REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
D elete wh ichever is not applicable
(1 )R eportable: N o.
(2) Of interest to other judges· o
(3} Revised.
07 Novem ber 2025
Da te
In the matter between :
I
l Signature
LUCKY ZITHA
SPHAMANDLA NGUBANE
and
THE STATE
CASE NO : A302/2024
FIRST APPELLANT
SECOND APPELLANT
RESPONDENT
The matter was heard in an open court. The Judgment is handed down
electronically by circulating to the parties' legal representatives by email and
uploading to Caselines. The date and time for hand-down is deemed to be the
date that it is uploaded.
JUDGMENT
Ledwaba AJ (Munzhelele J concurring)
Introduction
[1] This appeal is against the conviction and sentence imposed by the
Regional Court sitting at Benoni (the trial court or court of first instance)
on the 24th of January 2020. The court of first instance granted leave to
the Full Bench of this Division.
[2] The appellants were charged as accused numbers two and three. They
were convicted of robbery with aggravating circumstances, read with
section 51 (2) of the Criminal Law Amendment Act 105 of 1997 (the
minimum sentence Act), where a firearm was used, as well as
housebreaking with intent to steal and theft. Mr Ephraim Mohapi and
Samuel Dlamini were charged as accused numbers one and three.
[3] They were sentenced to 15 years' direct imprisonment for robbery with
aggravating circumstances, and 5 years' direct imprisonment for
housebreaking with intent to steal and theft, both sentences to run
concurrently. In terms of section 103(1) of the Firearms Control Act 60 of
2000, they were declared unfit to possess a firearm.
[4] The appeal is based on the submission that, relying on the evidence of a
single section 204 witness, the state failed to prove the appellants' guilt
beyond a reasonable doubt. Not relying on any authority, the appellants
submit that Mr Pelation Samini Nhavoto (Nhavoto) is a single 204 witness
who did not implicate himself in the commission of the offences and who
did not remember the date the appellants allegedly delivered the tyres to
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him.
[5] The appellants' submission is that there is no direct evidence that they
committed the offences and that their alibi plea should have been
accepted as reasonably, possibly true, and the case decided on their
version.
(6] Regarding the sentence, the appellants submit that their personal
circumstances regarding age 1 , that they have children, 2 they were
employed3 , that most of the stolen items were recovered, and that they
waited for trial whilst in police custody4 Should have counted in their
favour to reduce the sentence.
[7] They submit that the trial court should have found that their personal
circumstances have the cumulative effect of constituting substantial and
compelling circumstances justifying deviation from the prescribed fifteen
years' imprisonment.
[8] The appellants submit that the trial court over-emphasized the
seriousness of the offence, the prevalence of the offence, and the interest
1 The first appellant was forty-two years while the second appellant was thirty-two years old.
2 The first appellant has twenty-two-and eleven-years old children. The second appellant has
one three old chid.
3 The first appellant was employed as security officer while the second appellant was employed
at Sapana Electricity.
~ The appellants submits that they spent two years and eleven months in custody before they
were sentenced.
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of society. They submit that the sentence under-emphasises their
personal circumstances, is disproportionate to the circumstances of the
offence, is shockingly harsh, and induces a sense of shock.
[9] On behalf of the respondent, it is submitted that:
9.1 It is not necessary for the State to prove its case beyond all doubt
that:
9.2 It is a common cause and or not disputed that there was a robbery
at the business premises of Mega Scrap Yard owned by Mr Arel
Potgieter (Potgieter), that the contents and correctness of the
complainant's statement of Mr Nhavoto were read and handed in
as an exhibit, and that
9.3 The identification of the perpetrators and whe ther the appellants
failed to provide a reasonable explanation for having the stolen
items were in dispute.
[1 O] It is submitted that the trial court is also required to apply its mind not only
on the merits or demerits of the state and defence witnesses but also to
the probabilities of the case.
[11] On behalf of the respondent, it is submitted that the trial court correctly
applied the cautionary rule of a single witness, Nhavoto. It is submitted
that the cautionary rule is a rule of practice and not a rule of law. The trial
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court found that Nhavoto testified truthfully and made a good impression
on the court.
[12] Nhavoto testified that he is well known to the first appellant and that the
first appellant was with the second appellant when they allegedly
delivered the stolen tyres to him.
[13] It is submitted that Sibusiso Ndaba and Potgieter confirmed Nhavoto's
testimony of robbery and the stolen items. The ownership of stolen and
recovered items was corroborated by the police officers, Constable
Tebogo Koko and Sgt. Philimon Magwasa, when Potgieter identified them
as his properties.
[14] On behalf of the respondent, it is stated that the trial court found that the
appellants' version was improbable, that the appellants were found to be
untruthful, and the state has proved its case beyond a reasonable doubt.
Background
[15] Before pleading, the trial court explained to the appellants, both
competent verdicts and minimum sentences referred to in section 51 (2)
of the Criminal Law Amendment Act. They pleaded not guilty
[16] The State led the evidence of four witnesses, being Potgieter, Nhavoto,
Ngubane , and two police officers.
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[13) Potgieter is the owner of Mega Scrap Yard, where they do second-hand
vehicle spares, including tyres and mag wheels. He knew the first
appellant as he worked for him as a security guard at the premises
together with complainant Ngubane.
[14) The previous day of the incident, he locked his business and left before
the complainant, Ngubane, came to do night shift security work. Around 4
a.m. the following day, he received a police call that the complainant
Ngubane was tied up, there was a break-in in the business premises, and
the items he listed on the paper with his own handwriting were stolen.
These included second-hand mag wheels, rims, tyres, a generator not in
a working condition, a weed eater, a vehicle sales agreement, and
license disk documents with his business letterhead bearing his
handwriting and his signature. The list was , by agreement with the
defence, handed in as Exhibit A.
[15] The missing documents were important for his sales track record. He
made his own investigations, and after about two weeks , he received
information which he passed to the police. The police recovered the stolen
items. He was not with the police when the goods were recovered.
[16] The first appellant was arrested at the premises before he was called to
identify his items.
[17] He remembered Nhavoto as the person who bought tyres and other stuff
from his business before the incident. He recently learned that he sells
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second-hand tyres.
[18] Nhavoto is a 204 witness who was previously charged as accused number
five before the charges against him were withdrawn.
[19] He was warned by the court that the charges were withdrawn against him
on condition that he tell the who le truth to the satisfaction of the state and
the court, failing which the state would have the discretion to charge him
again.
[20] He testified that he was arrested for having bought stolen tyres, which
we re brought to his workplace, where he fixes tyres. They were brought
by the first appellant in the company of the second appellant.
[21] On his return to his tyre repair workplace, his former employee Fernando
Aaron Mmusi, or Nyamusi, also called Bandana, told him the first
appellant came looking for him. Bandana identified the first appellant by
his name , and because he had his number , he called the first appellant
on his cell phone. He said he became aware of the second appellant's
name after his arrest when they were in the cells. He said the first
appellant used to come to his workplace to play cards when he had no job
to do. The first appellant previously sold him his Uno car tyres.
[22] It was on a Saturday, around 15 hours, when the first and the second
respondents came back pushing a wheelbarrow containing six tyres. They
claimed the third person's employer gave him the tyres.
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[23] The tyres were offered to him for sale, which he bought for R600 .00 after
negotiations. He testified that two weeks later, the police came with the
first and second appellants in the back of the police car, and he was
arrested for having purchased stolen tyres.
[24] He confirmed that he bought tyres from Mega Scrap Yard when his clients
needed good tyres. He said it was about four kilometres from his
workplace.
[25] The police officers, Constable Tebogo Koko and Magwaza, testified
about the recovery of the stolen items.
[26] Koko was the investigating officer of this case. The complaint Mr. Sibusiso
Ndaba was a security officer at the premises, when he was attacked by
five African males at gunpoint. It was dark, and he was instructed to lie
down and cover his face.
[26] About two weeks after the break-in, he received a call from the owner,
Potgieter, who informed him that he had received information that the
stolen goods were hidden at Zenzele township and that one of the places
belonged to his former security employee, Ephraim Mohapi.
[27] He left with Sergeant Magwaza and four members of the Crime
Prevention unit for Potgieter, who took them to the accused number one,
Ephraim Mohapi's address. They found three tyres under the bed, which
Potgieter identified as his, and Ephraim Mohapi could not explain where
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he got them from. Ephraim Mohapi was in possession of a Norinco semi
automatic firearm with ammunition, which he claimed he had a license to
possess. He produced an expired license.
[28] Potgieter then led them to the second appellant's place in the same area,
where they found a grass cutter, motor vehicle registration documents,
and memoranda of agreements used to change car ownership. The
documents had Mega Scrap Yard letterhead, Mr Potgieter, as well as
three vehicle computer boxes. When asked to explain possession, the
second appellant just looked down without giving an explanation for
possession.
[29] Potgieter led them to the first appellant's place, where they found two
electricity generators, a grass cutter, and a file with vehicle documents
and a memorandum of agreement with Mega Scrap Yard letterhead, as
well as two boxes full of tools. The first appellant could not explain the
possession of those items.
[30] They then went to Nhavoto's workplace and found that he was not at his
workplace. They went to collect him from his residential place and brought
him to his wo rkplace, where he took out five tyres and a mag wheel with
a tyre on. Nhavoto told them he bought the items from the second
appellant and Mr Dlamini. Mr Dlamini denied involvement in the
commission of those crimes.
[31] Potgieter identified the confiscated goods as his. H e did not participate in
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the house searches but stayed outside until the items were brought to him
for identification. The confiscated goods were entered into the exhibit
register.
[32] Police officer Sergeant Philiimon Magwaza went with the investigating
officer, Koko, and gave similar testimony.
[33] Sibusiso Ndaba , complainant's statement was admitted as an exhibit by
agreement with the defence. The statement says he is employed as a
security guard at Mega Scrap Yard. He was doing night patrol duty around
00:13 when he was accosted by five black males, one of them carrying a
firearm. They told him not to scream, took him to the corner of the yard,
and tied him up with shoelaces. They pointed a gun at him and told him
to lie down on his stomach.
[34] One of them remained with him while the rest went to the warehouse and
broke the door and window open, and went inside. They went past him
several times, collecting computer systems. They then left, leaving one of
them behind with him for about ten minutes before also leaving him.
[35] He stood up, saw the police car passing, and whistled. The police came
and untied him. He opened the gate, and they went inside the shop to find
that the items valued at R50 000.00 were stolen.
[36] The first appellant testified that the police officers Koko, Mag w aza, and
another uniformed police officer came to his place of residence in the
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evening and conducted a search. His fifteen-year-old child opened for
them, and he was assaulted by the police.
[37] The police then asked about Dlamini. He showed them Dlamini's
residence, where they also searched. They were handcuffed, and the
police ordered them to lie on the ground and assaulted them with an iron
rod.
[38] The police ordered his son to remove things from the shack. He testified
that they found two of his lawn machines, a steam wash , a Hoover, a
toolbox, a roll of razor wire, and a video machine. These items were never
returned to him. He had receipts for his items. He denied having seen the
documents with the Mega Scrap Yard letterhead being removed from his
place of residence. He did not see Potgieter identifying his goods, as
alleged by the police.
[39] They were put in the car with the removed items loaded in another car
and w ere taken to the police station. They were joined by other accused
at the police station and were again assaulted by the police, and talked
about the business robbery that took place. He knew nothing about that
robbery.
[40] He testified that he is from Mozambique , with Nha voto, and has known
him for a period of about twenty years. He conducts garden services, and
Nhavoto sometimes transports him to his workplaces. He denied having
gone to the Nhavoto tyre workplace, pushing tyres in a whee lbarrow and
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selling them to him. He sold his Fiat Uno tyres to Nhavoto. He is surprised
that Nhavoto implicates him in something he did not do.
[41] The second appellant testified that he was arrested at his place of
residence by Koko and Magwaza for alleged business robbery. They
assaulted him while the Uniform police officer searched his place and
found meat, a plastic bag containing some documents such as payslips,
UIF, ID photocopy, and a CV. Koko and Magwaza handcuffed him and
took him to the white Nissan Double Cab parked outside the house. They
handcuffed him with accused number one. He sustained injuries from the
assault.
(42] He denied that the police found two computer boxes, a lawnmower , and
car registration documents bearing the name Mega Scrap Yard.
(43] He denied having broken into Mega Scrap Yard or having committed
robbery.
[44] He denied having brought some wheels in a wheelbarrow to Nhavoto's
business. He denied having known Nhavoto before then. He admitted
knowing Nhovoto's place of business and having seen him there. He said
he met him at the police station.
(45] He was told about his alleged involvement in the business robbery at the
police station when he was charged.
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[46] He knew the second appellant and accused number one, but did not know
Nhovoto, and they were not on speaking terms. Accused number one sold
vegetables and cold drinks.
Discussion
[47] The burden is on the State to prove the guilt of an accused person beyond
a reasonable doubt, no more and no less. There is no burden on an
accused to establish his innocence. In any case, where there is a
reasonable possibility that the account of the accused may be
substantially true, then he must be acquitted. 5 The onus is not to be
understood to be beyond all shadow of doubt.6
[48] A court cannot convict an accused unless it finds that the accused's
version is so improbable that it cannot be reasonably possibly true.7
[49] Sibusiso Ndada and Potgieter are the only witnesses who testified about
what happened at Mega Scrap Yard, where robbery and housebreaking
occurred. Neither of them could identify the people who were involved in
the commission of those crimes.
[50] The appellant denied any involvement in the commission of the crimes
they were charged. Their response was mostly that they knew nothing
about the subject matter they were asked about. They claimed that the
items removed from their residential places belonged to them and that
5 State v Jackson 1998(1) SACR 470(SCA)-page 476-paragraph e-f; S v Chabalala 2003(1)
SACR 134(SCA) ; Maila v S (2023) ZASCA 3-par 20 ; Tshiki v S (2020) ZASCA 92(SCA).
6 Sv Ntsele 1998(2 )SACR 178( SCA)
7 Michael Jantjies v S (2024) ZASCA 3
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they had the receipts to prove ownership. They deny that the vehicle
registration documents with the Mega Scrap Yard and Potgieter signature
were recovered from their places of residence.
(51] The powers of an appeal court to interfere with the findings of fact of the
trial court are limited. In the absence of a witness's evidence, it is
presumed to be correct. To succeed on appeal, the applicant must
therefore convince the appeal court on adequate grounds that the trial
court was wrong in accepting the witness's evidence. - A reasonable
doubt will not suffice to justify interference with the findings. Bearing in
mind the advantage which the trial court has seen, hearing and
appreciating a witness, it is only in exceptional cases that the court of
appeal will be entitled to interfere with a trial court's evaluation of oral
testimony.8 In the absence of demonstrable and material misdirection, the
court's findings of fact are taken by an appeal court to be correct and will
only be disturbed if they are clearly wrong.9
(51] In terms of the doctrine of recent possession,10 Their possession of the
stolen items, such as the documents bearing Mega Scrap Yard
letterheads, justifies conviction on the charges.
[52] This doctrine permits the court to make certain inferences on the
possession of goods stolen from Mega Scrap Yard and identified by
Potgieter as his property.
[53] The court of first instance correctly rejected the appellants' version as not
reasonably possibly true.
8 S v Francis 1991(1) SACR 198(A) at 198j-199a.
9 Director of Public Prosecution, Free State v Mokati ( 2022) ZASCA 31 ; (2022) 2 All SA
646(SCA); 2022(2)( SACR 1 (SCA)· par 7
10 Rv Blom 1939 AD 188 ; State v Parrow 1973(1) SA 603(A)
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(54] It is correct that although the state led the evidence of five witnesses,
Nhovoto is the single witness whose evidence connected the appellants
to the commission of crimes they were convicted of.
[55] Nhvoto is the single witness referred to in section 208 of the CPA. The
principle in section 208 of the CPA is that the trial court may convict on
the evidence of a single witness, provided that such evidence is clear and
satisfactory or corroborated in all material respects. The exercise of
caution must not be allowed to displace the exercise of common sense.11
[56] Nhovoto's evidence is corroborated by the recovery of Potgieter's
properties, including the tyers.
[57] Sentencing is within the discretion of the trial court. An appeal court's
power to interfere with a sentence imposed by the trial court is
circumscribed. It can only do so where there have been irregularities that
failed justice, the court has misdirected itself to such an extent that its
decision on sentence is so disproportionate or shocking that no
reasonable court could have imposed it.12
[58] There is no basis to interfere with the court of first instance's conviction
and sentence.
[59] The appeal fails
Order
[60) The appeal for both conviction and sentence is dismissed.
11 S v Artman & An other 1968(3) SA 339{A )
12 Bogaards v S (2012) ZACC 23; 201 2 (12) BCLR 1261 ; 201 3(1) SACR 1 (CC) at 41 and 42
; S v Motloung 2016(2) SACR 243(SCA) -par 6
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I agree
APPEARANCES
LGP LEDWABA
A C TING JUDGE OF THE HIGH COURT
GAUTENG DIVISION: PRETORIA
HIGH COURT JUDGE
GUATENG DIVJSION : PRETORIA
Heard on: 11 September 2025
Judgement delivered on: 07 November 2025
For the Appellants: M r. M .B . Kgagara
Instructed by: Legal Aid South Africa
Pretoria Local Office
For the State: Adv. V.G. Khosa
Instructed by: OPP
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