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[2020] ZASCA 93
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Sibanyoni v S (951/2019) [2020] ZASCA 93 (18 August 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 951/2019
In
the matter between:
VUSI
PETROS
SIBANYONI Appellant
and
THE
STATE
Respondent
Neutral
citation:
Sibanyoni v The State
(951/2019)
[2020] ZASCA 93
(18 August 2020)
Coram:
Saldulker and Plasket JJA and Sutherland AJA
Heard:
No hearing. Decided without a 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’ legal representatives by email,
publication on
the Supreme Court of Appeal website and release to
SAFLII. The date and time for hand-down is deemed to be 09h45 on 18
August 2020.
Summary:
Leave to appeal against refusal of petition for leave to
appeal – conviction of six counts of robbery with aggravating
circumstances
– effective sentence of 25 years imprisonment –
no reasonable prospects of success of appeal against conviction, but
reasonable prospects of success of appeal against sentence.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Pretoria (Prinsloo and Baqwa JJ sitting as court of court of
appeal):
1 The appeal succeeds.
2 The order of the court
below is set aside and is replaced with the following order:
‘
(a)
Leave to appeal against conviction is refused.
(b)
Leave to appeal against sentence is granted to the Gauteng Division
of the High Court, Pretoria.’
JUDGMENT
Plasket
JA (Saldulker JA and Sutherland AJA concurring)
[1]
It was not in dispute that, on the evening of 10 June 2012, two men
entered the Dash Dash tavern in Tweefontein, KwaMahlangu,
Mpumalanga;
that one of them was armed with a firearm with which he fired a
number of shots; that the tavern’s patrons and
staff were
ordered by the men to lie face down on the floor; and that the two
men then stole various items from them, thereby committing
six counts
of robbery with aggravating circumstances. The appellant, Mr Vusi
Petros Sibanyoni (Sibanyoni), and a co-accused, Mr
David Mongezi
Mnguni (Mnguni), were charged with these offences, tried in the
regional court sitting in KwaMahlangu, convicted
as charged and
sentenced to effective terms of imprisonment of 25 and 15 years
respectively. Mnguni plays no part in these proceedings,
Sibanyoni
being the sole appellant.
[2]
Sibanyoni applied unsuccessfully for leave to appeal against both
conviction and sentence. He then petitioned the Gauteng Division
of
the High Court, Pretoria for leave to appeal but his petition was
dismissed by Prinsloo and Baqwa JJ. He petitioned this court
for
leave to appeal against the dismissal of the petition, and leave to
do so was granted.
[3]
We are not required to decide the merits of the appeal. See
S v
Matshona
[2008] 4 All SA 68
(SCA) para 5. We must, instead,
decide whether the court below’s decision to refuse leave to
appeal was correct or not –
whether or not, in other words,
there are reasonable prospects of an appeal succeeding. In
S v
Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7, this court
set out the proper approach to the question as follows:
‘
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 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.’
[4]
The sole issue in relation to Sibanyoni’s convictions is
whether his identification as one of the robbers was accurate
and
reliable. Although one of the State witnesses was not able to make an
identification of either of the robbers at all, two others
identified
Sibanyoni in dock identifications and three identified him in
identity parades. The propriety of the identity parades
and their
fairness was not disputed by the defence.
[5]
From the evidence of all six of the eye witnesses, it emerged that
the person identified as Sibanyoni was wearing a dark khaki-coloured
jacket, that some of them described as a ‘soldier’s
jacket’; that he was armed with a firearm and that he
discharged
a number of shots with it; and that he took a leading role
in the robbery, directing operations and giving orders.
[6]
The evidence of the witnesses was consistent in respect of the fact
that conditions for a reliable identification were good:
the scene
was lit with electric lighting and the robbers were in the presence
of the witnesses for a fair amount of time. They
were also consistent
in their descriptions of Sibanyoni: that he was of light complexion,
which some of the witnesses described
as a ‘coffee coloured
complexion’; that he had a bald head; and that he was short.
[7]
Sibanyoni’s defence was an alibi. He was, he said, drinking in
another tavern when the robberies at the Dash Dash tavern
was
committed. He was nowhere near the scene of the robberies.
[8]
In
S v Mthethwa
1972
(3) SA 766
(A) at 768B-C, Holmes JA warned of the dangers of too
ready an acceptance of identification evidence. Such evidence must,
because
of the ‘fallibility of human observation’, be
approached ‘with some caution’: a court must, before
accepting
that evidence, be satisfied that identifying witnesses are
honest and that their observations are reliable.
[9]
The magistrate, in a thorough and well-reasoned judgment, found that
the State witnesses were good witnesses whose evidence
was mutually
corroborative. He found too that their identification of Sibanyoni as
one of the robbers was reliable in all the circumstances.
On the
other hand, he found Sibanyoni to have been a particularly poor
witness whose version he rejected as being false beyond
a reasonable
doubt. His conclusions on conviction cannot be faulted, with the
result that the court below correctly dismissed Sibanyoni’s
petition against conviction. He has no reasonable prospect of
appealing successfully against his convictions.
[10]
I turn now to the question of sentence. The magistrate sentenced
Sibanyoni to 15 years imprisonment in respect of each count
of
robbery with aggravating circumstances. He ordered that 13 years in
respect of counts 2, 3, 4, 5 and 6 were to run concurrently
with the
sentence in count 1. The effect of this is that five successive
periods of two years imprisonment were added to the 15
year prison
term in respect of count 1. The result was that the magistrate
imposed an effective sentence of 25 years imprisonment
on Sibanyoni.
[11]
The magistrate correctly considered the robberies to be serious. They
were effected by the threat of violence with a firearm,
and certain
of the complainants were assaulted, albeit not particularly
seriously. Sibanyoni played the leading role in the perpetration
of
the robberies. He had three old but relevant previous convictions.
Despite these aggravating features, a sentence of 25 years
imprisonment is, on any objective basis, an extremely lengthy
sentence. There are, I believe, reasonable prospects of a court of
appeal interfering with that sentence. I am consequently of the view
that the court below erred in refusing the petition in respect
of
sentence.
[12]
It is unfortunately necessary to say something about the heads of
argument filed by the State. In the first place, they were
filed
late. In the interests of finalising this appeal speedily, we have
considered them without having received so much as an
apology, let
alone an application for condonation. That is simply not good enough.
Secondly, to call them heads of argument may
be to overstate their
nature. The document with which we were presented contains some
random quotations from cases unconnected
with any argument that could
have helped us in our decision-making. No indication is even given as
to whether the State supports
the refusal of leave to appeal or
concedes that leave ought to be granted. Heads of argument, as Marcus
AJ said, in
S v Ntuli
2003 (4) SA 258
(W) para 16, are
important for the proper administration of justice:
‘
Heads of argument serve a
critical purpose. They ought to articulate the best argument
available to the appellant. They ought to
engage fairly with the
evidence and to advance submissions in relation thereto. They ought
to deal with the case law. Where this
is not done and the work is
left to the Judges, justice cannot be seen to be done. Accordingly,
it is essential that those who
have the privilege of appearing in the
Superior Courts do their duty scrupulously in this regard.’
[13]
I make the following order:
1 The appeal succeeds.
2 The order of the court
below is set aside and is replaced with the following order:
‘
(a)
Leave to appeal against conviction is refused.
(b)
Leave to appeal against sentence is granted to the Gauteng Division
of the High Court, Pretoria.’
_______________________
C
Plasket
Judge
of Appeal
APPEARANCES
For
the appellant: T R Malanguti
Instructed
by:
Nelspruit
Justice Centre, Nelspruit
Bloemfontein
Justice Centre, Bloemfontein
For
the respondent: A I S Poodhun
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein