Kubheka and Another vs. The State

South Africa

24.03.2021

Criminal

Power of an appellate Court to interfere with a sentence imposed by a lower Court is limited and can be exercised in cases of material irregularity

The issue before present Court is whether the increased sentences imposed by the high Court were appropriate. On 12 October 2017, the Appellants, Messrs Nhlanhla Arthur Kubheka (first Appellant) and Armstrong Ngidi (second Appellant) were each convicted in the regional Court on one count of theft of a cellular telephone and an iPod from a motor vehicle. On 23 January 2018, the first Appellant was sentenced to four years' imprisonment, of which two years were suspended for a period of five years on condition that, he was not convicted of theft or any offence involving an element of dishonesty during the period of suspension. The second Appellant was sentenced to four years’ imprisonment. The Appellants were declared unfit to possess a firearm in terms of Section 103(1) of the Firearms Control Act, 2000.

With leave of the regional Court, the Appellants appealed to the high Court in respect of both conviction and sentence. The high Court set aside the sentences imposed by the regional Court and substituted it with the increased sentences of five years and eight years direct imprisonment, respectively.

It is trite that, the power of an appellate court to interfere with a sentence imposed by a lower court is limited. In S v Bogaards , the Constitutional Court stated that, ‘It can only do so where there has been an irregularity that results in a failure of justice; the Court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.’

There was no basis to interfere with the sentences imposed by the regional court and doubling the sentences of direct imprisonment by the high Court was unwarranted. Taking into account the prevalence and seriousness of the offence, and that the Appellants could not have been motivated by need but rather by greed, present Court held that, there was no room for concluding, as suggested on behalf of the appellants, that correctional supervision was a viable sentence. In substituting the sentences, the high Court failed to show that the regional Court exercised its sentencing discretion improperly or unreasonably when it imposed the sentences.

In fact the high court over-emphasised the seriousness of the offence, without taking due regard to comparable sentences. The individual sentences imposed by the regional court were found to be appropriate as they took into account the purpose of punishment, the personal circumstances of the accused, the nature of the offence, and the proportionality of the sentence considering the value of the goods stolen. The sentences imposed by the regional Court were reinstated.

Tags : Sentence Quantum Legality

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