THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 951/2019
In the matter between:

VUSI PETROS SIBANYONI

Appellant

and

THE STATE

Respondent

Neutral citation:
Sibanyoni v The State (951/2019) [2020] ZASCA 93 (18 August
2020)

Coram:
Saldulker and Plasket JJA and Sutherland AJA

Heard:
No hearing. Decided without a hearing in terms of s 19(a) of the Superior
Courts Act 10 of 2013.

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
09h45 on 18 August 2020.

Summary:
Leave to appeal against refusal of petition for leave to appeal –
conviction of six counts of robbery with aggravating circumstances – effective
sentence of 25 years imprisonment – no reasonable prospects of success of appeal
against conviction, but reasonable prospects of success of appeal against sentence.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Prinsloo and Baqwa
JJ sitting as court of court of appeal):
1 The appeal succeeds.
2 The order of the court below is set aside and is replaced with the following order:
‘(a) Leave to appeal against conviction is refused.
(b) Leave to appeal against sentence is granted to the Gauteng Division of the High
Court, Pretoria.’

JUDGMENT
___________________________________________________________________

Plasket JA (Saldulker JA and Sutherland AJA concurring)

[1] It was not in dispute that, on the evening of 10 June 2012, two men entered the
Dash Dash tavern in Tweefontein, KwaMahlangu, Mpumalanga; that one of them was
armed with a firearm with which he fired a number of shots; that the tavern’s patrons
and staff were ordered by the men to lie face down on the floor; and that the two men
then stole various items from them, thereby committing six counts of robbery with
aggravating circumstances. The appellant, Mr Vusi Petros Sibanyoni (Sibanyoni), and
a co-accused, Mr David Mongezi Mnguni (Mnguni), were charged with these offences,
tried in the regional court sitting in KwaMahlangu, convicted as charged and sentenced
to effective terms of imprisonment of 25 and 15 years respectively. Mnguni plays no
part in these proceedings, Sibanyoni being the sole appellant.

[2] Sibanyoni applied unsuccessfully for leave to appeal against both conviction
and sentence. He then petitioned the Gauteng Division of the High Court, Pretoria for
leave to appeal but his petition was dismissed by Prinsloo and Baqwa JJ. He petitioned

this court for leave to appeal against the dismissal of the petition, and leave to do so
was granted.

[3] We are not required to decide the merits of the appeal. See S v Matshona
[2008] 4 All SA 68 (SCA) para 5. We must, instead, decide whether the court below’s
decision to refuse leave to appeal was correct or not – whether or not, in other words,
there are reasonable prospects of an appeal succeeding. In S v Smith [2011] ZASCA
15; 2012 (1) SACR 567 (SCA) para 7, this court set out the proper approach to the
question as follows:
‘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 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.’

[4] The sole issue in relation to Sibanyoni’s convictions is whether his identification
as one of the robbers was accurate and reliable. Although one of the State witnesses
was not able to make an identification of either of the robbers at all, two others
identified Sibanyoni in dock identifications and three identified him in identity parades.
The propriety of the identity parades and their fairness was not disputed by the
defence.

[5] From the evidence of all six of the eye witnesses, it emerged that the person
identified as Sibanyoni was wearing a dark khaki-coloured jacket, that some of them
described as a ‘soldier’s jacket’; that he was armed with a firearm and that he
discharged a number of shots with it; and that he took a leading role in the robbery,
directing operations and giving orders.

[6] The evidence of the witnesses was consistent in respect of the fact that
conditions for a reliable identification were good: the scene was lit with electric lighting
and the robbers were in the presence of the witnesses for a fair amount of time. They
were also consistent in their descriptions of Sibanyoni: that he was of light complexion,

which some of the witnesses described as a ‘coffee coloured complexion’; that he had
a bald head; and that he was short.

[7] Sibanyoni’s defence was an alibi. He was, he said, drinking in another tavern
when the robberies at the Dash Dash tavern was committed. He was nowhere near
the scene of the robberies.

[8] In S v Mthethwa 1972 (3) SA 766 (A) at 768B-C, Holmes JA warned of the
dangers of too ready an acceptance of identification evidence. Such evidence must,
because of the ‘fallibility of human observation’, be approached ‘with some caution’: a
court must, before accepting that evidence, be satisfied that identifying witnesses are
honest and that their observations are reliable.

[9] The magistrate, in a thorough and well-reasoned judgment, found that the State
witnesses were good witnesses whose evidence was mutually corroborative. He found
too that their identification of Sibanyoni as one of the robbers was reliable in all the
circumstances. On the other hand, he found Sibanyoni to have been a particularly
poor witness whose version he rejected as being false beyond a reasonable doubt.
His conclusions on conviction cannot be faulted, with the result that the court below
correctly dismissed Sibanyoni’s petition against conviction. He has no reasonable
prospect of appealing successfully against his convictions.

[10] I turn now to the question of sentence. The magistrate sentenced Sibanyoni to
15 years imprisonment in respect of each count of robbery with aggravating
circumstances. He ordered that 13 years in respect of counts 2, 3, 4, 5 and 6 were to
run concurrently with the sentence in count 1. The effect of this is that five successive
periods of two years imprisonment were added to the 15 year prison term in respect
of count 1. The result was that the magistrate imposed an effective sentence of 25
years imprisonment on Sibanyoni.

[11] The magistrate correctly considered the robberies to be serious. They were
effected by the threat of violence with a firearm, and certain of the complainants were
assaulted, albeit not particularly seriously. Sibanyoni played the leading role in the
perpetration of the robberies. He had three old but relevant previous convictions.

Despite these aggravating features, a sentence of 25 years imprisonment is, on any
objective basis, an extremely lengthy sentence. There are, I believe, reasonable
prospects of a court of appeal interfering with that sentence. I am consequently of the
view that the court below erred in refusing the petition in respect of sentence.

[12] It is unfortunately necessary to say something about the heads of argument
filed by the State. In the first place, they were filed late. In the interests of finalising this
appeal speedily, we have considered them without having received so much as an
apology, let alone an application for condonation. That is simply not good enough.
Secondly, to call them heads of argument may be to overstate their nature. The
document with which we were presented contains some random quotations from
cases unconnected with any argument that could have helped us in our decision-
making. No indication is even given as to whether the State supports the refusal of
leave to appeal or concedes that leave ought to be granted. Heads of argument, as
Marcus AJ said, in S v Ntuli 2003 (4) SA 258 (W) para 16, are important for the proper
administration of justice:
‘Heads of argument serve a critical purpose. They ought to articulate the best argument
available to the appellant. They ought to engage fairly with the evidence and to advance
submissions in relation thereto. They ought to deal with the case law. Where this is not done
and the work is left to the Judges, justice cannot be seen to be done. Accordingly, it is essential
that those who have the privilege of appearing in the Superior Courts do their duty
scrupulously in this regard.’

[13] I make the following order:
1 The appeal succeeds.
2 The order of the court below is set aside and is replaced with the following order:
‘(a) Leave to appeal against conviction is refused.
(b) Leave to appeal against sentence is granted to the Gauteng Division of the High
Court, Pretoria.’

_______________________
C Plasket
Judge of Appeal

APPEARANCES

For the appellant:

T R Malanguti
Instructed by:
Nelspruit Justice Centre, Nelspruit
Bloemfontein
Justice
Centre,
Bloemfontein

For the respondent:

A I S Poodhun
Instructed by:
Director
of
Public
Prosecutions,
Pretoria
Director
of
Public
Prosecutions,
Bloemfontein