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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
YES/ NO
YES I NO
YES I NO
YES I NO
Case number: KS 16/2025
In the matter between:
MONNAPOLA MPHETE MABOGOLE APPLICANT
and
THE STATE RESPONDENT
Neutral citation: Mabogole v The State (KS 16/2025) 20 March 2026
Coram: Stanton J
Decided on the papers as per agreement
Delivered: 20 March 2026
Summary : Application for leave to appeal - Sentences of15 years for robbery
with aggravating circumstances and life imprisonment for two counts of murder read
with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997, as
amended - First time offender and a plea of guilty - Whether the trial court over
emphasised the seriousness of the crime - Whether the trial court under-emphasised
the personal circumstances of the applicant - No reasonable prospects of success -
Application for leave to appeal dismissed.
ORDER
1. The application for leave to appeal against the sentences imposed in respect
of counts two, three and four, is dismissed .
Stanton J
JUDGMENT
Introduction:
2
[1] This is an application for leave to appeal against the sentence of 15 years in
respect of the applicant's conviction of robbery with aggravating circumstances
and the two sentences of life imprisonmen t in respect of the conviction on two
counts of murder.
Relevant background:
[21 The applicant stood accused of the following four offences:-
2.1 Housebreaking with the intent to commit an offence unknown to the
prosecutor , read with the provisions of s 95(12) and s 262(2) of the
Criminal Procedure Act 51 of 1977 ("the Act");
2.2 Robbery with aggravating circumstances;
2.3 Murder , read with the provisions of s 51 (1) of the Criminal Law
Amendment Act 105 of 1997 ("the CLAA"); and
2.4 Murder, read with the provisions of s 51(1) of the CLAA.
[3] The first count of housebreaking was withdrawn.
[4] The applicant pleaded guilty to the three remaining offences and provided a
written statement in terms of section 112(2) of the Act, which written statement
was admitted into evidence as exhibit A, after acceptance thereof by the State.
3
[5] According to the written plea, the applicant. inter afia pleaded guilty to the three
remaining offences, and more specifically that the two murders were committed
with the intent of do/us directus . In essence , the applicant admitted that he
stabbed Lerato Agnes Gaebidiwe ("lerato "), who was preparing a meal for him
at the time, several times in her throat as she refused to give him money. He
thereafter stabbed Refentse Gaebidiwe ("Refentse") in the same manner to
quiet him when he returned home after buying cigarettes for the applicant. The
medico -legal post-mortem report concluded that the wounds on both deceased
were caused by repetitive stabs to their necks.
[6] The applicant was accordingly found guilty and convicted on the three counts.
[7] It was not disputed that the count of robbery with aggravating circumstances fell
within section 51(2)(a) of the CLAA, read with Part 2 of Schedule 2 and the tv.Jo
counts of murder fell within section 51 (1} of the CLAA, read with Part 1 of
Schedule 2, as:
7 .1 Lerato's death was caused by the applicant in committing or attempting to
commit or after having committed robbery with aggravating circumstances
as defined in section 1 of the Act; and
7.2 Refentse was a person under the age of eighteen years.
4
[8] The applicant and his legal representative, Mr. P Fourie. both confirmed that the
prescribed minimum sentences as set out s 51 (2) of the CLAA (in respect of the
second count of robbery with aggravating circumstances, 15 years imprisonment)
and the prescribed minimum sentences set out s 51(1) of the CLAA
(imprisonment for life in respect of the two counts of murder) were explained to
the applicant, as well as the fact that the minimum sentences should be imposed,
unless substantial and compelling circumstances are present.
[9] The applicant advanced the following personal circumstances in mitigation: (a)
He is 27 years old and unmarried; (b) His highest level of education is Grade 9;
(c) He has two minor children, a son aged 11 and a daughter aged 7 who reside
with their respective mothers who are their primary caregivers; (d) He is
unemployed; (e) He has no previous convictions; (f) He has been in custody since
28 January 2025; and (g) The incident was unplanned.
[10] On 27 January 2025, "the following sentences were imposed:
10.1 15 years' imprisonment in respect of count 2 (robbery with aggravating
circumstances);
10.2 Life imprisonment in respect of count three (murder, read with the provisions
of s 51 (1) of the CLLA); and
10.3 Life imprisonment in respect of count four (murder, read with the provisions
of s 51 (1) of the CLLA).
[11] An order was made that the sentences shall run concurrently; and the applicant
was declared unfit to possess a firearm.
Application for leave to appeal:
[12] On 29 January 2025, the applicant filed an application for leave to appeal
against the sentences imposed in respecl of counts 2, 3 and 4
5
[13] The following grounds of appeal were listed. namely that-
13.1 I erred in finding that no substantial and compelling circumstances exist to
deviate from imposing the prescribed minimum sentences;
13.2 Another court, on appeal , may find that the sentences of 15 years'
imprisonment in respect of the count of robbery with aggravating
circumstances and life imprisonment in 1espect of the two counts of murder
are shockingly harsh and disproportionate to the offence;
13.3 I overemp hasised the seriousness of the offences and the interests of the
commlln ity:
·t 3.4 l underernphasised the personal circumstances of the applicant; and
13.5 I erred in finding that the applicant cannot be rehabilitated.
Applicable law:
[14] Section 17 of the Superior Courts Act 10 of 2013, in part, provides:
'17. Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a){i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter under
consideration;'
6
[15] In S v Smith,1 Plasket AJA stated:-
'What the test of reasonable prospect5 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 Ute 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.'
Arguments by c:ounsol:
[16] Mr. P Fourie, whilst conceding that the deaths of Lerato and Refentse had an
impact on their family members, submitted that.-
16.1 The general note of caution in S v Ml1fakata and Another ("Mhlakaza'J,2
that a court should not satisfy the public opinion in its sentence, but sen1e
the public, was not heeded;
16.2 The absence of premeditaiion and/or planning should have been
considered as a strong mitigating factor when the seriousness of the
offence was considered, and
16.3 The applicant showed true remorse and took full responsibility for his
actions by pleading guilty. despite the fact that he had the constitutional
right to plead not guilty.
[17] Mr. Q Hollander, un behalf of the State, contended to the contrary that there is no
probability that ar.other court would come to a different conclusion on the facts,
and that no substantial and compelling circumstances were persent as:
1 2012 (1) SACR SCA667 at para 7
2 1997 (1) SACR 515 (SCA).
7
17 .1 The applicant killed Lerato while she was peacefully preparing food for him
in her home: and thereafter he waited for Refentse to return home and killed
him too;
17 .2 After the killings, in an attempt to avoid responsibility for his actions, he
closed the house in a way that would create an impression that no one was
home. He went ta sleep and later spent the money he withdrew with the
stolen bank guard; and
17.3 He only decided to cooperate with the police after he was caught in
possession of the stolen property, the bloody clothes and the murder
weapon, which is indicative that the applicant does not have true remorse
nor good prospects of rehabilitation.
Evaluation and conclusion:
(18] I fully embrace the convictions of our Supreme Court of Appeal as inter alia set
out in S v Matyityi ("Matyityi"P and S v Ma/gas" ("Ma/gas") to the effect that the
minimum sentences have been ordained by the legislature and should be
imposed, unless there are truly convincing reasons for departing from them.
[19] The only instance on which a court may deviate from this is when there are
substantial and compelling circumstances. The specified sentences are not to be
departed from lightly and for flimsy reasons. Speculative hypotheses favourable
to the offender, undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legisla'tion, and marginal
differences in personal circumstances or degrees of participation between co
offenders are to be excluded.5 Once it becomes clear that the crime is deserving
of a substantial period of imprisonment the questions whether the accused is
3 2011 (1) SACR 40 (SCA) at para 23.
4 2001 (1) SACR 469 (SCA).
5 S v Ma/gas 2001 (1) SACR 469 (SCA) at 470H-J.
8
married or single, whether he has two children or three, whether or not he is in
employment , are in themselves largely immaterial to what that period should be,
and those seem to me to be the kind of "flimsy" grounds that Ma/gas said should
be avoided . The fact that the applicant is unmarried, unemployed and has two
children are indeed flimsy reasons which does not withstand scrutiny and do not
qualify as substantial and compelling circumstances.
[20] Remorse was said to be manifested in him pleading guilty. It has been held,
quii:e correctly, that a plea of guilty in the face of an open and shut case against
an accused person is a neutral factor . The remorse which was suggested, lacks
credibility for the simple reason that the applicant failed to take the court into his
confidence and explain exactly what had happened and why he acted in the
way he did. True remorse must not be confused with self-pity.6
[21] It is not clear from the submissions made as to what the court should read
about the offender being 27 years old that should count as substantial or
compelling circumstances. In Matyityi,7 Ponnan JA said the following in respect
of the offender who was aged 27:
'In my view a per;:;on of 20 years or more must show by acceptable evidence that he
was immature to such an extent that his immaturity can operate as a mitigating factor.
At the age of 27 the respondent could hardly be described as a callow youth. At best
for him, his chronological age was a neutral factor. Nothing in it served, without more.
to reduce his moral blameworthiness.'3
[22] The following remarks of Nugent JA in S v Swart2 are applicable to the possibility
of an accused's rehabilitation:
' .. Serious crimes will usually require that retribution and deterrence should come to the
fore and that the I ehabilitatton of the offender will consequently play a relatively smaller
6 Matyityi at para 13.
7 Matyityi at para 14
8 2011 (1) SACR 40 (SCA) at para 14
9
role.'
[23] In view of the above, lam not persuaded that another court, acting reasonably,
may find that the sentences imposed are nol warranted
[24] Consequently, I cannot find that the applicant's case is arguable and that
there are reasonable prospects of success. The application for leave to appeal
thus stands 10 dismissed.
Order
Therefore, the following order is made-
1. The application for leave to appeal against the sentences imposed in respect
of counts two, tl"1ree and four, is dismissed.
Appearances
On behalf of the applicant:
On instructions of:
On behalf of the respondent:
On instructions of:
Mr. P Fourie
STANTON J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Legal~Aid South Africa
Mr. Q Hollander
The Director of Public Prosecutions