Mdingi en Anders v S (A766/2010) [2011] ZAWCHC 520 (4 November 2011)

Mdingi en Anders v S (A766/2010) [2011] ZAWCHC 520 (4 November 2011)

The appeal against sentence succeeded because the cumulative effect of the sentences imposed by the trial court was found to be unduly harsh and shockingly inappropriate. The appellate court held that more counts should have been taken together for sentencing purposes and that certain sentences should run concurrently. The court also considered the four-year period the appellants spent in custody awaiting trial as a mitigating factor. The sentences were accordingly adjusted so that the effective term of imprisonment was reduced from 35 years to 21 years, without undermining the seriousness of the offences or the deterrent effect of the punishment.

Citation
[2011] ZAWCHC 520
Parties
Appellant: Andile Mdingi; Appellant: Abdul Tshambo; Appellant: Myataza Zwelendaba; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 November 2011
Case Number
A766/2010
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentences substituted.
Judges
Fortuin, Van Staden
Legal Topics
Sentencing Principles, Robbery With Aggravating Circumstances, Attempted Murder, Unlawful Possession of Firearm, Unlawful Possession of Ammunition, Minimum Sentences Legislation
Criminal Law Sentencing Principles Robbery With Aggravating Circumstances Attempted Murder Unlawful Possession of Firearm Unlawful Possession of Ammunition Minimum Sentences Legislation

Case Brief

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Parties

Andile Mdingi

Appellant

Abdul Tshambo

Appellant

Myataza Zwelendaba

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the cumulative effect of the sentences imposed by the trial court was shockingly inappropriate.
  2. 2 Whether the sentences should have been ordered to run concurrently for certain counts.
  3. 3 Whether the period spent in custody awaiting trial should be considered in mitigation of sentence.

Ratio Decidendi

The appeal against sentence succeeded because the cumulative effect of the sentences imposed by the trial court was found to be unduly harsh and shockingly inappropriate. The appellate court held that more counts should have been taken together for sentencing purposes and that certain sentences should run concurrently. The court also considered the four-year period the appellants spent in custody awaiting trial as a mitigating factor. The sentences were accordingly adjusted so that the effective term of imprisonment was reduced from 35 years to 21 years, without undermining the seriousness of the offences or the deterrent effect of the punishment.

Court Disposition

Appeal against sentence upheld; sentences substituted.

Orders

  • Counts 2 and 3 are taken together for sentencing purposes and the appellants are sentenced to ten (10) years' imprisonment.
  • Counts 4 and 5 are taken together for sentencing purposes and the appellants are sentenced to fifteen (15) years' imprisonment.