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Williams v S (Appeal) (CA33/2023) [2024] ZANWHC 259 (16 October 2024)

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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CA:33/2023

Regional Magistrate’s Case No. RC/02/2023

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

MONNAPULA JAN WILLIAMS APPELLANT

AND

THE STATE RESPONDENT

ORDER

(i) The appeal against the conviction on count 3 is dismissed.

(ii) The appeal against sentence is dismissed.

APPEAL JUDGMENT

REDDY J

[1] This is an appeal against the conviction and sentence imposed by the Regional Court Magistrate at Taung. The appellant was charged with three (3) counts; housebreaking with intent to steal and theft read with the provisions of section 262(1) and section 264 of the Criminal Procedure Act 51 of 1977 (‘the CPA’) – count 1, housebreaking with intent to rob and robbery read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’) and further read with section 262(1) and section 260, of the CPA and the Older Persons Act 13 of 2006 in terms of section 25 (a) of the Judicial Matters Amendment Act 8 of 2017 (51)(1)(b)(IA) (count 2), and murder read with the provisions of section 51(1) of the CLAA and section 258 of the CPA, and the Older Persons Act 13 of 2006.

[2] The State averred in respect of counts 1 and 2 that the offences were committed in the execution of a common purpose. Regarding count 3 the state contended that the murder was premeditated.

[3] The appellant who was duly represented, pleaded guilty to the first two counts, and not guilty to the third. The appellant’s prepared statement as ensconced in section 112(2) of the CPA, reads as follows:

“

That I am the accused in this matter and I am 36 years old. I reside at Shaleng Village, which falls under the jurisdiction of Taung. I understand the charge against me and I make this statement freely and voluntarily without having been influenced or forced by any person and I am in my sound and sober senses.

My legal representative has explained my constitutional rights to remain silent and that no negative inference will be drawn against me should I elect to remain silent.

With all the above explained to me I therefore make the following statement freely and voluntarily without any undue influence.

I therefore plead guilty to one count of housebreaking with intent to steal and theft and one count of housebreaking with intent to rob and robbery.

AD COUNT 1. Housebreaking with intent to steal and theft.

I admit that on 26 January 2022 and at or Shaleng Village in the Regional Division of North West I did unlawfully, intentionally and with intent to steal break open and enter the house 1[…] Shaleng Village of Itumeleng Edwin Sharaka and did then and there wrongfully, intentionally steal the following items to wit 1 x Rifle. 36 x ammunition. 1 x Dell laptop with bag and charger. Cash in the amount of R7000-00 and 5 x alcoholic beverages. 1x binoculars and 2 x hunting lights, the property or in the lawful possession of Itumeleng Edwin Sharaka.

I admit on 26 January 2022 I was with a friend. We did decide to go to my uncle’s house with the intention to go and look for money.I admit that I knew that my uncle was not home. He was in Kato where he is working permanently. I admit that when we arrived at his house all the doors and windows were properly closed. I admit that we then broke open the garage door and gained entrance into the house. I admit that we went to the main bedroom where we saw a safe and after looking for the keys in the drawers I found the safe key and opened the safe. I admit that when I opened the safe I found the one rifle and three boxes of ammunition. Which I took. I admit that we also took the other items on the list and thereafter we left the house and went to the veld where we were hiding for a few days.

I admit that my actions were unlawful when I intentionally broke open and entered the complainant’s house and stole the items from him which was in his lawful possession.

AD COUNT 2. Housebreaking with intent to rob and robbery.

I admit that on 5 February 2022 at or near Shaleng Village in the Regional Division of the North West I did unlawfully and intentionally break open and enter the house number 8[…] Shaleng Village of Galotlhaelwe Jaqueline Motabogi and did and there and with force take from her possession the following to wit a White Toyota Fortuner with registration C[…] and 3 x cell phones. The property or in the lawful possession of Galotlhaelwe Jaqueline Motabogi.

I admit that while I was at the veld hiding from the police I met another friend of mine. I told him that I wanted to go to my mother’s house in Pretoria. But I did not have enough money or even a motor vehicle to go to Pretoria. I admit that he told me that he knew of a lady who is staying at Shaleng Village who always have money in her house. After he told me about this lady, we then decided to go to her house with the intention to rob her of the money and take her motor vehicle. I admit that we arrived at the house it was around 23h00 and while we were looking for a way to gain entry into the house the electricity went off. Due to loadshedding. I admit that we went to kitchen door where I used the knife which was in my possession to unscrew the lock and then the key fell on the ground and my friend pulled the key from outside underneath the door, I admit that I then opened the door and both of us went into the house.I admit that we found two cell phones in the sitting room which I took and we proceeded to the main bedroom where it was known to us that the deceased was sleeping. I admit that while we were on the way to the bedroom, I found another cell phone which was taken by my friend. I admit that I was in possession of a torch and my friend had the rifle which I took from my uncle’s place in possession. While inside the room I searched for the keys to the vehicle. After a few minutes I found it on top of the drawer. I admit that we went to the garage with the intention leave. I admit that we were very quiet while we were inside the house, however, the deceased and her daughter had to wake up for some reason, I admit that while we were opening the garage door the deceased started to talk to us. As I was very shocked and decided to get into the vehicle, I started it and reversed. During this time, I switched on the lights and saw that the deceased and her daughter was standing at the kitchen door.

I admit that my actions were unlawful when I intentionally broke open the door of the deceased’s house and by force took the complainant’s items from her which was in her lawful possession. I therefore admit that there is no defence in law for my actions.

I admit that I was at all material time aware of the punishability of my actions.

I regret what I have done and ask this Honourable Court for mercy and leniency.”

[4] In respect of the facts set forth in the section 112(2) statement, pertinent to counts 1 and 2, the prosecutor stated as follows:

“PROSECUTOR: Your Worship the statement that has been accepted as Exhibit A in terms of this statement that has been written in terms of section 112(2) also accepted as Exhibit A in this court. Your worship, is in line with the contents of the case docket and state submits that the accused be convicted with regards to count 1 of housebreaking with intent to steal and theft and count 2 housebreaking with intent to rob and robbery ….”

[5] In respect of count 3, the appellant pleaded not guilty and elected to make a statement as evinced in section 115 of the CPA. The statement reads as follows:

“…

However, I wish to make the following statement in regard to the Murder count.

In that on 6 February 2022 at or near Shaleng Village in the Regional Division of Taung I did not unlawfully and intentionally kill Galotlhaelwe Jaqueline Motabogi., a female person, by shooting her in the face.

I admit that I did not unlawfully or intentionally kill the deceased.I admit that when I saw the deceased and her daughter at the kitchen door while I was reversing the vehicle they starting to scream. So, I put off the lights and while I was waiting for my friend to get into the vehicle. I just heard a shot and my friend opened the door of the vehicle and placed a rifle on the backseat. I then told him to go and get the bag which we left at the back of the deceased’s house. When he went to go and fetch the bag I decided to drive away. I admit that I later contacted my friend to find out what had happened and that was when he told me that he shot the deceased. I became scared and I decided to go to Pretoria where I was arrested later that day by the police.

I admit that I only became aware that the deceased was shot when my friend told me what he did. I never had the intention to kill the deceased it was my intention to rob the deceased and her daughter of their cell phones and motor the vehicle. I further admit that the deceased and her daughter were asleep while we were inside the house, and they only woke up when we were at the garage door so if it was my intention to kill anyone of them then I would have done so. While still inside the house.

I therefore admit to the first two counts. But I deny any responsibility in regard to the last count of murder. My legal representative had also explained to me that the state was relying on common purpose, but I am of the opinion that I never contributed to the deceased death in any way. I did not even know what my friend’s intention was when he shot at the deceased person.”

[6] On 30 March 2023, the appellant was convicted on counts 1 and 2 on the plea of guilty tendered. The trial proceeded before the same Regional Magistrate in respect of count 3 and on 04 May 2023, the appellant was convicted on count 3. On 05 June 2023, the appellant was sentenced to five (5) years imprisonment on count 1, fifteen (15) years imprisonment on count 2 and life imprisonment on count 3. No order was made in terms of the provisions of section 103 (1) of the Firearms Control Act 60 of 2000 and by implication, the appellant was deemed unfit to possess a firearm ex lege. The court a quo further ordered that the sentences imposed in respect of counts 2 and 3 to run concurrently in terms of section 280(2) of the CPA. This order was superfluous by virtue of the provisions of section 73(6) of the Correctional Services Act 111 of 1998, which provides that any determinate sentence of imprisonment automatically runs concurrently with a sentence of life imprisonment. The sentence of life imprisonment therefore subsumes the determinate sentence of imprisonment.

[7] The appellant appeals his convictions and sentence by way of an automatic right of appeal provided in section 309(1)(a) of the CPA. The appeal is opposed. The appeal was adjudicated on the papers within the purview of section 19(1)(a) of the Superior Courts Act 10 of 2013.

[8] In the early hours of the morning of 06 February 2022 under the cover of darkness brought about by the phenomenon of loadshedding in the Republic of South Africa, fate dealt a fatal blow. The deceased who was asleep was woken by the sound of the activation of the immobilizer of her Toyota Fortuner motor vehicle (‘the Fortuner’). She approached her daughter, Gontlehela Hope Motabogi (“Motabogi”) who was also present in her house to inform her of the Toyota Fortuner. Motabogi suggested that the artificial lights in the house be switched on and further suggested that the deceased use the torch function on her cell phone to generate light. The deceased informed Motabogi that her cell phone had already been removed by an intruder.

[9] Motabogi resultantly used the torch function on her cell phone. Using this light, they proceeded to the kitchen, with Motabogi leading and the deceased following. They noticed an open door which had not been opened by the deceased. Motabogi noticed the reflection of light across from them, which exposed the eyes of the intruder. She enquired from the intruder what it was that he wanted, but no response was forthcoming. This prompted Motabogi to disclose to the intruder that they could see him. Immediately upon this disclosure, the sound of a gunshot rang out. Motabogi closed the door, whilst pulling at the intruder and directing the deceased to flee. The deceased had, however, already fallen to the floor, as she was shot.

[10] Motabogi fled to the bedroom and secured the door, to protect herself. Whilst there, she proceeded to make several cell phone calls seeking assistance, and notifying the recipients of her cell phone calls that the deceased had been shot. Whilst attending to the calls, Motabogi heard the switching on of the ignition of the Fortuner and same driving away. Motabogi remained in the bedroom, awaiting the arrival of assistance. When assistance arrived, she heard her name being called out. She relinquished her refuge and opened the front door.

[11] The police subsequently arrived and declared the residence a crime scene. The Fortuner, cell phones and keys, amongst others, were stolen. The Fortuner was recovered later that afternoon in Laudium, Pretoria and positively identified as belonging to the deceased.

[12] The report on the Post-Mortem Medico-Legal Examination conducted by Dr Sanchez concluded that the cause of death was a gunshot. The formal evidence produced during the course of the case for the prosecution did not serve to incriminate the appellant.

[13] The appellant exercised his right to remain silent as enshrined in section 35(3)(h) of the Constitution and did not testify.

[14] The substructure of Mr Kekana’s argument as it relates to the conviction is as follows. It could not be contended that the appellant foresaw the possibility of resistance to the robbery when the rifle was stolen from his uncle. Therefore, the killing of the deceased was not reasonably foreseeable by the appellant even if he did not himself shoot the deceased. Notwithstanding same, the appellant asserts when the deceased was shot by his co-perpetrator, the robbery of the victims were complete. This contention was founded primarily on the fact that the property that formed the subject of the robbery was already in the possession of the appellant.

[15] This submission was expounded upon with a contention that all that was left was for the appellant’s co-perpetrator to board the vehicle for them to make their escape, with no risk of anyone being injured. The co-perpetrator for reasons unknown to the appellant was lingering around the house until the deceased and her daughter woke up. When the appellant heard the gunshot, he was already in the Fortuner and only became aware of the shooting of the deceased when he spoke to his co-perpetrator.

[16] The final contention on behalf of the appellant is that the state failed to prove that the acts of the co-perpetrator can as a matter of law, be attributed to the appellant. The rationale of this contention being that the co-perpetrator was on a frolic of his own and this was not proven to the contrary by the State. To put it simply, the co-perpetrator acted irrationally, and his conduct was not foreseeable. The court a quo it is said therefore erred in convicting the appellant of murder.

[17] Adv. Tlatsana for the respondent, in opposition, relies on the principles enunciated in S v Mgedezi and Others 1989 2 All SA 13(A) (30 September 1988). He submits that the appellant shared a common objective of robbing the deceased of her belongings. The appellant’s conduct therefore fell within the four corners of the doctrine of common purpose. Finally, that the undisputable facts are inconsistent with the appellant having disassociated himself from the shooting of the deceased.

[18] It is well established that an appeal court will be slow to interfere with a trials court’s findings unless such findings are clearly wrong. (S v Francis 1991 (1) SACR 198 (A) at 198 j-199a; S v Mkohle 1990 (1) SACR 95 (A) at 100 e; S v Hadebe and Others (298/94) [1997] ZASCA 86 at paragraphs 11-12). In a criminal trial, the state bears the onus to prove the guilt of an accused beyond a reasonable doubt. An accused’s version cannot be rejected solely on the basis that it is improbable, but only once the trial court has found on credible evidence that the explanation is false beyond a reasonable doubt (S v V 2000 (1) SACR 453 (SCA) at 455B). The corollary is that if the accused’s version is reasonably possible true, the accused is entitled to an acquittal. (S v Van der Meyden 1999 (1) 447 (W) at 448F-G).

[19] It is apposite to consider what formed the mosaic of proof before the Regional Magistrate and what founded the findings of fact. Put differently, the judgment of the Regional Magistrate must be considered to determine if the factual conclusions are corroborated by the record of proceedings.

[20] It is indisputable that Motabogi was a single witness. This finding of the Regional Magistrate is accurate. Regarding the evaluation and assessment of the evidence of a single witness, our law is replete with authority which provides an approach to same. It serves no moment to regurgitate the law. Apropos, the identity of the perpetrator, the judgment reads as follows:

“... Now, failing corroboration a Court will look for some feature in the evidence which gives the implication by a single witness enough of an assurance of trustworthiness to reduce sustainability the risk of a wrong reliance upon her evidence. I have earlier touched on the evidence of the single witness. Now with regards to the identity she then informed this Court that she is not in a position to tell this Court who the perpetrators were. One should mention that when the charges were put to you, Mr Williams, the, in particular, count 3 the state informed that they are going to rely on the doctrine common purpose to link you to the commission of the offence. Then also the State informed this Court that the State is also going to lead evidence to show that the commission of this offence was premeditated.”

(my emphasis)

[21] The Regional Magistrate correctly found, in applying the principles applicable to the evaluation of a single witness, that:

“…I have no doubt with her because she cannot say or implicate any person, she does even say it is the accused who is before this Court, implicating you to this offence, she does not even know that. Even when her evidence was tested by your Attorney, Me De Klerk through cross examination that was not challenged, it stands unchallenged…”

(my emphasis)

[22] The Regional Magistrate next deals with the effect of section 115(3) of the CPA in respect of the statement made by the appellant in explanation of his plea of not guilty to the charge of murder. In this regard, the provisions of section 115 were conflated with admissions that may be made in terms of section 115(2)(b) and section 220 of the CPA. The fact that paragraphs 7, 8 and 9 of the statement by the appellant were made within the purview of section 115(3) of the CPA is prefixed by the diction “I admit”, does not transform the nature of the statement. It would have been prudent for the Regional Magistrate to have recorded admissions as he was empowered to. What stands out is the Regional Magistrate clearly was blindsided using the words alluded to. This could lead to a serious miscarriage of justice.

[23] The exculpatory statement of the appellant does not constitute evidential material. This is predicated on two scores. First, exculpatory statements in explanations of the plea should, generally, be repeated by the accused under oath/affirmation to have any evidential value in favour of the accused. See: S v Malebo en Andere 1979(2) SA 636 (B); Sesetse en ‘n Ander 1981 (3) SA 353 (A) at 374A-376H.

[24] Second, it is deep rooted in our jurisprudence that exculpatory statements made in terms of s 115(3) of the CPA do not constitute proof of the facts and furthermore do not relieve the State of the burden of proving those facts. When a defence is raised in the exculpatory part of an explanation of plea, the State need only negate that defence to the extent of a prima facie case. See: Osman v Attorney-General, Transvaal [1998] ZACC 14; 1998 (2) SACR 493 (CC); S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) at paragraph 24; S v Chabalala 2003 (1) SACR 134 (SCA) at paragraph 20.

[25] In Cupido v S (1257/2022) [2024] ZASCA 4 (16 January 2024), the Supreme Court of Appeal (Tokota AJA: Mokgohloa, Mbatha and Goosen JJA and Keightley AJA concurring), posited the following regarding the evidential value of a section 115(3) statement:

“Did the trial court consider and evaluate the exculpatory statement of the appellant made in terms of s 115(3) of the CPA?

[31] Mr Mathewson contended that the trial court failed to consider exculpatory statements (as part of the evidence) made in the plea explanation proffered by the appellant in terms of s 115 of the CPA. In his plea explanation in terms s 115(3) the appellant denied having committed the crimes as he was with his siblings at the critical time of the commission thereof. His defence was therefore an alibi. In that case he bears no onus of proving that his alibi was true. The court had to assess his alibi the same way as any other defence, namely whether it could be accepted as being reasonably possibly true or whether it should be rejected as being obviously false.

[32] Exculpatory statements in explanations of the plea should, as a general rule, be repeated by the accused under oath in the witness-stand for them to have any value in favour of the accused. In S v Mkhize (Mkhize) it was stated:

‘It follows that any statement made by an accused or any answer to questions put to him in terms of s 115 has no evidential value.’

[33] Unlike formal admissions made in terms of s 220, exculpatory statements made in terms of s 115 do not constitute proof of the facts and furthermore do not relieve the State of the burden of proving those facts. When a defence is raised in the exculpatory part of an explanation of plea, the State need only negate that defence to the extent of a prima facie case.” (footnotes omitted).

(my emphasis)

[26] The exculpatory statement of the appellant in his explanation of plea, therefore, could not form part of the conspectus of evidence. The evidence of the single witness for the prosecution, Matobogi, did not advance the case of the prosecution, and neither did the statement in terms of section 115(3) of the CPA.

[27] The Regional Magistrate further placed much store on the statement in terms of section 112(2) of the CPA, where he says the following:

“… Now, looking at what is contained in the statement in terms of Section 112(2) Act 51 of 1977, Exhibit A where you explain you proceeded to your uncle who was absent, being at Kathu, you broke into the house, you then stole a firearm that was loaded. You then, according to your evidence, now, in this instance being in the company of a friend, you then proceeded to the deceased house late in the evening when it was loadshedding. You are having a firearm that is loaded. You know who the occupants of that house are. You know that it is the deceased who is an elderly person, who is 68 years, who is staying with the daughter and a grandchild. The deceased was then robbed and you admitted to the robbery of the vehicle.

Now the question that arises is, why arm yourself with a firearm knowing the occupants of the house that are women and fragile. In your own version in terms of EXHIBIT B you say that they were screaming. Now if a person screams would one now say there is any danger that is being posed by a person screaming. The only inference to be drawn is that he is fear, or they are fearful of what is happening. Especially that there were intruders inside the house in the evening with load shedding.

According to the evidence of the single witness the words that she uttered is that I saw you. So, from there it is evident that if she has seen. Now, the only way of dealing with such person is to eliminate the evidence of identity. Then a shot was fired which connected with the deceased in this matter.

The very same firearm that was used was then retrieved from the accused in Pretoria. Now, why would then it be found with the accused not with the person who fired if one looks at the evidence of the accused. S v Sefatsa, I had dealt with the stages that, steps to link a person, to charge him, yes, to connect him with the offence. The fifth leg that was mention in Sefatsa says that a person or the accused must have the requisite mens rea in murder, he must have intended that the deceased be killed or he must have foreseen the possibility of being killed or perform his own act of association with recklessness to whether or not that was to ensue.

Now carrying a firearm that is loaded going to rob, obviously there is a possibility that there would be recklessness and that death can ensue at any time if there is resistance. Of course the State considered that this was is not premediated murder. The question is, now if it is not premediated murder why go with a firearm, why arm yourself going to vulnerable group. People screaming it is perhaps through God’s mercy that all of them were not shot at. Because, according to the evidence of the witness she ran into the bedroom and locked herself.

There is evidence, according to the State, that was pointing towards you that you committed this offence in common purpose according to your own version with your friend. Of course you elected not to testify one has to also appreciate what was stated by or the remarks by Madlala J writing the judgment in Osman and Another. Wherein I emphasise an accused always runs the risk that absent any rebuttal the Prosecution case may be sufficient to prove the elements of the offence.

Now, I have considered the totality of the evidence that was given, especially of Section 208 witness. Also having considered the evidence that was accepted, documentary evidence. That is including the statements that you made in terms of section 112 as well as the plea explanation you made in terms of Section 115. Also the cases that I have dealt with extensively. I therefore am satisfied that the State through the doctrine of common purpose have proved that you caused the death of the complainant that you on the 6 February 2022 at Shaleng village in the Regional Division of North West, you did unlawfully and intentionally killed Galotlaelwe Jacqueline Motabogi who is a 68 year old female person by shooting her with a firearm. And that the said murder is read with the provisions of the Older Persons Act 13 of 2006 as inserted by Section 25A of Act 8 0f 2017. Therefore, reject your version that you are distancing yourself from these thing and accordingly finding you guilty.”

[28] It is irrefutable that the Regional Magistrate could consider the statement made by the appellant in terms of section 112(2) of the CPA as part of the full conspectus of the evidence. The Regional Magistrate, however, was not empowered to make factual findings that were not part of the mosaic of proof that was before him. That being so, amongst others; the finding of the Regional Magistrate that the firearm was loaded with ammunition was a probability finding which was ineloquently addressed. The state relied on the doctrine of common purpose in respect of count 3. Enquiries like these are always fact specific.

[29] It is further irrefutable that the appellant was part of the planning of this robbery. The clear premeditated intention was to rob the deceased of money and the Fortuner. An important consideration is that the appellant was in possession of a torch and his cohort in possession of the rifle which was stolen on 26 January 2022 from his uncle’s abode.

[30] The appellant and his cohort were clearly cognisant of the reasonable likelihood that they may have to use this rifle. There is no other justification for taking same into the home of the deceased. In Nkosi v The State (20727/14) [2015] ZASCA 125, Majiedt JJA (as he then was) stated as follows regarding subjective foreseeability:

“[7] I am mindful of the fact that intent is a subjective state of mind and that ‘the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case’ (per Olivier JA in S v Lungile & another (493/98) [1999] ZASCA 96; 1999 (2) SACR 597 (SCA) para 16). Equally important is to be cognisant that ‘the question whether an accused in fact foresaw a particular consequence of his acts can only be answered by way of deductive reasoning. . . [b]ecause such reasoning can be misleading, one must be cautious’ (see S v Lungile and another para 17). The facts in Lungile are more comparable with those in the present instance. In the course of a robbery at a store, a policeman arrived on the scene and exchanged gunfire with one of the robbers (the second appellant) resulting, amongst others, in the death of one of the store’s employees. In upholding the conviction of the other robber (the first appellant) on murder and, after setting out the general principles quoted above, Olivier JA held that the inference was inescapable that the first appellant did foresee the possibility of the death of the employee since he knew that at least two of his co-conspirators were armed with firearms, that the store was located in the main street of Port Elizabeth opposite a police station and that the robbery would be committed in broad daylight. The following dictum in Lungile (para 17) is apposite:

‘Generally speaking, the fact that the first appellant had prior to the robbery made common cause with his co-robbers to execute the crime, well-knowing that at least two of them were armed, would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result.’ (Compare also: R v Bergstedt 1955 (4) SA 186 (A) and S v Nkombani & another 1963 (4) SA 877 (A) at 893 F – H.)”

(my emphasis)

[31] On a conspectus of the evidence, the appellant understood that his cohort was in possession of the rifle. This much was admitted. Probable “dangerous resistance” was reasonably foreseen. He reasonably foresaw subjectively that, while encountering such ‘dangerous resistance’, the rifle may be used with possible fatal consequences (R v Bergstedt 1955 (4) SA 186 (A) and S v Dube & others 2010 (1) SACR 65 (KZP)). It matters not that the appellant was seated in the Fortuner on the explanation proffered, as the aggravating circumstances inherent in the robbery itself, came at a time when the robbery was in progress. The definition of robbery with aggravating circumstances is clear that it may be extant whether, before, during or after the robbery.

[32] In Minister of Justice and Constitutional Development and Another v Masingili and Others 2014 (1) SACR 437 (CC), the apex court provided a detail exposition on the criminal liability of an accomplice when juxtaposed to that of a perpetrator where the following was postulated:

“[1] The crime of robbery is as old as humankind. For a range of reasons, the urge to take what does not belong to you – violently if necessary – is sometimes strong. South African society is sadly plagued by violent crime. The Legislature understandably decided that robbery involving the use of a fire-arm or any other dangerous weapon, the infliction of grievous bodily harm, or the threat to do so, deserves a harsher sentence than what would apply to robbery. Hence it determined that robbery with aggravating circumstances – or armed robbery, as it is often referred to in practice – attracts a prescribed minimum sentence.

…

[3] The Western Cape High Court, Cape Town (High Court) found that section 1(1)(b) of the Criminal Procedure Act (CPA) creates strict criminal liability (or liability without fault) and is thus unconstitutional. According to the High Court, an accomplice could as a result of this provision be convicted of robbery with aggravating circumstances, even if she or he had no intent with regard to the existence of the aggravating circumstances such as the use of a dangerous weapon. The High Court also found that, because an accused could be convicted even when there is reasonable doubt as to his or her guilt, the presumption of innocence is unjustifiably infringed.

…

[5] A number of issues arise. These include:

(a) What does section 1(1)(b) of the CPA mean?

(b) Is robbery with aggravating circumstances a separate crime, distinct from robbery (or “mere robbery”)?

(d) If not, is that consistent with the requirements of section 12 and section 35 of the Constitution? In other words, does either section 12 or section 35 require proof of intent regarding the existence of the aggravating circumstances, whether on the part of a perpetrator or an accomplice?

…

The meaning of section 1(1)(b)

[15] Section 1(1)(b) of the CPA reads:

“‘aggravating circumstances’, in relation to—

(b) robbery or attempted robbery, means—

(i) the wielding of a fire-arm or any other dangerous weapon;

(ii) the infliction of grievous bodily harm; or

(iii) a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence”.

[16] Robbery with aggravating circumstances is thus robbery where a fire-arm or other dangerous weapon is wielded, or where grievous bodily harm is inflicted or threatened. The provision must be understood in context. It does not, in itself, create an offence or impose liability. Further, it provides a definition of “aggravating circumstances” in relation to robbery, not a definition of robbery. Robbery is a common-law offence. Accomplice liability is similarly imposed by the common law. The definition of aggravating circumstances is relevant for sentencing. As a result of section 51 read with Part II of Schedule 2 of the Criminal Law Amendment Act (often referred to as the Minimum Sentencing Act), a court must impose a minimum sentence on a person convicted of robbery with aggravating circumstances unless “substantial and compelling circumstances exist which justify the imposition of a lesser sentence”. The prescribed minimum sentence ranges from 15 to 25 years, depending on the convicted person’s previous convictions or lack thereof.

…

[18] The definition of “aggravating circumstances” has a long legislative history. In 1958 it was inserted into the Criminal Procedure Act 56 of 1955 – the predecessor of the CPA – and read as follows:

“ʻaggravating circumstances’ in relation to—

(a) any offence, either at common law or under any statute, of housebreaking or attempted housebreaking with intent to commit an offence, means the possession of a dangerous weapon or the commission of or any threat to commit an assault, by the offender or an accomplice;

(b) robbery or an attempt to commit robbery, means the infliction of grievous bodily harm or any threat to inflict such harm”. (Emphasis added.)

[19] In Sisilane the Appellate Division held that a getaway driver in a robbery was not guilty of robbery with aggravating circumstances because he was not a party to the commission of the aggravating circumstances. It reasoned that the absence of the words “by the offender or an accomplice” in subsection (b) meant that someone could be guilty of robbery with aggravating circumstances only if he or she instigated or otherwise made him or herself a party to the aggravating circumstances. That person would not be guilty of robbery with aggravating circumstances if the aggravating circumstances merely arose in the course of the commission of the robbery to which he or she was a party, including as an accomplice. This reasoning was approved by the Appellate Division in Cain.

[20] Soon after Sisilane and Cain, the definition of aggravating circumstances was amended by the insertion of the words “by the offender or an accomplice” at the end of subsection (b). In Dhlamini the Appellate Division held that this amendment meant that an accomplice to robbery is guilty of robbery with aggravating circumstances even if he or she did not instigate or make him- or herself party to the aggravating circumstances and even if he or she did not have intent as to the aggravating circumstances. The same applies in reverse which, for convenience, I call the “mirror-image case”. The perpetrator of a robbery is guilty of robbery with aggravating circumstances if the accomplice committed the aggravating circumstances, even if the perpetrator did not make him- or herself a party to the commission of the aggravating circumstances and even without intent. The purpose of the amendment – the Court held – was to “block the loop-hole revealed by Sisilane’s case”.

[21] Is this indeed what the phrase “or an accomplice” in section 1(1)(b) of the CPA means? It is necessary briefly to consider the nature of accomplice liability. An accomplice is someone whose actions do not satisfy all the requirements for criminal liability in the definition of an offence, but who nonetheless intentionally furthers the commission of a crime by someone else who does comply with all the requirements (the perpetrator). The intent required for accomplice liability is to further the specific crime committed by the perpetrator. Upon conviction, an accomplice may receive the same sentence as a perpetrator.

[22] An accomplice’s criminal liability is therefore contingent on the perpetrator’s liability. Even if the words “or an accomplice” were absent from section 1(1)(b), a person would still be guilty, as an accomplice, of robbery with aggravating circumstances if he or she intentionally furthered the commission of robbery with aggravating circumstances by the perpetrator and if the aggravating circumstances were brought about by the perpetrator. In this matter, Ms Masingili and Mr Volo’s convictions would stand, as by scouting and driving the getaway vehicle they intentionally furthered the commission of the armed robbery by the other two respondents. It would not matter that they did not wield the knife themselves.

[23] What, then, is the effect of the words “or an accomplice”? They extend liability in the mirror-image case: When an accomplice commits the aggravating circumstances (for example wielding a knife during the flight just after the actual robbery) but the perpetrator never does, both the accomplice and the perpetrator will be guilty of robbery with aggravating circumstances. In the absence of the words “or an accomplice”, the perpetrator and the accomplice would only be guilty of mere robbery (and the accomplice may, in addition, be guilty of assault). This is because, in the absence of the words “or an accomplice”, the aggravating circumstances must be committed by the perpetrator, not the accomplice, as was correctly pointed out in Sisilane. The inclusion of the words “or an accomplice” allows for the actions of the accomplice to be taken into account in determining whether the perpetrator is guilty of robbery with aggravating circumstances.

[24] On the face of it, the wording of section 1(1)(b) may be confusing, in so far as it appears to require that the accomplice must wield the knife in order to be convicted of armed robbery. But is an accomplice who wields a knife when robbery is committed indeed an accomplice, or rather a perpetrator? How much closer can one be to the actual commission of armed robbery than to wield a dangerous weapon in the commission of the robbery? The words “on the occasion when the offence is committed, whether before or during or after the commission of the offence” are significant – the commission of the aggravating circumstances may happen before, during, or after the commission of the robbery, as long as it happened “on the occasion” of that particular robbery. Thus, an accomplice could wield a dangerous weapon before or after a robbery, without complying with the requirements of robbery and therefore without being a perpetrator, but still commit the aggravating circumstances and therefore render him- or herself and the perpetrator guilty of robbery with aggravating circumstances.

…

[46] The failure by the state to prove that a convicted person intended the aggravating circumstances – or concrete proof that there was indeed no intent regarding the aggravating circumstances – is relevant to several of these points. Whether negative consequences flowing from the crime were intended by the convicted person is a sentencing factor encapsulated by “F”. Similarly, given the constitutional importance of fault in establishing personal blameworthiness, it may well be that the prescribed sentence would be disproportionate to the crime where the state has not proved that the convicted person intended the act triggering the prescribed sentence (“I”).

[47] The absence of intent or even knowledge of, for example, the use of a knife may therefore be taken into account as a factor which may, probably together with other mitigating factors, amount to substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum. One cannot say that this must always be the case though. First, courts must have a discretion when imposing sentences. Second, a firm rule that the absence of dolus regarding the aggravating circumstances always justifies a lesser sentence may defeat the purpose of the provision, namely to direct courts to impose harsher sentences for armed robbery than for mere robbery.

[48] Section 1(1)(b) does not expressly require any mental element with respect to the aggravating circumstances. Instead, only objective facts constituting aggravating circumstances are referred to in the section. Nor is intent implicit in section 1(1)(b). In Jacobs the Appellate Division held that aggravating circumstances are established objectively and the intention of the accused is not imported into an enquiry as to whether aggravating circumstances are present. Finally, reading section 1(1)(b) not to require specific fault does not offend the presumption against strict liability. This principle is already satisfied because intent is a requirement for robbery. Violence is inherent to the crime of robbery, so intent to commit robbery subsumes intent to commit violence (or to threaten to do so). Aggravating circumstances are a manifestation of the degree of the violence. Accordingly, section 1(1)(b) does not imply a requirement of intent with regard to the aggravating circumstances.”

[33] It follows axiomatically that the appellant was correctly convicted of murder and the appeal on conviction on the murder charge must fail.

[34] In respect of the mandatory sentence of life imprisonment imposed by the court a quo, Mr Kekana contended that the appellant’s personal circumstances were not afforded due consideration. This was accented by the court a quo not being fully cognisant of the period that the appellant spent as a trial awaiting detainee. Finally, Mr Kekana further contended that whilst the appellant was deserving of a serious sentence, life imprisonment should not be mechanically imposed on the basis that it is the prescribed minimum sentence; and the fact that the appellant pleaded guilty to the other counts other than murder and the fact that he did not pull the trigger should be considered.

[35] Adv. Tlatsana asserted that the Regional Magistrate had correctly found that considering the mitigating and aggravating factors, no substantial and compelling circumstances existed. Having so found, Adv Tlatsana contended that the imposition of the mandatory sentence of life imprisonment was legally tenable.

[36] There is a plethora of jurisprudential authority re-iterating the trite position that the imposition of sentence is pre-eminently within the discretion of the trial court. An Appeal Court will be entitled to interfere with the sentence imposed by the trial court only if one or more of the recognized grounds justifying an interference on appeal, has been shown to exist. (See: S v Mtungwa en 'n Ander 1990 (2) SACR 1 (A)). The grounds on which a court of appeal may interfere with sentence on appeal have crystallised to include whether the sentence is disturbingly inappropriate, so badly out of proportion to the magnitude of the offence, sufficiently disparate, vitiated by misdirection showing that the trial court exercised its discretion unreasonably; and is otherwise such that no reasonable court would have imposed it (S v Giannoulis 1975 (4) SA 867 (A) at 873G-H; S v Kibido 1998 (2) SACR 213 (SCA) at 216g-j; and S v Salzwedel & others 1999 (2) SACR 586 (SCA) at paragraph [10]).

[37] Whilst the Regional Magistrate may not have addressed all the personal circumstances of the appellant with specificity, no judgment is all encompassing. Notwithstanding, same, the court a quo found that there were no substantial and compelling circumstances and imposed a sentence of life imprisonment. In respect of the courts sentencing discretion where a mandatory sentence finds application, the guidance provided in S v Malgas 2001 (2) SA 1222 at paragraph 12 and 25; and S v Matyityi 2011 (1) SACR 40 (SCA) at paragraph 23, is apposite. The court a quo found that there were no substantial and compelling circumstances to justify a departure from the prescribed sentence of life imprisonment. Notwithstanding the arduous duty that a sentencing court is seized with, the exercising of a sentencing discretion is aimed at the attainment of a balance. The balance is directed at three prominent factors, the crime, the offender and the interests of the community. (S v Zinn 1969 (2) SA 537 (A) at 540G-H; S v RO and Another 2000 (2) SACR 248 (SCA) at paragraph [30]).

[38] The appellant’s personal circumstances are as follows. At the time of sentencing, he was thirty-six (36) years old, unmarried and unemployed. The highest level of education that he attained was Grade 12. He was maintained by his mother and brother. He had three previous convictions. On 25 November 2002, the appellant was convicted of malicious damage to property and sentenced to three (3) months imprisonment. On 28 November 2005, the appellant was convicted of housebreaking with intent to steal and theft and sentenced to six (6) months imprisonment. On 5 July 2005 he was convicted of rape (which was committed on 10 October 2004) and sentenced to eight(8) years imprisonment.

[39] It was submitted on his behalf that he pleaded guilty to counts 1 and 2; that he could be rehabilitated; and had been a trial awaiting detainee for over a year.

[40] The court a quo considered the interests of society and the seriousness of the crime which were underscored by the victim impact statement deposed to by the Motabogi, where the following stands out:

“... the person that was taken away from us was a strong black woman who rose from a poor background, she was a daughter, a mother, a sister, an aunt a teacher, a mentor , a leader and most importantly a pillar of strength to many of us. My mother was loved and respected by so many people of different ages. My mother died at the age of 68, she was healthy active and very sound mind. She still had energy and life to share with so many people who valued her life. I have been diagnosed with Post Traumatic Stress Disorder I am attending sessions at Joe Morolong Hospital. Having to see my mother lying in the floor with so much blood was hurting and scary. I have never seen such in my life. That day it was like having episodes, I was crying, screaming, I was scared, hurt, confused and shocked at that time. I live in fear whenever there is loadshedding I become anxious, scared because of the loadshedding gave advantage to those who have hurt us. I am struggling to sleep at night because of fearful of what if it happens again. The scene keeps playing over and over in my head. At times I think I stay awake because I will be guarding us, my daughter was the only grandchild to my mother and the two loved each other dearly. They stayed together, just the two of them, while I was at work in Kimberly. My daughter has have days whereby she just wakes up and cry. She will be saying she misses her grandmother, she will be asking me why did they just not take the car and not kill her granny. She has been to therapy sessions…

My mother was the glue that kept the family together. She was a natural giver and helper, everything that she became part of was intact…

The first to obtain Grade 12 in her village, she teached at several schools, then later moved to Shaleng village to teach until her retirement. She said she went back home because she wanted to add some value to the village and believed that if many can get educated the village will develop. She was not just a teacher at school, she took children from neighbouring villages to stay with her so that they can attend school. She motivated and encouraged her learners to get education. She said I am putting you through school to give you something that no one will ever take from you, she wanted me to get education because she said it will give me a purpose. From her I learned that education stops poverty, improves lives and I am most likely to make better decisions if I have it…”

[41] Murder is a tragedy of irreversible consequences. There is no underscoring the impact on the family of the deceased as evinced from the victim impact statement. Notably, the unlawful conduct of the appellant had a detrimental effect on his family. The deceased was described as a matriarch, with a penchant for the improvement of the indigent and the championing of education, being a passport from the rise of poverty and oppression. This was a senseless and needless murder of the deceased within the sanctuary and sanctity of her abode.

[42] The appellant was not remorseful, as predicated in S v Matyityi 2011 (1) SACR 40 (SCA). It is so that the appellant was a trial awaiting detainee for over a year. This does not avail the appellant, when regard is had to the seminal decision of Radebe and Another v S 2013 (2) SACR 165 (SCA), where the Supreme Court of Appeal held that the test is not whether on its own that period of detention constitutes a substantial or compelling circumstance, but whether the effective sentence proposed is proportionate to the crime or crimes committed: whether the sentence in all the circumstances, including the period spent in detention prior to conviction and sentencing, is a just one.

[43] Our courts link the presence of remorse with the prospect of rehabilitation of the offender. (Terblanche “Sentencing” 2010 Annual Survey of South African Law 1279 1287–1288; S v Ntuli 1978 (1) SA 523 (A) 528B–C; S v PN 2010 (2) SACR 187 (ECG); S v De Klerk 2010 (2) SACR 40 (KZP) par [28]; S v Langa 2010 (2) SACR 289 (KZP) par [36]; S v Onose 2012 JDR 1074 (ECG) par [9]; S v Keyser 2012 (2) SACR 437 (SCA) par [29]) S v Seegers (1970 (2) SA 506 (A) 512G–H) and S v Matyityi 2011 (1) SACR 40 (SCA) par [13]). The appellant failed to make a case for rehabilitation, to be considered a mitigating factor. This may change. The Correctional Facility where he is to serve his sentence would provide a platform for him be a rehabilitated person and to contribute positively to society as a reformed individual. This could result in a successful reintegration into society at the appropriate time.

[44] Whilst the Regional Magistrate may not have addressed all the personal circumstances of the appellant with specificity, no judgment is all encompassing. Notwithstanding same, the court a quo found that there were no substantial and compelling circumstances and imposed a sentence of life imprisonment. Having due regard to all the facts and circumstances of this case, I am also of the view that there are indeed no substantial and compelling circumstances present in this case which warrants a deviation from imposing life imprisonment as a suitable sentence.

[45] It follows that the appeal against sentence stands to be dismissed.

Order

[46] In the result, the following order is made:

(i) The appeal against the conviction on count 3 is dismissed.

(ii) The appeal against sentence is dismissed.

A REDDY

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

I agree.

Z WILLIAMS

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES
For the Appellant:	Mr. Kekana
Instructed by:	Legal Aid South Africa No 742 Dr James Moroka Drive Mafikeng Justice Centre Mmabatho
For the Respondent:	Advocate Tlatsana
Instructed by:	The Director of Public Prosecutions Megacity Complex East Gallery 3139 Sekame Road Mmabatho
Judgment reserved:	18 June 2024
Judgment handed down:	16 October 2024