Mlenga v S (A08/2019) [2019] ZAFSHC 132 (1 August 2019)

/ / 2019, Criminal Law, News


This case deals with an application for leave to appeal a sentence handed down by the Welkom Regional Magistrates Court. The facts of the case are as follows:  

On or about 25 January 2015, the Appellant (Mr. Mlenga) and his two co-accused were relaxing outside their rented premises in Welkom. They were later joined by the deceased who was consuming alcohol. Although the parties were not friends, the deceased occasionally visited the appellant. On the said day he didn’t visit very long before leaving the premise. Shortly afterwards the Appellant and the two co-accused realised that their cell phones and his wallet was missing from the premises, this resulted in them approaching the deceased’s household to inquire from him about the missing goods. He was asleep when they confronted him and when awoken by the Appellant and the two co-accused, they began to assault him as a ploy to get answers. At first the deceased denied stealing their goods, but he only confessed once he was stabbed with a sharp object. Only some of the stolen goods were recovered by the Appellant and his co-accused. The deceased later succumbed to his injuries and the Appellant and his co-accused were arrested for murder.  

The Appellant was later convicted on a charge of murder and sentenced to 13 years imprisonment. He applied for leave to appeal his sentence which was granted by the High Court after being refused by the court a quo.  


The High court in its findings made reference to the case of S v Malgas which stated- “a court of appeal cannot approach the question of sentence as if it were the trial court, unless the latter has materially misdirected itself. However, where the misdirection by the trial court vitiates its exercise of the sentencing discretion, the appeal court is entitled to consider the question of sentence afresh”.  

The High Court further reiterated the fact that every person enjoys the right to life, and no one has the right to take another’s life. The court was of the opinion that the Appellant together with his co-accused took the law into their own hands and committed a violent crime which is punishable in law and could have been avoided altogether had the parties reported the incident of theft from the start.  

The trial court was correct in its findings and considered the following personal factors as mitigating circumstances leading to the lesser sentence being imposed:
the Appellant being a first-time offender at the age of 32 years;he had a clean criminal record;he was still a student at the local tertiary institution; andhe formally admitted to committing the offence.
  1. the Appellant being a first-time offender at the age of 32 years;
  2. he had a clean criminal record;
  3. he was still a student at the local tertiary institution; and
  4. he formally admitted to committing the offence.
After due consideration of the above mitigating circumstances cumulatively, the trial court had substantial and compelling circumstances which justified a deviation from the prescribed minimum sentence and imposing the current sentence being 13 years imprisonment.  

The High Court also looked at the S v Siebert judgment which statedthat “sentencing requires a willingness on the part of the trial court to actively explore all the available options and to choose the sentence best suited to the crime, the criminal, the public interest, and also the aims of punishment. The court has the authority to determine the extent and nature of the sentence it imposes”.


This case illustrates and reaffirms the current position in law, being that an appeal court will not interfere with the findings of the trial court regarding the sentence imposed on convicted persons.

Written by Kyle Venter  and supervised by Dingumuzi Ndhlovu

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