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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 203/2022
In the matter between:
CHICCO MASANGO FIRST APPELLANT
HENDRIQUE MUAINGA SECOND APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Masango and Another v The State (203/2022) [2024] ZASCA
98 (14 June 2024)
Coram: MOKGOHLOA and KGOELE JJA and TOLMAY AJA
Heard: This appeal was, by consent between the parties, disposed of without
an oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 14 June 2024.
Summary: Criminal Procedure – first appellant appeal against conviction and
sentence – second appellant appeal against conviction – leave to appeal refused by
regional court – petition in terms of s 309 C – refused by the high court – special
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leave to appeal against dismissal of the petition granted by this Court – test
whether appellants have shown reasonable prospects of success on appeal.
ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Molahlehi J
and Thobane AJ sitting as court of appeal):
1 The appellants’ application for leave to appeal against the refusal of the
petition on their convictions is dismissed.
2 The first appellant’s application for leave to appeal against the refusal of the
petition on his sentence is refused.
JUDGMENT
Tolmay AJA (Mokgohloa and Kgoele JJA concurring):
[1] The two appellants in this matter were convicted of robbery with aggravated
circumstances read with s 51(2) of the Criminal Law Amendment Act 105 of 1997
in the Regional Court for the District of Soweto held at Protea (the regional court).
The first appellant was sentenced to twenty years imprisonment and the second to
fifteen years imprisonment on 24 January 2017. On 16 October 2017 , leave to
appeal was refused against both conviction and sentence in relation to both
appellants by the regional court. The appellants then petitioned the Gauteng
Division of the High Court, Johannesburg (the high court) for leave to appeal
against both conviction and sentence in terms of s 309C of the Criminal Procedure
Act 51 of 1977 (the CPA). On 25 February 2019 , leave to appeal was refused by
the high court.
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[2] The appellants approached this Court for special leave to appeal, in terms of
s 16(1)(b) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). On 18
December 2019, special leave to appeal the dismissal of the petition was granted
by this Court to the first appellant. The second appellant also approached this
Court and sought special leave to appeal against conviction only, leave was granted
by this Court on 15 February 2022. Despite this , the notice of appeal states,
obviously incorrectly, that both appellants seek leave to appeal against both
sentence and conviction. In the heads of argument , however, this error was not
repeated. It was directed, for obvious reasons, that the two appeals should be heard
together.
[3] On the eve before the hearing , counsel requested that the appeal be dealt
with in terms of s 19(a) of the Superior Courts Act, and that the appeal accordingly
be disposed of without the hearing of oral argument. The request was granted, but
counsel was referred to relevant authorities to consider, as only leave to appeal
against the dismissal of the petition by the high court was requested and granted.
This is of importance as , in the heads of argument , counsel for the appellants and
the respondent dealt only with the merits of the case. Despite this , no further heads
of argument were filed.
[4] It is by now trite that appeals from the lower court under s 309C must be
heard by the high court in terms of s 309(1)(a) of the CPA. 1 This Court has , in a
1 Section 309(1)(a) of the CPA reads as follows:
‘309 Appeal from lower court by person convicted
(1)(a) Subject to section 84 of the Child Justice Act, 2008 ( Act 75 of 2008), any person convicted of any offence by
any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in
terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the
High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life by a regional
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long list of cases , consistently found that it lacks the jurisdiction to entertain an
appeal on the merits in the absence of leave to appeal being granted. 2 Accordingly,
the issue to be determined is not the merits of appeal, but whether the high court
should have granted leave to appeal. From as far back as S v Khoasasa;3 S v
Matshona;4 Tonkin v S;5 Dipholo v S;6 Mthimkhulu v S7 to the latest De Almedia v
S,8 it has been reiterated that ‘the issue to be determined is not whether the appeal
against conviction and sentence should succeed but whether the high court should
have granted leave, which in turn depends upon whether the appellant could be
said to have reasonable prospects of success on appeal’.9
[5] What would constitute reasonable prospects of success was set out in Nong
and Masingi v The State, with reference to S v Smith,10 as follows:
‘As regards what constitutes “reasonable prospects of success” Plasket AJA in S v
Smith describes it concisely:
“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 appellant must convince this court on
proper grounds that he has prospects of success on appeal and that those prospects are not remote
court under section 51(1) of the Criminal Law Amendment Act, 1997 ( Act 105 of 1997), he or she may note such an
appeal without having to apply for leave in terms of section 309B: Provided further that the provisions of section
302 (1) (b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as
contemplated in section 302(1)(a).’
2 S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA) ; [2002] 4 All SA 635 (SCA) ; Dipholo v The State
[2015] ZASCA 120; Lubisi v The State [2015] ZASCA 179; S v Van Wyk v S, Galela v S [2014] ZASCA 152;
[2014] 4 All SA 708 (SCA); 2015 (1) SACR 584 (SCA); Mthimkulu v The State [2016] ZASCA 180; De Almeida v
S [2019] ZASCA 84; Nong and Masingi v The State [2024] ZASCA 25.
3 S v Khoasasa 2003 (1) SACR 123 SCA; ([2002] 4 All SA 635).
4 S v Matshona ZASCA 58; [2008] 4 All SA 68 (SCA); 2013 (2) SACR 126 (SCA) (S v Matshona).
5 Tonkin v S [2013] ZASCA 179; 2014 (1) SACR 583 (SCA).
6 Dipholo v The State [2015] ZASCA 120.
7 Mthimkhulu v S [2016] ZASCA 180.
8 De Almeida v S [2019] ZASCA 84.
9 Tonkin v S [2013] ZASCA 179; 2014 (1) SACR 583 (SCA) para 3 quoting S v Matshona para 4; Ntuli v The State
[2018] ZASCA 164 para 4; S v Kriel [2011] ZASCA 113; 2012 (1) SACR 1 (SCA) paras 11 -12; S v Smith [2011]
ZASCA 15; 2012 (1) SACR 567 (SCA) paras 2-3.
10 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 3.
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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
categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success on appeal”.’11
[6] The appellants’ main argument on conviction was that Ms Wendy Ndlovu
(Ms Ndlovu) was a single witness . The second was that her identification of the
appellants was a dock identification and does not carry enough evidential value to
allow for a conviction.
[7] Ms Ndlovu testified that on 1 December 2015 , she was working at house
number 3 in B[…] S[…] Street, Randfontein, where she was employed as a
housekeeper. Between 09h30 and 10h00, as she was taking out the dustbin, a Ford
Bantam vehicle approached the gate, she closed the gate behind her. The men in
the vehicle asked her whether the premises she was on, was Mr Jacques Porter’s
(Mr Porter) house. She confirmed that it was , and they indicated that they were
there to take measurements for purposes of installing air-conditioning. She told
them that she wanted to go and fetch her phone to call and confirm with Mr Porter
if she could let them in. One of them pretended to call Mr Porter and during the
conversation told the person to whom he was speaking that he would leave the
invoice with Ms Ndlovu, who after hearing that, opened the gate for them.
[8] The men asked her to take them upstairs to the main bedroom. She also
pointed out the other rooms as she assumed that they were going to take
measurements of all the rooms. One of them went to the study and when he
returned, they told her that they were not there for her but for Mr Porter’s things
11 Nong and Masingi v The State [2024] ZASCA 25 para 7.
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and she needs to shut up. They took her phone and when she screamed, she was
slapped. They tied up her hands and legs with cable ties and blindfolded her. She
eventually managed to cut the cable ties and escaped through the kitchen door that
was open as the perpetrators had locked the front door. She went to the neighbours
and phoned Mr Porter and the police.
[9] The men took laptops, TV screens, a sound system, her cell phone and a car,
a red BMW 3 series, which was in the garage. She testified that she was informed
by the police officers who were investigating the robbery that the car was found
between 12h00 and 13h00 on the same day.
[10] She testified that she had never seen the appellants prior to the incident. She
then identified the first appellant in court as the person who took her phone and
slapped her. She said that she was able to identify him in court, as he was the one
who talked to her all the way to the house and she remarked that he treated her
kindly. She pointed the second appellant out as the person who carried a notebook
and a measuring tape. She did not attend an identification parade as she was not
available on the day that it was held . She was willing to attend on another day, but
was never informed of another date. Under cross-examination, she testified that Mr
Porter showed her a photograph that was sent to him and asked her whether the
man in the photograph was one of the culprits. She said the photograph was of the
first appellant. This turned out to be incorrect.
[11] Constable Njobo testified that on 1 December 2015, he and five colleagues
were driving to report for duty . On their way , they were stopped by community
members and informed that two male persons were stripping a motor vehicle. They
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went with the community to the place and found the appellants stripping a red
BMW motor vehicle. They took the appellants to the police station to open a case
as they suspected that it was a stolen motor vehicle. Constable Njobo described the
motor vehicle as a red BMW 3 series. They took the appellants to the police station
with the said vehicle and arrived at the police station at the same time as police
officers from Randfontein, who informed them that the BMW was stolen during a
robbery, which they were investigating.
[12] Mr Porter testified and identified the vehicle at the Protea police station as
his own, and that it was stolen during a robbery at his house , together with the
items identified by Ms Ndlovu. He said that the first appellant was not in the
photographs that he showed to Ms Ndlovu.
[13] Another police officer , Mr Mthethwa, testified that he was present when
they found the two appellants dismantling the BMW. He confirmed the evidence of
Constable Njobo in all material respects. Although there were some contradictions
between the evidence of the police officers , they were not material as the fact was
that the appellants were found in possession of Mr Porter’s vehicle merely two
hours after it was taken during the robbery at his house. The police were , at that
time, unaware of the robbery and were not looking for suspects.
[14] The appellants’ evidence was a bare denial. Their version was that on the
day in question , they were merely walking towards the taxi rank and , as they
walked past the red BM W, they were confronted by the police. They denied any
knowledge of the vehicle. The magistrate did not accept their version as reasonably
possibly true.
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[15] The law regarding dock identification is trite and the dangers inherent in it
have been restated repeatedly.12 In this matter however, the BMW was found in the
possession of the appellants within a very short period of time after the robbery, so
the doctrine of recent possession find s application.13 Ms Ndlovu’s evidence was
corroborated by the fact that the vehicle was found in the appellants’ possession. It
is also important to note that Ms Ndlovu initially did not suspect anything and her
powers of observation were not initially tainted by fear. In my view , the high court
was correct in refusing leave to appeal the convictions.
[16] Regarding the sentence of the first appellant , it is trite that sentencing falls
within the discretion of the trial court . In casu, there is nothing to indicate that the
regional court misdirected itself or did not exercise its discretion properly and
judicially. The first appellant was convicted of robbery on 15 November 1999 and
sentenced to 14 years imprisonment . On 15 December 2011, he was found guilty
of being in possession of stolen goods and was sentenced to three years
imprisonment or a R7 000.00 fine. The first appellant’s previous convictions
indicate a propensity to commit crime and also indicate that the possibility of
rehabilitation seems remote. Although the previous conviction for robbery was
more than ten years ago, he was convicted of another crime during 2011. The
regional court did not err in not regarding him as a first offender.
12 S v Charzen and Another [2006] ZASCA 147; [2006] 2 All SA 371 (SCA); 2006 (2) SACR 143 (SCA) para 11; S
v Ngcina [2006] ZASCA 155; 2007 (1) SACR 19 (SCA) para 16.
13 Mothwa v The State [2015] ZASCA 143; 2016 (92) SACR 489 para 8.
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[17] In the circumstances, t he high court was correct in refusing leave to appeal .
The appellants did not succeed in convincing this Court that they have reasonable
prospects of success on appeal.
[18] The following order is made:
1 The appellants’ application for leave to appeal against the refusal of the
petition on their convictions is dismissed.
2 The first appellant’s application for leave to appeal against the refusal of the
petition on his sentence is refused.
___________________________
R G TOLMAY
ACTING JUDGE OF APPEAL
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Written submissions
For the appellants: J M Mojuto
Instructed by: Legal Aid South Africa, Johannesburg
Legal Aid South Africa, Bloemfontein
For the respondent: V T Mushwana
Instructed by: Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein