Shubane v The State

On 2 June 2004, two appellants (Madala Goodwill Shubane and George Mondlana) and a confederate accosted Mr Mohammed Jogee in his garage at home during the early morning as he was about to take his child to school. The robbers were armed with a firearm and knives. They assaulted Mr Jogee, tied him up with a computer cable and pushed him into his motor vehicle. The robbers entered the house where they assaulted Mr Jogee's wife and elderly mother. One robber pointed a firearm at the head of the family's seven-year-old son, demanding money. The robbery was interrupted by neighbours who heard the commotion. The robbers fled with a mobile phone, a wallet containing R200 and bank cards, a ring and car keys. The wallet and ring were never recovered. The robbery was carefully planned and premeditated. Both appellants were first offenders - the first appellant was 28 years old, unemployed and single with no dependants; the second appellant was 31 years old, single with three minor children, working as a hawker earning R2,000 per month. They had spent 10 and 12 months respectively in custody before trial. They showed no remorse.

• Whether a sentencing officer must forewarn an accused person of a contemplation to impose a sentence in excess of the statutorily prescribed minimum sentence
• Whether a sentencing officer must provide reasons for imposing a sentence in excess of the prescribed minimum
• Whether substantial and compelling circumstances existed to deviate from the prescribed minimum sentence of 15 years' imprisonment
• Whether a sentence of 17 years' imprisonment for robbery with aggravating circumstances was appropriate in the circumstances

The appeal against sentence was dismissed. The sentence of 17 years' imprisonment imposed by the Benoni Regional Court and confirmed by the North Gauteng High Court, Pretoria was upheld.

There is no duty in South African law upon a sentencing officer to forewarn an accused person of a contemplation to impose a sentence in excess of the statutorily prescribed minimum sentence, nor is there a requirement to provide an opportunity for submissions on why such a sentence should not be imposed. When an accused person is apprised at the commencement of trial of the sentencing provisions in sections 51 and 52 of the Criminal Law Amendment Act 105 of 1997 read with Schedule 2, this by necessary implication includes the provisions relating to a Regional Magistrate's power to impose a sentence not exceeding five years more than the prescribed minimum sentence of imprisonment. A sentencing officer must, however, provide adequate reasons for imposing a sentence in excess of the prescribed minimum; failure to do so may justify a conclusion that the sentence was arrived at arbitrarily and warrant interference on appeal.

The court observed that it may be a salutary practice for a court to put its views to a litigant or their representative during argument if it holds a view adverse to them, but where such a view is in its embryonic stage, a failure to do so will not, without more, constitute a defect in the proceedings or result in a failure of justice which vitiates the sentence. The court noted that it could 'hardly imagine more reprehensible conduct than the assault of an elderly lady and the pointing of a firearm against the head of a young child in the course of an armed robbery inside a private home,' emphasizing the particular heinousness of crimes involving violence against vulnerable victims. The court also observed that while no evidence was led regarding the victims' physical injuries, the emotional trauma suffered was unquestionable, particularly in the case of the elderly mother and the seven-year-old child.

This case is significant in South African criminal law and sentencing jurisprudence for several reasons: (1) It authoritatively confirms that there is no requirement in South African law for a sentencing officer to forewarn an accused person or their legal representatives of a contemplation to impose a sentence in excess of the statutorily prescribed minimum sentence, following S v Mthembu and overruling the contrary position in S v Mbatha. (2) It clarifies that when an accused is informed of the sentencing provisions under sections 51 and 52 of the Criminal Law Amendment Act 105 of 1997 and Schedule 2 at the commencement of trial, this by necessary implication includes notice of the possibility of a sentence exceeding the minimum. (3) It emphasizes the importance of sentencing officers providing adequate reasons for imposing sentences in excess of prescribed minimums, although no specific forewarning is required. (4) It demonstrates the approach courts take in weighing aggravating and mitigating circumstances in sentencing for serious violent crimes, particularly where vulnerable victims (elderly persons and children) are traumatized. (5) It confirms that the status of being a first offender, while a mitigating factor, is already accounted for in the Act's sentencing structure and cannot alone constitute a substantial and compelling circumstance for deviation from minimum sentences.