THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 991/2019

In the matter between:

LINDOKUHLE PERCY SHONGWE APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Shongwe v The State (Case no 991/2019) [2024] ZASCA 127
(26 September 2024)
Coram: MABINDLA-BOQWANA and KGOELE JJA and MANTAME AJA
Heard: 19 August 2024
Delivered: 26 September 2024
Summary: Murder – robbery with aggravating circumstances – whether murder
premeditated – whether appellant wrongly convicted of robbery with aggravating
circumstances instead of theft – whether the intention to steal occurred after the
killing – convictions confirmed.

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____________________________________________________________
ORDER
____________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Makhoba AJ,
sitting as court of first instance):
The appeal is dismissed.


JUDGMENT

Kgoele JA (Mabindla-Boqwana JA and Mantame AJA concurring)

[1] The appellant, Mr Shongwe, was convicted of murder, robbery with
aggravating circumstances, and theft in the Gauteng Division of the High Court,
Johannesburg (the high court). He was sentenced to life imprisonment in respect of
murder, 15 years ’ imprisonment for robbery with aggravating circumstances , and
two years’ imprisonment for theft. The high c ourt granted the appellant leave to
appeal to this Court in respect of the murder conviction only. The appellant
successfully petitioned this Court for leave to appeal the robbery with aggravating
circumstances conviction. The appeal is theref ore limited to the murder and the
robbery with aggravating circumstances convictions only.

[2] The facts which are common cause are that Mr Solomon Sinkenyani Ngodi
(the deceased), stayed alone. He regularly kept in touch with his family members
telephonically. His relatives became worried when they could not get hold of him
on his phone for a week, with him not visiting them for several days or attending a
funeral one Saturday morning . Upon enquiring from one another about his

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whereabouts, they eventually discovered his body on 10 December 2017 inside his
bedroom, dead. The deceased’s home was locked when he was found and there were
no traces of any forced entry. Several neckties were found tied aro und his neck,
hands, and legs. His mouth was stuffed with a cloth or neckties, and another necktie
was tied around his mouth while it was so stuffed. The cause of death was described
by the doctor who conducted the postmortem as ‘asphyxia due to ligature
strangulation’.

[3] Further investigations by the police revealed that the bank card of the deceased
was used at an ATM in a garage at KwaZulu-Natal (KZN). The video footage of this
garage showed t he appellant drawing the money at that ATM. The tracker, which
was fitted onto the vehicle of the deceased, led the police to where he was found in
possession of the deceased vehicle together with the deceased belongings amongst
others, his house key and a wristwatch.

[4] There is no direct evidence linking the appellant to the offence. In addition to
being found in possession of the deceased belongings, the State led the evidence of
his fingerprints which were uplifted at the deceased’s home, the video footage that
depicted him drawing money from the ATM, including the statement made by him
to Lieutenant Colonel Calvin Makamu (Mr Makamu) wherein he made several
admissions.

[5] The appellant raised an alibi defence denying ever being at the deceased ’s
premises. He also denied making any statement to Mr Makamu. His explanation for
being found in possession of the deceased’s vehicle and his belongings was that he
was given a lift by a certain Bheki and Senzo, who surreptitiously left him with the
vehicle that had the deceased ’s banking cards and other belongings that were
recovered.

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[6] The high c ourt reject ed the alibi defence tendered by the appellant and
convicted him of murder , robbery with aggravating circumstances , and theft. The
high court found the murder to have been premeditated. As indicated above, he was
sentenced to life imprisonment in respect of murder, 15 years ’ imprisonment for
robbery with aggravating circumstances, and two years’ imprisonment for theft. All
the sentences were ordered to run concurrently.

[7] The appeal is based on two grounds. First, that the evidence did not establish
beyond a reasonable doubt that the murder was premeditated. Second, that it could
be gathered from the statement that was made to Mr Makamu, that the appellant
formed the intention to take the deceased’s belongings after the assault. As a result,
he should have been convicted of theft and not robbery with aggravating
circumstances.

[8] It is worth mentioning that counsel representing the appellant indicated in his
submissions that the findings of the high court in relation to evidence of the State-
witnesses and its rejection of the appellant’s version was not being challenged on
appeal. The only issues were the premeditation question as well as the incorrect
conviction on the robbery with aggravating circumstances. To decipher the proper
context of the genesis of the submissions made by the appellant’s counsel, it is an
opportune time to quote the contents of the statement made to Mr Makamu, as the
appeal is centered around it. It reads:
‘On Monday 2017/12/04 I was at Diepkloof Zone 4 with my partner Mr Solly with whom we
started dating each other back in 2013. We have been drinking intoxicating alcoholic beverages
together for the whole day as I have visited him since Friday 1 December 2017. At about 19:00 I
received a call from the mother of my daughter Owethu who resides in Richards Bay, KZN where
I am originally from. Solly became aggressive as a result of this call. At the time we were sitting

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in the dining room. Solly ended up hitting me with a clinched fist and I also did the same to him
where we ended up fighting until at the bedroom. Solly then held me aside and I pushed him where
he hit the wall with his head and fell down. I opened the drawer, took three ties, tide(sic) his hands,
legs and neck. As I wanted to pull him with the tie, I noticed that he was no more breathing. I then
took his TV set, car keys and drove home at Braamfischerville, Dobsonville. I tried to contact him
but only to find his cellphone was ringing inside the M/vehicle which I took at his place and was
a Silver Toyota Corolla. On Saturday 9 December 2017, I drove to Richards Bay where I was
arrested the same day.’

[9] It is trite law that the question of whether the crime was premeditated or not
depends on the circumstances of each case.1 This Court considered a similar question
in numerous decisions already.2 The import of these decisions is that apart from pre-
planning, premeditation can be inferred from the proven facts of the matter. In
paragraph 13 of Kekana v the State (Kekana 2014), this Court said:
‘…[i]t is not necessary that the appellant should have thought or planned his action a long period
of time in advance before carrying out his plan. Time is not the only consideration because even a
few minutes are enough to carry out a premeditated action.’

[10] Counsel for the appellant submitted that there was no evidence of prior
planning or premeditation on the part of the appellant. In this regard, he argued that
the high court failed to take into consideration the circumstances that were set out in
the statement made by the appellan t to Mr Makamu. The circumstances amongst
others were that the deceased was killed during a fight between two lovers; the
assault and the tying up of the deceased was due to a fight between them. According
to him, if one had regard to these facts, the opportunity to use force occurred

to him, if one had regard to these facts, the opportunity to use force occurred
suddenly and it would seem, unexpectedly so when the appellant pushed the

1 Raath v S [2008] ZAWCHC 72; 2009 (2) SACR 46 (C) para 16.
2 Kekana v The State (629/13) [2014] ZASCA 158 (1 October 2014) para 1 3; S v Kekana [2018] ZASCA 148; 2019
(1) SACR 1 (SCA) para 21 ; Benedict Moagi Peloeole v DPP Gauteng [2022] ZASCA 117 ; 2022 (2) SACR 349
(SCA); [2022] 4 All SA 1 (SCA) para 42.

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deceased against the wall. I pause to mention that these submissions were startlingly
made for the first time in the hearing of the appeal in this Court. The appellant
attempts to seek refuge from a statement he disavowed during the hearing before the
high court.

[11] Be that as it may, I do not agree with the appellant’s submissions. Apart from
the fact that the appellant cannot have his cake and eat it, premeditation, like in the
circumstances of this matter, can be inferred from the facts found proven by the high
court. In coming to its decision, the high court took into consideration all the
circumstances of the murder, including the appellant ’s conduct during the relevant
period. Firstly, the deceased died because of ‘asphyxia due to ligature strangulation’.
The conduct of the appel lant at that time, ie stuffing a cloth or a necktie in the
deceased’s mouth and wrapping another necktie around his mouth, on its own,
signaled an intention on the part of the appellant that the deceased should suffocate
and eventually die. The deceased’s body was tied and he was snuffed in the mouth
to prevent him from seeking any help. It is also a signal of the intention not only to
kill but of a well-orchestrated plan.

[12] Considering how the deceased was tied up on the hands and feet, there was
no way in which he would have had the strength to untie himself. The photographs
also depict that electrical cords were plugged into the wall and connected to the
heater. The probability that he had the intention to electrocute the deceased in
addition to the tying cannot be excluded. In my view, this was a carefully thought-
out plan to ensure that the death of the deceased materialised eventually, come what
may.

[13] Lastly, in addition to being incapacitated, the appellant locked the door of the
deceased’s bedroom and the butler door leading to the outside. In the Kekana 2014

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matter, the locking of the deceased in the room and further setting of the house on
fire after spilling petrol in the passage, kitchen , and dining-room, were regarded as
proof of premeditation. The Court concluded in that matter that the conduct indicated
that the appellant was ‘carefully implementing a plan to prevent [the deceased ]
escape and to ensure that she died in the blaze’.3

[14] There is no doubt that on the facts of this matter, there are overwhelming
proven facts whereupon the high court could infer premeditation. It is also clear that
the high court did not convict the appellant on the murder charge based on the
statement made to Mr Makamu only. It was but one piece of the puzzle to complete
the mosaic of what happened that day.

[15] The attack on the conviction of robbery with aggravating circumstances is that
a possibility exists that the intention to misappropriate the deceased’ s belongings
was formed after the deceased was killed, or at least, after the appellant believed the
deceased to be dead. The argument advanced is that, from the statement made to Mr
Makamu, it is clear that the deceased ’s belongings were taken after he fell.
According to the appellant’s counsel, this simply means that the intention to steal
was formed after the assault and not because of it, therefore, the appellant should
have been convicted of theft and not robbery with aggravating circumstances.

[16] The argument in relation to the conviction of robbery with aggravating
circumstances is misplaced. The evidence is clear that the deceased was not only
assaulted but his hands and feet were tied up. Tying is another form of overcoming
resistance from a victim, and this took place in this case before the properties of the
deceased were taken as indicated in the statement made to Mr Makamu. In addition,

3 Kekana v The State (629/2013) [2014] ZASCA 158 (1 October 2014) para 14.

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the room was ransacked and left in the state depicted in the photographs. What took
place clearly amounts to robbery with aggravating circumstances.

[17] The appellant’s conduct even after the killing, also ineluctably impelled the
finding that the murder and the robbery with aggravating circumstances had been
premeditated. If there was merely a fight bet ween two lovers that went wrong as
suggested on behalf of the appellant , various questions remain unanswered. These
are, why was it necessary for the appellant to take the deceased’s vehicle and also,
withdraw his money from the bank?

[18] Accordingly, t he challenge to the convictions of premeditated murder and
robbery wi th aggravating circumstances cannot be sustained. It follows that this
Court cannot interfere with the convictions of the appellant on both counts.

[19] In the results, the appeal is dismissed.



________________________
A M KGOELE
JUDGE OF APPEAL

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Appearances

For appellant: M Milubi
Instructed by: Legal Aid South Africa, Johannesburg
Legal Aid South Africa, Bloemfontein

For respondent: H H P Mkhari
Instructed by: Director of Public Prosecutions, Johannesburg
Director of Public Prosectutions, Bloemfontein.