Dis. NOT REPORTABLE
SEA
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION KIMBERLEY)
CASE NO: CA&R 50/23
In the matter between:
MOTSHWARAKGOLE, LESEDI VIRGINIA First Appellant
MOTSHWARAKGOLE, BOITSHEPO Second Appellant
MABOGOLE, SIMON KENNETH Third Appellant
and
THE STATE Respondent
Neutral citation: Motshwarakgole and Others v The State (Case No. CA&R 50/23)
(31 January 2025)
Coram: Williams J et Nxumalo J
Heard: 29 July 2024
Delivered: 31January 2025
Summary: Trial in the Court a quo commenced without assessors as contemplated
in Section 93ter (1) of the Magistrates’ Courts Act 32 of 1944—murder
and other offences—life imprisonment and other determinate sentences-
automatic right to appeal—Section 309(1)(a) of the CPA—scope of
application and limitation—appeal upheld—convictions and sentences
set aside.
Page 2
ORDER
1. The appeal is upheld and the impugned convictions and sentences are set
aside.
2. The decision to institute prosecution de novo in terms of Section 324 of the
Criminal Procedure Act 51 of 1977," is left to the Director of Public Prosecutions
for this Division.
JUDGMENT
Per: Nxumalo J (Williams J concurring)
INTRODUCTION:
[1] The first appellant was convicted in the Magistrate Regional Court at Kudumane,
Northern Cape of the following: Count 1- Kidnapping; Count 2- Kidnapping;
Count 3- Kidnapping; Count 4- Murder contra Section 51(1) of the Criminal Law
Amendment Act. 105.of 1997;2 Count 5- Attempted Murder; Count 6- Attempted
Murder; and Count 9- Failure to lock away a firearm in a prescribed safe contra
Section 120(8)(a) of the Firearms Control Act 60 of 2000.° On 06 July 2020 she
was subsequently sentenced as follows: Count 1: 6 (six) years imprisonment;
Count 2:6 (six) years imprisonment; Count 3: 6(six) years imprisonment; Count
4: Life Imprisonment; Count 5: 10 (ten) years imprisonment; Count 6: 10 (ten)
years imprisonment; and Count 9: 5 (five) years imprisonment.
[2] |The second appellant was similarly convicted and sentenced by the said Court
on the said dates, as follows: Count 1 (Kidnapping)- 6 (six) years imprisonment;
Count 2 (Kidnapping)- 6 (six) years imprisonment; Count 3 (Kidnapping)- 6 (six)
' “the CPA”
? Act 105 of 1997
3 Act 60 of 2000
Page 3
years imprisonment; Count 4 (Murder contra Section 51(1) of Act 105 of 1997)-
Life Imprisonment; Count 5 (Attempted Murder)- 10 (ten) years imprisonment;
Count 6 (Attempted Murder)- 10 (ten) years imprisonment; and Count 8
(Reckless endangerment to person or property)- 5 (five) years imprisonment.
[3] The third appellant was also similarly convicted and sentenced as follows: Count
1 (Kidnapping)- 6 (six) years imprisonment; Count 2 (Kidnapping)- 6 (six) years
imprisonment; Count 3 (Kidnapping)- 6 (six) years imprisonment; Count 4
(Murder contra Section 51(1) of Act 105 of 1997)- Life Imprisonment; Count 5
(Attempted murder)- 10 (ten) years imprisonment; Count 6 (Attempted murder)-
10 (ten) years imprisonment; and Count 7 (Contravention of Section 120(3)(b)
of Act 60 of 2000)- 5 (five) years imprisonment.
[4] The appellants subsequently, albeit belatedly, delivered their notices to appeal
their convictions and sentences on 01 February 2021 as well as their application
for condonation for the late filing thereof. The appellants contemporaneously
delivered their applications for leave to appeal same. On 03 August 2021 they
were subsequently only granted leave to appeal their convictions and sentences
with regard to count 4 i.e. life imprisonment for murder contra Section 51(1) of
Act 105 of 1997. The remainder of their applications were dismissed.
[5] The appellants also applied for bail pending the outcome of the appeal and their
automatic right to appeal. This application was dismissed by the Court a quo
on 07 September 2021. They thereafter appealed the refusal of their bail
application. On 13 January 2023 this Court per Mamosebo J, set aside the said
refusal of bail and granted bail.
[6] It is common cause that the trial in the Court a quo commenced without
assessors as contemplated in Section 93ter of the MAGISTRATES’ COURTS
ACT 32 of 1944. It is also common cause that this issue was only canvassed
during the testimony of the second witness, whereafter the appellants
purportedly waived their rights to be tried by a judicial officer assisted by two