REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(l)
(2)
(3) REPORT ABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED: YES/NO
04-06-2025
DATE
In the matter between:
ROBERT SELBY MASIPA
And
THE STATE '-· PD. PHAHLANE
SIGNATURE CASE NO: A208/2023
APPELLANT
RESPONDENT
Delivered: This judgment was prepared and authored by the Judges whose names are
reflected herein and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on Caselines,
The date for hand-down is deemed to be 03 June 2025.
JUOGMENT
PHAHLANE, J
Page j,. of 1.6
[1] This matter comes before this court by way of leave to appeal granted on petition
against the conviction and sentence imposed by the Pretoria North Magistrate 's Court
on 30 October 2021. The appellant who was legally represented during trial
proceedings was accused 3. He was convicted on one count of murder read with the
provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 ("the
CLAA") and sentenced to fifteen (15) years imprisonment.
[2] The conviction of the appellant flows from the incident that occurred on 16 March
2014. The first State witness, Ms Gadifele Daisy Moropa {"Ms Moropa") testified that
on this day, she received a report that the deceased was being assaulted on the
premises of accused 1. She proceeded to the house of accused 1 with a neighbour , Ms
Maria Maphempeni ("Ms Maphempeni ") and upon arrival, they found the appellant
standing at the gate. The appellant refused them entry into the yard and informed Ms
Moropa that 'accused 1 is angry and he might kill her'.
[3] They stood at the gate and witnessed the incident as it unfolded. They observed
accused 1 assaulting the deceased by kicking him on his body and stabbing him on the
head with a garden fork. They also witnessed accused 2 assaulting the deceased . Ms
Moropa further testified that at some stage, the appellant opened the gate and left
the scene, at which time the deceased was still alive. She left the scene at the same
time to go and fetch her phone in order to call the police. She also called the mother
of the deceased . She explained that when the deceased' s mother arrived, she wanted
to enter the yard of accused 1 to approach him, but she ("Ms Moropa") stopped her.
[4] Ms Moropa's evidence was corroborated by Ms Maphempeni , who added that she
also saw a fourth person unknown to her, also assaulting the deceased. She further
testified that there was a group of about twenty people who were standing outside
the premises and observing the assaults on the deceased.
[5] The evidence of these two witnesses that accused 1 and 2 are the ones who assaulted
the deceased , and that the appellant was standing at the gate during the assaults is
further corroborated by the appellant.
[6] The appellant testified that on the day of the incident, he was in the company of
accused 2 when accused 1 arrived in his motor vehicle. Accused 2 requested accused 1
to take them to the shops. As they were driving, they came across a group of people
assaulting the deceased next to the area called "Marry Me", in Morula View. Accused
1 approached them and requested them to hand over the deceased to him so that he
could take him to the police station.
[7] The appellant was under the impression that accused 1 was taking the deceased to
the police station but instead, he drove to his house. Upon arrival at his house,
accused 1 drove into the yard and closed the gate and said he wanted to interrogate
the deceased to find out how the deceased broke and gained entry into his own house.
Accused 1 started assaulting the deceased as he (the appellant) was standing at the
unlocked gate.
[8] He explained that as he was standing at the gate, a group of people gathered around
wanting to enter the premises of accused 1 to attack the deceased but he prevented
them from further attacking the deceased. Ms Maphempeni corroborates this version
that there were people outside the yard of accused 1.
[9] The appellant further explained that after accused 1 had assaulted the deceased , he
informed them that he was taking the deceased to the police station.
[10) In convicting the appellant s, the trial court rejected the version of the appellant as not
being reasonably possibly true and held that the appellant actively associated himself
with the actions of accused 1 by preventing people from entering the yard and not
assisting the deceased. The trial court further held that the appellant had common
purpose with his co-accused and stated that "the State did not have to prove common
purpose on the part of a participant in a common purpose who did not do the deed or
the killing". (underlining added for emphasis)
Page 3 of 1-6
[11] The trial court further held that the guilt of the appellant had been proved beyond a
reasonable doubt and convicted the appellant of murder with do/us eventualis without
elaborating or giving the reasons thereto.
[12] With regards to conviction, it appears from the grounds of appeal and the appellant's
heads of argument that the appeal is against a finding of fact and the law. The
appellant contends that the trial court erred in finding that the respondent has proved
its case against him beyond a reasonable doubt, thereby rejecting his version as not
being reasonably possibly true.
[13] The appellant further contends that the trial court misdirected itself in finding that he
had the intent to kill in the form of do/us e~entualis while the respondent failed to
prove that he foresaw the possibility that the deceased could die. Furthermore, that
the trial court misdirected itself in finding that he had common purpose to commit
murder, when it was never put to him that the respondent would be relying on the
doctrine of common purpose, and when no evidence was placed before the court to
prove same.
[14] It is trite law that a court appeal will not interfere with the trial court's decision
regarding a conviction, unless it finds that the trial court misdirected itself as regards
its findings or the law1. Even so, there are well-established principles governing the
hearing of appeals against findings of fact. In the absence of demonstrable and
material misdirection by the trial court, its findings of fact are presumed to be correct
and will only be disregarded if the recorded evidence shows them to be clearly wrong 2.
[15] As a court of appeal, this court must determine what the evidence of the State
witnesses was as understood within the totality of the evidence led, including the
evidence led by the defence, and compare it to the factual findings made by the trial
court in relation to that evidence, and then determine whether the trial court applied
1 R v Dlumayo and Another 1948 (2) SA 677 (AD) at 705-6.
2 See: S v Hadebe and Others 1997 (2) ACR 641 (SCA) at 645e-f; S v Monyane and Others 2008 (I) SACR
543 (SCA) at para 15; and S v Francis 1991 (I) SACR 198 (A) at 204e.
the law or applicable legal principles correctly to the said facts in coming to its
decision.
[16] While section 35(3)(a) of the Constitution 3 provides that "every accused person has a
right to a fair trial, which includes the right to be informed of the charge with
sufficient detail to answer it", section 84 of the Criminal Procedure Act 51 of 1977
dealing with the essentials of a charge requires that the charge(s) put to the accused
must set out sufficient particulars so as to inform the accused exactly what he is being
charged with, and to know what he would be pleading to.
[17] It is common cause that the record of the trial proceedings does not reflect how the
charge was put to the appellant and how the appellant pleaded to the offence
charged. Consequently, it is unclear whether the appellant was informed that the
State would be relying on the doctrine of common purpose or whether the trial
magistrate warned the appellant in that regard.
[18] A perusal of the charge sheet on all the days which the appellant appeared before the
learned magistrate, and before the trial proceeded, also does not reflect that the State
was going to place any reliance on common purpose. By the same token, there are no
annexures attached to the transcribed record of the proceedings to reflect that the
State intended to rely on common purpose.
[19] It is clear from a thorough reading of the record, that the issue of common purpose
was never put to the appellant at any stage during the trial, nor was it put to him
during cross-examination. However, it is evident that the issue was raised by the
magistrate for the first time during argument by the prosecutor.
[20] A perusal of the judgment of the trial court does not reflect that the trial magistrate
had explained the principles of common purpose to the appellant. It is for this reason
that the respondent, in argument on appeal, conceded that the magistrate should
have warned the appellant of the said principle and submitted that in the absence of
3 Act 108 of 1996.
Pages of :1..6
any evidence having been led to show that there was common purpose, the
respondent will accept that the magistrate misdirected himself.
(21] In light of the above concession, it was submitted on behalf of the appellant that since
no averments were made by the respondent that the State would rely on common
purpose, the trial court misdirected itself because there are no facts from which to
infer that there was a common purpose between the appellant and accused 1 and 2. It
was further submitted that no evidence of a prior agreement or a common purpose to
assault or kill the deceased was presented by the State, particularly when regard is
had to the initial concession made by the respondent that from the evidence
presented ,
there was no prior agreement between the appellant and his co-accused to murder
the deceased .
(22) The court in Tshaba/ala v The State; Ntuli v The State4 stated that a prior agreement
is a liability requirement where people act in the furtherance of a common purpose
and held that:
11{49} It is trite that a prior agreement may not necessarily be express
but may be inferred from surrounding circumstances. The facts
constituting the surrounding circumstances from which the inferences
are sought to be drawn must nevertheless be proved beyond reasonable
doubt. A prior agreement to commit a crime may invoke the imputation
of conduct, committed by one of the parties to the agreement which falls
within their common design, to all the other contracting parties. Subject
to proof of the other definitional elements of the crime, such as
unlawfulness and fault, criminal liability may in these circumstances be
established "
4 [2019] ZACC 48.
Page 6 of 1-6
[23] Having regard to the above principle, it is undeniable that there is also no evidence
that the appellant associated himself with or conducted himself or even participated
in any manner that suggest that he had a prior agreement with the others to kill the
deceased.
[24] As indicated above, it is trite that at the beginning of the trial, there should be
certainty on the case the accused is supposed to meet, and the charge(s) must be
made clear so that the accused can decide how to plead. Failure to inform the accused
about the doctrine of common purpose has the consequence of violating the
accused1s right to a fair trial as the accused may not be aware that his actions or the
actions of those, he is associated with, could lead to criminal liability based on the
actions of the group.
(25] It is therefore imperative that the State must explicitly state its intention to rely on
common purpose, and it must provide the accused with sufficient information about
the specific actions and intent that will be used to prove that common purpose
existed. This ensures that the accused adequately prepares his defence. The court in
Mtatsi and Another v S5 was faced with a similar problem where there was never any
indication that the State would rely on the doctrine of common purpose. The court
stated that section 35(3)(a) of the Constitution which provides that the right to a fair
trial includes the right to be informed of the charge with sufficient detail to answer it,
is explicit. It held that for the appellant not to be furnished with sufficient details of the
charge, indeed prejudiced him and violated his right to a fair trial. It further held that
finding the appellant guilty on the basis of common purpose resulted in a gross
travesty of justice.
(26] This court referred with approval, to the decision in S v Ndaba 6 where the court
established the principle that the State must explicitly allege and prove common
purpose in its indictment or summary of substantial facts when relying on this legal
basis for criminal liability. This court stated that:
5 (A 120/2019) [2024] ZAGPPHC I 038 (7 October 2024) at para 34.
6 1981 (3) SA 803 (C).
Page 7 of 1-6
"The allegation of common purpose has to be made by the State in
the indictment, or at least in the summary of substantial facts
furnished to the accused."
[27) Regarding the State's failure to make the averment in a charge sheet that it will be
relying on common purpose, the Supreme Court of Appeal in Msimango v 57 held that:
{14} It is common cause that in convicting the appellant on count 3, the
regional magistrate relied on the doctrine of common purpose even
though it was never averred either in the charge sheet or proved in
evidence. It was impermissible for the regional magistrate to have
invoked the principle of common purpose as a legal basis to convict
the appellant on count 3 as this never formed part of the state's case.
{15} Undoubtedly, the approach adopted ~y the regional magistrate of
relying on common purpose which was mentioned at the end of the
trial is inimical to the spirit and purport of s 35{3}{a) of the
Constitution of the Republic of South Africa, Act 108 of 1996 (the
Constitution) under the heading 'Arrested, detained and accused
persons'. In fact, it is subversive of the notion of the right to a fair trial
which is contained in s 35{3)(a) of the Constitution which provides in
clear terms that:
'(3) Every accused person has a right to a fair trial, which
includes the right -(a) to be informed of the charge with
sufficient details to answer it.'
[28) Having regard to the above principle, I concur with the appellant's submission because
common purpose cannot be established through speculative or flimsy inferences, but
it must be supported by credible evidence of agreement or active association . The
mere fact that the appellant happened to be present at the crime scene, and was
7(698/2017)[2017]ZAS A 181;2018(1)SAC R276( CA)(l Decernber2017)atpara 14& 15.
Page 8 of :L.6
standing at the gate, cannot serve as a basis for holding him liable for the crime
committed by accused 1 and 2.
[29] I therefore align myself with the decision in Mtatsi and Msimango, and I am of the
view that the appellant's rights to a fair trial were violated. A consideration of the
surrounding circumstances and the evidence presented does not show the existence
of a prior agreement to hold the appellant liable based on common purpose.
Consequently, I am of the view that the trial court misdirected itself in its findings on
the facts and holding that the appellant had common purpose with his co-accused.
[30] This brings me to the second aspect of common purpose which relates to active
association , disassociation, and the trial court's finding that 'the State did not have to
prove common purpose'. As indicated above, the trial court held that the appellant
did not disassociate himself from the assault that was perpetrated on the deceased.
This finding in my view, was a mistake in law.
[31] For a person to be actively associated with common purpose, such common purpose
must first be established . This means that before it can be said that a person did not
disassociate himself from the actions of others, he must have associated himself first -
with the actions of others to form a common purpose with them. The difficulty lies
with the application of the legal principles, that is, the doctrine of common purpose to
the proved facts.
[32] In this regard, the trial court was obliged to consider -in relation to each individual
accused whose evidence could properly be rejected as false, and in particular, the
appellant -if there were proved facts or evidence by the State against the evidence of
the appellant, in order to assess whether there was a sufficient basis for holding the
appellant liable on the ground of active participation in the achievem ent of a common
purpose. Furthermore , the trial court was obliged to consider the causal connection
between the actions of the appellant, if any, and those of his co-accused, and the
offence which was committed rather than accept without any evidence being led, -
that the appellant and his co-accused had acted in furtherance of a common purpose.
Page q of ::t..0
[33] In light of the above, I concur with the submission made on behalf of the appellant
that a person can only disassociate himself after he had formed a common purpose
with others to commit a crime, and in this case, there is no evidence that the appellant
actively associated himself with the actions of accused 1 and 2 to kill the deceased. In
light thereof, the respondent was correct to concede that no evidence was placed
before the trial court to prove that the appellant actively participated in the
commission of the assault.
[34] The court in 5 v Thebus8 explained the doctrine of common purpose as follows:
"{18) The doctrine of common purpose 9 is a set of rules of the common law that
regulates the attribution of criminal liability to a person who undertakes
jointly with another person or persons the commission of a crime. Burchell
and Milton10 define the doctrine of common purpose in the following terms:
"Where two or more people agree to commit a crime or actively
associate in a joint unlawful enterprise, each will be responsible for
specific criminal conduct committed by one of their number which
falls within their common design. Liability arises from their 'common
purpose' to commit the crime. 11
Snyman11 points out that "the essence of the doctrine is that if two
or more people, having a common purpose to commit a crime, act
s 2003 2 SACR 3 l 9 (CC).
9 Also known as "common intent" or in Afrikaans as 'gerneenskap like opset" or "gerneenskap like doel." This
doctrine is said to have been received into South African law from English law and recognised as part of the
common law in R v Garnswortby and Others 1923 WLD 17 at 19. Ln this regard see also Burchell and Milton
Principle of Criminal Law 2"0ed at 393; Kriegler and Kruger Suid-Afrikaanse Strafpro es 6'"ed at 404.
10 Principles of Criminal Law, Burchell and Milton 211ded, at 393. See also 4th Edition at 457.
11 Snyman Criminal Law 4'11ed at 26 I· see also S v Safatsa and Others 1988 (I) SA 868 (A) at 894, 896 and 90 I·
S v Mgedezi n 9; S v Banda and Others 1990 (3) SA 466 (B) at 500-1.
together in order to achieve that purpose, the conduct of each of
them in the execution of that purpose is imputed to the others."
[19] The liability requirements of a joint criminal enterprise fall into two
categories. 12 The first arises where there is a prior agreement, express or
implied, to commit a common offence. In the second category, no such prior
agreement exists or is proved. The liability arises from an active association
and participation in a common criminal design with the requisite
blameworthy state of mind. 13 In the present matter, the evidence does not
prove any such prior pact.
[35) The appellant testified that when accused 1 approached the mob and requested them
to hand over the deceased to him s~ that he could take him to the police station, he
was under the impression that accused 1 would indeed take the deceased to the
police station but instead, drove to his house where he proceeded to assault the
deceased. At the time, the appellant was standing at the gate. Both Ms Moropa and
Ms Maphempeni corroborated the appellant's evidence that he was standing at the
gate during the assaults.
[36] It is trite that in any criminal case, the State has a duty to prove its case against the
accused beyond a reasonable doubt. In this case, the respondent did not present any
evidence that the appellant inflicted any harm to the deceased, or that he assisted
accused 1 and 2, or had instigated them to assault the deceased . Neither is there
evidence presented before the trial court to prove that the appellant had participated
in any manner to indicate a shared purpose with accused 1 and 2.
12 Magmoed v Jan e van Rensburg and Others per Corbett CJ at 81 OG:
"[a] common purpose may arise by prior agreement between the participants, or it may arise upon an impulse
without prior consultation or agreement."
13 See Kriegler and Kruger 11 16 at 405· See also S v Mgedezi n 9 at 705-6 and S v Ngobozi 1972 (3) SA 476
(A).
[37] To show that it was never the case of the State to rely on common purpose, it is
important to note that in addition to not having confronted the appellant about
common purpose during cross-examination, the respondent still failed to address the
trial court on the issue of common purpose until the trial magistrate requested such
an address from the respondent right at the end of the trial in order to invoke the
principle of common purpose as a legal basis to convict the appellant. This approach
by the trial court clearly contradicts the principles laid down in Msimango supra, and
what the SCA said should be avoided.
[38] With that in mind, the respondent correctly stated that the State had no evidence as
to how the deceased came to be in the yard of accused 1. The only evidence of the
circumstances which lead to the deceased finding himself on the premises of accused
1 is that of the appellant. In my view, the appellant's undisputed explanation of how
the deceased was brought to the yard of accused 1 and his evidence that was
corroborated by Ms Moropa and Ms Maphempeni that the appellant remained at the
gate at the time of the assault, should have been taken into consideration by the trial
court.
[39] It is also my considered view that the appellant should have been given the benefit of
doubt because standing at the gate of accused 1 cannot serve as a basis for holding
him liable for the crime committed by accused 1 and 2. His explanation was simply
that he stopped Ms Moropa from entering the yard because accused 1 was angry and
he was afraid that he might kill her.
[40] It is on record that when the mother of the deceased attempted to enter the yard of
accused 1, she was also stopped by Ms Moropa from entering because Ms Moropa
held the same view as the appellant -that accused 1 may kill her. What cannot be
ignored is the lack of evidence which points to the appellant blocking the gate to
prevent the deceased from exiting the yard to escape -to suggest that the appellant
had common purpose and intention to kill the deceased with his co-accused .
Page 1..2 of 1..6
[41] The basic principle in determining whether the accused's version is reasonably
possibly true was expressed by the SCA in 5 v Trainor14 as follows:
"A conspectus of all the evidence is required. Evidence that is reliable should
be weighed alongside such evidence as may be found to be false.
Independently verifiable evidence, if any, should be weighed to see if it
supports any of the evidence tendered. In considering whether evidence is
reliable the quality of that evidence must of necessity be evaluated, as must
corroborative evidence, if any. Evidence must of course be evaluated
against the onus on any particular issue or in respect of the case in its
entirety".
[42] On the other hand, where the State fails to prove its case against the accused and the
version of the accused is reasonably possibly true, the court must decide the matter
on the acceptance of that version and acquit the accused. The SCA in Shacke/1 v 515
stated the following:
"It is a trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere preponderance
of probabilities is not enough. Equally trite is the observation that, in
view of this standard of proof in a criminal case, a court does not have to
be convinced that every detail of an accused's version it true. If the
accused's version is reasonably possibly true in substance the court must
decide the matter on the acceptance of that version. Of course it is
permissible to test the accused's version against the inherent
probabilities . But it cannot be rejected merely because it is improbable; it
can only be rejected on the basis of inherent probabilities if it can be said
to be so improbable that it cannot reasonably possibly be true .... On the
acceptance of this version there is no room for a finding of do/us in any
14 2003 (I) SACR 35 ( CA)· [2003] I All A 435 ( CA) at para 9 (26 September 2002)
15 (380/99) [2001] ZA CA 72: [2001] 4 All SA 279 (A); 2001 (4) A I ( CA); 2001 (2) SACR 185 ( A) at
para 30 (30 May 2001)
of its recognised forms. If follows that the conviction of murder cannot
stand".
[43) Having regard to the above principle in Shacke/1, there was still no basis to draw an
inference that the appellant associated himself with the commission of a crime. To
establish common purpose, the State had the duty to present sufficient evidence to
support the inference that the appellant was acting in concert towards a common
objective. Having failed in that regard, the requisites for a conviction based on
common purpose had not been met.
[44) With regards to the trial court's finding of guilt on the basis of do/us eventualis, it was
submitted that the respondent failed to present evidence that the appellant foresaw
that the deceased might be killed.
[45) Reading through the judgment of the magistrate, it is clear that the legal principle of
do/us eventualis was never applied by the magistrate . No attempt was made by the
magistrate to explain the basis of a finding of murder on do/us eventua/is. The
judgment concluded thus:
"Once again, due to limited time, I am not going to deal extensively with the
provisions of do/us. The court will just refer to the matter of Makgatho 2013
{2} SACR 13, Supreme Court of Appeal where Judge Shongwe described do/us
eventualis as follows: ........... .
After a careful consideration of the totality of the evidence presented in this
matter, the court is of the opinion that the guilt of the accused before court
has been proved beyond a reasonable doubt. Both accused is accordingly (sic)
then convicted on a count of murder, do/us eventualis"
[ 46) It is difficult to discern the basis on which the trial court based its conclusion to convict
the appellant of murder on do/us eventualis. Clearly, this was a misdirection by the
trial court because throughout the judgment, the concept of do/us eventua/is was not
enunciated. Moreover, it was never put to the appellant at any stage during the trial
that he foresaw that the death of the deceased might occur. Be that as it may, the
onus rests on the State to prove its case against an accused person beyond a
reasonable doubt. Furthermore, the State had to established that the appellant,
through his actions, unlawfully and intentionally, in the form of do/us eventualis ,
caused the death of the deceased, however, that was never proved since there was no
evidence at all placed before the trial court against the appellant . Accordingly , do/us
eventualis cannot find any application in the circumstances of this case because
common purpose was not even established .
[47] In the circumstances, I am of the view that trial court's finding amounts to an injustice
because the finding of murder on the basis of do/us eventualis is not only tenuous, but
it is also not borne out by the evidence. Consequently, I find that the trial court
misdirected itself in convicting the appellant and the appeal on conviction must
succeed. It follows that the sentence that was imposed as a result of the conviction of
the appellant cannot stand, and it should also be set aside.
[ 48] Accordingly, the following order is granted:
1. The appeal against conviction is upheld and set aside.
2. The appeal against sentence is upheld and set aside.
I agree, PD. PHAHLANE
JUDGE OF THE HIGH COURT
Page :1-5 of j.0
?f
SNI MOKOSE
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant : Adv. LA Van Wyk
Instructed by : Legal Aid South Africa
Email: LillianV@legal-aid .co.za
Counsel for the Respondent : Adv. A Coetzee
Instructed by
Heard on
Date of Judgment : Director of Public Prosecutions, Pretoria
Email: anncoetzee@npa.gov .za
: 06 May 2025
: 04 June 2025