced that sentence to 14 years’ imprisonment, but allowed it to run
consecutively with the sentence of 25 years’ imprisonment imposed for the robbery
committed in November 1998. Counsel for the respondent conceded, rightly, that 39
years’ imprisonment is a long period of incarceration and does, considering all the
circumstances of the case, induce a sense of shock.

[9] This court has repeatedly warned against excessively long sentences being
imposed by trial courts. In S v Mhlakaza2 the court had to consider whether sentences of
imprisonment, which are cumulatively far in excess of 25 years, are proper. Harms JA,
dealing with the element of deterrence, noted that although it remained, according to
judicial precedent, an important consideration when imposing sentence, its effectiveness
in deterring others from committing (similar) offences was unclear. He further stated
that ‘(a)s far as deterring the accused is concerned, it should be borne in mind that there
is no reason to believe that the deterrent effect of a prison sentence is always
proportionate to its length’ before going on to state that a lengthy term of imprisonment
would serve none of the purposes of punishment and would simply serve to appease
public opinion. He pointed out, accordingly, that sentences of imprisonment ought to be
realistic and should not be open to the interpretation that they have been designed for
public consumption.3 See also: S v Skenjana 1985 (3) SA 51 (A) at 55 C-D; S v Siluale
1999 (2) SACR 102 (SCA) at 106g-107a; S v Bull; S v Chavulla 2001 (2) SACR 681
(SCA) para 22 and S v Matlala 2003 (1) SACR 80 (SCA) para 7-3.

[10] The trial court and the court a quo misdirected themselves in the manner
demonstrated above, thus warranting this court to interfere with the sentence. I must,
however, stress that this must not in any way be construed to underplay or minimize the

2 1997 (1) SACR 515 SCA at 519 g.
3 At 524 a.

gravity and seriousness of the offences the appellant committed. These were adequately
highlighted by the trial court and I see no need to repeat what has already been said in
this regard. I need also mention that the other robbery in respect of which the appellant
was sentenced to 25 years imprisonment was committed in November 1998 whilst he
was out on bail after his arrest in connection with this case, on 3 February 1998.

[11] I am also wary of being seen to be creating an unacceptable precedent that an
accused person could go on a criminal spree committing separate instances of serious
crimes, but effectively being punished for only one of them. For this reason, I am of the
view that ordering the two sentences to run concurrently in their entirety would not only
send out a wrong message. It would in effect defeat the purpose of adequately punishing
the appellant for his conduct. At the same time, the approach I intend adopting in
correcting the misdirection by both the trial and the court a quo will go a long way to
assuage the cumulative effect of a 39 years period of imprisonment imposed on the
appellant.

[12] As I have mentioned above, the court a quo left unaltered the sentence of seven
years for robbery with aggravating circumstances and imposed a further seven years’
imprisonment for all the counts of attempted murders taken together. I am of the view
that those sentences are, in the circumstances of the case, justified. Nevertheless, I will
order that they run concurrently. The appellant will effectively serve seven years’
imprisonment, but this sentence shall run after the sentence of 25 years’ imprisonment
imposed in February 2000.

[13] Two further aspects need to be addressed. First, in para 2 of its order the high
court erred by referring to 10 counts of attempted murder for which a sentence of seven
years’ imprisonment was imposed. In the light of the appellant’s successful appeal in
regard to his conviction on count 3, there are in fact only nine counts of attempted murder
in respect of which he has been convicted. This error can be corrected in our order
below.

[14] Secondly, and more importantly, in para 3 of its order the high court, acting under
s 282 of the Criminal Procedure Act, antedated the sentences it imposed to 10 May 2002
being the date sentence had been imposed by the trial court. Given that the appellant

was already serving his sentence of 25 years’ imprisonment at that time, a fact which had
escaped the high court, its direction in that regard is both meaningless and inappropriate
and should be set aside.

[15] In the result, the following order is made:
(a)
The appeal against sentence is upheld to the extent indicated below.
(b)
Paras 2 and 3 of the high court’s order are set aside and are substituted with the
following:
‘2.
The appeal is upheld in respect of the sentence of 10 years’ imprisonment
imposed in respect of the convictions of attempted murder. Such sentence is set aside
and substituted with a sentence of seven years’ imprisonment.
3.
The sentence of seven years’ imprisonment imposed for robbery with aggravating
circumstances (count 1), and the sentence of 7 years’ imprisonment in respect of the
nine convictions for attempted murder (counts 4-12), are ordered to run concurrently.’

B H MBHA

ACTING JUDGE OF APPEAL

APEARANCES:

FOR APPELLANT:

IN PERSON

FOR RESPONDENT:

J. J. KOTZE

Instructed by:
The National Director of Public Prosecutions,
Pretoria
The National Director of Public Prosecutions,
Bloemfontein