On the late afternoon of 25 February 2013, three appellants (Mr Bhola, Mr Mnthungwa and Mr Khoza) attempted to carry out an armed robbery at a jewellery store in Piet Retief. The attempt was thwarted when the wife of the store owner pressed the panic button of the alarm system, activating the siren. Upon hearing the alarm, the three perpetrators fled the jewellery store empty-handed. The next morning, they were arrested by police at a nearby filling station. They appeared before the trial court and were charged with attempted robbery with aggravating circumstances. All three pleaded not guilty but were subsequently convicted. The trial court sentenced the second and third appellants to 15 years' imprisonment each, and the first appellant to 20 years' imprisonment based on his previous convictions. The trial court applied minimum sentences under s 51(2) of the Criminal Law Amendment Act 105 of 1997. Applications for leave to appeal against convictions and sentences were refused by the trial court. The Gauteng Division, Pretoria granted leave to appeal sentences only but dismissed the appeal. The appellants then sought special leave to appeal to the Supreme Court of Appeal.
The appeal was upheld. The order of the high court (Gauteng Division, Pretoria) was set aside. The sentences imposed by the trial court were set aside and replaced as follows: the second and third appellants were each sentenced to 8 years' imprisonment; the first appellant's sentence was substituted with a sentence of 13 years' imprisonment.
The offence of attempted robbery with aggravating circumstances is not included in the list of offences specified in Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the Minimum Sentences Act), and therefore minimum sentences prescribed by s 51(2) of that Act do not apply to such offences. Courts err in law when they impose sentences on the basis that minimum sentences are statutorily prescribed for offences not listed in the relevant Schedule. Sentences must be proportionate to the gravity of the offence committed. Where a trial court has imposed a sentence that is totally disproportionate to the gravity of the offence, an appellate court is entitled to interfere and impose an appropriate sentence afresh.
The court observed that recidivism is a relevant factor warranting a harsher sentence when considering appropriate sentencing. In this case, the first appellant's previous convictions justified a significantly harsher sentence (13 years) compared to the second and third appellants (8 years each), even though all three were convicted of the same offence arising from the same incident. This reflects the principle that an offender's criminal history is a material consideration in determining an appropriate sentence, even where mandatory minimum sentences do not apply.
This case is significant in South African criminal law and sentencing jurisprudence as it clarifies the scope and application of the Minimum Sentences Act, specifically s 51(2). It establishes that attempted robbery with aggravating circumstances does not fall within the offences listed in Part II of Schedule 2 of the Minimum Sentences Act and therefore does not attract mandatory minimum sentences under that provision. The case also demonstrates the appellate court's role in ensuring proportionality in sentencing and correcting errors where courts incorrectly apply mandatory minimum sentence provisions. It reinforces the principle that sentences must be proportionate to the gravity of the offence committed and highlights the importance of proper interpretation of sentencing legislation.