S v Nkomo (A123/2018) [2019] ZAGPJHC 420 (29 April 2019)
- Citation
- [2019] ZAGPJHC 420
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Yacoob, Du Plessis
- Case number
- A123/2018
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Yacoob, Du Plessis
- Case number
- A123/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.
Court disposition
Appeal against sentence partially upheld; sentence substituted and back-dated.
Orders
- The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
- The sentence will run from the date of arrest, that is 5 September 2013.
- In terms of section 276B(1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.
- In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.
02
Material facts
Parties
The State
RespondentBen Nkomo
AppellantAmounts and remedies
- Imprisonment Term Years: 19
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the appellant should be treated as a first offender or second offender for sentencing purposes.
- 02
Whether the time served by the appellant should be taken into account in sentencing.
- 03
Whether there are substantial or compelling circumstances to deviate from the prescribed minimum sentence.
- 04
Whether the appellant should be declared unfit to possess a firearm.
Party arguments
- Applicant
- The appellant argued that he should be treated as a first offender and that the time he had already served should be fully considered in mitigation of sentence. He also contended that the magistrate overemphasized his illegal status in the country when determining sentence.
- Respondent
- The State conceded that the appellant should be treated as a first offender. However, it maintained that the magistrate correctly applied her discretion in sentencing and that there were no substantial or compelling circumstances to justify deviation from the minimum sentence prescribed by law.
05
Court’s reasoning
Legal principles
- 01
Section 51(2) of Act 105 of 1997
The minimum sentencing regime under section 51(2) of Act 105 of 1997 must be applied unless substantial and compelling circumstances exist to justify deviation.
- 02
Section 276B(1)(a) of the Criminal Procedure Act
Parole eligibility is governed by section 276B(1)(a) of the Criminal Procedure Act, which requires that two thirds of the sentence be served before parole consideration.
- 03
Section 103(1) of Act 60 of 2000
A person convicted of certain offences may be declared unfit to possess a firearm under section 103(1) of Act 60 of 2000.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.
Obiter and limits
- The court noted that the interests of justice require that the sentence be back-dated to the date of incarceration.
- The magistrate's consideration of the appellant's illegal status was already factored into the sentence and should not have been double-counted.
Court disposition
Appeal against sentence partially upheld; sentence substituted and back-dated.
- The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
- The sentence will run from the date of arrest, that is 5 September 2013.
- In terms of section 276B(1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.
- In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
(Inlexso Innovative Legal Services) / as
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A123/2018
DATE: 2019-04-18
BEFORE HONOURABLE
YACOOB J AND DU PLESSIS AJ
In the matter between
THE
STATE
and
BEN
NKOMO
Accused
J U D G M E N T
We have considered the record in this matter and heard argument from counsel. We have come to the conclusion that the magistrate correctly applied her discretion, save for having made an error regarding whether the appellant should be treated as a first offender or second offender. The state conceded in argument that the appellant should be treated as a first offender.
We also consider that the magistrate, in considering whether to take into account the time served, overcompensated for the fact that the appellant was illegally in the country. This was already taken into account by the Magistrate in considering the sentence itself, and in applying section 276B (1)(a) of the Criminal Procedure Act. It is therefore our view that it would be in the interest of justice that the sentence be back-dated to the date on which the appellant was incarcerated. In our view, there are no substantial or compelling circumstances to deviate from the minimum sentence and in fact, as the magistrate correctly considered, there are circumstances justifying an additional or longer sentence.
Under the circumstances, the sentence imposed by the magistrate is substituted by the following:
1. The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
2. The sentence will run from the date of arrest, that is 5 September 2013.
3. In terms of section 276(B) (1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.
4. In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.
DU PLESSIS, AJ: I AGREE
…………………………….
YACOOB,
J
JUDGE
OF THE HIGH COURT
DATE: …………………………
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.