THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 073/14

In the matter between

Not Reportable

MADALA GOODWILL SHUBANE

FIRST APPELLANT

GEORGE MONDLANA

SECOND APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Shubane v The State (073/14) [2014] ZASCA 148 (26
September 2014)

Coram:
Shongwe, Majiedt and Mbha JJA

Heard:
10 SEPTEMBER 2014

Delivered:
26 SEPTEMBER 2014

Summary:
Sentence – Robbery with aggravating circumstances –
Premeditated, well planned robbery – Firearm and knives used –
Violence inflicted upon, inter alia, elderly woman – Gun held against
head of seven year old child – 17 years’ imprisonment appropriate – no
requirement in our law that a sentencing officer should forewarn an
accused person of a contemplation to impose a sentence in excess of
the statutorily prescribed minimum sentence.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Preller et Pretorius JJ,
sitting as court of appeal):

The appeal against sentence is dismissed.

______________________________________________________________

JUDGMENT
______________________________________________________________

Majiedt JA (Shongwe and Mbha JJA concurring):

[1] The appellants, Mr Madala Goodwill Shubane and Mr George
Mondlana, appeal against the sentence of 17 years‟ imprisonment imposed
upon them in the Benoni Regional Court for robbery with aggravating
circumstances, confirmed on appeal to the North Gauteng High Court,
Pretoria (Pretorius J, Preller J concurring). The first appellant appeals with the
leave of the high court and the second appellant with the leave of this court.1

[2] The appellants and a confederate, the erstwhile accused number one,
accosted Mr Mohammed Jogee in his garage at home during the early
morning of 2 June 2004 as Mr Jogee was about to take his child to school.
One of the robbers was armed with a firearm and the other two with knives.
Mr Jogee was assaulted, tied up with a computer cable and pushed into his
motor vehicle. Two of his assailants entered the house and he was later also
taken there by the third attacker. Inside the house Mr Jogee‟s wife and his
elderly mother were also assaulted by the robbers. One of the robbers pointed

1 The high court initially refused the second appellant‟s application for leave to appeal, but
purported to „recall‟ that order when subsequently granting the first appellant leave to appeal.
The high court was functus officio when it purported to „recall‟ its first order and granted the
second appellant leave to appeal to this court, having earlier granted such leave to the first
appellant. The second appellant‟s subsequent petition for leave to appeal was granted by this
court.

the firearm at the Jogees‟ seven year old son, demanding money. The boy
directed the robbers to his coin collection, but they were not interested in it.
The Jogee family‟s ordeal ended when their neighbours who had heard the
commotion intervened, causing the robbers to flee, taking with them a mobile
phone, a wallet containing R200 in cash and bank cards, a ring and car keys.
The wallet and the ring were never recovered.

[3] The Regional Magistrate took into account the aggravating and
mitigating circumstances before imposing sentence. In respect of the latter he
had regard to the appellants‟ personal circumstances which were as follows:
(a)
The first appellant was 28 years old, unemployed and single with no
dependants. He earned approximately R1 000 per month doing part-time jobs
and lived with his unemployed brother;
(b)
The second appellant was 31 years old, single and had three minor
children. He ran a small business as a hawker from which he earned R2 000
per month.

[4] Neither of the two appellants had any previous convictions and they
had spent ten months (the first appellant) and just under 12 months (the
second appellant) in custody before their trial was finalised. The Regional
Magistrate pertinently took these factors into account in his deliberations on a
suitable sentence.

[5] The following aggravating circumstances were taken into consideration
by the Regional Magistrate for sentencing purposes:
(a)
The fact that the wallet (and its contents) and the ring were never
recovered;
(b)
The invasion of the Jogees‟ home, which is supposed to be their safe
haven, by the armed robbers;
(c)
The assaults on the victims, particularly on Mr Jogee‟s elderly mother;
(d)
The shocking act of holding a firearm against a seven year old child‟s
head.

[6] In addition to these aggravating factors enumerated by the Regional
Magistrate, one also discerns from the record that the appellants have not
shown any remorse at all. A further aggravating factor is the fact that on the
evidence on record the robbery had clearly been carefully planned and was
thus premeditated.

[7] It was contended on behalf of the appellants that the Regional
Magistrate had misdirected himself by not forewarning the appellants that he
contemplated imposing a sentence in excess of the minimum sentence of 15
years statutorily prescribed for this type of offence.2 The appellants‟ legal
representatives should have been given an opportunity to make submissions
on why a sentence in excess of the prescribed minimum sentence should not
be imposed, so it was contended. These contentions are misplaced. There is
no duty in our law upon a sentencing officer to forewarn an accused person of
such a contemplation or to grant an opportunity for submissions to be made in
this regard. In Mthembu3 this court endorsed the view of the high court in that
matter (the Full Court consisting of Jappie, Swain and Gorven JJ)4 that no
such forewarning is required.5 And this court also upheld that Full Court‟s
finding that Mbatha,6 in which the contrary was earlier held, was wrongly
decided.7

[8] We are bound by this court‟s judgment in Mthembu which was, with
respect, correctly decided. Having earlier alluded to the divergent judgments
of the Full Courts in Mbatha and Mthembu, Ponnan JA and Petse AJA held as
follows:8
„It may well be a salutary practice for a court, if it holds a view adverse to a particular
litigant, to put that to the litigant or such litigant‟s representative during argument. But
we cannot imagine that where a view is just in its embryonic stage, a failure to do so,

2 Section 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (the Act) read with Part
II of Schedule 2 thereof.
3 S v Mthembu  2012 (1) SACR 517 (SCA).
4 S v Mthembu 2011 (1) SACR 272 (KZP).
5 S v Mthembu fn 3 above para 18.
6 S v Mbatha 2009 (2) SACR 623 (KZP) – a decision of the Full Court (Wallis J, van der
Reyden and Niles-Duner JJ concurring).
7 S v Mthembu fn 3 above para 18.
8 S v Mthembu fn 3 above para 18.

without more, would constitute a defect in the proceedings. In particular Wallis J‟s
approach, that the failure to apprise the defence of the fact that a higher sentence
than the minimum was in contemplation constitutes, without more, a defect in the
proceedings, cannot be endorsed. In our view such failure in and of itself will not
result in a failure of justice which vitiates the sentence. After all, any sentence
imposed, like any other conclusion, should be properly motivated (S v Maake 2011
(1) SACR 263 (SCA). And we should not lose from sight that our appellate courts
have, in terms of long standing practice, reserved for themselves the right to interfere
where a sentence has been vitiated by a material misdirection or where it is shocking
or startlingly inappropriate. As both Legoa and Ndlovu make plain, a “vigilant
examination of the relevant circumstances” is required. Here, the indictment was
explicit. It stated: “MURDER read with the relevant provisions of section 51 and
Schedule 2 of the Criminal Law Amendment Act 105 of 1997”. Thus, right from the
outset, the accused was informed in unambiguous terms that the state intended to
rely on the minimum sentencing provisions. No specific irregularity was alluded to in
argument. A careful perusal of the record reveals that there was none.‟
Counsel for the appellants sought to place reliance for his contentions on this
court‟s judgment in Maake.9 But, as this court demonstrated in Mthembu, the
Mbatha judgment was cited in Maake in a completely different context.10 The
reliance on Maake is therefore misconceived. In any event, when an accused
person is at the commencement of a trial apprised of the sentencing
provisions in sections 51 and 52 of the Act, read with Schedule 2, that by
necessary implication includes the provisions relating to a Regional
Magistrate‟s power to impose a sentence not exceeding five years more than
the prescribed minimum sentence of imprisonment.

[9] The second arrow to the appellants‟ bow was the contention that the
Regional Magistrate had failed to furnish reasons for imposing a sentence in
excess of the minimum prescribed by law. If correct, that would justify a
conclusion that the sentence was arrived at arbitrarily and may very well result
in interference on appeal.11 But this submission is devoid of merit. The record
reflects that the Regional Magistrate set out in his judgment on sentence in

9 S v Maake 2011 (1) SACR 263 (SCA).
10 S V Mthembu fn 3 above para 19.
11 S v Maake above para 28; S v Mathebula & another 2012 (1) SACR 374 (SCA) paras 11
and 12.

some detail the aggravating factors referred to above which impelled him not
to deviate from the prescribed minimum sentence. He then made reference to
the subsection in the Act which vested in him the power to impose a sentence
in excess of the prescribed minimum. He regarded these aggravating factors,
particularly the violent assault on an elderly lady and the pointing of a firearm
at a seven year old boy‟s head, as so heinous that it warranted a sentence in
excess of the 15 years‟ imprisonment prescribed by law. This ground of
appeal must therefore also fail.

[10] The last aspect for consideration is whether the sentence of 17 years‟
imprisonment warrants interference on appeal. Counsel for the appellants
argued without much vigour that there are substantial and compelling
circumstances to deviate from the prescribed minimum sentence. These were
contended to be the fact that the appellants had spent more than a year in
custody awaiting trial, that they were first offenders and that the State had
failed to adduce any evidence regarding the injuries sustained by the victims.
Short shrift can be made of the first two aspects. As stated, the Regional
Magistrate pertinently took into consideration the time the appellants had
spent in custody before sentencing. And the contention is also factually
incorrect – as indicated above the first appellant had spent ten months and
the second appellant just under a year in custody at the time when they were
sentenced. As far as the second aspect is concerned, the Act specifically
provides for harsher sentences to be imposed on second and third
offenders.12 A first offender is therefore already given the benefit of a lesser
sentence by the Act itself. The fact that the appellants have no previous
convictions is most certainly a positive mitigating factor in their favour, but it
can hardly be a compelling or substantial circumstance on its own.

[11] The last factor contended for is somewhat startling. While it is true that
no evidence was led regarding the victims‟ physical injuries, the emotional
trauma which they must have suffered is unquestionable. This is particularly
so in the case of Mr Jogee‟s mother and his seven year old son. One can

12 Section 51(2)(a)(ii) and (iii) of the Act, read with Part II of Schedule 2.

hardly imagine more reprehensible conduct than the assault of an elderly lady
and the pointing of a firearm against the head of a young child in the course of
an armed robbery inside a private home. I am satisfied on the facts of this
case that the Regional Magistrate was correct in finding that no substantial
and compelling circumstances exist and that a sentence in excess of the
prescribed minimum is warranted. The gravity of the offence and the
circumstances under which it has been committed justify the sentence
imposed. And the high court was correct in dismissing the appeal. The appeal
is thus devoid of merit.

[12] I issue the following order:

The appeal against sentence is dismissed.

______________________
S A MAJIEDT
JUDGE OF APPEAL

APPEARANCES

For Appellants:
J Mojuto
Instructed by:

Legal Aid SA, Pretoria

Bloemfontein Justice Centre, Bloemfontein

For Respondent:
P W Coetzer
Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein