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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
THABANG MOLLELE
·'.
KAMOHELO ALPHONS KHIBA
THAMSANQA GODFREY NDZUME
and
THE STATE Not reportable
Case no: A53/2024
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
RESPONDENT
Neutral citation: Thabang Mol/ele, Kamohelo Alphons Khiba and Thamsanqa Godfrey
Ndzume v The State
Coram: Van Rhyn J et Nemavhidi AJ
Heard: 11 November 2024
Delivered: 27 March 2025
Summary: Appeal and criminal law -housebreaking with intent to rob and robbery
with aggravating circumstances -two counts of attempted murder. Identities of the
Appellants placed in dispute during the trial. Appellants identities proved beyond
reasonable doubt as they attended school with the victims' children and used to visit
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the complainants' premises to buy commodities. Mr Mokhele Michael Ntsheno, (Mr
Ntsheno), his wife Mrs Rebecca Ntsheno (Mrs Ntsheno) and their daughter, Sebelelo
Ntsheno (MsNtsheno), and three minor children were present in their home located
at Botshabelo during the evening of 31 July 2014 when the three appellants broke
into and entered their home.
The State alleged that the offences were committed by the three appellants and
presented the testimony of eight witnesses in support of its case.
The appellants pleaded not guilty to all three charges. No plea explanations were
tendered in terms of the provisions of s 115 of Act 51 of 1977.
-The appellants were represented during the trial.
-After the close of the State's case the 1st appellant terminated his legal
representative's mandate and elected to conduct his own defence.
-Minimum sentences were explained prior to the commencement of the trial.
ORDER
The appeal against conviction is dismissed.
JUDGMENT
Nemavhidi AJ (Van Rhyn J concurring)
[1] The appellants were convicted in the regional court, Botshabelo, on 29 June 2016
and sentenced on 16 August 2016 as follows:
(1) Robbery with aggravating circumstances : 12 years imprisonment.
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(2) Attempted murder: 6 years imprisonment
(3) Robbery with aggravating circumstances: 12 years imprisonment
The appellants were effectively sentenced to a cumulative period of 18 years'
imprisonment. Leave to appeal the conviction was granted by the Court a quo.
Background:
[2] On 31 July 2014 the Ntsheno family were in their house between 20h30 and
21 h00. The state alleged that the Ntsheno family consisting of his wife and four children.
On that night Mr Ntsheno, also known as 'Tall', was at his tavern which is at his home place
of abode while his wife and their children were in the house. He told his patrons that he
was tired and that they should leave. Among them was Fusi, his assistant, and Lerato. He
proceeded to the house after telling Fusi to close the gate on his way out. He entered the
house and warmed his food in the kitchen while his wife and children were in the bedroom
preparing to bathe.
[3] Suddenly the kitchen door opened. Fusi stomped in as if he was being pushed.
Three other men, whose faces were covered, entered the house brandishing firearms.
One hit him with a firearm on his cheek while another pointed a firearm at his stomach.
They demanded his firearm and the keys to his safe. He informed them that he owned
neither after which they forced him to walk to his bedroom; he was walking backwards,
facing his attackers. Meanwhile, Lerato entered the house through the kitchen door.
[4] They were made to sit in the bedroom, whereafter the three men suddenly went
outside the house. When they left the bedroom to go outside, his wife attempted to close
the kitchen burglar door. At that stage he heard gunshots; his wife was shot before she
could close the burglar door.
[5] The three assailants re-entered the house but their faces were no longer covered.
He could see them clearly as the electric lights in the house were on. The first appellant
shot him in the lower part of his stomach, then proceeded to enter his bedroom where he
searched and came back carrying a bag which contained money. Thereafter, the first
appellant shot him again, in his hand. Sebolelo( Ms Ntsheno), his daughter, then threw a
Puma bag which contained money to the first appellant and begged him not to shoot her
father again. All three assailants then left. The police were summoned and took the injured
victims to the hospital, where Mr Ntsheno spent a week recovering .
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Evidence for the state
[6] Mr Ntsheno testified that when the three assailants entered the house they called
him by his popular nickname, 'Tall'. During the robbery, he was forced to his bedroom,
and made to sit down with the other members of his household, he noticed that one of the
attacker's face-covering, comprising of a hat and a scarf, had moved downwards which
allowed him to recognize the attacker as Thami, the third appellant.
[7] The first appellant shot him twice while the third appellant pushed him with a
firearm. Ms Ntsheno pleaded with them not to shoot her father again, as he was attempting
to balance himself while holding onto the headboard to avoid falling. Ms Ntsheno then
took out a bag which was inside the Puma bag and threw it to the first appellant. This bag
contained her mother's stokvel money. Thereafter, all three assailants left and her mother
managed to enter the bedroom bleeding, as she had been shot.
[8] Mr Ntsheno knew the second appellant, as both lived in section E. He identified
him as 'Pana'(second respondent)". He also knew the third appellant as 'Thami', as he was
a regular customer at his shop. It was also known to Mr Ntsheno that third appallent's
parents were related to a woman who used to work for him. The third appellant was the
one who called him 'Tall' and demanded the firearm and safe keys, and it was the second
appellant that hit him on his cheek with the firearm.
[9] He identified the first appellant at an identity parade held at Grootvlei Prison on the
19 November 2014. However, the second and third appellants refused to partake in the
parade because they were well known to the victims .
[1 0] Ms Ntsheno testified that on 31 July 2014, at about 20h30, she was in the bedroom
at her house with her mother, two siblings and her own child, who she was about to bath.
She heard a noise coming from the kitchen and went to investigate. She noticed that her
father was being accosted by three men holding firearms. She heard them shout that they
wanted money and a firearm from her father.
[11] She and her mother tried to escape, and it was at this instance that her mother
tried to close the burglar door before being shot. In this regard, she testified that the shooter
was the first appellant. Thereafter, she was forced back into the house and all three
assailants forced them into her bedroom.
[12] The first appellant then shot her father after continuously demanding more money
and a firearm. When Mr Ntsheno did not comply with the request, he shot him again.
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Fearing that her father might die, she gave the attackers about R16 000.00 stokvel money,
which her mother kept.
[13] Third appellants scarf, which had covered his mouth, fell while he grabbed her
phone with which she intended to call the police. However, the attackers' attention was
focused on the money which was when Ms Ntsheno managed to identify the second
appellant.
[14] She stated that she did not know the first appellant at the time he shot her mother.
He had not covered his face when he shot her and she could clearly see him, as the lights
were on. Furthermore, she said she knew the second appellant, as she used to see him in
the str_eet drinking liquor. She knew third appellant, as he used to drink at her family's
tavern. Ms Ntsheno also identified the appellant at the identity parade. Lastly, on the night
of the incident, she did not tell the police that she saw the second appellant's face because
she was afraid to mention their names, as her parents were still in hospital.
[15] Mrs Rebecca Ntsheno (Mrs Ntsheno) testified that she was in the room with her
daughter (Ms Ntsheno). They were preparing to bath their three minor children when they
heard noise coming from the kitchen. She sent Ms Ntsheno to check and when she
returned she reported that three men were pointing her father with firearms. She went to
the dining room where she met the assailants who pointed firearms at her resulting in her
retreating to the room in which she was. The assailants pushed Mr Ntsheno into the room
in which they were.
When the noise subsided she went through the kitchen to close the burglar door which is
on the stoep. As she was about to close it one of the assailants shot her on the stomach.
She fell on her back. She managed to see the man who shot her as he was no longer
covering his face. As she was screaming, second appellant kicked her on her buttocks and
third appellant slapped her. They were wearing blue or black big lumber jackets. While
lying on the floor she heard two gunshots. At that stage, she could not rise.
When the assailants left the third appellant picked her up and took her to the bedroom.
She spent a week in the hospital. She went to Grootvlei Prison on the 19th November 2014
with Mr Ntsheno and Ms Ntsheno to take part in the identification parade where she pointed
the first appellant as the person who shot her.
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[16] Selena Nyapotse (Ms Nyapotse) testified that on 31 July 2014, she was at her
home with two children which is located in the same street as the complainants' residence.
On that night, the third appellant arrived at her home with his two friends. He was her
boyfriend at the time. Ms Nyapotse also identified the third appellant's friends as the first
and second appellants. The first appellant asked her if it would be easy to enter Mr
Ntsheno's place. She replied that it will not be easy. The three then left but came back a
few minutes later carrying three bags-a Nike one, a Puma one, and another one without
a name.
[17] They left these bags at her house and then left. She noticed that the police were
at Mr Ntsheno's place. She checked the contents of the bags and saw that one contained
firearms and another one had SASSA cards and identity documents of people who borrow
money from Mr Ntsheno and the last bag had money in it. This made sense as she also
used to borrow money from Mr Ntsheno. She explained that she used to live with him in
the same street.
[18] She stated that third appellant used to sleep with her at his place and at times he
would sleep at her place. She denied that on that night he was watching TV at his place
with the first and second appellants because he did not have a TV at his home.
Furthermore, she testified that her boyfriend had been stabbed a month prior incident. He
had recovered by the time of the incident. She denied that she had become separated from
the third appellant in December 2013 as he frequently visited her until he disappeared in
October 2014. Lastly, she testified that she was taken to the police station where she was
threatened with arrest at the time she made her statement.
Defence case
[19] The first appellant told the court that he knew Mr Ntsheno because he used to buy
goods from his shop. On the 31st of July 2014, he was at home with his wife, his brother,
child, and his mother. He testified that Ms Nyapotse was his girlfriend and that he knew all
the complainants . He denied any participation in the incident in question.
[20] The second appellant testified that on the 31s1 of July 2014, he slept at the third
appellant's place, where the latter was recuperating from an attack in which he was
stabbed 13 times. He stayed with him for three weeks. At about 9h00, he heard about the
robbery at Mr Ntsheno's place from his girlfriend, as she lived next door. He denied that
he was at Ms Nyapotse's place on 31 July 2013. He knew the Ntsheno family because he
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attended school with Mr. Ntsheno's son and used to drink at Mr Ntsheno's tavern.
[21] The third appellant stated in his evidence that on 31 July 2013 he was with his
girlfriend Mzwake and the second appellant at his home. He also confirmed that he was
attacked and recovering from stab wounds at the time. When this incident happened, he
was sleeping at his home.
With this evidence the defence case was closed.
[22] The court called two witnesses, to wit Mzwake Nkosi ("Ms Nkosi") and Lerata
Noise Makalanyane ("Mr Makalanyane"). Ms Nkosi told the court that she '!let the third
appellant , in June 2013 and became his girlfriend. The affair ended because he phoned
her from prison and insulted her. Furthermore, on 31 July 2013, she was at the third
appellant's residence when he arrived between 21 h00 and 22h00, followed shortly by
second appellant. When they began their relationship, third appellant had fully recuperated
from the attack upon him.
[23] She disputed that third appellant and second appellant were watching TV because
third appellant did not have his own TV where he stayed. She also denied that she ever
spoke to Mr Ntsheno before she testified. She stated that on the night in question she
scolded him for coming home so late. She also testified that she was unsure as to whether
he woke up at night and went somewhere, as she was asleep. According to Ms Nkosi, he
had a tendency to leave his home without telling her where he would be going.
[24] The second witness, Mr Makalanyane, told the Court that he ordinarily consumes
liquor at Mr Ntsheno's tavern and that he knows everyone in the Ntsheno family. He also
knows the first appellant and the third appellant. It was the first appellant who pointed a
·gun at his forehead when they were at Mr Ntsheno's house. However, the third appellant
was also carrying a firearm.
[25] Their interaction began when he met the two in the street carrying bags. He noticed
that the Ntsheno family home's gate was still open as he was making his way there,
because he wanted to buy cigarettes from Mr Ntsheno through the security door. The first
appellant assaulted him and pointed a firearm at him; he dragged him inside the house
where he demanded money from Mr Ntsheno. Thereafter, the appellants moved out of the
house momentarily and when they came back, the first appellant shot Mrs Ntsheno when
she tried to close the security door. They also shot Mr Ntsheno in his daughter's bedroom.
The daughter, Ms Ntsheno, threw a bag of money at them to avoid her father from being
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the witnesses testify in his presence in court. As the saying goes, he was steeped in the
atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to
interfere with his findings.'7
[33) The trial court in this matter demonstrated a fair-minded and balanced approach
to the evidence. I agree with the findings of the trial court.
In the circumstances , I propose the following order:
The appeal against conviction in this matter is dismissed.
I concur. It is so ordered.
Appearances
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
7 Ibid para 30. VAdams
Legal Aid, Bloemfontein
Adv Liebenberg
OPP, Free State, Bloemfonte in NEMAVHIDI, AJ
VAN RHYN, J