REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A44/2024
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO __ ____
09 June 2025
DATE SIGNATURE
In the matter between:
JAMES MOLAO Appellant
and
THE STATE Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties/ their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines . The date for handing down is deemed to be June 2025.
JUDGMENT
DOMINGO, AJ (RETIEF, J CONCURRING)
INTRODUCTION
[1 J This is an appeal against the conviction and sentence imposed upon the
appellant, James Molao on a charge of attempted murder by the presiding
Magistrate , Ms N.L. Moila on the 23 May 2023 in the Regional Magistrate Court
in Springs [Court a quo].
[2] On 28 February 2023 the appellant pleaded not guilty on the following charges:
2.1 Count 1, attempted murder, that on 19 August 2021 at Springs in the
regional division of Gauteng the appellant unlawfully and intentionally
attempted to kill Sergeant Mashala, a male person, by pointing a firearm
at him and pulling the trigger;
2.2 Count 2, possession of a firearm, that is contravening section 3 of the
Firearms Control Act 60 of 2000, in that the same day, 19 August 2021,
at Springs in the regional division of Gauteng, the appellant unlawfully
had in his possession a nine millimetre pistol without holding a licence in
terms of the Act to possess same;
2.3 Count 3, pointing of a firearm, that is contravening section 120(6)(a) of
the Firearm Control Act 60 of 2000, in that the same day, 19 August
2021, the appellant pointed a firearm or air gun or antique firearm which
was loaded and capable of discharging , that is a nine millimetre pistol,
to another person, which was Sergeant Mashala.
2.4 Count 4, impersonating a police officer, that is contravening section
68(1) of Act 68 of 1995, in that the same day, 19 August 2021 at Springs
in the regional division of Gauteng, the appellant unlawfully and
internationally pretended to be a member of the South African Police
Services.
[3] On the evidence before the Court a quo, the appellant was convicted on counts
1 and 4 and the appellant was found not guilty by the Court a quo on counts 2
and 3.
[4] On 23 May 2023, the Court a quo imposed a sentence of eight years
imprisonment for count 1 and two years imprisonment for count 4. The Court a
quo ordered that the sentences on counts 1 and 4 run concurrently in terms of
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section 280(2) of the Criminal Procedure Act 51 of 1977 [Criminal Procedure
Act].
[5] The appellant throughout the trial proceedings was legally represented . The
appellant chose not to testify thus the appellant did not challenge the evidence
of the state witnesses . The appellant also did not call any witnesses to testify on
his behalf.
[6] The state relied on the evidence of two witnesses, namely, Sergeant Leseba
Mantato Solomon Mashala [Sergeant Mashala] and Sergeant Madise Ben
Kholofelo Makgoale [Sergeant Makgoale].
[7] The appellant applied for leave to appeal in respect of both conviction and
sentence on 23 May 2023. His application for leave to appeal was refused. The
appellant then petitioned for leave to appeal to the High Court and on 2 August
2023, the appellant's leave to appeal on conviction and sentence was granted
only on count 1, attempted murder.
[8] Before proceeding to deal with the grounds raised by the appellant in his filed
petition, this Court will consider the evidence and thereafter the Court a quo's
findings.
EVIDENCE
[9] Sergeant Mashala testified that on 19 August 2021 he was driving and doing
patrol duty with Sergeant Makgoale when he noticed the appellant walking in the
street. The appellant was wearing a police uniform which did not exhibit any rank
structures or name tag. After calling out to the appellant and inquiring from him
which police station he was from, the appellant pulled out a firearm and pointed
it directly towards Sergeant Mashala. At this time of the incident Sergeant
Mashala was seated together with Sergeant Makgoale in the police vehicle and
Sergeant Mashala had his window rolled down. The appellant pulled the trigger
of the firearm, and Sergeant Mashala immediately ducked. The firearm did not
discharge. The appellant ran away, and Sergeant Mashala and Sergeant
Makgoale alighted from their vehicle and chased after him. A Sergeant Galushi
and Sergeant Phokane who were also in the area noticed Sergeant Mashala and
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Sergeant Makgoale chasing • the appellant and they assisted them in
apprehending the appellant. The firearm was seized from the appellant and one
round was found in the magazine . The appellant was unable to present a firearm
licence.
[1 O] Sergeant Makgoale's testimony corroborated that of Sergeant Masha la.
Sergeant Makgoale testified that he was doing crime prevention with Sergeant
Mashala. They noticed the appellant walking while wearing a police uniform
without any rank structures or bearing a name tag. The appellant was stopped
and questioned. The appellant pulled out a firearm which he cocked, and pointed
at them and he pulled the trigger. When the appellant realised that the firearm
did not discharge , he ran away. They chased after the appellant and finally
managed to apprehend him with the assistance of other police colleagues. The
firearm was seized from the appellant by Sergeant Phokane, who handed the
firearm to Sergeant Mashala. The firearm was booked in terms of the SAP13
procedure and placed in a bag and sealed with a number. One round was found
in the magazine of the firearm.
[11] The defence placed on record that they were not admitting that the weapon
seized from the appellant was a semi-automatic firearm. The prosecution
postponed the trial in order to call a ballistic expert. After consultation , the
prosecution decided not to call the expert to testify, as it would not take the case
any further. The ballistic report was however handed in as Exhibit C.
(12] The relevant parts of the ballistic report in terms section 212 of the Criminal
Procedure Act, inter alia reads as follows:
"6.1 The blank pistol is designed or manufactured to discharge only 9mm P.A.K
calibre blank cartridges.
6.2 The barrel of the blank pistol is obstructed with an insert that prevents it from
propelling a bullet or projectile through the barrel.
7. 1 The device was manufactured or designed to discharge centre-fire blank
pepper ammunition."
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[13] The appellant's legal representative applied for the appellant to be discharged in
terms of section 17 4 of the Criminal Procedure Act, as amended on counts 1, 2
and 3 as the firearm alleged to be in the appellant's possession was not a firearm.
[14] The state conceded that the firearm was analysed by Warrant Officer Ngobeni
as per Exhibit C and it was a blank pistol, and blank pistols are excluded from
the Firearms Control Act 60 of 2000 [Firearms Control Act].
COURT A QUO'S FINDINGS
[15] The Court a quo held that for a conviction on count 2 and 3 the state had to prove
that the weapon found in possession of the appellant was a firearm as defined in
section 1 of the Firearms Controls Act. According to the South African Explosives
Act1 blank guns are excluded from the Firearms Control Act and a user does not
have to require a license to possess blank guns. As a result, thereof, and the
state's concession that blank pistols are excluded from the Firearms Control Act,
the Court a quo ruled that on count 2 and 3 the appellant was discharged in terms
of section 174 of the Criminal Procedure Act as amended .
[16] The Court a quo then proceeded with the charge of attempted murder and held
according to the trial proceedings record that:
"The elements of attempted murder does not include that the firearm in question must
be a firearm as defined in section 1 of the Firearms Control Act. The elements of
attempted murder are attempt to kill another person unlawfully with intent to kill, and the
application to discharge the accused in terms of section 17 4 on count 1 is refused. "
[17] The Court a quo in evaluating the totality of evidence placed before it agreed with
the version of the state while being mindful of the merits of the case as the only
evidence placed before it was the state's evidence as the appellant elected to
remain silent.
[18] The reasons proffered by the Court a quo for agreeing with the version of the
state are that the state led the evidence of two police officers who were patrolling
on crime prevention . The witnesses corroborated each other's testimonies in
1 Act 26 of 1956 and Act 15 of 2003.
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material respects as to what transpired at the scene of the incident. The two
witnesses had no motive to implicate the appellant; it was common cause that
they did not know the appellant prior to the incident. The evidence is that the
appellant pulled a gun, pointed it at Sergeant Mashala, cocked it, and pulled the
trigger. Upon realising that it did not fire that is when the appellant ran away. By
pulling the trigger the appellant knew that the firearm would fire. His intention was
to kill; he did not know the firearm would jam. The firearm in possession of the
appellant was a blank pistol. The Court a quo held that "while blank cartridges
are less dangerous than live ammunition they can still be dangerous and can still
cause fatal injuries. If blanks are shot closer than a couple of feet they can be
deadly. Attempted murder is the failed or aborted attempt to murder another
person." The Court a quo found that the appellant by pulling the trigger, had the
intention to kill Sergeant Mashala. The Court a quo in its findings focussed on
the action and intention of the appellant.
[19] In exercising its sentencing discretion the Court a quo was mindful of the
purposes of sentencing being retribution , prevention, deterrence and
rehabilitation . The Court a quo made reference to the S v Swart2 case where the
Supreme Court of Appeal held that retribution and deterrence are proper
purposes of punishment and they must be accorded due weight in any sentence
that is imposed. In determining a sentence that is just and fair, the Court a quo
considered the triad of factors as set out in the S v Zinn3 case. The Court a quo
took into account the appellant's personal circumstances , the nature of the
crimes, including the gravity and extent, and the interest of the community. The
Court a quo also referred to S v Rabie4 where the Court held that punishment
should fit the criminal, as well as the crime, be fair to society and be blended with
a measure of mercy.
[20] The Court a quo in exercising its sentencing discretion had regard to the
appellant's personal circumstances that he was 43 years old, married with two
children aged 12 and 3 years old, he was a personal trainer earning R3 000 per
month and that the highest standard he passed was grade 1 0. Furthermore , the
2 2004 (2) SACR 370 (SCA).
3 S v Zinn 1969 (2) SA 537 (A).
4 1975 SA 855 (A).
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Court a quo had regard to the the five previous convictions of the appellant that
happened 10 years ago. The Court a quo took into account that the sentences
that were previously given to the accused did not rehabilitate him and that the
victim in Count 1 was a police officer. The Court a quo noted that "society is
crying out loud on crimes against our police officers who are supposed to take
care of the community. Police officers are being attacked daily and killed." From
the evidence the Court a quo held that Sergeant Mashala was affected
emotionally , as he testified that he was lucky to be alive. The Court a quo held
that what aggravated this incident even more was that the appellant wore a police
uniform, and he did not learn any lessons from his previous brush with the law.
Thus, all of that proved that the appellant was a violent person who is a danger
to society.
[21) The Court a quo thus sentenced the appellant to eight years imprisonment on
count 1 and two years imprisonment on count 4, to run concurrently. In terms of
section 103(1) of the Firearms Control Act, the appellant was previously declared
unfit to possess a firearm, the Court a quo ruled that this status quo would
remain. Furthermore , the Court a quo held that in terms of section 103(4) of the
Firearms Control Act, the Court ordered a search and seizure of all firearms and
ammunition which might still be in the possession of the appellant.
GROUNDS OF APPEAL
[22) The appeal against conviction on count 1, attempted murder is based on the
following submissions made by the appellant. The Court a quo:
22.1 Erred in finding the blank firearm was capable of inflicting a fatal shot at
close distance, there was no expert testimony in this regard;
22.2 Erred in finding the state had proved its case beyond reasonable doubt;
22.3 Erred in finding the essential elements of the charge had been proved,
particularly the intention aspect on the count of attempted murder;
22.4 Erred in finding the version of the accused to not be reasonably possibly
true.
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[23) The appeal against sentence on count 1, attempted murder is based on the
following submission made by the appellant:
23.1 The sentence is shockingly inappropriate .
23.2 The Court a quo should have given more regard to the duration of the
sentence.
[24) It was submitted by counsel of the appellant that the state's witnesses conceded
that they did not observe the appellant pulling the trigger. There was no evidence
that when the two witnesses ducked, the weapon was still aimed at Sergeant
Mashala. Thus, there was no direct evidence that the appellant pulled the trigger.
There was no evidence that the appellant thought that the weapon will shoot. It
was submitted that the appellant was in possession of a weapon designed to fire
"blank pepper ammunition. " The evidence in fact proved that the weapon that
was found in possession of the appellant was not a firearm in terms of the
Firearms Control Act.
[25) Having regard to the record of proceedings, there is no expert evidence that the
weapon in possession of the appellant, which was designed to fire "blank pepper
ammunition " as mentioned above was capable of inflicting a fatal shot at a close
distance as found by the Court quo. In the premises, the appellant's first ground
of appeal stands to be upheld.
[26) The Court directed both the appellant and respondent's counsel to Annexure C,
of the trial proceedings record which was the attempted murder charge sheet.
An issue that was not canvassed in detail in the notice of appeal was the glaring
fact that the charge sheet stated that the appellant was charged with the
attempted murder of Sergeant Mashala by "pointing a firearm at him and pulling
the trigger."
[27) Counsel for the respondent directed the Court to the case of Anthony v S5 and
averred that even in robbery cases, where the complainant is threatened with a
toy firearm during a robbery, the perpetrator must be convicted with robbery with
aggravating circumstances which would attract a minimum sentence of 15 years
5 2002 (2) SACR 453 (C).
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imprisonment because the complainant is threatened with bodily harm and for
that reason, aggravating circumstances are present.
[28] The court was not convinced with this submission by Counsel as the present
case was distinguishable in that the charge sheet specifically mentioned that the
unlawful and intentional attempt to kill Sergeant Mashala was done by "pointing
a firearm at him and pulling the trigger."
[29) This Court finds that in the absence of a finding of guilty on the charges of count
2 (possession of a firearm) and count 3 (pointing a firearm) it cannot logically and
factually be held that the appellant can be found guilty of attempted murder by
"pointing a firearm." From the record in this matter, it is clear from the evidence
that the weapon found in the possession of the appellant was not a firearm as
defined in section 1 of the Firearms Control Act. In the premises, this Court finds
that the Court a quo erred in finding the appellant guilty on the charge of
attempted murder as its findings on conviction did not align with the attempted
murder charge brought against the appellant in accordance with the charge sheet
on record. Thus, this Court finds that the Court a quo erred in finding the essential
elements of the charge of attempted murder had been proved, and furthermore
this Court finds that the Court a quo erred in finding that the State had proved its
case beyond reasonable doubt. The appellant's second and third ground of
appeal stands to be upheld.
[30] Having regard to the record of proceedings , the appellant remained silent
throughout the trial proceedings and did not testify as a result his version of
events was not placed before the Court a quo. In the circumstances , this Court
finds that it cannot be held that the Court a quo erred in finding the version of the
appellant to not be reasonably possibly true, when the Court a quo never heard
the appellant's version of events. As a result, the appellant's fourth and final
ground of appeal must fail.
[31] In conclusion , the the appellant's appeal against his conviction on count 1 is
upheld and it follows that the sentence on count 1 falls. The appellant's conviction
and sentence in respect of count 4 stands.
ORDER
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(32] The following order:
APPEARANCES
For the Appellant:
For the Respondent:
Date heard:
Date of Judgment: 31.1 The appeal is upheld and the conviction on count 1
and the resultant sentence is set aside.
31.2 The conviction and sentence on count 4 stands.
WDOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
I agree and so it is ordered.
L.A. RETIEF
JUDGE OF THE HIGH COURT
PRETORIA
ADVOCATE VANWYK instructed by LEGAL AID
SOUTH AFRICA
ADVOCATE L.A. MORE instructed by DIRECTOR
OF PUBLIC PROSECUTIONS
20 MARCH 2025
09 JUNE 2025
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