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[1] The applicants filed an application for leave to appeal their convictions and the
sentences imposed on them. They were found guilty of two counts of murder read with the
provisions of section 51(1) of the Criminal Law Amendment Act 1 (“CLAA”), and
contravention of the Immigration Act 2 on 18 December 2025. The judgment on sentence
was delivered on 19 January 2026, and they were each sentenced to life imprisonment for
each count of murder and 2 years imprisonment for the contravention of the Immigration
Act.
[2] The applicants contend that I erred in respect of the conviction and sentence on
several grounds. Whilst I considered all grounds advanced, I would, for this judgment, pay
close attention to those grounds highlighted during the address. First, the applicants
contend that I erred in concluding that the cell phone belonging to the late Siwedi, which
was found in the possession of accused 1, suggests that it was taken from the deceased
during or after the accused murdered her. The version of accused 3 is that the cell phone
was given to him a day before her death to remain in contact with the late Siwedi whilst
accused 3 was at home in Tembisa. Accused 3 gave the phone to accused 1 to return it to
the late Siwedi, as accused 3 would no longer be going back to work but would be visiting
his mother at his home in Mozambique.
[3] Secondly, I erred in admitting the evidence relating to the chain of custody, which
evidence was not tendered in accordance with the provisions of section 212(8) (a)(ii) (aa)
of the Criminal Procedure Act,3 which required that a person who delivered the exhibits
should be identified. This contention is fortified, Mr. Khunou, acting for the applicants,
argued, by what was stated by Bam AJ in S v Sithole.4
[4] Thirdly, the confession by accused 3 was not properly taken and therefore not
admissible, as he stated that he did not understand Shangaan (also referred to as Tsonga in
admissible, as he stated that he did not understand Shangaan (also referred to as Tsonga in
the Republic of South Africa) and did not understand what Lt Col . Rikhotso said. In
addition, the confession states that one person was murdered, whereas the charges relate to
1 105 of 1997.
2 13 of 2002.
3 51 of 1977.
4 Sithole v S 2013 (1) SACR 298 (GNP).
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the murder of two individuals, and the said confession further refers to Makausi Informal
Settlement, whereas the murder occurred in Rasta Informal Settlement.
[5] Fourthly, the evidence that accused 1, who was in handcuffs and leg cuffs, could
have climbed onto the roof of the shack to retrieve the black plastic bag containing sneakers
and a lumber jacket is implausible . The version of the accused was that they were
handcuffed after the arrest in Palm ridge even before the entourage proceeded to accused
3’s home in Tembisa. In contrast, the evidence of Ms Mpofu and Sgt Boshielo is that the
accused were only handcuffed when they were driving back to Primrose from Tembisa ,
and this evidence is inconsistent with the truth as set out by the accused, Mr Khunou
contended.
[6] Concerning sentencing, Mr Khunou submitted that Malgas5 read with Vilakazi6 are
instructive and should have influenced the court to consider imposing 15 years sentence
instead of life imprisonment. The submission is predicated on the argument that the chances
of the accused reoffending were minimal, and they are still young, hence they would be
easily rehabilitated. In the premises, life imprisonment would not be appropriate, Mr
Khunou submitted.
[7] Ms Deoraj, on the other hand , submitted that the arguments advanced by the
applicants do not assail the judgment both on conviction and sentence. She contended that
there is no basis to take umbrage with the evidence that indeed the cell phone found on
accused 1 belonged to the deceased. In addition, the evidence regarding the taking of the
confession from accused 3 was above board. The evidence regarding the chain of custody
was not challenged during the trial , and the counsel and the accused contended that the
defence opted to accept the statements submitted in respect of the chain of custody except
for the statement by W/O Selepe, as Captain Ngobeni was called to clarify the evidence.
for the statement by W/O Selepe, as Captain Ngobeni was called to clarify the evidence.
[8] In addition, Ms Deoraj continued, it is trite that a witness may not remember
everything which transpired with military precision. There will always be room for
5 S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1)
SACR 469 (SCA) (19 March 2001).
6 S v Vilakazi (576/07) [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6)
SA 353 (SCA) (3 September 2008).
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mistakes. To this end, the evidence tendered by Ms Mpofu is not tarnished by the mistake
she made in not mentioning in her statement the confessions by the accused 1 and 2.
[9] Concerning sentencing, Ms Deoraj submitted that her submission that the sentence
should run consecutively would have been justified, but she does accept that sentencing is
within the repository of the judge and to this end does not quarrel with the fact that I ordered
that the sentences should run concurren tly, even though she thinks it is lenient. In
conclusion, there are no merits in the application for leave to appeal, and the same should
be dismissed.
[10] It is trite that where an application for leave to appeal is instituted, the applicant
must demonstrate. inter alia, that the appeal has a reasonable prospect of success or that
the adjudication of the appeal would be precedent-setting, or that there is some compelling
reason why it should be heard. It is further trite7 that the Superior Courts Act8 has
introduced a higher threshold to be met in applications for leave to appeal, and the usage
of the word ‘would’ requires the applicant to demonstrate that another court would certainly
come to a different conclusion.
[11] The mere possibility of success, an arguable case or one that is not hopeless is not
enough.9 There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.10
[12] I have considered the reasons underpinning the grounds for leave to appeal and I
am not persuaded that another court would conclude that, on the conspectus of the evidence
I considered, the outcome I arrived at was not apt. The points raised by the applicants were
raised at the close of the trial on merits and sentence and have been repeated. I find no basis
to repeat the reasons I set out in the judgment as to why the applicants’ arguments were
7 See Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 232 5 (LCC). MEC for Health, Eastern
Cape v Mkhitha and Another (1221/2015) [ 2016] ZASCA 176 (25 November 2016), Acting National
Director of Public Prosecutions and Others v Democratic Alliance: In Re Democratic Alliance v Acting
Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016).
8 10 of 2013.
9 MEC for Health, Eastern Cape v Mkhitha (1221/2015) [2016] ZASCA 176 (25 November 2016) at para
17.
10 Smith v S (475/10) [2011] ZASCA 15; 2012 (1) SACR 527 (SCA) (15 March 2011).