THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable

Case No: 723/2020

In the matter between:

LUCKY THOMAS KHUMALO
APPLICANT

and

THE STATE
RESPONDENT

Neutral Citation:
Lucky Thomas Khumalo v The State (723/20) [2022]
ZASCA 39 (04 April 2022)
Coram:
MOLEMELA, MBATHA and CARELSE JJA, SMITH and
WEINER AJJA
Heard:
15 February 2022
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 released to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 04 April 2022.

Summary: Criminal procedure – appeal against refusal in a high court of a
petition seeking leave to appeal against convictions and sentences –
reasonable prospects of success found in respect of the sentences – merits
of appeal against the sentences to be determined by the high court.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: The Gauteng Division of the High Court, Johannesburg
(Preller J and Fourie AJ sitting as court of appeal):
The appeal is upheld in part.
The order of the High Court dismissing the applicant’s application for
leave to appeal is set aside and substituted with the following:
‘The applicant’s application for leave to appeal in terms of s 309C of
the Criminal Procedure Act 51 of 1977 is granted only in respect of the
sentences.’

______________________________________________________________

JUDGMENT
______________________________________________________________

Molemela JA (Mbatha and Carelse JJA and Weiner and Smith JJA
concurring):

[1] On 22 May 2012, Mr Khumalo (‘the applicant’) appeared at the
Regional Court, Nigel (the trial court), where he faced the following charges:
(i) robbery with aggravating circumstances read with the provisions of ss 51(2)
and 52(2) of the Criminal Law Amendment Act of 1997; (ii) attempted murder;
(iii) contravention of s 3 read with ss 1, 103, 117, 120(1)(a) and 121, read with
Schedule 4 and s 151 of the Firearms Control Act 60 of 2000, read with the
provisions of s 250 of the Criminal Procedure Act 51 of 1977 (CPA)
(possession of an unlicensed firearm) and (iv) contravention of s 90 read with
ss 1, 103, 117 and 120(1)(a), s 121 read with Schedule 4 and s 151 of the
Firearms Control Act 60 of 2000 read with s 250 of the CPA (possession of
unlicensed ammunition). The applicant was found guilty as charged and
sentenced as follows: (i) count 1, 15 years’ imprisonment; (ii) count 2, 10

years’ imprisonment; (iii) count 3, 5 years’ imprisonment and (iv) count 4, 1-
year imprisonment. The sentences were not ordered to run concurrently, such
that the applicant’s effective sentence was 31 years’ imprisonment.

[2] Dissatisfied with the outcome of the trial, the applicant, within the
contemplation of s 309(1)(a) of the CPA, sought the trial court’s leave to
appeal against the convictions and the sentences imposed on him. That
application was dismissed. A subsequent petition to the North Gauteng
Division of the High Court, Pretoria (the High Court), as contemplated in
s 309C of the CPA, was similarly unsuccessful. With the special leave of this
Court, the applicant now appeals against the high court’s refusal of his
petition.

[3] In this matter, the parties agreed that the appeal be disposed of without
oral arguments as contemplated in s 19(a) of the Superior Courts Act 10 of
2013. A reading of both parties’ heads of argument, however, revealed that
they had mischaracterised the issue for determination by this Court, insofar as
they submitted that the issue for determination was the appropriateness of the
sentences imposed upon the applicant. It bears mentioning that this court, in
S v Khoasasa,1 held that a sentence imposed in the trial court can only be
appealed against in this Court when an appeal against such sentence has
failed in the high court. Significantly, in S v Matshona,2 this Court held that
where an accused person obtains leave to appeal to this Court against the
high court’s refusal of a petition seeking leave to appeal against a conviction
of sentence, ‘the issue before this Court is whether leave to appeal should
have been granted by the high court and not the appeal itself’. It held that ‘this
court cannot determine the merits of the appeal but must confine itself to the
issue before it, namely whether leave to appeal to the high court should have
been granted’.3
[4] A plethora of judgments of this Court have re-confirmed the principles
laid down in the two seminal judgments mentioned in the preceding

1 S v Khoasasa 2003 (1) SACR 123 (SCA). See also S v Matshona [2008] ZASCA 58; [2008]
4 All SA 68 (SCA); 2013 (2) SACR 126 (SCA) para 3.
2 See Matshona fn 1 para 5.
3 Ibid para 7.

paragraph.4 It is therefore well established that in an appeal against the
refusal of a petition in the high court, like the present, the ambit of the appeal
to this Court is confined to only what the high court could have granted, with
the result that in the event of reasonable prospects of success being found to
be present in relation to either the convictions or sentences or both, the only
relief open to be granted by this Court would be to set aside the order
dismissing the petition and to remit the matter back to the high court. That is
the crisp issue that falls for determination in this matter.

[5] Given the parties’ misconception that this Court was at large to deal
with the merits of the appeal, the trite position set out in the preceding
paragraph was brought to the parties' attention. As the heads of argument
were in any event confined to the merits of the appeal pertaining to the
sentences, counsel was duly directed to file supplementary heads of
argument addressing whether there were prospects of success in relation to
the convictions. The directions issued also called upon the applicant to, in the
event of him no longer being intent on pursuing the appeal in relation to the
convictions, expressly indicate his abandonment of that leg of the appeal.

[6] In the supplementary heads submitted in response to this Court’s
directions, the State Advocate conceded that this Court cannot delve into the
merits of the appeal. As regards the necessity to file supplementary heads
addressing the convictions, the nub of the response was couched as follows:
‘We realized that the proposed Appeal could entail the conviction, as well as
sentence. In the result we requested our correspondent to obtain a copy of the
Petition the Appellant filed in person, prior to drafting the heads of argument.
(Attached)
Although the Appellant’s Notice of Motion does not specify whether he is seeking to
Appeal the conviction, or only the sentence; the body of his affidavit makes clear that
the Special Leave to Appeal would be sought only against the sentence.
This is stated clearly in paragraph 21 as follows “This appeal against sentence” and it
could leave no doubt that the intended Appeal is directed only at the sentence.

4 Van Wyk v State, and Galela v S [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1)
SACR 584 (SCA); Chauke v S [2020] ZASCA 68; Grifhs v S [2021] ZASCA 112.

Further, the headings at paragraphs 24 and 28 specifically refers to the sentence.
In addition, the body of the affidavit throughout refers to the sentence and make no
submissions apropos the conviction.

Moreover, the conclusion at paragraph 75 could leave no doubt that the Special
Leave to Appeal would only be sought on the sentence.
Considering the concession, the Appellant makes at paragraph 28:
“My deep regret and remorse for my deviant conduct, and the seriousness of the
crimes I have committed, is acknowledged without reservation.” (My emphasis.)
It would have been unethical to put up submissions apropos the conviction.
We discussed this issue amongst our practitioners and came to the conclusion that it
would not be appropriate to address the conviction in heads of argument.’

[7] As stated before, the applicant’s petition to the High Court was directed
at the convictions and sentences. In his petition to this Court, the
unrepresented applicant indicated that he was applying for leave to appeal
against the high court's order refusing to grant leave to appeal. He inter alia
stated that he is ‘entitled to special leave where the matter, though depending
mainly on factual issues, is of great importance’. To the extent that this
statement may be considered an oblique reference to the convictions, this
Court will, ex abudanti cautela (for the abundance of caution), also address
itself to prospects of success in relation to both the convictions and
sentences.

Are there prospects of success in relation to the convictions?
[8] It is appropriate to preface this leg of the enquiry with a brief summary
of the evidence adduced before the trial court. Themba Charles Tshabalala
(the complainant) testified that on the night of 22 March 2011, he and his
girlfriend, Ms Malefani, were walking to his place of residence after spending
some time at a stokvel. They were approximately a block away from the
stokvel place, when a gun-wielding man suddenly emerged from around a
corner and ran in their direction. I interpose to mention that on the version
presented by the State, the complainant’s assailant turned out to be the
applicant before us. Accordingly, the complainant’s assailant will hereafter be

referred to as the applicant. After emerging from around the corner, the
applicant, who was being followed by a number of companions, immediately
started shooting at the complainant without saying anything. The injured
complainant ran into a yard with the applicant in hot pursuit. The applicant
caught up with the complainant and tried to search his pockets. Mindful that
he had a large sum of money in his pockets, the complainant resisted the
search by grabbing the applicant’s hands. The applicant bit the complainant
on the chest, which resulted in the complainant releasing the applicant’s
hands. The applicant then fired two shots at the complainant. The applicant’s
accomplices then pinned the complainant to the ground while the applicant
searched the complainant’s pockets. An amount of R27 000 was forcibly
removed from the complainant’s pockets during the scuffle, whereafter the
applicant and his accomplices fled the scene.
[9] The
complainant’s
girlfriend,
Ms
Malefani,
corroborated
the
complainant’s version regarding how the complainant was shot and how he
fled into the yard of a certain house. She stated that she witnessed the
struggle for the firearm and saw the person who had shot at the complainant
trying to search his pockets. It was at that point that she fled the scene and
ran into a nearby yard, where she hid behind the outbuildings. She could hear
the complainant screaming and protesting that he was being robbed of his
money and that they were killing him. She stated that the person who had
shot at the complainant was unknown to her, but she was later able to give his
description to the police.

[10] Warrant Officer Mkhatshane John Shilenge testified that he was on
duty on 22 March 2011 and attended to a complaint regarding a shooting
incident. He found the complainant at the scene, lying in a pool of blood.
Based on the report received at the scene, he proceeded to the applicant’s
home. The applicant denied any involvement in the shooting. He decided to
search the applicant’s room. He found an amount of R1 600 under the pillow.
At a later stage, the applicant took the police to his car, removed a door panel
on the driver’s side and pointed out a firearm that was hidden behind the door
panel.

[11] Mr Sabelo Simelane turned out to be a key state witness in the trial. He
testified that on the night of 22 March 2011, he was one of the patrons
enjoying liquor at a stokvel.  As he had consumed a lot of liquor and was
under the influence, he asked his uncle for a lift to his place of residence. His
uncle, who was standing next to a Mazda sedan at that stage, agreed to give
him a lift. At a later stage, his uncle came to him and told him that he and his
friends were leaving. He accompanied his uncle to a vehicle parked outside,
which was a Fiat Uno. He noticed that the applicant was in the driver’s seat.
He and his uncle boarded the vehicle and sat at the back seat. The applicant
then drove off.

[12] The applicant stopped the vehicle in Khumalo Street and alighted from
the vehicle. He (Mr Simelane) noticed that the applicant was brandishing a
firearm. Thereafter three shots were fired. In the intervening period, one
person who had been sitting in the front seat moved to the driver’s seat.
Before the Uno drove off, he (Mr Simelane) saw the applicant running into a
yard. The Uno vehicle drove slowly and then stopped next to a filling station.
After a short while, the Mazda that he had seen at the stokvel earlier on
appeared, flashed its lights, whereupon the Uno vehicle started following it.
He noticed that the applicant was one of the passengers in the Mazda sedan.
The Uno drove into the garage of a certain house. The applicant and the
driver of the Mazda then alighted from their vehicle and boarded the Uno. The
applicant then gave money to everyone who was in the Uno, including his
uncle. Thereafter, the applicant gave him (Mr Simelane) an amount of R800,
which he accepted.

[13] The applicant testified in his defence. He stated that he did not know
the complainant before the date of the incident. He also denied knowing Mr
Simelane. He denied having driven the Uno on the night of the incident. He
also denied firing any shots on the night in question. The applicant admits that
he and the complainant wrestled for a firearm on that night but denies having
shot at or robbed the complainant.  His version was that prior to that incident,
he had visited a stokvel where he had enjoyed drinks with his friends. After
some time, the police arrived at the stokvel and instructed everyone to

disperse. It was at that juncture that he noticed his girlfriend, Ms Malefani,
leaving the stokvel in the company of the complainant. He followed them and
confronted Ms Malefani about the matter. According to the applicant, the
complainant suddenly pulled out a firearm and cocked it, as a result of which,
a cartridge fell on the ground. He and the complainant were then involved in a
physical struggle for possession of the firearm, and shots went off. He noticed
that the complainant became weak, and the firearm fell to the ground. He (the
applicant) immediately grabbed the firearm and put it in one of the pockets of
his trousers.
[14] According to the applicant, he then returned to the stokvel to look for
his vehicle (the Uno sedan) but could not find it there. He then boarded his
friend’s Mazda. His friend drove to a filling station, only to find that his Uno
sedan was parked there. Thereafter, he and his friend went to his (the
applicant’s) house. He intended to hand the firearm in question to the police
but ended up not doing so. He went to his residence to go and sleep but could
not enter the house with the firearm because he knew that his girlfriend was
scared of firearms. That was what prompted him to hide the firearm behind
the door-panel of his vehicle.

[15] The trial court rejected the applicant’s version and accepted that of the
state witnesses. The reason for this is not hard to find, as there were many
inconsistencies and improbabilities in his version. The applicant’s first difficulty
is that his version about him being Ms Malefani’s boyfriend was denied by Ms
Malefani during the trial. She categorically stated that the applicant was
unknown to her prior to the trial, but this was not taken any further under
cross-examination.5 This aspect casts serious doubt on the applicant’s
version.

5It is settled law that if an aspect of a witness’ evidence is left unchallenged in cross
examination, the party calling the witness is entitled to assume that the unchallenged
evidence may be considered as correct. See S v Thebus 2003 2 SACR 319 CC a paras 56 -
59; The President of SA v SA Rugby Union and Others 2000(1) SA 1 (CC) at paras 61-65.

[16] The second difficulty is that the applicant’s counsel did not seriously
dispute Mr Simelane’s version under cross-examination. It was only in his
evidence in chief that the applicant, for the very first time, stated that he had
not seen Mr Simelane before the date of the trial. This is very surprising,
considering that Mr Simelane seriously implicated him in a detailed account of
events and pertinently stated that he was brandishing a firearm immediately
before three shots were fired in the vicinity of the place where the complainant
was shot.

[17] The version narrated by the complainant and Ms Malefani tallies with
the account of events as narrated by Mr Simelane, which is that the shooting
was not preceded by any exchange of words or wrestling over a firearm. His
evidence that the applicant immediately fired three shots after alighting from
the Uno tallies with the complainant’s evidence that he sustained three
gunshots wounds before fleeing to a nearby yard. Significantly, Mr Simelane’s
version about the Uno being parked at a garage and the applicant being a
passenger in the Mazda sedan happens to accord with the applicant’s own
account of events. How else would Mr Simelane have known about this
detailed account of events if his version was false?

[18] Notably, the applicant placed himself at the scene of the shooting. If his
account of events is to be believed, during the scuffle, the complainant, who,
according to the applicant was the aggressor, shot himself five times but did
not manage to shoot the applicant even once. This is highly improbable.
Moreover, having gained possession of the complainant’s firearm after such a
close shave, he simply left the scene and ultimately went home without
reporting the incident to the police. Instead of handing over the firearm to the
police, he decided to hide it behind his car's door panel.

[19] Considering all the circumstances of this case, I am of the view that the
evidence tendered by the State weighs so heavily as to exclude any

reasonable doubt about the applicant’s guilt.6 Expressed differently, the
mosaic of the evidence as a whole is, beyond reasonable doubt, inconsistent
with the applicant’s innocence.7 The inescapable inference is that the
applicant was the aggressor on the night of the incident; that he shot at the
complainant, chased him into a yard, fired more shots at the complainant and
then robbed him of his money.
The trial court rightly rejected the applicant’s version as false beyond a
reasonable doubt. The high court, therefore, correctly dismissed the petition
against the convictions. It follows that there are no prospects of success in
respect of the applicant’s convictions.

Are there any prospects of success regarding the applicant’s
sentences?
[20] Before us, it was argued that the applicant had good prospects of
success on this leg of the appeal, as the trial court had failed to take into
account the cumulative effect of the sentences imposed. It was submitted that
an effective sentence of 31 years’ imprisonment was disproportionate and
harsh, thus instilling a sense of shock, given that all the offences were
committed as part of the same transaction. This called for the sentences to
run concurrently, so it was contended.

[21] The state submitted that the high court had rightly dismissed the
petition directed at the sentences, as the applicant had two relevant previous
convictions. It was also submitted that the sentence imposed in respect of
attempted murder was not too harsh, considering the violence perpetrated
against the complainant.

[22] It is indeed so that all four offences for which the applicant was
convicted may be considered to have been committed in a single sequence of
criminal conduct. Consequently, this is an aspect that bears consideration in

6 Cornick and Another v S 2007 (2) SACR 115 (SCA); [2007] 2 All SA 447 (SCA); [2007]
ZASCA 14 para 42; S v Van den Meyden 1999 (1) SACR 447(W) at 449d-e, cited with
approval in S v Van Aswegen 2001 (2) SACR 97 (SCA) at 101a-f.
7 R v Blom 1939 AD 188 at 202.

this matter.8 On that basis, I am of the view that there are reasonable
prospects that another court could find that the trial court did not properly
consider the cumulative effect of the sentences and that it might,
consequently, order some sentences to run concurrently, which might, in turn,
reduce the term of the effective sentence.9 On this ground alone, the
application for leave to appeal stands to succeed.

[23] In the result, the following order is granted:
The appeal is upheld in part.
The order of the High Court dismissing the applicant’s application for
leave to appeal is set aside and substituted with the following:
‘The applicant’s application for leave to appeal in terms of s 309C of
the Criminal Procedure Act 51 of 1977 is granted only in respect of the
sentences.’

______________________
M B Molemela
Judge of Appeal

8 See S v Fourie 2001 (2) SACR 118 (SCA); [2001] 4 All SA 365 para 20.
9 See S v Dlamini and Others [2012] ZASCA 207 para 14.

Appearances:

For applicant:

L A van Wyk
Instructed by:

Legal Aid South Africa, Pretoria

Legal Aid South Africa, Bloemfontein Local Office

For respondent:

LA More
Instructed by:

Director of Public Prosecutions, Pretoria

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:
04 April 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
Lucky Thomas Khumalo v The State (723/20) [2022] ZASCA 39 (04 April 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment upholding, in part, an appeal
against the Gauteng Division of the High Court, Johannesburg (the high court).

The issue before the SCA concerned the high court’s refusal of the applicant’s petition application.

On 22 May 2012, Mr Khumalo (the applicant) appeared at the Regional Court, Nigel (the trial court),
where he faced the following charges: (i) robbery with aggravating circumstances; (ii) attempted murder;
(iii) contravention of s 3 of the Firearms Control Act 60 of 2000 (possession of an unlicensed firearm)
and (iv) contravention of s 90 of the Firearms Control Act 60 of 2000 (possession of unlicensed
ammunition). The applicant was found guilty as charged and sentenced as follows: (i) count 1, 15 years’
imprisonment; (ii) count 2, 10 years’ imprisonment; (iii) count 3, 5 years’ imprisonment and (iv) count 4,
1-year imprisonment. The sentences were not ordered to run concurrently, such that the applicant’s
effective sentence was 31 years’ imprisonment.

Dissatisfied with the outcome of the trial, the applicant sought the trial court’s leave to appeal against
the convictions and the sentences imposed on him. That application was dismissed. A subsequent
petition to the high court was similarly unsuccessful. Hence, the applicant appealed against the high
court’s refusal of his petition.

The applicant’s petition to the high court was directed at the convictions and sentences. Although his
petition to the SCA was for leave to appeal against the high court’s order refusing to grant leave to
appeal, the SCA held that it will also address prospects of success in relation to both the convictions
and sentences. In this regard, the SCA dealt with the following two questions.

Firstly, the SCA dealt with the question of whether there were prospects of success in relation to the
convictions? The SCA held that considering all the circumstances of this case, it was of the view that
the evidence tendered by the State weighed so heavily as to exclude any reasonable doubt about the
applicant’s guilt. Moreover, the mosaic of the evidence as a whole was, beyond reasonable doubt,
inconsistent with the applicant’s innocence.

In addition, the SCA held that the inescapable inference was that the applicant was the aggressor on
the night of the incident; that he shot at the complainant, chased him into a yard, fired more shots at the
complainant and then robbed him of his money. Consequently, the SCA found that the trial court rightly
rejected the applicant’s version as false beyond a reasonable doubt. Hence, the high court correctly
dismissed the petition against the convictions. As a result, the SCA found that there are no prospects
of success in respect of the applicant’s convictions.

Secondly, the question before the SCA was whether there were any prospects of success regarding
the applicant’s sentences? The SCA held that it was indeed so that all four offences for which the
applicant was convicted may be considered to have been committed in a single sequence of criminal
conduct. Consequently, this was an aspect that bore consideration in this matter. Hence the SCA held

that there were reasonable prospects that another court could have found that the trial court did not
properly consider the cumulative effect of the sentences and that it might, consequently, order some
sentences to run concurrently, which might, in turn, reduce the term of the effective sentence. As a
result, the SCA found that on this ground alone, the application for leave to appeal stands to succeed.
~~~~ends~~~~