SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 933/20
In the matter between:

ALFRED MSEBENZI NHLAPO

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Nhlapo v The State (933/2020) [2022] ZASCA 72 (25 May 2022)

Coram:
Ponnan, Makgoka and Carelse JJA and Makaula and Savage AJJA
Heard:
03 May 2022
Delivered:  25 May 2022
Summary: Criminal appeal against sentence – special leave to appeal granted only
against the sentence of ten years’ imprisonment for attempted murder – cumulative
effect of sentences relevant – sentence on one count cannot be viewed in isolation
from the others – no warrant for interference – appeal dismissed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Louw J and Manamela
AJ sitting as court of appeal):
The appeal is dismissed.

JUDGMENT

Savage AJA (Ponnan, Makgoka, Carelse JJA and Makaula AJA concurring):
Introduction
[1] The appellant was convicted in the regional court, Ermelo (Mpumalanga) of
theft of a firearm (count 1), possession of a firearm and ammunition in contravention
of ss 3 and 90 of the Firearms Control Act 60 of 2000 (counts 2 and 3) and attempted
murder (count 4). He had pleaded guilty to the first three counts and not guilty to the
fourth. On 19 January 2010, he was sentenced to terms of imprisonment for three
years, five years and one year on counts 1 to 3, respectively, and 10 years’
imprisonment on count 4. The sentences on counts 1 to 3 were ordered to run
concurrently with the sentence imposed on count 4. The effective sentence was thus
10 years’ imprisonment. In addition, the appellant was declared unfit to possess a
firearm.
[2] The appellant’s application for leave to appeal was dismissed by the trial court.
With the leave of the high court, obtained on petition to it, the appellant appealed to
the Gauteng Division of the High Court, Pretoria (the high court). The appeal was
against his conviction on count 4, being the attempted murder, and the sentence of
ten years’ imprisonment imposed pursuant thereto. The appeal was dismissed.
Subsequently, the appellant was granted special leave by this Court to appeal only
against the sentence imposed in respect of count 4.

Background facts
[3] The matter emanates from events which took place on 1 January 2008 at
Morgenzon, Mpumalanga. The appellant was drinking alcohol when he had an
altercation with another man about a girlfriend. The appellant held a beer bottle in his
hand, while the other man had a grass cutter. The appellant left the scene and went
to his parents’ home, where he stole a firearm belonging to his father, which had been
locked in a safe.
[4] The appellant returned to the scene of the earlier altercation. He was
aggressive and, on meeting the complainant, asked him if he wanted to die. Although
the complainant remained silent, the appellant fired one shot at him. Following this, he
warned the complainant that he would not miss again. The appellant then attempted
to fire a further shot while pointing the firearm at the complainant and his cousin, but
the firearm jammed.
[5] In considering an appropriate sentence, the magistrate had regard to the
relevant mitigating and aggravating circumstances. The appellant’s personal
circumstances were considered, including that he was 26 years old, unmarried with a
six-month-old child, lived with his parents, had passed grade 9 and was employed,
earning R3 500 fortnightly. Although alcohol was found to have played a role in the
commission of the offences, the seriousness of the offences and the appellant’s failure
to desist from his criminal conduct, despite an opportunity for reflection to do so, were
weighed against him. In addition, regard was had to his previous convictions, for
housebreaking, escaping from custody and obstruction of justice, and his failure to
comply with a sentence of correctional supervision. The court found that a sentence
of direct imprisonment was appropriate, with the terms of imprisonment imposed in
respect of the first three counts ordered to run concurrently with the 10 years’
imprisonment imposed on count 4.
[6] On appeal, the high court confirmed the conviction and found that there was no
misdirection in the sentencing of the appellant. It recognised that sentencing was the
prerogative of the trial court and found that the sentence imposed was not shockingly
inappropriate or vitiated by misdirection. The appeal was therefore dismissed.

[7] The appellant thereafter applied to this Court for special leave to appeal. The
two judges who considered the petition granted special leave to the appellant to appeal
to this Court solely against the sentence of 10 year’s imprisonment imposed on count
4. Counsel for the appellant conceded in argument before this Court that the sentence
of 10 years’ imprisonment imposed on count 4 could not be viewed in isolation
particularly where, as here, the sentences imposed in respect of the first 3 counts had
been ordered to run concurrently with that imposed in respect of count 4. However,
the sentence imposed for the attempted murder was said to be unduly harsh and, as
a result, to induce a sense of shock given the appellant’s relative youthfulness and his
capacity for rehabilitation. In support of this contention reliance was placed on various
authorities in which sentences of three and five years had been imposed for attempted
murder;1 where alcohol played a role in the commission of the offence; where there
had been evidence of provocation; and where no injury had been sustained.2 It goes
without saying that whilst previous judgments on sentencing do indeed serve a useful
purpose, each case falls to be decided on its own unique facts.3
Discussion
[8] The sentence imposed in respect of count 4 concerned a crime which, with the
remaining three offences committed, formed part of one criminal transaction. The trial
court correctly took account of the cumulative effect of the sentences imposed in
ordering that the sentence of nine years’ imprisonment in respect of the first three
counts be served concurrently with the sentence imposed in respect of count 4. All
relevant factors, including the mitigating and aggravating circumstances which
existed, the appellant’s prior criminal record, the seriousness of the crime committed,
and society's interest were appropriately considered.
[9] Sentencing is pre-eminently a matter for the discretion of the trial court. An
appeal court should be careful not to erode such discretion unless it has not been
judicially exercised, or the trial court misdirected itself to such an extent that its
decision on sentence is vitiated, or the sentence is so disproportionate or shocking

1 S v Skhosana [2018] ZAGPJHC 13. See the case of Mokela v S [2011] ZASCA 166; 2012 (1) SACR
431 (SCA) in which a sentence of five years was also imposed for the same crime.
2 S v Ntsime [2005] ZANWHC 30 paras 38 and 39.
3 See for example S v Sinden 1995 (2) SACR 704 (A) at 708A; S v D 1995 (1) SACR 259 (A) at 260e.

that no reasonable court could have imposed it.4 In this matter, the sentence of 10
years’ imprisonment arose consequent upon the trial court’s proper exercise of its
discretion, with which no interference by this Court is warranted. It follows for these
reasons that the appeal must fail.
Order
[10] The following order is made:
The appeal is dismissed.

___________________
K M SAVAGE
ACTING JUDGE OF APPEAL

4 S v Rabie 1975 (4) SA 855 (A) at 857E-F. See also Bogaards v S [2012] ZACC 23; 2012 (12) BCLR
1261 (CC); 2013 (1) SACR 1 (CC) para 41 and S v Anderson 1964 (3) SA 494 (AD) at 495D.

APPEARANCES

For appellant:

N J du Plessis
Instructed by:

Gerrie Groenewald Attorneys Inc, Mbombela

Kruger Venter Inc, Bloemfontein.

For respondent:

J Jacobs

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

25 May 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgment of the Supreme Court of Appeal
Nhlapo v The State (933/2020) [2022] ZASCA 72 (25 May 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing an appeal against the
decision of the Gauteng Division of the High Court, Pretoria (the high court).

The issue before the SCA was whether the sentence of 10 years’ imprisonment imposed against the
appellant for attempted murder (count 4) could be viewed in isolation from sentences ordered to run
concurrently with that sentence.

The appellant was convicted in the regional court, Ermelo (Mpumalanga) of theft of a firearm (count 1),
possession of a firearm and ammunition in contravention of ss 3 and 90 of the Firearms Control Act 60
of 2000 (counts 2 and 3) and attempted murder (count 4). He pleaded guilty to the first three counts
and not guilty to the fourth. On 19 January 2010, he was sentenced to terms of imprisonment of three
years, five years and one year respectively in respect of counts 1 to 3; and 10 years’ imprisonment in
respect of count 4. The sentences imposed on counts 1 to 3 were ordered to run concurrently with the
sentence imposed on count 4, with the result that the effective sentence imposed was 10 years’
imprisonment.

When the trial court dismissed the appellant’s leave to appeal, the appellant appealed to the high court.
The high court upheld the conviction and found that there was no misdirection in the sentencing of the
appellant. In the SCA, this Court found that the sentence imposed in respect of count 4 concerned a
crime which, with the remaining three offences committed, formed part of one criminal transaction.
Accordingly, the SCA held that the trial court correctly took account of the cumulative effect of the
sentences imposed in ordering that the sentence of nine years’ imprisonment in respect of the first three
counts be served concurrently with the sentence imposed in respect of count 4. In doing so, the SCA
found that all relevant factors, including the mitigating and aggravating circumstances which existed,
the appellant’s prior criminal record, the seriousness of the crime committed, and society's interest were
appropriately considered.

The SCA reiterated that sentencing is pre-eminently a matter for the discretion of the trial court. Since
the sentence of 10 years’ imprisonment arose consequent upon the trial court’s proper exercise of its
discretion, no interference with such sentence by this Court was warranted. It followed for these reasons
that the appeal failed.
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