IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:  A101/2019

DATE:  2019.11.12

In the matter between

SIFISO SHABANGU                                                                                                Applicant

and

STATE                                                                                                                 Respondent

JUDGMENT

UNTERHALTER J:   The appellant was convicted on three counts, one of housebreaking with intent to steal, theft and arson. The learned magistrate in the court below considered the personal circumstances of the appellant, but in addition referenced the fact that there was no expression of remorse on the part of the appellant, and by reason of his conduct in burning down the

complainant’s house, the Appellant not only destroyed the complainant’s property and its contents, but potentially endangered other property in the area. 

          The learned magistrate indeed gained the impression that the appellant was, to use the magistrate’s words: “A very dangerous man”.  The magistrate took account of the previous conviction of the appellant and in the light of that, considered that the housebreaking and theft charges should attract a sentence of eight years imprisonment.  The learned magistrate in addition imposed a period of imprisonment of four years in respect of the conviction in respect of arson. Cumulatively, therefore, there was the imposition of a sentence of 12 years of imprisonment. 

          Mr Buthelezi, who appears for the appellant, makes the submission that the learned magistrate by failing to have the sentence for arson run concurrently with the eight years of imprisonment imposed in respect of the theft and housebreaking, imposed a sentence that was too harsh, and therefore this court should intervene to rather allow for an effective sentence of eight years. 

          The basis upon which Mr Buthelezi makes the submission that he does is that the housebreaking, theft and then arson all formed part of a single course of conduct, and that the failure to have those sentences run concurrently gives rise to significant disproportionality as to the effect of sentence that the appellant is required to serve in prison as a result of the sentence imposed.  Mr Buthelezi also submits that the appellant acted in anger, having been displaced from the relationship that he once had with the complainant. 

          Our task is to consider whether the failure by the magistrate to render a sentence that would have the sentences run concurrently in respect of the three convictions gives rise to an outcome that is so inappropriate and shockingly disproportionate that we should intervene to reduce the sentence to an effective eight year term of imprisonment. 

          There is no question that the learned magistrate considered all the factors that bore upon the question of the sentence.  What appears to have weighed heavily with the magistrate was the fact that the appellant did not simply break into the complainant’s house and rob that house, but chose to engage in an act of vengeance by way of burning down the house and endangering persons in the area.  The magistrate formed the view that this conduct suggested that the appellant was a dangerous person, and that the appellant acted with malice and rancour towards the complainant. 

          There is in my judgment no requirement that the court had to, in order to impose a proportionate sentence, have the sentences run concurrently so as to impose an effective eight year sentence.  While it is true that the offences formed part of a single course of conduct, the arson was an additional form of conduct that had particularly grave consequences, and does bear out the conclusion of the magistrate that the actions taken by the appellant posed a danger to property and was an extreme form of conduct. 

          Had I been sitting as the court of first instance, I may have shown greater leniency towards the appellant than the magistrate did, but on the basis of the considerations the magistrate took into account and coming to the conclusion that an effective 12 year sentence was appropriate, I cannot find that by so sentencing the appellant, the sentence is shockingly inappropriate such as to warrant intervention by this court.

          In these circumstances, I find that there is no warrant for intervention in this case.  The appellant, apart from the conduct he engaged upon, also had a previous sentence, and that too indicates a basis for a longer term of imprisonment by reason of what the appellant did in this case.  For these reasons, the appeal is dismissed.

JUSTICE PILLAY:   I concur.

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ORDER

Application is dismissed.

……………………………………………

UNTERHALTER J

JUDGE OF THE HIGH COURT

DATE: …………………………….