THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable

Case No: 466/2021

In the matter between:

SIPHELELE GOODMAN NENE
Appellant

and

THE STATE
Respondent

Neutral Citation:
Siphelele Goodman Nene v The State (466/2021) [2022]
ZASCA 120 (5 September 2022)
Coram:
ZONDI JA and WEINER and MOLEFE AJJA
Heard:
18 August 2022
Delivered:
5 September 2022
Summary:
Appeal against refusal of petition for leave to appeal by
the high court – whether leave ought to have been
granted.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Van Zyl and Mnguni JJ, sitting as court of appeal):
The appeal is upheld.
The order of the high court is set aside and replaced with the following:
‘The applicant is granted leave to appeal to the KwaZulu-Natal
Division of the High Court, Pietermaritzburg, against his conviction
and sentence by the Durban Regional Court.’
______________________________________________________________

JUDGMENT
______________________________________________________________

Zondi JA (Weiner and Molefe AJJA concurring):
[1] This is an appeal against the refusal by the KwaZulu-Natal High Court,
Pietermaritzburg (the high court), of the appellant’s application for leave to
appeal to that court against his conviction and sentence. He was convicted in
the Regional Court (Durban) of robbery with aggravating circumstances as
read with s 51(2) of the Criminal Law Amendment Act 105 of 1997 (count 1),
possession of goods suspected to have been stolen in contravention of s 36
of Act 62 of 1955 (count 6), unlawful possession of a firearm in contravention
of s 3 of the Firearms Control Act 60 of 2000 (count 7) and unlawful
possession of ammunition in contravention of s 30 of the same Act (count 8).
[2] After his conviction, the appellant was sentenced as follows: (a) in
respect of robbery with aggravating circumstances (count 1), 15 years’
imprisonment; (b) in respect of possession of stolen property in contravention
of s 36 of Act 62 of 1955 (count 6), five (5) years’ imprisonment; (c) in respect
of unlawful possession of a firearm (count 7),15 years’ imprisonment and; (d)
in respect of unlawful possession of ammunition (count 8), two (2) years’
imprisonment.

[3] It was ordered that the two (2) years’ sentence imposed on count 6 run
concurrently with the sentence imposed on count 1. It was further ordered that
11 years of the sentence imposed in count 7 and the whole sentence imposed
on count 8 run concurrently with the sentence imposed on count 1. This
means that the appellant’s effective sentence was 22 years’ imprisonment.
The appellant’s application to the trial court for leave to appeal to the high
court against conviction and sentence, under s 309B of the Criminal
Procedure Act 51 of 1977, did not succeed. Consequently, the appellant
petitioned the Judge President of KwaZulu-Natal Division in terms of s 309C
of the same Act for such leave. Van Zyl and Mnguni JJ dismissed his petition.
[4] Aggrieved by this decision, the appellant lodged an application for
special leave in this Court against his conviction and sentence in terms of s
16(1)(b) of the Superior Court Act 10 of 2013. Such leave was granted by this
Court on 8 February 2021. The issue before this Court is whether the
appellant should have been granted leave to appeal to the high court against
his conviction and sentence.
[5] The approach to be followed in cases such as the one under
consideration where leave to appeal is sought against the refusal of the
petition by the high court was authoritatively set out in S v Khoasasa.1 In
addition, this Court in Mthimkhulu v S held as follows:2
‘This court has in a number of decisions stated that what is to be adjudicated upon is
whether the decision of the high court dealing with the refusal of the petition was
correct in terms of s 309C of the CPA and if it is, cadit quaestio. However, if the court
erred in holding that there were no reasonable prospects of success then leave to the
full bench will have to be granted on the merits to be adjudicated by the court. The
test in an application of this nature is whether there are reasonable prospects of
success in the envisaged appeal. It is not desirable to traverse the merits in detail.’

1 S v Khoasasa [2002] 4 All SA 635 (SCA); 2003 (1) SACR 123 (SCA). The latter has been
followed in various cases such S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA);
2013 (2) SACR 126 (SCA), Tonkin v S [2013] ZASCA 179; 2014 (1) SACR 583 (SCA), Van
Wyk v S, Galela v S [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR 584
(SCA) and Mthimkhulu v S [2016] ZASCA 180.
2 See Mthimkhulu v S [2016] ZASCA 180 para 5.

Consequently, this Court cannot determine the merits of the appeal but must
confine itself to the question whether leave to appeal to the high court should
have been granted.
[6]   This Court in S v van Wyk held that:3
‘An applicant for special leave to appeal must show, in addition to the ordinary
requirement of reasonable prospects of success, that there are special
circumstances which merit a further appeal to this court. This may arise when in the
opinion of this court the appeal raises a substantial point of law, or where the matter
is of very great importance to the parties or of great public importance, or where the
prospects of success are so strong that the refusal of leave to appeal would probably
result in a manifest denial of justice. See Westinghouse Brake and Equipment v
Bilger Engineering 1986 (2) SA 555 (A) at 564H-565E.’
[7] With this background, I briefly set out the events which led to the
appellant’s conviction and sentence. On 4 November 2015, at Burlington
Heights Drive (Marrianhill, Durban), the complainant, Mr Phakama
Hlatshwayo, a sales representative of British Tobacco Corporation, was
robbed at gunpoint of a VW Caddy vehicle with registration number ND
259564 valued at R250 000 and a Blackberry cellular phone valued at R1 500
by four unknown male suspects driving in a Hyundai Accent vehicle with
registration number YKG 138 GP. The VW Caddy vehicle was loaded with
boxes of an assortment of cigarettes to the value of R50 000.
[8] The Hyundai Accent overtook the complainant and blocked his path of
travel. He was ordered to get out of the vehicle, and he complied. After
loading the boxes of cigarettes into the Hyundai Accent, the suspects drove
away with both vehicles. They abandoned the complainant’s vehicle not far
from the scene. The incident was reported to the police, who arrived at the
scene shortly after the occurrence of the incident. The police found the
complainant at the scene, and he related to them what had befallen him. He
gave the police a description of the vehicle involved in the robbery. The police
followed the direction in which both the vehicles had travelled. They saw a

3 Van Wyk v S, Galela v S [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR
584 (SCA) para 21.

vehicle matching the description of the vehicle which was involved in the
robbery. When the police signalled for it to stop, it sped off.
[9] The police gave chase, and one of the suspects in the vehicle, with his
hands protruding through the window, fired shots at the police. After a high-
speed car chase, the driver of the Hyundai Accent lost control, causing the
vehicle to crash. About four male suspects got out of the vehicle and fled in
the same direction. One of the suspects fired shots at the police as he ran
away. The police returned fire hitting the suspect in the leg. The suspect threw
an object into the bushes along the footpath and disappeared.
[10] With the assistance of the Durban Metro Police Dog Unit (Dog Unit),
the suspect with a gunshot wound, who turned out to be the appellant, was
tracked down by a police dog handled by Inspector Botha of the Dog Unit in
one of the houses in the vicinity of the site where the Hyundai Accent had
crashed. Inspector Botha apprehended the appellant and handed him to the
police at the scene. The police arrested him, whereafter he was conveyed by
ambulance to the hospital to be treated for dog bites and the gunshot wound.
Sergeant Beckett proceeded to the spot where the appellant was seen
dropping an object. He found a Glock firearm loaded with ammunition. It
emerged during the police investigation that the Hyundai Accent vehicle had
been reported stolen in Chatsworth under ‘CAS 517/10/2015 robbery’.
[11] In consequence of these occurrences, the appellant was charged,
among others, with the offences set out above and after the trial, he was
convicted and sentenced as set out in the preceding paragraphs. The
appellant denied all the allegations against him. His version, in short, was that
he was accidentally shot during a shoot-out between the police and the
fleeing suspects while walking on the road. He was not one of the suspects,
but a passer-by. Two of the police officers at the scene set a police dog on
him, and it bit him.
[12] The appellant attacked his conviction by the trial court on a charge of
possession of goods suspected of being stolen in contravention of s 36 of Act
62 of 1955 (the Act). He argued that the trial court misdirected itself regarding

the application of s 36 of the Act. His contention was that s 36 is aimed at
instances where the state is unable to prove that the goods concerned were
indeed stolen, and in support of this proposition, he referred to CR Snyman in
Criminal Law 5 ed at 524, para 2. The appellant argued that, in the matter
under consideration, the state had no difficulties in proving that the motor
vehicle concerned had been stolen. Its difficulty was that the complainant was
unable to identify the thieves. The appellant argued further that the elements
of the crime under s 36 were not established in this matter, regard being had
to the fact that at no stage was he ever asked by the police about the Hyundai
Accent.
[13] In convicting the appellant of a crime of contravening s 36 of the Act,
the trial court stated that it was satisfied that the evidence adduced
established beyond reasonable doubt that ‘all four accused were travelling in
the said Hyundai Accent and that they failed to give a satisfactory account of
their possession’. This finding cannot be supported in the absence of
evidence by the police that after his arrest, the appellant was asked to give an
account of his possession of the Hyundai Accent and that he failed to give a
satisfactory account of such possession.4 This needs to be established for a
conviction under s 36 to be sustained.
[14] The second ground of the attack of the conviction was based on the
contention that there was no evidence that the appellant was one of the
occupants of the Hyundai Accent who exited it shortly after it capsized. This
contention related to the sufficiency of the identifying evidence of the
witnesses. In this regard, the trial court’s finding was that the police did not
lose sight of the suspects who exited the vehicle and fled. The appellant relied
upon certain inconsistencies in the State case in this regard.
[15] As regards the sentence, it was submitted by the appellant that the
effective sentence of 22 years induces a sense of shock. This was so, the
appellant argued, because most of the loot was recovered; the complainant

4 S v Kajee 1965 (4) SA 274 (T) at 276. See also JRL Milton South African Criminal Law and
Procedure, Volume III, Statutory Offences, Part Two 2 ed (2003) at 15-16 under the heading
‘inability to give satisfactory account’.

was not harmed during the robbery, and he was relatively young when the
offences were committed.
[16] As far as the sentence is concerned, the evidence was that the
appellant was 30 years of age, single with five minor children; had a cleaning
company, his income was between R6000 and R7000 per month, and he was
a first offender. The armed robbery charge was subject to s 51(2) of the
Criminal Law Amendment Act 105 of 1997, which prescribes a minimum
sentence of 15 years’ imprisonment upon conviction in the absence of
substantial and compelling circumstances that would justify the imposition of a
lesser sentence.
[17] The trial court considered the appellant’s personal circumstances and
concluded that they did not constitute substantial and compelling
circumstances and for that reason, imposed a sentence of 15 years’
imprisonment. It justified the sentence of 15 years it imposed in respect of the
charge of unlawful possession of a 9mm calibre Glock semi-automatic pistol
on the basis that such sentence was not out of proportion to the gravity of the
offence committed. The appellant argued that the sentences should have all
run concurrently, in the circumstances of the case.
[18] On the facts of this case, it could be said that the appellant does have
reasonable prospects of success, and the high court should have granted him
leave to appeal. In the result, the appeal must succeed.
[19] It is ordered that:
The appeal is upheld.
The order of the high court is set aside and replaced with the following:
‘The applicant is granted leave to appeal to the KwaZulu-Natal Division of the
High Court, Pietermaritzburg, against his conviction and sentence by the
Durban Regional Court.’

________________________
DH Zondi
Judge of Appeal

Appearances

For appellant:
L Barnard
Instructed by:
T Mpanza Attorneys, Durban

Blair Attorneys, Bloemfontein

For respondent:
Z Dyasi
Instructed by:
Director of Public Prosecutions, Pietermaritzburg

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

5 SEPTEMBER 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Siphelele Goodman Nene v The State (466/2021) [2022] ZASCA 120 (5 September 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding an appeal against the
refusal by the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the high court) of the
appellant’s petition for leave to appeal against his conviction and sentence imposed by the Regional
Court, Durban. The primary issue before the SCA was whether the appellant should have been granted
leave to appeal to the high court against his conviction and sentence.
On 4 November 2015, at Burlington Heights Drive (Marrianhill, Durban), the complainant, Mr Phakama
Hlatshwayo, a sales representative of British Tobacco Corporation, was robbed at gunpoint of a VW
Caddy vehicle with registration number ND 259564 valued at R250 000 and a Blackberry cellular phone
valued at R1 500 by four unknown male suspects driving in a Hyundai Accent vehicle with registration
number YKG 138 GP. The VW Caddy was loaded with boxes of an assortment of cigarettes to the value
of R50 000.
The Hyundai Accent overtook the complainant and blocked his path of travel. He was ordered to get
out of the vehicle, and he complied. After loading the boxes of cigarettes into the Hyundai Accent, the
suspects drove away with both vehicles. They abandoned the complainant’s vehicle not far from the
scene. The incident was reported to the police, who arrived at the scene shortly after the occurrence of
the incident. The police found the complainant at the scene, and he related to them what had befallen
him. He gave the police a description of the vehicle involved in the robbery. The police followed the
direction in which both the vehicles had travelled. They saw a vehicle matching the description of the
vehicle which was involved in the robbery. When the police signalled for it to stop, it sped off.
The police gave chase, and one of the suspects in the vehicle, with his hands protruding through the
window, fired shots at the police. After a high-speed car chase, the driver of the Hyundai Accent lost
control, causing the vehicle to crash. About four male suspects got out of the vehicle and fled in the
same direction. One of the suspects fired shots at the police as he ran away. The police returned fire
hitting the suspect in the leg. The suspect threw an object into the bushes along the footpath and
disappeared.
With the assistance of the Durban Metro Police Dog Unit (Dog Unit), the suspect with a gunshot wound,
who turned out to be the appellant, was tracked down by a police dog handled by Inspector Botha in
one of the houses in the vicinity of the site where the Hyundai Accent had crashed. Inspector Botha
apprehended the appellant and handed him to the police at the scene. The police arrested him,
whereafter he was conveyed by ambulance to the hospital to be treated for dog bites and the gunshot
wound. Sergeant Beckett proceeded to the spot where the appellant was seen dropping an object. He
found a Glock firearm loaded with ammunition. It emerged during the police investigation that the
Hyundai Accent vehicle had been reported stolen in Chatsworth.

In consequence of these occurrences, the appellant was charged, prosecuted and found guilty of the
offences set out below and after the trial, he was convicted and sentenced as set out in the paragraphs
that follow. The appellant denied all the allegations against him. His version, in short, was that he was
accidentally shot during a shoot-out between the police and the fleeing suspects while walking on the
road. He was not one of the suspects, but a passer-by. Two of the police officers at the scene set a
police dog on him, and it bit him.
The appellant was convicted in the Regional Court (Durban) of robbery with aggravating circumstances
as read with s 51(2) of the Criminal Law Amendment Act 105 of 1997 (count 1), possession of goods
suspected to have been stolen in contravention of s 36 of Act 62 of 1955 (count 6), unlawful possession
of a firearm in contravention of s 3 of the Firearms Control Act 60 of 2000 (count 7) and unlawful
possession of ammunition in contravention of s 30 of the same Act (count 8).
After his conviction, the appellant was sentenced as follows: (a) in respect of robbery with aggravating
circumstances (count 1), 15 years’ imprisonment; (b) in respect of possession of stolen property in
contravention of s 36 of Act 62 of 1955 (count 6), five (5) years’ imprisonment; (c) in respect of unlawful
possession of a firearm (count 7),15 years’ imprisonment and; (d) in respect of unlawful possession of
ammunition (count 8), two (2) years’ imprisonment.
It was ordered that the two (2) years’ sentence imposed on count 6 run concurrently with the sentence
imposed on count 1. It was further ordered that 11 years of the sentence imposed in count 7 and the
whole sentence imposed on count 8 run concurrently with the sentence imposed on count 1. This means
that the appellant’s effective sentence was 22 years’ imprisonment. The appellant’s application to the
trial court for leave to appeal to the high court against conviction and sentence, under s 309B of the
Criminal Procedure Act 51 of 1977, did not succeed. Consequently, the appellant petitioned the Judge
President of KwaZulu-Natal Division in terms of S 309C of the same Act for such leave. His petition was
dismissed.
In convicting the appellant of a crime of contravening s 36 of the Act, the trial court stated that it was
satisfied that the evidence adduced established beyond reasonable doubt that ‘all four accused were
travelling in the said Hyundai Accent and that they failed to give a satisfactory account of their
possession’. The appellant argued that the trial court misdirected itself regarding the application of s 36
of the Act. His contention was that s 36 is aimed at instances where the state is unable to prove that
the goods concerned were indeed stolen, adding further that the state’s difficulty was that the
complainant was unable to identify the thieves. The appellant contended that the elements of the crime
under s 36 were not established in this matter, regard being had to the fact that at no stage was he ever
asked by the police about the Hyundai Accent and that there was no evidence that he was one of the
occupants of the Hyundai Accent who exited it shortly after it crashed. Lastly, regarding the sentence,
the appellant asserted that the effective sentence of 22 years induces a sense of shock as most of the
loot was recovered; the complainant was not harmed during the robbery, and he was relatively young
when the offences were committed.
As to the trial court’s conviction on the crime of contravening s 36 of the Act, the SCA held that the trial
court’s finding that the appellant had failed to give account of his possession of the Hyundai Accent
motor vehicle could not be supported in the absence of evidence by the police that after his arrest, the
appellant was asked to give an account of his possession of the Hyundai Accent and that he failed to
give a satisfactory account of such possession as this needed to be established for a conviction under
s 36 to be sustained.
Zondi JA writing for the Court, held that on the facts of the case, it could be said that the appellant does
have reasonable prospects of success, and the high court should have granted him leave to appeal.
The appeal was then upheld with the order of the high court being set aside and replaced.

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