Mbhele and Others v S (25/2019) [2021] ZAFSHC 260 (25 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 25/2019

In the matter between:

NHLANHLA

GOODMAN MBHELE

1st Applicant

TUMELO

PABALLO MOFOKENG

2nd Applicant

STEFANE

TITUS MOFOKENG

3rd Applicant

and

THE

STATE

Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: Matter disposed of without oral hearing in terms of section19(a) of the Superior Court Act 10 of 2013.

DELIEVERED ON: This judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLI. The date and time for hand-down is deemed to have been on 25 October 2021.

APPLICATION

FOR LEAVE TO APPEAL

MHLAMBI, J

[1] This is an application for leave to appeal to the Full Bench of this Division against the applicants’ conviction and sentence.

[2] The applicants filed an application for condonation for the late filing of this application on the basis that such delay was due to no fault on their part. The applicants alleged that the instructions were given to the Legal Aid Board to apply for leave to appeal immediately after their sentence on 20 March 2020. As the Legal Aid Board failed to file such application, the current attorney was appointed in July 2020 to proceed with the application. The transcribers were only paid during December 2020 and the transcribed record was received by the applicant’s attorney on 21 January 2021. Due to the Covid-19 pandemic, consultations with the legal representative were difficult as the latter could not have easy access to the applicants. The first applicant was at a stage transferred from Groenpunt Correctional Centre to the G4S Correctional Centre in Bloemfontein; which made the drafting and signature of the relevant documents difficult. I am satisfied that the applicants’ explanation is reasonable and the condonation application is therefore granted.

Ad conviction

[3] The first applicant, who was the second accused in the trial, alleges that the court erred in finding him guilty on all the charges as there was insufficient evidence to do so. A sufficient explanation was given in regard to the money that was retrieved from his girlfriend’s house. The court should not have rejected his evidence as it was consistent, reliable and reasonably possibly true. It is evident from the perusal of the first applicant’s heads of argument and the grounds of appeal, that the findings and reasons for the judgment were either not read or reference to them is omitted for reasons unknown.

[4] The first applicant failed to explain or to call his brother to confirm the origin of the amount of R 10 000.00 which was obviously the applicant’s share of the loot from one of the robberies. It is not contested that the applicants’ statements were properly admitted. All the applicants fail to disclose that all three of them, i.e. accused 2,4 and 5 in the trial, travelled in the same motor vehicle from Gauteng to Phuthaditjhaba. Firearms and ammunition were found by the police in the said vehicle and these were formally admitted by the accused in terms of the provisions of the Criminal Procedure Act. This vehicle was seen at the crime scene in Phuthaditjhaba. All the applicants were arrested in the same vehicle, in which different stolen items from the robbed places of business were found, when they were about to return to Gauteng, having returned from Botshabelo where accused 3 had conveyed them in his Mercedez Benz.

[5] The first applicant implicated accused 4 and 5 and placed them all at the robbery scenes in counts 1,4 and 6. He was used as a getaway driver and described how the cigarettes, airtime and money were shared. He was linked through the DNA to the Nike bag left by the suspects in the shop that was robbed in count 6.

[6] The second applicant confirmed the robberies in counts 1,4 and 6 and how the R100 000.00, robbed from the Chinese shop owner, was shared R10 900.00 per person. He was found in possession of R10 800.00 on his arrest. The third applicant associated himself with the robberies and that he fired a shot in the air when they left the Chinese shop at Botshabelo. I found that all the accused in the trial were not credible witnesses and that their evidence was riddled with inconsistencies. I am therefore of the opinion that the appeal against conviction would not have a reasonable prospect of success and stands to be dismissed.

Ad Sentence

[7] It was submitted on behalf of the applicants that the sentences imposed were harsh and excessive for first offenders; the nature and seriousness of the offences over-emphasized and insufficient weight attached to the applicants’ personal circumstances. Despite the reference to S v Malgas 2001(1) SACR 469 (SCA), that courts should be mindful of the sentences ordained by the Legislature as the sentences to be ordinarily imposed in the absence of weighty justification, the “sentencing was not proportional to the act.”[1]and that another court would come to a different finding and not impose direct imprisonment or would impose a lesser sentence.[2]

[8] In the light of S v Malgas[3] and S v Nkunkuma,[4] truly convincing reasons should exist before courts depart from the duty to impose the prescribed sentences. All the relevant factors were considered in arriving at what I considered an appropriate sentence in the given circumstances. The applicants’ personal circumstances as well as the period they spent in custody was taken into account in the consideration of an appropriate sentence. Save for the above, no substantial and compelling circumstances were presented to enable the court to deviate from the prescribed minimum sentence. In the premises, this part of the appeal should also fail.

[9] I therefore make the following order:

ORDER:

The application for leave to appeal against both conviction and sentence is dismissed.

JJ MHLAMBI, J

Counsel for the applicant: Mr. P Peyper

Instructed by:

Peyper Lessing attorneys

39C First Avenue

Westdene

Bloemfontein

Counsel for the respondent: Adv. FJ Pienaar

Instructed by:

Office of the Director: Public Prosecutions

Waterfall Building

Cnr Aliwal and Fountein Street

[1] Para 62: Heads of argument.

[2] Para 14.4: Notice of motion.

[3] Supra.

[4] Case no. 101/2013 SCA delivered on 23 September 2013.