Johannes Petrus Basson and Pieter Johannes Hendrik du Plessis v The State

The two appellants were convicted by the Pretoria Regional Court on 8 August 2003 of four counts of robbery with aggravating circumstances and one count of theft of a motor vehicle. The first appellant was also convicted of attempted murder (later altered to assault with intent to do grievous bodily harm). The offences occurred between January and October 2001, and involved stopping trucks by pretending to be traffic officers, forcefully robbing drivers, and using violence. The first appellant was originally sentenced to 50 years' imprisonment and the second appellant to 40 years' imprisonment. On appeal to the High Court, these were reduced to effective terms of 25 and 24 years respectively. However, both appellants were also serving separate sentences imposed by the Brits Regional Court for other robbery convictions - 15 years for the first appellant (imposed 29 May 2003) and 12 years for the second appellant (imposed 18 February 2003). Neither the trial court nor the High Court on appeal had ordered these Brits sentences to run concurrently with the later sentences. The appellants sought leave to appeal to have portions of the sentences run concurrently to avoid a cumulative effect that would result in imprisonment of 40 and 36 years respectively.

• Whether the cumulative effect of multiple sentences imposed by different courts for related offences committed during the same period resulted in a disproportionately severe punishment
• Whether portions of effective sentences should be ordered to run concurrently with previous sentences to avoid excessive cumulative imprisonment
• The proper approach to sentencing where an accused is convicted of multiple serious offences committed as part of a series
• Application of minimum sentence legislation under section 51 of the Criminal Law Amendment Act 105 of 1997

The appeal succeeded in part. The Court ordered that: (1) For the first appellant, sentences in counts 1, 2, 3, 5 and 6 shall run concurrently with count 4, save that one year of each sentence shall be served consecutively; (2) For the second appellant, sentences in counts 1, 2, 5 and 6 shall run concurrently with count 4, save that one year of each sentence shall be served consecutively; (3) For the first appellant, 15 years of the cumulative 25-year sentence shall run concurrently with the Brits sentence; (4) For the second appellant, 12 years of the cumulative 24-year sentence shall run concurrently with the Brits sentence; (5) All sentences were backdated to the date of original imposition. The effective imprisonment term is 25 years for the first appellant and 24 years for the second appellant.

Where an accused person is serving multiple sentences imposed by different courts for related offences committed as part of the same criminal enterprise or during the same period, a court may order that portions of later sentences run concurrently with earlier sentences where the cumulative effect would result in a disproportionately severe punishment. The test is whether, had all offences been tried together, the accused would have received such a cumulative sentence. Courts have a discretion to structure concurrent and consecutive sentences to ensure that the ultimate effective sentence is proportionate to the totality of the criminal conduct, while still reflecting the seriousness of the offences and the interests of society.

The Court observed that unemployment, while unfortunate, provides no justification for turning to crime. The Court noted that the robberies were accompanied by unnecessary violence, including stabbing a victim and throwing him from a moving vehicle, and assaulting other victims with bolt cutters and booted feet. The Court remarked that considering the appellants' ages at sentencing (37 and 43), a cumulative sentence of 40 and 36 years would mean they would be 77 and 79 years old respectively at release, which would be very harsh. The Court also noted an error in the High Court's judgment where it referred to effective sentences of 20 and 19 years when the correct effect of its order was 25 and 24 years respectively.

This case establishes important principles regarding the cumulative effect of multiple sentences imposed by different courts for related offences committed during the same criminal enterprise. It demonstrates the courts' willingness to intervene where the mechanical addition of sentences, without consideration of their cumulative effect, would result in disproportionate punishment. The judgment reinforces the principle that courts must consider the totality of sentences and may order concurrent service of portions of sentences to achieve proportionality, even where the sentences were imposed by different courts at different times. It provides guidance on balancing the seriousness of crimes, the interests of society, and the principle against excessive punishment.