The Supreme Court of Appeal has reduced a prisoner’s effective sentence from 28 to 23 years after finding that a lower court failed to consider how two closely connected crimes should be punished.
Thulani Mkhize was convicted of attempted murder, attempted escape from custody, and unlawful possession of a firearm and ammunition in 2013.
The Free State Regional Court sentenced him to a total of 28 years’ imprisonment after ordering only the sentences for firearm and ammunition possession to run concurrently.
But the Supreme Court of Appeal found that the sentences for attempted murder and attempted escape should also have run concurrently because the crimes were closely linked and committed as part of the same plan to escape from prison.
The judgment was delivered on 21 October 2026.
The case stemmed from an attempted escape at Odendaalsrus Correctional Centre on 17 November 2010, where Mkhize and his co-accused, Mahlangu, were awaiting trial on armed robbery charges.
Correctional authorities had received information that inmates were planning to escape and deployed an emergency team to search the facility.
During the operation, Mahlangu produced a 9mm semi-automatic pistol and threatened prison officials. He held an officer, identified in the judgment as Mr Gerber, hostage and assaulted him on the head with the firearm, causing an open wound.
A shot was discharged during the struggle.
Mkhize then took the firearm from Mahlangu and pointed it at Gerber’s head, intending to shoot him. Mahlangu ordered Mkhize to fire.
But the firearm malfunctioned several times as Mkhize attempted to shoot the officer. Correctional officials intervened and apprehended both men.
Gerber received medical treatment for his injuries.
Mkhize was convicted of attempted murder, attempted escape, unlawful possession of a firearm and unlawful possession of ammunition.
The trial court imposed eight years’ imprisonment for attempted murder, five years for attempted escape, 15 years for firearm possession and five years for ammunition possession.
The sentences for firearm and ammunition possession ran concurrently, resulting in 15 years for those offences. But the sentences for attempted murder and attempted escape were added to that term, producing an effective sentence of 28 years.
Mkhize challenged his sentence, arguing that the lower courts had failed to consider the cumulative effect of the punishments.
His initial efforts to obtain leave to appeal were unsuccessful. He eventually asked the president of the Supreme Court of Appeal to reconsider the refusal of special leave, arguing that failing to intervene would result in a grave injustice.
The SCA agreed to reconsider the matter and upheld his appeal against sentence.
The court found that attempted murder and attempted escape were “inextricably linked” because both offences were committed as part of the same plan to escape.
It also found that the trial court had failed to explain why the two sentences should not run concurrently and had not properly considered the combined effect of the punishment.
“This constituted a material misdirection,” the judgment states.
The court said sentencing judges must consider the total punishment imposed when an accused is convicted of several offences.
Where crimes are closely connected in time, place, circumstances and intention, concurrent sentences may be necessary to prevent the cumulative punishment from becoming disproportionately severe.
The court stressed that this principle did not mean the offences were minor or that the seriousness of the attack on the correctional officer should be overlooked.
The trial court had considered the seriousness of the conduct, including the possibility that Gerber could have died if the firearm had not malfunctioned.
It had also considered the interests of the community, the accused’s personal circumstances and the fact that both men were first offenders who had spent more than two years in custody awaiting trial.
Mkhize did not challenge the sentences imposed for firearm and ammunition possession.
The SCA ordered the sentences for attempted murder and attempted escape to run concurrently, rather than consecutively. This reduced the combined punishment for those two offences from 13 years to eight years.
The court consequently reduced the effective sentence from 28 to 23 years.
It ordered that the sentence be antedated to 22 April 2013, the date on which the original sentences were imposed.
The ruling does not overturn Mkhize’s convictions or remove the 15-year effective sentence for firearm and ammunition possession. It corrects the way the sentences for the two related offences were combined.
