S v Ntuli

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Magardie AJ
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3190 (GP)
• Hearing Date: 18 October 2022
• Docket Number: A48/2022
• Court: Gauteng High Court, Pretoria

Magardie AJ:

1.

The Appellant, an adult male person who at the time of the incident was 27 years of age, was arraigned in the Pretoria Regional Court on the charge of robbery with aggravating circumstances, read with the provisions of section 51(2) of the Criminal Law Amendment Act, Act 105 of 1997.

2.

The Appellant was legally represented throughout the proceedings. On 07 May 2019, the Appellant pleaded guilty to the charge of robbery with aggravating circumstances. The Appellant gave a concise plea explanation in terms of section 112(2) of the Criminal Procedure Act, Act 51 of 1977, in which he admitted to having committed the crime.

3.

At the end of the trial, and on 07 May 2019, the Appellant was found guilty on the charge of robbery with aggravating circumstances. On 07 May 2019, the Appellant was sentenced to 10 (ten) years imprisonment.

4.

From the record it appears that, on 22 October 2018, the Appellant was sentenced to 5 (five) years imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act, Act 51 of 1977, for another crime (common robbery). At the time of sentencing by the court of first instance, the Appellant was therefore already serving a 5 (five) year sentence.

5.

The court of first instance did not make an order that, in terms of section 280 of the Criminal Procedure Act, 51 of 1977, the 10 (ten) year sentence should run

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Magardie AJ

concurrently with the 5 (five) year sentence the Appellant had already been serving at the time. The Appellant successfully sought leave to appeal against the 10 (ten) year sentence, with leave from the court below.

6.

From the record it is clear that it was not the intention of the court below to have the Appellant serve a cumulative sentence of 15 (fifteen) years. However, after the pronouncement, the court below was functus officio and could not rectify its own sentence hence this court is seized with the revisiting of the sentence.

7.

The following is evident from the record, at pg 33, lines 7 to 14:

“The accused application indeed has merit in what he is saying and the court would have had it known about the full length of the sentence, would have ordered that the sentences run concurrently. As much as I would like to correct the sentence now, I do not have the authority to do so, however the only thing that I can do in this instance is allow leave to appeal, which is granted on sentence.”

8.

In addressing sentence one must be mindful of the principles as set out in S v Rabie. [1]

9.

It is trite that sentencing falls primarily within the discretion of the trial court. In considering sentence, the trial court should take into account the crime, the criminal and the interest of society, the one not outweighing the other. The

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Magardie AJ

approach of the triad consisting of the crime, the offender and the interest of society was enunciated in S v Zinn. [...