REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA ,
GAUTENG LOCAL DIVISION , PRETORIA
( l ) REPORT ABLE: NO /YES
(2) OF INTEREST TO OTHEnES: NO/YES
(3) ~\\~\. lt~~;O/YES ~
DATE SIGNATURE
In the matter between:
Mlungisi Frank Sindane
and
The State
Case Number: A64/2024
Appellant
Respondent
This judgment was handed down electronically by circulation to the parties ' and or the
parties ' legal representatives by email and by being uploaded to CaseLines. The date
for the hand down is deemed to be 4 December 2025.
Judgment
Thupaatlase AJ (Mooki J concurring)
Introduction
[1] The appellant , together with his co-accused , were charged with various offences
including one count of armed r.obbery (i.e. aggravating circumstances as defined in
section 1 of the Criminal Procedure Act, 51 of 1977), two counts of murder , one count
of illegal possession of a firearm, and one count of possession of ammunition. It was
alleged by the State that the offences were committed on 29 September 2015 at
Mamelodi. The State further alleged that the offences were committed in furtherance
of a common purpose hatched by the accused and his co-robbers.
[2] The appellant, who appeared as accused two during the trial together with his co
accused, pleaded not guilty but both were found guilty by the regional court on all
counts after trial, and each was sentenced as follows:
[2.1] on count 1 (armed robbery): 15 years imprisonment;
[2.2] on counts 2-3 (murder): each count life imprisonment;
[2.3] on count 4 (illegal possession of firearm) 15 years imprisonment , and
[2.4] on count 5 (illegal possession of ammunition) 5 years imprisonment. The
sentences were ordered to run concurrently , and the appellant and his co-accused
were both declared unfit to possess a firearm in terms of section 103 of the Firearm
Control Act, 60 of 2000. The effective sentence was life imprisonment.
[3] As a result of the imposition of life imprisonment by the regional court the appellant
exercised his right of automatic appeal as envisaged in section 309 of the Act. He
noted an appeal against all convictions and the sentences. When the matter was
called before us , the appeals against conviction count 1 (armed robbery ) and count 2
and 3 (murder) were expressly abandoned by Counsel appearing on behalf of the
appellant.
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[4] Counsel conceded that the appellant was correctly convicted in respect of those
counts. He proceeded to argue appeals only in respect of convictions on count 4 - 5
and sentences in respect of all counts. At the conclusion of his argument counsel also
conceded the appropriateness of the sentence imposed in respect of the armed
robbery charge (count 1 ).
Background
[5] The facts can be briefly stated as follows: At around 18h00 on 29 September 2015
a Chinese national who is a complainant in this matter was together with his wife and
child inside his shop in Denneboom , Mamelodi. Also inside the shop was a security
guard as well as a number of customers . Armed robbers stormed the shop and
demanded money from the male Chinese national, and the appellant packed some
items in a big bag he had in his possession . Two of the robbers were armed with
firearms. The complainant and the guard were assaulted during the robbery. The
complainant was forced to go into his office as the robbers demanded money . After
the robbers had exited the office, the complainant remained behind and it was whilst
he was in the officethat he heard gun shots. He thought that the robbers had either
killed or injured his wife and child. He took out his licensed firearm a.nd fired at the
robbers. He shot and killed two of them. The two robbers who were shot dead were
armed with guns.
[6] The police arrived and took over the scene and began with investigations . The
people who were still inside the shop were ordered to remain lying on the floor. The
police were shown video footages by the complainant , and the appellant and his co
accused were identified as part of the robbers and were arrested.
[7] During the trial both the appellant and his co-accused admitted their presence in
the shop and the role they played as depicted in the video footages . However, they
denied having been part of the gang that robbed the shop owner. They insisted that
denied having been part of the gang that robbed the shop owner. They insisted that
they were forced by the armed robbers to participate . It is also common cause that the
video footages didn't have audio recordings.
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Issues on appeal
[8] As indicated at the comme_ncement of this judgment Counsel for the appellant
abandoned appeals in respect of the convictions for armed robbery and two counts of
murder. He conceded that he was not able to point out any misdirection by the trial
court in respect of those convictions. I believe that given the evidence such concession
was advisedly made. Counsel submitted that the conviction on the count of illegal
possession of firearm was susceptible to attack.
[9] It was submitted that there was no evidence to sustain a conviction of illegal
possession of firearm. The argument advanced was that the appellant was at no stage
in possession of a firearm during the robbery and further that in the absence of such
evidence , he should be acquitted of the charge . The State argued that given the
concession that armed robbery and murder convictions were correct , it was
unfathomable that it can be said that the appellant should be exonerated from illegal
possession of a firearm. It was submitted that the evidence should be assessed
holistically and that by way of in"ferential reasoning the court was correct in concluding
that the appellant illegally jointly possessed a firearm.
Legal Principles
[1 0] The approach regarding the issue of joint possession of a firearm was
authoritatively dealt as follows in S v Mbuli (422/2001) [2002] ZASCA 78; 2003 SACR
97 ( 7 June 2002) at para 71:
'Common purpose, and joint possession, both require that the parties concerned share
a common state of mind but the nature of that state of mind will differ in each case.
Perhaps Olivier JA had in mind the principles of joint possession, rather than the
doctrine of common purpose, when he said in S v Khambu/e 2001 (1) SACR 501 (SCA)
at par.1 o that that there is no reason In principle why a common Intention to possess
firearms jointly could not be established by inference, but I do not agree with a further
suggestion that a mere intention on the part of the group to use the weapons for the
suggestion that a mere intention on the part of the group to use the weapons for the
benefit of all of them will suffice for a conviction. In my respectful view Mara is J set out
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the correct legal position when he said the following in S v Nkosi 1998 (1) SACR 284
(VV) at 286h- i ' 'the issue which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference to the question whether
the State has established facts from which it can properly be inferred by a Court that:
(a) the group had the intention (animus) to exercise possession bf guns through
the actual detentor -and
(b) the actual detentors had the intention to hold the guns on behalf of the group
Only if both requirements are fulfilled can there be joint possession involving the
group as a whole and the detentors , or common purpose between the members
to possess all the guns'.
(11] To further illustrate the point I propose to liberally quote from the judgment of
Makhubela v S; Matjeke v S (CCT216/15,CCT221/16) [2017] ZACC 36 ; 2017 (2)
SACR 665 (CC) ; 2017 (12) BCLR 1510 (CC) (29 September 2017). The judgment
stated at para [46] that:
' In convicting the applicant for unlawful possession of firearm and ammunition , on the
basis of common purpose, the trial court departed from settled jurisprudence . The test
establishing liability for possession of firearms and ammunition was established in S v
Nkosi as follows: '
[12] The court went on to approvingly quote the Nkosi decision which was endorsed
by Mbu/i supra. The Makhubela ; Maljeke judgment continued to state the position as
follows at para [47]:
' The test has since been cited with approval in numerous judgments of the High Court
and the Supreme Court of Appeal. In these judgments , the courts have found
perpetrators guilty of a crime involving the use of firearms on the basis of the doctrine
of common purpose, but nevertheless found that the perpetrators guilty of a crime
involving the use of firearm on the basis of the doctrine of common purpose , but
nevertheless found that the perpetrators could not be found to be guilty of the unlawful
nevertheless found that the perpetrators could not be found to be guilty of the unlawful
possession of firearm on the basis of this doctrine. The test takes into account the fact
that the application of the doctrine of common purpose differs. in relation to
"consequence crimes", such as murder, and in relation to "circumstance crimes", such
as possession'.
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[13] Despite the appellant and his co-robbers being shown to commit armed robbery
and murder as shown the video footages , the law still requires the State to discharge
the onus to prove that the appellant had the necessary mental intention to possess
the firearm. In S v Kwanda [2017] 74 the SCA clarified at paras 51-3 that:
'The fact that appellant conspired with his co-accused to commit roqbery, and even
assuming that he was aware that some of his co-accused possessed firearms for the
purpose of committing the robbery, does not lead to the inference that he possessed
such firearms jointly with his co-accused'.
(14]] The evidence which was admitted and upon which the appellant was convicted
doesn't show that there was a stage during either before or during the robbery when
the appellant was ever in physical possession of a firearm . After the robbery the
firearms were found near the bodies of the robbers who were shot dead by the
complainant. The question remains whether a joint possession of a firearm is the only
inference that could be drawn. I conclude that mere knowledge by the appellant that
his co-robbers were in possession of a firearm even in circumstances where he
foresaw the use of such weapon is, on settled law, not enough to sustain a conclusion
that he jointly possessed a firearm with the other robbers.
[15] The evidence clearly establishes which of the robbers were armed. This doesn't
include the appellant and his co-accused , who is not before court. The evidence
doesn't link the two of them to such possession . The only way joint possession can be
imputed to the appellant is by way of inferential reasoning. This court concludes that
there is insufficient factual basis to sustain the conviction of unlawful possession of
firearms and ammunition based on common purpose . I fiund that the trial court erred
in convicting the appellant on these counts.
[16] It follows that the convictions in respect of illegal possession of firearm and
[16] It follows that the convictions in respect of illegal possession of firearm and
ammunitions cannot stand and must be set aside. The appeal against these
c onvictions (c ount 4-5) succeeds .
[17] I have already noted that the appellant appeared with a co-accused who is not
before court, and his appeals have lapsed but are capable of being reinstated. I
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propose to follow the direction in Mbu/i supra. In the premises it is directed that the
registrar of this court refer this judgement to Legal Aid South Africa with a request that
appropriate steps be taken to bring an appeal of the appellant's erstwhile co-accused
before this court, at least in relation to this charge.
Ad Sentence
[18]The argument regarding appeal was only in respect of life imprisonment imposed
for the two murder convictions. It was contended that the learned magistrate erred in
failing to give due consideration to the personal circumstances of the appellant , and
that the court didn't take into account the pre-conviction incarceration which was in
excess of three years and further that the court should have taken into account that
the appellant was convicted of murder based on do/us eventua/is as a form of mens
area.
[19] The power of the appeal court is circumscribed in that sentencing falls primarily
within the discretion of the trial court. The appeal court may interfere where the trial
court has not properly and reasonably exercised its discretion in imposing a sentence .
The corollary is that where the trial court has unreasonably exercised its discretion , .
the appeal court will be justified to interfere. See S v Salzwedel and Others 1999 (2)
SACR 586 (SCA).
[20] It is for the trial court to determine which factors should influence the measure of
punishment and the value to be attached to those factors. It is also so that mere
misdirection in itself is not sufficient to entitle this court to interfere with sentence
imposed by the trial court. The misdirection must be of a nature, degree or seriousness
as to show that the trial court didn't exercise its discretion at all or exercised it
improperly. See S v Kidibo 1998 (2) SACR 213 (SCA).
[21] The appeal court may also interfere where it is demonstrated that the sentence is
'strikingly' and disparate between a sentence imposed and that which the appeal court
'strikingly' and disparate between a sentence imposed and that which the appeal court
would have imposed. It is not sufficient for the appellate court to regard its own choice
as an appropriate sentence. See S v Sadler 2000 (2) SACR 511 (SCA).
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Personal Circumstances
(22] There is no denying that the personal circumstances of an accused play a
significant role when sentencing is considered. The court is required to give due weight
to those factors, and in this regard the trial court had the benefit of ~ pre-sentence
report and noted that same have been taken into account. It is also true that the
personal circumstances of the accused in serious cases recede to the background. In
S v Vilakazi 2009 910 SACR 552 (SCA) at para 58 the court expressed itself as
follows:
'The personal circumstances of the appellant, so far as they are disclosed in the
evidence have been set out earlier. In cases of serious crime, the personal
circumstance of the offender, by themselves, will necessarily recede into the
background. Once it becomes clear that the crime is deserving of a substantial period
of imprisonment the question whether the accused is married or single, whether he
has two children or three, whether he is in employment, are themselves largely
immaterial to what the period should be, and those seem to me to be the kind of "flimsy"
grounds that Ma/gas said should be avoided'.
I am satisfied that due weight was given to this aspect. The trial court dealt with the
personal circumstances of the appellant. The court also had regard to the probation
report that was compiled on behalf of the appellant.
Mens rea in the form of do/us eventualis as mitigating factor
(23] The appellant argued that the fact that he was not the person who pulled the
trigger should be considered a mitigating factor and be considered to be a substantial
and compelling factor. He argued that had the trial court took that fact into account it
will have deviated from the minimum sentence . Counsel for the appellant referred to
the case of S v Ndhlovu 2002 (2) SACR 325 (SCA) at para 56 the court held as follows
regarding the issue of do/us eventualis when sentence is considered :
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' I consider in this case, as in accused 3 and 4, the fact that oblique intent to kill
was proved (do/us eventualis) counts as a mitigating factor of substance '.
[24] This court is of the view that this aspect should be considered as part of the
factors that needs to be taken into account. The factor shouldn 't be elevated to such
prominence that on its own it is regarded as a substantial and compelling factor to
justify a deviation from prescribed minimum sentence. In the case of S v Rapitsi 1987
(4) SA 351 at 358F held that the fact that the crime was committed not with direct
intent but with dolus eventualis can in appropriate circumstances be mitigating
because it reduces the moral blameworthiness of the offender. The determination is
fact based . The court further cautioned against applying 'sliding scale method ' and to
decide the question of whether or not extenuating circumstances were present in a
given case only by reference to the degree of foreseeability. I am satisfied that due
weight was given to this aspect by the trail court.
Pre-conviction incarceration (Period awaiting trial)
[25] It was further submitted on behalf the appellant that the court misdirected itself
and erred in not considering the period of time the appellant was in custody before the
trial was concluded. The point whether the period awaiting trial should be considered
has occupied the attention of courts. This is understandable given the backlogs in trial
rolls across the country. The matter was settled by the SCA in the matter of Loyiso
Ludidi and Others v S (983/2020); 056/2024) [2024] ZASCA 162; 2025 (1) SACR 225
(SCA) where the court reviewed a number of judgments where this aspect was dealt
with and concluded at para 15 that:
'This court in dealing with a sentence of life imprisonment in Ncqobo v S confirmed
that the period spent in custody before conviction and sentencing is not on its own, a
substantial and compelling circumstance. It is merely a factor in determining whether
substantial and compelling circumstance. It is merely a factor in determining whether
the sentence is disproportionate and unjust. It was held that two years spent in custody
would ma1<e minimal Impact on a sentence or life imprisonment and did not render the
sentence shockingly disproportionate'. (reference omitted)
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[26] In Ludidi supra the accused was in custody for five years and eight months before
sentencing. The court indicated the reason for delays need to be investigated. In this
case the delay before the appellant was sentenced was three years and eight months.
It appears to this court that such a delay cannot be attributed to either the appellant
or the State. The trial was delayed due to heavy rolls that are facing courts on daily
basis. It was not shown that such delay was attributable to the State.
Conclusion
[27] I am satisfied that the trial court considered all the factors that were placed before
it, including a report from the probation officer. The trial court made reference to the
seriousness of the offences committed by the appellant and his co-robbers and
concluded that there were no substantial and compelling factors to justify deviation
from prescribed minimum sentence.
[28] The trial court took into account the warning in S v Ma/gas 2001 (1) SACR 469
(SCA) that specified sentences are not to be departed from lightly and for 'flimsy'
reasons. The trial court was alive to the seriousness of this case. The trial court noted
that violence was also directed at a small child and innocent customers who were
going about their daily activities. I am satisfied that the trial court didn't misdirect itself
when it considered sentence.
[29] As indicated above the convictions in respect of unlawful possession of firearm
and ammunition cannot stand and must be set aside. The appeal against conviction
(count 4 and 5) therefore succeeds , though given the life sentences meted in 2 counts
of murder (count 2 and 3) this has no practical effect on the appellant's incarceration .
Order
In the result the following order is made:
1. The appeal is partially upheld.
2. The order of the regiona~ court (trial court) is set aside only to the extent set out
below:
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(a)The appeal by the appellant against convictions on counts 4 and 5 is upheld.
(b) The convictions and sentences on these counts are set aside.
3. The Registrar of this Court is directed to refer this judgment to Legal Aid SA with
a request that appropriate steps be taken to bring accused no.1 's appeal before this
court in relation to count 4 and 5.
I concur
JUDGE (Acting) OF THE HIGH COURT
GAUTENG DIVISION (PRETORIA)
..
OMOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION (PRETORIA)
Date of Hearing: 15 October 2025
Judgment Delivered: 4 December 2025
Appearances
For the Appellant
Instructed by
For the Respondent
Instructed by
: Adv LA van Wyk
: Legal Aid SA
: Adv. ME Mafunisa
: Director of Public Prosecutions- Pretoria .
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