Bhola and Others v S (800/18; 123/18; 346/18) [2018] ZASCA 121 (21 September 2018)

Bhola and Others v S (800/18; 123/18; 346/18) [2018] ZASCA 121 (21 September 2018)

The Supreme Court of Appeal held that attempted robbery with aggravating circumstances is not included in Part II of Schedule 2 of the Minimum Sentences Act and therefore does not attract a mandatory minimum sentence. The trial court materially misdirected itself by applying the minimum sentencing regime to the appellants. This misdirection vitiated the sentencing discretion, entitling the appellate court to consider sentence afresh. The court found that, although the offence was serious and involved aggravating circumstances such as the use of firearms and threats of violence, no physical harm was caused. The first appellant's previous convictions warranted a harsher sentence than his...

Citation
[2018] ZASCA 121
Parties
Appellant: Aubrey Thamsanqa Bhola; Appellant: Nkosingiphile Patrick Mnthungwa; Appellant: Lazarus Khoza; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 September 2018
Case Number
800/18; 123/18; 346/18
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only, Following Conviction for Attempted Robbery With Aggravating Circumstances.
Outcome
Appeal upheld. Sentences imposed by the trial court set aside and replaced with new sentences within the Regional Court's jurisdiction.
Judges
Shongwe, Majiedt, Van der Merwe, Molemela, Makgoka
Legal Topics
Minimum Sentences Act, Attempted Robbery, Sentencing Discretion, Aggravating Circumstances
Criminal Law Minimum Sentences Act Attempted Robbery Sentencing Discretion Aggravating Circumstances

Case Brief

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Parties

Aubrey Thamsanqa Bhola

Appellant

Nkosingiphile Patrick Mnthungwa

Appellant

Lazarus Khoza

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence Only, Following Conviction for Attempted Robbery With Aggravating Circumstances.

Legal Issues

  1. 1 Does the offence of attempted robbery with aggravating circumstances attract a mandatory minimum sentence under the Criminal Law Amendment Act 105 of 1997?
  2. 2 Was the trial court correct in applying the minimum sentencing regime to the appellants?
  3. 3 Are the sentences imposed by the trial court appropriate in light of the facts and applicable law?

Ratio Decidendi

The Supreme Court of Appeal held that attempted robbery with aggravating circumstances is not included in Part II of Schedule 2 of the Minimum Sentences Act and therefore does not attract a mandatory minimum sentence. The trial court materially misdirected itself by applying the minimum sentencing regime to the appellants. This misdirection vitiated the sentencing discretion, entitling the appellate court to consider sentence afresh. The court found that, although the offence was serious and involved aggravating circumstances such as the use of firearms and threats of violence, no physical harm was caused. The first appellant's previous convictions warranted a harsher sentence than his...

Court Disposition

Appeal upheld. Sentences imposed by the trial court set aside and replaced with new sentences within the Regional Court's jurisdiction.

Orders

  • The appeal is upheld.
  • The order of the high court is set aside and substituted with the following: