THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 200/2020
In the matter between:

NHLANHLA ARTHUR KUBHEKA
FIRST APPELLANT
ARMSTRONG NGIDI

SECOND APPELLANT
and

THE STATE
RESPONDENT
Neutral citation: Kubheka and Another v The State (200/2020) [2021] ZASCA 25
(24 March 2021)
Coram:
NAVSA ADP, DLODLO and MBATHA JJA, and KGOELE and
WEINER AJJA
Heard:
25 February 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10:00 am on 24 March 2021.

Summary: Criminal law and procedure – appeal against sentence – high court
set aside sentences imposed by regional court and increased length of imprisonment
– no material misdirection – no indication that trial court exercised discretion
improperly – no basis for high court to interfere – appeal upheld.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Vally J and
Malungana AJ sitting as court of appeal):

1.
The appeals against the increased sentences imposed by the high court are
upheld.
2.
The order of the high court in respect of the sentence is set aside and replaced
with the following order:
‘The appeals against sentence are dismissed.’
3.
The result is that the sentences imposed by the Regional Division, North
Gauteng, Randburg, set out hereafter, are reinstated:
‘(a)
Accused 1 is sentenced to 4 years’ imprisonment of which 2 years is suspended for 5 years
on condition that the accused is not convicted of theft or any offence involving an element of
dishonesty during the period of suspension.
(b)
Accused 2 is sentenced to 4 years’ imprisonment.
(c)
In terms of s 103(1) of the Firearms Control Act 60 of 2000, each accused is declared unfit
to possess a firearm.’

JUDGMENT

MBATHA JA (NAVSA ADP, DLODLO JA, and KGOELE and WEINER
AJJA concurring)

[1] On 12 October 2017, the appellants, Messrs Nhlanhla Arthur Kubheka (first
appellant) and Armstrong Ngidi (second appellant) were each convicted in the
Regional Division, North Gauteng, Randburg (‘the regional court’), of one count of
theft of a cellular telephone and an iPod out of 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 s 103(1) of the
Firearms Control Act 60 of 2000. With leave of the trial court the appellants appealed
to the Gauteng Division of the High Court, Johannesburg (the ‘high court’) in respect
of both conviction and sentence.

[2] On 22 May 2019, the day of the hearing of the appeal, the high court called
upon the appellants to provide reasons why each of their sentences should not be
increased on appeal in the event that the appeal against conviction was dismissed.
The hearing was adjourned to 20 June 2019. On that day the high court entertained
the appeal.

[3] In its judgment the high court (Vally J, Malungana AJ concurring) restated
the evidence that was adduced in the regional court. It was clear that the appellants
had jammed the locking signal on the remote control of the Mercedes Benz vehicle
that had been parked adjacent to their motor vehicle, a Chevrolet Aveo at the parking
area of the Randburg Magistrates’ Court, and had stolen the cellular telephone and
an iPod. The high court reiterated that the State’s case was advanced by the direct
evidence of the security officer at the court, Ms Winnie Mutavhatsindi, who
observed the appellants through CCTV monitors leaving their motor vehicle and
opening the door of the Mercedes Benz. This was further supported by the
uncontested evidence that the iPod belonging to Mr Anthony James Batistich, the
complainant, was found in the backseat of the Chevrolet one of the appellants had
hired, and in which they had travelled to the Randburg Magistrates’ Court. One of
the appellants had also demonstrated to the police officers how they used the remote
jammers to prevent the locking of the doors of a motor vehicle.

[4] The high court concluded that the appellants’ defences were correctly rejected
by the regional court as not being a true account of the circumstances underlying the
finding of the iPod in their motor vehicle. Consequently, it held that the court was
correct in finding that the State had proven beyond a reasonable doubt, all the
elements of the offence and dismissed the appeal against conviction. It, however, 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. The high court based its decision principally on the prevalence of the
offence and that the offence had been carefully planned and executed. It concluded
that the regional court had downplayed the interests of society and overemphasised
the interests of the appellants. The appellants petitioned this Court for special leave

to appeal against both conviction and sentence. They were however granted leave to
appeal against sentence only.

[5] Before us it was pointed out on behalf of the appellants that the State had
initially not opposed the appropriateness of the sentence imposed by the regional
court. It was submitted that S v De Beer [2017] ZASCA 183; 2018 (1) SACR 229
(SCA) demonstrated the same error by the High Court, Johannesburg (Vally J and
Siwendu AJ), namely, an unjustified increase in sentence on appeal that was later
overturned by this court. Counsel on behalf of the appellants contended that the
appellants were both professionals who ought to have been considered suitable
candidates for a sentence of correctional supervision, in terms of s 276 (1)(h) or (i)
of the Criminal Procedure Act 51 of 1977. It was submitted on behalf of the
appellants that the high court had arbitrarily doubled the sentences of the appellants
on the grounds of the seriousness and prevalence of the offence and the interests of
society, with the consequence that the newly imposed sentences were
disproportionate to the offence committed. It was contended that the high court had
disregarded the personal circumstances of the appellants and that it erred in over-
emphasising the interests of society and the gravity of the offence.

[6] 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 Bogaards1, the Constitutional Court stated
as follows:
‘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.’

1 S v Bogaards [2012] ZACC 23; 2012 BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41.

[7] It is clear that the trial court took into account all relevant factors in
considering an appropriate sentence for the appellants. It took into account the
appellants’ personal circumstances which were as follows: the first appellant was 44
years old when the crimes were committed; he is a B. Com and B. Sc. Engineering
(cum laude) graduate who is a member of the Professional Engineers of South
Africa; he is a director of his own engineering company, which is based in KwaZulu-
Natal with a staff component of  21 employees; he draws a net income of R1 million
per annum; he is the father and sole-provider to eight children; and he was a first
offender.

[8] The second appellant was 46 years old at the time when he was sentenced; he
is married and a father of two children, who are dependent on him for financial
support; after completing matric he acquired the relevant certificates in the
hospitality industry and he runs a marketing and catering company together with his
wife; his gross drawings totalled R69 000 per month; and his company employed
four permanent staff members. He has two previous convictions for fraud and theft,
though they had happened more than 17 years prior to the time of sentencing in the
present case.

[9] As aggravating circumstances, the regional court took into account the nature
and seriousness of the offence, the value of the items stolen from the motor vehicle,
the prevalence of the offence, and that it required a skilled person to commit the
offence. The individual sentences imposed by the regional court were appropriate as
they took into account the purposes of punishment, which are aimed at rehabilitation,
preventative deterrence and retribution.

[10] As stated above, the high court found that the sentence imposed by the
regional court did not sufficiently appreciate the interests of society, the gravity of
the offence, and that it was unduly and overly generous in assessing the interests of
the appellants. It found that the crime was carefully planned, prevalent and was
committed by sophisticated businessmen who used their technical skills to steal from
the motor vehicle. Counsel for the State was hard pressed to point to any misdirection
on the part of the regional court. She was reluctantly, but correctly, constrained to
agree that the high court should not have interfered with the sentences imposed by
the regional court. In substituting the sentences the high court failed to demonstrate
that the regional court had not exercised its sentencing discretion at all or exercised
it improperly or unreasonably. The high court itself was guilty of over-emphasising
the seriousness of the offence and without due regard to proportionality.  Counsel
for the State conceded that the increased sentences were more severe than what high
courts had in the past held to be appropriate in cases of this kind.2 One of course,
must be cautious about comparisons with other cases. Each case must be decided on
its own merits. A court of appeal may, however, not substitute a sentence simply
because it prefers it and thereby usurp the discretion of the trial court.3 In the present
case there was no basis to interfere with the sentences imposed by the regional court
and  doubling the sentences of direct imprisonment was unwarranted.

[11]  Having regard to what is set out above, it is clear that having regard to the
prevalence and seriousness of the offence and that the appellants could not have been

2For example, in S v Smith 2002 (2) SACR 488 (C), where there was theft from a motor vehicle, a 22- year-old was
sentenced to 3 years’ imprisonment, which on review was reduced to 18 months’ imprisonment, of which 9 months
were suspended for five years. In S v Maritz 1994 (1) SACR 456 (T) a 35-year-old, with previous convictions, was
sentenced to 6 years imprisonment, which on review was reduced to a sentence of 6 years’ imprisonment, of which 3
years were suspended for a period of 5 years. Counsel for the State informed us that regional court sentences for
similar cases were in the region between 3 to 5 years’ imprisonment.
3S v Malgas [2001] ZASCA 30; [2001] 3 All SA 220 (A) para 12.

motivated by need but rather by greed, there is no room for concluding as suggested
on behalf of the appellants that correctional supervision was a viable sentence. The
regional court can thus not be faulted for imposing direct imprisonment.

[12] Accordingly, the sentences imposed by the regional court should stand, as
they are proportionate to the offence committed by the appellants. In the
circumstances, the order is as follows:
1.
The appeals against the increased sentences imposed by the high court are
upheld.
2.
The order of the high court in respect of sentence is set aside and replaced
with the following order:
‘The appeals against sentence are dismissed.’
3.
The result is that the sentences imposed by the Regional Division, North
Gauteng, Randburg, set out hereafter, are reinstated:
‘(a)
Accused 1 is sentenced to 4 years’ imprisonment of which 2 years is suspended for 5 years
on condition that the accused is not convicted of theft or any offence involving an element of
dishonesty during the period of suspension.
(b)
Accused 2 is sentenced to 4 years’ imprisonment.
(c)
In terms of s 103(1) of the Firearms Control Act 60 of 2000, each accused is declared unfit
to possess a firearm.’

___________________
Y T MBATHA
JUDGE OF APPEAL

APPEARANCES:

For appellants:

J C Kruger

Instructed by:

BDK Attorneys, Johannesburg
Symington & De Kok, Bloemfontein

For respondent:

E H F Le Roux
Instructed by:

The Director of Public Prosecutions, Johannesburg

The 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:
24 MARCH 2021
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 judgments of the Supreme Court of Appeal
Kubheka and Another v The State (200/2020) [2021] ZASCA 25 (24 March 2021)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding
the appeal against the Gauteng Division of the High Court, Johannesburg (the
high court). The SCA ordered that the sentences imposed by the Regional
Division, North Gauteng, Randburg (the regional court) be reinstated.
The issue before the SCA was 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 s 103(1) of the Firearms Control Act 60 of 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

The SCA held that 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, the SCA 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. The SCA found further that 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. In that regard, the
sentences imposed by the regional court were reinstated.

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