Lucky Thomas Khumalo v The State

On 22 March 2011, the complainant Themba Charles Tshabalala and his girlfriend Ms Malefani were walking home from a stokvel when they were accosted by Khumalo (the applicant) armed with a gun. The applicant immediately started shooting at the complainant, who ran into a yard while being pursued. The applicant caught up with the complainant, bit him on the chest during a struggle, fired two additional shots, and with accomplices, forcibly robbed the complainant of R27,000. The complainant sustained five gunshot wounds. Police found R1,600 at the applicant's home under his pillow and a firearm hidden in his car's door panel. A key witness, Mr Simelane, testified he was at the stokvel, left in a Fiat Uno driven by the applicant, saw the applicant alight with a firearm, heard three shots, and later witnessed the applicant distributing money to those in the vehicle, including receiving R800 himself. The applicant was charged with robbery with aggravating circumstances, attempted murder, and two firearms-related charges. On 22 May 2012, the Regional Court, Nigel convicted him on all counts and sentenced him to an effective sentence of 31 years' imprisonment (15 years for robbery, 10 years for attempted murder, 5 years for unlicensed firearm possession, 1 year for unlicensed ammunition possession), with no concurrent sentencing. The applicant's applications for leave to appeal to the trial court and later by petition to the High Court were both refused.

• Whether the High Court should have granted leave to appeal against the convictions
• Whether the High Court should have granted leave to appeal against the sentences
• Whether there were reasonable prospects of success in respect of the convictions
• Whether there were reasonable prospects of success in respect of the sentences
• Whether the trial court properly considered the cumulative effect of the sentences imposed
• Whether the sentences imposed for offences committed in a single transaction should have run concurrently

The appeal was upheld in part. The High Court's order dismissing the applicant's application for leave to appeal was set aside and substituted with an order granting leave to appeal only in respect of the sentences in terms of section 309C of the Criminal Procedure Act 51 of 1977. The matter was effectively remitted to the High Court to determine the merits of the appeal against sentence.

When an appeal is brought to the Supreme Court of Appeal against a High Court's refusal of a petition seeking leave to appeal against conviction or sentence, the SCA's jurisdiction is confined to determining whether the High Court should have granted leave to appeal, not to decide the merits of the appeal itself. The test is whether there are reasonable prospects of success. In sentencing, where multiple offences arise from a single sequence of criminal conduct, courts must properly consider the cumulative effect of sentences and whether some or all should run concurrently. Failure to adequately consider this factor may constitute grounds for finding reasonable prospects of success on appeal against sentence. The SCA's role in such cases is to remit matters back to the High Court where reasonable prospects are found, rather than to determine the appeal on its merits.

The Court made observations about the quality of the applicant's defence at trial. It noted that the applicant's counsel failed to seriously dispute key State witness Mr Simelane's version under cross-examination, and only in evidence-in-chief did the applicant deny knowing Simelane. The Court described this as "very surprising" given the detailed and incriminating nature of Simelane's testimony. The Court also commented on the inherent improbability of the applicant's version that during a struggle, the complainant managed to shoot himself five times without shooting the applicant even once. The Court further noted that where an aspect of a witness's evidence is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged evidence may be considered correct, citing The President of SA v SA Rugby Union and S v Thebus.

This case is significant in South African criminal procedure law as it reaffirms the limited scope of appeals to the Supreme Court of Appeal against the refusal of petitions in the High Court. It confirms the principles established in S v Khoasasa and S v Matshona that where an accused obtains leave to appeal to the SCA against a High Court's refusal of a petition, the SCA cannot determine the merits of the appeal but must confine itself to whether leave to appeal should have been granted by the High Court. The case also reinforces sentencing principles regarding the need for courts to consider the cumulative effect of multiple sentences arising from a single transaction and the appropriateness of concurrent sentencing in such circumstances. It demonstrates the application of the "reasonable prospects of success" test in the context of petitions for leave to appeal.