1
REPUBLIC OF SO TH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NO: AA10/2023
(1)
(2)
(3) REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
In the matter between:
PHILIP MODIME
and
THE STATE APPELLANT
RESPONDENT
2
JUDGMENT
MULLERJ:
[1] The appeal against the convictions and sentences imposed on the appellant is with
leave to appeal granted by the trial judge. 1 The appellant was convicted of murder (count1);
housebreaking with intent to commit robbery (count 2) and robbery with aggravating
circumstances (count 3). He was sentenced to undergo 20 years imprisonment in respect of
count 1; 8 years imprisonment in respect of count 2 and 15 years imprisonment in respect
of count 3.2
[2] The appellant applied for condonation for the late filing of the notice of appeal which
was only filed on 21 November 2023. There appeared to have been a circular which was
issued that stated that the office of the chief justice is not responsible for the costs of the
transcription of the record. It took a considerable time for Legal Aid South Africa to resolve
the issue before the record could be transcribed. The application is not opposed by the
prosecution and there are, in addition, reasonable prospects of success of the appeal.
Condonation is therefore granted.
1 Order dated 23 August 2022.
2 The appellant was acquitted in respect of count 4 and 5. The evidence adduced in respect of those counts is omitted for
purposes of this judgment.
3
[3] The prosecution relied mainly on the single evidence of an accomplice Thaluki Joel
Mashaba 3 who testified as a so-called section 204 of the Criminal Procedure Act,4 witness
which provides that:
"(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a
witness on behalf of the prosecution will be requl red by the prosecution to answer questions which
may incriminate such witness with regard to an offence specified by the prosecutor-
(a) the court, if satisfied that such witness is otherwise a competent witness for the prosecution , shall
inform such witness-
(i) that he is obliged to give evidence at the proceedings in question;
(ii) that questions may be put to him which may incriminate him with regard to the offence
specified by the prosecutor;
(iii) that he will be obliged to answer any question put to him, whether by the prosecution, the
accused or the court, notwithstanding that the answer may incriminate him with regard to
the offence so specified or with regard to any offence in respect of which a verdict of guilty
would be competent upon a charge relating to the offence so specified;
(iv) that if he answers frankly and honestly all questions put to him, he shall be discharged
from prosecution with regard to the offence so specified and with regard to any offence in
respect of which a verdict of guilty would be competent upon a charge relating to the
offence so specified; and
(b) such witness shall thereupon give evidence and answer any question put to him, whether by
the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate
him with regard to the offence so specified by the prosecutor or with regard to any offence in
3 Hereinafter called "the witness".
4 Act 51 of 1977 (Hereinafter called' the CPA").
4
respect of which a verdict of guilty would be competent upon a charge relating to the offence so
specified.
(2) If a witness referred to in subsection (1 ), in the opinion of the court, answers frankly and honestly
all questions put to him-
(a) such witness shall, subject to the provisions of subsection (3), be discharged from
prosecution for the offence so specified by the prosecutor and for any offence in respect of
which a verdict of guilty would be competent upon a charge relating to the offence so specified;
and
(b).the court shall cause such discharge to be entered on the record of the proceedings in
question."
[3] The witness was warned by the learned judge when he commenced his evidence:
"Sir you have agreed to act as a Section 204 witness for the state. You are warned that you should tell
the truth, and nothing but the truth and you should give your full cooperation. That was the basis of your
agreement to act as a Section 204 witness. Should you at any stage not comply and cooperate the state
may have you declared as a hostile witness or withdraw the agreemen t with you. Do you understand
Sir?
MR MASHABA: The explanation is understood .
COURT: Thank you and you are also warned that you still have your constitutional rights. So you may
elect to call on your constitutional rights. Do you understand Sir?
MR MASHABA : Yes. I understand."
5
[4] Both warnings given to the witness, in my view, were inadequate. It was held in R v
Qongwana 5 that although section 254 of Act 56 of 1955 (which was the predecessor of section 204)
did not expressly require that a witness must in advance be informed of the substance of the
section, that it was proper and indeed common practice to do so.6
Section 204 makes it peremptory for the witness to be informed of its substance. The wording of
section 204(1 )(a) that states "the court ... shall inform such witness ... " dictates that it is
peremptory to inform the witness of the contents of subsection (1 }(a)(i)-(iv). 7 The purpose of
the explanation is to afford the witness the opportuni ty to reflect upon the importance of
giving truthful and satisfactory testimony which incriminates him/her in the commission of
an offence or offences and what the possible consequences may be if he/she gives
unsatisfactory evidence. 8
[5] The warning given to the appellant in casu was no more than a regurgitation of the
oath to tell the truth and nothing but the truth, without any reference to the four points
mentioned by the subsection.
[6] In respect of the second warning given, it is also by no means clear what the
constitutional rights were to which reference was made by the learned judge. Since the
witness was not represented by a legal representative he could not have been aware of the
specific rights which he may choose to invoke.
5 1959 (2) SA 227 (A)
6 230D.
7 My emphasis.
8 S v Maunye and Others 2002 (1) SACR 266 (T) 278-280.
6
[7] It is to be noted, however, that nothing turns on the failures alluded to above, as it
emerged during the trial that the witness had testified in other trials concerning the same
incident and that he had been discharged from prosecution at the conclusion of those trials.
[8] I now turn to the facts of this case. The appellant pleaded not guilty to all the counts
and elected not to disclose his basic of defence in terms of section 115 in respect of counts
1, 2 and 39. However, certain formal admissions recorded in writing were made in terms of
section 220 of the CPA. The identity of the deceased as well the correctness of the findings
as contained in the post mortem report that the deceased died as a result of "blunt force
trauma to the head11 were admitted. A photo album and key thereto compiled by constable
Matlala was also admitted. The appellant also made further admissions in terms of section
220 that the safe as well as the Isuzu bakkie depicted in Exhibit H (photograph 3 and 4) are
the property of the deceased which were taken on the day the offence was committed. It
was also admitted that the photo album Exhibit C depicts the farm of the deceased known
as Sumadi Farm.
[9] The first witness called by the state was constable Lesetja who testified that he
attended a complaint at Sunwadi Farm. He was stopped on his way to the said farm by a
lady who identified herself as the ex-wife of the deceased . She identified the deceased who
was on the backseat of her vehicle and who had already passed away. He then proceeded
to the farm where he found various other policemen in attendance at the farmhouse which
was in disarray with doors having been broken.
9 In respect of counts 4 and 5 the appellant disclosed a defence. It is unnecessary to refer to the substance of the defence
due to his acquittaJ on those counts .
7
[1 O] The witness testified next, after being warned in terms of section 204 of the CPA. He
explained that he was with Phineas Molawane on 2 February 2017 who informed him that
there is work to be done by him at a farm where there is a safe containing money. But first
they had to meet two other gentlemen. They travelled with a motor vehicle to a spaza shop
where they met two unknown persons who were introduced to him as Tshepo Rasodi and
Phillip Modime (the appellant) . They boarded the vehicle and discussed that there is a farm
where there was money in a safe. The appellant informed him to wait for a boy named
Thapelo who is the younger brother of Tshepo and who worked on the farm and who will
accompany them to the farm on the following Sunday. Thapelo informed them that the
farmer is an elderly man who stays alone and that he had observed when he helped the old
man with chores in the house. that there was a lot of money in a safe.
[11] On Sunday they contacted each other between 17h00 and 18h00 and met at a
tavern and proceeded from there in a vehicle to the farm where they stopped at the first
gate. Tshepo and the appellant said they had medicine that make people sleep and wanted
to perform a ritual. They all alighted from the vehicle. The witness was told to take the car
back. The witness waited in the vehicle (a gr,ey Mercedes Benz) that belonged to Phineas.
The rest of them proceeded into the farm where Thapelo was going to point out the gate to
the farm. After a little while Thapelo came and entered the vehicle. They then proceeded to
the main road which is 100 -200 metres from the gate. They waited 30-40 minutes at the
main road until Thapelo received a call on his cell phone. They then proceeded back to
Marapong. Upon their arrival he parked at Thapelo's home whereafter he proceeded to his
home to sleep. At about 2h00 he received a call from Phineas. After speaking to him he
proceeded to Terblanche to fetch a grinder. He proceeded from Terblanche to Shongwane
8
1 using his own vehicle. Whilst waiting at Mogoto Tavern a white Isuzu bakkie arrived driven
by Phineas which flashed lights at him. He followed the said vehicle to an RDP house.
Present at the house was the appellant and Tshepo as well as two unknown men. A big grey
safe was on the floor inside the house. The safe was cut open by the appellant using the
grinder. Inside the safe were papers and a rifle together with ammunition. The appellant,
Tshepo and the two unknown men loaded the safe on the white Isuzu bakkie. They left the
house together. It was the last occasion that he saw the appellant. The witness and Phineas
proceeded back to the home of the witness at Lephalale.
[12] During cross examination it was put to the witness that he testified in two related
cases where Phineas and Thapelo were charged and convicted. It was also put to him that
he testified in those trials that Phineas used the grinder to cut the lock of the safe to open it.
The legal representative of the appellant put it to the witness that he told the police that
"Phineas, Tshepo, Phillip (the appellant) and the other two unknown persons then took the
grinder and cut the lock of the safe" The witness insisted that the appellant used the grinder
to cut open the safe.
(13] It was put to the witness that the appellant was present in the Mercedes Benz from
Marapong to the gate to the farm where they alighted. Thapelo pointed out the farmhouse
after they walked for a distance towards the farmhouse where the deceased stayed. After
Thapelo had pointed out the house of the deceased to the others he returned to where the
witness was waiting in the motor vehicle. The appellant informed the other two (Phineas and
Tshepo) that they needed to perform a ritual before they proceed to the house. Phineas said
he was wasting time and that they are there to commit a robbery. Because they refused to
9
allow him to perform a ritual the appellant decided that he is not going to take part in the
robbery. He then walked back where he left the witness with the vehicle but was unable to
find the vehicle.
[14) The witness disagreed with him and stated that he and Thapelo waited at the tarred
road which is about 100-200 metres from where he offloaded them at the gate earlier for
about 30-40 minutes until they received a call and they then drove away. It was put to the
witness that whilst the appellant was at the tarred road a white Isuzu bakkie stopped next to
him which was driven by Phineas. In the bin of the bakkie was a safe. Phineas told him to
get into the vehicle otherwise he would be killed by farmers if they find him on the road.
Whilst talking to him, Phineas opened the drivers' side door and invited him into the vehicle.
The inside light came on and he noticed blood on the trousers and shoes of Phineas. He
decided to get into the bin of the bakkie. They proceeded to Shongwane 1 where the safe
was offloaded at an RDP house. The safe was opened when the witness and the others
arrived there. The appellant denied that he was involved in the killing of the deceased or the
housebreaking and the robbery of the deceased and that he opened the safe.
[15] The witness confirmed that the appellant told them that he has muti that can make
someone to sleep. The witness also confirmed that he was unaware that anyone of them
was in possession of a firearm.
[16] At the request of the defence the police statement of the witness was handed in as
an exhibit. The said statement inter alia contained certain information the nature of which
was hearsay evidence.
10
[17] At the closure of the state case application was made for the discharge of the
appellant in terms of section 17 4 of the CPA. The application was dismissed with reasons to
follow at the conclusion of the trial. It is a ground of appeal that the learned judge failed to
give reasons for the refusal. There is no substance in this ground of appeal. The common
cause facts were such that the accused be put on his defence. The reasons provided in the
judgment also dealt with the evidence. The appellant suffered no prejudice.
[18] The appellant testified in his defence and called no witnesses. He testified that he
proceeded with the state witness, Phineas, Thapelo and Tshepo towards Vaalwater where
they turned off onto a di rt road where they stopped. Thapelo was going to show them the
gate to the farm. They walked along a road which took them to the farm until Thapelo
pointed out a gate to them. Thapelo then returned to the vehicle. They proceeded further
until they realised that they were near the house. The appellant was in possession of a
bottle containing water that he acquired from a sangoma. The purpose of the muti was to
make people sleep. For the muti to be effective they needed to bathe naked using that
water. An argument ensued because the others refused to bathe using the muti. The
appellant refused to enter anywhere without the muti. They told him to stay where he is if he
does not want money. He decided to return back to the car along the way they came. He
discovered that the car was no longer there where they departed and he then proceeded to
walk along the tarred road like he is going back to Lephalale . After he walked for a long time
he saw a bakkie coming. Phineas was the driver. He stopped and opened the door so that
the appellant could enter the bakkie. Phineas invited him to enter through the driver's door.
He saw blood on the trousers and shoes of Phineas and decided to rather board the vehicle
by sitting in the loading bin of the vehicle where the safe was. He, Phineas and Tshepo
11
drove to an RDP house at Shongwane and entered the said house. The safe was taken from
the bakkie into the house. They were assisted by two boys who stayed in the RDP house.
Phineas drove off in the bakkie and later returned with the witness who was following the
bakkie in a vehicle. They did not want him nearby when they cut open the safe because of
the muti issue. The appellant remained outside the house with the two boys. He was given
six Black Label beers. Inside the RDP house they continued to cut open the safe. He did not
see anything apart from bullets which remained with the owner of the house. At 4h00 when
people started to wake to go to work he proceeded to Marapong. He had no idea what
happened inside the farmhouse. He only saw the blood on the trousers and a sneaker of
Phineas. He had no idea where the blood came from. They had no time to discuss it.
[19] During cross examination the appellant stated that he was requested by Phineas and
Tshepo to participate in the robbery because of the muti he had. It was put the appellant
that the muti was for the farmer not for them. The appellant testified that they were
supposed to pour the water over themselves whilst naked before putting their clothes on
again. When they break in the person inside the house cannot hear you and even dogs do
not hear you. He testified that he was only told about a safe and that a single person stays
on the farm. He was never told that there is a bakkie at the farm. He realised when Phineas
and Tshepo stopped next to him on the road that the bakkie and the safe which was on the
bakkie came from the farm where they had gone to. He also realised when he observed the
blood on Phineas that things did not go well.
[20] When it was put to the appellant that he associated himself with whatever they had
done he answered that he was far from home and that he was walking. He decided to make
12
use of the transport offered to him. It was put to the appellant that the sudden refusal to use
the muti is improbable since the appellant was asked to join the robbery because he had
muti. He replied that they refused for reasons unknown.
[21] He testified that he proceeded to the RDP house with them because they used a
different route that did not go through Lephalale. He remained with them until 5h00 and
took the bus home. When asked if he helped to load the safe back onto the bakkie after it
was open he denied any participation.
[22] The court asked the appellant how the muti was going to be used. He explained that
he acquired the muti from the sangoma on the same day the robbery was to be committed.
He was also given three small sticks after he informed the sangoma that he, Phineas and
Thapelo were going to enter the house. He was required to place the sticks inside a two-litre
container. Each of them had to keep a stick in their underwear after bathing with the water
to have the desired effect. The effect of the muti would have been that the minute they
entered through the gate that neither a dog nor the old man will wake up. The muti acted as
a repressor so that nobody will wake up once it has taken effect. It is not like a sleeping pill.
The person will not wake up after going to sleep once the little stick is placed in the
underwear.
[23] The learned judge accepted the evidence of the witness (which included certain
hearsay evidence)10 and rejected the evidence of the appellant as false beyond a
reasonable doubt.
10 I will return to the hearsay evidence elsewhere in the judgment.
13
(24) Mr Legodi on behalf of the appellant pointed out that the learned judge erred in not
applying the cautionary rule pertaining to accomplices. It was held in R v Ncanana: 11
"What is required is that the trier of fact should warn himself ... that it should be warned, of the special
danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a
possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by
reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This
special danger is not met by corroborat ion of the accomplice in material respects not implicating the
accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of
the requirements of sec 285 does not sufficiently protect the accused against the risk of false
incrimination by an accomplice. The risk that he may be convicted wrongly although sec 285 has been
satisfied will be reduced, and In the most satisfactory way, if there is corroboration Implicating the
accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not
give evidence to contradict or explain that of the accomplice. And it will also be reduced, even In the
absence of these features, if the trier of fact understands the peculiar danger Inherent in accomplice
evidence and appreciates that acceptance of the accomplice and rejection of the accused is, in such
circumstances , only permissible where the merits of the former as a witness and the demerits of the
latter are beyond question." '2
(25] There is no indication in the judgment that the learned judge as trier of fact warned
herself of the special danger of convicting the appellant on the evidence of an accomplice.
The crucial question that arose is whether any reliance can be placed on his evidence. Of
great importance is that certain portions of the evidence of the accomplice is common
cause.
(26) It is common cause that:
11 1948 (4) SA 399 (A).
12 405-406.
14
(a) the witness as well as the appellant were part of a group of five men who planned
and cons pi red to rob the deceased at his home;
(b) they proceeded to Sumadi farm where the deceased resided in a grey Mercedes
Benz on Sunday evening 6 February 2017;
(c) the appellant, Phineas, Tshepo and Tshepelo disembarked from the vehicle and
proceeded into the farm;
(d) the deceased died on 6 February 2017 due to blunt force trauma to the head;
(e) the witness waited where they disembarked until Tshepo returned;
(f) the witness and Tshepo drove back to their respective homes;
(g) the Isuzu bakkie and the safe depicted in exhibit C2 and 4 both of which are the
property of the deceased ;
(h) Phineas who was the driver of the said bakkie had blood on his trousers and
sneaker;
(i) the appellant was a passenger in the Isuzu bakkie that conveyed the safe to an RDP
house situated at Shongwane 1 where the safe was offloaded and placed inside the
RDP house;
0) Shongwane is 120-130 kilometres from the farm;
(k) Phineas thereafter drove away with the bakkie and returned together with the witness
and a grinder;
(I) the appellant was present at the RDP house where the safe was opened with the
grinder.
(m)the appellant was taken home by Phineas.
15
[27J The appellant disputed that he was present when the deceased was killed during the
robbery or that he benef itted from the robbery. No direct evidence was presented by the
prosecution that the appellant participated in the events at the house where the deceased
was attacked but relied on circumstantial evidence to prove his participation . The witness
however testified that the appellant assisted to load the safe onto the bakkie before it was
removed from the RDP house after it was opened.
[28] The hearsay evidence contained in the witness statement of the witness was
accepted by the learned judge as corroborating evidence on the basis that the hearsay
evidence has been admitted by the defence in terms of section 3 of the Law of Evidence
Amendment Act13 as the statement was introduced by the defence without demure by the
prosecution. The learned judge, furthermore, relied on S v Ndhlovu and Others 14 to allow
hearsay evidence in the interest of justice.
[29] The prosecution made no application for the hearsay evidence to be admitted at any
time during the presentation of case for the prosecution. The learned judge In my respectful
view overlooked the important cautionary words expressed by Cameron J in Ndhlovu supra:
"Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The
trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be
done for the first time at the end of the trial, nor in argument, still less in the court's judgment, nor on
appeal. The prosecution , before closing its case, must clearly signal its intention to invoke the provisions
of the Act, and, before the State closes its case, the trial Judge must rule on the admissibility, so that the
accused can appreciate the full evidentiary ambit he or she faces."15
13 Act 45 of 1988 (Herelnafter called' the Hearsay Act".
14 2002 (6) SA 305 (SCA) par 50.
is Para I 8.
.. 16
[30] The witness statement was introduced by the defence as proof of a previous
inconsistent statement in connection with one aspect only. It will be recalled that it was put
to the witness that he did not mention, in his police statement, that the appellant opened the
safe with the grinder at the RDP house (which was denied by the appellant).
[30] The excerpts of his statement which the trial judge admitted are the following:
And:
And: "Phineas said he is going with me. He took the rifle and the ammunition with him. He drove me back to
Marapong. He said to me that he and Tshepo and Phillip were arguing because it was the wrong safe,
but they said they must take that one. He still wanted to search for another safe, but it was too dark."
"During the day Tshapelo called me and told me that those guys have made shit because they have
killed the old man. We called each other to talk about what happened . I went to Terreblanches ' place to
see Phineas. I asked him what had happened , because I have heard from Thapelo that the old man is
dead.
He said it cannot be, because, because he only hit him twice with a shifting spanner. I then go back to
my home. I took Tshepo on the phone; he said to me that it is Phineas who killed the old man. I asked
him how; he said that he and Phillip entered the house because they have had strong muti for the old
man to sleep. Phineas was waiting at the gate.
They did enter the house and tied the old man that was sleeping, after he was tied Phineas entered and
just started to assault the old man and further they then start to load the safe on the old man's bakkie
and went to Shongoane "
And finally:
17
"Later in the police cells, me and Phineas were talking about the case and Phineas said that it was
Tshepo and Phillip that had killed the old man. After about three weeks then Tshepo was arrested and
put in the cells with us. I asked him about the vehicle, he said he and Phillip had sold it at Wlnterveldt. I
know that Tshepo and Phillip are still commu.nicating with each other."
(31] The hearsay portions of the statement contained in the said the police
statement does not constitute evidence unless the hearsay evidence is admitted by the
court in terms of the provisions of the Hearsay Act. Put differently; the default position is that
hearsay evidence is inadmissible unless admitted in the interest of justice. 16
[32] I am unable to agree with the learned judge that it is in the interest of justice to
admit the hearsay evidence aforesaid, on the basis that the statement was admitted by the
defence. The statement was presented as proof of an inconsistency contained therein and
not for the purpose of admitting the hearsay statements contained in the statement. The
rule against self-corroboration limits the probative value of the rest of the statement. 17
(33] The prosecution failed to apply for the admission of the hearsay evidence prior
to the conclusion of the state case. The appellant, accordingly, had no opportunity to deal
with the admissibility of the hearsay evidence prior to it being admitted or to present
evidence to refute that evidence. It is to my mind neither in the interest of justice that the
hearsay evidence outlined above be allowed nor to attach any probative value to that
evidence.
16 Malchatini v Road Accident Fund 2002 (I) SA 511 (SCA) par 21.
17 "The general rule is that a witness is not allowed to testify that on a previous occasion he made an oral or written
consistent with his evidence in court.' Per Schwikkard PJ and van der Merwe SE Principles of Evidence 3rd ed
(2009)104.
18
[34) The fact that the witness omitted to specifically state in his police statement that
the appellant took part in grinding open the safe does not detract from the credibility of his
evidence. He conveyed who participated in that endeavour without going into detail what
each person present has done. The person who wrote down his statement appears not to
have wanted to elicit more from him. I do not consider that to be a material deviation from
his written statement.
[35] The witness testified that when Thapelo joined him and they then proceeded to
near the main road which was 100-200 metres from there where they waited for 30-40
minutes when a call was received by Thapelo. They then proceeded back to Marapong .
[36] The witness testified that the appellant told other members of the group that he
has muti to make 'somebody ' sleep and not wake up until after they have done whatever
they have done whatever they want. The appellant testified he was invited along because he
was known to be able to obtain muti to make someb.ody sleep from a sangoma who was
known to the appellant. The muti never made the deceased sleep because the muti never
made it to his house.
[37) When questioned the appellant changed his evidence that the muti will make
them indetectable to the extent that dogs will not even bark when they enter the premises.
[38) The witness received a call at 2h00 whereafter he proceeded to Terblanche to
fetch a grinder and from there he proceeded to the RDP house where he met the members
of the group. He was not informed by any of them that the appellant no longer is entitled to
any of the proceeds or that there was an argument at the farm about administration of the
muti. The witness said that the appellant assisted to grind open the safe.
19
[39) The probabilities must be considered by the court in the light of the common
cause and proven facts as pointed out by Muller JA in S v Essack and Another18 with
reference to Caswell v Powell Duffryn Associated Colleries Ltd (1939) 3 ALL ER 722 at 733,
that:
"Inference must be carefully distinguished from conjecture or speculation . There can be no inference
unless there are objective facts from which to infer the other facts which it is sought to establish. In
some cases the other facts can be inferred with as much practical certainty as if they had been actually
observed. In other cases the inference does not go beyond reasonable probability . But if there are no
positive proved facts from which the inference can be made, the method of inference fails and what is
left is mere speculation or conjecture ."
(40) The common cause facts are objective facts from which other facts may be
inferred. The dissociation of the appellant by refusing further to participate in the robbery
because Phineas refused to take part in the ritual to bathe with the muti is inherently
improbable as no doubt whatsoever exists from the common cause facts that the appellant,
Phineas, Tshepo, Thapelo together with the witness all cons pi red to rob the deceased of
money which was held in a safe in his house. The appellant and Tshepo were specifically
recruited at the insistence of Phineas to join them in committing the planned robbery to
obtain and administer muti which would have made them invisible to not only the dogs of
the victim but also to the victim himself, (or to make them sleep) because the appellant was
able to acquire such from a sangoma only known to him.
[41] They arranged the date of the robbery and agreed to meet and travel together to the
farm where the appellant, (who was in possession of the muti) together with Phineas,
18 1974 (!) SA I (A) 16C-E.
20
Tshepo and Thapelo proceeded to the farmhouse on foot under the cover of darkness. No
evidence was presented that any member of the group armed themselves before setting out
to rob the deceased. Their failure to take weapons along accord with the probabilities that
they were confident that there will be no resistance because the deceased and his dogs will
be unaware of their presence.
[42] There was absolutely no reason advanced (save to state that Phineas said that
they are there to rob) for the very people who from the time that they have planned the
robbery and going through the trouble of carrying the container with the muti along with
them to near the farmhouse , suddenly without any provocation, rhyme or reason to change
their minds to refuse to apply the muti moments before the robbery commenced and to
abandon the appellant to his own devices to get home from the farm. It happened without
discussion despite all of them having relied totally on the magical powers of the muti for
protection that suddenly left them all vulnerable to detection.
[43] No one has thought of telling the witness who was waiting at the tar road to
keep a lookout for the appellant who was on his way back to the vehicle. It will be recalled
that the witness testified that Tshepo received a call whilst they were waiting at the tar road
and that they then went home. It is highly unlikely that he was informed that the appellant is
on his way to the vehicle because he refused to take part in the robbery. Tshepo would have
asked the witness to wait for the appellant if he was informed of the unexpected
development because the farm was 120 kilometres away from where the RDP house is
situated. The call to Tshepo was no doubt made after the robbery was successfully
completed to inform him (and the witness) that they may leave because they are able to
21
convey the safe which they were unable to open, from the farm. (The safe was too big to be
conveyed in the boot of the Mercedes Benz).
[44) The version of the appellant that he first observed blood on the trousers and
sneaker of Phineas when he was offered a lift whilst walking along the tar road is also wholly
improbable . It is too much of a co-incident that they encountered him where he happened
to walk along the road. Phineas welcomed him back into the fold like the prodigal son by
offering the appellant not only a lift in the stolen vehicle but took him along where the safe
was opened. Phineas must have been in a hurry to get away from the farm as quickly as
possible. It is simply nonsensical for Phineas to have opened the driver's side door of the
bakkie when he invited the appellant to enter the vehicle through the driver's side door
when the appellant could have entered onto the back (where he was seated) or he could
have entered by means of the passenger door just as quick.
[45] There would have been no reason for the appellant to go to and remain at the
RDP house until the early hours of the morning other than to assist with unloading the safe
and taking part in grinding open the safe and to assist in discarding the safe.
[46] The appellant took part in the robbery and travelled in the stolen vehicle that conveyed
the robbers to the RDP house where the stolen safe was opened with a grinder by the
appellant and others present.
[4 7) The evidence of the appellant that he disassociated himself from the robbery
and that he was offered a lift by shear chance by Phineas whilst walking home after the
robbery is improbable. In addition, his version that he proceeded to the RDP house with the
robbers where the safe was off-loaded and opened by means of a grinder without taking
22
part take part is not only improbable in the face of acceptable contradictory evidence of the
witness that the appellant actively took part in opening of the safe, it is false beyond a
reasonable doubt.
[48] This court is satisfied that in applying the test enunciated in R v 8/om19 that the
inference sought to be drawn must be consistent with all the proven facts and that the
proven facts must be such that they exclude every reasonable inference from them save the
one sought to be drawn, that it has been proven beyond a reasonable doubt that the
appellant took part in the robbery when the deceased was murdered. They conveyed the
stolen safe in his bakkie to the RDP house where they opened the safe and later discarded
it. The appellant acted throughout in common purpose with the other robbers. The
appellant and this co-robbers may not have intended the criminal result (of murdering the
deceased) , but there is no doubt that they must have foreseen the possibility of the criminal
result if they should be detected by the deceased. In Dewnath v Sit was held that:
"The most critical requirement of active association is to curb too wide a liability. Current Jurisprudence,
premised on a proper application of S v Mgedezi, makes it clear that (i) there must be a close proximity
in fact between the conduct considered to be active association and the result; and (ii) such active
association must be significant and not just limited participation removed from the actual execution of
the crime."
[49] I am, however, of the view that there is insufficient evidence adduced by the
prosecution how entry was gained into the house. The prosecution has therefore failed to
prove beyond a reasonable doubt that the appellant is guilty of housebreaking with intent to
rob. (count 2)
19 1939 AD 188, 202-3.
= 23
In my judgment the appeal against the convictions in respect of count 1 and 3 should be
dismissed whilst the appeal against the conviction in respect of count 3 be upheld.
[50] I now turn my attention to the appeal against the sentences imposed. If the
learned judge erred, then she has erred on the side of leniency in respect of the sentence
imposed on count 1. Murder committed during a robbery is a serious offence. The
deceased was an elderly person who resided alone on a farm. He was attacked at night
whilst asleep in the relative safety of his home. His firearm as required by law was locked
away in a safe. He was killed because of greed to take what belongs to him. In the end of
the day a life was taken for safe that contained papers worthless to the robbers. The
appellant is not a first offender. His personal circumstances are not such that a lesser
sentence should be imposed. This court must convey that attacks on vulnerable elderly
farmers will not be tolerated.
In the result the following order is made:
1. The appeal against the convictions and sentences in respect of count 1
and 3 is dismissed.
2. The appeal against the conviction in respect of count 2 is upheld.
3. The sentence of 8 years imprisonment is set aside.
4. The sentences on count 1 and 3 to run concurrently.
I, concur
I, Concur 24
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
J. NGOBENI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
A VANWYK
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPELLANT
INSTRUCTED BY
FOR THE DEFENDANT
INSTRUCTED BY
HEARING DATE
DELIVERED DATE 25
M. P LEGODI
LEGAL AID SOUTH AFRICA
JJ JACOBS
OPP, POLOKWANE
23 MAY2025
17 JUNE 2025