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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Case Number: A10/25
(1) REPORTABLE: NO
(2) OF INTEREST TO 0TH R JUDGES: NO
(3) REVISED: YES
20 May 2026
DATE
In the matter between:
SIYABONGA WENI Appellant
and
THE STATE Respondent
JUDGMENT
JANSE VAN NIUWENHUIZEN J
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Introduction
[1] The appellant was convicted on one count of robbery with aggravated
circumstances and sentenced to 15 years imprisonment in the Regional Court for
the district of Merafong City held at Fochville.
[2] The appeal lies against the conviction and sentence.
Facts
[3] On 13 August 2022 at approximately 20:00, Xolile Chachu and his friend, Tshiamo,
were on their way home from a shop when they were accosted by Mercy. Xolile
explained that he knows Mercy as they both live in the same township. On a
question whether he would be able to identify Mercy, Xolile pointed to the appellant
and identified him as Mercy. Xolile further explained that they were approximately
12 to 15 metres from the shop when Mercy accosted them and that he had no
trouble in recognising Mercy, because the shop was illuminated by a bright white
light.
[4] The appellant asked Xolile what the time was, and after Xolile consulted his phone,
he told the appellant the time as requested. The appellant said that he wanted to
see for himself, and Xolile showed the appellant the time on his phone. Whilst Xolile
was in the process of returning the phone to his pocket, the appellant grabbed his
phone.
[5] Upon being asked by Xolile what he was doing, the appellant produced a knife, and
Xolile decided to keep quiet. The appellant left the scene, and Xolile and Tshiamo
returned home. Xolile informed his parents of what had happened, and his parents
called the police.
[6] Xolile testified that he did not get his phone back, but that the appellant's mother
bought him another phone.
[7] During cross-examination , Xolile was referred to the statement he made to the
police, and it was pointed out to him that he merely stated that a "a black male"
approached him. He did not mention the appellant's name. Xolile responded that
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he did mention the appellant's name to the police, but also agreed that if he did, it
would have been in the statement.
[8] It was put to Xolile that the appellant denies that he was the person who robbed him
and that he will testify that he was at his parental home on the evening of the robbery.
[9] Tshiamo testified next, and, aside from the exact time when the appellant
produced the knife during the incident, his evidence largely confirmed that of
Xolile.
[10] The appellant testified in his own defence. He testified that he arrived home on
13 August 2022 at 18:00 and went to his bedroom. His mother and younger
brother were also at home. He remained at home until the following day, when
the police arrested him. The police did not find Xolile's cell phone in his
possession.
[11] The police advised him to replace Xolile's cell phone to make things easier for
him. He informed his parents of the advice, and his mother bought a cell phone
for Xolile. Thereafter, Xolile's parents endeavoured to withdraw the charge
against him, without success.
[12] During cross-examination , the appellant explained that his family is afraid to
testify and, as a result, he has no witnesses to corroborate his account that he
was at home on the night of the incident.
[13] The appellant further testified that he does not know Xolile and Tshiamo and
denied that he robbed Xolile of his cell phone.
Conviction
Issue in dispute
[14] The only issue in dispute is the identity of the person who robbed Xolile. The
appellant submitted that there were material contradictions in the testimony of the
two state witnesses and that the court erred in relying on their evidence to convict
the appellant.
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Judgment
[15] The court a quo was acutely aware of the contradictions between the evidence of
Xolile and Tshiamo in respect of when exactly the knife was produced during the
incident. The court a quo also considered the contradictions between their versions
in court and the statements they deposed to shortly after the event. Having
analysed the evidence of Xolile and Tshiamo and having had regard to applicable
case law, the court came to the following conclusion :
"Both testified from their vantage points and although they varied their evidence
slightly, there are no glaring inconsistencies as to the testimony of the taking and
the use of violence."
(16] Having accepted the evidence of Xolile and Tshiamo, the court a quo considered
the appellant's alibi defence and, in having regard to the evidence in its totality,
rejected the defence.
Discussion
[17] Both Xolile and Tshiamo had ample time to observe the appellant. The appellant
was close to them, and the lighting provided by the shop adequately illuminated
the area where the incident occurred. It is, furthermore, telling that Xolile took his
parents and the police directly to the appellant's parental home. If Xolile did not
know the appellant, he would surely not have known where the appellant resided.
[18] In the result, I am of the view that the court a quo was correct in relying on the
evidence of the two state witnesses to convict the appellant.
Sentence
[19] In terms of section 51 (2)(a)(i) of the Criminal Law Amendment Act, 105 of 1997, a
minimum sentence of 15 years imprisonment is prescribed for the crime the
appellant was convicted of. Section 51 (3) provides that a court may impose a
lesser sentence if the court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence.
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[20] In casu the court was not satisfied that such circumstances existed and imposed
the prescribed minimum sentence of 15 years on the appellant. The appellant
submitted that the sentence imposed by the court a quo was shockingly harsh and
induced a sense of shock. According to the appellant, his personal circumstances,
coupled with the time he spent in custody prior to his conviction, establish
substantial and compelling circumstances that justify a deviation from the
prescribed minimum sentence.
Test on appeal
[21] It is trite that a court of appeal's power to interfere with the sentence imposed by
the court a quo is circumscribed. The principle was succinctly summarised by the
Constitutional Court in S v Bogaards 2013 (1) SACR 1 (CC) at [41 ]:
"[ 41 J Ordinarily, sentencing is within the discretion of the trial court. An appellate
court's power to interfere with sentences imposed by courts below is
circumscribed. It can only do so where there has been an irregularity that results
in a failure of justice; the court below misdirected itself to such an extent that its
decision on sentence is vitiated; or the sentence is so disproportionate or shocking
that no reasonable court could have imposed it . .. , "
Facts and discussion
[22] The appellant's personal circumstances are:
22.1 he was 25 years old;
22.2 he was single and resided with his parents and siblings;
22.3 he passed grade 7; and
22.4 he was in custody serving a sentence.
(23] The appellant, furthermore, submitted that Xolile did not suffer any injuries, which
factor coupled with the appellant's personal circumstances, justified a lesser
sentence of not more than 10 years' imprisonment.
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[24] In order for this court to interfere with the imposed minimum sentence, the court
needs to find that the sentence of 15 years imposed by the court a quo is so
disproportionate or shocking that no reasonable court could have imposed it. .. , "
(25] It could hardly be said that the imposition of a prescribed minimum sentence is
shockingly disproportionate . The court a quo was bound by legislation to impose
the sentence.
[26] In the result, the court a quo did not err, but complied with the legislative imperative
in sentencing the appellant.
Order
I propose the following order:
The appeal against conviction and sentence _is dismissed.
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
I agree.
M LENYAI
JUDGE OF THE ~tlGH COURT OF SOUTH AFRICA
• /~;AUTENG DIVISION, PRETORIA . . . .. . ..
It is so ordered.
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Date of hearing:
Date delivered:
For the Appellant:
Instructed by:
For Respondent:
Instructed by:
16 April 2026
20 May 2026
Adv S Moeng
Pretoria Justice Centre
Adv Mafunisa
Director of Public Prosecutions, Pretoria
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