REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: A21/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: Naude-Odendaal J
DATE: 12/11/2025
In the matter between:
THABO RICHARD MSHILOANE APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
[1] This is an appeal against both conviction and sentence. The Appellant was
convicted in the Regional Court of Mahwelereng on 15 April 2019 on one count of
Murder, read with the provisions of Sections 51(1) of t he Criminal Law Amendment
Act, 105 of 1997, as amended, and one count of Robbery with aggravating
circumstances read with the provisions of Sections 5·1(2) of the Criminal Law
Amendment Act, 105 of 1997.
[2] The Appellant was s entenced by the court a quo to life imprisonment on b oth
counts on 6 August 2020. The Appellant was legally represented at all material times
of the trial by Mrs. Nkwana from Legal Aid SA. The Appellant mad e certain
admissions in terms of Section 220 of the Criminal Procedure Act, 51 of 1977.
[3] The A ppellant s ubmitted that it is not in dispu te that the Ap pellant and the
witnesses were known to each other. It is further not in dispute that the deceased
was found dead at her home by some of the witnesses and that the Appellant was
arrested along the road after the relati ves of the dece ased attacked him. What is in
dispute is whether the Appellant sold the phones and handbags to different
witnesses and if he was ever in posse ssion of the phones. It is further disputed by
the Appellant that the pointing out was made freely and voluntarily.
[4] It was submitted by the Appellant that the court a quo had erred in finding that
the State had p roved its case beyond reasonable doubt in that the State did not
present any evidence during the course of the trial that impli cated the Appellant in
the commission of the offences. The state did not lead evidence of w ho caused the
death of the deceased. The court a quo further erred by finding that the cellphones
were correctly identified by the nephew despite the police not making a ny
investigations relating to the phones and what led to the phone being discovered.
[5] It was furt her submitted by the Appellant that the court a quo erred by
accepting that the Appellant had injuries on his wrist without an explanation of how
the injuries were caused and why. To admit that they were caused by hand cuffs but
not understand how and why they were caused was not enough to conclude that the-
pointing out was done freely and voluntarily, especially keeping in mind that the other
photos are not clearly visible to show the status of the entire body.
[6] The Appellant submitted that the Magistrate misdirecte d herself by attaching
more weight on the pointing out that was done after t he body of the dece ased was
discovered and by which nothing new came out of.
discovered and by which nothing new came out of.
[7] The Appellant further submitted that the Magistrate drew an inference against
the Appellant for closing his case without leading evidence as it was stated in the
court a quo's judgment that despit e the damning evidence, the Appellant elected to
remain silent and no answer or explanation came forward from him. The Appellant
submits that this contenti on is based on the fact that the State during trial did not
present a prima facie case as to the identity of the person who caused the death of
the deceased and as such there was no case for the Appellant to answer to.
[8] The Appellant submitted that the State did not prove beyond a reasonab le
doubt that the offence of murder was pre meditated or planned. This was not even
put to the Appellant in cr oss-examination so therefore the conviction in term s of
Section 51(1) of Act 105 of 1997 is incorrect.
[9] The State submitted th at the Appellant's notice of appeal is defective and
vague. With reference to Rule 67(5A)(b) of the Magistrate's Court R ules 32 of.1944;
it was submitted that the notice of appeal should clearly and specifically set fo rth the
grounds upon which such person wishes to appeal. Grounds of appeal w ill be bad if
they are so widely expressed that it leaves the Appellant free to canvas every finding
of fact and every ruling of the law made by the court a quo , or if they specify the
findings of fact or rulings of law appealed again st so vaguely as to be of no value,
either to the Court or the Respondent, or if they , in general, fail to specify in clear
and unambiguous terms exactly what case th e Respondent must be prepared to
meet. (Songo v Minister of Law and Order 1996 (4) SA384 (E).)
[10] The State submitted that Appellant's grounds of appeal are bad for the above
reasons. The Appellant does for example specify the improbabilities that exist in the
state's case, what the minor contradictions were, and why the witnesses were not
satisfactory, the State can only contend that the opposite is true and that the
magistrate did indeed not err in any of the submissions set out i n paragraph 1, 2 and
3 of the notice of appeal.
[11] The State further submitted that the factual and credibility find ings of the trial
court are presumed to be correct unless they are shown to be wrong with re ference
court are presumed to be correct unless they are shown to be wrong with re ference
to the record. The State submitted that the trail court gave intelligent an d judicial
consideration to all the important features on the case and that the Appellant failed to
show the trial court was clearly wrong, therefore the appeal on conviction should be
dismissed.
[12] In S v Hadebe and Others 1997 (2) SACR 641 (SCA) at -page 645 it was,
held that when considering a matter on appeal , the ap peal court in the a bsence of
any demonstrable and ma terial misdirection by the trial court, presumes that the
findings of fact made by the trial court are correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong.
[13] In this court's view, there is nothing in the record of proceedi ngs which would
lead to a conclusion that the court a quo erred in any material respect or misdirected
itself in any material manner regardin g the evaluation of t he evidence or the we ight
to be accorded to the said evidence.
[14] The Appellant failed to demonstrate any material misdirection by the trial court
and this court could not find any material misdirection either. The trial court's findings
of fact were correct and there is nothing on the record indicative thereof that it should
be disregarded.
[15] In this court’s view, the State managed to prove beyond reasonable doubt that
the Appellant was guilty of Murder, read with the provisions of S ection 51 (1) of Act
105 of 1997 as amended, as well as Robbery with aggravating circumstances, read
with the provisions of Section 51(2) of Act 105 of 1997. The Appeal therefore stands
to fail on conviction.
[16] In respect of sentence, it was submitted by the Appellant that the court a quo
imposed a harsh and disproportionate sentence under the circumstances of t he
present case. The Magistrate further erred in overemphasizing the seriousness of
the offence.
[17] The Appellant further submitted that the court a quo committed a misdirection
when It on the count of Ro bbery with aggravating circumstances imposed a
sentence in excess of the prescribed minimum sentence a nd by doing so failed any
mercy towards the sentencing of the Appellant . The Appel lant sub mitted that the
count of Robbery with aggravating circumstances , read with the provisions of
count of Robbery with aggravating circumstances , read with the provisions of
Section 51(2) of Act 105 of 1997, attracts a minimum of 15 (fifteen years), yet the
Magistrate imposed a sentence of Life Imprisonment on him.
[18] The Appellant further submitted that the court a quo, in imposing a sentence
far in excess than the prescribed sentence ought to have at least given reasons as to
why it is deemed that the higher sentence is appropriate, which she failed to do .
[19] The Appellant further submitted that the court a quo erred by not attaching
due weight to the personal circumstances of the Appellant, which cumu latively
amounted to substantial and compelling reasons, warranting a deviation from the
prescribed minimum sentenc e of Life Imprisonment on Count 1 and 15 (Fifteen)
years on Count 1 and 15 (Fifteen) year s on Cou nt 2. The trial court erred in finding
that there were no substantial and compelling factors which may have allowed it to
deviate from imposing a lesser sentence than those prescribed.
[20] The Appellant submitted that in committing these misdirections, this court is
implored to interf ere with the sentences imposed by the trial court. It was
consequently submitted by the Appellant that this court must interfere with the
sentences imposed and that the sentences must be substituted with an appropriate
sentence.
[21] The State submitted that where the Appellant was sentenced, the trial court
incorrectly stated that the Appellant w as convicted of robbery with aggravating
circumstances read with Section 51(1) of Act 105 of 1997 and subsequ ently
sentenced the Appellant to life imprisonment on both the count of murder and that of
robbery with aggravating circumstances. This submission is however incorrect . The
trial court when convicting the Appellant clearly stated that the Appellant was
convicted as follow: -
"Count 1 ... You must stand up . Murder, read with Section 51(1) of Act 1 05 of
1997, as it was committed during the act of robbery.
And Count 2, robbery with aggravating circumstances, read with Section 51(2)
of Act 105 of 1997."
[22] The court a quo therefore correctly convicted the Appellant in respec t of
[22] The court a quo therefore correctly convicted the Appellant in respec t of
Count 2, Robbery with aggravating circumstances, read with Section 51( 2) of Act
105 of 1997, but erred and misdirected itself in sentencing the Appellant in terms of
Section 51(1) of Act 105 of 1997, instead of Section 51(2).
[23] The State correctly however conceded that the sentence in respect of Count·2
should have been 15·(fifteen) years imprisonment as provided for in Section 51(2)
and not Life Imprisonment. The State further correctly submitted that the sentence in
Count 1 is correct as the murder' of the victim was caused while. committing robbery
with aggravating circumstances.
[24] In this court's view, the Appellant failed to prove that there are any substantial
and compelling circumstances present warranting a deviation from the prescribed
minimum sentences in respect of both counts. None of the factors that the Appellant
submitted in mitigation of sentence are substantial and compelling, even if they are
taken cumulatively. The court a quo correctly found that there were no substantial
and compelling circumstances present. The court a quo did however err in imposing
an incorrect minimum sentence of life imprisonment respect of Count 2, instead of 15
years which amounts to a material misdirection.
[25] The settled approach to be adopted by this court is that the sentencing task
resorts primarily within the scope of the trial court's discretion, and the court on
appeal shall not interfere with a sentence so imposed, save for if it is found t hat the
sentence is ominously inappropriate and or disproportionate to the severity of the
offence or that the trial court did not exercise its discretion judicio usly. The Appeal
court can only interfere with the court a quo's sentence if the presiding officer had
committed a material misdirection and when the sentence was imposed can be
considered shockingly inappropriate.
[26] In S v RO and An other 2010 (2) SACR 2:48 (SCA) at paragraph 30 that
Hener JA stated as follows:-
"sentencing is about achieving the right balance or in more high-flown terms,
"sentencing is about achieving the right balance or in more high-flown terms,
proportionality. ·The elements at play are, the crime, the offender, the interest
of society w ith diffe rent nuance, prevention, retribution, rehabilitation,
reformation and deterrence. Invariably there are overlaps that render the
process more unscientific, even a proper exercise of the judicial function
allows reasonable people to arrive in different conclusions.”
[27] In S v Kekana 2013 (1) SACR 101 (SCA), it was stated that: -
"It is trite that this court will not interfere with the sentence impose d by the
court a quo unless it is satisfied that the sentence h as been vitiated by a
material misdirection or is disturbingly in appropriate. No misdirection has
been alluded t o, nor can it be said that the sentence i nduces ·a sense of
shock. It has been s ubmitted on behalf of the Appellant that the sentence is
out of proportion to the gravity of the offence and that, in the circumstances of
this case, a n on-custodial sent ence was appropriate. It is true that the
appellant has an unblemished record .and that he was a useful member of
society in gainful employment at the relevant tim e. Those circumstances,
however, have to be weighed against the nature and severity of the offence
and the requirements of society. Notwithstanding those mitigating factors
being present, the seriousness of the offence makes it necessary to send out
a clear message that behaviour of the kind encountered in this case cannot
be countenanced. T he natural indignation that th e community would feel at
conduct of this kind warrants recognition in the determination of an
appropriate sentence."
[28] In the present matter, the presiding Magistrate in respect .of Count 1 di d not
commit a material misdirection and the sentence imposed cannot be considere d
shockingly inappropriate, under the circumstances. Howev er in respect of Count 2,
the Magistrate materially misdirected herself and made an error in fact and in law.
Further, any sentence imposed with Life Imprisonment should run concurrently with
the sentence of Life Imprisonment. The appeal on sentence in Count 2 stand s to
succeed.
[29] Accordingly, this court therefore makes the following order: -
1. The appeal against conviction is dismissed.
1. The appeal against conviction is dismissed.
2. The appeal against sentence in respect of Count 1 is dismissed.
3. The appeal against sentence in respect of Count 2 is upheld.
4. The court a quo's order on sentence is substituted and the Appellant is
sentenced as follows: -
“1. In respect of Count Number 1: Life Imprisonment
2. In respect of Count Number 2: 15 (fifteen) years Imprisonment.
3. The s entence imposed on Count 2, is to run concurrent with the
sentence of Life Imprisonment ln Count 1.
4. No order is made in terms of Section 103(1) of the Firearms Co ntrol
Act, 60 of 2000.”
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I AGREE:
A. VAN WYK
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
HEARD ON: 6 JUNE 2025
JUDGMENT DELIVERED ON: 12 NOVEMBER 2025
For the Appellant: Mrs. R Scott
Instructed by: Legal Aid South Africa
Polokwane Local Office
Polokwane
For the Respondent: Adv. A.P. Van der Kooi -
Instructed by: The Director of Public Prosecutions,
Limpopo Division. Polokwane