Nong and Masingi v The State

The appellants were convicted in the Regional Court, Johannesburg on 6 November 2017 of robbery with aggravating circumstances read with section 51 of the Criminal Law Amendment Act 105 of 1997. The first appellant was sentenced to 12 years' imprisonment and the second appellant to 15 years' imprisonment. The complainant, Kwanele Arnold Dube, testified that he was robbed at gunpoint by two assailants using what appeared to be a firearm (later revealed to be a toy gun). After being robbed, he followed his assailants and with the assistance of a colleague from the Community Policing Forum, Simphiwe John Mthembu, apprehended the appellants. The toy gun was retrieved from the possession of the first appellant. Constable Ndaonde attended the scene and the toy gun was handed to him. The appellants placed themselves on the scene but contested the complainant's identification and version of events. The regional magistrate refused leave to appeal against conviction but granted leave to appeal against sentence (which was later dismissed on 21 June 2020). The appellants' petition for leave to appeal against conviction in terms of section 309C of the CPA was dismissed by the high court. Special leave to appeal was subsequently granted by the Supreme Court of Appeal.

• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal on the merits directly from the magistrates' court where no appeal on the merits has been heard by the high court
• Whether the high court erred in refusing the petition for leave to appeal against conviction
• Whether the appellants demonstrated reasonable prospects of success on appeal
• Whether the trial court misdirected itself regarding identification evidence and the cautionary rule applicable to a single witness
• Whether the complainant's evidence was properly corroborated and reliable

The appellants' application for leave to appeal against the refusal of the petition on their conviction was dismissed.

Where a petition for leave to appeal from a magistrates' court conviction has been refused by the high court and special leave is granted by the Supreme Court of Appeal, the SCA's jurisdiction is limited to determining whether the high court erred in refusing leave to appeal, not to hear the appeal on the merits. The test for reasonable prospects of success requires the appellant to show a sound, rational basis that a court of appeal could reasonably arrive at a conclusion different to that of the trial court - more than mere possibility, arguability, or that the case is not hopeless. There must be a realistic chance of success. In assessing identification evidence, courts must consider the totality of the evidence including corroboration, the reliability of observations given proximity and opportunity to observe, and whether the accused's own version places them at the scene and corroborates aspects of the complainant's account. A conviction can be sustained on the evidence of a single witness if that evidence is credible, reliable and corroborated on material aspects.

The Court endorsed the principle that while contradictions in the evidence of a single witness may in some instances be fatal, in others they may not be, depending on the nature and materiality of the contradictions and the overall reliability of the evidence. The Court noted that identification evidence must be approached with caution due to the fallibility of human observation, and the reliability of a complainant's evidence must be tested even when the witness appears honest. The Court observed that the failure of the defense to put its version to a key State witness (Constable Ndaonde) during cross-examination, when that version only emerged during the defense case, undermines the credibility and weight of the defense version.

This case reinforces the limited jurisdiction of the Supreme Court of Appeal where special leave to appeal is granted following dismissal of a petition for leave to appeal against a magistrates' court conviction. It confirms that in such circumstances, the SCA does not hear the appeal on the merits but only determines whether the high court erred in refusing leave to appeal. The case clarifies the application of the 'reasonable prospects of success' test, requiring more than mere possibility or arguability - there must be a sound, rational basis for concluding there are realistic prospects of success. The judgment provides guidance on the assessment of identification evidence, corroboration, and the evaluation of contradictory defense versions in criminal appeals. It emphasizes the importance of cross-examining witnesses on material contradictions and the weight to be given to an accused's failure to do so.