THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 541/11
Not Reportable

In the matter between:

SANELE ZONDO

Appellant

and

THE STATE

Respondent

Neutral citation:  Sanele Zondo v The State (541/11) [2012] ZASCA 27
(28 March 2012)

Coram:
NAVSA, TSHIQI AND WALLIS JJA AND PETSE AND NDITA AJJA

Heard:
16 February 2012

Delivered:
28 March 2012

Summary:
Sentence – Trial court failing to balance mitigating factors
against aggravating factors – Effective sentence reduced to 12 years’
imprisonment.
__________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: The KwaZulu-Natal High Court, Pietermaritzburg (Pillay and
Ntshangase JJ sitting as court of appeal):

a.
The appellant‟s appeal succeeds to the extent set out below.

b.
The sentence imposed by the court below is set aside and substituted with the
following:

„(i)
The sentence on count 1 is set aside and substituted with a sentence of
12 years‟ imprisonment.

(ii)
The sentence on count two is confirmed.

(iii) It is ordered that the sentences on counts one and two should run
concurrently.

(iv) The appellant is therefore sentenced to an effective term of 12 years‟
imprisonment.‟

JUDGMENT

TSHIQI JA (NAVSA, and WALLIS JJA and PETSE and NDITA AJJA concurring)

[1] This is an appeal against sentence only. The appellant was convicted in the
regional court, Durban, on 5 December 2003 on one count of robbery with aggravating

circumstances1 and one count of attempted robbery.2  He was sentenced to the
prescribed minimum period of 15 years‟ imprisonment on count one, the court having
found no substantial or compelling reasons to deviate from that sentence, and to a
further period of ten years‟ imprisonment on count two. The court ordered that five
years of the sentence on count two should run concurrently with the sentence on
count one. He was thus sentenced to an effective term of 20 years‟ imprisonment.

[2] On appeal the KwaZulu-Natal High Court, Pietermaritzburg found no reason to
interfere with the sentence imposed by the regional court magistrate and consequently
dismissed the appeal. He now appeals to this court, with the leave of the high court,
against sentence only, and only on the limited basis that this court may order that the
whole of the sentence on count two should run concurrently with the sentence on
count one.

[3] The convictions and sentences arise from a robbery that was committed by a
group of men on 7 September 2003, around 10h00. The appellant together with his
co-assailants, who were not arrested, accosted and robbed two Philippine nationals, a
male and a female colleague who were walking along Commercial Road, Durban to
attend a conference at the International Convention Centre (the ICC). The appellant
carried a knife. He robbed the woman of her handbag and fled whilst one of his
co-assailants attempted, but did not succeed, to rob the male of his backpack. A
member of the public who witnessed the incident alerted two police officers, Sergeant
Phungula and Inspector Smith, who were apparently patrolling in the street not far
from the scene and accompanied them in their official vehicle to assist in identifying
the assailants.

[4] The appellant and one of his co-assailants were spotted whilst waiting to cross
a street, within about three minutes after receiving the tip-off. Inspector Smith who was
driving the police vehicle stopped the vehicle and the two assailants ran away in
different directions. Sergeant Phungula alighted from the vehicle and gave chase.
Sergeant Phungula testified that when he saw the appellant he noticed that the latter
was in possession of something, which looked like a dark-coloured bag, concealed in
his trousers and he decided to focus his attention on him. Inspector Smith followed in

1 Section 51(2) of the Criminal Law Amendment Act 105 of 1997 (Part II of Schedule 2) was held to be
applicable.
2 The conviction on count two was based on the doctrine of common purpose.

the police vehicle. The appellant entered a side street and on realising that Inspector
Smith was behind him, changed direction and ran back towards the direction from
which Inspector Phungula was approaching. At that stage, approximately two metres
from him, Inspector Phungula observed that the appellant was carrying a black and
red handbag. He saw him trying to throw it over a wall but it fell on the pavement next
to the wall. Inspector Phungula then arrested the appellant. The bag was later
retrieved by the two police officers and was later identified by the female complainant
as her bag, which had earlier been snatched from her. He was also positively
identified by the complainant as her attacker. Her passport and other personal
belongings were found inside the bag.

[5] It is trite that it is the trial court which has the discretion to impose an
appropriate sentence. A court on appeal should only interfere if the sentence is
vitiated by a material misdirection.3

[6] The trial court rightly considered the uncontroverted evidence of the
complainant that she was traumatised by the attack, the prevalence of the crime and
also its impact on the South African tourism industry. These, however, were not the
only considerations that should have been taken into account. There are mitigating
factors. The court in the exercise of its discretion should as much as possible „strive to
achieve a judicious balance between all relevant factors “in order to ensure that one
element is not unduly accentuated at the expense of and to the exclusion of the
others”‟.4 In so doing the court should consider both mitigating and aggravating
circumstances.

[7] The robbery for which the appellant was convicted consisted of handbag
snatching with a threat of violence with a knife. No injuries were sustained by the
complainant.  The bag was recovered within a short space of time and none of its
contents were missing. Consequently no permanent loss was suffered by the
complainant.

[8] There was no evidence that the male colleague was subjected to any physical
harm. It seems that he successfully resisted any attempts to disposses him of his

3 See S v Malgas 2001 (1) SACR 469 (SCA) para 12.
4 Moswathupa v The State (168/11) [2011] ZASCA 172 para 4; S v Banda 1991 (2) SA 352 (BG) at
354E-G.

backpack. The whole incident was perpetrated in an amateurish manner and was,
according to the evidence, perpetrated hastily and in a rush to flee away. An effective
period of imprisonment of 20 years is a very severe punishment which should
ordinarily be reserved for particularly heinous offences.5
[9] The robbery and the attempted robbery were both part of a continuous incident.
The appellant was convicted on the attempted robbery on the basis of common
purpose. It was, in my view, prudent for the court to seek an appropriate sentence for
all of them taken together.6

[10] For the above reasons, a case has been made for this court to interfere with the
sentence imposed. Although leave was granted only pertaining to the cumulative
effect of the sentence, counsel submitted that we should interfere in relation to the
sentence imposed in respect of count one, even though no leave had been granted in
relation thereto. In effect counsel applied for leave to extend the grounds of appeal
against sentence, which I am inclined to grant. In my view there is a basis to interfere.

[11] In the result the following order is made:

a.
The appellant‟s appeal against sentence succeeds to the extent set out below.

b.
The order of the court below is set aside and substituted with the following:

„(i)
The sentence on count 1 is set aside and substituted with a sentence of
12 years‟ imprisonment.

(ii)
The sentence on count two is confirmed.

(iii)
It is ordered that the sentences on counts one and two should run
concurrently.

(iv)
The appellant is therefore sentenced to an effective term of 12 years‟
imprisonment.‟

5 Muller v The State [2011] ZASCA 151; Moswathupa v The State (168/11) [2011] ZASCA 172.
6 S v Johaar 2010 (1) SACR 23 (SCA) para 14.

____________________
Z L L Tshiqi

Judge of Appeal
APPEARANCES

APPELLANT:
Adv. A.D. Collingwood

Instructed by Legal Aid

Durban

RESPONDENT:

Adv. Ngcobo

Instructed by the Director of Public Prosecutions,

Pietermaritzburg