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[2010] ZAFSHC 57
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Mofokeng and Another v S (A259/2009) [2010] ZAFSHC 57 (10 June 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A259/2009
In
the appeal between:
SHADRACK KWENANE
MOFOKENG
1
st
Appellant
NOMONDE EUDIN
MAKENGKENG
2
nd
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
H.M. MUSI, JP
et
RAMPAI, J
et
BOONZAAIER,
AJ
JUDGEMENT:
H.M. MUSI, JP
HEARD ON:
3 MAY 2010
_____________________________________________________
DELIVERED ON:
10 JUNE 2010
_____________________________________________________
INTRODUCTION
[1] This is an appeal
from a judgment of a single judge of this court delivered in November
2008. The two appellants appeared
at the trial with another person
who featured as accused number 2. The first appellant featured at
the trial as accused number
1 and the second appellant as accused
number 3. Accused number 2 died shortly after the commencement of
the trial. I shall henceforth
refer to the appellants as cited in
the appeal. The appeal is with leave of the court
a
quo
on
a limited basis as will appear shortly.
[2] The appellants were
arraigned on charges of kidnapping (count 1), robbery with
aggravating circumstances (count 2), murder (count
3) and possession
respectively of a firearm and ammunition without lawful authority in
contravention of the provisions of the Firearms
Control Act, 60 of
2000 (counts 4 and 5). The first appellant was convicted on all the
charges whereas the second appellant was
convicted of counts 1, 2 and
3 and acquitted on counts 4 and 5. Each of the appellants was
sentenced to seven years imprisonment
on count 1, fifteen years
imprisonment on count 2 and life imprisonment on count 3. In
addition, the first appellant was sentenced
to three years
imprisonment and six months imprisonment respectively on counts 4 and
5. I should mention that in pronouncing sentence
the court
a
quo
confused counts 2 and 3 and said that life imprisonment was imposed
in respect of count 2 and fifteen years imprisonment on count
3. But
it is clear that this was a mistake, that life imprisonment was
imposed in respect of count 3 and fifteen years imprisonment
on count
2. The court
a
quo
subsequently corrected itself and the appeal was heard on the basis
that the sentence for robbery with aggravating circumstances
was
fifteen years and that life imprisonment was imposed on the murder
conviction.
[3] The first appellant
was granted leave to appeal against all the sentences imposed and in
respect of conviction he was granted
leave to appeal only in respect
of counts 4 and 5. The second appellant was granted leave to appeal
against the convictions and
sentence in respect of all the charges.
FACTUAL BACKGROUND
[4] I deem it necessary
for purpose of putting the judgment of the court
a
quo
in
its proper perspective to give a full outline of the factual
background to the matter.
[5] The second appellant
is the wife of the deceased in the murder count, Mr Mpelane Gilbert
Makengkeng. They lived together as
man and wife in a section of
Thabong called Las Vegas in Welkom. The evidence reveals that the
couple’s house was secured
with a security fence and the only
entrance into the premises was through a steel gate that was always
locked due to the fact that
the deceased kept vicious dogs
(bulldogs). Anyone wanting to enter the premises had to shout at the
gate and someone from inside
the premises would lock the dogs away
and open the gate with a key. The deceased had two children from a
previous marriage, a
boy and a girl aged between 16 years and 18
years. They had been staying with their father in his house before
he married the
second appellant and continued to do so after the
marriage. The evidence reveals that the second appellant had a
daughter from
a previous marriage who also stayed with the couple.
At the time of the deceased’s death, the deceased’s son
was at
a university in Bloemfontein and only came home during the
school holidays. It is not clear where the two girls were at the
time
and they do not feature as far as the commission of the crimes
is concerned. It emerged later in the sentencing process that the
second appellant has another child, a boy who is apparently a major.
He does seem to have stayed with the couple and does not
feature in
these proceedings.
[6] The couple had
serious marital problems, partly due to the unfair treatment that the
second appellant allegedly meted out to
the deceased’s children
from an earlier marriage, and partly due to the fact that the
deceased conducted an extra marital
love affair with another woman, a
matter that was public knowledge. The situation had deteriorated to
the extent that the couple
were no longer sharing the same bed and
the deceased had instituted a divorce action. There were also
complaints that the deceased
was not properly providing for his
family and there was always a shortage of money and food in the
household.
[7] Early on the 1
st
of July 2006 the couple were visited by the deceased’s sister
and her husband, who had been sent by the deceased’s
father to
try and mediate the marital dispute between the deceased and the
second appellant but the second appellant refused to
see them. On
that same day the deceased left in his motor vehicle to visit his
relatives in Odendaalsrus. He returned at about
21H30 and visited
his girlfriend, Mantwa Nhlapo. The latter testified that the
deceased left her place at about 22H30 saying that
he was going home
as he had to prepare for his early morning shift the next day (5am).
She further said that the deceased never
slept at her place, that
they could spent the night or evening together but the deceased would
always go home to sleep. She described
how the deceased was dressed
when he left her place. That was the last time that the deceased was
seen alive.
[8] The evidence reveals
that sometime after parting with his girlfriend, the deceased was
kidnapped in his car, driven from Welkom
to the eastern Free State,
killed and buried in a shallow grave in a forest in Qwa Qwa (more
than 300km away). Subsequently and
on 8 July 2006, the first
appellant emerged in Maseru in Lesotho driving the deceased’s
motor vehicle and handed it over
to a female acquaintant of his,
Senatsatsi Safali, to sell it for him. She was found driving the
deceased’s motor vehicle
at Maseru bridge in the company of a
friend of hers, Francina Ditabe. Both were arrested and they in turn
led the police to the
first appellant. The first appellant
subsequently led the police to the spot where the deceased had been
buried. The evidence
relating to how he led the police to the corpse
of the deceased and the pointing out was found by the court
a
quo
to
be admissible following a trial within a trial. The evidence of the
first appellant’s girlfriend in Maseru, Lesotho,
Lipelaetso
Makwala, disclosed that he had concealed a firearm belonging to the
deceased in a dustbin at her place which was subsequently
retrieved
by the police and which also implicated the first appellant in the
kidnapping and murder of the deceased.
FIRST APPELLANT’S
APPEAL
[9] It is convenient to
dispose of the entire appeal of the first appellant at this stage.
The first appellant challenged his conviction
on the count of
possession of a firearm on the ground that the state has not shown
that the firearm found to have been in his possession
was a firearm
as defined in section 1 of the Act. In the South African Criminal
Law and Procedure, Volume 3, Statutory Offences,
2
nd
Edition by Milton and Cowling the following is said at B1, page 3:
“
In essence a firearm is an
instrument that is capable of firing (or propelling), a bullet or
similar projectile, either by burning
propellant or by other means.
Such projectile must be capable of being discharged with the muscle
energy of more than 8 joules.”
In
casu
the state failed to lead any evidence to show that the firearm
concerned was in a working condition in the sense that it was capable
of firing a bullet or similar projectile. The state simply handed in
the firearm as an exhibit and proceeded on the assumption
that it is
a firearm as defined. No evidence as to its condition was led and it
appears that the police who confiscated it did
not even test it. The
fact that it was shown to be the deceased’s licensed firearm
was not sufficient to establish the elements
of the offence charged.
[10] Likewise, no
evidence was led to show that the ammunition involved was a “primer
or complete cartridge” as defined
in section 1 of the Act. No
wonder that the state conceded that the appeal relating to these two
charges should succeed.
[11] Regarding the
sentences imposed on the first appellant on counts 1, 2 and 3, Mr
Pretorius, who appeared on his behalf, was
candid that he could not
see his way clear to arguing that the sentence imposed in respect of
each of the three charges was inappropriate.
Nor was there any
irregularity or misdirection committed in the sentencing process.
[12] The concession was
correctly made. The provisions of the
Criminal Law Amendment Act,
105 of 1997
were applicable to the charges of robbery with
aggravating circumstances and murder. Unless it was found that there
were substantial
and compelling circumstances justifying the
imposition of a lesser sentence, the minimum sentence of 15 years
imprisonment and
life imprisonment had to be imposed respectively for
count 2 and 3. The court
a
quo
fully dealt with the factors that had been put on record for purposes
of sentence and came to the conclusion that there were no
weighty
reasons justifying a departure from the prescribed minimum sentences.
It is trite that a court of appeal will only interfere
with the
sentence imposed by the trial court where there has been a
misdirection or irregularity in the sentencing process or if
otherwise the sentence is shockingly inappropriate. In
casu
there is no basis whatsoever for interfering with the sentences
imposed on the first appellant.
THE EVIDENCE
IMPLICATING THE SECOND APPELLANT
[13] There can be no
doubt that there was overwhelming evidence implicating the first
appellant in the commission of the crimes
charged and he was
correctly convicted. This much was conceded by Mr Pretorius who
appeared for him. In relation to the second
appellant, it will be
noted that there was no direct evidence implicating her in the
commission of the crimes. Her conviction
was based purely on
circumstantial evidence. It is apposite to consider the evidence on
the basis of which the inference of guilt
was drawn. But before I do
so, I need to point out that the first appellant is also a resident
of Thabong in Welkom who operated
a taxi business there. It is
obvious that he knew the deceased as the latter was a traffic officer
in the same area.
[14] First, expert
evidence was led showing that between 30 June 2006 and 12 July 2006
the second appellant was in constant contact
with the first appellant
by cellphone. Now, this is from the eve of the deceased’s
disappearance onward. The first call
made by the second appellant to
the first appellant was at 20H17 on 30 June 2006, then followed
another at 20H20. These two calls
went to voice-mail on the first
appellant’s cellphone and apparently no discussion took place.
The third call followed at
20:33:00:56 and recorded a conversation
lasting 43 seconds. About an hour later that same night at about at
21:24:39 the second
appellant made another call to the first
appellant lasting 158 seconds. On the following day the 1st of July
2006, the second
appellant started telephoning the first appellant
from about 10 in the morning. Thereafter several calls followed
during the day
through to the afternoon and into the night up to the
early hours of the 2nd of July 2006 (six calls in all). According to
the
expert evidence the calls made at about 23H30 on the 1
st
of July and a quarter to one in the early hours of the 2
nd
of July were all received by the first appellant’s cellphone in
Thabong, Welkom. This means that at that time the first
appellant
was still in Welkom. The first recorded call that the first
appellant made to the second appellant was on the 6
th
of July 2006 at 11H52 and it was made from Ficksburg. The first
appellant again called the second appellant on the 10
th
of July, this time from Ladybrand, which is also in the east of the
Free State and near Lesotho. The calls made by the second
appellant
on the 3
rd
and 12
th
of July must have transpired when the first appellant was in the east
of the Free State.
[15] The other evidence
that has a strong bearing on the case against the second appellant
relates to the fact that the deceased
was wearing his pyjamas when he
was kidnapped and killed. This evidence must be read in conjunction
with following evidence:
15.1 that the deceased
left his girlfriend’s place at 22H30 intending to go home to
sleep;
15.2 that the deceased
never slept at his girlfriend’s place. As a matter of fact the
second appellant herself told inspector
Mangani, who interviewed her
on the 4
th
of July when she had gone to the police station to report the
deceased’s disappearance, that the deceased was not in the
habit of sleeping out. The evidence of Mangani to this effect was
not challenged under cross-examination.
15.3 the evidence of the
deceased’s son, Ronas Mankenkeng, that the deceased was
particular about his dress code and presentability
and would never go
out of the house in pyjamas. He said that if someone called at the
gate wanting to be let into the premises,
the deceased would first
change in to normal clothes before going out to open the gate. There
is no evidence on record to contradict
this evidence and it had to be
accepted as indeed the court
a
quo
accepted it.
15.4 the evidence of
Ronas that the gate to the house of the deceased was always locked
due to the presence of the vicious dogs
and that either the deceased
or the second appellant would open the premises to visitors. There
is no evidence that there was
any person on the premises on the night
of the 30
th
June to the 1
st
of July other than the deceased and the second appellant and it
follows that one of them would have opened the gate for visitors
in
that period.
ISSUES RAISED ON
APPEAL
[16] Now, Mr Reyneke, who
also represented the second appellant at the trial, challenged the
second appellant’s conviction
on the broad ground that there
was no direct evidence implicating her in the commission of the
crimes and contended that there
was insufficient evidence to convict.
He focused on the evidence of cellphone calls and pointed out that
the first appellant’s
evidence regarding the calls made to him
by the second appellant was corroborated by his wife. He argued that
such evidence should
have been accepted and criticised the trial
court’s rejection thereof. Now the first appellant claimed
that the first three
successful calls were actually made by the
deceased himself using his wife’s (second appellant) cellphone
and that the discussion
was about the money that the deceased wanted
to borrow from him. He said that he and the deceased were friends.
He acknowledged
that the next four calls were made by the second
appellant to his cellphone but claimed that all these calls were
answered by his
wife, Selinah Mofokeng. He called his wife in this
regard and the latter confirmed that she answered the calls and said
that the
second appellant was enquiring about the money the deceased
had wanted to borrow from the first appellant.
[17] Now the trial court
found the first appellant to be a lying witness and rejected his
entire version as false. The court
a
quo
was
clearly correct in so rejecting such evidence and Mr Reyneke did not
make any submission to the contrary. However, Mr Reyneke
suggested
that we should take into account the fact that the first appellant,
not only did not incriminate the second appellant
but also that he
sought to exonerate her. Mr Reyneke submitted that it is improbable
that the first appellant would have risked
being convicted alone if
his co-accused was indeed complicit in the crimes. The answer to
this is that it is not uncommon in our
practise for co-accused to
shield one another. The point, however, is that if the first
appellant’s explanation regarding
the cellphone calls exchange
between himself and the second appellant was found to be false that
does not help the second appellant’s
case at all, for the
rejection of such explanation necessarily means that in the absence
of any other credible evidence there is
no explanation at all.
[18] It is trite that a
court of appeal will interfere with the credibility and factual
findings of the trial court only where such
findings are clearly
wrong. I am not persuaded that the court
a
quo
was
wrong in rejecting the evidence of the first appellant’s wife.
On the contrary, I think that the court
a
quo
was
justified in thus rejecting it. Her evidence was predicated upon the
premise that the deceased had wanted to borrow money
from the first
appellant and his wife called the first appellant in order to enquire
about the loan. But it should be noted that
it was the first
appellant’s evidence that the deceased had told him not to
disclose the loan to his wife (decead’s).
Why would the second
appellant now enquire about the loan she was not supposed to know
about? And why would she on each occasion
discuss the matter with
the first appellant’s wife instead of the “lender”
himself? And what a coincidence that
on four different occasions
would it be the wife to answer the first appellant’s cellphone,
even in the middle of the night?
In all probability the first
appellant had told his wife what to tell the court in order to save
his skin and that of his co-accused.
[19] Mr. Reyneke also
contended that the court
a
quo
should not have accepted the evidence of the deceased’s son,
Ronas, on the basis that he held a grudge against the second
appellant due to the fact that the second appellant allegedly
illtreated him and his sister. I do not agree with this submission.
The relevance and importance of the evidence of Ronas relate to the
existence of a marital conflict between the deceased and his
wife, as
well as the physical security arrangement around their home. In this
regard, Ronas is fully corroborated by the deceased’s
brother-in-law, William Matoba, and to some extent by the deceased’s
younger brother, Aaron Makengkeng. The deceased’s
girlfriend
also corroborated them on the issue of the marital dispute and the
pending divorce. Such evidence stands uncontradicted
by any other
evidence and had to be accepted. The evidence also dispelled any
notion that there could have been friendship between
the deceased and
the first appellant, since all these witnesses would have known about
it had it existed.
FAILURE TO TESTIFY
[20] It is to be noted
that the second appellant chose not to testify. Now it is trite that
the onus is on the State to prove the
guilt of an accused beyond
reasonable doubt and the accused has a right to remain silent and not
to testify during the proceedings.
But it is also trite that failure
to testify is a factor that, depending on the circumstances of the
case, may count against an
accused. See
REX
v ISMAIL
1952 (1) SA 204
(AD) at 210;
S
v LETSOKO AND OTHERS
1964 (4) SA 768
(AD) at 776 B – D;
S
v MTHETWA
1972 (3) SA 766
(AD) at 769.
[21] It is apposite to
refer to what Langa DP (as he then was) said in
S
v BOESAK
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at 923 E – F:
“
The fact that an accused person
is under no obligation to testify does not mean that there are no
consequences attaching to a decision
to remain silent during the
trial. If there is evidence calling for an answer, and an accused
person chooses to remain silent in
the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation
to prove the guilt of the accused.”
The learned judge went on
to quote with approval what Madala J said in
OSMAN
AND ANOTHER v ATTORNEY-GENERAL, TRANSVAAL
1998 (4) SA 1224
(CC) para [22]. There it was made clear that once
the prosecution has established a
prima
facie
case against an accused and he/she does not give evidence to rebut
the
prima
facie
case, the court may find that the
prima
facie
evidence is sufficient to convict.
DRAWING INFERENCES
[22] In a matter based on
circumstantial evidence as
in
casu
,
it is important to keep in mind the principles laid down in
R
v BLOM
1939 AD 188
at 202 – 203. We must determine whether the
inference of guilt drawn by the court
a
quo
is
consistent with all the proved facts and whether the evidence
excludes other reasonable inferences. In my view, this is where
the
failure to testify on the part of an accused becomes critical. Where
on the accepted evidence, considered as a whole, a certain
inference
becomes inescapable, an explanation under oath by an accused could
operate to displace it. Absent such explanation the
inference could
remain the only reasonable inference. I would think that this is
what the authorities mean when they say that
failure to testify may
count against an accused.
[23] Turning to the
particular facts of this case, the sustained cellphone communications
made by the second appellant to the first
appellant within the time
span that the deceased was kidnapped, killed and buried, called for
an explanation from the second appellant.
In the absence of an
explanation the only reasonable inference to be drawn is that the
second appellant had discussed the kidnapping
and murder of the
deceased with the first appellant.
[24] The above conclusion
must be read in conjunction with the following:
24.1 On the totality of
the evidence the deceased must have been kidnapped from his house
whilst asleep. The fact that he kept
a firearm but was unable to
ward off the attackers shows that he must have been taken by
surprise.
24.2 Either the deceased
or the second appellant opened the gate for the intruders or
otherwise assisted them to get in and the
deceased must be ruled out.
This is an issue that called for an explanation from the second
appellant and in the absence of an
explanation the only reasonable
inference to be drawn is that she assisted the kidnappers to get into
the premises.
24.3 The second appellant
had a motive to get rid of the deceased based on the marital strive
and the pending divorce, especially
the notion that she would loose
her husband to another woman. That she rebuffed mediation efforts in
the morning of the day before
the deceased was kidnapped is not
without significance and so is the evidence that she had said that
she will resolve the dispute
in her own way.
[25] The above findings
cumulatively justify the conclusion that the second appellant
conspired with the first appellant and assisted
him in the
kidnapping, robbery and murder of the deceased. I conclude therefore
that the second appellant was correctly convicted.
SENTENCE
[26] The first point to
be made is that the provisions of the
Criminal Law Amendment Act,
105/1997 as
amended (the Act) come into play in respect of the
convictions for robbery with aggravating circumstances and murder.
Now it is
not necessary to deal with the sentence on count 2, for the
target of the appeal on sentence was the life imprisonment imposed on
the murder conviction. In terms of section 51 of the Act read with
part 1 of Schedule 2 thereto, a prescribed minimum sentence
of life
imprisonment must be imposed for murder committed by a person acting
in the furtherance of a common purpose or conspiracy,
unless it is
found that there are substantial and compelling circumstances
justifying the imposition of a lesser sentence. The
cardinal
question therefore is whether there are such circumstances in the
case of the second appellant. The court
a
quo
found that there were none and hence it imposed the prescribed
minimum sentence. The question is whether this finding is correct.
I now turn to consider the relevant factors.
[27] The appellant did
not testify in mitigation of sentence but her personal circumstances
were put on record by her legal representative.
These are that she
was 46 years old at the time, is a trained nurse and has undergone
further training as a pharmaceutical assistant
as well as a project
manager. She was previously married and has two children from such
marriage both of whom are majors. She
had no children with the
deceased. When she married the deceased, she was employed as a nurse
but the deceased wanted her to be
a housewife so that she could look
after the children and so she resigned her post. She had received
pension/provident fund benefits
from her employment and the money was
all used up in the maintenance of the common household. Because the
deceased was not adequately
providing for the family, with the result
that there was always a shortage of money, the appellant was forced
to look for employment
and she ultimately joined a chicken breeding
venture with other people and earned R2 500,00 per month from the
project. She forfeited
her interest in the venture when she was
arrested in connection with the instant case. She had to leave the
common home as a result
of the hostility from the deceased’s
family and neighbours following her arrest. Finally, she has no
previous convictions.
[28] The above are
noncontroversial, undisputed facts on record. There are, however,
other contentious, if not scandalous, allegations
opportunistically
made on her behalf which are essentially matters that could only be
confirmed by evidence under oath. They could
not, and should not, be
taken into account for purposes of sentence.
[29] There are two
factors that need special mention and consideration and they
implicate the probable cause of the appellant’s
conduct leading
to the commission of the offences. The first is the marital strife.
It can be accepted that the appellant endured
deep emotional
suffering as a result of the conduct of the deceased in publicly
conducting a love affair with another woman. This
coupled with the
fact that the appellant had resigned her job at the instance of the
deceased and now faced the real prospect of
being left financially
stranded by him, must have resulted in a build-up of the kind of hurt
and resentment that would explain
her conduct.
[30] Mr. Harrington, for
the state, argued that it was up to the appellant to have come clean
under oath and explained the experiences
and emotional impulses that
drove her to getting rid of her husband. He submitted that in the
absence of such evidence, we should
not draw any conclusions about
what could have driven her to commit the offences. I disagree. I
think that these are matters
of ordinary, common human experience
that we can take cognisance of and are grounded on the testimony of
state witnesses taken
together with the undisputed information put on
record in mitigation of sentence. Certainly this is not a typical
case of a crime
of passion where the perpetrator acted on the spur of
the moment. Compare
S
v MNGOMA
2009 (1) SACR 435
(ECD). The instant matter probably falls within
the category of cases like
S
v DI BLASI
1996 (1) SACR 1
(A). The point, however, is that we are here
dealing with a consideration of whether there are substantial and
compelling circumstances
justifying a departure from the prescribed
minimum sentence. The factors mentioned above are relevant and must
be thrown into
the matrix of factors relevant to a consideration of
the question.
[31] It was held in
S
v MALGAS
2001 (1) SACR 469
(SCA) that ordinary mitigating factors individually
considered, may not constitute substantial and compelling
circumstances justifying
a departure from the prescribed minimum
sentence, but that a combination of various such factors may
constitute weighty reasons
for the imposition of a lesser sentence.
In my view, the fact that the appellant was a first offender taken
together with the
factors mentioned in the immediately preceding
paragraphs, cumulatively justify a departure from the prescribed
minimum sentence
of life imprisonment in respect of count 3. That
being so, we are at liberty to consider sentence afresh.
[32] There is no
gainsaying the fact that murder is a very serious offence. What
compounds matters is that this crime is prevalent
throughout the
length and breath of our country. And cases where spouses, whether
the married or simply living together, conspire
with criminals to
murder their spouses, are escalating at an alarming rate in this
country. As was stated in
MALGAS
,
supra
,
even where there is justification for deviating from the prescribed
minimum sentence, the courts should keep in mind that the
prescribed
minimum sentence remains a benchmark.
I note that the
appellant declared through her legal representative that she was not
remorseful. But this should be considered
in the light of her
insistence throughout that she did not commit the crimes and
especially that she intended to appeal. Not much
weight can be
attached to this avowed lack of remorse.
[33] There has not been
any suggestion that the sentence imposed on counts 1 and 2 are
shockingly inappropriate and I see no reason
to interfere therewith.
In my view, a sentence that would adequately balance the interest of
society, the gravity of the offence
of murder and the personal
circumstances of the appellant, is 23 (twenty three) years
imprisonment.
[34] In the result the
following order is made:
1. The appeal of the
first appellant against conviction on counts 4 and 5 succeeds and he
is acquitted on these counts. For the
rest, his appeal fails and the
convictions and sentences imposed in respect of counts 1, 2 and 3 are
confirmed.
2. The second appellant’s
appeal against her convictions fails and the convictions are
confirmed.
3. The second appellant’s
appeal against the sentences of 7 (seven) years and 15 (fifteen)
years respectively imposed on counts
1 and 2 (kidnapping and robbery
with aggravating circumstances respectively) is dismissed and such
sentences are confirmed.
4. The sentence of life
imprisonment imposed on the second appellant in respect of count 3
(murder) is set aside and for it is substituted
a sentence of 23
(twenty three) years imprisonment. All the sentences are to run
concurrently and are antedated to 7 November
2008.
______________
H. M. MUSI, JP
I concur.
_______________
M. H. RAMPAI, J
I concur.
____________________
A. J. BOONZAAIER, AJ
On behalf of first
appellant: Mr. K. Pretorius
Instructed by:
Bloemfontein
Justice Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of second
appellant: Mr. J. D. Reyneke
Instructed by:
Bloemfontein
Justice Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of
respondent: Adv. W. J. Harrington
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
em/sp