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[2015] ZASCA 73
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Mahlangu v S (20737/2014) [2015] ZASCA 73 (22 May 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 20737/2014
Not
Reportable
In
the matter between:
MTEWENI
ZWELIBANZI
MAHLANGU
.....................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
Citation:
Mahlangu
v S
(20737/2014)
[2015] ZASCA 73
(22 May 2015).
Coram:
Navsa ADP, Brand,
Ponnan JJA
Heard:
22 May 2015
Delivered:
22 May 2015
Summary:
Appeal against a
refusal for application for leave to appeal –complaint of
duplication of charges –reasonable prospects
of success in
contemplated appeal
ORDER
On
appeal from
: The
Gauteng Provincial Division, Pretoria (Ranchod J sitting as court of
first instance).
The
following order is made:
The appeal is
dismissed.
JUDGMENT
Navsa
ADP (Brand and Ponnan JJA concurring):
[1]
This is an appeal against the refusal of a petition in terms of s
309C of the Criminal Procedure Act 51 of 1977 (the CPA) in
relation
to a conviction on a second count of robbery and the accompanying
sentence of 15 years’ imprisonment.
[2]
In adjudicating the present appeal, the consideration is whether the
appellant has reasonable prospects of success in the contemplated
appeal. The background is briefly set out hereafter. The appellant
had been charged in the regional court Benoni with two counts
of
robbery with aggravating circumstances. He was convicted on both
counts and sentenced to 15 years’ imprisonment on each
count,
but it was ordered that five years of each sentence be served
concurrently. Thus the effective sentence was one of 20 years’
imprisonment. The trial court refused leave to appeal and the
petition against refusal of leave to appeal was dismissed. Hence
the
present appeal against that refusal.
[3]
The common cause facts are set out hereafter. The complainant in
respect of the first robbery, Mr Marx senior, manufactured
kitchen
cabinets in his motor vehicle garage located at his home. Late one
morning a motor vehicle transporting four men, including
the
appellant, arrived at Mr Marx’s home. Two of them produced
firearms and assaulted the complainant. He was ordered to
lie on the
ground and R10 000 was forcibly taken from his back pocket.
Shortly thereafter Mr Marx tried to get up but was
pushed through a
window by his two assailants. At that time, the complainant in the
second robbery, Mr Marx junior, the first complainant’s
son,
was working in an area that served as a workshop. He heard glass
shatter and his father screaming for the police. He was aware
of the
vehicle in which the robbers had arrived and decided to park his
motor vehicle behind theirs to prevent an escape. Whilst
doing so, he
noticed that there were two occupants still in the robbers’
vehicle. Suddenly he was approached by someone who
was armed. He was
ordered out of his vehicle where he was busy on his cellular
telephone trying to contact the police. The armed
assailant forcibly
took his cellular telephone and ordered him towards the workshop
area, all the while training the firearm on
him. The appellant was
the individual who had confronted and overpowered him. When they
reached the workshop area the appellant
assaulted him, pressed a
firearm against his head and forcibly took R2000 in cash that he had
in his possession. In the interim
the other two robbers decided to
flee. Mr Marx senior moved towards the workshop area, ultimately all
four robbers fled.
[4]
The present appeal is directed against the appellant’s
conviction on the second count of robbery, namely the count in
respect of which Mr Marx junior was the complainant, on the basis
that it amounted to a duplication of convictions. The corollary
is
that the associated sentence also falls to be set aside. This is an
aspect that was not raised before the trial court. The premise
for
the appellant’s case is that the regional court erred in not
concluding that the incident involving Mr Marx junior was
not in
effect the second robbery but was an extension of the robbery
involving his father. Simply put, it was contended that the
robbers
including the appellant had intended to effect a robbery of the
cabinet making business in which the two complainants were
involved
and that, in effect, is what had occurred. It is on that basis that
the appellant submits that there is a reasonable prospect
of success
on appeal. I disagree.
[5]
In my view, there is no such reasonable prospect of success in the
proposed appeal. Accordingly I would dismiss the appeal against
the
refusal of leave to appeal by the high court.
[6]
The following order is made:
The
appeal is dismissed.
________________________
M
S NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT: Adv. H L Alberts
Instructed
by:
Pretoria
Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
FOR
RESPONDENTS: Adv. E Leonard
Instructed
by:
Director
of Public Prosecutions, Pretoria.
Director
of Public Prosecutions, Bloemfontein.