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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Non reportable
Case no: 1247/2018

In the matter between:
THOKOZANI KWAZI CHONCO

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Chonco v The State (1247/2018/) [2019] ZASCA 75 (30
May 2019)

Coram:
Navsa ADP and Saldulker JA and Eksteen AJA

Heard
16 May 2019

Delivered:
30 May 2019

Summary: Criminal Law – appeal against sentence above prescribed
minimum sentence – whether justified – failure to provide reasons – sentence
considered afresh.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Makhanya and Keightley JJ sitting as court of appeal):
The appeal against sentence is upheld.
The order of the high court is set aside and substituted as follows:
‘The appeal is upheld to the extent reflected in the substituted order:’
‘The magistrate’s order in relation to sentence is set aside and substituted as
follows:
(a)
The accused is sentenced to 15 years’ imprisonment.
(b)
The sentence is antedated to 30 August 2011.’
______________________________________________________________

JUDGMENT
______________________________________________________________

Saldulker JA (Navsa ADP and Eksteen AJA concurring):

[1] The appellant, Mr Thokozani Chonco, was convicted in the Alexandra
Regional Court on one count of robbery with aggravating circumstances and
sentenced to 18 years’ imprisonment. An application for leave to appeal
against both his conviction and sentence was refused. On petition to the
Gauteng Local Division (the high court) leave to appeal was granted against
sentence only. The appellant’s appeal against the sentence to the high court
(Makhanya and Keightley JJ) was however unsuccessful. The appeal before
us, against sentence only, is with the leave of this court.

[2] The issue on appeal is whether the sentence of 18 years’ imprisonment
imposed by the regional court magistrate (Mr Boshoff) in respect of the robbery
count was appropriate.

[3] I turn to consider the facts. On the morning of 27 January 2007, the
complainant, a soft drink wholesaler was robbed at his business at gunpoint by

the appellant and another perpetrator. They took a cellular phone, cigarettes
and R10 000 cash from him. None of those items was recovered. The
complainant was unable to identify his assailants. However the appellant was
linked to the crime by means of his palm print, found on the drawer in the office
where the wholesaler kept the money. The appellant did not dispute that the
palm print was his. His version was that he had entered the area as a result of
an invitation from the complainant because of a dispute concerning the state of
the money tendered and the change given to him. That version was rightly
rejected. As stated earlier, he was duly convicted and sentenced by the
regional court magistrate.

[4] At the time of sentencing, the appellant was 30 years old with three
minor children. He and the children resided with his mother, a pensioner. The
children’s mother was deceased. The appellant was the sole breadwinner. He
is a first offender in respect of this type of offence. The appellant was
incarcerated for a period of five months awaiting finalisation of his trial.

[5] In sentencing the appellant to 18 years’ imprisonment the magistrate
took into account that the offence was serious and prevalent in the court’s
jurisdiction, and drastic measures were called for to curb serious crimes. The
following comments by him are relevant:
‘The court is of the opinion that quite clearly no exceptional or compelling
circumstances are present to justify the imposition of a lesser sentence . . .The court
is of the opinion that the following is a well-balanced sentence. You are sentenced to
18 years’ imprisonment in terms of section 51(1) of the [Criminal Law Amendment Act
105 of 1997] . . .’.

[6] On appeal, the high court concluded that the sentence imposed by the
magistrate was appropriate and justifiable in that the court was at liberty to
impose a sentence in excess of the minimum sentence of 15 years’
imprisonment in terms of the Act.

[7] Section 51 of the Act sets out the discretionary minimum sentence for
certain serious offences. Robbery with aggravating circumstances falls within

Part II of Schedule 2, and within the purview of s 51(2)(a)(i) of the Act. The
relevant part of this section provides:
‘(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional
court or 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 of not
less than 20 years; and
(b). . . .’

[8] A proviso to s 51(2) of the Act reads as follows:
‘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.’

[9] The magistrate cannot be faulted for finding that there were no
substantial and compelling circumstances1 justifying a sentence of less than 15
years imprisonment. He sentenced the appellant to a period beyond the
prescribed minimum sentence, ostensibly in terms of the proviso to s 51(2).
The problem is that he provided no basis for doing so.

[10] It remains a salutary principle of our law that judicial officers should give
reasons for every decision they make, particularly if it has adverse
consequences for the accused. This principle, as stated by Navsa JA in S v
Maake [2010] ZASCA 51; 2011 (1) SACR 263 (SCA) paras 19-28, is deserving
of consideration:
‘It is not only a salutary practice but obligatory for judicial officers to provide reasons to
substantiate conclusions. The magistrate did not do so in respect of the maximum
sentence imposed by him. In an article in The South African Law Journal entitled
“Writing a Judgment”, former Chief Justice M M Corbett pointed out that this general
rule applies to both civil and criminal cases. In civil cases it is not a statutory rule but
one of practice . . .’ (See the decisions referred to in S v Maake)

1 In regard to what constitutes substantial and compelling circumstances: See para 9 of S v
Malgas 2001 (2) SA 1222 (SCA).

[11] In S v Msimango [2017] ZASCA 181; 2018 (1) SACR 276 (SCA) para
24, this court in dealing with the imposition of a sentence beyond the
prescribed minimum sentence in terms of the proviso said the following:
‘In terms of s 51(2) of the CLAA, the appellant should have been sentenced to a
period of not fewer than 15 years’ imprisonment in the absence of substantial and
compelling circumstances. It is true that the regional magistrate had the power to add
a further five years to the minimum sentence of 15 years’ imprisonment. However, the
increase is not to be done whimsically but on sound legal principle which can
withstand scrutiny. This requires any presiding officer who intends to invoke this
power to give reasons therefore. Regrettably, the regional magistrate gave no reasons
for increasing this sentence with an additional five years. On the evidence as it stands,
the increase is not justified.’

[12] It must be understood that the minimum sentencing regime was a
legislative measure to deal with increased criminality. As stated above, the
magistrate rightly concluded that there were no substantial and compelling
factors. The magistrate failed to identify and record any facts or circumstances
which justified a sentence of imprisonment in excess of the prescribed
minimum sentence of 15 years’ imprisonment. The magistrate’s failure entitles
us to interfere with the question of sentencing afresh. There is no basis on the
record to conclude that the robbery in question was such as to attract a
sentence greater than the prescribed minimum. One should also not lose sight
of the fact that the appellant has spent five months in custody awaiting
finalisation of his trial. The prescribed minimum sentence of 15 years’
imprisonment was therefore the appropriate sentence. Counsel on behalf of
the state was rightly constrained to agree that this was so.

[13] In light of the conclusions reached, the following order is made:
1.
The appeal against sentence is upheld.
2.
The order of the high court is set aside and substituted as follows:
‘The appeal is upheld to the extent reflected in the substituted order:’
‘The magistrate’s order in relation to sentence is set aside and substituted as
follows:

(a)
The accused is sentenced to 15 years’ imprisonment.
(b)
The sentence is antedated to 30 August 2011.’

______________________
H K Saldulker
Judge of Appeal

Appearances:

For Appellant:

W A Karam
Instructed by: Legal Aid SA Johannesburg Office
Johannesburg

For Respondent:
N P Serepo
Instructed by: Director of Public Prosecutions
Johannesburg