Brief Summary

Criminal Law — Appeal against conviction and sentence — Appellants convicted of murder and robbery with aggravating circumstances — Appellants contending lack of evidence for common purpose and intention to kill — Trial court's findings upheld due to absence of misdirection — Appeal dismissed. The second and third appellants were convicted of murder and robbery following an incident where they, along with the first appellant, assaulted the deceased and stole cash and personal items. The trial court sentenced them to life imprisonment for murder and 15 years for robbery, to run concurrently. The appellants appealed, arguing insufficient evidence to establish a common purpose to murder and that the trial court erred in sentencing. The main issue was whether the trial court misdirected itself in its evaluation of the evidence and the establishment of a common purpose. The court held that the trial court's findings were correct and that the appeal lacked merit, leading to the dismissal of the appeal.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the High Court of South Africa, Eastern Cape Division, Bhisho, against convictions and sentences imposed by the Mdantsane Regional Court. The appeal was determined by Rugunanan J (with Notyesi AJ concurring) and concerned the correctness of the trial court’s factual findings and legal conclusions on murder and robbery with aggravating circumstances, as well as the appropriateness of the sentences imposed.

The parties were three accused persons at trial, cited on appeal as the first appellant (Phakamisa Sangotsha), the second appellant (Linda Kona), and the third appellant (Sibusiso Tini), with the State as respondent. Although Sangotsha appeared in the heading of the matter and had been granted leave to appeal by the trial magistrate on 14 December 2011, he did not participate in the appeal proceedings. No appearance was made on his behalf, no heads of argument were filed for him, and there was no indication that he had secured representation or that he appeared in person. The appeal before the High Court therefore proceeded in substance only in respect of the second and third appellants, who were represented by Legal Aid South Africa.

The second and third appellants’ appeal lay with the leave of the trial magistrate granted on 8 April 2019. The appellants had been convicted and sentenced on 18 August 2010. The appeal was heard on 14 June 2023 and judgment was delivered on 8 August 2023.

The general subject-matter of the dispute was whether the trial court had correctly found that the second and third appellants were guilty, on the evidence, of murder and robbery with aggravating circumstances on the basis of common purpose, and whether the trial court had correctly imposed prescribed minimum sentences (life imprisonment for murder and 15 years’ imprisonment for robbery with aggravating circumstances, ordered to run concurrently) in the absence of substantial and compelling circumstances justifying deviation.

2. Material Facts

The offences were alleged to have occurred in the early hours of 5 October 2008 in Mdantsane. The deceased was James Mathosa. The State’s case was that the accused persons murdered the deceased and, using force or violence, robbed him of cash (R300), a wallet, an identity document, and bank cards. The State relied on aggravating circumstances (as defined in the Criminal Procedure Act 51 of 1977) and alleged that the murder was committed in the execution or furtherance of a common purpose.

It was common cause (or not meaningfully in dispute on appeal) that the deceased sustained multiple stab wounds and died as a result of the attack. The post-mortem report and photographic exhibits were admitted without formal proof. The accused made formal admissions regarding chain evidence, the identity of the deceased, and the injuries sustained, including that no further injuries were inflicted after the relevant incident.

The medical evidence recorded ten stab wounds, including five wounds to the buttocks, one to the front of the right thigh, one beneath the right knee, and three penetrating stab wounds to the rib cage from the back which pierced both lungs and penetrated the surface of the right lobe of the liver. These injuries formed an important objective backdrop against which witness versions about the nature of the assault were evaluated.

In relation to the events preceding the killing, evidence was led that several individuals, including the appellants and the deceased, were present at Vigi’s tavern on the night of 4 October 2008 until about midnight. One witness (Ndonga) confirmed seeing the deceased at the tavern and stated that the deceased had money in his wallet, but she did not witness the later assault.

Two key State witnesses, Nomzamo Manona and Zola Kosana, placed the second appellant and Sangotsha at the scene where the deceased was assaulted. Their evidence (as accepted in material respects by the trial court and approached on appeal through the lens of appellate deference) was that, after leaving the tavern and while walking in the street in the early hours, they encountered the group including the appellants and Sangotsha. They described overhearing the third appellant say words to the effect that he had stabbed someone (or “that stupid guy”). The witnesses testified that the second appellant and Sangotsha then approached and assaulted the deceased by kicking and hitting him. During or immediately after the assault, a bloodstained wallet was handled and thrown towards the witnesses. The evidence was that money was taken from the wallet, and the second appellant gave the witnesses R50 while warning them to remain silent about the incident.

The second appellant’s version at trial differed materially. He placed himself with Sangotsha at the relevant time but claimed that the women arrived at his home and led him and Sangotsha to a scene where an intoxicated person was lying in the road. He alleged that the women searched the person and took the wallet, while he took an identity document containing money and later gave the women some of that money. He denied witnessing an assault and denied being involved in the attack in the manner alleged, while accepting, on his version, that he had possession of the deceased’s property.

The third appellant testified that he had been at the tavern and later encountered the deceased in the street. He implicated the second appellant and Sangotsha (and also mentioned other male persons) as being present during the assault. He admitted that he had a knife and said he stabbed the deceased in the buttocks, suggesting that he inflicted about three wounds there. He denied intending to murder or rob the deceased. His evidence contained internal inconsistencies on whether the deceased was standing or lying down when stabbed, and the record reflected that he had earlier made a statement to a magistrate in which he admitted to stabbing the deceased in the buttocks. The trial court treated the credibility of his version as central, particularly given the mismatch between claims of extensive kicking and punching and the lack of corresponding bruising suggested by the objective medical evidence.

3. Legal Issues

The central legal questions were, first, whether the trial court erred in convicting the second and third appellants of murder and robbery with aggravating circumstances on the basis that they acted with a common purpose. This included the question whether the second appellant could be held liable for murder where the evidence against him emphasised assault (kicking and hitting) and the appropriation of property, rather than direct proof that he inflicted fatal stab wounds.

Secondly, in relation to the third appellant, the court was required to determine whether his admitted stabbing of the deceased in the buttocks (on his version) excluded the necessary intention to kill, and whether the trial court correctly inferred the requisite mens rea, including by reference to dolus eventualis, having regard to the overall attack and the nature and extent of the wounds.

Thirdly, the appeal raised sentencing issues, namely whether the trial court committed a misdirection by concluding that there were no substantial and compelling circumstances justifying deviation from the applicable prescribed minimum sentences, and whether the resultant sentences were so disproportionate or inappropriate as to justify appellate interference.

The dispute thus concerned a combination of factual findings (credibility and probabilities), the application of legal doctrine (common purpose and inferential reasoning as to intention) to those facts, and discretionary/value judgments in sentencing under the minimum sentence regime and the limited appellate standard for interference.

4. Court’s Reasoning

The High Court approached the appeal through the orthodox principle that an appellate court’s power to interfere with a trial court’s factual findings is strictly limited, particularly where the findings depend on the evaluation of oral testimony. Relying on the stated approach in S v Bailey 2007 (2) SACR 1 (C), the court emphasised that, absent a material misdirection, the trial court’s evaluation is presumed correct, and interference is warranted only in exceptional circumstances given the trial court’s advantage in seeing and hearing witnesses.

On the merits of conviction, the court considered the evidential “mosaic” as a whole. It accepted that the trial magistrate had been entitled to find that the accused persons (including the second and third appellants) were bad witnesses and that their accounts were only partially truthful, especially where their versions were inconsistent with objective medical evidence. A significant feature was the trial court’s conclusion that the narrative of extensive assault by fists and booted feet did not sit comfortably with the post-mortem and photographic evidence (particularly the limited support for bruising), and that the evidence more reliably supported a conclusion that the deceased was stabbed and robbed, with attempts by witnesses and accused to minimise their proximity to the murder allegation.

The court endorsed the magistrate’s reasoning that all three accused were placed at the scene during the relevant episode; that the third appellant admitted stabbing; that the second appellant admitted taking the deceased’s property; and that there was no realistic evidential basis to conclude that an unknown third party arrived after the group had left and inflicted the fatal injuries. The High Court treated that improbability assessment as central to rejecting the suggestion that the appellants could be divorced from the fatal outcome.

In applying the doctrine of common purpose, the court stated that where two or more persons act together to commit a crime, the conduct of each in achieving that purpose is imputed to the others. It referred to Jacobs and Others v The State [2018] ZACC 4 and explained (with reference to S v Mgedezi 1989 (1) SA 687 (A) and S v Mahlangu and Another [2012] ZAGPJHC 114) that common purpose liability may arise either from a prior agreement (express or implied) or, where no prior agreement is proven, from active association and participation in a common criminal design with the necessary blameworthy state of mind. On the facts as found, the court held that the appellants committed the offences through a common criminal design supported by active association.

Regarding intention, the court held that the number and positioning of the deceased’s wounds supported the State’s submission that the requisite form of intent could be inferred as dolus eventualis. On that basis it rejected the third appellant’s contention that a stabbing in the buttocks necessarily excluded intent to kill, and it also rejected the second appellant’s contention that his role, being described as kicking and hitting rather than stabbing, insulated him from murder liability. The court accepted that the trial court had correctly concluded that common purpose and the lethal nature of the attack supported murder convictions.

On sentence, the court reiterated that sentencing requires a balance between the interests of society, the offence, and the personal circumstances of the offender, and that an appellate court interferes only where the sentence is shockingly inappropriate or where an irregularity or misdirection occurred. The court noted that both counts attracted prescribed minimum sentences, and that the appellants’ essential complaint was the absence of a finding of substantial and compelling circumstances.

The mitigating factors advanced were limited. For the second appellant, reliance was placed on his age (25 at sentencing), his schooling, his consumption of alcohol, and his admission of taking money. For the third appellant, reliance was placed on his age (24 at sentencing), absence of previous convictions, his claimed acceptance of responsibility for stabbing the deceased in the buttocks, and alcohol consumption. The court treated alcohol as potentially relevant but concluded that it did not materially reduce blameworthiness on the evidence, as the appellants’ appreciation of wrongfulness and cognitive functioning were not shown to have been impaired in a manner warranting mitigation.

The court relied on S v Vilakazi 2009 (1) SACR 552 (SCA) for the proposition that in serious crimes personal circumstances often recede into the background, and that courts should avoid “flimsy” reasons for avoiding the legislatively ordained sentencing framework. It reasoned that prescribed sentences should be departed from only where substantial factors compel the conclusion that the prescribed sentence is inappropriate. It considered the seriousness of violent crime in the court’s jurisdiction, and accepted the appropriateness of emphasising retribution and deterrence, referring to S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) and S v Swartz 2004 (2) SACR 370 (SCA) in support of the relative weight to be afforded to these aims of punishment in serious crimes.

In evaluating whether the trial magistrate misdirected himself, the court held that no material over-emphasis or improper balancing was demonstrated. It concluded that there was no marked or shocking disparity between the sentence imposed and what the appellate court would have imposed. It further referred to S v Kibido 1998 (2) SACR 213 (SCA) in articulating the standard for appellate interference where a sentencing court’s discretion is alleged to have been improperly exercised, and held that the appellants had not shown misdirection in the trial court’s identification of relevant factors or the weight attached to them.

5. Outcome and Relief

The High Court dismissed the second appellant’s appeal against both convictions and sentences. It likewise dismissed the third appellant’s appeal against both convictions and sentences. The sentences of life imprisonment for murder and 15 years’ imprisonment for robbery with aggravating circumstances, ordered to run concurrently, accordingly remained in force for the second and third appellants.

No separate costs order was recorded in the judgment in relation to the appeal.

Cases Cited

S v Bailey 2007 (2) SACR 1 (C).

Jacobs and Others v The State [2018] ZACC 4.

S v Mgedezi 1989 (1) SA 687 (A).

S v Mahlangu and Another [2012] ZAGPJHC 114.

S v Vilakazi 2009 (1) SACR 552 (SCA).

Essop v S [2021] ZASCA 66.

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA).

S v Swartz 2004 (2) SACR 370 (SCA).

S v Kibido 1998 (2) SACR 213 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court had not materially misdirected itself in its assessment of the evidence, including its credibility findings and its rejection of the appellants’ versions. It accepted that the evidential mosaic placed the second and third appellants at the scene as participants in an attack that resulted in the deceased’s death and the taking of his property, and that the doctrine of common purpose, grounded in active association, justified imputing liability for murder and robbery with aggravating circumstances.

The High Court further held that the nature and extent of the deceased’s wounds supported an inference of dolus eventualis, and that the appellants’ arguments seeking to separate the second appellant from the fatal stabbing, or to deny the third appellant’s intention to kill based on the claimed location of his stabbing, did not warrant overturning the convictions.

On sentence, the High Court held that the trial magistrate did not err in finding an absence of substantial and compelling circumstances justifying deviation from the prescribed minimum sentences, and that the sentences imposed were not shockingly inappropriate, disproportionate, or the product of misdirection. The appeals against both conviction and sentence for the second and third appellants were dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that an appellate court’s interference with a trial court’s factual findings is tightly constrained. Absent a material misdirection, the trial court’s findings—particularly those grounded in the assessment of oral testimony—are presumed to be correct, and the appellate court will not interfere merely because a different view of the evidence is possible.

The judgment applied the doctrine of common purpose by recognising that criminal liability may be established either through proof of a prior agreement to commit an offence or, where such agreement is not proved, through active association in a common criminal design coupled with the requisite mental state. Where common purpose is established, the conduct of each participant in furtherance of the common design is imputed to the others for purposes of liability.

The judgment treated dolus eventualis as a permissible inferential basis for establishing intention in the context of a violent group attack, where the objective nature, number, and placement of wounds supported the conclusion that the perpetrators subjectively foresaw the possibility of death ensuing and nonetheless continued with the conduct.

In relation to sentencing, the judgment applied the principle that prescribed minimum sentences are to be imposed unless substantial and compelling circumstances render such sentences inappropriate. In serious crimes, ordinary personal circumstances generally carry limited weight, and sentencing may properly emphasise retribution and deterrence where the gravity of the offence and the interests of society so require. Appellate interference with sentence is warranted only where the sentencing discretion was not properly exercised, including where there is a material misdirection or where the sentence is disturbingly inappropriate or induces a sense of shock.

Sangotsha and Others v S - Appeal (CA&R1/2020) [2023] ZAECBHC 21 (8 August 2023)