S v Mbekisa

• Jurisdiction: South Africa
• Judge: Van Rooyen AJ
• Judgment Date: 09 February 2009
• Docket Number: A 324/2008
• Hearing Date: 09 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0079 (T)

Van Rooyen AJ:

[1] The appellant was convicted of robbery with aggravating circumstances of a cell phone from the complainant, who was walking with a friend in a street in Pretoria at more or less 18:47 on the 27th July 2005. He was sentenced to 15 years imprisonment, the regional magistrate not having found substantial and compelling circumstances. The appellant filed an appeal and two Judges of this Court allowed the appeal against sentence.

[2] The learned regional magistrate accentuated the widespread theft and robbery of cell phones and that strict measures should be take to curb this crime. The appellant was, according to his testimony, also aware of this evil.

[3] The learned magistrate referred to testimony of the complainant that the appellant had taken out a "gun" and, having realized that "maybe he is going to do something stupid, then I took out my phone. He did not request for money. Then I gave him the phone. Then after that he ran across the other section of the flats. Then he went underneath the

2009 JDR 0079 p2

Van Rooyen AJ

Nelson Mandela Drive bridge." A little later in her evidence she added that the appellant had also said that he was "going to shoot our brains out" if she did not hand the phone to him. She also testified that she cried when she got home and related the incident to her husband. This was confirmed in the testimony of the husband.

[3] In S v Malgas 2001 (2) SA 1222 (SCA) Marais JA stated as follows:

"A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. . . . However even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'.

The learned Judge of Appeal also said the following:

"[22] ... The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the...