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[2023] ZAGPPHC 398
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Fundamo v S [2023] ZAGPPHC 398; CC29/18 (26 May 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO
:
CC29/1
8
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
DATE:
26/05/2023
In
the matter of:
COSTA
FUNDAMO
App
l
icant
And
The
State
Respondent
JUDGMENT
Mlotshwa
AJ:
1.
The applicant was charge with one Ere
Patrick Nhaca (herein after referred to as Accused 1). The applicant
was accused 2 in the
matter
.
2.
The
accused
were
charged
with three
counts
namely:
(i)
House breaking
with the
intent to commit a crime unknown to the
prosecutor;
(ii)
Murder, read with the provisions of
section 51(1) and part 1 of schedule 2, alternatively
section
51(2) and part II of schedule 2 of the
Criminal Law Amendment
Act,
105 of 1997;
(iii)
Robbery with aggravating circumstances
as intended in section 1 of
Act
51 of 1977 and read with the provisions of
section
51(2)
of the
Criminal Law Amendment Act,
105 of 1997
.
3.
Both
the
applicant and his co-accused were convicted of the charges of murder
and robbery read with the
provisions
of 51(2) of the
Criminal Law Amendment Act,
105 of 1997
. They were acquitted on the
count of house breaking with
intent
to
commit a crime unknown to the prosecutor.
4.
The court found that there were no
extenuating circumstances and sentenced both
the Applicant and his co-accused to life
imprisonment
for
the murder and 15 years imprisonment for the robbery.
5.
The applicant is
seeking leave to appeal both
the conviction and the sentence
imposed
upon
them
by the
Honourable
trial Judge
Barn,
who
is presently not available to hear this
application.
6.
In
order to succeed with
this
application, the applicant will have to show that there are prospects
of success on appeal. In
Smith
v The State
[1]
it
was held that
:
"(7)
What
the
test
of
reasonable
prospects
of
success
postulates
is
a
dispassionate
decision
based
on
the
facts
and
the
law,
that
a
court
of
appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed therefore,
the
applicant must convince this court on
proper grounds that he has
prospects of
success on appeal and that those
prospects are not remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success,
that
the case is arguable on appeal or that the case cannot be categorized
as hopeless
.
There must
,
rational basis for the
conclusion that there are
prospects of
success on appear
7.
The Applicant further sought condonation
for the later filing
of
this Application for leave to
Appeal.
8.
His reasons for the late filing of this
application being that he was ignorant of the process nor step needed
to be
followed
to file
the
papers for
appeal
until
he
was helped by
a
fellow inmate and his relatives as he does not
have relatives in South Africa.
9.
The charges
against the
accused arose
out
of
an incident that occurred on 25 January 2017 at a house in Doornkop,
Pretoria. The victim was one Mr
Emmunuel
Teto Moyambo who was killed in his house and allegedly robbed of his
laptop.
10.
The evidence against the accused was a
confession made by Accused 1 to
one
Ms D'Ameida
,
a
private person
.
The
confession was allegedly made in the presence of the
Applicant who according to
Ms D'Ameida nodded and agreed with what
Accused 1 said.
11.
The Honourable trial judge found that
accused found that the State proved beyond reasonable doubt the
applicant killed the deceased
.
The Honourable trial judge found that
the applicant was indeed present when accused 1 confessed and he
nodded and
"
agreed
"
with accused 1 said
.
12.
lt
is
not
quite
clear
what
the
learned
Judge
meant
by
saying
the applicant
"
agreed"
with what accused 1 was saying to
Ms D'Ame
i
da.
The impression is that the applicant
also "confessed" to Ms D'Ameida by nodding
to what accused 1 was saying
to Ms D'Ameida
.
13.
"A
confession is an unequivoca
l
acknowledge
of
guilt, the equivalent of a plea
of
guilty before a
court
of
law"
see R v
Becker
[2]
.
Can
it
be
said that an accused made a confession just because he was present
when his co accused confessed? Adv Roos on behalf of
the State
insisted that the applicant did confess by not
denying
what accused 1 was saying to
Ms
D'Ameida. This court asked Adv Roos if
she
is saying the
applicant
confessed by conduct by not denying what Accused 1 said to Ms
D'Ameida. This proposition by Adv Roos is not
supported
by any case law or authorities
and
she could not
relate
to
the
court
of
any
such authority or case law.
14.
ln
fact, Section 219 of the Criminal Procedure Act,
51
of 1977 provides that no confession made by any person shall be
admissible against another person. See also S v Banda
[3]
and
S v Molimi
[4]
•
15.
ln respect of the charge of robbery with
aggravating circumstances
,
there
was no evidence led during
the
trial
that
the accused robbed the deceased of
the
laptop
.
There was no evidence as to
when last was the
l
aptop
seen at
the
deceased house
.
The only
evidence is that after the decea
s
ed
was killed the laptop was found to be m
i
ss
i
ng
.
It doe
s
not seem that there was enough evidenc
e
to convict the applicant on
this charge as well.
16.
As far as the
sentence is concerned it
does seem that the tr
i
al
court d
i
d
consider the
personal
circumstances
of
the applicant and rightly found that
there were no compelling and sustantial
circumstances
which would have
allowed
the
court
to
deviate
from
impos
i
ng
the
minimum
sentences
in
terms
of
section
51
of
the
Crimi
n
al
Law Amendment
Act
105 of 1997
.
17.
ln
the
circumstanc
e
s
I make the following order:
(1)
The application fo
r
le
a
ve
to appeal
i
n
r
es
pect
of the conviction for
;
(i)
Murder, read with the provisions of
section 51(1) and part 1 of schedule 2, alternatively section 51(2)
and part II of schedule
2 of the
Criminal Law Amendment
Act
,
105 of 1997;
And
(ii)
Robbery with aggravating circumstances
as intended in
section 1
of
Act
51 of 1977 and read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act, 105 of 1997
,
is
granted.
(2)
The application for
leave to
appea
l
against
the
sentences
on
the
counts of
:
(a).
Murder
,
read with the provisions of
section
51(1)
and
part 1
of schedule 2, alternatively
section 51(2)
and
part II
of schedule 2
of the
Criminal Law Amendment Act,
105
of 1997
; and
(b)
Robbery w
i
th
aggravating circumstances as intended in
section 1
of Act 51 of 1977
and read with the provisions of
section 51(2)
of the
Criminal Law
Amendment Act
,
105
of 1997
,
is
refused
.
Mlotshwa
AJ
ACTING
JUDGE
OF
THE
HIGH
COURT
OF SOUTH AFRICA
Appearances
ON
BEHALF OF THE APPELLANT
:
ADVOCATE
KGAGARA
INSTRUCTED
BY
:
LEGAL
AID
SOUTH
AFRICA
ON
BEHALF
OF
THE
RESPONDENT:
ADVOCATE
ROOS
INSTRUCTED
BY
:
THE
DIRECTOR
OF
PUBLIC
PROSECUTIONS
[1]
(475/2011)
[2011]
ZASCA
15
(15
March 2011)
[2]
1
929
A
D
a
t
17
1
[3]
1990
(3) SA
4
66(8)
[4]
2
0
0
8
(
2)
SACR 76(CC)