IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
CASE NO.: CA&R 6/2020
In the matter between:
MILANI BEYI Appellant
and
THE STATE Respondent
JUDGMENT ON APPEAL
ZONO AJ:
Introduction
[1] This is an appeal against both the conviction and sentence. The appeal
emanates from Zwelitsha Regional Court. On 01 st September 2021, the
appellant, together with three (3) other accused persons were convicted on
two counts of murder, robbery with aggravating circum stances and attempted
murder. On 30th September 2021 the Regional Court sentenced the appellant
and the other accused persons.
[2] The Regional Court imposed a sentence of life imprisonment in respect of
count one(murder) in terms of section 51(1) of the criminal law amendment
Act 105 of 1997 reads with Part 1 of Schedule 2 thereof. In respect of count
two (murder) the appellant and other accused persons were sentenced to
undergo life imprisonment in terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 read with Part 1 of Schedule 2 thereof. In
respect of count three (robbery with aggravating circumstances) the appellant
and other accused persons were sentenced to undergo a period of 15 years’
imprisonment in terms of section 51 (2) read wi th Part II of schedule 2 of the
Criminal Law Amendment Act 105 of 1997. In respect of count four (attempted
murder) they were sentenced to undergo a period of 12 years’ imprisonment.
In terms of section 280(2) of the Criminal Procedure Act 51 of 1997 the
imprisonment sentences imposed in respect of count two, count three and
count four were directed to run concurrently with the sentence imposed in
respect of count one. In respect of the appellant the sentence of 20 years’
imprisonment that he was serving at the time of sentence was also ordered to
run concurrently with the sentences imposed in this matter. Effectively the
sentence imposed by the Regional Court was one term of life imprisonment
for each accused person.
[3] The appellant and other accused per sons were deemed unfit to possess
firearms in terms of section 103(1) of the Firearms Control Act 60 of 2000. In
terms of section 103(4) of the same Act an immediate search and seizure was
authorised for seizure of competent certificates, licences or autho risation
permits and ammunitions in their possession. Lastly, in respect of sentences
(life imprisonment) imposed in respect of count one and count two (murders)
the appellant and other accused persons were declared to have an automatic
right of appeal aga inst the convictions and the sentences and they were not
right of appeal aga inst the convictions and the sentences and they were not
required to apply for leave to appeal as provided in section 309(1)(a) and
309B(1)(a) of the Criminal Procedure Act 51 of 1977 as amended by section
10 and section 11 of the Judicial Matters Amendment Act 52 of 2013.
[4] This appeal was noted by the appellant and proceeded with in respect of
count three and count four with the leave of the Regional Court granted on
18th November 2023. Effectively the appellant is appealing both conviction
and sentence in all four (4) counts. Other accused persons are not appealing
at all. The appellant was accused one in the court a quo. The appellant and
accused no 1 will be used interchangeably as the context require.
[5] With regard to conviction, the appellant places in issue that the state had
proved his guilt beyond reasonable doubt. He contends that the court a quo
erred in finding that he acted in common purpose with accused 2, accused no
3 and accused no 4. He place s the identification in issue as he contends that
there was complete darkness at the scene. He therefore states that the court
a quo erred in finding that there was sufficient light at the scene for proper
identification of the appellant.
[6] With regard to sentence, the appellant contend that the court a quo erred in
not finding that substantial and compelling circumstances existed with
reference to his personal circumstances and circumstances of the offences
which warranted lesser sentences. The court a quo should have explored or
approximately considered alternative sentencing options that may have been
suitable for the appellant’s circumstances. The sentences imposed in respect
of count three and four were disturbingly inappropriate and oug ht to be
ameliorated with lesser sentences in respect of each count. The appellant
further contends that the court a quo misdirected itself in overemphasising the
seriousness of the offences at the expense of the factors which reduced the
appellant’s moral blameworthiness and his personal circumstances.
Relevant Evidence
[7] The first state witness, Mr Payi, the survivor in the incident that took place on
18th September 2018, testified that, he and the two deceased persons, who
were his friend went to the tavern at about 19:30 to buy some beers. It was
the second time that he went to the tavern as they went to buy some liquor
the second time that he went to the tavern as they went to buy some liquor
during the day. On their arrival at the tavern they bought three beers with
R100.00 and got a change of R40.00. They went out of the tavern after buying
the beers. He testified that as the sun had already set the street lights were on
to assist with the sight.
[8] He stated that, when they were leaving the tavern they left the accused
persons in the process of leaving the tavern as wel l. As they were walking
down the street towards the community Hall, accused persons were following
them. Accused persons reached Mr Payi and the deceased persons. At the
spot where they reached them there was moon light. The street lights were
not all on. Mr Payi knows the accused persons and he testified that on that
day he saw them in the tavern during the day and again in the early evening.
He did not see any other people except them in the tavern and next to the
tavern.
[9] As the accused persons were approaching Mr Payi and the deceased
persons they commanded them to stop. When reaching them accused
persons started clapping them with open hands and searching them. Mr Payi
categorically testified that the appellant (Milani) clapped him. The appellant
and the deceased parsons were also assaulted by the other three accused
persons. From Mr Payi his cell phone and sandals were taken. He was
particularly searched by accused no 2, M. Mogale.
[10] As the road was still under construction the accused persons p elted them with
stones near Mbiko homestead, family of which was bereaved and was
preparing for a funeral. They were assaulted with many stones by all the
accused persons until he became unconscious as a result of the injury he
sustained on his head. He r egained his consciousness after two months of
the incident. There were other parts of his body that were injured.
[11] During cross -examination the following version was put to the witness, Mr
Payi by defence Counsel:
“ Mr Mkhumatela: Mr Payi, all four ac cused are going to testify later in
this trial and they are going to testify that they saw you late in the
evening buying something, they don’t know what you bought and you
were inside the tavern and you put whatever you bought on the table
before it was closing the tavern, you were inside.
……
Mr Payi: I do not remember buying anything inside the tavern on the
day in question, your worship, and the accused were outside the
tavern.
Mr Mkhumatela: They are going to, the accused are going to testify
further, Mr Payi, that at that time immediately after you purchased this,
they were sitting inside and tavern closed and you all walked out at the
same time.
Mr Payi: I agree, you worship, with the fact that the tavern was closing
and we all left the tavern, that is we all went out of the tavern.
……..
Mr Mkhumatela: No, no your worship, the accused were in front.
………
Mr Payi: That is not correct, that is not true your worship, I dispute that.
Mr Mkhumatela : And, ja, you can dispute it as well it is you r right. And
accused No 1, No 2 and No 3, they were in front and accused No 4
was walking behind of the three.
Mr Payi: I wont lie, you worship, I disagree with their version that they
were walking in front of us.
…..
Mr Mkhumatela: Thank you, Your worship. Mr Payi, sorry your worship.
Mr Payi, accused No 4 is going to testify that he was the one that came
from behind and you turned, you personally turned around and
advanced towards accused No 4. The other three accused were
already in front of you. What do you say to that?
Mr Payi: I dispute that, your worship. As far as I can remember, I was
walking with my friends. I do not remember turning back and
approaching.
Mr Mkhumatela : Infact he is going to testify further , that’s No 4, that at
the time they left you, all of you left the tavern , he went home to
fetch his jersey. That’s why he was walking behind the other three.
Mr Payi: No comment, your worship.”(sic) ( my underlining)
[12] With regard to the allegati on between the two groups the following version
was put:
“Mr Mkhumatela : And you turned back from the other two of your
friends, advanced towards accused No 4 and you started attacking
accused no 4.
Mr Payi: I dispute that, your worship, it is not true.
Mr Mkhumatela: Accused No 4 is further going to testify that when you
attacked him, he tried to run away but you tripped him and he fell down
and you started hitting him with fists.
Mr Payi : That is not true, your worship.
Mr Mkhumatela : Further on, Mr Payi, the accused is going to say your
two friends joined the attack and he screamed.
……..
Mr Payi :That is not true, your worship.
Mr Mkhumatela : And he screamed and that’s when accused No 2
and No 3 returned to go and stop the skirmis h between you and
accused No 4.
Mr Payi: That is not true, your worship, it did not happen like that.
………
Mr Mkhumatela : The only assault, if there was an assault, accused No
3 pushed one of the deceased and he fell down and that was the end
of the skirmish between your group and them.
Mr Payi : That is not , your worship. That is not yet the truth.” (sic)
[13] About appellant’s state of drunkenness, the following version was put to Mr
Payi:
“Mr Mkhumatela: Accused No 1 is going to testify tha t he was so drunk
on that night that he was walking and sitting down, walking and sitting
down. He was never involved in any skirmish between you and No 4
and other two accused, No 2 and No 3.
Mr Payi: I insist your worship; they are not yet telling the tr uth. All four
of them, your worships, were involved in this.
Mr Mkhumatela: And all four accused are going to testify that you are
telling the truth now that you are saying there were two fights on that
night, the one that you started with accused No 4 and another skirmish
that occurred near the shop you are talking about.
Mr Payi: That is still far from the truth your worship, resultantly I
disagree with that version.
[14] Another state witness was called. Mr Wandisile Bani testified that as his home
is n ext to the road he heard the noise of drunk like persons around about
20:00 on 18 th September 2018. He went out and saw the two deceased
persons, Banzi Miyeka and Luvuyo Mangeni lying on the ground being pelted
with stones by four Youngmen. Those youngmen were accused no 1, no 2, no
3 and no 4. Appellant was accused no 1. He saw one of t he deceased, Banzi
Miyeka being dragged to the deserted building of the shop belonging to the
foreigners by all accused persons. A police van appeared with its light shining
on and it stopped right in front of the deceased, Luvuyo Mangeni and Siphiwo
Payi. Siphiwo Payi is the first state witness. The occupant of the police van
telephonically called other police officers as he was alone in the scene.
[15] Like Mr Payi, Mr Bani knew the accused persons even before the date of
incident. The appellant is coming from the same Village as them, (Mgababa
Village). Although the appellant started by intervening, when he was not
succeeding in his attempts to intervene. He ended up joining the attack. They
were all using stones. In addition to the light that was c oming from his
were all using stones. In addition to the light that was c oming from his
homestead as they were preparing for the funeral, there were streetlights that
were on as the source of light.
[16] In cross examination Mr Bani stated that he saw the appellant (accused no 1,
picking up a stone from the street as there wer e lot of loose stones. It was put
to Mr Bani that accused no 1 (appellant) would testified that he never attacked
anybody. He was so drunk as he did not remember anything that happened
on that night. He denied that it was dark on the street as the lights were on.
[17] Ludwe Sibani was the last factual state witness called. He testified that he
was at his home. He went to sleep after 18:00. Accused persons came to him
at his home as he was still watching the television. Accused no 4 (Cengimbo)
asked for some water, which he brought. Accused no 4 washed his hands and
when asked about that, he suspected of having been pushed by others or
slipped and fell as they were coming from tavern. Nothing was noticeable
about their state of drunkenness. Accused no 1 (app ellant) stated that, as he
had arrived he decided to come and see Ludwe before accused no 1
(appellant) leaves. Upon being asked by Ludwe, they stated that they were
coming from tavern. Accused no 1’s (appellant) communication was sound. In
fact, accused no 1 was visiting is friend, who is Ludwe’s younger brother who
was not at home then. No questions were asked by the defence. Ludwe was
not cross examined. It is noteworthy that Ludwe’s testimony is repeated by
accused no 3, Anathi Sam as it is.
[18] Accused no 1 (appellant) testified. He denied having committed the offences
preferred against him. He testified that he saw Mr Payi and the two deceased
persons during day on the day in question. He greeted them and passed
pleasantries with Banzi Minyela, the d eceased. He stated that he knew them
very well, especially Mr Payi as he grew up with his nephew. He stated that
he was drunk that day to such an extent that he did not know what happened
on that day. The last he remembered was that he was in the tavern on the
afternoon. He stated that he knows of no reason why Mr Payi would falsely
afternoon. He stated that he knows of no reason why Mr Payi would falsely
implicate him.
Discussion and Analysis
[19] Appellant’s grounds of appeal are interrelated and interwoven. Whilst the
identification and applicability of common purpose doctri ne are in issue, all
those are piggybacked and rooted on the fact that the appellant was drunk or
intoxicated (in such way that he could not remember anything that happened
on the evening of 18th September 2018).
[20] At the hearing of this appeal the disp ute narrowed itself down to whether the
appellant was drunk to such an extent that he could not remember what
happened on the evening of 18 th September 2018. It was contended that the
appellant was unaware of the circumstances of that day ostensibly as a r esult
of the degree of his drunkenness. Flowing from that, it was contended by his
Counsel Mr Van Wyk that when the altercation took place he was not at the
scene as he was left and Tandi’s homestead. However, when asked by the
court if he relies on alibi, he disavowed reliance on alibi. The doctrine of
common purpose kicks in, in circumstances where person’s state of mind is
diminished or impaired in such a way that he cannot remember the events of
criminality to which he is linked.
[21] It is important to anteriorly deal with the rules of evidence, especially those
relating to cross examination. During cross examination of the first state
witness Mr Payi, it was never put to him that the appellant was drunk in such
a way that he does not remem ber what was taking place at the relevant times
in that evening. The only things that were put to this witness were that the
appellant would testify, together with other accused persons that when the
tavern closed accused persons on the one hand and Mr Pay i and the
deceased persons on the other, walked out of the tavern almost at the same
time. As they were walking, accused groups was walking in front of the other
group, save for accused no 4 who was allegedly behind the complainant’s
group. It was further put to Mr Payi that the appellant would testify that he was
group. It was further put to Mr Payi that the appellant would testify that he was
so drunk on that night in that he was walking and sitting, and therefore he was
never involved in the squabble between Mr Payi and other accused persons.
Again, it was put to the witness Mr Payi t hat the appellant and other accused
persons would testify that there were two fights on that night, that is, the one
that was started by Mr Payi and the other that occurred near the shop.
[22] From the version that was put to Mr Payi it is demonstrably cle ar that the
appellant was able to recall the events of that evening. It therefore makes
sense why the witness was never called upon to answer during cross -
examination about the appellant’s state and degree of his intoxication which
allegedly impaired his a bility to remember important events of that day. It
takes someone’s memory or remembrance to know that both groups went out
of the tavern when it was closing. For one to tell that his group was in front of
the other appeals to the memory and remembrance. T o know how the fight
between Mr Payi and accused no 4 started demonstrates a measure of
remembrance and memory. The version put to Mr Payi, demonstrates that the
appellant was present at the scene. The later version by the appellant
contradicts the one that was put to the witnesses.
[23] Another version that was never put to any of the state witnesses was that the
appellant was not on the scene when the altercation and the squabble
between the two groups took place. That version only came for the first ti me
with accused no 2 when he was testifying. During the hearing of this appeal
that version sought to take the centre stage to build a case about improper
application of doctrine of common purpose by the court a quo. It is reiterated
that the version put to Mr Payi clear demonstrates that the appellant was
present at the scene. A failure to put a version is serious and fatal. The
witness must be given an opportunity to deny the challenge, to call
corroborative evidence on which reliance is to be placed.
[24] It is grossly unfair and improper to allow a witness’s evidence to go
unchallenged during cross examination and then later argue that the witness
should be disbelieved. This underscores the importance of putting party’s
version to the other party’s witn ess during cross examination to allow the
witness an opportunity to respond and explain any contradiction. In cross
witness an opportunity to respond and explain any contradiction. In cross
examination parties should put their own version to the witness, especially if it
contradicts the witness’s testimony, to give the witness a chance to explain1.
1 Small v Smith 1954 (3) SA 434 (SWA) at 438.
[25] I am in full agreement with the dictum made in Boesak2 where it was held
that:
“50…. it is clear law that a cross -examiner should put his defence on
each and every aspect which he wishes to place in issue, explicitly and
unambiguously, to the witness implicating his client. A criminal trial is
not a game of catch -as-catch-can, nor should it be turned into a
forensic ambush.
A Failure to put version to the witness when still in the witness box and later
rely on that version amounts to a litigation by ambush which is impermissible.
A defence that arises when a witness can no longer answer thereto cannot be
accepted and can only be regarded as an afterthought.
[26] The Constitutional Court has not been silent o n this issue 3 where it was
held:
“61. The institution of cross -examination not only constitutes a right; it
also imposes certain obligations. As a general rule it is essential, when
it is intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness’s attention to the fact by questions
put in cross -examination showing that the imputation is intended to be
made and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness and of defending his
or her character. If a point in dispute is left unchallenged in cross -
examination, the party calling the witness is entitled to assume that the
unchallenged witness’s testimony is accepted as correct. This rule was
enunciated by the House of Lords in Browne v Dunn 3 and has been
adopted and consistently followed by our courts.”
2 S v Boesak (105/99) [2000] ZACSA 24 (12 May2000) Para 50.
3 President of the Republic of South Africa and others v South African Rugby Football Union
and others 2000(1) SA 1; 1999 (1) BCLR 1059 Para 61.
[27] Classen J4 said this:
“It is, in my opinion, elementary and standard practice for a party to put
to each opposing witness so much of his own case or defence as
concerns that witness, and if need be, to inform him , if he has not
been given notice thereof, that other witnesses will contradict him, so
as to give him fair warning and an opportunity of explaining the
contradiction and defen ding his own character. It is grossly unfair and
improper to let a witness evidence go unchallenged in cross
examination and afterwards argue that he must be disbelieved.5
[28] State witnesses, especially Ludwe, testified that the appellant was not so
drunk as to be unable to remember the events of the 18 th September 2018.
The version that was put to the first state witness, Mr Payi gives a clear
impression that the appellant was aware of what was happening. Ludwe was
never contradicted when he gave the evidence to the effect that he had a
sound conversation with the appellant during that same night. Ludwe testified
that the appellant stated during their conversation that, he wanted to see
Ludwe before he leaves. Accused no 3 corroborated that part of ev idence in
the following manner:
“Accused 3: Then Cengimbo that he wanted to go and look for his
girlfriend who was staying at Buti Ludwe place.
Mr Mkhumatela : At Ludwe?
Accused 3: Yes
Mr Mkhumatela : And then, when he told you that he wanted to his
girlfriend, what happened?
Accused 3: He then pleaded Milani since he is known there, he is
attending the same church with the people from Ludwe’s home.
Mr Mkhumatela : Yes
………..
4 Small v Smith 1954 (3) SA 434 (SWA) at 438.
5 D T Zeffertt: The South African Law of Evidence, Second Edition, Page 912-914.
Accused 3: And then Milani said he also wanted to go there. It has l ong
since Buti Ludwe. He wants to see him before he leaves.” (sic)
[29] The appellant had been desirous of going to see Ludwe and he had shown
that desire and expressed it at different places. When going to Ludwe’s place
there is no evidence that he had di fficulty in walking, notwithstanding that
there was mud on the road. That was antithetical to the impression given by
accused no 2 that he was drunk in so much he was walking and sitting.
[30] It is important to repeat the version that was put to the firs t state witness, Mr
Payi that, save for accused no 4, all accused person were walking in front of
the other group, that is, Mr Payi and the two deceased persons. It was put
that the appellant and other accused persons would say that. This attest to
two thi ngs, namely, that the appellant was at all material times with other
accused persons. Secondly, that he had recollection of the events of that
night. I am mindful of the fact that such version was not pursued during the
evidence of the appellant and accuse d persons. It is therefore important to
note that there was no explanation for a failure to pursue a version that was
put to the witness. It would be fair and in the interest of justice that the court,
as well as the witnesses be advised of such a last hou r decision not to pursue
the evidence that had been put to the witnesses and had been debated during
their cross-examination. It is impermissible to direct the attention of the other
party to one issue and then, at a later stage in the trial, attempt to ca nvass
another.
[31] Accused no 2’s testimony that the appellant was left at Tandi’s place when the
whole ordeal was taking place could and cannot be accepted for two reasons:
firstly, that version was never put to any state witness, therefore it must suff er
the same fate with and as other pieces of evidence that were never put to the
the same fate with and as other pieces of evidence that were never put to the
state witnesses. Secondly, it contradicts the version that was put to the first
state witness that the appellant and other accused persons were walking in
front of the first state witness and two deceased persons after they went out of
the tavern premises (when it was closing).
[32] A crisp issue about the identification deserves a short shrift. The first state
witness, Mr Payi and the appellant have been knowing each other, si nce
when Mr Payi was still of a younger age. The appellant testified that Mr Payi
was a friend to his nephew and when visiting his sister’s house, the appellant
would find Mr Payi with his nephew. On the day in question they saw each
other at the tavern and the appellant even passed pleasantries with one of the
deceased person. The appellant testified that he cannot know or think of any
reason for Mr Payi to falsely implicate, link and accuse him of having killed the
two deceased persons and of having attempted to kill Mr Payi.
[33] The evidence of the state witness is to the effect that there was some light
from the street lights, lights from the homestead and the moon. The first state
witness develops this point to say, as the scene was moving the accused
persons were able to see them. The converse of that is that Mr Payi, too, was
also able to see them.
[34] With regard to the fact that the state witnesses and the appellant know each
other especially the first state witness, there was nothing that would p revent
the first state witness to recognise the appellant, whether by the clothing or
voice, because they know each other thoroughly. It is apparent in this case
that a person can identify a person by voice because accused no 2 and no 3
allegedly identifie d accused no 4’s voice when he was allegedly screaming
during the alleged altercation with the other group.
[35] The dispute about the light was in so far as it relates to the streetlights. It was
said that it was dark because there were no streetlights to provide sufficient
light. The following version was put:
“Mkhumatela : Mr Payi, the accused are going to testify, all four of
them, that there are no street lights on that street.
Mr Payi: On the main road, your worship, there are no street lights, it is
Mr Payi: On the main road, your worship, there are no street lights, it is
dark but there are street lights, your worship, on the road leading to
Mangizi.”(sic) (underlining is mine)
[36] The question of moon light was never sought to be gainsaid. The degree and
the intensity of the darkness was, too, never canvassed in evidence . Images
in the photo album demonstrate that there was sufficient light, especially
where the deceased bodies were lying. It was never canvassed in evidence
that, if there was darkness, such darkness was such that a person would not
be able to recognise a person known to him. The issue of identification, too, is
unmeritorious.
Conclusion
[37] In the light of the shortcomings in the appellant’s evidence, I am unable to find
that the appellant was so drunk to such an extent that he could not remember
the events of the evening of 18 th September 2018. I have found that the
weight of the evidence show that the appellant was fully aware of the events
of the 18th September 2018.
[38] Appellant’s defence about the identification is an afterthought a nd accordingly
devoid of any merit. The evidence is so overwhelming that the appellant was
properly identified as he is known to the state witnesses. He could not state
any reason for him to be falsely implicated or falsely accused. There was no
clear or dim suggestion that the amount of light regardless of its source, was
insufficient to enable a person to recognise a person known to him. First state
witness’s evidence is weighty to say that their assailants were able to see
them and I also find that vict ims were successfully aimed at and hit with
stones, some to death and one until he lost consciousness, using the light that
was available to assist their sight. Appellant’s defence about identification is
untenable and unsustainable.
[39] Doctrine of common purpose becomes applicable in these circumstances. If
two or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the conduct of each of them in the
execution of the purpose is imputed to others 6. I n Mgedezi7, the Appellate
6 CR Snyman, Third Edition, Page 249.
Division (now the Supreme Court of Appeal) prescribed five requirements for
the application of common purpose doctrine:
Firstly, the accused must have been present at scene where the
violence was being committed; secondly he must have been aware of
the [offence]; thirdly he must have been intended to make common
cause with those committing [ the offence]; fourthly, he must have
manifested his sharing of a common purpose by himself performing
some act of association with the conduc t of the others; Fifthly, he must
have intended to commit the offence (to kill or to contribute to his
death)8.
[40] The appellant was present with other accused persons when the offences
were committed; he intended to make common cause with them to com mit
those offences. He manifested his sharing of common cause by stoning the
victims and concealing one deceased body. All the accused persons including
the appellant should have foreseen the possibility of killing, attempting to kill,
and robbery, but rec onciled themselves with that possibility. The court a quo
did not misdirect itself in convicting the appellant.
[41] With regards to sentence, a mandatory sentence of life imprisonment was
imposed. In doing so the court a quo found that there are no subst antial and
compelling circumstances justifying deviation from the minimum sentences
statutorily prescribed. It also found that the sentences referred to in paragraph
2, 3 and 5 of this judgment were the only appropriate sentences. Lesser
sentences would be unjust and would be disproportionate to the crimes, the
criminals and the needs of society 9. The nature of the offences and how the
offences were committed was considered by the court a quo. Two deceased
persons were killed by stoning. They died a painfu l death. One of the victims
was in a coma for a period exceeding five (5) months and he is leaving with
7 S v Mgedezi 1989 (1) SA 687 (A) 705 I-706C.
8 S v Sefatsa and others 1988 (1) SA 868 (A).
9 S v SMM 2013 (2) SACR 292 (SCA).
painful medical effects of that incident to date. No one including the appellant
showed contrition for their deeds.
[42] During the hearing of this appe al no argument was made about the sentence
by both legal representatives. However, in the appellant’s heads of argument,
it is submitted that appellant personal circumstances coupled with the
intoxication at the time of the offences justify substitution of the sentences
imposed by the court a quo with lesser sentences. It also appears that the
appellant selectively relies on the pre-sentence report. He relies thereon when
it articulates his personal circumstances; and when it sets out the interests of
society and how the society feels about the appellant, he disavows reliance
thereon. The society is afraid of the appellant. In line with observation that the
appellant failed to show remorse, he also failed to make submission in
mitigation of sentence. He did not give the court a quo his personal
circumstances.
[43] I disagree with the fact that the court a quo failed to consider personal
circumstances of the appellant. The fact that, for example, the appellant was
sentenced in October 2024 to 20 years’ impris onment and that period was
ordered to run concurrently with the sentences imposed in this matter was
clearly a consideration of his personal circumstances. Allied to that, the
appellant was considered to be a first offender and that, too, was a
consideration of his personal circumstances.
[44] The notion that accused personal circumstances were not considered
because they did not earn him or yield a deviation from the minimum
prescribed sentence cannot be sustained. The triad factors laid down in
Zinn10 are the following:
“(i) The personal circumstances of the accused;
(ii) The nature and seriousness of the offence which includes the
circumstances under which it was committed; and
10 S v Zinn 1969 (2) SA 537(A).
(iii)interests of society”.
[45] The sentencing court must weigh the triad factors one against the other. If the
personal circumstances of the accused person outweigh other factors, that
may be a basis for deviation. If the interests of the society and the nature and
seriousness of the offences which include the manner in the which the
offences were committed, outweighs accused personal circu mstances, that is
not an overemphasis of the nature and seriousness of offences as the
appellant puts it.
[46] Appellant’s unexplained failure to furnish the court a quo with mitigating
factors demonstrably showed no remorse on his part. Infact the court a quo
was not told that a similar offence would not be committed again in the future
by the same appellant. The court a quo was correct in taking into its own
hands and ensures the appellant and other would be offenders are deterred
from committing a similar offence.
[47] In Karg11 Shreiner JA remarked as follows:
"While the deterrent effect of punishment has remained as important as
ever, it is, I think, correct to say that the retributive aspect has tended
to yield ground to the aspects of prevention and correction. That is no
doubt a good thing. But the element of retribution, historically
important, is by no means absent from the modern approach. It is not
wrong that the natural indignation of interested persons and of the
community at large should rece ive some recognition in the sentences
that Courts impose, and it is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration of
justice may fall into disrepute and injured persons may incline to take
the law i nto their own hands. Naturally, righteous anger should not
becloud judgment”.
11 R v Karg 1961 (1) SA 231 (A) at 236 A-C.
Deterrence has remained the most important object of punishment12.
[48] In Di Blasi13 Vivier JA14 held:
“In my view the learned trial Judge did not give due consideration to the
aspects of deterrence and retribution. The requirements of society
demand that a premeditated, callous murder such as the present
should not be punished too leniently lest the administration of justice be
brought into disrepute. The pu nishment should not only reflect the
shock and indignation of interested persons and of the community at
large and so serve as a just retribution for the crime but should also
deter others from similar conduct. In my view the sentence imposed by
the learne d Judge does neither, and I consider it to be shockingly
inappropriate. Counsel for the respondent submitted that the sentence
imposed by the learned trial Judge was in line with the sentences
imposed in a number of other cases where the facts were similar.”
[49] The right to life15 and right to human dignity16 are the most important of all of
other human rights in chapter three (3) of the Constitution. By committing
ourselves to a society founded on the recognition of human rights we are
required to v alue these two rights above all others. And this must be
demonstrated by the state in everything that it does, including the way it
punishes criminals17.
[50] When weighing up the triad factors, the court a quo considered not only the
personal circumstances gleaned in the probationer’s report, but also the
egregious, painful and barbaric manner in which these offences were
committed by the accused persons. The fact that the probation officer’s report
demonstrated that the society is afraid of the appellant, and when he was
sentenced, he was serving another sentence for a murder, was taken into
12 S v Khumalo and Others 1984 (3) SA 327 at 330 D.
13 S v Blasi (429/94) [1995] ZSCA 111(21 September 1995); 1996 (1) SACR (1) (A).
14 At 10 F-G.
15 Section 11 of the Constitution.
16 Section 10 of the Constitution.
14 At 10 F-G.
15 Section 11 of the Constitution.
16 Section 10 of the Constitution.
17 S v Makwanyana and others 1995 (6) BCLR 665; 1995(3) SA391 Para 144.
account. The depth of the pain of the loved ones and the next of kins of the
deceased persons and Mr Payi is unimaginable . The blood that was spilled in
the streets of that the community village evokes an immeasurable sense of
shock and indignation on the part of the society.
[51] In the circumstances, the sentence that was imposed in terms of section 280
(2) of the Criminal Procedure Act 51 of 1977 was a demonstration of leniency
by the court a quo. The sentences which ran concurrently in terms of this
provision were to ensure that the cumulative effect of several sentences
imposed in one trial or added to sentences which h ave already been imposed
is not severe in the light of the aggregate sentence 18, but at the same time
does not underestimate the seriousness of the offence 19. Concurrency of
sentences ought to enjoy precedence over the practice of reducing sentences
below the desired length for the purposes of justice simply to counteract the
cumulative effect. Concurrency can obviously also lead to iniquity when one
or more conviction is set aside on appeal 20. It will be iniquitous to interfere
with the sentence of the cou rt a quo. The sentence was not at all shockingly
inappropriate.
[52] For the sake of completion, the provisions of section 280(2) Criminal
Procedure Act read thus:
“(2) Such punishments, when consisting of imprisonment, shall
commence the one after the expiration, setting aside or remission of
the other, in such order as the court may direct, unless the court directs
that such sentences of imprisonment shall run concurrently”.
[53] In the result I make the following order.
1. The appeal is dismissed.
18 S v Cele 1991(2) SACR 246 (A) at 248 J.
19 S v Maraisana 1992 (2) SACR 507 (A) at 511G.
20 Hiemstra’s Criminal Procedure, Page 28-40 (issue 1).
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
I agree
______________________
D. POTGIETER
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant : Adv Van Wyk
Instructed by : VOYI INC. ATTORNEYS
596 Jubulee Avenue
Halfway House
Midrand
Johannersburg
Email:ndumiso@voyi.co.za
zimkita@voyi.co.za
Tel:010 012 6010
Cell: 076 970 2554
c/o GORDON Mc CUNE ATTORNEYS
36 Taylor Street
Tel: 043 642 1519
King Williams Town
For STATE- RESPONDENT : Adv MLUNGU
Instructed by : THE Director of Public Prosecutions
Parliament Hill
Bisho
Tel: 040 608 6847
Email : UMlunmgu@npa.co.za
JSecar@npa.gov.za
Ref: 10/2/5/1-5/22
Matter heard on : 18 June 2025
Date of delivery : 12 August 2025