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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : SS 19/2015
DPP REF : 2014/215
APPEAL NO: A61/2024
In the matter between:
PREVOST CANDICE APPELLANT
and
THE STATE RESPONDENT
CORAM: MDALANA -MAYISELA, DOSIO ET MOOSA JJ
HEARD: Monday, 18 November 2024
DELIVERED: Friday, 28 March 2025
ORDER
[a] Condonation for the late filing of the appellant’s heads of argument is
hereby granted.
[b] The appeal against the conviction of murder is dismissed.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : NO
…………………….. ………………………...
DATE SIGNATURE
28 March 2025
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JUDGMENT
MOOSA J:
INTRODUCTION
[1] This is an appeal against the conviction of murder by the High Court,
Gauteng Division, Johannesburg , wherein the appellant was sentenced to an
effective term of life imprisonment.
[2] The appella nt appeared as accused two, together with her two co-
accused on charges of murder and robbery with aggravating circumstances;
and were convicted as charged . The trial court further found that the appellant
acted in furtherance of a common purpose with her co -accused .
[3] The applicant applied for leave to appeal against both her convictions
and sentence imposed, and which was refused by the court a quo on 06 April
2016. She further petitioned the Supreme Court of Appeal for leave to appeal
both the conviction and sent ence imposed; and special leave to appeal was
only granted in respect of t he conviction of murder (count 1 ).
[4] The appellant has additiona lly applied for condonation for the late filing
of the heads of argument. This application is rather sensibly not opposed by
the res pondent, having due regard to the contents of the affidavit that has been
deposed to by the High Court Unit Manager at the J ohannesburg Legal Aid
office.
ISSUES IN DISPUTE
[5] The respondent submits that there are three issues that this appellate
court has to consider.
[a] Whether the appellant and her co -accused acted in furtherance
of a prior agreement to commit the crime of murder , or alternatively
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whether the appellant acted in furtherance of a common purpose to
commit the said crime through active association;
[b] Whether the appellant lacked criminal capacity due to non -
pathological causes prior to, on the day or afte r the events of
04 September 2014;
[c] Whether the murder of the deceased was premeditated or
planned.
FACTUAL FINDINGS BY THE COURT A QUO
[6] The appellant and her co -accused lived in Boksburg where they rented
a flatlet in the backyard of a property . The appellant’s sister and her three
children also lived with them. At the time, the appellant was in a relationship
with accused three. She previously was in a relationship with accused one and
a child was born out of this relationship.
[7] The appella nt and her co -accused were struggling financially as they
were dependent on drugs. Amongst the three of the m, only accused three was
employed. Their financial woes were exacerbated by their growing debt. The
appellant and her co -accused tried to raise money by, inter alia; dressing
accused one up as a bride who begged for money at robots. This did not raise
sufficient funds to support their drug habit and other expenses.
[8] At the time, the appellant recalled that she previously met t he deceased,
a travelling jewellery sales lady who transported valuable items in her motor
vehicle. The appellant pitched a plan to her co -accused wherein she proposed
that they should threaten and rob her of the jewellery items that were in her
possession . This would enable them to sell the robbed items to raise money for
their debt, living costs and drug -habit.
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[9] In pursuance of their plan to rob the deceased and prior to engaging the
deceased to set up a meeting, t he appellant and her co -accused proceeded to
the deceased’s place of employment in order to scout her place of work .
Pursuant to such reconnaissance the appellant called the de ceased’s
employer, Jazcia Jewellery to request an appointment with the deceased. The
meeting was arranged for 04 September 2014. It was not common practice for
the deceased and her co -workers to meet with a client at their home, as it could
be dangerous. However, in this instance an exception was made as the
appellant was well kn own to the deceased, and a long -stand ing cli ent of the
deceased and Jazcia J ewellery. Subsequently firm arrangements were
concluded between the appellant and the deceased for them to meet at the
appellant’s residence in Boksburg.
[10] As arranged the deceased proceeded to the appellant’ s residence for
the meeting, but had difficulty in finding the address. As a result, the appellant
made arrangements to meet her at a service station. The appellant travelled
with accused three and met with the deceased thereat. The appellant further
instruc ted accused three to transport her sister and children to the clinic. She
then returned to her residence in the deceased’s company. The deceased
parked her Peugeot motor vehicle in the driveway and proceeded with the
appellant into her home, in order to sh ow her the various jewellery items that
she had for sale. Accused three arrived a short while later and parked his Golf
motor vehicle behind the deceased’s Peugeot.
[11] The deceased showed the appellant various items that she had on offer,
and despite t he fact that the appellant was full well aware that she did not have
the funds to purchase the chosen items, she proceeded to purchase jewellery
from the deceased. Further, t he appellant was full well aware that she did not
possess the necessary funds avai lable to purchase jewellery items, at the time
when she arranged the meeting with the d eceased.
[12] The deceased thereafter proceeded to her motor vehicle in order to pack
away the remainder of the items. Whilst the deceased was at her motor vehicle,
accused one approached her from behind and choked her. He thereafter
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proceeded to push her onto the backseat of her Peugeot. The deceased
dropped her car keys during this process, and the appellant proceeded to pick
up the keys in order to move the Peugeot . The appellant was unsuccessful in
her efforts to drive the Peugeot, and which caused accused three to request
her to move his Golf. Accused one then drove the deceased’s Peugeot.
[13] The trio then departed with the deceased from the appellant’s residen ce,
with accused one driving the Peugeot and the appellant following in the Golf. A
short while later accused one stopped the Golf and the appellant then
proceeded to enter the Peugeot. She sat on the driver’s seat, whilst accused
one moved to the rear sea t of the motor vehicle. She thereafter asked accused
one whether the deceased was dead, and apologised to accused one for
involving him. They continued driving and awaited the arrival of accused three,
who was travelling in the Golf. Whilst waiting for him the appellant phoned
accused three from the deceased’s mobile phone, querying his whereabouts.
[14] A short while later accused three met them at the Voortrekker off-ramp ,
and the appellant joined him as a passenger in the Golf, whilst accused three
followed them in the deceased’s Peugeot. After travelling for a while, accused
three stopped at a service station and purchased petrol, with accused one still
following them. They thereafter drove to a deserted veldt near Lenasia and
stopped therein. The appe llant thereafter proceeded to move the remaining
jewellery from the deceased’s Peugeot into the Golf. Accused one then poured
petrol over the Peugeot and set it alight with the deceased’s body therein.
Members of the South African Police Services (‘SAPS’ ) later found the
deceased’s motor vehicle with her badly burnt body therein.
[15] The appellant and her co -accused thereafter drove to Westonaria,
Fochville and to Parys where they proceeded to hide some of the jewellery.
They pawned some of the jewellery , bought narcotic drugs and also attended
at a casino in order to gamble. They subsequently returned to Parys in order to
collect more of the hidden jewellery to be pawned.
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[16] Members of the SAPS arrived at the appellant’s residence a few days
later and they recovered several empty jewellery boxes. In addition thereto they
found a receipt from KFC , and which contradicted what the appellant told them
regarding her movements. The appellant was duly arrested and she made a
confession shortly after her ar rest.
DEGREE OF PROOF
[17] It is trite that in order to succeed with the prosecution, the State has to
discharge the onus to establish the guilt of the accused beyond reasonable
doubt, and on the other hand the accused bears no onus but will be entitled to
a discharge if he presents an explanation of innocence, which is reasonably
possibly true. This trite legal test is more succinctly and elegantly stated by
Nugent JA in S v Mbuli1 as follows:
‘It is trite that the State bears the onus of establishing the guilt of the appellant
beyond reasonable doubt, and the converse is that he is entitled to be acquitted
if there is a reasonable possibility that he might be innocent. In whichever form
the test is applied it must be satisfied upon a consideration of a ll the evidence’.
‘An accused version can only be rejected if the court is satisfied that it is false
beyond reasonable doubt. An accused is entitled to an acquittal if there is a
reasonable possibility that his or her version may be true. A court is enti tled to
test an accused’s version against the improbabilities. However, an accused’s
version cannot be rejected merely because it is improbable’. 2
[18] In assessing the evidence, a court must in the ultimate analysis look at
the evidence holistically in order to determine whether the guilt of the accused
is proved beyond reasonable doubt. This does not mean that the breaking down
of the evidence in its component parts is not a useful aid to a proper evaluatio n
1 2003 (1) SACR 97 (SCA) ; See also S v Trickett 1973 (3) SA 526 (T)
2 Susha v S 2011 JOL 27877 (SCA)
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and understanding thereof. In S v Shilakwe3 at page 20, para [11], t he
Supreme Court of Appeal approved of the following dictum :
“But in doing so, (breaking down the evidence in its component parts) one must
guard against a tendency to focus too intently upon the separate and individual
part of wha t is, after all, a mosaic of proof. Doubts about one aspect of the
evidence led in the trial may arise when that aspect is viewed in isolation. Those
doubts may be set at rest when it is evaluated again together with all the other
available evidence. That is not to say that a broad and indulgent approach is
appropriate when evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of each and every component in a body of
evidence. But, once that has been done, it is necessary to step back a pace
and consider the mosaic as a whole. If that is not done, one may fail to see the
wood from the trees.”
[19] The quote from the judgment of Malan JA in R v Mlambo4 at 738 A and
B is a pposite:
‘In my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused. It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised tha t the ordinary reasonable man,
after mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime charged. He
must, in other words, be morally certain of the guilt of the accused. An
accused’s claim to the benefit of doubt when it may be said to exist must
not be derived from speculation but must rest upon a reasonable
inference which are not in conflict with, or outweighed by , the proved
facts of the case.’
[20] It is trite that an appellate c ourt is bound by the factual findings of the
court a quo, especially where these factual findings are dependent on
the credibility of the witnesses who testified. It is only in circumstances
3 2012 ( 1) SACR 16 (SCA)
4 1957 (4) 727 (AD)
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where it is clear that the court a quo misdirected itself or was clearly
wrong that a Court of Appeal is duty bound to interfere and re -evaluate
the facts5.
[21] It is trite that once a court is faced with circumstantial evidence it
naturally flows that it is duly called upon to draw inferences from the evidence
thus presented.
“In reasoning by inference there are two cardinal rules of logic which cannot be ignore d:
(1) The inference sought to be drawn must be consistent with all the proved facts. If it
is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable inference from
them save the one sought to be draw n. If they do not exclude other reasonable
inferences, then there must be doubt whether the inference sought to be drawn is
correct.”6
[22] The value of circumstantial evidence is often found in a whole range of
independent circumstances, all giving rise to the same conclusion. It is
imperative for the court to consider all these circumstances as a whole and not
to assess each in isolation.
“The court must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them together, and it is only
after it has done so that the accused is entitled to the benefit of any reasonable doubt
which it may have as to whether the inference of guilt is the onl y inference which can
reasonably be drawn. To put the matter in another way, the Crown must satisfy the
court, not that each separate fact is inconsistent with the innocence of the accused, but
that the evidence as a whole is beyond reasonable doubt inconsistent with such
innocence.”7
5 S v Liesching and others 2019 (1) SACR 178 (CC) at [94]
6 S v Blom 1939 AD 188 at 202 ; See also S v Mtsweni 1985 (1) SA 590 (A) at 593
7 S v De Villiers 1944 AD 493 at 508-509
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[23] In De Villiers supra at 508 it is said: “…even two particles of circumstantial
evidence -though taken by itself weigh but as a feather – join them together, you will find them
pressing on the delinquent with the weight of a millstone….”
[24] Circumstantial evidence is indirect proof from which a court is required
to draw inferences which, when weighed with all other evidence, may contribute
towards proving a fact in issue. The inference m ust comply with certain rules of
logic.8 The reasonable inference has to be drawn only from proved facts , and
not from facts based on suspicion.9
[25] Circumstantial evidence has on occasion been described as a chain, the
links of which consist of pieces of evidence. This is not correct as it implies that
the chain will be broken once one piece of evidence is rejected. It is better to
compare it with a braided rope: as the strands break, the rope weakens and
conversely, as strands are added, the stronger i t gets. The gist of the matter is
that one piece of circumstantial evidence may be inconclusive, but once other
evidence is added, it gains probative force.
[26] The ratio of Hendricks J in S v Nkuna 2012 (1) SACR 167 (B) sets out
the approach to c ircumst antial evidence, at para graph 121 as follows :
“The evaluation of circumstantial evidence must be guided by a test of
reasonableness. The onus on the State is not that it must prove its case with
absolute certainty or beyond a shadow of a doubt. All that is required is such
evidence as to satisfy the court and prove its case beyond a reasonable doubt.
It is trite law that the accused is under no legal obligation to prove his
innocence. The State must prove the guilt of the accused beyond a reasonable
doubt ”.
8 S v Burger 2010 (2) SACR 1 (SCA)
9 S v Mseleku 2006 (2) SACR 574 (D)
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FIRST ISSUE IN DISPUTE
Whether the appellant and her co -accused acted in furtherance of prior
agreement to commit the crime of murder, or alternatively whether the appellant
acted in furtherance of common purpose to commit the said crime through
active association?
[27] The essence of the com mon purpose doctrine is that, where two or more
people agree to commit a crime or actively associate in a joint unlawful venture,
each will be responsible for the ac ts of the others which fall within their co mmon
purpose or design10.
[28] The doctrine of common pur pose can be summarised as follows:
[a] If two or more people hav e a common purpose to commit an
offence and act in unison to achieve that goal then the conduct of
each in the execution of that goal is imputed to the others.
[b] Where the offence committed involves the causing of a certain
result then the conduct imputed also includes the causing of the
result.
[c] Where the conduct of one member of the group differs from the
conduct envisaged in t he common purpose then this may not be
imputed to the other members unless the latter were aware that
such conduct would be committed or foresaw the possibility that
it might be committed and reconciled himself to that possibility.
[d] No proof of a prio r conspiracy is required as such a finding may
be inferred from the conduct of a person/s.
10 S v Sefatsa 1988 (1) SA 868 (A)
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[e] A finding that a person acted with others in a common purpose
may be based on that person’s active association in the execution
of the common purpose. Regardin g a charge of murder, the active
association must have taken place while the deceased was still
alive and prior to the lethal wounds being inflicted by the other
members of the group.
[f] Where there was a common purpose to assault or commit
robbery and the conduct of one or more resulted in the death of
the victim then this death can be imputed to the other members
of the group but not so the negligence.
[29] In S v Mgedezi and Others 1989 (1) SA 687 AD at 705J -706A -B the
Court set out the requirements of common purpose as follows: “In the first
place, he must have been present at the scene where the violence was being
committed. Secondly, he must have b een aware of the assault on the inmates
of room 12. Thirdly, he must have intended to make common cause with those
who were actually perpetrating the assault. Fourthly, he must have manifested
his sharing of the common purpose with the perpetrators of the assault by
performing some act of association with the conduct of the others. Fifthly, he
must have had the requisite mens rea ; so, in respect of the killing of the
deceased, he must have intended them to be killed, or he mus t have foreseen
the possibility of their being killed and performed his own act of association with
recklessness as to whether or not death was to ensue”.
[30] It is trite that an accused may be convicted on the basis of common
purpose if they were present where the violence was being committed; they
were aware of the offence; they int ended to make common cause with the
perpetrator of the offence; they manifested their sharing of a common purpose
with the perpetrator by themselves performing some act of association with the
conduct of the perpetrator; and they had the requisite mens rea concerning the
unlawful outcome at the time the offence was committed.11
11 Scott & others v S 2011 JOL 27685 (SCA )
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[31] I now turn to deal with the following evidence , having dispassionately
read the record, in order to determine as to whether the appellant and her co -
accused had a prior agreement and had acted with common purpose in the
commission of the crimes:
[a] It is common cause that it was the appellant who initially hatched
the plan to rob the deceased, and thereby an agreement was concluded
between the appellant and her co -accused to rob the deceased of the
jewellery t hat she had for sale. T he appellant came up with the idea to
rob the deceased, as a result of discussions that were held with her co -
accused about making money.
Further, the direct evidence of accused one implicates both hi mself and
the appellant when he refers to the appellant and his co -accused as “we”
when they were hatching their plan. His further direct evidence was that
the appellant and accused three were the planners in their group.
See record : Volume 3, page 213, l ines 10 - 25
Volume 3, page 214, lines 9 - 19
Volume 4, page 345, lines 16 - 25
[b] The appellant and her co -accused proce eded to the deceased’s
workplace in order to look for the deceased’s motor vehicle. They did not
see the deceased’s vehicle and thereafter agreed to telephone her in
order to set up an appointment.
See record : Volume 4, page 346, lines 4 - 19
[c] It is clear that the appellant was integrally involved in the planning
and the execution of her plan to rob the deceased of jewellery, and was
aware at all material times of the how the plan was to unfold with the
participation of her co -accused.
See record : Volume 4, page 347 , lines 3 - 8
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[d] The appellant and her co -accused had detailed discussions as to
how they were to execute their plan and the appellant at all material
times was aware of the entire modus operandi of her group.
See record : Volume 4, page 348 , lines 8 - 25
See record : Volume 4, page 349, lines 1 - 3
[e] It is clear that at the time when accused one was choking the
deceased at the Peugeot , the appellant stood there and looked at what
was going on during the struggle between the deceased and accused
one. In addition th ereto she proceeded to pick up the keys of the Peugeot
and entered the vehicle to drive same.
She was unable to drive the Peugeot and thereafter associated herself
with what was happening by driving the Golf, and by following her co -
accused who were t ravelling in the Peugeot, with the deceased.
See record : Volume 4, page 354, lines 5 - 19
[f] At a certain stage, when a ccused one stopped the Peugeot the
appellant disembarked from the Golf and entered the driver’s seat of the
Golf, and asked accused one if “the deceased was dead” , and
apologised for involving him. She did not dissociate herself and
continued travelling with accused one in the Peugeot, whilst accused
three followed in the Golf.
[g] In addition thereto, she used the deceased’s mobile phone t o
phone accused three whilst they wai ted at the Voortrekker off-ramp , in
order to enquire about his whereabouts. She thereafter continued
travelling with her co -accused, and at a certain stage proceeded with
them to a service station, in order to purchase petrol.
See record : Volume 11, pages 919 – 938 (Exhibit “L”)
[h] The appellant removed the remainder of the jewellery from the
deceased’s motor ve hicle and placed it in the Golf, before the Peugeot
was set alight.
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[i] The appellant was present with her co -accused when they drove
into the veldt and the deceased’s motor vehicle was set alight, with her
body therein. She subsequently asked accused one if the deceased was
dead, and he confirmed that she was .
[j] The appellant thereafter continued t ravelling in the company of
her co -accused to Westonaria, Fochville and thereafter to Parys in order
to dispose of the proceeds of their crime. At a certain stage, she threw a
plastic packet containing items of jewellery, together with the deceased’s
mobil e phone along the road.
See record : Volume 11, page 937, lines 2 - 14
[k] Members of the SAPS stopped them whilst en -route and checked
their vehicle . They were allowed to proceed on their journey , and they
proceeded home .
See record : Volume 11, page 937, lines 15 - 17
[l] The appellant and her co -accused returned to the area where she
had previously thrown the jeweller y into the long grass . They retrieved the
jewellery and proceeded to Parys to hide and dispose of it in due course .
See recor d: Volum e 11, page 937, lines 17 - 17
[32] It is clear from the totality of the evidence viewed holistically that the
appellant was the one who hatched the plan to rob the deceased together with her
co-accused. This plan was further incubated when they proceeded to the
deceased’s wor kplace in order to look for her; with the subsequent agreement
between all the participants that the appellant would phone the deceased in order
to setup a meeting at her residence.
[33] On the fateful day the appellant is the one th at fetche d the deceased and
directed the aforementioned to her residence. I am reminded of the fact that the
appellant had instructed accused three to take her sister and children to the clinic.
Despite this errand, accused three returns a short while late r to the premises
without the appel lant’s sister and children. In my view this is a further indication that
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accused three was acting in terms of the plan that was previously hatched by the
appellant and her co-accused.
[34] The appellant is present at the time when accused one choked the
deceased from behind. She does not dissociate herself from accused one’s
conduct, but associates herself with such conduct by picking up the deceased’s
keys and attempting to drive the Peugeot. I am of the view that any person who did
not want to make common cause or who was not actively participating in the
commission of the crimes would have immediately dissociated himself or herself ,
at this stage. I n this instance one would have expected the appellant to walk away
from what was happening. However, she simply did not do so, but continued
actively participating with her co -accused.
[35] She drove the Golf and followed the Peugeot whilst accused one, three and
the deceased where therein. At this stage, she could have disso ciated herself if
she wanted to as she was alone in the Golf, and there was no compulsion for her
to follow the Peugeot. However, she continued to follow the Peugeot and at a
certain stage stopped the Golf, and entered the driver’s seat of the Peugeot and
asked accused one if the deceased was dead. Further, she apologised to accused
one for involving him. In my view, this utterance supports the evidence that the
appellant and accused three were the masterminds in the commission of these
crimes.
[36] At a certain stage when they reached the Voortrekker off-ramp , she used
the deceased’s cellphone to query the whereabouts of accused three. This conduct
is further indication that the three of them were acting in furtherance of a common
purpose. This view is fortified by the fact that they drove to a service station to
purchase petrol, and thereafter the appellant removed the remainder of the
jewellery from the Peug eot, before the deceased and the Peugeot motor vehicle
were set alight in the veldt.
[37] In addition, after the deceased’s motor vehicle was set alight the appellant
continued her association with her co -accused by disposing of the proceeds of
crime.
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[38] It is clear from the aforementioned summation that at all material times the
appellant had actively associated with her co-accused right from the outset when
the plan to rob the deceased was hatched, through the time when the deceased
was strangled in her presence and when the deceased was taken to the veldt
where both the deceased and the Peuge ot were set alight. There is simply not an
iota of evidence before us to support any argument that the appellant had
dissociated herself at any stage, during the commission of the crimes. I have also
duly noted the concession by the appellant’s legal repre sentative that there is no
evidence of dissociation. At all material times, on the available evidence it is clear
that she was a willing and able participant in the commission of the crimes.
[39] I am reminded that in the case of active participation, it must be shown, inter
alia, that the remote party was not merely present at the scene, but that he or she
committed some act of association and he or she intended to associate himself or
herself with the act of the immediate party or parties .12
[40] The appellant did not merely follow instructions as issued by her co -
accused. She acted independently on several occasions and knew what her role
was in the commission of the offences. She never per formed any action aimed at
dissociating herself from the actions of her co -accused. From the available
evidence it is clear that the appellant performed positive actions in the furtherance
of the crimes and in particular the murder.
[41] It is trite that i f the individual acts of each perpetrator amounts to an active
association with the acts of each other, and these acts had led to the death of the
deceased, they shared a common purpose. Each of them will then have the
required mens rea regarding the offence s. The acts of the co -accused, which had
caused the deceased’s death , must thus be imputed to the appellant.
[42] Resultantly, I am of the firm view that on the available evidence, the
inescapable conclusion is that at all material times the appellant had acted in
furtherance of common purpose to commit the said crimes through active
12 S v Le Roux & others 2010 (2) SACR 11 SCA at para 17 - 19
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association. Nothing more, nothing less!
[43] Accordingly, the trial court was correct in its finding that ‘on the totality of the
facts the only reasonable inference to be d rawn is that the appellant together with
two others acted in concert, acted in common purpose, to both rob, as well as kill
the deceased’.
SECOND ISSUE IN DISPUTE
Whether the appellant lacked criminal capacity due to non -pathological causes
prior to, on the day or after the events of 04 September 2014 ?
[44] It has been submitted by the appellant’s legal representative that the
appellant possibly lacked criminal capacity due to her excessive use of drugs
just prior to the commission of the crimes, and therefore lacked criminal
capacity. Further, that she was “slightly under the influence of drugs” at the time
when she made her confession/admission to Colonel Dube.
[45] I pause to mention that at no stage did the appellant or her erstwhile
legal represe ntativ e raise this issue at the commencement or during the trial . It
is trite that the defence of temporary non -pathological incapacity must be
specifically raised by an accused, and in this instance the applicant failed to do
so during the plea proceeding s. It is further noteworthy to mention that the
applicant never raised this issue in her application for special leave to appeal
to the Supreme Court of Appeal.
[46] It is clear from the record that the common cause evidence before the
trial court simply does not support such an inference or conclusion. The
appellant has always indicated that she was full well aware of what was
happening around her , and she knew what was happening during the
commission of the crimes. This is further fortified by the fact that the details in
her statement to the SAPS contradict any remote possibility of a lack of
appreciation and/or awareness of her actions.
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[47] To this end, I am reminded of the finding of the trial court that the
appellant was lucid and was in a position to appreciate the wrongfulness of her
conduct predicated on inferences to be drawn from the interaction of the
appellant with Natalie Bezuidenhout on the day of the incident, regarding the
whereabouts of the deceased.
[48] Accordingly, I am of the firm v iew that this point has simply been raised
as a red her ring, with a view to create unnecessary turbulence in the
adjudication of this appeal , and without any sound basis in law . My view is
further fortified by the fact that the appellant’s legal representa tive was unable
to draw our attention to any evidence on the record that supported the
contention that the appellant was suffering with temporary criminal incapacity
at the time.
[49] As such this issue requires no further discourse and stands to be
summa rily dismissed.
THIRD ISSUE IN DISPUTE
Whether the murder of the deceased was preme ditated or planned?
[50] It is inherently probable that the deceased’s robbery and murder would have
been preceded by some discussion and planning. This probability is underscored
by the way in which the murder was eventually carried out.13
[51] Accused one testified that prior to the day of the incident accused three had
informed him that “we ” have a plan. He understood fro m all the interactions that the
plan was one t hat was hatched by the appellant and accused three. In addition
thereto, accused three gestured in a cutting motion across the throat. He clearly
understood that the deceased was going to be killed.
See record: Volume 4, page 286, lines 1 – 24
13 S v Mambo and others 2006 (2) SACR 563 at [15]
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[52] Accused one in his statement stated that two days before the killing accused
three said the following: “We got the plan, the woman will come to our place and
the job will be done in the yard ” .
See record: Volume 4, page 287, lines 1 - 18
[53] On 04 September 2014, accused one grabbed the deceased from the back
and choked her whilst she was still in their yard. Thereafter, he put her into the
backseat of the Peugeot, before they drove out of the yard. It is clear that the action
of choking her i n the yard was in accordance with the plan that was hatched. The
appellant was present when the deceased was being choked and hence the only
reasonable inference to be drawn therefrom is that she was involved and aware of
the plan from its inception.
See record: Volume 4, page 288, lines 3 - 25
[54] A fact that comes to mind is the instruction that the appellant had given
accused three to transport her sister and children to the clinic. He duly obliged, but
returned to the residen ce a short while later an d parked the Golf behind the
deceased’s motor vehicle. It is clear that the plan was do the “job” in the “yard” and
therefore the appellant and the co -accused ensured that there was no one else at
their home, at the time when they commit the crimes.
[55] Having due regard to the totality of the evidence it is clear that the plan was
executed as per what accused three told accused one on 12 September 2014. It is
significant that with regard to each specific action aimed at the commission of the
offences, t he appellant and accused three were in communication and they
instructed accused one as to what he had to do.
[56] After burning the Peugeot with the deceased’s body therein, the appellant
and accused three had discussions about the jewellery and what mus t happen to
it. This conduct is clearly indicative that the appellant was involved in the planning
and execution of the offences and never dissociated herself in any way
whatsoever.
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[57] In the circumstances, t he inescapable inference is that there was definitely
some type of planning, and that the app ellant was part of the planning in the
commission of the crimes.
CONCLUSION
[58] It is common cause that the appellant made a confession/admission to
Colonel Dube and the contents of such statement was not disputed. Accordingly,
from the contents thereof it is clear that the appellant had first hand knowledge of
all the happenings prior to, of the fateful day and thereafter .
[59] I am of the view that on a proper reading of the aforementioned statement
the inescapable conclusion is that the appellant at all material times was an active
participant in the commission of the offences.
[60] It is clear in my mind that the appellant had actively associated herself with
the plan to rob and kill the deceased an d had acted in furtherance of such common
purpose. I rejec t the argument that the appellant possibly lacked criminal capacity
due to non -pathological causes prior to, on the day or after the events of 04
September 2014. I am of the view on the available ev idence that the crimes so
committed , were duly planned by the appellant and her co -accused, and that they
acted in terms of such plan , as they did, on 04 Septem ber 2014.
[61] Accordingly, I am satisfied that the court a quo correctly found that the guilt
of the appellant had been proved beyon d a reasonable doubt, and was correct in
rejecting the appellant s’ version.
ORDER
[62] In the result, I make the following order:
[a] Condonation for the late filing of the appellant’s heads of
argument is hereby granted.
[b] The appeal against the conviction of murder is dismissed.
I agree:
I agree: Cl MOOSA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
FRIDAY, 28 MARCH 2025
pp -----------
M MDALANA- MAYISELA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
FRIDAY, 28 MARCH 2025
D DOSIO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
FRIDAY, 28 MARCH 2025 21
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This judgment was handed down electronically by circulation to the parties’
representatives via e -mail, by being uploaded to the electronic file on Caselines
and by release to SAFLII. The date and time for hand -down is deemed to be
12h00 on Friday, 28 March 2025
APPEARANCES
Counsel for Appellant: Adv M Milubi
Instructed by: Johannesburg Justice Centre
56 Main Street
Johannesburg
Tel: 0118701480
Peterm4 @legal -aid.co.za
Counsel for Respondent: Adv R Barnard
Instructed by: Director of Public Prosecutions
Johannesburg
RBarnard @npa.gov.za
Date of Hearing: 18 November 2025
Date judgment scribed: 04 March 2025
Date handed down: 28 March 2025