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NOKO J. (Bokako AJ concurring).
Introduction
[1] The appellant launched an appeal against his conviction and sentence imposed by
Regional Court Magistrate Mr MH Jooma at Orlando, Soweto. The appellant was charged
with attempted r obbery with aggravating circumstances , read with the provisions of the
Criminal Law Amendment Act 1. The appellant was convicted on 11 December 2023 and
sentenced to 10 years' imprisonment on 12 March 2024.
[2] The appellant launched an application for leave to appeal, which was dismissed by
the court a quo. He then petitioned the Judge President of the Gauteng Division,
Johannesburg. The Judge President allocated the matter to two judges who considered the
petition and granted leave to appeal. The judges have, in addition, stated that the Magistrate
interfered with the cross-examination of the complainant on material issues canvassed by the
accused’s legal representative, and his interference was irregular.
Background
[3] The complainant, Mr Thulani Dube (“Mr Dube”), was a Bolt driver who agreed to
provide a ride to the appellant on 23 December 2022 . The complain ant agreed with the
appellant that the fare payable would be R150.00 for the trip. The complainant stopped at a
BP garage (‘garage’) where the appellant had to withdraw cash to pay for the trip. The
appellant returned and informed the complainant that he needed an Absa ATM and not an
FNB or Nedbank ATM. The nearest Absa ATM was situated at Diepkloof Square , some
distance from the BP garage.
[4] The appellant embarked into the vehicle, and the complainant proceeded towards
Diepkloof Square. The appellant pulled out a gun, pointed it at the complaina nt and
demanded that he stop the vehicle. The complainant swerved the vehicle off the road and
collided with the curb. The firearm then fell onto the seat. The appellant and the complainant
wrestled over the gun. The appellant was ultimately assaulted with a wheel spanner by a taxi
driver who came to the scene and fainted.
driver who came to the scene and fainted.
1 Act 105 of 1997.
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[5] The appellant contended before the magistrates’ court that he had no intention to rob
the complainant of his vehicle. His intention was to threaten the complainant and flee without
paying the fare. The complainant, on the other hand, testified that the appellant specifically
instructed him to get out of the car as he wanted the car. The court a quo accepted the version
of the complainant, and the appellant was convicted and sentenced as stated above.
[6] The appellant was aggrieved by the findings of the court a quo and instituted the
appeal process. His grounds of appeal are, first, that the evidence upon which the conviction
was predicated is circumstantial, and the requirements were not met. Second, the court a quo
disregarded the appellant's evidence. Third, the court a quo erred in finding that the state had
proven its case beyond a reasonable doubt. Fourth, an added alternative is that the court a
quo interfered during cross-examination, which interference was irregular. The fourth ground
of appeal was not listed in the notice of appeal but was only raised during argument.
On appeal
[7] The counsel for the accused first gave a brief background of the facts. He stated that
the appellant was called to his sister’s house as she was being evicted from their house. He
needed to take a cab but then realised that he had no funds. He then decided that he would
nevertheless request a Bolt ride, and on reaching his destination, he would threaten the Bolt
driver with a toy gun and then flee without paying . He requested a ride on his Bolt app
without success. Coincidentally, he saw a Bolt cab, which was dropping someone off close
to his house. He approached it and, upon enquiring from the driver, he established that it was
indeed a Bolt cab and requested a ride, which was accepted by the driver . They discussed
and agreed that the fare would be R150.00.
[8] He embarked in the ca b and began his journey . On the way, the complainant
[8] He embarked in the ca b and began his journey . On the way, the complainant
requested payment, and he replied that he needed to withdraw cash from the ATM, and the
complainant agreed to stop at a petrol filing station. The filing station was BP, at which point
the complainant stopped . This was approximately five kilometres from the appellant's
destination. The appellant alighted from the vehicle and proceeded to the ATMs. He came
back and informed the driver that he had only found a Nedbank and an FNB ATM and he
needed an Absa ATM, which could be found at Diepkloof Square.
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[9] The trip resumed, and after a while, he realised that he was no longer too far from his
destination and could walk there. He took out a toy gun and pointed it at the complainant. He
instructed him to stop the vehicle so that he could alight , and he planned to flee without
paying. On seeing the gun, the complainant lost control of the vehicle and collided with the
curb. The complainant then grabbed the gun, and the appellant wrestled with him over it. He
overpowered the complainant and fled towards the other side of the road. After crossing the
road, he noted that he had left his bag and his cell phone in the car. He then returned to the
vehicle, where he was captured and assaulted by the complainant and another taxi driver who
stopped after seeing the scuffle.
[10] The counsel stated further that the appellant never had the intention to rob the
complainant of his vehicle and wanted to threaten the complainant with a toy gun and then
flee. Further, that there is no concrete evidence proffered by the complainant that he intended
to rob him of the vehicle , contended the appellant . This can also be inferred from the
complainant’s testimony during cross-examination, who could not, on his own, confirm that
the appellant demanded the vehicle from him , counsel argued . He was assisted by the
presiding officer , who prompted the complainant to state that , indeed, the appellant
demanded the vehicle from him.
[11] In addition, the counsel argued that the court a quo disregarded the evidence of the
appellant that he did not threaten the complainant, that he wanted to take his car. To this end,
the counsel argued that the state has failed to prove beyond a reasonable doubt that the
appellant intended to rob the complainant.
[12] During the cross-examination of the complainant, the defence counsel attempted to
cross-examine the complainant regarding the contents of his statement, but was frustrated by
cross-examine the complainant regarding the contents of his statement, but was frustrated by
the presiding officer , who stated that there w as no need for the witness to repeat his
testimony. Instead, the defence counsel was requested by the court to challenge any aspect
of the evidence; counsel further argued.
[13] I asked the counsel whether the instruction that the complainant should not repeat his
evidence prevented the defence counsel from cross-examining the complainant. He replied
that it would have depended on the skill of the counsel who was cross-examining the
complainant. He agreed, however, that the court cannot create a special regime for the
defence counsel who may be found wanting in their cross-examination skills.
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[14] Regarding the appeal on sentenc e, the defence counsel argued that the court a quo
did not set out the reasons why a deviation from the prescribed minimum sentence was not
warranted. The factors which should have been considered are that the appellant was 34 years
of age, was a first offender, was married with four minor children and was not carrying a real
firearm. The court should have , under the circumstances, deviated and imposed a sentence
of less than 10 years.
[15] The state counsel contended , on the other hand, that the complainant was a single
witness and dealt with in terms of section 208 of the Criminal Procedure Act. The court dealt
with his evidence cautiously and concluded that he was indeed credible and his evidence
reliable. Though the record indicates that the court a quo delved much into the arena, there
is no indication that the said interference led to the complainant changing his evidence , as
whatever he said was consistent with the evidence he tendered in chief.
[16] In addition, counsel continued, the appellant’s stance should be found wanting since
his version was not put to the complainant during cross-examination and only surfaced during
the defence case. This relates to the statement that he is not the one who suggested that the
driver should stop at a filling station to enable him to withdraw cash from the ATM. In
addition, his version was that he ran across the road and c ame back after he realised that he
had left his bag and cell phone. The complainant stated that the appellant was overpowered
with the assistance of the taxi driver and other people and assaulted until he fainted.
[17] The state counsel submitted that there was nothing out of th e norm from the factors
alluded to by the appellant. To this end , deviation would have been for flimsy reasons and
not consistent with the ethos of the prescribed minimum sentences regime. In conclusion, the
interference with the decision of the court a quo is not warranted.
Legal principles
interference with the decision of the court a quo is not warranted.
Legal principles
[18] It is trite that a notice of appeal should succinctly set out the grounds for the appeal,
and those grounds which are not succinctly and unambi guously set out in the notice are
antithetical to the rule of law and would accordingly lead to unfair appeal proceedings2. The
grounds would be foreshadowed by those set out in the application for leave to appeal. Rule
49(1) of the Uniform Rules of Court enjoins a party to spell out the grounds in no uncertain
2 See Cele v S (CA&R 13/2024) [2025] ZAECMHC 2 (21 January 2025).
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terms, and the court held in Sengono3 that “The grounds of appeal as required in terms of
Rule 49(1)(b) must be clearly and succinctly set out in clear and unambiguous terms so as to
enable the court and the respondent to be fully informed of the case the applicant seeks to
make out and which the respondent is to meet in opposing the application for leave to appeal.
This rule is peremptory in this regard”4.
[19] The appellant’s request to add a fourth ground of appeal , which was not in the
application for leave to appeal and not listed in the grounds of appeal , clearly goes against
the grain of what is set out in Sengono. To this end, the request to add a further ground of
appeal is unsustainable and bound to fail.
[20] Notwithstanding what is set out above, it appears that the appellant simply copied the
sentiments echoed by the judges who considered the petition when they stated that the
continued interference by the presiding officer constituted an irregularity and blindly sought
to add the same as a ground of appeal. This manifests a failure to distinguish a review and
appeal proceedings; the former being concerned with whether the process was in accordance
with justice. The impugned conduct of the presiding officer was a procedural issue hence the
appropriate route would have been a review and not an appeal process. That notwithstanding,
an irregularity may in some instances be of such a nature that the accused’s right to a fair
trial has been infringed. The appellant failed to properly ventilate this aspect and properly
introduce same as a ground of appeal. In any event, the assessment of the intrusion by the
presiding officer was not extremely critical to assail the ultimate conclusion of the court a
quo.
[21] The respondent was aggrieved by the failure of the appellant to put the appellant’s
version to the complainant during cross -examination. Placing the version of the accused
assists the accused in testing the credibility of the complainant . Once the complaint is not
assists the accused in testing the credibility of the complainant . Once the complaint is not
told about t he accused's version and considered such version of the accused under cross-
examination, a version which is only introduced during the defence case would not be
reliable, and the credibility of the accused would be questionable. Where such evidence has
not been tested, the court would be at large to assume that the complainant’s version was
admitted.
3 Songono v Minister of Law and Order 1996 (4) SA 384.
4 Id at 385 (I – J).
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[22] The exercise to determine the intention on the part of the accused may, as contended
by the accused, in other instances, be circumstantial. This would involve drawing inferences
from the proven facts. The complainant insisted that it is incorrect that the appellant only
wanted to threaten him and flee without paying the fare. This was not communicated to him
by the appellant. The complainant categorically stated during evidence in chief that the
appellant told him to get out of the vehicle and give him the car. This instruction was stated
during the examination in chief and repeated during cross-examination. These statements can
be discerned from the following reference from the record during cross-examination.
MR KOPAS: Now the accused instructs me further that when he pulled out that toy gun and pointed
it at you, he instructed you to pull over to the sid e. That what he was intending to do was to run
away, get out the car, all right, and run away from you without paying the ag reed fee.
INTERPRETER: (VERNACULAR).
MR KOPAS: So in other words, he wanted to scare you
MR DUBE: I do not know about that. I do not know about that, Your Worship. [Indistinct].
MR KOPAS: Now, t he accused instructs me that when , the way he reached when instructed you to
pull over is that you jump to the conclusion that he was trying to rob you of belongings in your car.
20 INTERPRETER: (VERNACULAR) ...[intervenes]
COURT: I am sorry, Mr Kopas, what ...[intervenes]
MR KOPAS: It is my instructions, Your Worship.
COURT: Thank you
MR DUBE: He said I must pull over. I must get out of the car, and he wants the car. He did not
mention anything about being short of money or anything.
COURT: Thank you
MR KOPAS: Now, in your statement to the police, sir, that you made, I just want to...do you confirm
you made a statement to the police?
you made a statement to the police?
[23] The version of appellant that he just wanted to threaten the complainant and flee from
the scene is not borne out by the evidence presented. The evidence by the complainant on
what the appellant said was not assailed during the cross -examination. To this end, the
appellant’s version could not be found to be reasonably possible true.
[24] Concerning the sentence which relates to an offence listed in the prescribed minimum
sentence regime, the SCA stated that “Here parliament has spoken . It ordained minimum
sentences for certain specified offences. Courts are obliged to impose those sentences unless
there are truly convincing reasons for departing from them. Courts are not free to subvert the
will of the legislature by resorting to vague and ill -defined concepts, such as ‘relative
youthfulness’, or other equally vague and ill -founded hypothes es that appear to fit the
particular sentencing officer’s personal notion of fairness. Pr edictable outcomes, not
outcomes based on the whim of an individual judicial officer, are foundational to the rule of
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I agree
____________________
TP Bokako
Acting Judge of the High Court.
DISCLAIMER: This judgment 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 of the judgment is deemed to be 22 January 2025.
Dates
Hearing: 17 November 2025.
Judgment: 22 January 2025.
Appearances
For the Appellant: A Makile, instructed by Njuze Attorneys.
For the Respondent: P Monareng, instructed by DPP, Jhb.