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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A324/24
HEARD ON: 20 May 2026
JUDGMENT: 26 May 2026
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
DATE : 26 May 2026
SIGNATURE
In the matter of:
SANDILE HLATSWAYO APPELLANT
AND
THE STATE RESPONDENT
JUDGMENT ON APPEAL
________________________________________________________________
Strijdom, J (Baqwa J concurring):
INTRODUCTION
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[1] The appellant, Mr Sandile Hlatswayo, appeals to this court against his conviction and
sentence imposed upon him by the Regional Court, Benoni, on 4 September 2024.
He was convicted on one count of theft of a motor vehicle and sentenced as follows:
1.1 Eight (8) years’ imprisonment, of which four (4) years are suspended for five
(5) years on condition that the accused is not convicted of motor vehicle theft
committed during the period of suspension.
[2] The appellant was legally represented throughout the trial proceedings and pleaded
not guilty to the charge preferred against him.
[3] Leave to appeal have been granted after appellant petitioned the Judge President of
this Court.
MATERIAL BACKGROUND FACTS
[4] The facts which emerge from the evidence are, for the greater part, not contentious.
During the early hours of 18 October 2020, Johnny Edward van Rensburg, a
recovery agent for Cartrack Vehicle Recoveries, received information from their
control room via telephone about an Audi A4, silver in colour, with registration
number R[...], that was allegedly hijacked in Cullinan. The information was shared
with Captain Van Niekerk of the Benoni Flying Squad. The vehicle was tracked until
Kingsway Road, Daveyton turnoff, where it was stopped and the appellant was
arrested.
[5] Grant Kenneth van Niekerk, a captain in the South African Police Service attached to
the Benoni Flying Squad, testified that he was part of the tracking group on his cell
phone. Whilst he was on duty in the early hours of 18 October 2020, the tracking
company posted a message indicating they were tracing a vehicle that was hijacked
in the Cullinan area. He followed on the messages and found the alleged hijacked
vehicle a couple kilometres before the Daveyton turnoff. He pulled in front of the
vehicle, a silver Audi A4. The tracking people had found one suspect that was
standing outside the vehicle. He then arrested the appellant.
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[6] He established from the owner of the vehicle, an Indian gentleman, who arrived plus
minus 45 minutes later in the company of Cullinan police officials that the vehicle
was not hijacked but stolen. Upon being asked for how long had the appellant and
the vehicle been at the place where he found them, his response was “not even a
minute, seconds. What happened is when the tracking company saw my blue lights
coming, they stopped the Audi.”
[7] Captain van Niekerk asked the appellant whose vehicle he was driving. The appellant
said it was his brother’s vehicle. The complainant was asked if the appellant is his
brother and he said no.
[8] Johnny Edward van Rensburg testified that he is a recovery agent for Cartrack. On
18 October 2020, he was on duty and received a call from the control room about a
vehicle that was hijacked, an Audi A4 silver with registration number R[...]. He
started moving from Rosslyn going to Mamelodi where he met up with Cullinan
SAPS also searching for the vehicle. The Audi A4 was then moving 10 kilometres in
front of them. He started giving chase. He received information from the control
room that the vehicle is now stationary in Daveyton. When they arrived on the
scene, SAPS Flying Squad, had already pulled over the vehicle and arrested the
suspect.
[9] Karel Dreyer Rothmann testified that he is a Fleet Tracking Manager at Cartrack, and
that the complainant, Mr Abdul Mushawar, is a contract holder in respect of the
vehicle, an Audi A4 with registration number R[...].
[10] He compiled a trip report (Exhibit “A”) in respect of the Audi A4 as a result of a
complain that Cartrack received on 18 October 2020. He explained that the said
vehicle starts in Refilwe at 01:35 from there the vehicle goes into Premier Diamond
Mine, Cullinan. Then it goes onto the R515. Then it gets off at Welbekend on
Pretoria road. It stays on Pretoria Road until it gets to Geldenhuys Road in Benoni.
Pretoria road. It stays on Pretoria Road until it gets to Geldenhuys Road in Benoni.
Then it goes onto Kingsway Avenue, Benoni and then Kingsway Avenue goes into
Daveyton and the ignition is turned off at approximately 02:26.
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[11] A statement by the complainant was admitted into the record Exhibit “B” after the
State applied for the re-opening of its case and admission of the statement in terms
of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. The contents
of the statement reveals that the vehicle in question was stolen and Mr Abdul
Mushawar is the owner of the vehicle.
[12] The appellant testified in his defence without calling any witnesses. His version was
that he does not know, owing to drunkenness, how he got into the vehicle and he
was surprised when he was woken up by the police inside the vehicle. He denied
stealing and driving the said motor vehicle.
THE COMMON CAUSE FACTS
[13] The following are common cause facts or not seriously disputed:
13.1 That Cartrack received information about an alleged hijacked/stolen Audi A4
at Cullinan.
13.2 That the said Audi A4 was tracked by the vehicle tracking recovery agents
moving from Cullinan until Kingsway and Daveyton turnoff where it was stopped.
13.3 That after the vehicle was stopped the appellant was arrested.
LEGAL ARGUMENTS ON CONVICTION
[14] The appellant’s grounds of appeal, as argued by Mr Botha, centre on the contention
that the trial court erred in not finding that the appellant wasn’t the driver of the
stolen vehicle and that his version is reasonably possibly true.
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[15] It was further argued that the circumstantial evidence does not prove the guilt of the
appellant. It is not the only reasonable inference that can be drawn from all the
proven facts and it does not exclude all other inferences and specifically the
appellant’s version.
LEGAL PRINCIPLES
[16] The principles governing an appeal against conviction and sentence are well
established.
[17] A court of appeal is not at liberty to depart from the trial court findings of fact and
credibility, unless they are vitiated by irregularity, or unless an examination of the
record of evidence reveals that those findings are patently wrong. The trial court’s
findings of fact and credibility are presumed to be correct, because the trial court,
and not the court of appeal, has had the advantage of seeing and hearing the
witnesses, and it is in the best position to determine where the truth lies.1
[18] In S v Isaacs,2 the court per Navsa JA stated the following:
“Courts should always consider the cumulative effect of items of
circumstantial evidence. In Scwikkard and van der Merwe – Principles of
evidence 3rd ed (2002) p537-538, the learned authors point out that this
approach can also be summarised as follows:- The State must satisfy the
court, not that each separate items of evidence is inconsistent with the
innocence of the accused, but only that the evidence taken as a whole is
beyond reasonable doubt inconsistent with such innocence.3
[19] Sentencing is pre-eminently a matter for the discretion of the trial court.
[20] A court of appeal will not erode that discretion and will only interfere if the trial court
did not exercise its discretion judicially and properly. This would be the case if the
1 S v Leve 2011 (1) SACR [ECG] R v Dlumayo and Another 1948 SA 677 (A) at 668.
2 2010 (4) ALL S 481 (SCA)
3 See also: S v Reddy and Others 1996 (2) SACR 1 (A) at 9e. R v Blom 1939 AD 288, S v Cooper 1996 (2)
SA 875 (T).
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sentence is vitiated by an irregularity or misdirection (or if it is disturbingly
inappropriate.4
[21] The court a quo concluded that:
“If one look at the totality of the evidence of the State, one cannot faulter any of the
witnesses who testified, but the accused on the other hand was contradicting himself
on several occasions.”
[22] The court a quo found that the appellant’s version is inconsistent with the objective
facts presented by the state and that the only reasonable inference to be drawn from
the circumstantial evidence is that the appellant stole the vehicle in question and that
he was the driver of that vehicle when the vehicle was stopped by the tracking guys.
[23] The court a quo found that a person who is heavily intoxicated who could not even
account for what has happened, cannot drive a motor vehicle in such a perfect way
without any accident from where the vehicle was stolen up to where the appellant
was found inside the motor vehicle.
[24] The court a quo allowed the State to reopen its case and to submit a statement of
the complainant in terms of section 3(1)(c) of Act 45 of 1988. The court a quo
concluded that ownership of the vehicle is not in dispute, and the appellant cannot
be prejudiced. The defence had no objection to the handing in of the said
statement.
THE SENTENCE
[25] At the commencement of the appeal, counsel on behalf of the appellant, abandoned
the appeal against sentence and concede that the sentence is not disproportionate to
the crime the offender and the interest of society.
CONCLUSION
4 See S v Rabie 1975 (4) SA 855 (A) and S v Packereysammy 2004 (2) SACR 169 (SCA)
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[26] In my view, the trial court weighed up all the elements which points towards the guilt
of the appellant against all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses and probabilities on both the state
and defence sides.
[27] I conclude that the balance weighs so heavily in favour of the State so as to exclude
any reasonable doubt about the accused’s guilt.
[28] Having weighed all the factors, I am not persuaded that the trial court misdirect itself
on the facts and the law.
[29] The trial court properly considered the personal circumstances of the appellant and
balanced them against the seriousness of the offence, the interests of society and in
particular the interest of the victim.
[30] This is not a sentence that induces a sense of shock, rather it is a sentence that
reflects the gravity of the offence and the legitimate outrage of the community. The
sentence is proportionate to the crime committed.
ORDER:
The following order is made:
[1] The appeal against conviction and sentence is dismissed.
________________________
Strijdom JJ
Judge of the High Court, South Africa
Gauteng Division, Pretoria
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I agree, and it is so ordered.
___________________________
Baqwa J
Judge of the High Court, South Africa
Gauteng Division, Pretoria
REPRESENTATIVES:
For the Appellant:
Mr MG Botha (Attorney)
Instructed by:
Legal Aid Board
For the Respondent:
Adv K.M. Mashele
Instructed by:
Office of the Director of Public Prosecutions, Pretoria