THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 174/2017

In the matter between:

TSHAMUHAU MAPHAHA                                                           FIRST APPELLANT
THABO MOLEFE                                                                    SECOND APPELLANT

and

THE STATE                                                                                          RESPONDENT

Neutral citation:  Maphaha v The State (174/2017) [2018] ZASCA 08 (1 March
2018)

Coram:
Leach, Mbha and Mocumie JJA and Plasket and Mothle AJJA

Heard:
21 February 2018

Delivered:
1 March 2018

Summary: Appeal against refusal of petition for leave to appeal against conviction
and sentence for robbery with aggravating circumstances – no reasonable prospects
of success concerning conviction – concerning sentence, trial court appeared not to
have taken into account period of about three and a half years spent by appellants
awaiting trial – reasonable prospects of success on appeal against sentence.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from:
Gauteng
Division
of
the
High
Court,
Johannesburg
(Mokgwatleng J and Seboko AJ sitting as court of appeal):

(a)
The appeal succeeds to the extent set out below.
(b)
The order of the court below is set aside and replaced with the following
order.
‘The appellants are granted leave to appeal against sentence to the Gauteng Local
Division of the High Court, Johannesburg.’

JUDGMENT
___________________________________________________________________

Plasket AJA (Leach, Mbha, Mocumie JJA and Mothle AJA concurring)
[1] This is an appeal against the refusal of a petition for leave to appeal, special
leave having been granted by this court. The appellants were charged with and
convicted of robbery with aggravating circumstances. They were accused 3 and
accused 4 of ten accused in the trial. They were both sentenced to 15 years
imprisonment.

[2] This appeal does not concern the merits of the matter directly. They are
relevant only insofar as they relate to whether the appellants have reasonable
prospects of success for purposes of the appeal against the refusal of their petition.1
In S v Smith2 this court set out what that entails:
‘What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law, that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In order to succeed, therefore, the appellant

1 Matshona v S [2008] 4 All SA 69 (SCA) para 5.
2 S v Smith 2012 (1) SACR 567 (SCA) para 7. (References omitted.)

must convince this court on proper grounds that he has prospects of success on appeal and
that those prospects are not remote, but have a realistic chance of succeeding. More is
required to be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are prospects of success on
appeal.’

[3] In respect of the convictions, two broad issues were raised. The first was
whether the trial court erred in accepting the evidence of the State witnesses and, at
least by implication, in rejecting the evidence of the two appellants. The second was
whether the fundamental right of the appellants to a fair trial was violated. As far as
sentence was concerned, it was argued that the magistrate misdirected himself by
not considering and taking into account the lengthy period spent by the appellants in
custody awaiting trial when he was required to decide whether substantial and
compelling circumstances were present to justify a deviation from the prescribed
sentence of 15 years imprisonment.

The facts

[4] It was common cause that on the night of 13 April 2008 in Wynberg,
Johannesburg, a robbery with aggravating circumstances was committed by a group
of men at the premises of an automotive components factory, CRH Continental. It
was also common cause that two of the persons involved were the appellants, who I
shall refer to in the narration of the facts as accused 3 and accused 4. They were
dressed in South African Police Service uniforms and were armed with firearms.

[5] The curious facts as to how the robbery was committed forms the backdrop of
this appeal. In what follows I shall set out the evidence that the trial court accepted
and then detail the versions of accused 3 and accused 4.

[6] Accused 3 and accused 4 were student constables stationed at the Alexandra
police station. They, along with a third trainee, Ms Nomsa Kgomo,  were instructed
by their superior, Captain Ramahotswa, who was accused 7 in the trial, to
accompany two off-duty policemen to the scene of a robbery then supposedly in

progress. They were told that a group of detectives from another police station would
join them to foil the robbery and that their function was to provide support to these
detectives.

[7] Sergeant Munyai (accused 1), Constable Matsaung (accused 5), accused 3,
accused 4 and Kgomo sallied forth from the Alexandra police station in a double cab
vehicle clearly marked as a police vehicle. They appeared to proceed without any
great sense of haste, contrary to what one would expect in the circumstances.
Eventually, they met a group of men – the ‘detectives’ – who climbed into the back of
the vehicle. They proceeded to the scene of the crime that was about to be
committed.

[8] As accused 1 and accused 5 were not officially on duty, they were dressed in
civilian clothes, as were the ‘detectives’. It would appear that the only people in the
group who were armed were accused 3 and accused 4, as well as Kgomo who
remained in the vehicle throughout.

[9] Accused 1, on arrival at the premises of CRH Continental, approached a
security guard who was on duty inside the premises but behind a closed gate.
Accused 1 informed the security guard that a robbery was in progress inside the
factory. When the security guard asked accused 1 how he knew this, accused 1 told
him that one of the owners of the factory had telephoned the police. The security
guard, on the strength of this statement, opened the gate and was immediately
overpowered and handcuffed by accused 1. Accused 5, the ‘detectives’, accused 3
and accused 4 entered the premises.

[10] Mr Marcel Christofoli, a partner in CRH Continental, walked out of the factory
to see two policemen inside the premises. This must have been accused 3 and
accused 4. He saw that the security guard was surrounded by a group of five or six
men dressed in civilian clothes.

[11] One of the men in uniform, identified by Christofoli as accused 4, ran towards
him, threw him against a wall, put a firearm to his head and dispossessed him of his
wallet, watch, cigarettes and cellphone. Accused 4 then dragged him by the hair into

an area of the factory referred to in the evidence as the tool room. He was ordered
by accused 4 to lie on the floor. Other people who worked at CRH Continental were
already lying on the floor. The intruders demanded the key to the safe. When
Christofoli said that there was no safe on the property, he was kicked repeatedly.

[12] While accused 3 and accused 4 remained in the tool room guarding the
people lying on the floor, the other men ransacked the factory, taking computers,
tools and, as one of the witnesses put it, ‘whatever they could find’. They stacked
their loot at the front door of the tool room.

[13] At one stage, one of the men suggested killing one of the prisoners to force
the others to divulge the whereabouts of the key to the safe. Accused 4 told
Christofoli to stand and when he did so, accused 4 pointed his firearm at him.
Christofoli explained the position again and was told that he could lie down again.
The men then turned their attention to Mr Harold Keitchel, a partner of Christofoli.
They took him upstairs and assaulted him.

[14] After this, the men loaded their loot into the police vehicle, took the gate of the
premises off its rail, because they had no other means of opening it, and left the
premises. An argument developed between accused 1 and accused 5 as to whether
they should proceed to an informal settlement in Alexandra or to the police station.
At some stage, however, accused 1 stopped the vehicle and the ‘detectives’ alighted
with the loot and left. Accused 1, accused 3, accused 4, Kgomo and accused 5 then
proceeded to the police station.

[15] By this stage, the robbery had been reported to the Bramley police station.
The vehicle used had been identified by the call sign painted on it as a vehicle that
came from the Alexandra police station. The next day the accused were arrested.
Some of the stolen property was recovered thereafter.

[16] Accused 3 and accused 4 testified that they had been instructed by accused 7
to perform support duties for a group of detectives who would be foiling an armed
robbery then in progress. When they arrived at the premises of CRH Continental and
the security guard was overpowered and handcuffed, they thought that he was one

of the robbers. They thought that Christofoli, Keitchel and the others who were
overpowered, made to lie on the floor and guarded by them were robbers too. They
were puzzled by the fact that the ‘detectives’ ransacked the factory and stole
property that they found there. They were also puzzled by the fact that when they left
the factory, the people who they thought were robbers were left behind. They
claimed that their inability to realise that they were taking part in a robbery, and not
foiling one, arose from the fact that they were mere trainees and had not been
provided yet with sufficient training to distinguish between the two activities.

The issues: conviction

[17] The first issue was a factual one: the magistrate believed the State witnesses
and disbelieved accused 3 and accused 4. The test for permissible interference by a
court of appeal with a trial court’s factual findings imposes a high threshold. In S v
Francis3 Smalberger JA explained it as follows:
‘This Court’s powers to interfere on appeal with the findings of fact of a trial Court are limited.
Accused No 5’s complaint is that the trial Court failed to evaluate D’s evidence properly. It is
not suggested that the Court misdirected itself in any respect. In the absence of any
misdirection the trial Court’s conclusion, including its acceptance of D’s evidence, is
presumed to be correct. In order to succeed on appeal accused No 5 must therefore
convince us on adequate grounds that the trial Court was wrong in accepting D’s evidence –
a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the
advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in
exceptional cases that this Court will be entitled to interfere with a trial Court’s evaluation of
oral testimony.’

[18] The magistrate found that all of the State witnesses, including Kgomo, who
was a so-called s 204 witness, were good witnesses. After applying the appropriate
cautionary rule where necessary, he accepted their evidence. His conclusion is fully
borne out by the record, and I can see no misdirection on his part as to his
assessment of the evidence and his factual findings.

3 S v Francis 1991 (1) SACR 198 (A) at 204c-e. (References omitted.) See too R v Dhlumayo &
another 1948 (2) SA 677 (A) at 705-706; S v Hadebe & others 1998 (1) SACR 422 (SCA) at 426a-c.

[19] The version of accused 3 and accused 4 is improbable, even if it is accepted
that initially they were ordered by accused 7 to take part in preventing a fictitious
robbery: as soon as the action started with the overpowering of the security guard,
who would not have opened the gate to policemen if he had been part of a gang of
robbers, they could have been in no doubt that their police colleagues and the
‘detectives’ were the villains and that they were in fact taking part in a robbery, not
preventing one.

[20] Even if the magistrate did not say so expressly, he rejected the versions of
accused 3 and accused 4 as false beyond reasonable doubt. In so doing, and given
the improbability of the version, he cannot be faulted. An acceptance of the State
witnesses’ evidence and a rejection of the versions of accused 3 and accused 4,
leads to the conclusion that both were active participants in the robbery. In these
circumstances, the defence that was raised, that they were following a lawful order,
has no bearing. The facts found proved by the magistrate renders that defence
irrelevant.

[21] In the face of the overwhelming evidence against accused 3 and accused 4,
Mr Masako who appeared for them, conceded – and correctly so – that there were
no reasonable prospects of successfully appealing against conviction. He also, once
again correctly, in my view, conceded the second issue – the argument that accused
3 and accused 4 had not had a fair trial because of the way in which the magistrate
had treated their counsel.

[22] All that the magistrate did in the portions of the record highlighted in the heads
of argument was to clarify for himself what the cross-examiner wanted to ask or to
put to witnesses, and from time to time – and with good reason – query the
relevance of a line of questioning. Even if, at times, the magistrate was robust, that
does not equate to an unfair trial. Litigation, and particularly litigation in the criminal
courts, is not for the faint-hearted.

[23] In the result, I am unable to find that reasonable prospects exist of a court of
appeal interfering with the conviction of accused 3 and accused 4.

Sentence

[24] When sentencing accused 3 and accused 4, the magistrate imposed the
sentence prescribed by the Criminal Law Amendment Act 105 of 1997 for a first
offender who committed the offence of robbery with aggravating circumstances. He
accordingly found no substantial and compelling circumstances to justify a deviation
from the prescribed sentence.

[25] In imposing sentence, the magistrate took into account the personal
circumstances of accused 3 and accused 4, but he also considered their crime to be
particularly serious. He was justified in doing so: the spectre of policemen in uniform
and armed with firearms assaulting citizens and robbing them of their possessions
before loading their plunder into a police vehicle is, to put it at its lowest, cause for
grave disquiet.

[26] That said, however, the magistrate does not appear to have taken into
account the fact that both accused 3 and accused 4 spent about three and a half
years in custody prior to their conviction. The correct approach to sentencing when
an accused has spent a lengthy period in detention awaiting trial was dealt with by
Lewis JA in S v Radebe4 in which she held:
‘A better approach, in my view, is that the period of 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 and compelling
circumstance, but whether the effective sentence proposed is proportionate to the crime or

4 S v Radebe 2013 (2) SACR 165 (SCA) para 14.

crimes committed: whether the sentence in all the circumstances, including the period spent
in detention prior to conviction and sentencing, is a just one.’

[27] As this exercise appears not to have been done, and if it had been done, it
may have had a bearing on the sentences imposed by the magistrate, I am of the
view that there are reasonable prospects of success on appeal against sentence.

The order

[28] I conclude that there are no reasonable prospects of a successful appeal
against conviction, but there are reasonable prospects of success on appeal against
sentence.

[29] I accordingly make the order set out below.
(a)
The appeal succeeds to the extent set out below.
(b)
The order of the court below is set aside and replaced with the following
order.
‘The appellants are granted leave to appeal against sentence to the Gauteng Local
Division of the High Court, Johannesburg.’

____________________
C Plasket
Acting Judge of Appeal

Appearances:

For the Appellants:

I D Masako
Instructed by:

Johan Schaefer Attorney, Johannesburg

Symington & De Kok, Bloemfontein

For the Respondent:

E H F Le Roux
Instructed by:

Director of Public Prosecutions, Johannesburg

Director of Public Prosecutions, Bloemfontein