Brief Summary

Criminal Law — Conviction and Sentencing — Appeal against convictions and sentences of murder and robbery — Appellants convicted of multiple counts of murder and robbery with aggravating circumstances, receiving lengthy prison terms — Appellants contended that the convictions were not supported by sufficient evidence and that the sentences were excessive. The three appellants were convicted of serious crimes, including multiple counts of murder and robbery, and received sentences of life imprisonment and substantial terms of years. They appealed their convictions and sentences, arguing insufficient evidence and excessive punishment. The court held that the evidence presented at trial, including eyewitness identification and forensic links, sufficiently supported the convictions, and the sentences imposed were appropriate given the gravity of the offenses. The appeal was dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the High Court of South Africa, Free State Division, Bloemfontein, against both convictions and sentences imposed by the trial court (a single judge of the same division). The appeal was heard by Musi JP, Loubser J, and Moeng AJ.

The appellants were Mohlalefang Cyril Mokoena (Accused 1), Lehlohonolo Phillip Moloi (Accused 5), and Moeketsi Elliot Radebe (Accused 6). The respondent was the State. Leave to appeal was granted by the court a quo.

The matter concerned a series of violent offences committed in 2009, including murders, robberies with aggravating circumstances, and attempted murder. The appeal primarily required the court to assess whether the trial court correctly concluded that the State proved the appellants’ guilt beyond reasonable doubt, in circumstances where key aspects of the State case (particularly against Accused 5) relied on circumstantial evidence such as cellular telephone records, and where the trial court also made findings on identification, possession of stolen property, and (in relation to Accused 6) the implications of silence in the face of incriminating evidence.

A further issue arose on sentence concerning whether the trial court’s direction that part of a determinate sentence should run concurrently with a life sentence was legally competent in light of the Correctional Services Act 111 of 1998.

2. Material Facts

On 9 May 2009 at approximately 22h00 at De Bult, Qwa-Qwa, Mr Lehlohonolo David Ramaditse sat in his car with his companion Ms Tshepiso Radebe. Two men approached. One, described as fat, knocked on the driver’s window and asked for a lift to Phuthaditjhaba. When Mr Ramaditse refused, the other assailant shot Mr Ramaditse three times and shot Ms Radebe once. The assailants entered the vehicle and forced Mr Ramaditse to sit between the front seats while they drove off.

Mr Ramaditse testified that Ms Radebe screamed and called out a name sounding like “Shema”, and that she appeared to know the assailants. After the vehicle stopped, the assailants exited and stood in front of the car; Mr Ramaditse escaped and fled. Shots were fired while he ran, and he hid in bushes. He later returned to the vehicle and found Ms Radebe dead. The car’s JVC radio was taken, and the police later recovered it and it was identified by Mr Ramaditse as his property.

Mr Ramaditse identified Accused 1 as the “fat person” at the vehicle. The trial evidence included that there were light sources (the interior light of the car and a nearby mast light), and the trial court treated this identification as reliable. The post-mortem evidence confirmed that Ms Radebe died from a gunshot injury.

A separate series of events occurred on 12–13 June 2009 involving the death of Ms Lerato Koloi. Mr Chami Japhta Mokoena testified that he went to De Bult Jazz Club with Ms Koloi and left her in his Volkswagen Golf outside. A short time later he was alerted that his vehicle’s battery had been tampered with; when he went outside the vehicle was gone. He later saw the vehicle involved in a collision near Riaholo school, where it was damaged and later taken to the police station. Police found Ms Koloi deceased in the vehicle, with post-mortem evidence indicating death from a gunshot injury causing cervical spine fracture and severing of the right external jugular vein. In connection with this incident, evidence was led that an LG cellular phone in the Golf rang and a caller asked where “Mahlalefane” was (a name associated with Accused 1). Call analysis evidence further indicated that the LG phone found in the Golf was used with Accused 1’s SIM card.

The record also dealt with the killing of Mr Isaac Mokoena (referred to as “the deceased” in portions of the evidence). Evidence placed a BMW connected to him at or near Riaholo school; a bumper was found there, and Mr Mokoena’s corpse was found with a gunshot wound through one eye. It was common cause that the BMW was later found burned. The deceased’s property, including keys and a cellular phone, was later recovered and identified by his wife; it was common cause that the phone was retrieved from Accused 3’s brother.

As part of the investigation, police recovered stolen property and keys. On 17 June 2009, police (including Captain Kobane) went with Accused 1 and Accused 3 to Accused 2’s house where Accused 2 and Accused 5 were present. A report by Accused 2 led police to recover a JVC radio from a minibus. Police then searched premises associated with Accused 6 and, in a second house close to the main house (searched with permission), found a BMW key, a Citi Golf key, a broken Citi Golf key, an immobiliser, and other keys.

There was also evidence that Accused 6 made a statement to the investigating officer (Captain Moshoadiba). In that statement, Accused 6 placed himself in the company of Accused 1 and another person (“Mahleke”) in circumstances involving a black Golf with a woman lying in the passenger seat (later observed to be dead after a collision), and later travelling in a silver BMW with blood inside, which they then set alight, with a firearm shot fired at the vehicle. Accused 6 did not testify at trial. Accused 1 testified and denied involvement, asserting that he had travelled from Gauteng on 12 June 2009 and that he lent his phone to Ms Koloi because her phone battery was flat, then forgot it. The trial court rejected Accused 1’s version as not reasonably possibly true.

Cellular telephone analysis evidence (Inspector Bierman) was led regarding communications between numbers associated with the accused and, at times, the deceased’s phone. The trial court relied on this evidence to link Accused 1 with aspects of the offences, and to draw inferences about Accused 5’s involvement (particularly in relation to the 9 May 2009 incident). On appeal, the sufficiency of these inferences, especially regarding Accused 5, was directly scrutinised.

3. Legal Issues

The central issues on appeal concerned whether the State proved guilt beyond reasonable doubt in respect of each appellant, and whether the trial court correctly evaluated the evidence in reaching its conclusions.

In relation to Accused 5, the key question was whether the circumstantial evidence (primarily the pattern, frequency, and timing of phone calls between Accused 1 and Accused 5 around the events of 9 May 2009) justified the inference that Accused 5 participated in the crimes, and whether that inference was the only reasonable inference available from the proved facts.

In relation to Accused 6, the issues included whether the trial court was entitled to accept the evidence that Accused 6 made the statement implicating himself, how the statement and the recovery of items at premises where he stayed affected the evaluation of guilt, and what consequences (if any) followed from Accused 6’s decision not to testify in the face of incriminating evidence.

In relation to Accused 1, the issues included the reliability of identification evidence by Mr Ramaditse, the proper evaluation of Accused 1’s explanation about the LG phone and his movements, and whether the trial court’s credibility findings were justified on the record.

A further issue (distinct from factual guilt) arose concerning the legality of the sentencing order made against Accused 1: whether the trial court was competent to direct that part of a determinate sentence (55 years’ imprisonment) should run concurrently with a life sentence, given the prescripts of section 39 of the Correctional Services Act 111 of 1998.

These issues involved a mix of fact (what occurred and who participated), application of law to fact (whether the proved facts met the criminal standard of proof, including under principles governing circumstantial evidence), and legal competence (whether the sentencing concurrency order was lawful under the governing statute).

4. Court’s Reasoning

The appeal court reaffirmed the basic principle that the State bears the onus to prove guilt beyond reasonable doubt, and that a court must assess the totality of the evidence, rather than isolated fragments. Where doubt remains after considering all the evidence, the accused must receive the benefit of that doubt.

Because a substantial part of the case against at least one appellant depended on circumstantial evidence, the court applied the established approach from R v Blom 1939 AD 188, namely that any inference relied upon must be consistent with all the proved facts, and those facts must exclude every other reasonable inference save the one sought to be drawn.

Applying those principles to Accused 5, the court accepted that the phone records established “base facts” of contact between Accused 1 and Accused 5 before, during, and after 9 May 2009, including multiple calls on the evening of the incident. However, the court held that these base facts did not logically and inevitably lead to the conclusion (as the only reasonable inference) that Accused 5 participated in the commission of the offences against Mr Ramaditse and Ms Radebe.

The court’s evaluation emphasised that the inference drawn by the trial court remained vulnerable to reasonable alternative explanations. The appeal court pointed to, among other considerations, the unresolved question of why Accused 1 would place repeated calls to Accused 5 at the relevant time if they were together at the scene; the fact that the stolen radio was found in circumstances involving Accused 2 (who did not explain his possession); the evidence that Accused 1 and Accused 5 called each other regularly about various matters; the uncertainty whether certain recorded calls resulted in actual conversations; and the absence of evidence establishing Accused 5’s location when calls were made or received. In the court’s assessment, these features rendered the link between the proved facts and the inference of guilt too tenuous to sustain conviction beyond reasonable doubt.

In relation to Accused 6, the court accepted that there was evidence placing him in incriminating circumstances, including a statement that located him at key events and in the company of the perpetrators, as well as evidence that some stolen items (notably keys linked to vehicles) were found at premises where he stayed. The court considered the consequence of Accused 6’s decision not to testify, applying the principle articulated in S v Boesak 2001 (1) SACR 1 (CC): while an accused is not obliged to testify, silence may have consequences where there is evidence calling for an answer, and whether guilt may be inferred in the absence of an explanation depends on the weight of the evidence. The court concluded that the trial court was entitled to treat Accused 6’s silence, in the face of that evidence, as leaving the State’s case unanswered, and that the convictions against Accused 6 could not be faulted on appeal.

In relation to Accused 1, the court held that the trial court’s conclusions were supported by the record. It accepted that Accused 1 was positively identified by Mr Ramaditse, and it endorsed the trial court’s rejection of Accused 1’s explanation concerning the LG phone and his version of events. The appeal court further accepted the trial court’s reliance on evidence that Accused 1 pointed out the house where keys linked to the Golf and BMW were found, and it regarded Accused 1’s account as inconsistent with probabilities and the proved facts. On this footing, the appeal court found no basis to interfere with Accused 1’s convictions.

On sentence, the court noted the seriousness of the offences and recorded that the trial court considered the relevant sentencing factors and committed no misdirection warranting appellate interference. The court accepted that there was no sustainable attack on sentence in respect of Accused 1 and Accused 6. However, it held that the specific order made by the trial court—directing that 25 years of the 55-year determinate term should run concurrently with the life sentence—was legally incompetent.

The court reasoned that concurrency between determinate sentences and life imprisonment is governed definitively by section 39 of the Correctional Services Act 111 of 1998, and in particular section 39(2)(a)(i), which provides that any determinate sentence of incarceration to be served by a person runs concurrently with a life sentence. Relying on authority including S v Mashava 2014 (1) SACR 541 (SCA) (and noting the statutory position as definitive), the court held that a determinate term imposed in addition to life imprisonment is subsumed by the life sentence. Because a person “only has one life”, the court concluded that the trial court’s attempt to manage concurrency by ordering partial overlap was contrary to the Act and thus had to be set aside.

5. Outcome and Relief

The appeal by Accused 5 against both convictions and sentence was upheld, and his convictions and sentence were set aside.

The appeals by Accused 1 and Accused 6 against their convictions and sentences were dismissed, and their convictions and sentences accordingly stood.

In relation to Accused 1, the appeal court additionally set aside the trial court’s sentencing direction that 25 years of the additional 55 years’ imprisonment should run concurrently with the life sentence, holding that this was incompetent under the Correctional Services Act 111 of 1998. The effect was to leave the operation of concurrency between the life sentence and determinate term to the statutory scheme.

The judgment, as provided, did not reflect a separate costs order (consistent with criminal appeal practice).

Cases Cited

R v Blom 1939 AD 188.

S v Boesak 2001 (1) SACR 1 (CC).

S v Makhoka [2019] ZACC 19.

S v Mashava 2014 (1) SACR 541 (SCA).

Legislation Cited

Correctional Services Act 111 of 1998, section 39(1) and section 39(2)(a)(i)–(ii).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that the circumstantial evidence relied upon to convict Accused 5—principally the pattern and timing of telephone calls between Accused 1 and Accused 5—did not exclude other reasonable inferences and was therefore insufficient to establish guilt beyond reasonable doubt. Accused 5’s convictions and sentence were set aside.

The court held that the evidence against Accused 6, including a statement placing him at material events and the recovery of items at premises where he stayed, justified the trial court’s findings; his decision not to testify in the face of such evidence permitted the trial court to treat the State’s case as unanswered in accordance with the approach to silence described in S v Boesak. His appeal was dismissed.

The court held that the convictions and sentences of Accused 1 were properly supported by the evidence, including identification evidence and the rejection of his version as not reasonably possibly true. His appeal was dismissed.

The court held that the trial court’s order directing partial concurrency between a determinate sentence and a life sentence was incompetent, because section 39 of the Correctional Services Act 111 of 1998 governs the position and provides that determinate imprisonment runs concurrently with life imprisonment; the partial concurrency order was set aside.

LEGAL PRINCIPLES

The State must prove an accused’s guilt beyond reasonable doubt, and a court must evaluate the totality of the evidence in determining whether that standard has been met; where doubt remains after such evaluation, the accused must receive the benefit of the doubt.

Where the prosecution relies on circumstantial evidence, the inferential reasoning process must comply with the principles in R v Blom 1939 AD 188: the inference sought must be consistent with all proved facts, and those proved facts must exclude every other reasonable inference save the one sought to be drawn.

An accused has no obligation to testify, but silence may carry evidentiary consequences where there is evidence calling for an answer. In appropriate circumstances, a court may conclude that the State’s evidence is sufficient in the absence of an explanation, depending on the weight of that evidence, as described in S v Boesak 2001 (1) SACR 1 (CC).

Under section 39(2)(a)(i) of the Correctional Services Act 111 of 1998, a determinate sentence of incarceration imposed in addition to a life sentence runs concurrently with that life sentence and is, in effect, subsumed by it. A sentencing court’s order inconsistent with this statutory scheme is incompetent, as applied with reference to S v Mashava 2014 (1) SACR 541 (SCA).

Mokoena and Others v S (A201/2017) [2019] ZAFSHC 95 (31 May 2019)