Siphelele Goodman Nene v The State

On 4 November 2015 at Burlington Heights Drive, Durban, the complainant, a sales representative of British Tobacco Corporation, was robbed at gunpoint of a VW Caddy vehicle valued at R250,000, a Blackberry phone valued at R1,500, and boxes of cigarettes valued at R50,000 by four suspects driving a Hyundai Accent. Police gave chase and the suspects' vehicle crashed. The appellant was tracked down by a police dog and arrested after being shot during the pursuit. A Glock firearm loaded with ammunition was found where he was seen dropping an object. The Hyundai Accent was discovered to have been stolen. The appellant was convicted in the Regional Court of: (1) robbery with aggravating circumstances under s 51(2) of the Criminal Law Amendment Act 105 of 1997; (2) possession of stolen goods under s 36 of Act 62 of 1955; (3) unlawful possession of a firearm under s 3 of the Firearms Control Act 60 of 2000; and (4) unlawful possession of ammunition under s 30 of the same Act. He received an effective sentence of 22 years' imprisonment. The trial court and high court (sitting as petition court) both refused leave to appeal.

• Whether the high court erred in refusing leave to appeal against conviction and sentence
• Whether the conviction under s 36 of Act 62 of 1955 (possession of goods suspected to be stolen) was properly established in the absence of evidence that the appellant was asked to account for his possession of the vehicle
• Whether the identifying evidence was sufficient to establish the appellant was one of the occupants of the stolen vehicle
• Whether the effective sentence of 22 years' imprisonment was appropriate in the circumstances

The appeal was upheld. The order of the high court was set aside and replaced with an order granting the appellant leave to appeal to the KwaZulu-Natal Division of the High Court, Pietermaritzburg, against his conviction and sentence by the Durban Regional Court.

For a conviction under s 36 of Act 62 of 1955 (possession of goods suspected to be stolen) to be sustained, it must be established that after arrest, the accused was asked to give an account of his possession of the goods and failed to give a satisfactory account. The absence of such evidence makes a conviction under this section unsustainable. In determining whether leave to appeal should be granted, the test is whether there are reasonable prospects of success in the envisaged appeal. Where an appellant raises arguable grounds that demonstrate reasonable prospects of success on appeal, leave to appeal should be granted.

The Court did not traverse the merits of the appeal in detail, noting that it is not desirable to do so in applications of this nature. The Court simply had to determine whether the high court correctly refused the petition for leave to appeal. The Court noted the appellant's personal circumstances (30 years old, single with five minor children, first offender with cleaning business earning R6,000-R7,000 per month) and the grounds raised concerning sentence, including that most of the loot was recovered and the complainant was not harmed. While not deciding these issues, the Court found they raised arguable grounds. The Court also noted inconsistencies raised by the appellant regarding the identifying evidence concerning whether he was an occupant of the vehicle, without deciding the merits of these contentions.

This case reinforces the proper application of s 36 of Act 62 of 1955, confirming that for a conviction of possession of goods suspected to be stolen, the state must prove that the accused was asked to account for possession and failed to give a satisfactory account. The case also demonstrates the Supreme Court of Appeal's approach to special leave applications where the high court has refused a petition, emphasizing that reasonable prospects of success must be shown. The judgment illustrates that convictions must be properly established with all elements of the offence proved, and that leave to appeal should be granted where there are arguable grounds of appeal with reasonable prospects of success.