Gilbert Ngwako Tlhako v The State

The appellant was convicted in the Polokwane Regional Court on two counts of robbery with aggravating circumstances committed in July and August 2001 at Seshego. In both incidents, the appellant acted as part of an armed gang that abducted victims at gunpoint, drove them to cemeteries at night, robbed them of personal property and motor vehicles, and left them stranded. He was acquitted on six other counts. Without prior warning that the State intended to rely on the Criminal Law Amendment Act 105 of 1997 (minimum sentencing legislation), the trial court sentenced him in November 2003 to 15 years’ imprisonment on each count, effectively 30 years’ imprisonment.

The appeal against sentence was upheld. The sentences imposed by the trial court were set aside and replaced with sentences of 10 years’ imprisonment on each of counts 5 and 8, to run consecutively (effective 20 years). The appellant was declared unfit to possess a firearm, and the sentences were ante-dated to 15 December 2003.

The case reaffirms that where the State intends to rely on the minimum sentencing regime under the Criminal Law Amendment Act 105 of 1997, the accused must be informed timeously, failing which the Act cannot be applied. It underscores that fairness in sentencing forms part of the constitutional right to a fair trial and that failure to give notice constitutes a material misdirection justifying appellate interference.