THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 765/12
Reportable

In the matter between:

GIVEN MABUNDA

Appellant

and

THE STATE

Respondent

Neutral citation:
Mabunda v S (765/12) [2013] ZASCA 30 (27 March 2013)

Coram:
Lewis and Leach JJA and Erasmus AJA

Heard:
12 March 2013

Delivered:
27 March 2013

Summary:
Robbery with aggravating circumstances ─ two counts of robbery
committed at gunpoint the same night ─ appellant sentenced to two sentences
of 15 years’ imprisonment that were not ordered to run concurrently ─
effective sentence of 30 years’ imprisonment too severe ─ on appeal,
sentences ordered to run concurrently for a period of 12 years resulting in an
effective sentence of 18 years’ imprisonment.

___________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from:
Limpopo High Court, Thohoyandou (Makhafola J sitting as court
of first instance):

(a)
The appeal succeeds to the extent only that it is ordered that 12 of the 15
years’ imprisonment imposed in respect of count 2 are to run concurrently with the
sentence of 15 years’ imprisonment imposed on count 1.
(b)
The appeal is otherwise dismissed.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________

LEACH JA (LEWIS JA and ERASMUS AJA concurring)

[1] The appellant, Given Mabunda, was one of three accused tried in the
Thoyoyandou High Court on two charges of robbery with aggravating circumstances.
He was convicted as charged and sentenced to 15 years’ imprisonment on each
count. As these sentences were not ordered to run concurrently to any extent, this
amounted to an effective sentence of 30 years’ imprisonment. With the leave of the
high court, the appellant appeals to this court solely against his sentence, leave to
appeal against his conviction having been refused.

[2] The charges brought against the appellant arose from two incidents that
occurred during the course of the night of 5 May 2004 at Mashau in the province of
Limpopo. The first, which gave rise to the first charge, took place at the home of Ms
Rejoice Mudau who shared a house with her child and two elderly women described
by her as ‘grannies’. After having watched television until 22h30 they were preparing
for bed when three intruders, one of whom was armed with a firearm, used an iron
bar to break into the house. One of the intruders slapped Ms Mudau and ordered her
to hand over all her money if she did not want to die. She tried to fob him off by

giving him a small amount of money she kept in a container on top of a wardrobe,
but he was not satisfied and continued to threaten her until she eventually took out
R1500 she had hidden in a purse under blankets in a cupboard. After this the
intruders left, leaving their victims in tears. They took with them not only the cash I
have mentioned but also Ms Mudau’s cellphone and its charger, as well as her
necklace, a pair of earrings, a mini hi-fi and a TV aerial. Save for one earring and the
cash, the other items were later recovered and returned by the police.

[3] The second incident, which formed the basis of the second charge on which
the appellant was prosecuted, took place later that night in the same area. It
involved the theft of a number of cellphones that were in the possession of Mr
Humbulani Matari who repaired cellphones for a living. As he did not have a
workshop at the time, Mr Matari used to store the cellphones in his possession in a
box which he entrusted to a security guard, Mr Nkwaku Muloto, who kept them
overnight at the premises that he guarded.  Later on the night in question three
young men, one of whom was armed with a firearm, arrived at the premises and
held up Mr Muloto at gunpoint. He was forced to prostate himself on the ground and
was told not to do anything or else he would be killed. When pressed to produce
either money or a firearm, he told his attackers that he had neither. However, in a
state of fear, he told them of the box of cellphones which they proceeded to take.
Before they left, one of the robbers expressed the desire to shoot Mr Muloto but was
dissuaded from doing so by one of his companions. Having fired a shot into the air,
presumably to discourage pursuit, the robbers then left. The value of the stolen
cellphones was alleged in the charge sheet to be in excess of R6 000 although no
evidence was led to establish this.

[4] As appears from what I have said, both these robberies were associated with
aggravating circumstances in that the complainants were threatened with firearms.
Unfortunately, violent crime of this nature is endemic in this country and, in an
attempt to combat offences of this nature, the legislature has provided a prescribed
minimum sentence of 15 years’ imprisonment for a first offender who commits the
offence of robbery with aggravating circumstances ─ see s 51(2)(a)(i) of the Criminal
Law Amendment Act 105 of 1997 as read with Part II of Schedule 2 of that Act. The
court a quo was therefore obliged to impose at least that sentence on each count

unless there were ‘substantial and compelling circumstances’ as envisaged by s 53
of that Act which justified a lesser sentence. It concluded that there were no such
circumstances and imposed the prescribed minimum sentence on each count;
effectively a sentence of 30 years’ imprisonment.

[5] The appellant’s appeal against this sentence was initially advanced on two
legs. First, it was submitted that the court below had erred in finding that there were
no substantial and compelling circumstances justifying a lesser sentence. Secondly,
it was contended that even if the prescribed sentences should stand, the failure to
order them to run concurrently to any extent rendered the cumulative effect thereof
shockingly inappropriate and too severe. However when the matter was argued,
counsel for the appellant found himself constrained to concede that there were no
substantial and compelling circumstances which justified a sentence less than that
prescribed for each count, and limited his argument to the second leg. In the light of
the circumstances of the appellant, the nature of the crimes and the factors set out
below, counsel’s concession was correctly made.

[6] In arguing that the effective sentence of 30 years’ imprisonment was far too
severe, it was stressed on the appellant’s behalf that he had been a first offender, in
his mid-twenties at the time he committed the offences and that he had spent some
seven months in detention before sentence had been imposed. These are obviously
relevant factors and were, indeed, taken into account by the court a quo in
considering sentence. But on the other hand, there are substantial aggravating
features to be weighed in the scales. The two robberies were motivated by greed,
were well planned and were clearly not the product of a sudden decision taken on
the spur of the moment, the two incidents having taken place at night some 25 km
from where the appellant lived. It is also necessary to remember that the victims
were, with good reason, clearly terrified and feared for their lives. In addition the
appellant and his companions physically broke into the home of Mrs Mudau where
they preyed upon three defenceless women and a child. People are entitled to feel
safe in their homes, and criminals who forcefully break into houses and violate the
dignity and well-being of others by the threat of violence should feel the full might of
the law if apprehended. In crimes like these, punishment and deterrence are factors
that come to the fore in determining an appropriate sentence.

[7] On the other hand, 30 years’ imprisonment is an extremely severe sentence.
It is a sentence on a scale that should be reserved for those cases falling within the
upper echelons of severity. And while by their very nature all cases of robbery with
aggravating circumstances are severe, neither of these robberies was associated
with the level of gratuitous violence which is unfortunately all too often the case. And
although the victims were clearly terrified of being shot, and Mr Mudau was slapped,
no further physical violence was inflicted and no bodily injuries of any severity
suffered. Moreover the value of the items stolen, relatively speaking, was not great,
and much was recovered.

[8] Consequently, despite the various aggravating features that I have
mentioned, neither robbery can be regarded as falling into the upper echelon of
severity of crimes of this nature. In the light of these factors, while the individual
sentences are not to be interfered with, the effective sentence of 30 years’
imprisonment must be regarded as being shockingly inappropriate.

[9] As much as it is necessary both to punish the appellant and attempt to deter
others from similar crimes, the effective sentence is one that is likely to break rather
than to rehabilitate him. It would be wrong to sacrifice the appellant on the altar of
deterrence. As was recently reaffirmed by this court, mercy and not a sledgehammer
is the concomitant of justice.1 In my view, the interests of justice would be served by
ordering 12 years of the sentences imposed on each count to run concurrently. This
will oblige the appellant to serve an effective 18 years’ imprisonment.

[10] The following order is made:
(a)
The appeal succeeds to the extent only that it is ordered that 12 of the 15
years’ imprisonment imposed in respect of count 2 are to run concurrently with the
sentence of 15 years’ imprisonment imposed on count 1.
(b)
The appeal is otherwise dismissed.

1 S v Motswathuga 2012 (1) SACR 259 (SCA) para 8.

______________________
L E Leach
Judge of Appeal

APPEARANCES:

For Appellant:

M Madima

Instructed by:

Thohoyandou Justice Centre
Thohoyandou

Bloemfontein Justice Centre
Bloemfontein

For Respondent:

R J Makhera
Instructed by:
The Director of Public Prosecutions
Thohoyandou
Director of Public Prosecutions
Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  27 March 2013
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation:
Mabunda v S (765/12) [2013] ZASCA 30 (27 March 2013)

The appellant was convicted on two charges of robbery with aggravating
circumstances in the Thoyoyandou High Court. He was sentenced to 15 years’
imprisonment on each count. These sentences were not ordered to run concurrently
which resulted in the appellant being effectively obliged to serve 30 years’
imprisonment. The appellant appealed to the Supreme Court of Appeal solely
against his sentence.

The two counts of robbery had occurred on the same night at Mashau in the
province of Limpopo. On the first count, the home of a woman who lived with her
child and two elderly women was invaded by the appellant who, together with two
companions, broke in and held up the occupants at gunpoint. Having threatened the
people in the house, they left after stealing approximately R1500 in cash, a
cellphone, a small amount of jewellery and a mini hi-fi and a TV aerial.

The second incident occurred when a night watchman guarding premises was held
up at gunpoint. Under duress he informed the appellant and his companions of a box
of cellphones that he was guarding valued in excess of R6000. The appellant and
his companions proceeded to take them.

In its judgment the Supreme Court of Appeal stressed the prevalence of offences of
this nature and the necessity to act firmly in cases where offenders are convicted of
robbery in such circumstances. However it concluded that the effective sentence of
30 years’ imprisonment was extremely severe, being a sentence that should be
reserved for those cases fallen within the upper echelons of severity which, although
severe these cases were not. It therefore directed that 12 years of the sentence

imposed on the second count should run concurrently with the 15 years’
imprisonment imposed on the first count.

The appeal therefore succeeded to that extent only which will oblige the appellant to
serve 18 years’ imprisonment.

---ends---