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[2023] ZAWCHC 240
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Rala v S - Appeal (A209/2022) [2023] ZAWCHC 240 (12 September 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case Number: A209/2022
Magistrate
case Number: SHC58/18
In
the matter between:
FUZILE
RALA
Appellant
and
THE
STATE
Respondent
Date of hearing: 11
August 2023 (Appeal determined in terms of section 19(a)
Superior
Courts Act 10 of 2013
)
Date of judgment: 12
September 2023 (delivered electronically)
JUDGMENT
PANGARKER
AJ (SHER J concurring)
Introduction
1.
The appellant appeals against his conviction and sentence imposed by
the Wynberg
Regional Court on six serious offences which emanate from
the same incident which occurred in Gugulethu. The appeal is dealt
with
in terms of
section 19(a)
of the
Superior Courts Act 10 of 2013
.
The appellant was sentenced to life imprisonment for murder (count 1)
and has an automatic right of appeal, and the appeal in
respect of
counts 2 to 6 is with leave of the Regional Court.
2.
I summarize the charges and sentences imposed by the Regional Court
as
follows:
Count
1
:
Murder read with
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
– life imprisonment
Count
2
:
Robbery with aggravating circumstances – 15 years’
imprisonment
Count
3
:
Attempted murder of Constable Asanda Momoza – 10 years’
imprisonment
Count
4
:
Possession of an unlicensed firearm (9mm Parabellum Glock
semi-automatic pistol)
- 15 years’ imprisonment
Count
5
:
Possession of 7 x 9mm calibre live rounds of ammunition – 3
years’
imprisonment
Count
6
:
Attempted murder of Constable Kudwa Sambula – 10 years’
imprisonment
3.
To give more context to count 1, the State alleged that the appellant
murdered
Zolani Noethe by shooting him with a firearm and relied on
section 51(1)
of the
Criminal Law Amendment Act (CLAA
)
[1]
that the deceased’s death was caused by the appellant in the
commission of robbery with aggravating circumstances where the

appellant acted in common purpose with the deceased in the commission
of such offence. In respect of count 2, the appellant was
convicted
of aggravated robbery of Constable Momoza’s Beretta
semi-automatic service pistol and used a firearm during the

commission of the offence. In respect of counts 3 and 6, the
appellant was charged with and convicted of the attempted murder of

Constables Momoza and Sambula by shooting at them with a firearm.
Proceedings
in the Regional Court
4.
The appellant was legally represented throughout the trial and he
pleaded not
guilty to counts 1 to 5, whereafter the matter was
postponed on the first trial day. When the matter resumed on 28
September 2020,
the State added count 6, to which there was no
objection and in respect whereof, a plea of not guilty was also
tendered. The appellant
offered no plea explanation in respect of the
six charges he faced.
5.
The State called five witnesses, who were all police witnesses, and
after the
conclusion of Warrant Officer Engelbrecht’s evidence,
the State closed its case. Thereafter, the appellant elected not to

testify and closed his case. The record reflects that on the
magistrate’s enquiry regarding count 1, the defence advised
the
Court that there would be no admissions as the State intended not
pursuing the murder charge, presumably because there was
insufficient
evidence to secure a conviction.
6.
However, on the next Court date, the State applied to re-open its
case in order
to admit into evidence the post-mortem report and
further chain evidence related to the murder charge. The defence
objected to
the application and after hearing argument, the
magistrate granted the State’s application to re-open its case.
7.
As a result, the post-mortem report and chain statements were handed
into evidence
and marked as Exhibit B, and thereafter, the State
closed its case. Pursuant to the magistrate’s ruling that the
appellant
was entitled automatically to re-open his case, the latter
elected to testify in his own defence and called no witnesses. As the

appeal is against conviction on all six charges, I proceed below to
set out the material aspects of the evidence led during the
trial in
the Regional Court.
Evidence
presented by the State
8.
On 23 August 2017, at approximately 22h00, Constables Sambula and
Momoza
[2]
of Gugulethu SAPS
accompanied an ambulance and its personnel to NY147, a residence in
Gugulethu. The police’s assistance
was needed because ambulance
personnel were regularly robbed when entering Gugulethu. Momoza was
the senior colleague and the driver
of the marked police vehicle and
parked outside NY147 while the ambulance personnel attended to a
patient inside the residence.
Sambula was his passenger and was
seated in the front passenger seat. The police were requested to
assist the ambulance personnel
to load the patient into the
ambulance, but before they could alight from the vehicle, two males
armed with firearms, approached
the police vehicle from each side.
9.
The suspect who approached Sambula’s side of the vehicle,
pointed a firearm
at him. Sambula looked toward his colleague and saw
another man
[3]
, whom he
identified as the appellant. The appellant knocked with a firearm
against the driver’s side of the vehicle, to instruct
him that
the officers should exit the vehicle. Momoza exited the driver’s
side of the vehicle very quickly and managed to
hit the armed man,
grabbed his hand and pushed at him to avoid being shot. Momoza and
the man became involved in a scuffle, and
as Momoza tried to gain the
upper hand, the man pointed the firearm directly against Momoza’s
stomach and shot him.
10.
Momoza’s Beretta pistol fell to the ground during the scuffle
which had progressed
to the opposite side of the road. After being
shot, Momoza experienced numbness in his left leg and he fell to the
ground and lost
consciousness briefly. On regaining consciousness, he
could not find his firearm and saw the man who shot him, approaching
him
and firing in his direction, but was unable to do anything due to
his injury. Momoza assumed that the man had robbed him of his
service
firearm.
11.
In the meantime, on the other side of the police vehicle, Sambula had
also exited   the
passenger side. The suspect facing him
pointed a firearm at him and demanded Sambula’s firearm and all
the while, Sambula
could hear shots being fired from the driver’s
side of the vehicle. Sambula testified that he shot the suspect who
pointed
a firearm at him and then ran to Momoza where he saw his
colleague lying face-down on the ground.
12.
It was at that stage, as Sambula ran around the vehicle, that he saw
the appellant approaching
him with a firearm in one hand and Momoza’s
firearm in his other hand, and continuing to shoot at him. Sambula
returned fire
and shot at the appellant who fell to the ground
[4]
on the other side of the road, but the shootout did not end there.
Sambula, realizing that his ammunition was spent, ran back to
the
passenger side of the police vehicle to take cover, and all the while
the appellant continued approaching and shooting at him.
13.
Sambula managed to take an R5 rifle from the vehicle and fired two
shots at the appellant
who fell down opposite the police vehicle.
Sambula ran to the appellant and proceeded to kick the firearms out
of the appellant’s
hands. Sambula then called for back-up
assistance and ran to assist the injured Momoza.
14.
Other police officers and another ambulance arrived on the scene and
transported the appellant
and Momoza to hospital for medical
attention. Sambula pointed out firearms to police who arrived on the
scene. The suspect whom
Sambula had shot on the passenger side of the
vehicle, had died on the scene.
15.
Sambula estimated the appellant to have been 10 to 12 metres from him
when he shot him and
the latter fell on the other side of the road.
As to the lighting on the scene, both police officers testified that
there were
street lights on the road and where the appellant was
lying after the shooting. Furthermore, Momoza could clearly see the
person
who pointed the firearm at him and identified the appellant as
the man with whom he had a scuffle and who had shot him. Neither
of
the two officers knew the appellant prior to the incident.
16.
Sambula stated that he estimated the entire shooting incident lasted
about 5 minutes and
that the appellant wore dark clothes and a dark
blue/navy-coloured beanie or cap on his head. On this aspect, Momoza
was forthright
that he could not describe the clothing which the
appellant wore but that he was indeed wearing a cap, beanie or hood
on his head.
Furthermore, Sambula confirmed Momoza’s evidence
that the appellant was in possession of two firearms, one of which
belonged
to Momoza.
17.
Sambula and Momoza were adamant that there was no taxi rank in the
area nor were there any
taxis available at 22h00 in the vicinity
where the shooting occurred. Sambula indicated that there were no
other pedestrians present
and that the appellant was alone in the
street at the time of the robbery and shooting. Sambula also
pertinently denied that the
appellant ran when he heard gunshots: his
evidence was that if the appellant’s version were true, one
would have expected
the appellant not to run in the direction of the
shooting, which is what he did.
18.
Sambula estimated being approximately one metre from the appellant
when he approached Momoza’s
side of the police vehicle. Momoza
denied that he could be mistaken as to the identity of the appellant
as they were involved in
a scuffle and the latter had a firearm.
Momoza elaborated that the appellant had looked at him when he
knocked on the window with
a firearm, that there was eye-to-eye
interaction between them, and the appellant’s face was visible
beneath the cap. Furthermore,
he had a clear view of the appellant’s
face.
19.
Sergeants Mthunzi Mabeta and Luvuyo Mpangele of Gugulethu SAPS
testified that on 23 August
2017 they were patrolling in Gugulethu.
They responded to information received of a shooting incident at
NY147 and on their arrival
at the scene, the officers noticed Momoza
lying on the side of a police vehicle, and the appellant was lying on
the opposite pavement.
Both men had sustained gunshot wounds. They
also saw another suspect lying on the ground on the passenger side of
the police vehicle,
who was already deceased.
20.
Sambula informed Mabeta that he had shot the deceased and the
appellant.  Mabeta saw
a black 9 mm firearm usually used by
Metro police, and a Berretta pistol lying next to the appellant, plus
a firearm lying next
to the deceased. This observation is confirmed
by Mpangele. Mabeta placed the firearms in forensic bags and
photographs were taken
and exhibits collected by the forensic
department who had also arrived on the scene. Mabeta confirmed that
the street was well
lit at the time of his arrival and that the
appellant wore dark clothes, but did not remember whether the
appellant wore a hat
or beanie.
21.
Mpangele opened a docket and attended to contacting forensic officers
to attend to the crime
scene. He recalled that there were spent 9mm
cartridges found on the scene but did not recall if there were live
rounds found in
any firearms. As with the other witnesses for the
State, Mpangele was adamant that the appellant was on the scene at
NY147 Gugulethu.
As to lighting, his evidence corroborates that of
the other witnesses regarding street lights which were well lit.
22.
The last witness for the State was Warrant Officer Pieter Gideon
Engelbrecht stationed at
the Forensic Science Laboratory in Parow. He
testified about the ammunition and firearms he analyzed which related
to Gugulethu
CAS number 454/8/2017. The witness’s section 212
statements, to which the appellant did not object, were admitted into
evidence
as Exhibits A and B, respectively.
23.
The significant findings from his evidence are that he received and
tested the following:
a 9mm Parabellum Glock semi-automatic firearm
with serial number erased, containing seven unfired cartridges plus
one fired cartridge
case; a 9mm calibre Beretta semi-automatic pistol
containing unfired cartridges; a 9mm Parabellum Vector semi-automatic
pistol
with a magazine; an R5 automatic assault rifle without a
magazine; a .38 special Rossi revolver with serial number erased;
plus,
fired and unfired cartridges. The witness was not
cross-examined.
24.
After its successful application to re-open its case, the State
requested to hand in the
post-mortem report and further chain
statements related to the deceased mentioned in count 1 (murder), to
which there were no objections.
The
appellant’s evidence
25.
The appellant sold fruit and vegetables on the train and on the day
of the incident, he
took the last train for the evening to Nyanga
Junction where he then proceeded to board a taxi at approximately
22h00 for Phillipi
East. The taxi dropped off passengers at several
stops, but then had a breakdown in Gugulethu and the driver gave him
taxi fare
for another taxi. As he walked along the pavement toward
the second taxi, he saw an ambulance and police vehicle and heard
gunshots,
which spurred him on to run, and whilst running, he was
shot in the leg. He lost consciousness and was taken to hospital.
26.
The appellant wore a cardigan, grey trousers and a navy cap, was
unarmed and had his cellphone
in his possession. He confirmed that
there were indeed street lights in NY 147 where he was shot and he
saw people in the street
while he was walking on the pavement. His
further evidence was that the ambulance and police vehicle were
opposite him.
27.
The appellant could not dispute the police officers’ evidence
that there was no taxi
route in the area where the incident occurred
but denied that there were no taxis operating at 22h00. His version
put by his legal
representative to Momoza and Sambula, that he was
transferred to a taxi, was denied by him: according to the appellant,
he walked
a distance to find a taxi in the next street. He could not
explain why his legal representative would put to witnesses that he
was transferred to a different taxi, when his version was that he had
walked to find another taxi.
.
28.
When confronted with the evidence of Momoza and Sambula, the
appellant denied that he shot
at them, and stated that he was simply
an innocent passer-by and had not participated in the robbery. On the
Court’s questions,
the appellant denied being in possession of
firearms, did not dispute that Sambula had shot him, and stated that
he was not aware
of what was on the ground next to him after he was
shot
[5]
. He denied being
involved in a scuffle with Momoza and suggested that the police
officers were mistaken when they alleged and identified
him as the
person who robbed and shot Momoza. Lastly, the appellant denied
knowing the deceased, Zolani Noethe.
The
judgment on conviction
29.
In his very detailed judgment, the magistrate thoroughly considered
the evidence and found
Momoza and Sambula to be credible and reliable
witnesses. Importantly, the magistrate found that the police had no
reason to implicate
the appellant and he accepted the State’s
version as to how the incident unfolded. He rejected the
appellant’s
version, which was found to be
fabricated and not reasonably possibly true, and was consequently
rejected.
30.
Furthermore, the magistrate found that the appellant and deceased
deliberately armed themselves
with an intention to rob the policemen
and that the appellant must therefore have foreseen the possibility
that they would use
their firearms to overcome any resistance by the
police to their objective.
31.
In addition, the magistrate found that the appellant had voluntarily
accompanied the deceased
to rob the police, that neither he nor the
deceased disassociated themselves with the robbery and the appellant
should therefore
have foreseen the consequences thereof. The
magistrate found that the appellant’s criminal liability for
the deceased’s
death was imputed to him on the basis of common
purpose. The magistrate held that the State had proved its case
beyond reasonable
doubt in respect of all six counts.
Grounds
of appeal ad conviction
32.
The appellant’s ground of conviction is that the magistrate
erred when finding that
the State proved its case beyond reasonable
doubt and in rejecting the appellant’s version as not being
reasonably possibly
true. The ground of appeal turns on the following
aspects: was the evidence of Constables Sambula and Momoza as to the
identification
of the appellant, reliable?; if so, what was the
appellant’s purpose and role at the scene of the shooting?;
and, does the
evidence sufficiently link the appellant to the
offences?
Identification
of appellant
33.
During the trial, the appellant placed his identity in dispute and
suggested that he was
an innocent passer-by who was in the wrong
place, at the wrong time. The issue of identification rests mainly on
the evidence of
Momoza and Sambula. From the evidence considered
holistically, the following material facts were clear: firstly, the
street and
area where the police vehicle and ambulance were parked
and where the shooting occurred, were well and brightly lit, and this
much
was admitted by the appellant. In fact, one of the police
witnesses (Mabeta) described a large or big bright light in the
street
where the incident had occurred and was not challenged on this
aspect during cross examination.
34.
Secondly, Momoza’s evidence that he had direct eye contact with
the appellant who
knocked on the driver’s side with a firearm,
while looking into the vehicle, was not disputed by the appellant.
That being
the case, a reasonable inference is drawn that the
appellant’s face was close enough to Momoza for the latter to
be in a
position to clearly note the appellant’s features,
which he described during the trial
[6]
.
Accepting this to be the case, it then follows that Momoza had a
clear and unobstructed view of the appellant from the time he

approached the driver’s side of the police vehicle. Certainly,
the appellant took no issue with Momoza’s description
of his
features.
35.
From the evidence, it is furthermore apparent that Momoza had a
further opportunity during
the scuffle with the appellant to observe
his features and identify him, and he remained consistent that they
were moving and in
close proximity to each other.  The
cross-examination on the interaction between the appellant and the
police officer during
the scuffle was ineffectual.
36.
Thirdly, there were no obstructions impeding Momoza’s view of
his attacker nor Sambula’s
view of the appellant who approached
and shot at him. In addition, Sambula had a further opportunity for
observation, when he ran
to the appellant and kicked the firearms out
of the appellant’s hands.
37.
Fourthly, the police officers’ evidence that the appellant wore
a dark cap/beanie
on his head was not disputed. In my view, the
magistrate correctly found the State witnesses’ version as to
identification
of the appellant, their observations when tested
against factors such as lighting on the scene, visibility, proximity
to the appellant,
and the opportunity for observation, to be
consistent and reliable
[7]
.
38.
I also agree that there was no reason for the witnesses, who had no
prior interaction with
the appellant and did not know him, to have
falsely implicated him. Their evidence is also supported by Mpangele
and Mabeta who
arrived on the scene and saw two firearms next to the
appellant. Accordingly, the appellant’s submission on appeal
that the
matter revolves around the issue of disputed identity, is
rejected.
The
appellant as an innocent passer-by
39.
The magistrate correctly weighed the evidence as to identity against
the appellant’s
version of being an innocent passer-by,
apparently caught in the crossfire by police and alleged unknown
persons. The appellant’s
version of having to find a taxi after
22h00, after the taxi he travelled in had broken down, when
considered against the police
officers’ consistent denial of
taxi services in the area, was riddled with inconsistencies and
improbabilities.
40.
Even more telling was the fact that the appellant could not explain
what happened to other
passengers in the second taxi he was
approaching when he was shot by Sambula. Had his version been true,
one would have expected
passengers to have run for cover when they
heard the shots being fired, yet the evidence does not support this
scenario as no other
pedestrians or civilians were on the scene at
the time of the robbery and shooting.
41.
Thus, the respondent’s submission that if he were indeed an
innocent passer-by, the
appellant would not run towards Sambula, has
merit. The evidence indicates that the appellant ran towards Sambula
and in his thorough
and detailed assessment of the facts, the
magistrate was indeed correct to reject the appellant’s version
that he was  innocently
passing by NY147 when the shooting
occurred.
42.
There is a further telling fact which, in my view, puts paid to the
appellant’s version:
even if Momoza and Sambula were mistaken
about the shooter’s identity, and the appellant was merely
innocently walking by,
one has to ask why he was seen with firearms
in his hands after he was shot? Here, Sambula’s evidence is
corroborated by
Mpangele and Mabeta, who confirm that one of the
firearms was Momoza’s Beretta, found next to the appellant. It
follows thus
that the only conclusion to draw from the State
witnesses’ evidence is that the appellant was the person armed
with a firearm,
who approached and shot Momoza during a scuffle and
also shot at Sambula.
Robbery
with aggravating circumstances (count 2)
43.
I agree with the magistrate’s finding in the judgment that the
appellant and the deceased,
Zolani Noethe, had the sole purpose to
rob the police of their firearms. The unchallenged evidence indicates
that the appellant
and deceased were both armed with firearms and
they announced their arrival at the police van, by approaching each
police officer’s
side of the vehicle, simultaneously.
44.
Momoza and Sambula faced the appellant and the deceased with their
lives clearly in danger
and had to act swiftly, as is apparent from
the evidence. In respect of the offence of robbery with aggravated
circumstances, the
Constitutional Court had the following to say in
Minister
of Justice and Constitutional Development and Another v Masingili and
Others
[8]
:
‘
[34]
In spite of the practice of treating armed robbery as what sometimes
appears to be a separate crime, it is not. It is robbery.
Robbery is
the theft of property by unlawfully and intentionally using violence
or threats of violence to take the property from
someone else. The
elements of robbery are: the theft of property; through violence or
threats of violence; unlawfulness; and intent.
The definitional
elements of armed robbery are no different. The aggravating
circumstances are relevant for sentencing. Intent
regarding the
circumstances is not required for conviction, exactly because an
accused will be convicted of robbery, given that
armed robbery is
merely a form of robbery.’
45.
The magistrate found that the State had proved robbery with
aggravated circumstances beyond
reasonable doubt. Having regard to
the record, there is no doubt that the State proved the elements of
unlawfulness, the intention
to commit aggravated robbery, the
violence
[9]
, and the aggravating
circumstance as defined in
section 1(1)
of the
Criminal Procedure Act
51 of 1977
, being that the appellant wielded the firearm before,
during or after the commission of the offence.
46.
The situation which ensued was not one where the appellant grabbed or
dispossessed Momoza
of his Beretta while they were involved in the
scuffle. Momoza’s firearm fell to the ground during the
scuffle, and after
the appellant shot him, he fell to the ground and
lost consciousness. Shortly thereafter, Momoza regained consciousness
and on
searching for the firearm, he could not find it and saw the
appellant approaching and shooting at him. Momoza testified that he

presumed the appellant had his Beretta.
47.
From the above discussion, what thus remains is the theft element of
the offence of robbery.
Whilst I take no issue with the magistrate’s
findings and conclusion in respect of the robbery with aggravated
circumstances
offence, the judgment was silent on the elements of the
offence. I am of the view that a comment is required on the element
of
theft.
48.
Momoza testified that the scuffle with the appellant lasted about two
minutes, and it is
apparent from Sambula’s testimony, that he
estimated the entire incident to have   lasted five
minutes. That being
the case, and given that the appellant was seen
after the shooting to be lying on the ground with two firearms in his
possession,
it follows as a matter of logic and inferential reasoning
that after he shot and effectively disabled Momoza, the appellant
must
have immediately picked up, and therefore appropriated Momoza’s
Beretta for himself, and then proceeded to shoot at both officers
as
described by them.
49.
In those factual circumstances, and having regard to
Ex
parte Minister van Justisie: In re S v Seekoei
[10]
,
I am thus satisfied that the application of the violence (that is,
the shooting of Momoza) and the theft to which that violence
was
directed, and which was made possible by the violence, was
essentially one continuous action constituting the crime of robbery.

Accordingly, the theft element of the offence was thus proved by the
State.
50.
The magistrate found that the appellant made common purpose with the
deceased to execute
the robbery of the police officers. Certainly,
from the evidence tendered during the trial and given the appellant
and the deceased’s
brazen approach, it is reasonable to
conclude that the appellant was aware of the reasonable likelihood
that the police would use
their firearms to protect themselves and
prevent a robbery.
51.
Thus, to have ordered the armed officers to exit their vehicle, could
only have resulted
in a shootout between the police, the deceased and
the appellant. The picture painted of the circumstances and how it
unfolded,
leaves one in no doubt that the appellant and deceased
acted in concert and in the furtherance of a common purpose of
robbery.
The magistrate’s finding on this aspect is certainly
correct.
Murder
(count 1)
52.
In
Nkosi
v S
[11]
,
the issue was whether the appellant was correctly convicted of the
murder of a fellow robber in circumstances where a victim of
the
robbery shot the person in self-defence. Majiedt JA stated as follows
at paragraph 7 of
Nkosi
:
‘
[7]
I am mindful of the fact that intent is a subjective state of mind
and that ‘the several
thought processes attributed to an
accused must be established beyond any reasonable doubt, having due
regard to the particular
circumstances of the case’ (per
Olivier JA in S v Lungile & another (493/98)
[1999] ZASCA 96
;
1999 (2) SACR 597
(SCA) para 16). Equally important is to be
cognisant that ‘the question whether an accused in fact foresaw
a particular consequence
of his acts can only be answered by way of
deductive reasoning. . . [b]ecause such reasoning can be misleading,
one must be cautious’
(see S v Lungile and another para 17).
The
facts in Lungile are more comparable with those in the present
instance. In the course of a robbery at a store, a policeman
arrived
on the scene and exchanged gunfire with one of the robbers (the
second appellant) resulting, amongst others, in the death
of one of
the store’s employees. In upholding the conviction of the other
robber (the first appellant) on murder and, after
setting out the
general principles quoted above, Olivier JA held that the inference
was inescapable that the first appellant did
foresee the possibility
of the death of the employee since he knew that at least two of his
co-conspirators were armed with firearms
[12]
,
that the store was located in the main street of Port Elizabeth
opposite a police station and that the robbery would be committed
in
broad daylight. The following dictum in Lungile (para 17) is
apposite:
‘
Generally
speaking, the fact that the first appellant had prior to the robbery
made common cause with his co-robbers to execute
the crime,
well-knowing that at least two of them were armed, would set in
motion a logical inferential process leading up to a
finding that he
did in fact foresee the possibility of a killing during the robbery
and that he was reckless as regards that result.
’
(Compare
also: R v Bergstedt
1955 (4) SA 186
(A) and S v Nkombani &
another
1963 (4) SA 877
(A) at 893 F – H.)’
53.
The submission by the appellant’s counsel that the appellant
did not foresee the reasonable
possibility of the deceased being
shot, has no merit in light of the common purpose principle, the
facts of the matter and the
authority referred to above. I say this
because in making common purpose with Zolani Noethe, the fellow
robber, and   embarking
upon the robbery of the police
officers, the appellant knew that there was a more than reasonable
possibility that the officers
would offer resistance and that he and
Noethe may have to use their firearms, and that the result would be
an exchange of gunfire.
This is exactly the factual scenario which
ensued.
54.
That being the case, the magistrate’s conclusion that the
appellant did in fact foresee
that in those circumstances, there
existed the possibility of a killing during the robbery and that he
was reckless as to the result
and eventuality, cannot be faulted. In
the result, the magistrate’s finding that the appellant is
guilty of the murder of
the deceased on the basis of
dolus
eventualis
is correct.
The
remaining counts (counts 3 to 6)
55.
In respect of counts 2 to 6, there seems to be no material
submissions by the appellant’s
counsel other than a general
submission that the appellant’s version was reasonably possibly
true. I disagree with this submission,
and as illustrated above, it
is apparent that the magistrate was correct to accept the State
witnesses’ evidence and reject
the appellant’s version. I
am furthermore satisfied that the State proved the appellant’s
guilt beyond reasonable doubt
in respect of the remaining counts
[13]
.
56.
It is trite that on appeal, interference with the findings of fact of
the trial Court is
limited to an instance where the magistrate
committed a misdirection
[14]
.
As illustrated in this judgment, the appellant has failed to show
that the magistrate committed any misdirection and thus his
findings
in the judgment are presumed to be correct
[15]
.
It therefore follows that the appeal against conviction in respect of
all the counts thus must fail.
Grounds
of appeal ad sentence
57.
The grounds of appeal in respect of the sentences imposed on the
appellant are summarized
as follows: that the magistrate misdirected
himself by failing to find that there were substantial and compelling
factors warranting
a deviation from the prescribed minimum sentences;
the magistrate over-emphasized the interests of the community and
under-emphasized
the appellant’s personal circumstances; the
magistrate failed to temper the sentence with mercy and failed to
consider the
appellant’s opportunity for rehabilitation; and,
the magistrate failed to take into account other sentence options and
that
the sentences should run concurrently.
Submissions
ad sentence
58.
The appellant’s counsel submits that the magistrate failed to
take into account the
appellant’s personal circumstances as
recorded in the probation officer’s report
[16]
and that the appellant was in custody, awaiting trial, for 5 years at
the time he was sentenced. It is thus contended that these
factors
considered cumulatively, warrant a deviation from the prescribed
minimum sentence. We are asked on appeal to replace the
sentences
with an appropriate sentence having regard to the above submissions.
59.
The respondent’s submission is that the appellant showed no
remorse for his conduct
and that the offences were so serious that
they merited the imposition of the applicable minimum sentences.
Furthermore, it is
submitted that there were no substantial and
compelling circumstances justifying a deviation from the prescribed
sentences.
Interference
on appeal
60.
The test for interference on appeal in the sentence imposed by a
lower Court is whether
the Court
a
quo
committed a material misdirection by imposing the sentence, or
whether the sentence imposed by it is shocking, startling or
disturbingly
inappropriate
[17]
.
61.
In sentencing an offender, the trial Court must be cognizant of the
primary   purposes
of punishment which are prevention,
deterrence, retribution and reformation. Furthermore, the Court
should be mindful that the
“
punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy”
[18]
.
In order to achieve this balance between the relevant factors and
elements underpinning the imposition of a just and balanced
sentence,
the trial Court should thus ensure that in passing sentence, one
element in the sentencing process is not emphasized
at the risk of
the other.
[19]
Appellant’s
personal circumstances and interests of society
62.
The appellant was convicted of six extremely serious offences, three
of which attract prescribed
minimum sentences in terms of
section 51
of the CLAA. From the probation officer’s report, it is
apparent that the appellant hails from the Eastern Cape and that

prior to moving to Cape Town, he was employed.  At the time of
sentencing, he was in his early 40s, married, with three minor

children and one major dependent child, and a first offender. His
wife sold household goods and he derived an income from selling

produce daily on trains and being a money lender. The probation
officer also reported that the appellant did not take responsibility

for the commission of the offences and maintained his denial that he
did not commit the offences of which he was convicted.
63.
From the judgment, I note that the magistrate considered the
appellant’s personal
circumstances, which are neither
exceptional nor remarkable. Juxtaposed against the appellant’s
personal circumstances, are
the interests of society, one of the
considerations in the
Zinn
triad. As to the interests of society, the observations of
Heher JA in
Gardener
and Another v S
[20]
are, in my view, apt:
‘
[68]
True justice can only be meted out by one who is properly informed
and objective. Members of the community,
no matter how closely
involved with the crime, the victim or the criminal will never
possess either sufficient comprehension of
or insight into what is
relevant or the objectivity to analyse and reconcile them as fair
sentencing requires. That is why public
or private indignation can be
no more than one factor in the equation which adds up to a proper
sentence and why a court, in loco
parentis for society, is
responsible for working out the answer.’
[21]
64.
Whilst I take cognizance of the appellant’s counsel’s
submissions, I agree with
the magistrate that the appellant’s
circumstances do not trump the interests of society, particularly
having regard to the
nature and circumstances of these offences. All
six offences are on the upper scale of serious and violent crimes. As
a reminder,
the offences occurred at 22h00 and police officials who
were accompanying ambulance personnel who themselves needed escorting
as
they faced ongoing attacks and robberies in Gugulethu, were
specifically targeted by the appellant and deceased.
65.
The appellant had no regard for the safety of the surrounding
Gugulethu residents and ambulance
personnel when he and the deceased
embarked upon such blatant acts of aggression against the police
officers who were guarding
the   ambulance. Thus, to argue
that the magistrate over-emphasized the interests of society above
the personal circumstances
of the appellant, in my view, ignores the
circumstances of the events and the appellant’s commission of
very serious offences.
66.
I would go so far as to state that the interests of the Gugulethu
community specifically
and the broader society in the Western Cape
would see it as a failure of the Court’s and judicial function
were their interests
sidelined in favour of the appellant’s
unremarkable circumstances. Surely the commission of offences
perpetrated against
the police, in the manner in which these crimes
occurred, cannot be countenanced and tolerated by society, which call
for the imposition
of the prescribed sentences. Society is to be
protected against such heinous offences where the sole purpose of the
appellant and
the deceased was to rob the police of their service
firearms.
67.
Thus, long term imprisonment with a view that it acts as a deterrent
for the specific appellant
and others who harbour thoughts of
embarking on similar conduct, is not inappropriate, shocking nor
disproportionate to the crimes
and would serve the interests of
society. Having regard to his judgment on sentence, I hold the view
that the magistrate did not
commit a misdirection when he afforded
proper weight to the interests of society and the need for a
deterrent sentence in view
of the very serious offences committed by
the appellant.
Other
sentence options
68.
As for the ground of appeal that the magistrate failed to take
account of other sentencing
options, the probation officer’s
report explores the sentence options of correctional supervision, a
suspended sentence and
direct imprisonment, and the officer reported
that the first two options were not appropriate as the appellant did
not accept responsibility
for his actions for the commission of
serious offences. The magistrate   indeed considered the
other sentence options
and in view of the serious nature of the
offences, was correct not to have found those options appropriate.
69.
The events at NY 147 had the hallmarks of a shoot-out between police
and armed suspects,
and but for the quick-thinking actions of
Constable Sambula, a relatively inexperienced police officer at the
time, the injuries
and loss of life on the scene could potentially
have been more serious. The after-effect of the conduct of the
appellant and Zolani
Noethe, was that the latter was killed and
Constable Momoza was so seriously injured that he underwent seven
operations, could
barely work longer than three hours a day and was
living daily on medication at the time he testified in the Regional
Court. In
my view, the seriousness of the offences was correctly
emphasized by the magistrate.
Time
already spent in custody as substantial or compelling factor?
70.
A further ground of appeal is that the magistrate had no regard to
the appellant’s
time spent in custody awaiting trial, which
according to the submissions, is a substantial and compelling factor
which justified
a deviation from the prescribed minimum sentences for
counts 1,2 and 4 respectively. Lewis JA in
Radebe
and Another v S
[22]
discussed the weight to be given to an accused person’s period
spent in custody awaiting trial and the approach and assessment
to
this factor when determining whether a sentence is to be reduced or
not, and cautioned that:
‘
[14]
A better approach, in my view, is that the period in detention
pre-sentencing is but one of the factors
that should be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether
it is proportionate to the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention
and the reason for a prolonged
period of detention.
And accordingly, in determining, in
respect of the charge of robbery with aggravating circumstances,
whether substantial and compelling
circumstances warrant a lesser
sentence than that prescribed by the Criminal Law Amendment Act 105
of 1997 (15 years’
imprisonment for
robbery), the test is not whether on its own that period of detention
constitutes a substantial or compelling circumstance,
but whether the
effective sentence proposed is proportionate to the crime or crimes
committed: whether the sentence in all the
circumstances, including
the period spent in detention prior to conviction and sentencing, is
a just one
.’ (my emphasis)
71.
In respect of murder (count 1), the seriousness of this offence has
been recognized in Part
I of Schedule 2, read with section 51(1) of
the CLAA, in that a first offender faces a minimum sentence of life
imprisonment if
the death of the victim was caused by the accused in
the commission of aggravated robbery. This is exactly what transpired
in this
matter.
72.
In respect of count 2, the robbery was planned and the police were
unsuspecting targets
for the appellant. The appellant could easily
have opened the vehicle door as Momoza testified, as it was unlocked,
yet Momoza
was ordered outside, a firearm pointed at him, and he had
no choice but to comply. In the scuffle which ensued, the appellant
shot
him in his stomach, resulting in an extensive loss of blood,
lengthy hospitalization and severe impact on Momoza’s quality

of life and his ability to perform his official duties. The
aggravating factors attendant upon the execution of the robbery
cannot
be under-emphasized, and but for Sambula’s swift
response, the probability existed that the appellant would have fled
the
scene with a SAPS firearm or proceeded to rob the ambulance
personnel.
73.
The unlawful possession of the Glock firearm (count 4), which was a
firearm that   had
its serial number removed, was correctly
viewed in a very serious light. This was the firearm which the
appellant used to rob Momoza
and which Mabeta identified as being a
service firearm of Metro police. The magistrate was correct to view
this offence in a very
serious light.
74.
The appellant’s five years spent in custody awaiting trial were
considered by the
magistrate. The magistrate found that there were no
substantial and compelling factors warranting a deviation of the
prescribed
minimum sentence in terms of section 51 (3) of the CLAA in
respect of counts 1, 2 and 4. It is thus evident that he considered
the time spent in custody not to be a factor which, when considered
with the other factors, warranted a deviation of the prescribed

minimum sentence in relation to the aforementioned offences.
75.
The trial Court’s record reflects that the appellant was denied
bail in the District
Court before the matter was transferred for
trial to the Regional Court in terms of section 75(2) of the CPA
[23]
.
Furthermore, the reasons for postponements ranged from a possible
section 105A plea and sentence agreement, the appellant’s

changed instruction and consequent withdrawal of legal
representation, appointment of legal aid, role players being on
leave,
long court rolls and COVID-related issues. The time spent in
custody seemed to have had little or no effect on the appellant’s

attitude toward his convictions and his role in the offences as is
evidenced by the remarks of the probation officer that the appellant

did not take responsibility for the commission of the offences.
76.
It is thus safe to say that the failure to take responsibility and
express remorse for his
conduct in the commission of very serious
crimes, are aggravating factors which in my view militate against
considering rehabilitation
as a significant factor in the sentencing
process. The report also indicated that the appellant joined the 28s
gang while in prison.
77.
All circumstances and factors considered, the time spent in custody
awaiting trial, seen
against the backdrop of the seriousness of the
offences, the interests of society, the aggravating and mitigating
factors, is not
a substantial or compelling factor justifying the
deviation of the prescribed minimum sentences in respect of counts 1,
2 and 4.
On an assessment of all these factors, I hold the view that
the individual prescribed minimum sentences imposed in counts 1, 2
and 4 are not disproportionate to the circumstances of the case and
the particular offences.
[24]
Accordingly, the magistrate committed no misdirection when he found
that there were no substantial and compelling factors warranting
a
deviation as allowed by section 51(3) of the CLAA.
The
sentences imposed on counts 3, 5 and 6
78.
In respect of the two attempted murder counts (counts 3 and 6), the
sentences of 10 years’
imprisonment imposed on each of these
counts, are neither shocking, startling nor disturbingly
inappropriate. I have already referred
to the effect of the shooting
on Momoza, but wish to add that from my consideration of the record,
it is apparent that a letter
from a specialist psychiatrist was
handed to the magistrate containing a request that Momoza be assisted
early and as a preference
as he had difficulty sitting for lengthy
periods
[25]
.
79.
During the course of the trial, he also underwent another operation
and from his testimony,
his recovery is surely slow and very painful.
In the prime of his career as a police officer of more than 15 years’
experience
at the time, Momoza’s career and life were severely
impacted as a result of the appellant’s conduct and actions,
for
which no responsibility was taken, much less any remorse or
regret was expressed.
80.
As for Sambula, the evidence indicates that as a result of the
incident, he was very traumatized
and underwent trauma counselling,
and stayed off work for a period of time. From the facts, Sambula
faced an appellant who was
advancing with two firearms, and who
continued shooting at him, and this conduct puts the brazenness of
the appellant’s attack
into perspective: nothing was going to
stop him from achieving his objective. The fact that Sambula was not
hit by a bullet fired
by the appellant certainly does not count in
the latter’s favour, and in my view, the sentence of 10 years’
imprisonment
is proportionate to the offence of attempted murder.
Similarly, the three years’ imprisonment imposed on count 5
does not
brook any interference on appeal.
81.
To conclude the above discussion, I am satisfied that on each of the
offences (counts 1
to 6),
each of the sentences imposed
in
respect of those counts
, were neither shocking, startling nor
disturbingly disproportionate in view of the circumstances of the
crimes and all the other
relevant factors considered. On each
sentence considered and imposed individually, there is thus no room
to interfere on appeal
in the magistrate’s sentence judgment.
Concurrency
and cumulative effect of sentences imposed
82.
There remains a final ground of appeal which is that the magistrate
erred by failing to
allow the sentences to run concurrently and thus
failed to consider the cumulative effect of the sentences imposed. As
a starting
point, section 280 (2) of the CPA provides that where a
person is convicted of more than one offence at trial, and where
imprisonment
is imposed, the sentences shall commence the one after
the expiry, remission or setting aside of the other in the order
which the
Court directs, unless the Court “
directs
that such sentences of imprisonment shall run concurrently”
[26]
.
83.
Section 39(2)(a)(i)
of the
Correctional Services Act 111 of 1998
states that any determinate sentence of imprisonment to be served by
an offender is to run concurrently with a life sentence to
be served.
Hence, it is apparent from this section that by operation of its
provisions, any determinate sentences imposed on an
offender would by
operation of the law, run concurrently with life imprisonment and
that the sentencing Court need not make an
order as contemplated in
section 280(2).
In this respect, I am in agreement with Van Zyl AJ
(Gamble J concurring) in
Yose
and Another v S
[27]
.
More so, in
S
v Mashava
[28]
the Supreme Court of Appeal (SCA)
,
referring
to
section 39
(2)(a)(i), stated that a determinate sentence which is
imposed in addition to life imprisonment is subsumed by the life
imprisonment
because a “
person
has one life and a sentence of life imprisonment is the ultimate
penal provision
”
[29]
.
84.
Thus, for all practical purposes and on the face of it, the
magistrate need not have made
an order that the sentences on counts 2
to 6 would run concurrently with life imprisonment on count 1 by
virtue of the legislation
I refer to above. However, the difficulty
arises when regard is had to the cumulative effect of the sentences
imposed on counts
2 to 6. In total, the number of years’
imposed totals 53 years’ imprisonment. In my view, the fact
that life imprisonment
was imposed on count 1, and that the sentences
on counts 2 to 6 are to run concurrently with life imprisonment by
operation of
section 39(2)(a)(i)
of the
Correctional Services Act,
does
not detract from a sentencing Court’s duty, when imposing
multiple sentences, to consider the cumulative effect of the
sentences
imposed, in this instance, 53 years’ plus life
imprisonment
[30]
.
85.
In this regard, the argument by the appellant’s counsel has
merit. It is not suggested
on appeal that because the offences all
arose from a single event, occurring at the same place and time, that
the offences were
to be taken together for purposes of sentencing. In
any event, this aspect was not raised on appeal and we have not
received submissions
in this regard. To be clear, and with reference
to my findings above, I found no basis to interfere with the
magistrate’s
sentences imposed in respect of each of the six
counts, which I have found to be appropriate and commensurate with
the facts, circumstances,
sentencing guidelines and the offender.
86.
However, that said, it is apparent that the cumulative effect of the
53 years imposed on counts 2 to 6, was not considered
by the
magistrate and ultimately may amount to a sentence which is harsher
or stricter than life imprisonment on count 1. In essence,
53 years’
imprisonment may be more onerous than life imprisonment. In
S
v Bull and Another; S v Chavulla and Others
[31]
,
the SCA reiterated that life imprisonment is the most severe sentence
and the most appropriate where an offender is to be removed
from
society.
87.
In this matter, the imposition of life imprisonment on count 1 is not
only imposed to comply
with the provisions of
section 51(1)
of the
CLAA but also to remove the appellant, who showed no remorse for his
conduct and committed serious crimes, from society.
In my view, life
imprisonment would give effect to all six offences committed by the
appellant in the circumstances of the matter.
88.
In conclusion, I am concerned that the cumulative effect of the
sentences imposed on counts
2 to 6 is high and excessive, and
ultimately disproportionate to the offender, the circumstances and
society’s interests,
and thus this aspect is not purely
academic. While it is not the sentencing Court’s role to be
concerned about the appellant’s
future eligibility for parole,
as that falls within the purview of the Department of Correctional
Services, the sentences as they
currently stand may have the
potential to impact on the appellant’s rights in terms of
section 12(1)(a) of the Constitution,
which is the right not to be
deprived of freedom arbitrarily or without just cause
[32]
.
To that extent, I find that the magistrate’s failure to
consider the cumulative effect of the sentences and the concurrency

thereof, warrants interference on appeal to the limited extent as set
out in the Order below.
Order
89.
In the circumstances, the Orders which I propose are as follows:
a.
The appeal against conviction on counts 1 to 6 is dismissed.
b.
The appeal against the sentence on count 1 (life imprisonment) is
dismissed.
The sentence of life imprisonment is confirmed.
c.
The appeal against the sentences imposed on counts 2 to 6 is
dismissed and such
sentences are confirmed.
d.
In terms of
section 280(2)
of the
Criminal Procedure Act 51
of 1977,
it is ordered that the sentences imposed on counts 3, 4, 5 and 6,
shall run concurrently with the sentence imposed on
count 2. This
order is backdated to 4 August 2022.
e.
The cumulative effect of the sentences (on counts 1 to 6) is thus
life imprisonment.
M
PANGARKER
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
M
SHER
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
Appellant:
Ms
A de Jongh
For
Respondent:
Adv
B V Maki
[1]
Read with
Part 1
of Schedule 2 of the CLAA
[2]
Witnesses are referred to by their surnames in the judgment
[3]
Sambula
identified the man as the appellant
[4]
The evidence indicates that the appellant was on the opposite side
of the road, near or on the pavement
[5]
This
is a reference to the firearms which the witnesses stated were found
next to the appellant on the ground
[6]
He
described the appellant as having a bigger nose and deep set eyes
[7]
See
S v Mthetwa 1972 (3) SA 766 (A) 768 A-C
[8]
[2013]
ZACC 41
par 34 - Footnote
39
of the judgment as it appears in paragraph 34:
Ex
parte Minister of Justice: In re R v Gesa; R v De Jongh
1959 (1) SA 234
(A) at 238C-E. See also Snyman above para 23 at
517.
[9]
The
shooting of Momoza
[10]
[1984] ZASCA 89
;
1984
(4) SA 690
(A) 707E-F
[11]
[2015]
ZASCA 125
[12]
My
emphasis
[13]
Counts
3 to 6
[14]
S
v Francis and Another
[1990] ZASCA 141
at 18-19
[15]
S
v Hadebe
1991 (2) SACR 641
(SCA) 645 E – F
[16]
Exhibit
F
[17]
S
v Malgas
[2001] ZASCA 30
par 12; see also S v van de Venter
[2010]
ZASCA 146
par 14
[18]
Per
Holmes JA in S v Rabie
1975 (4) SA 855
(A) 862G-H
[19]
Moswathupa
v S
[2011] ZASCA 172
par 4; S v Banda
1991 (2) SA 352
(BG) 354E-G
[20]
[
2011]
ZASCA 24
par 68
[21]
See
also S v Homareda 1999 (2) SACR 319 (W) 324b
[22]
[2013]
ZASCA 31
par 14
[23]
See
J47
[24]
See,
for example, S v Vilakazi [2008] ZASCA par 15
[25]
See
letter dated 12 July 2019, by Dr Q Cossie
[26]
Section
280(2)
CPA
[27]
[2022] ZAWCHC 130
par 19
[28]
[2013]
ZASCA 200
par 7
[29]
Footnote
excluded from above quote
[30]
See
Willemse v S
[2021] ZAWCHC 92
par 8; Kruger v S
[2011] ZASCA 219
par
10
[31]
2001
(2) SACR 681
(SCA) par 21
[32]
See
Makhoka v S
[2019] ZACC 19
par 13-19 – while the matter in
Makhoka dealt with a non-parole order, the findings and concerns
raised by the Constitutional
Court are relevant