Joshua Nemutandani v The State

On 21 December 2003, the appellant and four co-accused were drinking at the Tshivhumba Bar Lounge. The deceased was also present drinking expensive liquor with friends. The group decided to rob the deceased because he appeared to have money. At around 21h00, when the deceased left the bar with three companions, the appellant and his co-accused followed. The appellant struck the deceased with a beer bottle, then obtained a knife from a co-accused (Mudau) and stabbed the deceased three times. The appellant removed the deceased's white canvas shoes. The deceased died that night from the stab wounds. On 10 November 2004, the appellant (21 years old at the time) and two co-accused (Mmboi and Mudau) were convicted in the Limpopo High Court before Makgoba AJ of murder and robbery with aggravating circumstances. The appellant was sentenced to 20 years' imprisonment for murder and 18 years' imprisonment for robbery, totaling 38 years as the sentences were not ordered to run concurrently. Almost 11 years later, leave to appeal on sentence only was granted. One co-accused (Mmboi) had his conviction set aside on appeal, while another (Mudau) had his robbery sentence ordered to run concurrently with the murder sentence.

• Whether the trial court committed a misdirection in not ordering the sentences for murder and robbery to run concurrently
• Whether the cumulative sentence of 38 years' imprisonment was unduly harsh and appropriate
• Whether concurrent sentences should be imposed when offences are inextricably linked in terms of locality, time, protagonists and common intent

1. The appeal against sentence was upheld to the extent that the sentence imposed on count 2 (robbery) was ordered to run concurrently with the sentence imposed on count 1 (murder). The appellant would serve an effective term of 20 years' imprisonment instead of 38 years. 2. The sentence was antedated in terms of s 282 of the Criminal Procedure Act 51 of 1977 to 10 November 2004.

When offences are inextricably linked in terms of locality, time, protagonists and common intent, sentences must be ordered to run concurrently. A trial court commits an irregularity when it fails to order concurrent sentences in such circumstances and fails to provide reasons for imposing consecutive sentences or to consider the cumulative effect of the sentence imposed. In this case, where the murder was inextricably linked to the robbery (the deceased was killed during the robbery and robbed of his shoes), the sentences must run concurrently.

The court made obiter observations about the importance of realistic sentences that are not designed for public consumption, citing S v Mhlakaza. MBHA JA also noted approvingly the recognition in S v Senatsi that mercy can be accorded in sentencing through ordering concurrent sentences. The trial judge (Makgoba AJ) himself commented when granting leave to appeal that the sentence appeared to be 'shockingly inappropriate' and that another court could decide the matter otherwise - this observation was noted by the Supreme Court of Appeal. The court also noted that sentences should have a rehabilitative effect and that excessively long sentences (cumulatively in excess of 25 years) should be avoided.

This case reinforces important principles in South African sentencing law. It emphasizes that trial courts must consider ordering concurrent sentences where offences are inextricably linked by locality, time, protagonists and common intent. It demonstrates the appellate court's power to intervene where trial courts fail to consider the cumulative effect of sentences or provide reasons for imposing consecutive sentences. The judgment reiterates warnings against excessively long sentences that lack rehabilitative effect and may appear to be designed for public consumption rather than legitimate penological objectives. It also highlights the role of mercy in sentencing and the importance of ensuring sentences are realistic and proportionate, particularly for young offenders.