IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A255/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
18..August 202s
DA TE SIGNATURE
In the matter between;
PALESA VILAKAZI
and
THE STATE
JUDGMENT
R. S Matlapeng AJ (M.Munzhelele J conqurring)
1
Appellant
Respondent
Introduction.
(1] The Appellant was convicted in the Regional Court, Springs, on one count of
murder and one count of robbery with aggravating circumstances. The State relied
on the provisions of sections 51 ( 1) and 51 (2) of Schedule 2 to the Criminal Law
Amendment Act 105 of 1997, colloquially referred to as the Minimum Sentences
Act, in terms of which a sentence of life imprisonment for murder and fifteen (15)
years' imprisonment for robbery with aggravating circumstances is prescribed,
unless the sentencing court finds the existence of substantial and compelling
circumstances justifying a lesser sentence. The learned Regional Magistrate in this
matter found no such circumstances in respect of count 1 and accordingly
sentenced the Appellant to life imprisonment. In respect of the robbery count, read
with the provisions of section 51 (2) of Schedule 2 to the Minimum Sentences Act,
the Appellant was convicted as charged and sentenced to fifteen (15) years'
imprisonment. It was ordered, in terms of section 280(2) of the Criminal Procedure
Act 51 of 1977, that the sentence on count 2 run concurrently with the sentence
imposed on count 1. The Appellant had an automatic right of appeal in terms of
section 309( 1) of the Criminal Procedure Act.
(2] The Appellant was legally represented during the trial. She pleaded not guilty to
the charges preferred against her but, notwithstanding her denial of the charges,
was convicted as charged.
Alleged misdirections
(3] The Appellant in her notice of appeal is only appealing against the conviction. It is
her contention that the learned Regional Magistrate misdirected herself in finding
that:
1. Appellant was acting in the furtherance of common purpose with Jabu
Maduna in the commission of these offences; thereby ignoring that co-
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perpetrator Jabu Maduna stabbed the accused while the appellant was
trying to stop him from stabbing the deceased. '
2. Again, the notice of appeal further provides that the trial Court misdirected
itself in accepting the evidence of the state witnesses Sibusiso Charles
Dlamini and Sibongile Mfene as true whereas they lied.
3. Further on the notice, it was said that the trial court misdirected itself in
rejecting the evidence of the appellant when she said that she was afraid of
Jabu Maduna .
4. Lastly, that the trial court misdirected itself in finding that the State
succeeded to prove its case beyond reasonable doubt.
Background facts of the case.
[4] In its attempt to prove the Appellant's guilt beyond a reasonable doubt, the State
called five witnesses. It is apposite to mention at the outset that I will not deal with
the evidence of the witnesses in the order in which they testified, as I do not
consider such an approach to be logical in the circumstances.
[5] Before any evidence was tendered, the Defense made certain admissions in terms
of section 220 of the Criminal Procedure Act 51 of 1977, namely: the identity of the
deceased, the chain of evidence, the post-mortem report, and the cause of death.
[6] Jabulani Patrick Maduna (hereinafter "Jabu") was the third witness to testify. His
evidence was that the Appellant was his girlfriend and that, some days before the
commission of the offences, the Appellant proposed to him that they should rob
the deceased, as the latter was in possession of a substantial amount of money
kept in a bag. The Appellant was at that time employed by the deceased at the
latter's funeral parlour. On the day of the incident, Jabu accompan ied the Appellant
to the funeral parlour. They informed the deceased that Jabu was hitchhiking to
Daveyton as he had no transport money and wished to visit his father, well knowing
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that no such visit was intended. The deceased, unaware of the impending tragedy,
agreed to the request.
[7] Jabu further testified that, on their way to Daveyton, the deceased was directed to
an area where there were trees. She was then ordered to stop the vehicle. The
Appellant removed the car keys from the ignition, whereupon Jabu secured the
deceased with the seatbelt. The deceased was robbed of the belongings described
in the indictment and was stabbed several times with a knife and a screwdriver,
because she refused to provide the Appellant and Jabu with the PIN numbers of
her bank cards.
[8] Thabang Ivan Moleko (hereinafter "Thabang ") also testified. In summary , his
evidence was that the Appellant and Jabu were renting a room from his
grandmother, where he also resided. Some days prior to the incident, the Appellant
suggested to him that the deceased was in possession of a large sum of money
and that they should rob her. Thabang declined, as he believed that cameras near
the funeral parlour would record the incident.
[9] Thabang further testified that, on the day in question, he saw the Appellant, Jabu,
and the deceased leaving in the latter's vehicle. Later that evening, the Appellant
came to his room and told him that they had tortured the deceased in order to
compel her to provide the PIN numbers of her bank cards.
[1 O] Sibusiso Charles Dlamini (hereinafter "Sibusiso") was the first State w itness to
testify. His version was that Jabu was his friend and that, on the day in question,
Jabu arrived at his residence in the company of the Appellant. Jabu informed him
that he had stabbed a person and that the family of that person was looking for
him. Sibusiso further testified that Jabu told him that he and the Appellant were
leaving for Daveyton.
[11] The fourth State witness to testify was Sibongile Mfene (hereinafter "Sibongile"). It
was common cause that she was a friend of the Appellant and that, after the
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incident, the Appellant and Jabu visited a traditional healer. Sibongile testified that
she accompanied them to a plot where certain rituals were performed.
[12] The final State witness was the Medical Practitioner who conducted the post
. mortem examination on the deceased. His findings were not disputed. The defense
merely sought clarification as to the type of object that could have caused the
injuries sustained by the deceased. After his testimony, the State closed its case.
[13] The Appellant testified in her own defense and was the only witness called for the
defense. Her evidence was , in essence, that the deceased had been her employer,
and that Jabu was her boyfriend. On 7 April 2020, Jabu informed her that he
wished to visit his father in Daveyton but did not have transport money . He
suggested that the deceased could be asked to take him along, as she would be
travelling to another office in Daveyton that morning.
[14] The Appellant further testified that, she and Jabu went to the funeral parlour, whe re
the deceased was informed that Jabu was seeking a lift to Daveyton. The
deceased agreed. According to the Appellant, while en route, Jabu directed the
deceased to a certain area. After the vehicle stopped, Jabu secured the deceased
with a seatbelt and began stabbing her with a knife. He then took her belongings.
[15] The Appellant's submissions were, in essence, that the State witness, Maduna ,
contradicted himself in his testimony regarding having taken a taxi with the
Appellant and one Nomalanga without inquiring where they were going, thereby
creating the impression that he was merely following instructions. It was further
argued that he claimed to have been following orders in carrying the knife to the
scene, as the Appellant had allegedly instructed him to use it to scare the
deceased. According to the Appellant, this was indicative of bias and self-interest
on the part of the witness.
The Appellant further contended that the post-mortem findings revealed seventeen
The Appellant further contended that the post-mortem findings revealed seventeen
(17) separate injuries, whereas Maduna testified that he stabbed the deceased
three times and that the Appellant stabbed her four times. It was argued that this
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inconsistency undermined the reliability of his evidence. The Appellant ma intained
that she did not participate in the attack and that she acted under threat from
Maduna.
It was further submitted that the court a quo ought to have approached Maduna 's
evidence with caution, as he was both a co-perpetrator and a single witness
implicating the Appellant. It was argued that this amounted to a misdirection, and
that the appeal ought therefore to be upheld.
[16] The Respondent, on the other hand, submitted that there was no misdirection by
the trial court. It argued that there was direct evidence from the second State
witness, corroborated by circumstantial evidence provided by other State
witnesses, namely Thabang Moleko and Sibongile Mfene, which evidence clearly
demonstrated that the Appellant was involved in the planning of the entire incident
against her employer. The Respondent further argued that the motive was to rob
the deceased of her money , and that the plan included the use of a knife, a
dangerous weapon, in the commission of the offences.
Discussion
[17] It is a trite law that the onus rests on the State to prove the guilt of the accused
beyond reasonable doubt. If the accused's version is reasonably possibly true, he
is entitled to his acquittal. See S v V 2000 (1) SACR 453 (SCA) at 455A-C.
[18] It is a trite principle that the determination of guilt in a criminal trial rests upon the
evaluation of the totality of the evidence,-including the credibility of witnesses, the
consistency and coherence of their accounts, and whether their version is possibly
true when weighed against the inherent probabilities and other objective evidence.
As articulated in S v Chaba/a/a 2003 (1) SACR 134 (SCA) at para 15 where it was
said that the correct approach is not to consider the evidence of the State and the
defence in isolation, but to weigh them together in determining where the balance
of probabilities lies.
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[19] It must be borne in mind that the approach to be adopted by a court of appeal when
it deals with the factual findings of a trial court is informed by the collective principle
laid down in the epoch-making and the pathfinding decision of R v
Dhlumayo & Another 1948 (2) SA 677 (A) at 705-706 when it held that:
'The trial court has advantages which the appellate court cannot have -in seeing
and hearing the witnesses and in being steeped in the atmosphere of the trial. Not
only has the trial court had the opportunity of observing their demeanour , but also
their appearance and whole personality. This should never be overlooked. The
mere fact that the trial court has not commented on the demeanour of the
witnesses can hardly ever place the appeal court in as good a position as it was .
Even in drawing inferences the trial court may be in a better position than the
appellate court, in that it may be more able to estimate what is probable or
improbable in relation to the particular people whom it has observed at the
trial. .. The appellate court should not seek anxiously to discover reasons adverse
to the conclusions of the trial court. Where the appellate court is constrained to
decide the case purely on the record, the question of onus becomes all-important.
In order to succeed, the appellant must satisfy an appellate court that there has
been 'some miscarriage of justice or violation of some principle of law or
procedure".
[20] This appeal consequently turns on the question whether Jabu 's evidence was
rightly accepted by the trial court. It was therefore incumbent upon the trial court to
properly evaluate the evidence of Jabu in the light of its alleged deficiencies, and the
criticisms voiced against it, in order to determine whether it measured up to the
standard required for its acceptability. If it did not measure up to such standard,
therefore the appellant should be acquitted and the appeal be upheld.
therefore the appellant should be acquitted and the appeal be upheld.
[21] The trial court delivered itself of a careful and well-reasoned judgment. It is
apparent, both from the terms of the judgment and the treatment of the evidence,
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that the court was at all times aware, when considering Jabu's s evidence, that it
was dealing with an accomplice who was also a single witness. It was fully
conscious of the dangers inherent in such evidence and the need to exercise caution
in the consideration and evaluation thereof.
[22] It was also aware of the criticisms directed at Jabu's evidence. The fact that some
have not been mentioned does not mean that they were not duly considered. As has
frequently been said, no judgment can be all-embracing. This Court's powers to
interfere on appeal with the findings of fact of a trial court are limited In R v Dhlumayo
1948 (2) SA 677 (A).
"A Court of appeal will not disturb the factual finding of a trial court unless the latter
had committed a misdirection, where there has been no misdirection on fact by the
trial Judge, the presumption is that ~is conclusion is correct. The Appeal Court will
only reverse it where it is convinced that it is wrong. In such a case where the
Appeal Court is merely left in doubt as to the correctness of the conclusion then it
will uphold it"
[23] Jabu explained in detail how he and Appellant pre-planned to rob the Deceased
some days before the commission of the offences, and his evidence is
corroborated in all material respects by Sibusiso and Thabang with regard to the
events prior to and after the tragic death of the deceased. Thabang 's evidence in
particular, demonstrates in clear and unequivocal terms that the Appellant
premediated the offences with Jabu and she is the one who was masterminding
the robbery of the Deceased.
Common Purpose
[24] Evidence for the state is that firstly, both Jabu and Thabang testified that the
appellant suggested the robbing of the deceased prior to the incident.
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Secondly, On the day of the incident, appellant accompanied Jabu to lure the
deceased into giving him a lift.
Thirdly, Appellant removed the car keys during the attack of the deceased as per
Jabu's testimony.
Fourthly, Thabang testified that appellant came to her and admitted that they
tortured the deceased to obtain PIN numbers for her bank cards.
Fifth, Sibusiso confirmed that the appellant was with Jabu shortly after the stabbing
and that they were fleeing and even went to a sangoma for cleansing rituals.
The only evidence which was aimed at showing that the appellant was not acting
in common purpose was that the appellant tried to stop Jabu from stabbing the
deceased and that she claims to be in fear of Jabu, which evidence was refuted
by Jabu and was inconsistent with the totality of the evidence on record.
[25] The court a quo was entitled to reject her denial if State evidence was consistent,
corroborated, and credible. Multiple State witnesses independently implicated her
in the planning and post-offence conduct. Her active conduct before and after the
stabbing fits the requirements for common purpose under South African law -
participation, association with the conduct, and intention to further the crime. As
stated in S v Thebus 2003 (2) SACR 319 (CC), the Constitutional Court affirmed
the approach adopted in S v Mgedezi 1989 ( 1) SA 687 (A), and the matter was put
beyond doubt by Moseneke J at 341 E, paragraph 34, where the learned Justice
stated:
"Provided the accused actively associated with the conduct of the perpetrators in
the group that caused the death and had the required intention in respect of the
unlawful consequence, the accused would be guilty of the offence". Thebus at 345,
para [45] as follows: "[45) A collective approach to determining the actual conduct
or active association of an individual accused has many evidentiary pitfalls. The
trial court must seek to determine, in respect of each accused person, the location,
trial court must seek to determine, in respect of each accused person, the location,
timing, sequence, duration, frequency and nature of the conduct alleged to
constitute sufficient participation or active association and its relationship, if any, to
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the criminal result and to all other prerequisites of guilt. Whether or not active
association has been appropriately established will depend upon the factual
context of each case."
Further at 341, para [34] d-g: "In our law, ordinarily, in a consequence crime, a
causal nexus between the conduct of an accused and the criminal consequence
is a prerequisite for criminal liability. The doctrine of common purpose dispenses
with the causation requirement. Provided the accused actively associated with the
conduct of the perpetrators in the group that caused the death and had the required
intention in respect of the unlawful consequence, the accused would be guilty of
the offence. The principal object of the doctrine of common purpose is to
criminalize collective criminal conduct and thus to satisfy the social 'need to control
crime committed in the course of joint enterprises'.
Credibility of State Witnesses
[26] Bearing in mind the advantage which a trial court has, of seeing, hearing and
appraising a witness, it is only in exceptional cases that this Court will be entitled
to interfere with a trial court's evaluation of oral testimony. see S v Robinson and
Others 1968(1) SA 666 (A) at 675 G - H. Interference with credibility findings
happens only in exceptional cases. The trial court observed the demeanour and
assessed internal/external consistency on the evidence of the state and defence
witnesses. Sibusiso's and Sibongile's testimonies are corroborated in parts by
other witnesses and the appellant's own admissions (e.g., that appellant was
presence with Jabu in the car, during the stabbing and torture of the deceased,
after the ordeal appellant and Jabu visited the traditional healer). Unless the record
reveals glaring contradictions affecting the core of their evidence, an appeal court
will not overturn such credibility findings. In the facts of this case there were no
material contradictions on issues in dispute.
Fear/ threats Defence
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[27] For duress to succeed, there must be credible evidence that the appellant acted
under immediate threat of serious harm , with no reasonable escape. The facts of
the case are that appellant was allegedly in a romantic relationship with Jabu,
discussed the robbery, days before and even suggested the weapon which is a
knife(dangerous weapon) to be used to induce submission. She travelled with the
state witness Jabu and the deceased willingly, and participated in conduct,
facilitating the robbery and even later bragged about the torture which occurred to
get what they wanted. There is no evidence that Jabu threatened her prior to the
stabbing in a way that negated voluntary participation. The trial court was justified
in rejecting the duress claim because it was inconsistent with her prior voluntary
conduct or actions.
Proof Beyond Reasonable Doubt
[28] The court should be satisfied beyond a reasonable doubt that in its essential
features, the story that the state has narrated is a true one. See R v Kristusamy 1945 A
D 549 at 556. Two independent witnesses (Jabu and Thabang) testified about the
appellant 's prior suggestion to rob. Post-offence conduct, both the appellant and
Jabu visited the traditional healer, immediately after this incident. During the
incident, the appellant physically removed car keys during the offence so that the
deceased could not drive away. The cumulative effect of the evidence supports the
trial court's finding that the State's case met the beyond reasonable doubt
standard.
Findings
[29] On these facts, applying R v Oh/umayo and related principles:
• There is no indication that the trial court ignored material evidence or
misapplied the law on common purpose or credibility.
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• The alleged "misdirections" largely challenge credibility findings - which
appellate courts rarely overturn unless the record reveals clear error. I have
found no error in the findings of the court a quo.
• The State evidence was corroborated, and the appellant's version was
improbable in light of the surrounding facts therefore, the court a quo was right
in rejecting the appellant's evidence and accepting Sibusiso and Mfene's
evidence.
• Therefore, the court a quo did not misdirect itself. The conviction appears to
align with the legal principles on common purpose, credibility assessment, and
proof beyond reasonable doubt.
I, therefore, find no merit in the appeal against the convictions.
[30] In the result I make the following order:
1. The appeal against conviction is dismissed on both counts.
2. The conviction by the court a quo is confirmed.
R.S MATLAPENG
Acting Judge of the High Court of South Africa
Gauteng Division, Pretoria
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I agree and it is so ordered,
Appearances:
M. MUNZHELELE
Judge of the High Court of South Africa
Gauteng Division, Pretoria
For the Appellant: Adv. S Simpson . Legal-Aid SA
For the State: Adv. A Coetzee. OPP Pretoria.
Date of hearing: 23 July 2025
Date of delivery: 18 August 2025
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