Summary of Judgment

1. Introduction

The proceedings concerned an application for leave to appeal brought in the Free State High Court, Bloemfontein, against both convictions and sentences imposed by the trial court.

The parties were Zwelinzima Lehlozi (first applicant, accused 1) and Stepen Simphiwe Malunga (second applicant, accused 2) as applicants, opposed by the State as respondent, represented on opposition by counsel on behalf of the Director of Public Prosecutions.

Procedurally, the applicants had been convicted on multiple serious charges and sentenced, after which they applied for leave to appeal. The application was argued on 25 March 2011 and judgment was delivered on 31 March 2011.

The general subject-matter of the dispute was whether the applicants had shown reasonable prospects of success on appeal in relation to the trial court’s findings on the merits (including credibility and admissibility of certain evidence) and in relation to the sentences imposed, including life imprisonment for murder and an effective term of 25 years’ imprisonment on the remaining counts.

2. Material Facts

The material, largely undisputed procedural facts were that the applicants (accused 1 and accused 2) were convicted of a range of offences, including murder, robbery, housebreaking with intent to rob and robbery with aggravating circumstances, attempted murder, and unlawful possession of firearms and ammunition. For the murder convictions, they received life imprisonment, and for the other offences they received an effective sentence of 25 years’ imprisonment.

A further material aspect, central to the grounds advanced, concerned evidence about firearms linked to accused 3. There was evidence before the trial court that accused 3 had been assaulted. However, on the court’s account in this leave-to-appeal judgment, it was not accused 3’s case that the firearms were discovered because he pointed them out due to the assault. The court recorded that, on the accepted evidence of the police witness (Dasheka), the firearms were found as a result of a search of the relevant house, and not as a result of a pointing-out by accused 3. The court further referred to the evidence of Martha Pietersen to the effect that she later found an additional firearm and informed the police.

In relation to the second applicant’s challenge, a material factual feature mentioned by the court was that there had been a pointing-out by accused 1 to Captain Laux, which corresponded broadly with evidence given by the witness Modise. The court noted, as a matter relevant to admissibility, that this pointing-out was only admissible against the first applicant.

3. Legal Issues

The central legal question was whether the applicants had established reasonable prospects of success on appeal, both in respect of the convictions and in respect of the sentences.

The issues raised involved a mixture of fact (particularly credibility findings concerning state witnesses), the application of legal rules to fact (especially the admissibility and significance of evidence concerning the discovery of firearms), and an evaluative assessment in relation to sentence (whether the sentencing outcome was assailable on appeal in the circumstances described by the court).

4. Court’s Reasoning

The court approached the application on the basis that leave to appeal depends on whether there are reasonable prospects of success.

On the attack directed at the trial court’s credibility findings concerning the state witnesses, the court stated that these matters had already been addressed in the main judgment and that it had nothing to add. In effect, the court was not persuaded that the credibility-related criticisms disclosed an appealable basis with reasonable prospects.

Regarding the challenge to the admission of evidence about firearms found in connection with accused 3, the court reasoned that the factual premise underpinning the complaint was not supported in the way suggested. Although there was evidence that accused 3 had been assaulted, the court emphasised that it was never accused 3’s case that he had pointed out the firearms because of the assault. The court aligned this with the accepted evidence of the police witness (Dasheka) that the firearms were discovered during a search of a house rather than by a pointing-out. The court also referred to Martha Pietersen’s evidence, which supported the narrative that at least one firearm was found subsequently and the police were informed. In addition, the court noted that accused 3’s stance was that he had no knowledge of the firearms, rather than that he had pointed them out; this further undermined the suggested basis for excluding the evidence on the footing advanced.

In relation to the second applicant’s arguments, the court recorded that the attack again focused on credibility, including the contention that the trial court erred in finding the witness Modise broadly reliable. The court further noted the existence of the pointing-out by accused 1 to Captain Laux, which broadly corresponded with Modise’s evidence, while stressing that such pointing-out evidence was only admissible against the first applicant. The court rejected the contention that the assault on accused 3 led to the discovery of the firearms, stating that this was not correct and that the matter had already been addressed in the judgment.

On sentence, the court’s evaluative reasoning emphasised the seriousness of the criminal conduct. It considered it clear that the crimes were preceded by sophisticated planning, that the accused acted as a gang, that complainants were robbed, and that some were killed thereafter. The court characterised the conduct as showing no respect for the lives, integrity, or property of others. On that basis, the court concluded that there were no reasonable prospects of success on appeal against the sentences either.

5. Outcome and Relief

The court refused leave to appeal. The application for leave to appeal against both the convictions and the sentences was dismissed.

No separate costs order was recorded in the judgment.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicants had not shown reasonable prospects of success on appeal in relation to either the convictions or the sentences. It held, in particular, that the credibility challenges did not warrant reconsideration in the leave-to-appeal proceedings, that the criticism relating to the firearms evidence was not supported on the accepted facts (the firearms being found by a search rather than as a result of any pointing-out induced by assault), and that the seriousness, planning, and gang-related nature of the offences supported the sentences imposed and disclosed no reasonable prospects of a successful appeal.

LEGAL PRINCIPLES

Leave to appeal depends on whether there are reasonable prospects of success on appeal in relation to the issues raised.

Where credibility findings and related factual determinations have already been addressed in the main judgment, an applicant must still demonstrate, on the leave-to-appeal standard, that such findings present reasonable prospects of being overturned on appeal.

In assessing challenges to evidentiary rulings, the court considers the factual foundation for the complaint as reflected by the accepted evidence; where the accepted evidence shows that disputed items were discovered by means other than what is alleged in the complaint, the challenge will not establish reasonable prospects of success.

In sentencing-related leave-to-appeal enquiries, the court evaluates whether the nature of the offences and the circumstances described in the judgment (including planning, group conduct, and the gravity of harm) leave reasonable prospects that an appellate court would interfere with the sentence.