FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA

Appeal No: A192/09

In the matter between:

and

[2] It is a trite principle of our law that within the domain of sentencing, the trial court is primarily possessed of the requisite judicial discretion wherewith to impose a sentence. Furthermore, that the court of appeal will not interfere with such discretion unless the trial court failed to exercise its discretionary function judiciously, misdirected itself in material respects, imposed a shockingly inappropriate sentence or imposed a sentence which no reasonable court would have done (S v Malgas 2001 (1) SACR 469 (SCA; S v Salzwedel and Others 2000 (1) SA 786 (SCA) and S v PETKAR 1988 (3) SA 571 (A) at 574 C).

[5] Subsection 51 (2) read with Part 11 of Schedule 2 of the Act makes provision for the imposition of a minimum sentence relative to the charge of robbery with aggravating circumstances, or where it involves the taking of a motor vehicle, it places an obligation on the trial court to impose a specified sentence upon the accused, in his/her capacity as first offender. Such specified sentence constitutes a term of imprisonment of not less than fifteen (15) years in the absence of substantial and compelling circumstances, which would justify a lesser sentence.

(iii) that the accused did not initiate the crime, more particularly that of robbery, which, having triggered off a domino chain of events, ultimately resulting in the murder of the victim

[7] The trial judge notably accepted that the aforementioned circumstances constituted substantial and compelling circumstances and, without making a formal finding stated that said circumstances, in appropriate circumstances, are indeed compelling and substantial as contemplated in Section 51 (3) (a) of the Act. However, he proceeded to state that the acceptance of the said circumstances as compelling and substantial did not mean that he was obligated to impose a lesser sentence than that prescribed by the Act and that he was still possessed of the judicial discretion to consider an appropriate sentence in the light of all the prevailing facts.

[8] The trial judge thus evaluated the nature and severity of the offences, the prevalence and high incidence of the offences, the constitutional value and the protection of the right to life, the duty of the judiciary to stem the tide of crimes of murder by removing the offenders permanently from society thereby reducing the high rate of violent crimes and further conveying a message to civil society that violent crimes will not be tolerated.

[10] The same principle was raised and deliberated upon in the full bench judgment of S v SM and Others 2010 (1) SACR 504 (WCC). The full bench in that case was split on the issue. The majority in that case reasoned as the trial judge did in this matter. In the minority judgment, Moosa J, postulated the issue in para 1 as follows:

After analyzing the relevant statutory provisions and the case law, Moosa J, concluded as follows:

[12] Having found that the trial judge misdirected himself in a material respect, I am at liberty to impose sentencing afresh in respect of both the counts of murder and robbery subject to the residual discretion to impose a lesser penalty than those prescribed by the Act but in accordance with the doctrine of proportionality. I will accordingly proceed to sentence afresh.

The sentence in respect of count 2 (robbery) shall run concurrently with the sentence imposed in respect of count 1 (murder).

I concur 

I concur 

			

I concur

I concur