Kubheka and Another v The State

On 12 October 2017, the two appellants were convicted in the Regional Division, North Gauteng, Randburg, of theft of a cellular telephone and an iPod from a motor vehicle. The appellants had jammed the locking signal on the remote control of a Mercedes Benz parked at the Randburg Magistrates' Court parking area. A security officer observed them via CCTV monitors leaving their Chevrolet Aveo and opening the Mercedes Benz door. The stolen iPod was found in the backseat of the appellants' hired vehicle, and one appellant demonstrated to police how they used remote jammers to prevent vehicle doors from locking. The first appellant was 44 years old, a B. Com and B. Sc. Engineering graduate, director of his own engineering company, earning R1 million per annum, father of eight children, and a first offender. The second appellant was 46 years old, married with two dependent children, ran a marketing and catering company with his wife, earning R69,000 per month, and had two previous convictions for fraud and theft from over 17 years prior. On 23 January 2018, the first appellant was sentenced to 4 years' imprisonment with 2 years suspended for 5 years, and the second appellant to 4 years' direct imprisonment. Both appealed to the High Court against conviction and sentence. The High Court dismissed the appeal against conviction but increased the sentences to 5 and 8 years' direct imprisonment respectively.

• Whether the High Court was entitled to interfere with the sentences imposed by the Regional Court
• Whether the High Court erred in increasing the sentences on appeal
• What are the limits of an appellate court's power to interfere with sentences imposed by a lower court
• Whether the Regional Court misdirected itself in imposing the original sentences

The appeals against the increased sentences imposed by the High Court were upheld. The order of the High Court in respect of sentence was set aside and replaced with an order dismissing the appeals against sentence. The result was that the sentences imposed by the Regional Division, North Gauteng, Randburg, were reinstated: (a) Accused 1 was sentenced to 4 years' imprisonment of which 2 years was suspended for 5 years on condition that he not be convicted of theft or any offence involving dishonesty during the suspension period; (b) Accused 2 was sentenced to 4 years' imprisonment; (c) In terms of s 103(1) of the Firearms Control Act 60 of 2000, each accused was declared unfit to possess a firearm.

An appellate court may only interfere with a sentence imposed by a lower court where: (1) there has been an irregularity that results in a failure of justice; (2) the court below misdirected itself to such an extent that its decision on sentence is vitiated; or (3) the sentence is so disproportionate or shocking that no reasonable court could have imposed it. A court of appeal may not substitute a sentence simply because it prefers it, as this would usurp the discretion of the trial court. Where a trial court has properly exercised its discretion by taking into account all relevant factors including the personal circumstances of the accused, aggravating and mitigating factors, and the purposes of punishment (rehabilitation, preventative deterrence and retribution), an appellate court has no basis to interfere with the sentence imposed.

The Court noted that while one must be cautious about comparisons with other cases and each case must be decided on its own merits, counsel for the State conceded that the increased sentences were more severe than what high courts had in the past held to be appropriate in cases of this kind. The Court also observed that the High Court had made a similar error of unjustifiably increasing a sentence on appeal in S v De Beer [2017] ZASCA 183; 2018 (1) SACR 229 (SCA), which was later overturned by this Court. The Court also commented that correctional supervision was not a viable sentencing option in this case, given that the appellants were motivated by greed rather than need, considering the prevalence and seriousness of the offence.

This case reinforces the well-established principle in South African criminal law that appellate courts have limited powers to interfere with sentences imposed by trial courts. It emphasizes that an appellate court may not simply substitute a sentence because it prefers it, but must identify a material misdirection, irregularity, or manifest disproportionality before interfering. The judgment serves as a reminder to appellate courts to respect the sentencing discretion of trial courts and not to usurp that discretion by over-emphasizing particular factors (such as the seriousness of the offense) without proper justification. It also demonstrates the importance of proportionality in sentencing and the need to balance all relevant factors, including both aggravating and mitigating circumstances.