IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: CC48 /2021
REP ORT ABLE YESrt{J0
O F INTER EST TO 0~ JUDG ES YES /@
RE VISED : YES
In the matter between:
ANDREW MOCHIFEFE
and
THE ST A TE
JUDGMENT
M O SOPA, J
Applicant
Respondent
(1] This is an application for leave to appeal against both conviction and sentence.
The applicant w as convicted on 4 March 2024 on a charge of murder read with the
provisions of section 51(1) of Act 105 of 1997, unlawful possession of a firearm and
ammunition.
[2] As a sequel to such conviction, the applicant was sentenced as follows on 26
April 2024 ;
2.1. Murder: 20 years imprisonment;
2.2. Unlawful possession of a firearm: 6 years imprisonment, and
2.3. Unlawful possession of ammunition: 2 years imprisonment
It was ordered that sentences in counts 2 and 3 are to run concurrently with the
sentence in count 1. Effective sentence to be served by accused is 20 years
imprisonment.
[3] The applicant filed application for leave to appeal against both conviction and
sentence on 13 May 2024 (first notice of application for leave to appeal). Subsequent .
to that the applicant filed the second amended application for leave to appeal.
[4] The first application for leave to appeal was set down for hearing on 10 July
2024. The applicant raised the issue of interpretation relating to the evidence of the
first state witness Mr Adolf Serete Phetla. The applicant alleged that there are parts of
his evidence that were not properly interpreted. In the interest of justice and in fairness
to the parties I made the following order-
"This court's official recorders and transcribers are hereby authorised to permit the
Applicant's legal representatives, who are hereby authorised, to uplift the audio
recordings of the evidence of the state witnesses, Mr Adolf Serete Phetla, who testified
on 10 August 2022, and Mr Khulufela Samuel Masombuke who testified on 12 August
2022, for the purpose of examining the evidence of the witnesses and to compare their
evidence in their own words with their evidence as interpreted and transcribed for the
purpose of the Applicant's application for leave to appeal."
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[5] The application for leave to appeal was hereby postponed sine die to allow the
applicant to finalise that process.
[6] The process proved to be tedious and took long to finalise. However , the
applicant kept on updating us on the process undertaken.
[7] The matter was then set down for hearing on 20 May 2025, and after listening
to the parties, judgment was reserved. After the judgment was reserved, there was a
stage in which the file in this matter was taken away from me for the purposes of
auditing, and I could not take any step towards finalising the judgment. Recess period
also interrupted wherein I have to deal with many partly heard matters that I was seized
with. Criminal files are not yet migrated to court-online, and we are still using physical
files. I did not deliberately delay in promptly delivering this judgment.
[8] When the matter was heard, I made the following order, following the review of
the reviewed evidence of Mr Adolf Serete Phetla which was by agreement between
the parties that the official record of the evidence given by Adolf Serete Phetla on 10
August at 10:56:33, presently recorded as;
"It is not a mountain or hill it is just that it is a slope-like demonstrating a upward slope."
Be deleted and replaced with the following;
"I am not on top of the mountain I am near like here until to the door but a bit elevated."
Legal principle
[9] For us to properly understand the topic at hand, it is proper for us to appraise
ourselves with the legal principle applicable in the adjudication of applications of this
nature.
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[1 0] The applicant brings the application in terms of section 316(1 )(a) of Act 51 of
1977, which makes the following provision-
"Subject to section 84 of the Child Justice Act, 2008, any accused convicted of any
offence by a High Court may apply to that court for leave to appeal against such
conviction or against any resultant sentence or order."
[11] Section 17(1) of the Superior Courts Act 10 of 2013 also governs applications
of this nature and makes the following provision-
"Leave to appeal may only be given where judge or judges concerned are of the
opinion that-
(a)
(i) the appeal would have a reasonable prospect of success, or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues
between the parties."
[12] The applicant submits that there are reasonable prospects that another court
will come to a different conclusion from the one reached by this court. The concept
"reasonable prospects of success" was defined in S v Smith1 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
1 2012 (1) SAC R 567 (SCA) at para 7.
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on ap,peal 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."
[13] In Mont Chevaux Trust (IT 212/28) v Tina Goosen 2, Bertelsmann J, when
dealing with the concept of reasonable prospects of success, stated-
"It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to a different
conclusion, see Van Heerden v C ronwright and Other 1985 (2) SA 342 (T} at 343 H .
The use of the word "would" in the new statute indicates a measure of certainty that
another court will differ from the court whose judgment is sought to be appealed
against. .. "
Conv iction
[14] Despite giving a number of grounds for leave to appeal, the main contention of
the applicant related mainly to what was reviewed after the evidence of Mr Adolf Serete
Phetla went on a review, because of the complaint raised by the applicant.
[15] The admitted evidence being that after hearing the gunshot, Mr Adolf Serete
Phetla ran to the mountain, which he estimates to be a distance of 20 metres from
whe re the deceased was shot, w hich he described it as not being far. When he looked
back he saw the applicant going back to his yard, the deceased running away and
scaling over a fence, which was in the third house from that of the applicant. He further
saw people gathered there.
2 (unreported) Land C laims Co urt Case no: LCC 14R/2014 at para 6.
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[16) It is this evidence of the presence of other people who gathered there, that Ms
Kolbe is raising the argument that there might have been the presence of a shooter
from that group of people, taking into account that Mr Adolf Serete Phetla testified that
he did not run for a long distance. However, what is equally important is the evidence
of Mr Adolf Serete Phetla that when he started to run away , he did not "notice" the
presence of other people.
[17) This might mean different things, that there were other people but did not take
notice because he ran away or that there might have not been people, it is just that he
did not take notice of that. It is further contended that, where will the people be coming
from if they were not there when the deceased was shot, in such a short space of time.
[18) The evidence is that next to where the deceased was shot, there is a path which
was referred to in evidence as a "double-up" which was used mainly by TUT Students
to access the campus and other people as a "short-cut". The place is notorious for
robberies. There are several houses within the vicinity of the crime scene which are
used as rental for TUT students. The undisputed evidence of Mr Adolf Serete Phetla
is that the deceased's vehicle was the only vehicle on that street at the time of the
shooting.
[19) There is no evidence which places the absence or presence of other people
before the shooting incident and as such, no evidence places those people or person
gathered there as a shooter(s). The applicant is seen walking towards his yard, not
running. If there was a presence of another shooter, the applicant could not have just
walked to his place but could have been seen running considering the distance he was
with the deceased before he was shot. The reviewed interpretation of Mr Adolf Serete
Phetla's evidence, does not impact on the findings that I made at conviction stage.
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[20] All other grounds of leave to appeal raised, relates to the determinations that I
have already made at conviction stage, and I stand by such findings. I therefore find
no sound, rational basis for the conclusion that there are prospects of success.
Sentence
[21] The applicant was convicted of murder which resorts under the provisions of
section 51 (1) of Act 105 of 1997, which prescribes a minimum period of imprisonment
of life. I deviated from the imposition of the prescribed minimum sentence as in my
view, there was an existence of substantial and compelling circumstances on the part
of the applicant.
[22] I am as part of the grounds for leave to appeal, criticised that I incorrectly
applied the provision of the minimum sentence legislation as provided in Act 105 of
1997, in that-
"I concluded that section 51 (1) of the Act 105 of 1997 is applicable but that the absence
of a finding that the murder was premeditated or planned warranted a deviation from
the prescribed minimum sentence."
[23] In the Judgment on sentence, I dealt at length with this aspect I do not intend
on repeating it here, but I stand by what was decided at that stage. In S v Kekana 3,
the court when dealing with a sentence in murder cases, stated that-
"The provisions of the CLAA do not create different or new offences, but are relevant
to sentence. Thus, murder remains murder, as a substantive charge,
irrespective s 51 (1) or s 51 (2) applies ... It follows that there can never be a
plea to such a non-existent charge."
[24] Se ction 51 (2) of Act 105 of 1997 prescribes a minimum sentence of 15 years
for a first offender convicted of murder under such provision but also gives a
sentencing court a discretion to add a 5-year period of imprisonment to the prescribed
minimum sentence. I did not convict the applicant in terms of section 51 (2) but section
3 2019 (1) SACR 1 (SCA) at para 22.
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51(1) and in addition to that deviation from imposing the sentence prescribed under
such provisions. I see no sound, rational basis that the applicant has reasonable
prospects on appeal. No other court can come to a different conclusion from the one
reached by this court.
Order
(25) In the result, the following order is made ;
1. Application for leave to appeal against conviction and sentence is
hereby refused.
Appearances
For the Applicant : Advocate Kolbe SC
JUDGE OF THE HIGHCOURT
GAUTENG DIVISION, PRETORIA
Instructed by : Malanga Attorneys Incorporated
For the Respondent Advocate Coe tzee
Instructed by : Director of Public Prosecutions
Date of Hearing: 20 May 2025
Date of Judgment: 19 August 2025
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