Toubie v The State

The appellant participated with others in an armed robbery at a clothing store in Johannesburg in 1999. During the robbery and ensuing shoot-out with security officers, several bystanders were injured and one passer-by was killed. The appellant was apprehended after being shot. He was convicted in the South Gauteng High Court of robbery with aggravating circumstances, murder, attempted murder, and unlawful possession of a firearm and ammunition. The trial court imposed sentences totalling an effective 26 years’ imprisonment. Leave to appeal was granted only against conviction, not sentence. On appeal, the full bench set aside some convictions and, invoking appellate powers, reconsidered sentence and imposed harsher sentences under the Criminal Law Amendment Act 105 of 1997, including life imprisonment for murder. The appellant appealed to the Supreme Court of Appeal, challenging the competence of the full court to interfere with sentence and raising issues regarding the minimum sentencing regime.

The appeal was upheld. The sentences imposed by the full court were set aside and replaced with sentences totalling an effective 30 years’ imprisonment, antedated to 4 September 2001.

The case clarifies the wide powers of South African appellate courts to interfere with sentence in order to prevent injustice, even where sentence is not formally appealed. It also reinforces the principle that an accused must be properly informed of the State’s reliance on the minimum sentencing regime, failing which sentencing under the Criminal Law Amendment Act is impermissible. The judgment affirms fair trial rights in sentencing and guides courts on handling irregularities relating to minimum sentences.