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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: CC100/2018
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: YES
DATE: 26/06/20 25
In the matter between:
MOH ELEPI RAYMOND MILE APPLICANT
V
THE STATE RESPONDENT
JUDGMENT
MOSOPA J
[1] This is an application for leave to appeal only against sentence imposed by
the trial court . The trial matter in which the applicant was convicted of the
following counts, assault with intent to do grievous bodily harm and murder
read with the provisions of section 51(1) of Act 105 of 1997, served before
Broodryk A.J.
[2] Sequel to such a conviction the applicant was sentenced as follows;
2.1. Assault with intent to do grievous bodily harm 5 years
2.2. Murder 20 years imprisonment, and effective imprisonment
ordered was 25 years imprisonment. This is important to note
that in all counts the complainant is M[...] S[...] M[...] , who was
married to the applicant.
[3] This matter was allocated to me, by the Deputy Judge President for
adjudication as it served before an Acting Judge who is currently not acting in
such capacity at the current moment.
[4] Applicant was convicted and sentenced on the 14 October 2019 for the
offences he was charged with. Application for leave to appeal was filed out of
time by the applicant on the 09 October 2024, accompanied by an application
for condonation of the late filing. The state did not oppose such application
and was accordingly granted when this matter was heard.
[5] According to the indictment the first count of assault, was committed in August
2015 and the murder count was on the 10 December 2017, almost a period of
2 years and 4 months apart from each other.
[6] The application for leave appeal is only limited to the aspect that, the trial
judge erred in not ordering the sentences to run concurrently in terms of the
provisions of section 280 (1) of Act 51 of 1977. For completeness’ sake, the
section makes the following provision;
“(1) When a person is at any trial convicted of two or more offences or
when a person under sentence or undergoing sentence is convicted of
another offence, the court may sentence him to such several
punishments for such offences or, as the case may be, to the
punishment for such other offence, as the court is competent to
impose. ”
[7] After hearing arguments in this matter, I ordered that the application for leave
to appeal against sentence imposed is hereby refused and promised to
provide reasons for such an order at a later stage.
[8] In S v Moswathupa 2021 (1) SACR 259 (SCA) at 8 , the court stated that;
“Where multiple offences need to be punished, the court has to seek
an appropriate sentence for all offences taken together. When dealing
with multiple offences a court must not lose sight of the fact that the
aggregate penalty must not be unduly severe. ”
[9] In S v Mokela 2012 (1) SACR 431 (SCA) at 11 , the court noted that an order
that sentences ru nn concurrently is called for where the evidence shows the
relevant offences are “ inextricably linked in terms of the locality, time,
protagonists and, importantly, the fact that they were committed with one
common intent. ”
[10] The other question which need to be considered when ordering cumulative or
concurrent running of the sentence in the event of conviction of multiple
offences is whether the charges arouse out of a single criminal enterprise.
[11] The trial court when considering the concurrent running of the sentences,
stated that;
“I was asked by Mr Mokoena to blend my sentence with mercy and he
asked that I let the sentence in respect of count 1 and 2 run
concurrently. As to the question of concurrency, I seriously considered
it but decided in the end, and bearing in mind that there was two and a
half years in the past between the two incidents, as well as the fact that
the second count of murder was actually then the second incident of a
very serious violence perpetrated on his wife, not to order any such
sentence to run concurrently.”
[12] The marriage relations hip of the accused and the deceased i s the one w hich
can be labelled it as characterised by violence. The deceased would at time s
stand her ground and fight the applicant back. During the first incidence of
assault, the deceased was injured to the sense that she lost movement of her
fingers and was always wearing a hand guard as a result of that assault. The
murder incident, it was also because of the fight th e applicant had with the
deceased and applicant used a pair of scissors to stab the applicant to her
death.
[13] It is clear from the above that the incident s were not committed with a
common intent and did not arise out of a single criminal enterprise. There was
a pause between the tw o incidents and are therefore not inextricably linked in
terms of locality, time and protagonists.
[14] In S v Smith 2012 (1) SACR 567 (SCA), Plasket AJA when dealing with what
the test is, stated at paragraph 7, that;
“[7] What the test of reasonable prospects of success postulates is
a dispassionate decision, based on the facts and the law, that a court
of appeal could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal. ”
[15] In Mount Chevaux Trust (IT 2012/28) V Tina Goosen and Others, when
dealing with the threshold in applications for leave to appeal, Bert elsmann J,
stated that,
“[6] It is clear that the threshold for granting leave to appeal against
judgment of a High Court has been raised in the new Act. The
former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion… the use of the word “would” in the new statute
indicates a measure of certainty that another court will differ
from the court whose judgment is sought to be appealed
against.”
[16] On the proper analysis of the grounds of appeal and contentions made on
behalf of the applicant, I cannot find a sound, rational basis for the conclusion
that there are prospects of success on appeal and the application ought to
fail.
ORDER
[17] In the result the following order i s made;
1. Application for leave to appeal against sentence is hereby refused.
M.J. MOSOPA
JUDGE OF THE HIGH COURT,
PRETORIA
APPEARANCES:
FOR THE APPELLANT : ADVOCATE AUGUSTYN
INSTRUCTED BY : LEGAL AID SOUTH AFRICA
FOR THE RESPONDENT : ADVOCATE KABINI
INSTRUCTED BY : DIRECTOR OF PUBLIC PROSECUTIONS
Date of Hearing: 09 June 2025
Date of Judgment: 26 June 2025