IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1 REPORT ABLE: ¥ES/NO
2. OF INTEREST TO OTHER JUDGES. ¥eS/
NO
MVUSIKHOZA
And
THE STATE CASE No: CC2/22
In the matter between
Applicant
RESPONDENT
JUGDMENT
2
MONYEMANGENE , AJ
1. This is an application for leave to appeal against judgment and sentence
imposed by this court sitting at Benoni Circuit Court on 14 September 2022.
The Test the appellant was convicted on the following charges:
a) Robbery with Aggravating Circumstances: Count 1, 3,5, 12 and
14.
b) Common Robbery: Count 18.
c) Rape in Contravention of Section 3 Act 32 of 2007; Count 2'4'8,
9, 10, 11, and 13. Count no 8 to 11 the state relied on the
provisions of Section 51 (1) Act 105 of 1997. The indictment was
amended to incorporate the said provisions .
d) Assault with intent to do grievous bodily harm: Count 16.
2. An appellant who applies for leave to appeal must satisfy the Court that
there is a reasonable prospect of success on appeal. This is now trite.
3. In S v Mabena and Another 2007 (1) South African Criminal Reports at
page 492 at paragraph 22 the Supreme Court of Appeal stated thus:
"The test for reasonable prospects of success is a dispassionate decision
based upon the facts and the law that a Court of Appeal can reasonably arrive
at a conclusion different to that of the trial Court."
4. In S v Smith 2012 (1) South African Criminal Reports at page 567 at
paragraph 7 the Supreme Court of Appeal further held that:
"What the test of reasonableness prospect 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 a trial Court. In order to
succeed therefore, the defendant 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 ... There
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must in other words be a sound, rationale basis for the conclusion that there
are prospects of success on appeal"
5. The application for leave to appeal was lodged with the registrar timeously
on 3 October 2022. The application for leave to appeal is premised on the
following grounds
Ad Conviction
a. That the court erred in finding that the state succeeded in
proving the guilt of the applicant beyond reasonable grounds
b. Except where the identity of the appellant was linked by DNA
evidence, that the state failed to properly identify the
appellant as there was no meaningful description that could
assist the police in the search and arrest of the applicant.
c. That the court erred in relying on the evidence of
identification as the appellant was not legally represented
during the parade, that it was fraught with errors as one of
the witnesses, Christinah Modiba passed the appellant sitting
on the court bench while coming to court, and she confirmed
this in her testimony.
d. That the court erred in convicting the appellant of rape in
count 2 by inserting his finger as the intention to rape was
not there. The appellant inserted his finger in order to confirm
if the complainant was indeed on her menstrual circle.
e. That the court erred in rejecting the evidence of the applicant
as false and giving importance to minor discrepancies in his
evidence.
f.
6. I had the opportunity to reflect on the judgment I delivered on the merits. I
respectfully stand by my judgment in respect of the above-mentioned
matters raised. These issues were dealt with extensively in my judgment
and reasons were given for the findings I made. I gave full reasons why I am
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convinced that the state succeeded in proving the guilt of the accused
beyond reasonable doubt. In my judgment I dealt in great detail with the
evidence of identification , how each of the witnesses identified the accused.
I also explained that minus corroboration the way the witnesses identified
the accused, it would not have been sufficient enough to sustain a
conviction . For fear of repetition and burdening the record with analysis as to
how I concluded that the state succeeded in proving the identity of the
accused beyond reasonable doubt I do not propose to deal with the aspect
once again.
7. In light of the reasons given in my judgment , it is my respectful submission
that another Court will not reach a different decision regarding the appeal. I
accordingly find conviction and there are no reasonable prospects of
success in that the appellant has not satisfied me that he has a reasonable
prospect of his appeal succeeding in respect of the conviction. In the
result the leave to appeal in respect of conviction is dismissed .
Ad sentence
a. Regarding sentence it is argued that the sentence imposed
is strikingly disproportionate in that it is out of proportion with
to the accepted facts in mitigation .
b. That the court erred in underemphasizing the personal
circumstances of the appellant and overemphasized the
nature and the seriousness of the offence and the interest of
the community.
c. That the court erred in finding that there were no substantial
and compelling circumstances justifying a departure from the
prescribed minimum sentence.
d. Lastly that the court did not take into account the time spent
in custody and thus overemphasized that there were
aggravating circumstances in the matter.
8. As regards sentence , this I dealt fully with the personal circumstances of
the appellant and I dealt fully in my judgment why a term of life
imprisonment should be imposed in respect of count 8 to 12. 5
9. An Appeal Court's ability to interfere with a sentence imposed by the trial
Court is very limited and unless an appellant can point to a misdirection on
the part of the Court, or that the sentence imposed is not in accordance with
justice, the application for leave to Appeal must be dismissed .
10. The imposition of sentence is a discretion of the trial Court and a Court of
Appeal is not to interfere with this discretion for frivolous reasons. The Court
of appeal must not alter a determination arrived at by the exercise of a
discretionary power merely because it would have exercised that discretion
differently. A decisive question facing the Court on appeal of sentence is
whether it is convinced that the Court which had imposed the sentence
being adjudicated upon, had exercised its discretion to do so unreasonably.
If the discretion was exercised reasonably , then only then may a Court
of appeal interfere and if not, it cannot interfere.
11. In the matter of S v Ma/gas 2001 (1) South African Criminal Reports at
page 478d the Supreme Court of Appeal held thus:
"The Court exercising appellant jurisdiction may do so when the disparity
between the sentence of a trial Court and the sentence which the appellate
Court would have imposed had it been the trial Court, is so marked that it can
probably be described as 'shocking', 'startling' or 'disturbingly inappropriate '."
12. I am not entirely satisfied that the appellant has satisfied me that the
sentence is disturbingly inappropriate or that he has reasonable prospects of
appeal on sentence . In the result, leave to appeal in respect of the
sentences I imposed is accordingly dismissed as well.
~IS.~ E OF
THE HIGH COURT
Date of hearing:27 September 2024
Date of order: 16 May 2025
APPEARANCES
On behalf of the applicant:
On behalf of the respondent: Adv M B KGAGARA
PRETORIA JUSTICE CENTRE
Attorneys for Applicant
4t Floor Locarno House
317 Francis Baard Street
Pretoria
Tel 012 304 0617/083 514 4613
Adv E SIHLANGU
DIRECTOR OF PUBLIC PROSECUTIONS
NORTH GAUTENG