Montsho v S (A134/2019) [2025] ZAGPJHC 510 (27 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

GAUTENG
DIVISION, JOHANNESBURG

CASE
NO: A134/2019

(1) 
REPORTABLE:  NO 

(2) 
OF INTEREST TO OTHER JUDGES: NO

(3) 
REVISED: NO

27
May 2025

In
the matter between:

MONTSHO
TSHIDISO JIMMY                                                  

Appellant

And

THE
STATE                                                                               

Respondent

JUDGMENT

Mdalana-Mayisela
et Moosa JJ

Introduction

[1] 
This is an appeal against the conviction and effective sentence of 28
years imprisonment imposed upon the appellant by
the Regional
Magistrate court, Orlando. The appeal is pursuant to the petition for
leave to appeal against conviction and sentence
having been granted
by this court. The appeal is opposed by the respondent. This court
granted an unopposed condonation application
for the late filing of
the notice of appeal.

[2] 
The appellant was charged on count 1 with robbery with aggravating
circumstances read with section 51(2)(a) of the Criminal
Law
Amendment Act 105 of 1997 (“the CLAA”); counts 2 and 4
with contravention of section 3 read with sections
1,103,117,120(1)(a)
and section 121 read with Schedule 4 of the
Firearms Control Act 60, of 2000 and further read with section 250 of
the Criminal Procedure Act 51, of 1977 (“the CPA”) –
unlawful possession
of a firearm: counts 3 and 5 with contravention
of section 90 read with sections 1,103,117,120(1)(a), and section 121
read with
Schedule 4 of the Firearms Control Act and further read
with section 250 of the CPA – unlawful possession of
ammunition.

[3] 
The appellant (accused 1) was charged with accused 2 and 3. He
pleaded not guilty to all counts and tendered no plea explanation.
He
was acquitted on counts 3 and 5. He was convicted as charged on
counts 1, 2 and 4. He was sentenced on count 1 to 12 years
imprisonment, counts 2 and 4 each to 8 years imprisonment. He was
declared unfit to possess a firearm in terms of section 103 of Act 60
of 2000. He applied for leave to appeal against both conviction and
sentence in the lower court and it was refused. He
was legally
represented throughout the proceedings in the lower court. 

Factual
background

[4] 
The facts leading to conviction and sentence are as follows. On 25
July 2008 at around 5 am, the complainant, Richard
Mzwakhe Banda left
his house going to work. As he was closing a gate, he heard a sound
of a firearm being cocked. He turned around
and saw accused 3
pointing him with a firearm and demanding his house keys. He gave him
the keys. At that stage the appellant and
accused 2 emerged. They all
went into the complainant’s yard. Accused 3 gave accused 2 a
firearm. Accused 3 unlocked the
house door and he went inside the
house together with accused 2.

[5] 
The appellant and complainant remained in the yard. The appellant was
in possession of a screwdriver. He instructed the
complainant to lay
down. The complainant complied with the instruction. He searched the
complainant. He took the cell phone and
R1500 cash from the
complainant. Thereafter, they went inside the house. The
complainant’s partner, Nomsa Xaba was also inside
the house.
She was instructed to cover her face with a blanket, and she
complied. The appellant and his co-accused took the MP3
player and
DVD player from the house and thereafter, they fled from the scene.

[6] 
The complainant gave chase. When they noticed that he was following
them, two shots were fired. The complainant took cover.
When the
shooting stopped, he followed them. They saw a metro police van in
the street, and they jumped over the wall of another
house. The
complainant sought help from the metro police. The police went into
the yard where the appellant and his co-accused
ran into. The
complainant remained in the street. The police found the appellant in
the yard of a house situated four streets away
from the appellant’s
house. They brought him to the street where the complainant was
waiting. The complainant identified
the appellant as one of the
perpetrators of robbery. The cell phone rang inside the appellant’s
pocket. He was instructed
to take it out. The complainant identified
it as his property, and the call was from his brother. Thereafter,
they all went to
the complainant’s house. Diepkloof police were
requested to come to the complainant’s house. They came and
they also
went to look for the missing items. They found the MP3 and
DVD players behind the toilet in the yard where the appellant was
found
by the police.

Ad
conviction

[7] 
In his notice of appeal, the appellant contended that the lower court
erred in convicting him on counts 1, 2 and 4 and
that the respondent
failed to prove his identity as a perpetrator beyond reasonable
doubt. He also contended that his sister corroborated
his version,
and the lower court erred by rejecting it as not being reasonably
possibly true.

[8] 
It is triad that the
powers of a court of appeal to interfere with the findings of fact of
a trial court are limited. In the absence of any misdirection
the
trial court’s conclusions including its acceptance of a
witness’ evidence is presumed to be correct. In order to

succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong
in
accepting the witnesses’ 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 circumstances
that
the court of appeal will be entitled to interfere with a trial
court’s evaluation of oral testimony.’ [1]

[9] 
First, I deal with the conviction for robbery with aggravating
circumstances. Both counsel for the appellant and state
submitted
that the state proved the identity of the appellant as a perpetrator
beyond reasonable doubt. We agree with this submission
for the
following reasons. The complainant first saw the appellant when he
emerged outside the yard. His face was not covered.
They all went
into the yard. The appellant remained with the complainant in the
yard while the co-perpetrators went inside the
house. After he
searched the complainant, they both went inside the house. The
complainant had sufficient opportunity to observe
the appellant’s
face and be able to identify him.

[10] 
The outside light situated 8 to 10 metres from where they were in the
yard and the light inside the house were switched
on. The visibility
was clear. The appellant was at close proximity to the complainant
when the offence of robbery with aggravating
circumstances was
committed. There is no question of mistaken identity in this matter.

[11] 
Furthermore, the appellant was found in possession of the
complainant’s cell phone and arrested in the yard four
streets
away from the complainant’s yard soon after the commission of
robbery with aggravating circumstances. The MP3 and
DVD players were
also recovered in the yard where the appellant was found by the
police in the same morning.

[12] 
The appellant’s version that the persons who were robbing him
gave him the complainant’s cell phone is improbable
and false.
The lower court correctly rejected it as not being reasonably
possibly true. The grounds of appeal against conviction
for robbery
with aggravating circumstances have no merits and they must fail.

[13] 
I now deal with the ground of appeal against conviction on counts 2
and 4. The appellant contended that the admission
he made to the
police that he is the owner of the two firearms found in possession
of his co-accused on 5 August 2008 is inadmissible
because he was not
informed about his rights, particularly a right against
self-incrimination before he made it.

[14] 
It is common cause that the state did not lead evidence during trial
proving that the appellant was in physical possession
of the
firearm/s at the crime scene on 25 July 2008. He was charged on
counts 2 and 4 with unlawful possession of firearms that
were found
in possession of his co-accused when they were arrested on 5 August
2008 because they informed the police that they
were possessing the
firearms on behalf the appellant. The state relied on the doctrine of
joint possession. It submitted that it
proved the requirements
thereof by leading the evidence of the admission made by the
appellant and the complainant’s testimony
that accused 3 was
carrying a firearm which he later gave to accused 2 at the crime
scene. The lower court convicted the appellant
for joint possession.

[15] 
The
test for joint possession of an illegal firearm and ammunition is
well established. The mere fact that the appellant participated
in a
robbery where his co perpetrators possessed a firearm does not
sustain beyond reasonable doubt the inference that he possessed
the
firearms jointly with them. In
S v Nkosi it was held that
this is only justifiable if the factual evidence excludes all
reasonable inferences other than (a) that the group had the intention

to exercise possession through the actual detentor and (b) the actual
detentor had the intention to hold the gun on behalf of the
group.
Only if both requirements are fulfilled can there be joint possession
involving the group as a whole.[2]

[16] 
It is common cause that the state did not lead evidence during trial
proving the admissibility of the admission made
by the appellant. The
counsel for the respondent submitted that the right against
self-incrimination should be limited in terms
of section 36 of the
Constitution of the Republic. It is correct that it is not an
absolute right. However, it is a fundamental
right that protects the
accused person from being compelled to testify against himself or
provide evidence that could lead to his
or her own prosecution, and
it ensures a fair trial.

[17] 
The lower court erred in convicting the appellant on these charges
without first satisfying itself that the admission
is admissible and
that the state has proved the requirements for joint possession.
Furthermore, in considering the requirements
for joint possession,
the lower court failed to attach sufficient weight to the
complainant’s evidence that the appellant
was in possession of
a screwdriver at the crime scene. There is no evidence on record
showing that the two firearms that were found
in possession of the
co-accused on 5 August 2008, were the same firearms that were used at
the crime scene. The complainant’s
evidence was that he saw
only one firearm at the crime scene, and he did not give a full
description (serial number and make) of
that firearm. When the two
firearms were found in possession of the co-accused, the appellant
was not present, and he was already
in custody.

[18] 
It would not be legally justifiable to limit the right against
self-incrimination in the circumstances of this matter.
We are not
inclined to condone the infringement of this fundamental right. The
admission made by the appellant that he is the owner
of both firearms
is inadmissible evidence. The state has failed to prove the
requirements of joint possession beyond reasonable
doubt.
Accordingly, the appeal against conviction on counts 2 and 4 must
succeed.

Ad
sentence

[19] 
It was submitted on behalf of the appellant that he is not
challenging the individual sentences. He contended that the
lower
court erred and misdirected itself when it failed
to consider the cumulative effect of an effective sentence of 28
years imprisonment, and that
such failure to do so induces a sense of
shock.

[20] 
It
is trite that sentencing is pre-eminently a matter for the discretion
of the trial court. The test for interference with the
sentence
imposed by the trial court is not whether or not the appeal court
would have imposed another form of punishment, but rather
whether the
trial court exercised its discretion properly and reasonably when it
imposed the sentence. The appeal court will interfere
where the
imposed sentence is vitiated by an irregularity, misdirection or
where there is a striking disparity between the sentence
and that
which the appeal court would have imposed had it been the trial court
or it induces a sense of shock.[3]

[21] 
The contention about the cumulative effect of the sentences falls
away because the appeal against conviction on counts
2 and 4
succeeds.  We do not find it necessary to deal with the sentence
of 12 years imprisonment for count 1 because the
appellant is not
challenging it. 

ORDER

[22] 
The following order is made.

1. 
The appeal against conviction and sentence on count 1, robbery with
aggravating circumstances is dismissed. The conviction
and sentence
imposed on count 1 are confirmed.

2. 
The appeal against conviction and sentence on counts 2 and 4,
unlawful possession of firearm is upheld.

3. 
The conviction and sentence on counts 2 and 4 are set aside, and
substituted with the following:

“Accused
1 is acquitted on counts 2 and 4, unlawful possession of
firearm.”        

MMP
Mdalana-Mayisela

Judge
of the High Court

Gauteng
Division,

Johannesburg

I
agree

C
I Moosa  

Judge
of the High Court

Gauteng
Division,

Johannesburg

Date
of delivery:                        

27 May 2025

Appearances:

On
behalf of the appellant:        
Adv AJ Greyling

Instructed
by:                             

Legal Aid SA

On
behalf of the respondent:      Adv C Ehlers

Instructed
by:                             

National Prosecuting Authority