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2023
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[2023] ZAGPJHC 1100
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Sthabiso and Others v S (SS114/2018) [2023] ZAGPJHC 1100 (2 October 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: SS114/2018
In the matter between:
KUBHEKA
STHABISO
1
st
Applicant
MTHIYANE
MOTLALEPULE
2
nd
Applicant
XABA
MLULEKI
3
rd
Applicant
And
THE
STATE
Respondent
JUDGMENT
MAKUME, J:
[1] The three
Applicants were convicted by this Court on the 15
th
March
2019 and sentenced as follows:
1.1 Count one Murder 20
years’ imprisonment
1.2 Count 2 Possession of
Unlicensed Firearm 10 years’ imprisonment
1.3 Count 3 Possession of
prohibited Firearm 15 years’ imprisonment
1.4 Count 4 Possession of
Ammunition 10 year’s imprisonment
[2] This Court
further ordered that the sentences in counts 2 and 4 run concurrently
with the sentence of 20 years’
imprisonment in count 1.
Effectively the Applicants have been committed to serve 35 years’
in prison.
[3] The first and
third Applicants are seeking leave to appeal against conviction and
sentence whilst the second Applicant
only seeks leave in respect of
sentence on the basis that the cumulative effect of a sentence of 35
years is disturbingly shocking.
[4] It is trite law
that the test to be applied in deciding whether or not leave to
appeal should be granted in governed by
the provisions of Section
17(1) of the Superior Courts Act number 10 of 2013 which provides as
follows:
“
Leave
to Appeal may only be given where the judge or judges concerned are
of the opinion that:
(a)
The
Appeal would have a reasonable prospect of success or there is some
other compelling reason why the appeal should be heard including
conflicting judgement.”
[5] The first and
third Applicants main ground of appeal is that the witnesses Dladla
and Khanyile never saw them shooting
at the deceased because Dladla
only heard gun shots after he had escaped through the window.
[6] Secondly it is
argued that Dladla and Khanyile as eyewitness- influenced each other
falsely implicating the three Applicants
as a revenge for them having
had charges withdrawn against them in KZN when they had shot and
injured Dladlas father. All
three Applicants pleaded alibis
which they could not substantiate.
[7] It
was never placed in dispute that the witnesses Dladla and Khanyile
knew the Applicants as they all come
from Ladysmith which means that
the issue of identity no longer becomes an issue. The room in
which the shooting took place
including the outside was well
illuminated that also was never put in dispute.
[8] Dladla and
Khanyile even though they did not see who shot the deceased amongst
the three men they saw firearms in their
possession and shooting took
place after they, had run away, they heard gun shots and the deceased
was found dead. The only
reasonable inference is that it is the
three men whom they last saw at the door with firearms who shot the
deceased.
[9] A few days
after the shooting two firearms were found in the possession of
Accused number 1 and 2 and the results of the
ballistic tests linked
the two firearms to the cartridges and bullets found at the scene of
the murder
[10] In the end
result after carefully reading the judgement and evidence led I am
not persuaded that here are any reasonable
prospects of the appeal
succeeding.
AD SENTENCES
[11] The three
Appellants acted in common purpose when they shot and killed the
deceased. This Court deviated from imposing
the minimum
sentence of life imprisonment when it could have done so.
[12] Secondly the
sentences in count 2 and 4 were made to run concurrently with the
sentence of 20 years thus reducing their
sentence by another 20
years.
[13] The sentence
of 35 years is in my view just and equitable in view of the offence
especially that I did not opt for a
sentence of life imprisonment.
[14] In the result
I make the following order:
ORDER
(i)
Application
for Leave to Appeal against conviction by first and third Applicants
is refused.
(ii)
Application
for Leave to Appeal against sentence by first, second and third
Applicants is refused.
Dated at Johannesburg on
this day of October 2023
M A MAKUME
JUDGE OF THE
HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
DATE OF HEARING : 14
SEPTEMBER 2023
DATE OF JUDGMENT :
OCTOBER 2023
FOR APPELLANTS :
ADV GREYLING
INSTRUCTED BY :
LEGAL-AID SA
FOR RESPONDENT :
ADV WILLIAMS
INSTRUCTED BY :
NATIONAL PROSECUTING
AUTHORITY