Mabena v The State

On 5 March 2010, two armed robbers, Mr Vusi Mabena (the appellant) and Mr Mpumelelo Ncube (co-accused), entered a Nashua Mobile shop at the Blairgowrie Shopping Centre. They robbed the owner at gunpoint of a Sony Ericson cellphone, laptop computer, airtime vouchers, cash, a gold chain and a wallet. When they fled, they were chased by two ADT security guards at whom each robber fired one gunshot. The security guards overwhelmed them and recovered all stolen items except the cellphone, then held them until police arrived. On 30 July 2014, the Regional Court, Johannesburg convicted both of robbery with aggravating circumstances and attempted murder. The trial court sentenced the appellant to 15 years' imprisonment for robbery with aggravating circumstances and 5 years' imprisonment for attempted murder. Crucially, the trial court did not order these sentences to run concurrently for the appellant (though it did for the co-accused). The appellant had spent 4 years and 4 months in custody pending trial. The high court dismissed the appeal but incorrectly stated that the trial court had ordered concurrent sentences for the appellant.

• Whether the trial court should have ordered the sentence for attempted murder to run concurrently with the sentence for robbery with aggravating circumstances
• Whether the trial court misdirected itself in failing to consider the cumulative effect of the two sentences
• Whether the high court erred in its interpretation of the sentence imposed by the trial court

1. The late filing of the record was condoned and the appeal reinstated. 2. The appeal against sentence succeeded. 3. Paragraph 1 of the high court order was set aside and replaced with: (1.1) The appeal against conviction was dismissed; (1.2) The appeal against sentence succeeded; (1.3) The Regional Court sentence was set aside and replaced with: (a) 15 years' imprisonment for robbery with aggravating circumstances; (b) 5 years' imprisonment for attempted murder; (c) The 5 years' imprisonment to run concurrently with the 15 years' imprisonment (effective sentence: 15 years).

A trial court commits a misdirection when it fails to give proper consideration to the cumulative effect of multiple sentences and whether they should run concurrently. Where offences are closely related in terms of time and locality (such as attempted murder committed immediately after a robbery while fleeing the scene), and where an accused has already spent substantial time in custody pending trial, these factors weigh heavily in favor of ordering sentences to run concurrently. The failure to consider these factors and order concurrent sentences in such circumstances amounts to a misdirection that warrants appellate intervention.

The Court noted that the trial court had properly considered the triad factors in sentencing (the crime, the offender and the interests of society as established in S v Zinn 1969 (2) SA 537 (A)), and had given due consideration to mitigating and aggravating factors. The Court also referenced the minimum sentencing provisions under s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997, which require 15 years' imprisonment for a first offender convicted of robbery with aggravating circumstances unless substantial and compelling circumstances exist. The Court's decision to order concurrent sentences did not disturb the appropriateness of the individual sentence lengths (15 years for robbery and 5 years for attempted murder), but rather addressed how they should operate in relation to each other.

This case provides important guidance on sentencing principles in South African criminal law, specifically regarding when concurrent sentences should be imposed for related offences. It emphasizes that courts must consider the temporal and spatial relationship between offences and the cumulative effect of sentences. The case also demonstrates that failure to properly consider whether sentences should run concurrently constitutes a misdirection justifying appellate intervention. It reinforces the principle that where crimes are closely connected in time and place (here, attempted murder committed while fleeing immediately after a robbery), and where the accused has already spent substantial time in custody awaiting trial, concurrent sentencing may be appropriate to avoid disproportionate punishment.