Masango and Another v The State

On 1 December 2015, Ms Wendy Ndlovu was working as a housekeeper at a house in Randfontein. Between 09h30 and 10h00, men in a Ford Bantam approached the gate, claiming they were there to install air-conditioning. After one pretended to call the homeowner (Mr Porter), Ms Ndlovu let them in. Once inside, they revealed they were there to rob the house, took her phone, slapped her, tied her up with cable ties, and blindfolded her. They stole laptops, TV screens, a sound system, her cellphone, and a red BMW 3 series from the garage. Ms Ndlovu managed to escape and contact the police. Between 12h00 and 13h00 on the same day, police officers (Constable Njobo and colleagues) were informed by community members that two men were stripping a motor vehicle. They found the two appellants dismantling the red BMW 3 series. The appellants were arrested. They were subsequently convicted in the Regional Court for the District of Soweto at Protea on 24 January 2017 of robbery with aggravated circumstances read with s 51(2) of the Criminal Law Amendment Act 105 of 1997. The first appellant was sentenced to 20 years imprisonment and the second to 15 years. Leave to appeal was refused by the regional court on 16 October 2017. A petition to the Gauteng High Court in terms of s 309C of the CPA was refused on 25 February 2019. Special leave to appeal the dismissal of the petition was granted by the Supreme Court of Appeal.

• Whether the high court should have granted leave to appeal against conviction based on the argument that the main witness (Ms Ndlovu) was a single witness
• Whether dock identification carried sufficient evidential value to sustain a conviction
• Whether the doctrine of recent possession applied to corroborate the witness's evidence
• Whether the high court should have granted leave to appeal against sentence in relation to the first appellant
• Whether the regional court misdirected itself in sentencing the first appellant

The appellants' application for leave to appeal against the refusal of the petition on their convictions was dismissed. The first appellant's application for leave to appeal against the refusal of the petition on his sentence was refused.

The binding legal principles established are: (1) In appeals from lower courts under s 309C of the CPA, the Supreme Court of Appeal's jurisdiction is limited to determining whether the high court should have granted leave to appeal, not to determining the merits of the appeal itself. (2) The test for reasonable prospects of success requires the appellant to convince the court on proper grounds that there are prospects of success that are not remote but have a realistic chance of succeeding - more is required than a mere possibility of success or an arguable case; there must be a sound, rational basis for the conclusion. (3) While dock identification is inherently dangerous, it may be sufficient to sustain a conviction when corroborated by other credible evidence, such as the doctrine of recent possession. (4) The doctrine of recent possession applies when stolen property is found in an accused's possession within a short time after the theft/robbery, and serves to corroborate identification evidence. (5) A trial court's sentencing discretion will not be interfered with on appeal absent a misdirection or failure to exercise discretion properly and judicially.

The Court noted that although there were some contradictions between the evidence of the police officers who arrested the appellants, these contradictions were not material to the central fact that the appellants were found in possession of Mr Porter's vehicle merely two hours after it was taken during the robbery. The Court also observed that Ms Ndlovu's powers of observation were particularly reliable because she did not initially suspect the men of any wrongdoing, so her observations were not initially tainted by fear. The Court made a passing observation that Ms Ndlovu incorrectly identified a photograph shown to her by Mr Porter as being of the first appellant, but this did not affect the overall assessment of her credibility or the reliability of her in-court identification given the corroborating circumstances.

This case reinforces the well-established principles in South African criminal procedure regarding applications for leave to appeal following a refusal of a petition under s 309C of the Criminal Procedure Act. It confirms that the Supreme Court of Appeal lacks jurisdiction to entertain appeals on the merits in the absence of leave to appeal being granted. The case reiterates the test for 'reasonable prospects of success' on appeal, requiring more than a mere possibility or arguable case - there must be a sound, rational basis for concluding that an appeal court could reach a different conclusion. The judgment also demonstrates the application of the doctrine of recent possession as corroborative evidence, and clarifies that while dock identification is inherently dangerous, it may be sufficient when corroborated by other reliable evidence. The case further illustrates the proper exercise of sentencing discretion, particularly regarding previous convictions and the assessment of prospects for rehabilitation.